No Executive Privilege for Presidential Advisers Means More Accountability

No executive privilege for presidential advisers means more accountability
StarTelegram.com Editorial

Here goes an activist judge again, encroaching on President Bush’s ability to do his job.

Oh, wait. U.S. District Judge John Bates, who on Thursday rightly slapped down yet another administration attempt to stretch presidential prerogative beyond the law, is a Bush appointee.

Bates said that former White House counsel Harriet Miers could not claim executive privilege to avoid a congressional subpoena.

Bates also ruled that current Chief of Staff Joshua Bolten should provide a more detailed description of documents he’s withholding as privileged, though the judge didn’t order the material turned over.

In a 93-page ruling, Bates dismissed virtually every argument administration lawyers made in trying to expand the concept of executive privilege to cover not just the president but his advisers.

"The executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context," Bates wrote. "That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity."

The House voted 223-32 in February to hold Miers and Bolten in contempt when they refused to comply with House Judiciary Committee subpoenas seeking more information about the suspect firings of nine U.S. attorneys.

The committee sued after the Justice Department declined to take the case to a grand jury.

In rejecting the administration’s claim that the House had no standing to sue, Bates cited legal opinions by Republican stalwarts Theodore Olson and Charles Cooper when they were officials in the Reagan Justice Department. He also emphasized the constitutional roles of Congress and the courts as co-equal branches — not just subordinates or spectators — with the executive.

Bates said that sensitive topics such as national security might justify immunity from testifying, but that isn’t an issue in this case. And, once before Congress, Miers might be able to decline to answer some questions based on executive privilege.

But he also encouraged the president and Congress to resolve the stand-off — which they should.

Earlier in the investigation, the White House proposed letting the aides talk privately with members of Congress, without a transcript and not under oath. The committee refused those conditions, and properly so.

Evidence is continuing to show that the U.S. attorney firings were just part of a pattern of perverting the Justice Department’s reputation for fairness, and the public needs to know the extent to which White House aides were involved.

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Read Bates’ ruling at http://tinyurl.com/6nyhte