US judge: White House aides can be subpoenaed
Matt Apuzzo, Associated Press – July 31, 2008

President Bush’s top advisers are not immune from congressional subpoenas, a federal judge ruled Thursday in an unprecedented dispute between the two political branches.

The House Judiciary Committee wants to question the president’s chief of staff, Josh Bolten, and former legal counsel Harriet Miers, about the firing of nine U.S. attorneys. But President Bush says they are immune from such subpoenas. They say Congress can’t force them to testify or turn over documents.

U.S. District Judge John Bates disagreed, saying there’s no legal basis for that argument and that Miers must appear before Congress. If she wants to refuse to testify, he said, 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.

The ruling is a blow to the Bush administration’s efforts to bolster the power of the executive branch at the expensive of the legislative branch. Disputes over congressional subpoenas are normally resolved through political compromise, not through the court system. Had Bush prevailed, it would have dramatically weakened congressional authority in oversight investigations.

From the Judiciary Committee:

Conyers Hails Landmark Ruling on White House Subpoena

(Washington, DC)– In a ruling today, United States District Court Judge John Bates ruled that former White House counsel Harriet Miers is not immune from Congressional subpoena and is required to testify on the U.S. Attorney scandal and the politicization of the Department of Justice in response to a House Judiciary Committee subpoena. He also rejected procedural arguments by Ms. Miers and White House Chief of staff Josh Bolten, and ruled that Mr. Bolten and Ms. Miers are required to produce non-privileged documents and specifically describe documents withheld from production based on executive privilege claims. House Judiciary Committee Chairman John Conyers, Jr. had the following statement:

“Today's landmark ruling is a ringing reaffirmation of the fundamental principle of checks and balances and the basic American idea that no person is above the law. Judge Bates' decision makes clear that the Congress had the right to subpoena Harriet Miers to learn of her role in the US Attorney firings, that her claim to be immune from subpoena was invalid and that the Committee was entitled to challenge that claim in Court. The Judge also ruled that the White House may not claim Executive Privilege over documents without describing them in reasonable detail so that these claims of privilege can be evaluated by Congress. 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. 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 decision can be found here.

The order from United States District Judge John D. Bates:

ORDER

Upon consideration of [16] defendants' motion to dismiss and [14] plaintiff's motion for partial summary judgment, the oppositions and replies thereto, the various amicus briefs filed in this matter, the entire record herein, the hearing on June 23, 2008, and for the reasons identified in the Memorandum Opinion issued on this date, it is hereby

1. ORDERED that defendants' [16] motion to dismiss is DENIED; it is further

2. ORDERED that plaintiff's [14] motion for partial summary judgment is GRANTED IN PART; it is further

3. DECLARED that Harriet Miers is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena from plaintiff; and Ms. Miers may invoke executive privilege in response to specific questions as appropriate; it is further

4. ORDERED that Joshua Bolten and Ms. Miers shall produce all non-privileged documents requested by the applicable subpoenas and shall provide to plaintiff a specific description of any documents withheld from production on the basis of
executive privilege consistent with the terms of the Memorandum Opinion issued on this date; and it is further

5. ORDERED that the parties shall appear at a status call in this matter at 9:15 a.m.on August 27, 2008.

SO ORDERED.

/s/
JOHN D. BATES
UNITED STATES DISTRICT JUDGE
Date: July 31, 2008