Court hears arguments in executive privilege case involving Bolten, Miers

Congressional Democrats could have had White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers arrested by the House sergeant at arms instead of filing suit to enforce subpoenas against them, the House general counsel argued Monday.

District Judge John Bates heard nearly three hours of oral arguments Monday in a lawsuit over the limits of executive privilege. The House Judiciary Committee filed suit in the U.S. District Court for the District of Columbia to enforce subpoenas for testimony and documents from Bolten and Miers.

Democrats in Congress subpoenaed Bolten and Miers as part of their investigation into the firing of nine U.S. attorneys in 2006. They wanted to know what role, if any, the White House played in the prosecutors’ terminations and whether they were politically motivated. But President Bush asserted an absolute privilege over his top aides’ sworn testimony.

The case is unprecedented, so any action by the judge — even deciding that he has the authority to weigh and issue a ruling — will affect future negotiations and investigations between the two branches of government.

Bates asked penetrating questions of both sides, and at times joked with and chided the two attorneys.

“You are the ones who brought this to me through your inability to solve your problems,” he said.
House counsel Irvin Nathan said Democrats were forced to file suit because the White House was stonewalling and obfuscating.

“Not only doesn’t [the Judiciary Committee] have the facts from the White House, it has false and misleading facts from members of the Department of Justice,” Nathan said during hearing. “That’s why the assertion of immunity is absolutely outrageous.”

Carl Nichols, the principal deputy associate attorney general, countered that Democrats in Congress failed to negotiate in a reasonable way.

“There was no give and take,” he said.

He also argued that Congress could have decided to withhold Justice Department appropriations or refused to pass judicial nominations.

“They could have said, ‘We’re not going to exercise these powers,’ ” he asserted.

In some instances, Bates, a Bush appointee, seemed to favor Nathan’s arguments that he had the authority to wade into the groundbreaking constitutional matter, but was well-aware of the high stakes involved.

“Whether I rule for the executive branch or I rule for the legislative branch, I’m going to disrupt the balance,” Bates said he was hearing from both sides of the bench.

He also asked several pointed questions about why Nichols thought the president should have absolute immunity instead of immunity only in limited cases.

Nichols responded that he believed that presidential advisers deserve absolute immunity because they serve as his “alter ego” and shouldn’t be distracted by time-consuming requests for congressional testimony.

“We’re not seeking carte blanche immunity for all White House officials,” Nichols said.

Nathan scoffed at that argument as it applies to Miers, a former aide, who now practices law in Texas.

“That has no bearing on a former White House counsel,” he said.

Nichols also complained that Democrats’ request for a “privilege log,” a document-by-document summary of documents being withheld and the reasons why, is overly burdensome.

Nathan said the judge should force Miers to show up on Capitol Hill for questions, and then she could assert her Fifth Amendment privilege and refuse to testify.

Nichols countered that any court ruling in favor of the Democratic arguments would set a precedent and give Congress the motivation to hold more and more White House officials in contempt.

“There really is a floodgate problem,” he said. “Once you create hard-and-fast rules, it does change how the parties behave going forward.”

Timing could be the most important factor on whether the judge decides to weigh in. When Congress recesses at the end of the year and a new president takes office, Bates said, the case could be politically moot.

Nathan assured the judge that Democrats intend to keep pursuing the case even with a new resident in the Oval Office next year.