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Bush Judge Does the Right Thing on Executive Immunity


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). Because of a clerical error and his own inattention to bureaucratic detail, he graduated from Wesleyan University in 1972. His work is available at



Dave Lindorff is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

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