Court Rules Bush Aides Not Immune From Subpoenas

A federal judge in Washington today ruled against former Bush White House Counsel Harriet Miers and former White House Chief of Staff Josh Bolton in a lawsuit filed by the House Judiciary Committee. (See also, Dan Froomkin on the White House Immune Deficiency and Marcy Wheeler).

The Committee subpoenaed Ms. Miers to testify in the U.S. Attorney firing scandal. It also subpoenaed He a privilege log from Mr. Bolton. At the direction of President Bush, Miers and Bolton claimed that presidential aides are immune from congressional subpoenas based on principles of separation of powers and presidential autonomy.

The Court today ruled for the Judiciary Committee and rejected the immunity claim. The 93 page opinion is here.

The decision did not address Miers' and Boltons' claims of executive privilege, only immunity.[More...]

[O]n the merits of the Committee’s present claims the Court only resolves, and again rejects, the claim by the Executive to absolute immunity from compelled congressional process for senior presidential aides. The specific claims of executive privilege that Ms. Miers and Mr. Bolten may assert are not addressed -- and the Court expresses no view on such claims.

Judiciary Committee Chair John Conyers issued this statement after the ruling.

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    This is excellent news (5.00 / 1) (#2)
    by shoephone on Thu Jul 31, 2008 at 05:31:51 PM EST
    I don't have time to read through the 93-page decision until later today but, from what I recall of Nixon's court fights over exec. privilege, the court looked at both kinds of privilege -- "deliberative process privilege" and "communications privilege" (factual documents) -- and decided that neither privilege was absolute. That's why Nixon was ordered to hand over his infamous tapes and his aides had to answer their subpoenas.

    Fred Fielding, who worked for John Dean back in '73, really ought to know better than to pull this carp. But hey, the Bush/Cheney regime thinks it is above the law in every aspect. They will fight this to the bitter end. Should be very interesting!

    Okay, I just skimmed through the opinion (5.00 / 1) (#3)
    by shoephone on Thu Jul 31, 2008 at 05:51:07 PM EST
    and that is, indeed, what it is based on. NO ABSOLUTES.

    Now that immunity is out the window, a similar ruling, please, on privilege.


    Good News (none / 0) (#1)
    by squeaky on Thu Jul 31, 2008 at 05:27:53 PM EST
    Although I would be shocked if they did not appeal the ruling.

    This is good precedent. (none / 0) (#4)
    by Lysis on Thu Jul 31, 2008 at 06:09:14 PM EST
    The danger with Bush pushing this far was that he might win.  Hopefully the courts will continue to rein him in. Lord knows Congress and his successors in the position won't do so.

    So... if I understand this correctly (none / 0) (#5)
    by weltec2 on Thu Jul 31, 2008 at 06:22:56 PM EST
    they are required to appear before the Committee but they are not required to say anything. Well... whatever happens, Bush will pardon them anyway.

    So perhaps (none / 0) (#10)
    by BackFromOhio on Thu Jul 31, 2008 at 10:06:00 PM EST
    it's better to wait until after Jan ?

    No, I don't mean that. (none / 0) (#12)
    by weltec2 on Fri Aug 01, 2008 at 02:12:05 AM EST
    Read Steve M's #9 post. It just isn't going to go anywhere. They should have done something about this a loooong time ago. Now it's just noise before election time so that they can say they did something. We really MUST get rid of Nancy.

    Unfortunately, the American public... (none / 0) (#6)
    by Dadler on Thu Jul 31, 2008 at 07:23:57 PM EST
    ...seems completely immune to the kind of vibrant intellectual curiosity vital to a functioning and uncorrupted democracy.  Until that changes, well, you know the rest.

    I think the American public has not been (none / 0) (#11)
    by BackFromOhio on Thu Jul 31, 2008 at 10:08:48 PM EST
    given the opportunity. Case in point: When impeaching hearings began against Nixon, only 25% of Americans favored impeachment.  By the end of the hearings, over 75% thought so. The hearings were conducted in a most legalistic, careful, exceedingly slow and deliberate manner, but many were glued each day to the TV.  It was a national educational experience in what our Constitution stands for. The lost opportunity for a national education on the Constitution is why I most rue Pelosi's "impeachment is off the table" stance.  

    Why no ruling on executive privilege? (none / 0) (#8)
    by joanneleon on Thu Jul 31, 2008 at 09:14:51 PM EST
    Is it common for a judge to rule on one part and ignore another?  It seems strange for a judge to say "the Court expresses no view on such claims."

    What are they supposed to do about the exec privilege claims now?  Is the judge pushing it up to a higher court or something?  

    The judge is a Bush appointee.  Could he be purposely leaving an escape hatch?  Or am I being too suspicious and is there some good reason for ruling this way?

    Well (5.00 / 1) (#9)
    by Steve M on Thu Jul 31, 2008 at 09:45:34 PM EST
    I think the executive privilege argument is not "ripe" for disposition yet, because they would have to actually show up and refuse to answer specific questions on the grounds of executive privilege.  Then the court would have an actual issue to decide.

    It's pretty well established that the executive privilege does exist; what's in question is the scope of the privilege.  So in the absence of specific questions where the court can say "that's privileged" or "that's not privileged," there's not much for the court to say.


    Over on C&L there is a vid with (none / 0) (#13)
    by weltec2 on Fri Aug 01, 2008 at 03:28:05 AM EST
    Nancy at The View saying that if there were any convincing evidence that Bush was guilty of any crimes then of course impeachment would have been considered, but no there were more important things to be considered when she became Speaker. HOW could people sit there in the audience and listen to this woman without screaming in ougtrage? And then Kucinich came on and said how he had all this respect for Nancy and then recited some of Bush's crimes. What? Was he tired? What in heaven's name has happened to Dennis? I would have expected him to be furious. Wasn't Nancy listening to him when he delivered his speach on Bush's crimes. NO! She wasn't listening. She was counting all the money she has been paid off by Bush & Company to go on national television and say that there is really no evidence that Bush & Company are guilty of anything. If you have not already seen the video, I encourage you to go over to Crooks and Liars and look at it. But a warning... you may be tempted to punch in the monitor of your computer. I advise tying your arms to the mast of your ship.