Separation of Powers

Judge a Reluctant Ref in Landmark Battle Over White House Subpoenas

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Asked by Congressional lawyers yesterday to require the White House to comply with House Judiciary Committee subpoenas of two high-level aides, Federal District Court Judge John Bates was a reluctant referee in the landmark court battle.

“Whether I rule for the executive branch or I rule for the legislative branch, I’m going to disrupt the balance,” the judge told counsel for both sides yesterday, in a hearing about contempt proceedings concerning Harriet Miers and Joshua Bolten, reports the New York Times.

Miers, the former White House counsel and Bolten, the current chief of staff, are at the center of a battle over whether the Congressional committee has the power to subpoena presidential aides to testify.

It is seeking to do so in an attempt to learn what role Miers, Bolten and the Bush administration may have played in the alleged firings, for political reasons, of nine U.S. attorneys.

“If Judge Bates sides with the House, it would be the first time a court has agreed to enforce a Congressional subpoena against the White House,” the Times recounts. “Whatever the ruling, many lawyers presume the issue has such significance that it will ultimately be decided by a higher court.”

As Bates told Bush counsel, there is no case law supporting the absolute immunity position that the White House has taken concerning testimony by the two aides. But the judge is justifiably reluctant to act when Congress has turned to the court before exercising all of its own enforcement powers, writes Dan Froomkin in a Washington Post column today.

Among these so-far unexercised enforcement options: arresting Miers and holding her in a cell in the Capitol until she testifies. “Such actions were fairly common in the 19th century,” Froomkin writes, quoting from another Washington Post article.

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