WASHINGTON – Congress was trying to be diplomatic when it brought an unprecedented lawsuit to settle its subpoena fight against the White House, a lawyer told a federal judge Monday. After all, lawmakers could've just arrested the president's former lawyer for refusing to testify.
The judge's response?
Maybe they should have.
Congress has the authority to hold someone in contempt, U.S. District Judge John Bates said. Did it really need to go to court?
House counsel Irvin Nathan said it did. The Democratic-led House Judiciary Committee is demanding documents and testimony from the president's chief of staff, Josh Bolten, and former counsel, Harriet Miers, about the firing of U.S. attorneys. Congress needs the information to determine whether the Bush administration politicized some of the nation's top federal prosecutor jobs.
"Not only doesn't it have the facts from the White House, it has false and misleading facts from former members of the Department of Justice," Nathan said during the three-hour hearing over whether the court should enforce the committee's subpoenas.
Bates' exchange with Nathan over the politically sensational option of ordering the House sergeant-at-arms to arrest Miers showed just how reluctant the judge was to wade into a dispute between the other two coequal branches.
Congress has never gone to court to demand the testimony of White House aides, and any ruling by Bates — even simply agreeing that he has the authority to issue a ruling — could alter the Capitol's political system of given and take.
At times Bates, who was nominated to the bench by President Bush, seemed persuaded by Nathan's argument that he had the authority to act. Bates also appeared skeptical of the Justice Department's claims that senior presidential advisers are absolutely immune from congressional subpoenas.
The judge spent much of the time, however, talking about whether he should issue a ruling at all.
"Both sides have the same argument," Bates said. "Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance."
Nathan urged the judge to force Miers to appear on Capitol Hill where, if she wanted to refuse to testify, she could. He also asked that the White House be forced to turn over a document-by-document summary of what it was withholding and why.
Justice Department attorney Carl Nichols argued that would tip the scales toward Congress in any future disputes with the president.
"There really is a floodgate problem," he said. "Once you create hard-and-fast rules, it does change how the parties behave going forward."
Bates suggested that the two sides might still settle the dispute before he rules, avoiding a final court showdown altogether.
That hinted at one option the judge has that could pre-empt his own ruling: He could order both sides to negotiate further and, if nothing came of it, Bates could just put the case on a shelf until the end of the year. When the new Congress begins its term in 2009, the subpoenas essentially vanish and the case would be moot.