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Judge challenges Bush's immunity claim

Privilege asserted for top advisers

Email|Print|Single Page| Text size + By James Rowley
Bloomberg / June 24, 2008

A US judge voiced doubts yesterday about President Bush's assertion that his top advisers are completely immune from being forced to testify before a House panel investigating the firing of federal prosecutors.

US District Judge John Bates repeatedly challenged an administration lawyer to cite legal justification for the refusal of former White House counsel Harriet Miers and Chief of Staff Joshua Bolten to obey subpoenas to appear before the House Judiciary Committee.

The panel in Washington sought testimony and documents from Miers about whether White House aides orchestrated the nine dismissals for improper political motivations, such as to spur prosecution of Democrats or protect Republicans.

Bolten was subpoenaed to produce documents.

"There is no case that supports the absolute immunity proposition that you have before the court," Bates told Carl Nichols, the principal deputy associate attorney general. Cases cited by the government "seem to support something less than an absolute immunity," the judge said.

Bush has asserted executive privilege in refusing to allow top aides, including his former political strategist Karl Rove, to testify before Congress about the US attorney dismissals.

The House went to court in March for an order to force Miers and Bolten to appear before the committee after the Justice Department refused to criminally prosecute them for contempt of Congress.

Irvin B. Nathan, the House's general counsel, argued that Miers was required to at least appear before the committee and invoke Bush's executive-privilege claim on a question-by-question basis. That would give the committee - and possibly the courts - the ability to weigh the panel's need for information against Bush's confidentiality claims, he said.

The case may be the biggest test of a presidential assertion of executive privilege since President Nixon refused to turn over tapes of recorded Oval Office conversations to a federal grand jury investigating Watergate.

The Supreme Court in that case recognized a qualified privilege that was overcome by the grand jury's need for information about a criminal investigation that could influence decisions about whether to prosecute government officials for crimes.

"You would transform it, would you not, into an absolute privilege" by top aides to refuse to answer questions from Congress, Bates asked Nichols. Such an assertion would leave Congress and the courts unable to address the merits of the privilege claim, the judge said.

During a three-hour argument, Bates also suggested that he might order more negotiations between Congress and the White House over the production of documents after Nichols conceded the Bush administration was only asserting a "qualified privilege" to turn over documents.

A more detailed description of the types of documents Bush sought to withhold from Congress "would be very helpful to the kind of accommodation process" that would avoid a court fight, the judge said.

In February, the House voted 222-30 to hold Bolten and Miers in criminal contempt of Congress for ignoring subpoenas to cooperate with the Judiciary Committee's investigation of the dismissals.

A month later, the House filed a civil suit to enforce the subpoena after Attorney General Michael B. Mukasey refused to seek criminal prosecutions for the failure of Bolten and Miers to obey the subpoenas.

Noting that any decision is likely to be appealed, Bates said the subpoenas would expire when a new Congress takes office in January, when there would also be a new president.

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