More on Executive Privilege

I have a new story on Huffington Post this morning about the Bush administration’s assertion of executive privilege to prevent Karl Rove and others from testifying about the firing of U.S. attorneys. An excerpt below:

The Justice Department filed papers in court late Monday asking a federal judge to temporarily set aside his own order directing White House officials to testify before Congress about the firings of nine U.S. attorneys.

The filing was in response to a July 31 opinion by U.S. District Court Judge John D. Bates that the Bush administration’s claims of executive privilege in refusing to allow White House officials to testify about the firings was “unprecedented” and “entirely unsupported by existing case law.”

The Bush administration action indicates that despite recent correspondence to Congress suggesting otherwise, it is still strongly resisting subpoenas of White House officials to testify about the politically sensitive issue of the firings of the U.S. attorneys.

In his decision, Bates said he doubted that if the White House or administration appealed his decision, they would have an even remote possibility of prevailing:

“The aspect of this lawsuit that is unprecedented is the notion that [former White House Counsel Harriett] Miers [one of those subpoenaed] is absolutely immune from compelled testimony.”

In the past, the Supreme Court had reserved claims by presidents of absolute immunity only for “very narrow circumstances” such as for issues of national security or foreign affairs, Bates wrote in his opinion. Testimony about the firings of U.S. attorneys was not in that class and therefore there was little likelihood that a higher court would reverse his decision, he noted…

Congress, however, has overwhelmingly voted to compel such testimony.

In February, the House of Representatives voted 223-32 to hold Miers and White House chief of staff Joshua Bolten in contempt of Congress for refusing to testify and provide documents about the U.S. attorneys to the House Judiciary Committee. Both the House and Senate Judiciary Committees have similarly approved contempt citations for former White House chief political aide Karl Rove.

After Judge Bates’ decision, White House counsel Fred Fielding said in a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-VT) that the White House wished to await an appeal of Bates’s decision before even “entertaining any requesting for Mr. Bolten’s compliance with the Senate Judiciary Committee subpoena.”

Such an appeal would mean that the aides would almost certainly not testify before the current Congress and not until a new president is in office next year.

But Fielding seemingly reversed course last week, informing the House Judiciary Committee that the White House now wished to negotiate with Congress about possible testimony…

The request for a stay also comes not long after a report in the Huffington Post that former Bush administration officials in the Justice Department’s Civil Rights Division have refused to voluntarily talk to investigators with the Department’s Inspector General about the politicization of the Civil Rights Division. Because of their refusal to voluntarily talk to investigators, the Department has taken the extraordinary step of subpoenaing senior attorneys from its own rank to testify before a federal grand jury as a means to compel their cooperation.

If Bates’ previous opinion is any guide, it appears unlikely that he would agree to the Justice Department’s requests. In his 93-page opinion, Bates, a conservative jurist appointed by President Bush in 2001, wrote:

“Presidential autonomy, such as it is, cannot mean that the executive’s actions are totally insulated from scrutiny by Congress. That would eviscerate Congress’ historical opinion.”

To read the entire post, click here.


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