Month: December 2019

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Who Decides When the Chief Justice Presides?

A few days ago I tweeted the following in regard to the debate over whether President Trump has actually been impeached:

There is a simple way to resolve this. @senatemajldr should send a note to the Chief Justice, notifying him of the House vote. If the CJ shows up at the Senate the next day, Trump is impeached. If not, six more weeks of winter.

This was intended to be a joke. (In case you were wondering whether I know the difference between the chief justice and a groundhog). On second thought, though, it raises a couple of interesting points. (Well, I think they’re interesting. You can decide for yourself.).

First, while the debate over whether Trump has been impeached is largely rhetorical, there is a substantive constitutional question underlying it. Has the House completed the actions required to allow the Senate to commence an impeachment trial? Or is it necessary for the House to take additional steps (such as providing formal notice, appointing managers, or exhibiting the articles of impeachment) before the Senate may constitutionally exercise the power to try impeachments?

I emphasize the question of constitutional power, as distinct from the operation of the Senate’s impeachment rules, which themselves may require the House to provide formal notice before a trial may begin. These rules are subject to amendment or reinterpretation by the Senate, but there is also a constitutional limitation on the Senate’s authority which is beyond the power of that body to change. The Constitution implicitly forbids the Senate from trying an impeachment until its jurisdiction has been invoked by action of the House. Cf. Jefferson’s Manual Sec. LIII (“The Lords can not impeach any to themselves, nor join in the accusation, because they are the judges.). The question is whether the House’s impeachment vote is sufficient as a constitutional matter to trigger the Senate’s jurisdiction.

This question is not answered by the fact that the Constitution gives the House the sole power of impeachment and the Senate the sole power to try impeachments. Each house has exclusive authority to determine how to exercise its own power, but this does not mean it has the exclusive authority to determine when the power exists in the first place (or what the courts would call “jurisdiction to determine jurisdiction”). Such an issue would arise if the House attempted to impeach or the Senate attempted to try a person who claimed not to be subject to the impeachment power at all (e.g., a private citizen). It similarly arises if there is a dispute whether an individual has been impeached such that the Senate’s power to try the impeachment is invoked.

Let’s imagine then in the current situation that the Senate attempts to act upon the House’s impeachment of President Trump. The House could take the position that the Senate has not yet acquired jurisdiction and lacks the power to act. For the reasons noted above, this dispute would be distinguishable from  questions relating to the Senate’s authority to determine how to “try” an impeachment, which were found to be nonjusticiable by the Supreme Court. See Nixon v. United States, 506 U.S. 224 (1993). Nonetheless, it is unlikely that a court could or would arbitrate such a dispute between the houses.

This, however, is where the second interesting point arises. The Senate cannot exercise its power to try this impeachment without summoning the chief justice to preside. See Nixon, 506 U.S. at 230 (noting there are “three very specific requirements that the Constitution does impose on the Senate when trying impeachments: The Members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried.”). If the Senate’s jurisdiction is in controversy, the House could ask the chief justice not to appear. Arguably, the chief justice would have to resolve the jurisdictional question before appearing in the Senate.

It is perhaps more likely that the chief justice would conclude that this motion should be presented to him in his capacity as presiding officer (e.g., after he has appeared and taken the oath). Suppose then that the chief justice, as presiding officer, decides that the Senate lacks jurisdiction. Should this ruling be appealable to the Senate? If the Senate overrules the chief justice, is he obligated to preside over a trial he believes to be constitutionally invalid? These questions have no clear answer and, as far as I know, there is no precedent to provide guidance.

These questions illustrate the difficulty the Senate would face if it attempted to unilaterally dismiss the impeachment (for want of prosecution or for any other reason) without the chief justice’s acquiescence. Notwithstanding the Justice Department’s suggestion to the contrary, the chief justice’s role in an impeachment trial is far more than merely administrative.

One might say that confusing the chief justice with a parliamentarian is almost as bad as confusing him with a groundhog. (Ok, that would be an odd thing to say, but you get the point.).

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The Justice Department’s “Interesting” Comments on the Chief Justice’s Role in an Impeachment Trial

The Constitution mentions the chief justice for one purpose only, and apparently it is so he can serve as Charlie McCarthy to Liz McDonough’s Edgar Bergen. Or so one would understand from the Department of Justice’s brief in In re Application of the Committee on the Judiciary, United States House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, currently pending before the D.C. Circuit.

Continue reading “The Justice Department’s “Interesting” Comments on the Chief Justice’s Role in an Impeachment Trial”

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Roger Cramton’s Memorandum Surfaces

Remember the Roger Cramton memorandum we discussed a few months ago? (Of course you do, scarcely a waking moment goes by when you don’t think “I wonder what ever happened with that Roger Cramton memorandum?”). This was one of the memoranda cited by the Office of Legal Counsel in footnote 1 of its opinion declaring that former White House counsel Don McGahn was absolutely immune from having to appear in response to a congressional subpoena.

As we have discussed, OLC’s argument for absolute immunity is based in large part on “precedent” consisting of its own prior statements on the subject. But, as two federal judges have now pointed out, OLC cannot create precedent simply on its own say-so. Last month Judge Ketanji Brown Jackson wrote, in her scathing rejection of McGahn’s claim of immunity, that OLC’s initial theory of absolute immunity set forth in the 1971 Rehnquist memorandum “was seemingly formed out of nothing” and “it appears that an endorsement of the principles that OLC espouses would amount to adopting the absolute testimonial immunity for senior-level presidential aides by ipse dixit.” Comm. on the Judiciary, U.S. House of Representatives v. McGahn, No. 19-cv-2379, slip op. at 99, 102 (D.D.C. Nov. 25, 2019); see also Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp.2d 53, 86 (D.D.C. 2008) (rejecting OLC’s opinions on absolute immunity as “conclusory and recursive”). Furthermore, as both Judge Jackson and Judge Bates noted, the original justification for immunity set forth in the Rehnquist memorandum would not apply to former White House officials at all. See McGahn, slip op. at 100; Miers, 558 F. Supp.2d at 88 n. 36.

Enter the aforementioned Cramton memorandum of December 21, 1972 to “the Honorable John W. Dean, III,” Counsel to the President. Although OLC cited this memorandum in its opinion on McGahn, it did not make it public at the time, nor did it bother to mention that this memorandum differed in an important respect from the argument that it was making. We know this now because OLC has just posted it on its website. Hat tip: @kpolantz and @EricColumbus.

To wit, the Cramton memorandum concludes that former White House officials should not be entitled to the same absolute immunity as current officials. It states:

We have one caveat with respect to our conclusion. While we believe that an assertion of Executive privilege with respect to specific testimony on the subject of advice given by the former staff member to the President is entirely proper, we have some reservations about the propriety of invoking the privilege to direct the former staff member not to appear at all. This aspect of the Executive privilege has in the past been claimed only for the President and his most intimate, immediate advisers. One of the justifications that has been advanced for an immediate adviser declining to appear is that he is presumptively available to the President 24 hours a day; the necessity to appear before congressional committees therefore could impair that availability. This consideration would obviously not justify a refusal to appear by a former staff member. However, this justification is in our view neither the only nor the best one. An immediate assistant to the President may be said to serve as his alter ego in implementing Presidential policies. On this theory, the same considerations that were persuasive to former President Truman would apply to justify a refusal to appear by such a former staff member, if the scope of his testimony is to be limited to his activities while serving in that capacity.

In conclusion, we believe that an invocation of the privilege with respect to particular testimony by a former staff member on the subject of advice given the President is quite clearly proper; on the other hand, we believe an invocation of the privilege as a basis for refusal to appear at all is a closer question. An intention to invoke the privilege with respect to particular testimony could certainly be announced. This as a practical matter may solve the problem. If, however, the interrogation is expected to extend to non-privileged matters, a decision that the former staff member should not appear at all would not, in our opinion, be justified.

Memorandum of 12-21-1972 at 6-7 (emphasis added).

To be sure, this language does not foreclose a refusal to appear by a former White House official if the testimony is expected to involve only privileged matters (though it suggests this is a “closer question”). If, on the other hand, non-privileged matters are involved, it indicates that such a refusal would not be justified. This position is inconsistent with OLC’s current stance, which is that former officials are absolutely immune from any questioning about their official activities, regardless whether they are privileged. As OLC “explained” in its McGahn opinion, “the concept of immunity is distinct from, and broader than, the question whether executive privilege would protect a witness’s response to any particular question.” 5-20-19 Opinion at 17. Moreover, it asserted that “consistent with our prior precedents, we find no material distinction between the compelled congressional testimony of current and former senior advisers to the President.” Id. at 16. This again is inconsistent with the Cramton memorandum.

Furthermore, the Cramton memorandum implicitly rejects OLC rationales for extending immunity to former officials. If allowing such officials to testify about non-privileged matters will not impair the president’s ability to obtain confidential advice, there is no reason why they should not appear and invoke the privilege on a question by question basis (like every other executive official outside the White House). Moreover, Cramton obviously did not believe that allowing former officials to appear would adversely impact the president’s “autonomy.”

It seems to me that if you are going to rest an argument on ipse dixit, you ought at least to be honest about the ipse.  Maybe the D.C. Circuit will have some questions about this too.

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Impeachment and Disqualification

The proposed articles of impeachment against President Trump call not only for his removal from office, but for his “disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” No doubt the drafters of these articles assume such disqualification would prevent Trump from ever again serving as president. Readers of this blog, however, are aware that this is no longer an uncontested proposition (see here, here, here, here, here, here, and, most recently, here for a few of our prior discussions of this issue).

While I am aware that the president’s conviction and removal, much less disqualification, remain unlikely events, if he were to be disqualified it would be extremely important that there be as much clarity as possible on this issue. I have little doubt that should the Senate disqualify Trump from future office, he would not hesitate to seize upon the argument that the presidency does not constitute an “office of honor, trust, or profit under the United States” within the meaning of the Disqualification Clause. Moreover, members of the House who will vote on articles of impeachment and members of the Senate who will presumably vote on conviction and removal, and possibly on disqualification as well, are entitled to know of the existence of this issue.

I therefore propose that before voting on articles of impeachment, the House consider and approve a resolution along the following lines: “Resolved, That in the considered judgment of this House, the Office of President of the United States of America is an Office of honor, Trust or Profit under the United States within the meaning of the Sixth Clause of the Third Section of the First Article of the Constitution of the United States.”