As noted by the AP, and more importantly, by diarist hcc in VA, the court hearing the case filed by the House Judiciary Committee seeking enforcement of its subpoenas against Harriet Miers and Josh Bolten has ruled in favor of the committee. Miers and Bolten must appear, and must produce the documents sought and/or privilege logs describing the documents and any claims of privilege for them if they continue to withhold them.
Coming from a very conservative judge who has amassed a rather remarkable track record of deciding in favor of executive power and government secrecy, this is something of a pleasant surprise, although this is certainly the way we ought to have expected the law to be interpreted in less contentious times.
Well, the option to appeal is still open. And that would certainly help run out the clock, which might be what the "administration" is after. And of course, their prior actions have given us cause to ask very basic questions about the enforcement of judicial decisions that used to be taken for granted. That is, although Judge Bates agrees that Miers and Bolten have no valid claims of privilege that would make them immune from subpoena, there's still the question of how to physically force them to appear if they simply continue to insist that they will not. Under ordinary circumstances (and this ruling, should it hold up, certainly gives us reason to believe we're moving closer to our old understanding of what ordinary circumstances are), enforcement could be had through a court order enforcing its decision, meaning that federal officers could compel appearance in compliance with the subpoenas. Those federal officers, of course, are actually part of the "unitary executive," and depending on just how crazy the upper echelons of this "administration" are, you could possibly see some... let's say... difference of opinion... about whose instructions ought to be followed in any enforcement action -- the court's, or the boss's.
Back here on Earth, though, the ruling(which I haven't had the chance to read through yet) will surely put the House, the Judiciary Committee and all other committees with pending subpoenas (or subpoenas awaiting action) on firmer ground if they encounter continued resistance. With Article III now on record as agreeing with Article I that Article II is in the wrong here, public opinion about more aggressive enforcement of Congressional subpoenas might take on a very different color. If a federal judge orders White House compliance and the "administration" continues to resist, the threat of inherent contempt might possibly seem a little less out of left field, and begin to look a little more like the Congress putting its foot down at long last to stop a White House that's running wild.
One final note from page one of the opinion:
The heart of the controversy is whether senior presidential aides are absolutely immune from compelled congressional process.
I note simply (again, before reading the opinion) that it has been Karl Rove's contention in connection with the subpoenas he's defied that he has "absolute immunity" from Congressional process. While Miers and Bolten have mostly framed their defiance in terms of "executive privilege" of varying stripes, Rove has made his case (such as it is) on the basis of some new invention he styles "absolute immunity." I'm hopeful that this decision will short-circuit his claims as thorough as it appears to have short-circuited those of Miers and Bolten.
Oh, and one more thing: Congress goes into recess at the end of this week, not to return until September, and after which the House aims to adjourn their session on September 26th. That effectively leaves three weeks of active session to actually do something with this ruling.