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.