Judge: Congress can subpoena White House officials

posted at 11:50 am on July 31, 2008 by Ed Morrissey

The Bush administration took one on the chin today, as a federal judge rejected completely the notion that White House officials have immunity from Congressional subpoenas.  Judge John Bates, a Bush appointee, ruled that the argument had absolutely no precedent in law, and that Congressional subpoenas are valid even for executive branch figures.  If they choose not to testify, Bates ruled, they have to do so in person:

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 will almost certainly be appealed, but the ruling comes as both a legal and a public-relations setback for the administration.  They had played a game of chicken with Congress on the subpoenas, probably hoping to run out the clock more than anything else.  They can still do that with appeals, perhaps all the way to the Supreme Court, which won’t even meet again until October, but the rather emphatic ruling by Judge Bates undermines their case for the effort, at least on a political basis.

The ruling may not make a lot of difference, practically speaking, for the investigation.  Bolten and Miers will likely take Bates’ advice if forced to appear and simply refuse to answer any questions.  The documents under subpoena will force another fight over which specifically should be covered under executive privilege, and which should not.  That will also take months to sort out, and in the end Congress may lose interest in the issue before that takes place.

Nevertheless, this still indicates that the Bush administration may have foolishly entered this game of chicken without understanding the potential results.


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This is the most ridiculous thing I’ve seen since, well, since Plame. Congress can’t do anything it is supposed to be doing yet they spend hours trying to find out if politicians are acting political. ::sigh::

Sue on July 31, 2008 at 11:54 AM

So Congress can just subpoena any one it wants, any time it wants? And then charge people with contempt? Why is this good?

MayBee on July 31, 2008 at 11:54 AM

I think the Executive Branch should tell the Legislative Branch to go F themselves and we will let the Judicial Branch sort it out in the Supreme Court!

sabbott on July 31, 2008 at 11:55 AM

I always had mixed feelings about that. I hate to see any official treated differently then a citizen.
I know the problem of endless subpoenas, but that may be the price we pay to have an open exposed government.
Just as long as it applies to both sides of the aisle.

right2bright on July 31, 2008 at 11:56 AM

Thank God Congress is devoting so much of their time to this. With rising gas prices, a war on terror, and foreclosures on the rise, this is all Americans truly care about.

Seriously, though, wasn’t MoveOn specifically founded to “Move On” from the attention paid to Clinton’s perjury? Now their ilk wants to harp on this. Wow.

amerpundit on July 31, 2008 at 11:56 AM

I think the Executive Branch should tell the Legislative Branch to go F themselves and we will let the Judicial Branch sort it out in the Supreme Court!

G-Damn right – f-em’

jake-the-goose on July 31, 2008 at 11:56 AM

Congress looked like buffoons with the steroid hearings.

Blake on July 31, 2008 at 11:58 AM

I don’t think the Bush administration is foolish. How about the Dems being faced with coming up with solutions for real problems and instead spinning their wheels to get revenge? Now that is foolish.

The President doesn’t take it from Pelosi and her side kicks and I approve. Run out the clock and keep up the good work.

Can I presume that this judge is a Clinton or Carter appointee?

Hening on July 31, 2008 at 11:59 AM

Whatever happened to the Constitution, which created three co-equal branches of government? Congress doesn’t have supremacy over the executive branch. Let’s see if the Supremes can lower themselves from their self acclaimed position as the ‘most coequal branch’ to rule properly here. I doubt it because it will call their assumed supremacy into question.

pistolero on July 31, 2008 at 11:59 AM

Doesn’t Congress have other things to do then this?

Oil and drilling domestically comes to mind. Or how about apporving some money to make a fence for my friends next to the border?

Hmmm….

upinak on July 31, 2008 at 12:00 PM

Drag it out. The lower oil and gas prices are only temporary. Lets hope for an early fall and frost on the ground in September. When the demand for fuel oil causes the price of gas to jump again republicans can point to this as how pelosis congress has spent the year.

peacenprosperity on July 31, 2008 at 12:01 PM

Can I presume that this judge is a Clinton or Carter appointee?

Hening on July 31, 2008 at 11:59 AM

Second sentence. Bush appointee. So much for litmus tests.

pistolero on July 31, 2008 at 12:01 PM

Thank God Congress is devoting so much of their time to this. With rising gas prices, a war on terror, and foreclosures on the rise, this is all Americans truly care about.

Come on, man, rattling sabers about subpeonas to White House officials is so much more vital than actually accomplishing stuff.

When is Congress’ approval rating going into the minuses?

mjk on July 31, 2008 at 12:02 PM

U.S. District Judge John Bates disagreed, saying there’s no legal basis for that argument

This lower level judge has got it backwards in my opinion. The Constitution established the separation of powers and unless the Constitution make an exception concerning this separation, then it does not exist. I would expect an appeals court to overturn Judge Bates decision.

Maxx on July 31, 2008 at 12:03 PM

Can I presume that this judge is a Clinton or Carter appointee?

Hening on July 31, 2008 at 11:59 AM

The article says that he is a Bush appointee.

OldEnglish on July 31, 2008 at 12:04 PM

Just as long as it applies to both sides of the aisle.

right2bright on July 31, 2008 at 11:56 AM

Never becomes an issue on the Republican side of the aisle where the ball-less congregate.

fogw on July 31, 2008 at 12:05 PM

Hey congress. You bring your army over to the white house and collect these people and their papers. What? You don’t have an army? Well, I do.

TimothyJ on July 31, 2008 at 12:05 PM

G-Damn right – f-em’

jake-the-goose on July 31, 2008 at 11:56 AM

Thats what I say F-em’

Mojack420 on July 31, 2008 at 12:05 PM

pistolero on July 31, 2008 at 12:01 PM

Sorry, pistolero, you obviously type faster than I. :)

OldEnglish on July 31, 2008 at 12:05 PM

I don’t recall the Constitution granting judicial powers to the legislative branch…

CP on July 31, 2008 at 12:06 PM

I’m already in contempt of congress, so…

Akzed on July 31, 2008 at 12:06 PM

So Congress can just subpoena any one it wants, any time it wants? And then charge people with contempt? Why is this good?

That’s right. And if this had been a Republican congress doing this, you can bet we’d already be up to our eyeballs in tons of verbage from the left about how this infringes on our civil rights…

But this is all about Vengeance…er…justice so it’s a-ok!

This naturally leads to the flip side of this power grant by the judge… can the executive branch now order the arrest of members of congress?

Skywise on July 31, 2008 at 12:08 PM

peacenprosperity on July 31, 2008 at 12:01 PM

Well Peace, I have good news on that. The trees are turning yellow up here already and we have snow in the montains. it is only “July”. When Alaska starts having the seasons change, MT, ND, MI and other Canada boardering State usually catch up about a month later. Expect Snow VERY soon…. especially this year.

upinak on July 31, 2008 at 12:09 PM

Hey Skywise. It’s called the FBI. Ask that guy in Alaska.

TimothyJ on July 31, 2008 at 12:09 PM

I’m already in contempt of congress, so…

Akzed on July 31, 2008 at 12:06 PM

Good point. Look at the polls, there is hardly a soul in America that DOES NOT have contempt for Congress.

Maxx on July 31, 2008 at 12:09 PM

Seriously, though, wasn’t MoveOn specifically founded to “Move On” from the attention paid to Clinton’s perjury? Now their ilk wants to harp on this. Wow.
.
amerpundit on July 31, 2008 at 11:56 AM

.
The point was to ‘move on’ from Clinton scandals to creating publican scandals.
.
Didn’t you get the memo?…

Right_of_Attila on July 31, 2008 at 12:15 PM

If Congress sets this precedent, backed by this federal court ruling, then it certainly affects the separation of powers set forth in the Constitution.

In their efforts to go after Bush, Congress may have opened a Pandora’s Box that will haunt future Administrations for a long long time. What is going to happen should a Republican majority decide to subpoena officials and former officials of ANY Democrat Administration? Well, up until today, those officials could cite privilege…now, they cannot.

What is the root of this tempest? This is fundamental to ALL the antics that led to this federal court ruling. The Administration fired attorneys they hired?

I served a couple decades at the pleasure of the President(s). I was Exempted Civil Service. There are quite a large number of ECS employees in the federal government; not the stock clerks and admin types –the GS-7/11 grades. Most ECS employees serve at the higher pay grades — up there in GS-15/SES/SIS country. Unlike regular civil service, we could be fired at any time for any reason or for no reason at all, with no legal recourse. I believe the fired attorneys were also ECS, not regular civil service. As a condition of accepting a federal appointment, we signed on the dotted line that we served at the pleasure of the President. We knew what the deal was. So did these attorneys.

So, Congress is going to upset more than they realize going after something that does not exist? Why am I not surprised anymore?

coldwarrior on July 31, 2008 at 12:15 PM

Hey Skywise. It’s called the FBI. Ask that guy in Alaska.

Sure but on charges not related to his official duties. Recall how the esteemed congressman from Louisiana with tons of cash in his freezer was protected from having his congressional offices searched as a violation of constitutional power…

Skywise on July 31, 2008 at 12:16 PM

So Congress can just subpoena any one it wants, any time it wants?

No, it can’t. This is yet another magically conjured ‘power’ that is utterly unconstitutional….much like the SCROTUS’ power to issue ‘rulings’ and ‘strike down’ law.

LimeyGeek on July 31, 2008 at 12:16 PM

Why is any court lower than the Supreme Court even ruling on something of this level?

- The Cat

MirCat on July 31, 2008 at 12:16 PM

Nevertheless, this still indicates that the Bush administration may have foolishly entered this game of chicken without understanding the potential results.

Foolishly? I’m no Constitutional scholar, but it seems to me that if Bush is standing on principle, he’s no fool in my book.

jgapinoy on July 31, 2008 at 12:16 PM

I think the Executive Branch should tell the Legislative Branch to go F themselves and we will let the Judicial Branch sort it out in the Supreme Court!

Yup.

LimeyGeek on July 31, 2008 at 12:17 PM

Why is any court lower than the Supreme Court even ruling on something of this level?
- The Cat

It’s within the US District Court’s jurisdiction. Bush can appeal it higher if he wants to.

jgapinoy on July 31, 2008 at 12:18 PM

Nevertheless, this still indicates that the Bush administration may have foolishly entered this game of chicken without understanding the potential results.

I think they are intending to take a stand. What’s the downside– they either end up having to go before Congress after all, or they point out the lopsided power Congress is trying to grab for itself. Perhaps all the way to the Supreme court.

I compare this to the uproar (thanks, Denny Hastert!) when the Judicial and Executive branches got together to search William Jefferson’s office.

MayBee on July 31, 2008 at 12:19 PM

This judge is a GW Bush appointee. Some previous rulings were:

Bates dismissed the GAO’s effort to learn with whom Vice President Dick Cheney’s energy task force conferred.

Dismissed a lawsuit filed by Valerie Plame Wilson and her husband against Vice President Dick Cheney, White House political adviser Karl Rove, former White House aide I. Lewis “Scooter” Libby and former Deputy Secretary of State Richard Armitage.

“Dismissed a lawsuit by outed spy Valerie Plame and her husband against Vice President Dick Cheney and other top Bush administration officials.” Judge Bates stated in his ruling that the couple’s allegations “pose important questions relating to the propriety of actions undertaken by our highest government officials,” but that he had to dismiss their claims for jurisdictional reasons. While saying the Bush administration officials’ actions “may have been highly unsavory,” Bates nonetheless ruled “there can be no serious dispute” that speaking to the press to rebut Wilson’s criticism was “within the scope of defendants’ duties as high-level Executive Branch officials.”

“In a December 30, 2002 decision, Judge John Bates of the U.S. District Court ruled that lead plaintiff Representative Dennis Kucinich and 31 other Members of the House of Representatives have no standing to challenge President Bush’s withdrawal from the Anti-Ballistic Missile (ABM) Treaty without congressional approval. He also ruled that the case presents a “political question” not suitable for resolution by the courts.”

Source: http://en.wikipedia.org/wiki/John_D._Bates

jrlingreenbay on July 31, 2008 at 12:21 PM

Skywise, you are absolutely right. It is for Republicans only. Democrats who commit crimes are considered as having passed a rite of passage and are nominated for committee chairs.

TimothyJ on July 31, 2008 at 12:30 PM

So did these attorneys.

So, Congress is going to upset more than they realize going after something that does not exist? Why am I not surprised anymore?

coldwarrior on July 31, 2008 at 12:15 PM

Did the attorneys start this or was it the dem congress looking for anything they could to “get” Bush?
Of course it will be preceived that it only applies to dems going after repubs but that has always been the case with the dems. I’ve always thought that the first rule of liberalism is “Open mouth instert barrel and pull trigger.”
They are and always well be tunnel visioned morons.

jmarcure on July 31, 2008 at 12:30 PM

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

That right there was the key line to the ruling. Yes they have to provide and testify about all “non-privileged” information, but that does not mean they have to supply everything or tell everything if subpoenas. So what will happen is they go to testify and just claim that is privileged information on any question they don’t want to answer.

JeffinSac on July 31, 2008 at 12:32 PM

Why is any court lower than the Supreme Court even ruling on something of this level?

- The Cat

MirCat on July 31, 2008 at 12:16 PM

There may be some exceptions, but I can’t think of any. I think all cases start in the District Court (lower level) then to the Appeals Court, then onto the Supreme Court, if the Supreme Court elects to hear it. Any case is only guaranteed ONE appeal.

Maxx on July 31, 2008 at 12:35 PM

Judge: Congress can subpoena White House officials

AGAIN IMO, Bush is failing to use his office effectively. There are many legal precedents not set. For example, telling this judge to go to hell, and that he’s not going to do it. Next, how about the USDOJ questioning congressional leaders on their private meetings with lobbyists, then prosecuting them for corruption for ALL of that refrigerator stored cash.

byteshredder on July 31, 2008 at 12:38 PM

Here at HA, I know that we don’t like the facts to impede our commentary. But you may wish to, uh, read, or to at least skim, the judge’s opinion before writing about it, or criticizing it.

Among other things, Judge Bates makes it clear that all Ms. Miers and Mr. Bolten have to do is appear before the committee. If members of the committee ask inappropriate questions, Miers and Bolten may assert executive privilege and decline to answer. But Miers and Bolten are not entitled, as the administration claimed, to absolute immunity from all compulsory process, including the duty to even appear.

paul006 on July 31, 2008 at 12:44 PM

But Miers and Bolten are not entitled, as the administration claimed, to absolute immunity from all compulsory process, including the duty to even appear.

paul006 on July 31, 2008 at 12:44 PM

Where in the constitution is the legislative branch authorized to exercise judicial power over the executive?

They have fabricated the power to act as judge and jury.

LimeyGeek on July 31, 2008 at 12:47 PM

In the beginning, these attorneys were fired.

The convouluted reasons cited by the DOJ spokesman, a few members of the Attorney General’s staff, and the Attorney General, led to the notion that these firings were totally and completely political. One would think that most of government would be media savvy at this poiint in our history. Were these firings political? Perhaps they were. But one of the things about federal attorneys in the various districts is they set the local agenda as to which cases to prosecute and which ones to run out the clock on, normally in accordance with policy set by the Attorney General. Apparently, these fired attorneys were prone to let the clock run out on several cases while pursuing cases, and expending funds on cases, that were somewhat political in nature, and not in compliance with guidance set out by the Attorney General. If you get hired by the Attorney General, isn’t there some expectation that you will follow the guidance of that Attorney General, or perhaps find employment elsewhere?

I envision a lengthy Congressional inquiry, complete with dozens and dozens of expert witnesses, lots of cameras, and none of the majority members ever addressing the root of the firings.

Instead, they will launch into their last chance to get something, anything, on Bush. That is what the majority in Congress wishes most. Get Bush! Get Bush on anything, anything at all.

The Adminmistration is standing on a principle, a long held one at that, one used for quite a long time, by Dems and Republican administrations over the years. There are aspects of the Executive that are not the perview of the Legislative Branch. It becomes a Constitutional question. Separation of powers, simply put. This separation does not preclude investigation of the Executive into criminal misdeads of the Judiciary or Legislative branches, nor of the Judiciary or Legislative to look into criminal cases involving Executive misdeeds. Hence, Congress and the Judiciary looking into mattters involving the Executive Branch interfering with the civil rights of several persons involved in cases involving sexual harrassment, or the more recent Jefferson raid viewed by the Judicidary and Executive as being legal. Congress, well, the majority, thought otherwise, and Jefferson still serves, despite his criminal enterprise.

Bottom line? Congress, the present majority in Congress, is going to once again hold hearings, question “witnesses” and spend lots of money and limited time instead of doing their Constitutiinally mandated business of effecting legislation for the good of the country.

It’s all about Bush. Simple as that.

coldwarrior on July 31, 2008 at 12:49 PM

So Congress can just subpoena any one it wants, any time it wants? And then charge people with contempt? Why is this good?

MayBee on July 31, 2008 at 11:54 AM

No, no, no. Congress can not charge just anyone with contempt of Congress. They can, and do, charge Republicans with contempt of Congress.

So Senior Bush, that new tone with the Democrats worked out oh so well didn’t it?

18-1 on July 31, 2008 at 12:50 PM

This naturally leads to the flip side of this power grant by the judge… can the executive branch now order the arrest of members of congress?

Skywise on July 31, 2008 at 12:08 PM

Jay Rockefeller did admit to committing treason…

Then again, nothing ever happened to Ted Kennedy for collaborating with the Soviets, did it?

18-1 on July 31, 2008 at 12:53 PM

I don’t know constitutional law, but why can’t one area of the government hold another accountable. If the executive, only investigates itself, that isn’t much use.
I am not saying I agree, I just think that no one in power should be above being investigated for CAUSE.
That would mean the executive branch could issue subpoena for congress…like Feinstein.
This could cause the “Great Subpoena War of 2008″, I know. But don’t you think the American public would get tired of this (ala Clinton scandal) and the backlash would be on the Dems?
I just don’t know…I am not convinced either way. Just whatever committee decides has to be totally balanced (and it is, just that the deciding vote is Dem) and bi-partisan, and a 2/3 vote needed.

right2bright on July 31, 2008 at 12:58 PM

This

“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.

Is true. They do have to appear but they have no legal responsibility to testify to priviledged magerial.

At this stage, just appeal and ignore them all.

JIMV on July 31, 2008 at 12:59 PM

I wonder how the judicial branch would feel if Congress decided to subpoena them to force them to reveal all their research and deliberations on judicial decisions.

DamnCat on July 31, 2008 at 1:06 PM

I don’t know constitutional law, but why can’t one area of the government hold another accountable. If the executive, only investigates itself, that isn’t much use.

I would argue that it is we the people that are supposed to be holding all branches of gubmint to account.

Impeachment is the only legit avenue for congress to take, but they know they have sweet FA, so they’re defaulting to this bullshart behaviour – wasting more of our money in the process.

And we the people just sit on our shag-arse lazy behinds.

LimeyGeek on July 31, 2008 at 1:14 PM

Where do I sign up to be in contempt of 9% congress.

dhunter on July 31, 2008 at 1:15 PM

Congress can’t do the people’s work so they think changing the subject will work. The problem is, every time you fill up, it changes right back.

tarpon on July 31, 2008 at 1:19 PM

The US Congress and American Judiciary are CRAP. Other than having 2/3 of its government totally dysfunctional and infiltrated with traitors, America is otherwise a beacon for the world.

freevillage on July 31, 2008 at 1:22 PM

Im sure John Adams and Thomas Jefferson are rolling over in their graves.

becki51758 on July 31, 2008 at 1:23 PM

If the executive, only investigates itself, that isn’t much use.

I would say you’re only one short step away from Islamofaschism.

freevillage on July 31, 2008 at 1:24 PM

The best strategy is to respond in kind. The administration should start issuing subpoenas for the chiefs of staff for Pelosi, Reid, Murtha, et. al.

Kafir on July 31, 2008 at 1:35 PM

I would say you’re only one short step away from Islamofaschism.

freevillage on July 31, 2008 at 1:24 PM

At least the trains will run on time.

LimeyGeek on July 31, 2008 at 1:40 PM

Maybe W. had a reason for trying to appoint Harriet Meirs to the supreme court.

And why does the justice dept. seeminly only investigate, prosecute Republicans?

dhunter on July 31, 2008 at 1:41 PM

I don’t know constitutional law, but why can’t one area of the government hold another accountable.

They can, congress has the power of impeachment and can take other actions if executive office is willingly in violation of law. There’s nobody here that’s going to argue about that check and balance.

This ruling allows the congress to play witch hunt and other political grandstanding games. Note that they can still plead the 5th. Note that they don’t have to give over documents that the President declares privileged. So what did congress gain? ANYBODY that works in the executive office, for whatever reason, must now appear before congress whenever they demand for whatever they demand. It used to be that congress could only go after the office holder like the President or his board members. Now they have the right to go after his advisors.

Skywise on July 31, 2008 at 1:44 PM

Hey, Kafir, don’t forget Supreme Court Justice Kennedy. I would like to hear him testify as to how he thinks international law and his “gut” feelings transpose into Constitutional law here in America.

TimothyJ on July 31, 2008 at 1:45 PM

Subpoena me, guys. I’ll show you contempt.

YOU work for ME, not vice-versa.

mojo on July 31, 2008 at 2:06 PM

SCOUTS has ruled that Congress’s authority to conduct hearings and issue subpoenas is explicitly tied to its legislative function and jurisdiction (McGrain v. Daugherty, Watkins v. United States). Can someone please explain the legislative purpose for this, and why the White House falls under Congress’s jurisdiction?

Machiavelli on July 31, 2008 at 2:11 PM

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.

Really?

We’re STILL on this???!!!!

While we’re at it, lets ask Mr. and Mrs. Clinton why he fired ALL the U.S. Attorneys when he took office in ’93.

Jesus flippin’ Christ.

Hawkins1701 on July 31, 2008 at 6:18 PM

W will appeal and win. They have executive privilege.

dogsoldier on July 31, 2008 at 9:04 PM

Morrissey is wrong, this does not give Congress the ability to call Auntee Miers and company out for a witch hunt. The judge left leeway. The still have a lot of wiggle room. Morri needs to re-read the opinion before dropping a bomb on Hotair.

revolution on July 31, 2008 at 10:58 PM

I read somewhere that the judge bastardizeed two SCOTUS decisions (By inserting Congress in the decisions) to come up with the logic that they had to testify.

davod on August 1, 2008 at 8:48 AM