A setback for the Bush administration came from a Bush appointee and former Kenneth Starr associate today.
Federal Judge John D. Bates ruled that two Bush staffers, one no longer at the White House, do not have absolute immunity from testifying before the House Judiciary Committee.
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“The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law,” Bates wrote in his 92-page decision.
Bates stresses that his decision is “very limited.” Nonetheless, it contrasts with two earlier decisions, both controversial, in which he sided with the White House.
In 2002, Bates dismissed the General Accounting Office’s attempt to have Vice President Dick Cheney reveal the names of the members of his energy task force. Bates ruled that the GAO did not have standing to sue.
In 2007, Bates threw out a lawsuit filed by Valerie Plame and her husband, Joseph Wilson, against Cheney and I. Lewis “Scooter” Libby, Cheney’s aide.
Plame had sued on the grounds that Cheney and Libby helped reveal to the press that she was a CIA operative.
Bates dismissed that lawsuit for jurisdictional reasons, as well.
If it stands, today’s decision means that Harriet Miers, the former Bush White House counsel, and Joshua Bolton, the current White House chief of staff, have to appear before the judiciary committee.
They could at that time choose not to respond, Bates wrote.
The committee subpoenaed Miers and Bolton to testify in the matter of the forced resignation of nine U.S. attorneys in 2006. Democrats have argued that the attorneys were asked to leave for political reasons.
The White House insisted that Miers and Bolton had immunity because of their positions in the executive branch.
The judiciary committee then sued.
Bates, 61, was named to the district court in 2001 by Bush.
A graduate of Wesleyan University and University of Maryland’s School of Law, he was in the U.S. Army for three years, serving a tour in Vietnam.
Later, he clerked for a federal judge and was an assistant U.S. attorney for the District of Columbia.
From 1995 to mid-1997, Bates was deputy independent counsel for the Whitewater investigation headed by Kenneth Starr.
In 2005, Chief Justice William Rehnquist of the U.S. Supreme Court appointed Bates to serve on the U.S. Judicial Conference Committee on Court Administration and Case Management.
In 2006, Chief Justice John Roberts, Rehnquist’s successor, appointed Bates to the U.S. Intelligence Foreign Surveillance Court.
The court decides on requests for surveillance warrants against foreign intelligence agents.
The White House did not indicate today whether it would appeal Bates’ decision. Earlier news reports speculated that the case would be appealed, regardless of outcome.
In his ruling, Bates encourages both the White House and the judiciary committee to “resume their discourse and negotiations in an effort to resolve their differences constructively, while recognizing each branch’s essential role.”
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