By Dave Lindorff
A federal district judge appointed by President George W. Bush to
the bench has done the right thing, ruling definitively this morning
that the President’s claim of absolute immunity for his advisors from
Congressional oversight and subpoena is “entirely unsupported by
existing case law.”
The ruling, by Judge John Bates, is as important as much because of
who issued it as it is for its impact upon Congressional investigations
into presidential wrongdoing.
Certainly the ruling will open the way for Democrats in Congress to
move harder to investigate the abuses of the current administration,
which have been stymied by administration refusal to provide witnesses,
even to come in and plead the Fifth Amendment protection against
self-incrimination.
In the specific case under consideration here, the House Judiciary
Committee had been attempting to force the appearance of Josh Bolton,
the president’s former chief of staff, and Harriet Miers, former White
House legal counsel, to testify about the White House role in the
firing of a number of federal prosecutors around the country who were
reportedly deemed insufficiently political in their unwillingness to
“go after” Democratic elected officials, or to interfere with the
election process.
Bush had asserted that all such aides have blanket immunity from
Congressional inquiry under the concept of “executive privilege.”
But Judge Bates disagreed, saying that the White House had failed
to show a single case in which the courts had held White House aides to
be immune from Congressional subpoenas. In a strongly-worded 93-page
ruling, he not only said that no such blanket immunity existed, and
that aides had to respond to congressional subpoenaes. He also ordered
that the White House must hand over requested documents—something that
the White House for both of the president’s two terms, has been
unwilling to do.
Of course, it is a certainty that the Bush administration will
appeal Judge Bates’ ruling to a higher court, and the process could end
up dragging on beyond the end of Bush’s term of office, which ends on
Jan. 20. But with this ruling, Congress should feel much more confident
about going after those, like Miers, Bolton, Karl Rove (recently cited
for contempt of Congress himself) and others, who refuse orders to
appear and testify. Congress should also be more willing to consider
using its own power of inherent contempt to go after such witnesses by
having their own officers arrest and jail recalcitrants.
The other important thing about Judge Bates’ ruling is that it
suggests, happily, that there are principled Republicans, even among
the slew of so-called conservative “constructionist” judges that Bush
has been larding the federal bench with, from the district level to the
Supreme Court. At least some of these judges, apparently, once
confirmed in their lifetime offices, do take their oaths of office to
uphold the Constitution seriously. Judge Bates (who, though I didn’t
know him personally, attended Wesleyan University in Connecticut at the
same time I did, graduating in 1968) worked as a deputy independent
counsel in the Whitewater Investigation of President Bill Clinton,
which was an obvious political plus in his gaining a federal judgeship
nomination by the Bush White House. In 2006 he was also appointed by
Chief Justice John Roberts to serve on the secret Foreign Intelligence
Surveillance Court that is supposed to oversee domestic spying
activities of the National Security Agency.
I am assuming the best of Judge Bates, i.e. that he ruled based on
his reading of the Constitution and court precedent. But of course it
could also be that this ruling is a sign that Bush judicial appointees
are reading the political handwriting on the wall: that the Bush era of
seeking to aggrandize absolute executive power is coming to an end.
With the president’s public support dwindling to just 21 percent, and
with all signs pointing to a big Democratic win in upcoming
Congressional elections, not to mention a possible Democratic president
in the White House this November, we may start to see at least some
Bush-appointed judges concluding that supinely acceding to the wishes
of the Bush/Cheney White House may not be the wisest career move for
anyone hoping to move up to a higher court.
Whatever the reasons for this important decision, I commend Judge
Bates for upholding the Constitution, and its all-important
establishment of three separate, co-equal branches of government.
Now if only Democrats in Congress would do the same thing.
______________
DAVE LINDORFF is a Philadelphia-based journalist and columnist. His
latest book is "The Case for Impeachment" (St. Martin's Press, 2006 and
now available in paperback edition). His work is available at
www.thiscantbehappening.net
