Judge Rejects Absolute Immunity Claim by Bush Aides in Prosecutor Firing Probe

Separation of Powers

Judge Rejects Absolute Immunity Claim by Bush Aides in Prosecutor Firing Probe

Posted Jul 31, 2008, 10:51 am CDT
By Debra Cassens Weiss

Updated: A federal judge has rejected claims of absolute immunity asserted on behalf of former White House counsel Harriet Miers and former chief of staff Josh Bolten in an investigation into the firings of nine U.S. attorneys.

U.S. District Judge John Bates “strongly rejected the administration's legal arguments,” the Associated Press reports.

The Washington, D.C., judge wrote that the "simple yet critical fact bears repeating: The asserted absolute immunity claim here is entirely unsupported by existing case law."

Bates ruled in a suit filed by the U.S. House of Representatives after Attorney General Michael Mukasey declined to refer the House’s contempt charges against the pair to a grand jury.

Bates emphasized that he was not ruling on specific claims of executive privilege and was only addressing the absolute immunity claim. "Hence, this court’s intervention is strikingly minimal, and it is the court’s sincere desire that it stays that way," he wrote.

The judge said he "strongly encourages" the parties to work out their differences through negotiations and asserted that his opinion may provide the impetus.

"Rather than running roughshod over separation of powers principles, the court believes that entertaining this case will reinforce them," Bates wrote. "Two parties cannot negotiate in good faith when one side asserts legal privileges but insists that they cannot be tested in court in the traditional manner. That is true whether the negotiating partners are private firms or the political branches of the federal government. Accordingly, the court will deny the executive’s motion to dismiss."

The House Judiciary Committee is seeking testimony and information from Miers and Bolten in its probe into political influence in Justice Department prosecutions and the U.S. attorney dismissals.

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