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Fired U.S. attorneys case hits judicial roadblock

A cautious judge may be good news for Bush officials in ongoing subpoena struggle.

By / June 25, 2008

Contempt of congress? House Speaker Nancy Pelosi (D) of Calif., has asked whether White House Chief of Staff Joshua Bolton and former White House counsel Harriet Miers (not shown) should be prosecuted.

J. Scott Applewhite/AP/File


Washington - For months, the Democratic-controlled Congress and the Bush administration have been locked in a potentially historic battle over whether top White House aides will ever testify about the controversial firings of federal prosecutors in late 2006.

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But now these two branches of government may have hit a roadblock on their way to a constitutional confrontation.

A federal judge on June 23 appeared very reluctant to rule on the administration's broad claim of executive privilege in the case. Historically, the judiciary has been hesitant to meddle in this area unless the stakes are clear and high.

"Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance [of powers], said US District Judge John Bates.

For Bush officials this attitude may be a bit of good news. It means a new president will likely be in office before the dispute is resolved – and the next administration, or the next Congress, may decide to just drop the whole thing.

Judge Bates "might just let the clock run out on this," says Carl Tobias, a law professor at the University of Richmond in Virginia.

At issue in a three-hour hearing in a federal courtroom on June 23 was a demand from the House Judiciary Committee for documents and testimony from the president's chief of staff, Joshua Bolten, and former counsel, Harriet Miers, about the US attorney dismissals.

Panel members say they need that information to help determine whether the Bush White House improperly politicized some of the nation's top federal prosecutor jobs.

The Bush administration argues that Mr. Bolten and Ms. Miers are immune from such requests due to executive privilege – the legal doctrine stating that discussions between a president and his advisers can be kept secret.

Congessional-White House disputes over executive privilege are fairly common, but most are settled short of a lawsuit, say analysts. Courts don't like to handle them, and for the disputants they take too much time, money, and attention away from other business.

They are generally settled in the political arena, with either Congress or the White House backing down. Or Congress can use other methods of trying to enforce compliance, including employing its power of the purse to withhold funds requested by the administration.

Judge leery of White House claims