DOJ to Court: Toss Contempt Case

Echoes Claims on Executive Privilege

Posted May 12, 2008 at 6:22pm

The Justice Department late last week asked a federal court to throw out a civil lawsuit brought by the House Judiciary Committee against senior Bush administration aides who refused to testify before the panel.

The Justice Department asserts in documents filed late Friday that the House lacks the necessary legal standing to pursue the matter, then goes further to contend that court intervention could upset the balance of power between the branches.

The House Judiciary Committee filed the unprecedented civil lawsuit in March in the U.S. District Court for the District of Columbia.

“For over two hundred years, when disputes have arisen between the political branches concerning the testimony of Executive Branch witnesses before Congress, or the production of Executive Branch documents to Congress, the branches have engaged in negotiation and compromise and, when necessary, have exercised the panoply of political tools at their disposal to resolve their differences through mutual accommodations,” the motion states.

“Despite that history, Plaintiff Committee on the Judiciary of the U.S. House of Representatives … asks this Court to place itself in the middle of such an inter-branch dispute,” the motion continues. “If permitted to continue, this suit would fundamentally upset the separation of powers by fixing judicially enforceable rules for a process governed by political accommodations for over two centuries.”

The lawsuit seeks to enforce subpoenas issued by House Democrats in their struggle with the Bush administration over testimony and documents related to the allegedly political firings of nine U.S. attorneys in 2006. Democrats suspect that the firings originated in the White House, but Republicans argue that dismissal is part of the president’s prerogative.

The Justice Department is representing former White House counsel Harriet Miers and White House Chief of Staff Josh Bolten.

If successful, the House would compel the aides to testify before the Judiciary panel, as well as force the White House to turn over documents sought by the committee.

In its motion to dismiss, the Justice Department echoed its claims of executive privilege, which it has previously cited in refusing to allow Miers or other White House aides testify under oath before House lawmakers.

“For fundamental separation-of-powers reasons, including the President’s independence and autonomy from Congress, the President is absolutely immune from testimonial compulsion by Congress or any of its committees,” the motion states. “These same principles require that senior presidential advisers like the Counsel to the President also have absolute immunity from such testimony.”

The attorneys assert that compelling top aides to testify would diminish the “autonomy and confidentiality” of the presidency.

White House counsel Fred Fielding has previously offered to grant House lawmakers access to officials, including Miers and former aide Karl Rove — who has been subpoenaed by the Senate in the same matter — but the aides would not be under oath and no transcripts would be allowed. Lawmakers have declined those offers.

The House general counsel is scheduled to issue its response by May 29. A hearing on all motions filed in the case is set for June 23 before Judge John Bates.

Bates was appointed to the federal bench by President Bush in 2002 and also serves on the Foreign Intelligence Surveillance Court.