The White House's Immune Deficiency

By Dan Froomkin
Special to washingtonpost.com
Thursday, July 31, 2008

A federal judge today flatly rejected one of the White House's most audacious legal claims: that presidential advisers have absolute immunity from congressional oversight.

The House Judiciary Committee had asked the U.S. District Court to enforce its contempt of Congress ruling against Harriet E. Miers, the former White House counsel, and Joshua C. Bolten, the White House chief of staff, over their refusal to cooperate with an investigation into the politicization of the Justice Department, including the mass firings of U.S. attorneys in 2006.

In his opinion this morning, Judge John D. Bates noted that "[t]he heart of the controversy is whether senior presidential aides are absolutely immune from compelled congressional process" -- which was the White House's contention.

Bates called that assertion unprecedented and unsupported: "The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President's personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive's current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law."

But that doesn't mean that Congress now will get all the White House testimony and documents it wants. The White House is sure to appeal the ruling and try to run out the clock. Furthermore, Bates left open the possibility that the aides could assert claims of executive privilege "in response to specific questions as appropriate."

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