Judge Voices Doubt On Bush's Immunity Claim For Aides

Judge Voices Doubt on Bush's Immunity Claim for Aides

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By James Rowley

June 23 (Bloomberg) -- A U.S. judge voiced doubts about President George W. Bush's claim that his top advisers are completely immune from being forced to testify before a House panel investigating the firing of federal prosecutors.

U.S. District Judge John Bates today repeatedly challenged an administration lawyer to cite legal justification for the refusal of former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten to obey subpoenas to appear before the House Judiciary Committee.

The panel in Washington sought testimony and documents from Miers about whether White House aides orchestrated the nine dismissals for improper political motivations, such as to spur prosecution of Democrats or protect Republicans. Bolten was subpoenaed to produce documents.

"There is no case that supports the absolute immunity proposition that you have before the court," Bates told Carl Nichols, the principal deputy associate attorney general. Cases cited by the government "seem to support something less than an absolute immunity," the judge said.

Still, he questioned whether the court "should jump into" the fight between Congress and Bush as the president's term is nearing its end. In six months, "the subpoena will expire" and "there will be a new president and a new Congress," Bates said.

The judge signaled that instead of deciding the issue now, he may send both sides back to the negotiating table "with some directions" to seek a compromise on documents sought by Congress.

Executive Privilege
Bush has asserted executive privilege in refusing to allow top aides, including his former political strategist Karl Rove, to testify before Congress about the U.S. attorney dismissals.

Rove has been subpoenaed by the Judiciary Committee to testify July 10 about whether several public corruption prosecutions, including a case against a former Alabama governor, were politically motivated.

The House went to court in March seeking an order to force Miers and Bolten to appear before the committee after the Justice Department refused to criminally prosecute them for contempt of Congress.

Irvin B. Nathan, the House's general counsel, argued that Miers was required to at least appear before the committee and invoke Bush's executive-privilege claim on a question-by-question basis. That would give the committee -- and possibly the courts - - the ability to weigh the panel's need for information against Bush's confidentiality claims, he said.

Watergate
"No man is a judge of his own privilege," Nathan told Bates.

The case may be the biggest test of a presidential assertion of executive privilege since President Richard Nixon refused to turn over tapes of recorded Oval Office conversations to a federal grand jury investigating the Watergate scandal.

The Supreme Court in that 1974 case recognized a qualified privilege that was overcome by the grand jury's need for information about a criminal investigation that could influence decisions about whether to prosecute government officials for crimes.

"You would transform it, would you not, into an absolute privilege" by top aides to refuse to answer questions from Congress, Bates asked Nichols. Such an assertion would leave Congress and the courts unable to address the merits of the privilege claim, the judge said.

No Legal Right
The administration argued that Congress had no legal right to sue the aides and that the court lacked jurisdiction to enforce the subpoena.

An order directing Miers and Bolten to appear before the committee would be unprecedented because "no court has ever ruled that the Congress has the power to enforce subpoenas in court," Nichols told Bates.

During the three-hour argument, Bates said negotiations might be helped if the administration provided a more detailed description of the documents it won't let Congress see. That "would be very helpful to the kind of accommodation process" that would resolve the court fight, the judge said.

"It does seem to me both sides have showed a little bit of intransigence," Bates told Nichols.

The judge made the comment after Nichols conceded the Bush administration was only asserting a "qualified privilege" to turn over documents, not a blanket privilege from turning over anything.

Criminal Contempt
In February, the House voted 222-30 to hold Bolten and Miers in criminal contempt of Congress for ignoring subpoenas to cooperate with the Judiciary Committee's investigation of the dismissals.

A month later, the House filed a civil suit to enforce the subpoena after Attorney General Michael B. Mukasey refused to seek criminal prosecutions for the failure of Bolten and Miers to obey the subpoenas.

Noting that any decision is likely to be appealed, Bates said the subpoenas would expire when a new Congress takes office in January, when there would also be a new president.

"Should I take into account that this will all be moot in the not-too-distant future?" Bates asked Nathan.

"It is not moot" because the two aides have disobeyed a pending subpoena, Nathan said. "It is important that committees of the House be able to issue" subpoenas "and that the chief law enforcement officers comply with the law," Nathan said.