Today has been a good day for Congress in its efforts to reimpose some limits on Presidential power. Judge John D. Bates, a 2001 Bush appointee to the Washington D.C. United States District Court, ruled today that presidential advisers and aides must appear before Congress when issued a subpoena. Congress sued the Administration in District Court to force former White House counsel Harriet Miers and current White House chief of staff Josh Bolten to appear before Congress as required by a Congressional subpoena that was ignored.
The Bush Administration, acting in its usual imperial modus operandi, had refused to let the two advisers even appear before Congress, claiming that the doctrine of executive privilege shielded everyone who gave advice to the President. This expansive view of executive privilege could have ultimately applied to anyone who wrote anything that the President ever read, or who provided information to the President’s advisers and who then advised the President, ie the entire Executive Branch, from the various Cabinet-level appointees all the way down to lowly USGS scientist or Goddard Institute for Space Sciences researcher. Judge Bates, however, wisely ruled that “[t]he executiveâ€™s current claim of absolute immunity from compelled Congressional process for senior presidential aides is without any support in the case law.”
The problem here wasn’t necessarily that executive privilege didn’t apply to the information that Congress wanted, and wants, from Miers and Bolten – it well may. Instead, Judge Bates ruled that individuals to whom Congressional subpoenas are issued must appear to state their refusal to testify under executive privilege. They can’t assert privilege remotely and fail to appear before Congress. The NYTimes story points out that, while Judge Bates apparently tried hard to limit the range of his ruling, if it’s upheld following a certain White House appeal, his ruling could ultimately apply to Karl Rove, who similarly ignored a Congressional subpoena and faces a likely Contempt of Congress citation as a result.