At issue is whether the administration can prevent White House Chief of Staff Joshua Bolton and former White House Council Harriet Miers from testifying before the committee about the U.S. Attorney purge scandal. The White House claims that executive privilege extends to the underlings of the executive.
John Bates, the U.S. District Judge was hesitant to grant the White House a right to defy Congressional subpoenas, but he also questioned the legal team representing the House as to whether the courts had the authority to intervene in the matter. "Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance," Bates said.
The committee's lawsuit is the first time in U.S. history that either chamber of Congress has sued the president to force compliance with a subpoena.Lawyers for the current occupant argue that if the White House is forced to comply with the law it will "fundamentally alter the separation of powers." The House found Miers and Bolten in contempt of Congress in February by a vote of 232 to 32 after they refused to turn over documents or testify about the firing of nine U.S. attorneys in December 2006. The House judiciary committee has been investigating the controversial firings for a year and a half, and the controversy eventually brought down Attorney General Alberto Gonzales, who was eventually forced to resign in disgrace.
House counsel Irv B. Nathan argued that Bates should order Miers to testify and allow her to invoke executive privilege only on a question-by-question basis. He also urged the judge to force Bolten to provide a log of White House documents and to explain why each was being withheld.
"Congress needs the facts," Nathan argued, adding that the White House was "holding hostage the information" lawmakers require to fairly consider legislation and other measures in the wake of the U.S. attorney scandal.