The U.S. District Court for the District of Columbia ruled, in stark and certain language, that President Bush's assertion that all of the people in his employ are protected by executive privilege is baseless. The District Court was ruling specifically on the issue of whether or not Bush could invoke executive privilege to prevent his former counsel Harriet Miers and White House chief of staff Joshua Bolten from testifying before Congress. Bush directed Miers and Bolten not to show up to testify at all and sent a letter to Congress in their place, alerting members of the House Judiciary Committee that they would not be answering their summons as required by law.

Judge John D. Bates, himself appointed by George W. Bush, was unequivocal in his rejection of Bush's assertion of executive privilege:

The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context. That simple but critical fact bears repeating: the asserted immunity claim here is entirely unsupported by case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors to not enjoy absolute immunity.

The issue of "executive privilege" is murky and is not to be found in either the Constitution or federal statutes. The privilege has been created by case law, under the assumption that the president may not be able to get sound advice from his advisors if that advice cannot be delivered candidly and without fear of it being rebroadcast to the entire world. Executive privilege was slightly curtailed by the U.S. Supreme Court in United States v. Nixon. In that case, the court ruled that executive privilege is not absolute and specifically cannot be used to shield the executive from criminal investigation.

In its opening pages, Judge Bates' decision re-emphasizes -- in case President Bush forgot -- that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Bush has asserted that he alone should have the ability to decide certain issues of constitutionality, espeically when it comes to the War on Terr'. Judge Bates, however, quotes from the very recent Boumediene v. Bush when he declares that particular branches of the government may not "switch the Constitution on or off at will." Bush needs to be reminded of this fact frequently, despite the fact that the federal courts have rejected every single one of his assertions of absolute power.