By Dave Lindorff

A federal district judge appointed by President George W. Bush to

the bench has done the right thing, ruling definitively this morning

that the President’s claim of absolute immunity for his advisors from

Congressional oversight and subpoena is “entirely unsupported by

existing case law.”

The ruling, by Judge John Bates, is as important as much because of

who issued it as it is for its impact upon Congressional investigations

into presidential wrongdoing.

Certainly the ruling will open the way for Democrats in Congress to

move harder to investigate the abuses of the current administration,

which have been stymied by administration refusal to provide witnesses,

even to come in and plead the Fifth Amendment protection against

self-incrimination.

In the specific case under consideration here, the House Judiciary

Committee had been attempting to force the appearance of Josh Bolton,

the president’s former chief of staff, and Harriet Miers, former White

House legal counsel, to testify about the White House role in the

firing of a number of federal prosecutors around the country who were

reportedly deemed insufficiently political in their unwillingness to

“go after” Democratic elected officials, or to interfere with the

election process.

Bush had asserted that all such aides have blanket immunity from

Congressional inquiry under the concept of “executive privilege.”

But Judge Bates disagreed, saying that the White House had failed

to show a single case in which the courts had held White House aides to

be immune from Congressional subpoenas. In a strongly-worded 93-page

ruling, he not only said that no such blanket immunity existed, and

that aides had to respond to congressional subpoenaes. He also ordered

that the White House must hand over requested documents—something that

the White House for both of the president’s two terms, has been

unwilling to do.

Of course, it is a certainty that the Bush administration will

appeal Judge Bates’ ruling to a higher court, and the process could end

up dragging on beyond the end of Bush’s term of office, which ends on

Jan. 20. But with this ruling, Congress should feel much more confident

about going after those, like Miers, Bolton, Karl Rove (recently cited

for contempt of Congress himself) and others, who refuse orders to

appear and testify. Congress should also be more willing to consider

using its own power of inherent contempt to go after such witnesses by

having their own officers arrest and jail recalcitrants.

The other important thing about Judge Bates’ ruling is that it

suggests, happily, that there are principled Republicans, even among

the slew of so-called conservative “constructionist” judges that Bush

has been larding the federal bench with, from the district level to the

Supreme Court. At least some of these judges, apparently, once

confirmed in their lifetime offices, do take their oaths of office to

uphold the Constitution seriously. Judge Bates (who, though I didn’t

know him personally, attended Wesleyan University in Connecticut at the

same time I did, graduating in 1968) worked as a deputy independent

counsel in the Whitewater Investigation of President Bill Clinton,

which was an obvious political plus in his gaining a federal judgeship

nomination by the Bush White House. In 2006 he was also appointed by

Chief Justice John Roberts to serve on the secret Foreign Intelligence

Surveillance Court that is supposed to oversee domestic spying

activities of the National Security Agency.

I am assuming the best of Judge Bates, i.e. that he ruled based on

his reading of the Constitution and court precedent. But of course it

could also be that this ruling is a sign that Bush judicial appointees

are reading the political handwriting on the wall: that the Bush era of

seeking to aggrandize absolute executive power is coming to an end.

With the president’s public support dwindling to just 21 percent, and

with all signs pointing to a big Democratic win in upcoming

Congressional elections, not to mention a possible Democratic president

in the White House this November, we may start to see at least some

Bush-appointed judges concluding that supinely acceding to the wishes

of the Bush/Cheney White House may not be the wisest career move for

anyone hoping to move up to a higher court.

Whatever the reasons for this important decision, I commend Judge

Bates for upholding the Constitution, and its all-important

establishment of three separate, co-equal branches of government.

Now if only Democrats in Congress would do the same thing.

______________

DAVE LINDORFF is a Philadelphia-based journalist and columnist. His

latest book is "The Case for Impeachment" (St. Martin's Press, 2006 and

now available in paperback edition). His work is available at

www.thiscantbehappening.net