The House Judiciary Committee has been trying to get to the bottom of whether the White House improperly influenced the firing of six US Attorneys during the Bush Administration. When former White House Counsel Harriet Miers and then-chief of staff Josh Bolten were subpoenaed by the Committee, they and the White House claimed that close White House advisers were absolutely immune from having to testify. In a well-reasoned opinion, Judge John Bates rejected the claim of absolute immunity. Bates had it right: whatever the justification for an assertion of absolute immunity for the President himself, the claim for his key aides is quite thin — and, something he did not stress in his opinion, it gets thinner once they become former aides or aides of a former president, as Miers was at the time of the decision and as Bolten has since become. At the time of the original decision, Marty Lederman blogged on the topic, and I will not repeat his judicious remarks here.
Now, the case is in the news again, because the Court of Appeals for the District of Columbia, which is hearing the appeal, has declined an administration request for a two week delay in the government filing its brief. That brief is now due February 25.
The Obama administration would be wise to leave the battlefield on this one. Bates’ opinion only says that when subpoenaed Miers and Bolten must show up at the Committee hearing. At that time, they will still be able to assert executive privilege over answers to specific questions that are appropriately covered by that privilege. That is quite enough protection to advance any President’s interests in ensuring confidential discussions. That is going to take some nimble negotiations with the attorneys for Miers and Bolten as well as with the House of Representatives, all of whom will have to be on board. But stonewalling the entire hearing through the use of an absolute immunity claim that was rejected in the court below is hardly striking a blow for greater transparency. If the immunity claim had strong support in precedent, that would be one thing, but the claim with respect to former aides is quite weak.