Absolute Immunity? Absolutely Not Says Court.

MayorBob.

Posted to Legal on Mon Aug 04, 2008 at 02:17:04 PM EST (promoted by port1080). RSS.

Back when the House and Senate Judiciary Committees sought to have a little dialogue with members of the White House staff over the case of some dismissed US attorneys, the word sent back to Capital Hill was a very firm "no." No, they would not be testifying before Congress because they had "absolute immunity" from congressional subpoenas. Because Congress really, really did want to talk to these people, the House Judiciary Committee went to court to force the issue. Now, almost a year after former Attorney General Alberto Gonzales resigned, partially over the cloud the matter of the fired US attorneys had caused, Congress got its answer from a federal judge. In a strongly worded 93 page decision (pdf doc), US District Judge John D. Bates ruled there was absolutely no such doctrine as "absolute immunity."

The initial impact of the Bates decision was to order former White House Counsel Harriet Miers and current White House chief of staff Joshua Bolten to appear before the committees. It also appears likely that, if the decision stands on appeal, that former White House political advisor Karl Rove could be spending a little quality time testifying. But, before Senate Judiciary chairman, US Senator Patrick Leahy (D - VT) and his House counterpart Rep. John Conyers (D - MI) begin rescheduling hearings, they'll have to wait and see if the decision does get appealed. Leahy lauded the decision saying "I have long pointed out that this administration's claims of executive privilege and immunity, which White House officials have used to justify refusing to even show up when served with Congressional subpoenas, are wrong."

It's that extension of the doctrine of executive privilege which was what Bate's decision turned on. Bolten, Miers and Rove had refused to appear before Congress because of their belief (a belief widely held in the Bush White House) that executive privilege insulated anyone working for President Bush from having to answer congressional subpoenas. Not so, according to Bates, who allowed that there were some matters of national security where executive privilege could be asserted by the executive branch. But, having asserted as such, if the matter is contested the determination of whether executive privilege should apply is up to a court to decide. In any case, the subpoenaed executive branch officials should have shown up in person to refuse to testify.

As Judge Bates was one of George Bush's early appointments to the bench, it would seem to remove the possibility of claims of political posturing by liberal, activist judges. Even with the decision going against the White House, it's doubtful that hearings will resume anytime soon. After all, there's political conventions and elections to conduct between now and November. And, unless George Bush is named on a bill of impeachment between now and January 20th of next year, those interested Congresspersons and Senators might end up getting a taste of one executive branch power which is fairly unlimited - a presidential pardon.