Federal judge: White House aides can be subpoenaed
In June, after White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers refused to comply with congressional investigations into the U.S. Attorneys scandal, the Justice Department claimed "that senior presidential advisers are absolutely immune from congressional subpoenas." But today, a federal judge has ruled that "there's no legal support for that stance" and "aides can be subpoenaed." Federal Judge John Bates stated that Bolten and Miers must comply with Congress:

U.S. District Judge John Bates disagreed. He said there's no legal basis for that argument. He said that Miers must appear before Congress and, if she wants to refuse to testify, she must do so in person.

"Harriet Miers is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena," Bates wrote.

He said that both Bolten and Miers must give Congress all non-privileged documents related to the firings.

UpdateBates was appointed by President George W. Bush in December 2001 and was appointed to the FISA court by Justice John Roberts in 2006. On many previous occasions, his rulings have helped cover-up for the administration's wrongdoings.UpdateRead Bates' summary judgment here.UpdateFormer Justice Department lawyer Marty Lederman calls the ruling "a landmark decision."

This just in:

“The executive’s current claim of absolute immunity from compelled Congressional process for senior presidential aides is without any support in the case law,” Judge John D. Bates ruled in United States District Court here. Unless overturned on appeal, a former White House counsel, Harriet E. Miers, and the current White House chief of staff, Joshua B. Bolten, would be required to cooperate with the House Judiciary Committee, which has been investigating the controversial dismissal of the federal prosecutors in 2006.

Judge Bates, a Bush appointee, has hitherto stayed loyally on the reservation. Chief Justice John G. Roberts even appointed him to the Foreign Intelligence Surveillance Court in 2006 to replace a judge who resigned after learning that Bush had been been illegally bypassing FISA for years.

Apparently Judge Bates is not so picky that he won’t serve on a rubber-stamp court. But it turns out he draws the line, thank you Lord, at the idea of turning Congress too into a rubber stamp.

Bates is likely to be reversed on appeal, the U.S. District Court for the District of Columbia having been systematically packed with GOP hacks for decades. (Its chief judge is David B. Sentelle, of blessed memory for siccing Kenneth Starr on Clinton and overturning the felony convictions of Oliver North and John Poindexter.)

Or the whole can of worms could easily be kicked down the road until the election is past. Or the case could be fast-tracked to the Supreme Court where it would be sure to receive the same sort of rough frontier justice meted out to Al Gore in 2000.

But still, but still. We strict constructionists must content ourselves with the occasional crumbs thrown to us by judges who legislate from the bench. Thus it is encouraging to see that at least one Bush appointee wants to put a leash, however flimsy, on Little Caesar’s imperium.





Posted by Jerome Doolittle at 5:18 PM | Permalink & Email Post |