President Bush’s top advisers must honor subpoenas issued by Congress, a federal judge ruled on Thursday in a case that involves the firings of several United States attorneys but has much wider constitutional implications for all three branches of government.The report notes the White House is "almost certain to appeal the ruling." They are now, however, presumptively in the hole. Legally and politically. The optics of fighting a judge's ruling on White House aides having to testify, not that they care so much about them, are very poor. It will be one more instance of the Bush White House putting itself above concern for the rule of law and, in this electoral season, above the Republican party brand.
“The executive’s current claim of absolute immunity from compelled Congressional process for senior presidential aides is without any support in the case law,” Judge John D. Bates ruled in United States District Court here.
Unless overturned on appeal, a former White House counsel, Harriet E. Miers, and the current White House chief of staff, Joshua B. Bolten, would be required to cooperate with the House Judiciary Committee, which has been investigating the controversial dismissal of the federal prosecutors in 2006.
Note that not all Republicans are supportive of the White House position. Watch the following remarkable video of Republican Congressman Walter Jones speaking out yesterday against Rove's contemptuous flouting of his congressional subpoena. It's unbelievable that when a Republican supports the obvious imperative of a White House aide obeying a congressional subpoena it is a revolutionary thing.
The wheels of justice may be turning slowly, but at least they're moving in the right direction in the U.S. capital as of today.
Update (6:30 p.m.): Further thought here...this represented impeccable timing on this judge's part with his ruling in the Miers executive privilege case, coming on the heels of yesterday's House Judiciary Committee vote to hold Rove in contempt.
More from the AP this afternoon:
"Harriet Miers is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena," Bates wrote. He said that both Bolten and Miers must give Congress all nonprivileged documents related to the firings.Good luck on appeal, Bushies.
Bates, who was appointed to the bench by Bush, issued a 93-page opinion that strongly rejected the administration's legal arguments. He noted that the executive branch could not point to a single case in which courts held that White House aides were immune from congressional subpoenas.
"That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law," Bates wrote. (emphasis added)
Update II (6:51 p.m.): Read Marty Lederman's legal analysis.