UPDATE: Here come the responses. Click here for a statement by John Conyers Jr. (D-Mich.), chairman of the House Judiciary Committee, and click here for a statement by Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee. Both committees are investigating the U.S. attorney firings.
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U.S. District Judge John Bates has released his decision in Committee on the Judiciary of the United States House of Representatives v. Miers, et al. White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers do not enjoy absolute immunity from congressional subpoenas, Bates ruled.
The White House tried to shield Miers and Bolten from the House Judiciary Committee's demands for documents and testimony about the U.S. attorney firings, but Bates rejected the argument that the President could confer absolute immunity to his aides. (Click here for some background on the lawsuit. And click here for a recap of oral arguments in June.)
“The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law,” Bates wrote in the 93-page opinion.
Bates noted that the decision was “very limited.” While it kills the absolute immunity claim, the decision is silent on the specific claims of executive privilege that Miers and Bolten may assert. That could come later, now that Bates has cleared the way for the lawsuit to go forward, but he nudged the parties toward a political fix.
“Although standing ready to fulfill the essential judicial role to ‘say what the law is’ on specific assertions of executive privilege that may be presented, the Court strongly encourages the political branches to resume their discourse and negotiations in an effort to resolve their differences constructively, while recognizing each branch’s essential role,” Bates said.
The judge ended his introduction with an observation from Justice Robert Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer:
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.
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