Independent Investigative Journalism Since 1995

donate.jpg (7556 bytes)
Make a secure online contribution
Go to to post comments

Get email updates:

RSS Feed
Add to My Yahoo!
Add to Google

contactContact Us

Order Now


Bush End Game
George W. Bush's presidency since 2007

Bush - Second Term
George W. Bush's presidency from 2005-06

Bush - First Term
George W. Bush's presidency, 2000-04

Who Is Bob Gates?
The secret world of Defense Secretary Gates

2004 Campaign
Bush Bests Kerry

Behind Colin Powell's Legend
Gauging Powell's reputation.

The 2000 Campaign
Recounting the controversial campaign.

Media Crisis
Is the national media a danger to democracy?

The Clinton Scandals
Behind President Clinton's impeachment.

Nazi Echo
Pinochet & Other Characters.

The Dark Side of Rev. Moon
Rev. Sun Myung Moon and American politics.

Contra Crack
Contra drug stories uncovered

Lost History
America's tainted historical record

The October Surprise "X-Files"
The 1980 election scandal exposed.

From free trade to the Kosovo crisis.

Other Investigative Stories



Judge Rebuffs White House Immunity

By Jason Leopold
August 27, 2008

Facing a new reversal in federal court, the Bush administration is finding its options narrowed in its effort to stop congressional testimony from former White House counsel Harriet Miers and chief of staff Joshua Bolten regarding the firing of nine U.S. attorneys in 2006.

The administration had asserted a blanket claim of executive privilege in the face of congressional subpoenas, but U.S. District Judge John Bates rejected that claim as unprecedented and, on Tuesday, denied the Justice Department’s request for a stay pending an appeal.

Under the ruling, Miers and Bolten now must appear before the House Judiciary Committee to testify about the White House role in the firings and produce documents sought by the committee.

While denying the administration’s request for a stay, Judge Bates suggested that the parties might still be able to negotiate a resolution of the battle over the executive privilege claim.

“This decision should not …  foreclose the parties' continuing attempts to reach a negotiated solution,” Bates said. “Both sides indicated that discussions regarding an accommodation have resumed.”

However, it appears those negotiations may have been a White House ruse to further delay the testimony until it could obtain a court stay that would let George W. Bush leave office before the appeal could be completed.

Even Judge Bates suspected that the negotiations were unlikely to resolve the matter.

“Had the litigants indicated that a negotiated solution was foreseeable in the near future, the Court may have stayed its hand in the hope that further intervention in this dispute by the Article III branch [the Judiciary] would not be necessary,” wrote Bates, a Bush appointee.

House Judiciary Committee Chairman John Conyers lauded Bates’s ruling and said he intends to call Miers to testify when Congress returns from its summer break in September.

Bates’s "ruling clearly rejects the White House's efforts to run out the clock on the Committee's investigation of DOJ politicization [during] this Congress,” Conyers said.

The House Judiciary Committee subpoenaed Miers and Bolten last year regarding allegations that the White House had engaged in improper politicization of U.S. Attorneys by firing prosecutors who were not viewed as sufficiently loyal to President Bush.

In asserting executive privilege, Bush claimed Bolten and Miers were immune to congressional subpoenas as were their related documents. The House then voted to hold Bolten and Miers in contempt of Congress.

In the July 31 order rejecting Bush’s executive privilege claim, Bates said the White House’s legal argument of executive privilege was "entirely unsupported by existing case law."

Bates said Miers could invoke executive privilege on a question-by-question basis. But he said Miers must comply with the congressional subpoena to exercise that right.

“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context,” Bates wrote in a 93-page opinion.

"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.”

Documents released by the Justice Department last year show that Miers was briefed about the decision to purge the U.S. Attorneys and was aware that the Department would cook up a cover story to justify the dismissals.

Jason Leopold has launched a new Web site, The Public Record, at

To comment at Consortiumblog, click here. (To make a blog comment about this or other stories, you can use your normal e-mail address and password. Ignore the prompt for a Google account.) To comment to us by e-mail, click here. To donate so we can continue reporting and publishing stories like the one you just read, click here.

homeBack to Home Page is a product of The Consortium for Independent Journalism, Inc., a non-profit organization that relies on donations from its readers to produce these stories and keep alive this Web publication.

To contribute, click here. To contact CIJ, click here.