Judge Rules White House Aides Must Comply With Congressional Subpoenas

A federal judge has ruled that top White House officials are not immune from congressional subpoenas and can be compelled to testify before Congress.

The House Judiciary Committee subpoenaed former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten last year to testify about the role the White House played in the decision to fire nine U.S. attorneys in late 2006. Additionally, the committee sought documents from Bolten and Miers related to the attorney purge.

Bolten and Miers were instructed by President George W. Bush to ignore the subpoenas and advised not to appear before the committee. Bush claimed Bolten and Miers were immune to congressional subpoenas and any information they may have related to the firings was protected by executive privilege.

The House voted to hold Bolten and Miers in contempt of Congress. It was the first time in 25 years a full chamber of Congress voted on contempt of Congress citation.

The Democratic leadership referred the matter to Attorney General Michael Mukasey and requested that he instruct a federal prosecutor to convene a grand jury to prosecute the case.

But Mukasey said he had no intention of enforcing the contempt citations.

“The department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers,” Mukasey wrote in a letter in February to House Speaker Nancy Pelosi. The contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president’s claim of executive privilege. “Accordingly,” Mukasey concluded, “the department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime.”

U.S. District Judge John Bates said the White House’s legal argument of executive privilege are unfounded. Bates said Miers could invoke executive privilege on a question-by-question basis. But he said Miers must comply with the congressional subpoena to exercise that right.

“… The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context,” Bates wrote in a 93-page opinion. “That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive’s claim of absolute immunity for senior presidential aides.

“The aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.”

Bates added that “Harriet Miers is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena,” and that Bolten and Miers must also turn over to Congress a list of documents they have related to the U.S. attorney firings.

“The Court once again emphasizes the narrow scope of today’s decision. The Court holds only that Ms. Miers (and other senior presidential advisors) do not have absolute immunity from compelled congressional process in the context of this particular subpoena dispute,” Bates wrote. “There may be some instances where absolute (or qualified) immunity is appropriate for such advisors, but this is not one of them.”

The Department of Justice Department is expected to appeal the ruling.

Documents released by the Department of Justice last year shows that Miers was briefed by DOJ officials about the decision to purge the U.S. attorneys and was aware that the DOJ would cook up a bogus story to explain the reason behind the dismissals.

Indeed. In February 2005, Miers suggested to Kyle Sampson, then chief of staff to Attorney General Alberto Gonzales, that perhaps all 93 U.S. attorneys should be fired.

That idea was rejected, but Sampson spent nearly two years working on a list of U.S. attorneys to purge on the basis that they were disloyal. All 93 federal prosecutors were ranked by “loyalty to the President and Attorney General.”

Sampson, who was singled out in a report by the Justice Department’s Inspector General this week for violating civil service laws by using a political litmus test to guide his hiring decisions at the agency, wrote to Miers suggesting “a limited number of U.S. Attorneys could be targeted for removal and replacement.”

Last year, Sampson resigned from the DOJ.

In an interview with me, John McKay, the former U.S. attorney for the Western District of Washington who was fired in December 2006, said he believes he was not selected for a federal judgeship by local Republicans in Washington state last year because he did not file criminal charges against Democrats for voter fraud related to the 2004 governor’s election.

McKay said he felt he was not being treated fairly, and requested a meeting with then-White House Counsel Harriet Miers to discuss the issue, as well as his application for US district judge in his home state.

“I asked for a meeting with Harriet Miers, whom I had known since work I had been involved in with the American Bar Association, and she immediately agreed to see me in August of 2006,” McKay said.

When McKay met with Miers and her deputy, William Kelley, at the White House, the first thing they asked him was, “Why would Republicans in the state of Washington be angry with you?”

That was “a clear reference to the 2004 governor’s election,” McKay said in characterizing Miers and her deputy’s comments. “Some believed I should convene a federal grand jury and bring innocent people before the grand jury.”

“All of my actions as United States attorney had been coordinated with the Department of Justice,” McKay said. He said he explained that to Miers and Kelley, and informed them that there was no evidence of voter fraud to support launching a federal inquiry into the election.

The meeting with Miers and Kelley did not have a positive impact on McKay’s request to be appointed a judge at US District Court. Instead, McKay said it appears that he landed on the so-called list of US attorneys to be fired just a few weeks after his meeting with Miers and Kelley.

That was an incident Congress wanted to question Miers about.

“We look forward to the White House complying with this ruling and to scheduling future hearings with Ms. Miers and other witnesses who have relied on such claims,” House Judiciary Chairman John Conyers said in a statement. “We hope that the defendants will accept this decision and expect that we will receive relevant documents and call Ms. Miers to testify in September.”

The ruling also means that former White House political adviser Karl Rove will likely have to comply with a congressional subpoena. On Wednesday, the House Judiciary Committee voted on a resolution to hold Rove in contempt for refusing to appear before Congress earlier this month to testify about whether he played a role in the prosecution of Alabama Gov. Don Siegelman, a Democrat. Siegelman’s prosecution is alleged to have been politically motivated.

The full House is expected to vote on contempt of Congress citation for Rove this week if he does not agree to voluntarily appear before Congress to testify about the Siegelman case.

Rove was also subpoenaed by the Senate Judiciary Committee last year to testify about the U.S. attorney firings, but refused to appear based on a letter from White House Counsel Fred Fielding that said President Bush would “invoke a blanket claim of executive privilege.” Additionally, the Department of Justice’s Office of Legal Counsel issued a separate opinion stating Rove was “immune from compelled Congressional testimony” as an “immediate Presidential advisor.”

Patrick Leahy, the Democratic Chairman of the Senate Judiciary Committee, fired off a letter to Rove’s attorney, Robert Luskin, Thursday stating Bates’ decision renders the administration’s legal opinions “invalid.”

“Please advise me by next Thursday, August 7, when Mr. Rove will comply with the Committee’s subpoena,” Leahy wrote.

Luskin did not return calls for comment.

Anne Weismann, chief counsel for the government watchdog group, Citizens for Responsibility and Ethics in Washington (CREW), said Bates’ decision is important because it “affirms Congress’ right to investigate executive branch misconduct and rejects as unfounded the White House’s view that it is above the law.

“This administration has consistently attempted to expand the definition of executive power and privilege beyond any possible legitimate constitutional interpretation,” Weismann said. “Today’s opinion stops this effort cold.”

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