Author: Michael Stern

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Immunity, Impeachment and Juristocracy (Part III: “Core” Official Conduct)

Despite Delahunty and Yoo’s claim that Trump “[c]losely follow[ed] Fitzgerald,” the two decisions are quite different in several ways. To begin with, Trump divides the president’s official conduct into “core” and “non-core” conduct. Today we will consider the Court’s ruling as to core official conduct. Although (spoiler alert) the Court finds that the president is absolutely immune from criminal liability for this conduct, its conclusion does not rest on Fitzgerald or the reasoning of that precedent.

The president’s core constitutional powers, according to the Court, are those within his “conclusive and preclusive” constitutional authority. They include both powers expressly provided in the Constitution, such as the power to grant pardons, and those that have been found to be implied, such as the power to remove executive officers appointed by the president and to decide whether to recognize foreign governments.

These core constitutional powers are not limited to formal acts. The Court explains that the president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” Therefore, President Trump’s discussions with the Justice Department in connection with alleged fraud in the 2020 election, even if proved to be a mere sham to provide cover for his efforts to overturn the results of the election and remain in office, were exercises of his core constitutional powers.

The Court held that all exercises of a president’s core constitutional powers were beyond Congress’s power to regulate or criminalize. Although it terms this as the president enjoying “absolute immunity” from criminal liability for his core official acts, this is a somewhat misleading shorthand (as Justice Barrett’s partial concurrence suggests). The Court’s holding is not really that the president is immune from prosecution for crimes committed in the course of exercising his core constitutional powers, but that Congress lacks the power to criminalize those acts in the first place, even as part of a statute of general applicability. Echoing Barrett, Professor Whittington explains that “the question is not whether Presidents are immune from criminal prosecution as such, but instead whether particular criminal law provisions are constitutionally infirm as they might be applied to presidential actions.” Keith E. Whittington, Presidential Immunity, 2023-24 Cato Sup. Ct. Rev. 283, 301 (2024) (emphasis in original). A straightforward and relatively uncontroversial application of this principle is that Congress could not make it a crime to issue a pardon or to exercise the president’s constitutional power of removal.

The application of this principle to criminal statutes of general applicability is a good deal more controversial, but Whittington is correct that it was not invented out of whole cloth for purposes of the Trump case. He points to Bill Barr’s 2018 memorandum, which argued that Trump’s 2017 firing of FBI Director James Comey could not be prosecuted as obstruction of justice. (Barr in turn relied on prior Department of Justice opinions that found that interpreting certain broadly worded criminal statutes to the president would raise significant constitutional concerns).

Comparing Barr’s careful and narrow argument to the radical and slipshod opinion of the Trump Court is instructive. Barr does not make any claim that presidents enjoy criminal immunity for their official acts. He cites Fitzgerald’s civil immunity as an example of the law’s “array of protections designed to prevent, or strictly limit, review of the Executive’s discretionary powers,” but he does not suggest there is or should be any criminal immunity. Instead, he did what one would logically do under the Barrett/Whittington approach; he examined whether the statute in question, 18 U.S.C. §1512, the federal obstruction statute (also one of the two statutes charged in Trump), would be unconstitutional if applied to Trump’s firing of Comey. Much of Barr’s argument was focused on the proper construction of §1512, but he invokes the doctrine of constitutional avoidance to support his view that the statute should not be read to reach the Comey firing. Specifically, he argues that “defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.” Barr Memorandum (Introduction) (emphasis added). The terms “facially-lawful” and “solely” are integral to Barr’s argument, and he repeats them several times in the memo. Continue reading “Immunity, Impeachment and Juristocracy (Part III: “Core” Official Conduct)”

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Immunity, Impeachment and the Juristocracy (Part II: Nixon v. Fitzgerald)

If Trump v. United States has no foundation in the original meaning of the Constitution (as discussed in my last post), what is the rationale of the decision? Delahunty and Yoo make three main points in support of the majority’s ruling: (1) the holding is consistent with (if not compelled by) the Court’s reasoning in Nixon v. Fitzgerald, 457 U.S. 731 (1982); (2) the holding is consistent with separation of powers principles; and (3) the holding is supported by public policy considerations, specifically the need to end the (allegedly) abusive prosecutions of the former president (and to prevent similar actions in the future). To a significant extent, these justifications amount to different ways of saying the same thing. Today we will look at the Fitzgerald decision and whether the separation of powers/policy rationales of that case provide support for Trump.

Fitzgerald held, in a 5-4 decision, that current and former presidents enjoy absolute immunity from civil damage suits for actions taken within the “outer perimeter” of their official duties. The majority opinion by Justice Powell identified a variety of sources of law that were relevant to the issue before it. First, it noted that its prior immunity decisions “have been guided by the Constitution, federal statutes, and history.” 457 U.S. at 747. Second, “at least in the absence of explicit constitutional or congressional guidance, our immunity decisions have been informed by the common law.” Id. Third, the Court “necessarily also has weighed concerns of public policy, especially as illuminated by our history and the structure of our government.” Id. at 747-48.

The Court then suggest that the immunity analysis may be somewhat different for the president:

In the case of the President the inquiries into history and policy, though mandated independently by our cases, tend to converge. Because the Presidency did not exist through most of the development of the common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges with the kind of “public policy” analysis appropriately undertaken by a federal court. This inquiry involves policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.

457 U.S. at 748.

This is a rather word salady way of saying two things. First, the Court thinks that the president should be treated differently in the immunity analysis than other executive officials, such as cabinet officers and governors. Specifically, while the Court’s precedents called for evaluating immunity based on the particular function being performed by the official who is sued for damages, Fitzgerald found that the unique nature of the presidency required extending immunity to all conduct within the “outer perimeter” of this official responsibility. Id. at 756; see also id. at 750 (“The President’s unique status under the Constitution distinguishes him from other executive officials.”).

The second point is that the grounding of the president’s immunity in separation of powers arguably placed it beyond Congress’s power to regulate. If the Constitution mandates absolute immunity for the president, Congress would be prohibited from imposing damages liability for any conduct within the outer perimeter of his duties. However, the Fitzgerald Court declined to decide whether the president would enjoy immunity in the event Congress enacted a statute which expressly authorized civil damages against the president. See Fitzgerald, 457 U.S. at 748-49 n.27 (“our holding today need only be that the President is absolutely immune from civil damages liability for his official acts in the absence of explicit affirmative action by Congress”).

This position was criticized by both the dissenters and Chief Justice Burger in his concurrence; they agreed that it was inconsistent for the majority to both claim that the president had absolute immunity based on separation of powers, on the one hand, and to leave open whether this immunity could be abrogated by affirmative congressional action, on the other. See Fitzgerald, 457 U.S. at 792 “We are never told . . . how or why congressional action could make a difference.”) (White J., dissenting); id. at 798 (Blackmun, J., dissenting); id. at 758, 763 n.7 (Burger, C.J., concurring).

The internal correspondence of the Fitzgerald Court shows that almost all of the justices, in fact, believed that this was a contradiction, though they were sharply divided on which way it should be resolved. The four dissenting justices, of course, believed the Constitution provide no immunity, while at least two other justices in the majority privately agreed with Burger that the constitutional immunity would apply even in the face of a statute to the contrary. Powell also indicated he would agree with Burger should the issue be presented, though he fluctuated somewhat on how definite this position was. Only Justice Stevens was firmly in the undecided camp, and he evidently refused to join the majority opinion unless it clearly spelled out that affirmative congressional action would present a different case.

Personally, I can see where Stevens was coming from. Although the Fitzgerald Court states that “[w]e consider [the president’s immunity from civil damages] a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history,” 457 U.S. at 749, these buzzwords mean very little. The fact that the Court “considers” immunity to be a “functionally mandated incident of the President’s unique office” just means that it believes subjecting the president to civil damages is a bad idea that would interfere with his ability to do his job. That it is “rooted in the separation of powers” is little more than another way to refer to the president’s “unique office,” or, as the Court phrases it later, “the special nature of the President’s constitutional office and functions.” See 457 U.S. at 756. The claim that immunity is “supported by our history” appears to be mostly meaningless filler.

Indeed, Powell’s early drafts used the phrase “justified by considerations of public policy” instead of “supported by our history.” He changed this wording, and made several other edits, in response to comments from his colleagues that the draft was too forthright in acknowledging that the decision was essentially an exercise of judicial policymaking. One particularly amusing memo from Stevens expresses concern about the frequent references to public policy and descriptions of “the Executive’s immunity as something that is granted by the Court rather than provided by law.” He explained that “[i]n a realistic sense, perhaps your opinion is entirely correct in referring to grants of immunity by judges, but I feel much more comfortable when I am able to say that we are merely applying the law as we understand it to exist independently of the composition of the Court.” Powell dutifully made the cosmetic changes, but the dissent still pointed out the reality. See 457 U.S. at 769 (noting that “the judgment in this case has few, if any, indicia of a judicial decision; it is almost wholly a policy choice, a choice that is without substantial support and that in all events is ambiguous in its reach and import”) (White, J., dissenting).

Given that, in a “realistic sense,” the opinion was more of a policy choice than a judicial decision, it is understandable that Stevens insisted on reserving the question of what would happen if Congress acted to impose liability on the president. Congress is rather better suited than the Court to make a policy judgment about whether the president should be subject to civil liability. Even if one accepts that the Constitution requires the courts to balance the public interest supporting and opposing immunity, the fact of congressional action would seem to be a factor that should be considered in weighing the competing interests (a point Powell made to his skeptical colleagues in an internal memo).

It is also worth noting that the Fitzgerald Court’s rhetoric about the president’s “unique office” should be taken with a grain of salt. In a case several years earlier, Butz v. Economou, 438 U.S. 478 (1978), the Court had held by a 5-4 majority that cabinet officers and other federal officials were generally entitled only to qualified immunity in civil damage suits. The dissent, however, contended that absolute immunity should apply. Three of the four dissenters in Butz joined the majority in Fitzgerald, while four members of the Butz majority dissented in Fitzgerald. Powell was the only justice who switched sides, and thus perhaps the only one who thought the president’s unique office was determinative of the level of immunity. (Justice O’Connor, who joined the majority opinion in Fitzgerald, had not been on the Court when Butz was decided). The decision to provide absolute immunity to the president but not to cabinet officers is thus one not necessarily dictated by the reasoning of either Butz or Fitzgerald. Cf. Fitzgerald, 457 U.S. at 784 (pointing out that the majority’s concerns about the chilling effect of civil lawsuits would apply to all officers, not just the president) (White, J., dissenting). Continue reading “Immunity, Impeachment and the Juristocracy (Part II: Nixon v. Fitzgerald)”

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Immunity, Impeachment and Juristocracy (Part I: Unoriginalist Sin)

Today I will start a series of posts on the Supreme Court’s decision on presidential criminal immunity, Trump v. United States, 603 U.S. __, 144 S.Ct. 2312 (2024), and its implications for the legal accountability of the executive. While I am harshly critical of that decision, my main purpose is not to show that it is wrong, but rather that it (along with related developments) dramatically increases the need for systemic congressional oversight of executive (not just presidential) wrongdoing. Moreover, because the decision also threatens Congress’s authority to conduct ordinary legislative oversight, the exercise of the oversight power in the House should be integrated to the extent possible with the impeachment power. Finally, because the courts may refuse to assist or actively thwart congressional investigations, Congress should seek to minimize judicial involvement in any aspect of its inquiries.

Today’s post will address the Trump decision from the perspective of original meaning. Again, my point is not so much that the decision is wrong (though it definitely is), but that its reasoning is untethered to any standard other than the personal opinions of at least five justices, which at the present time happen to be extremely pro-executive power. As Robert Delahunty and John Yoo wrote recently, the Court’s decision in Trump is “one of the most resounding defenses of executive power in its history.” While they mean that as a compliment, not everyone will view it as self-evidently laudatory.

Regarding the legal merits of the decision, Professor Jack Goldsmith commented shortly after the decision came down:

Many people seem to have a strong opinion about whether the Court’s recognition of fairly broad presidential immunity was “right” or “wrong.” But the standard sources of constitutional law do not permit a definitive answer to that question.

I respectfully disagree. I do think the “standard sources of constitutional law” permit a definitive answer to the question. Specifically, the most standard of all sources of constitutional law, namely the text of the Constitution, dictates the answer to the question.

To see why, let’s take a look at the “defense” of Trump offered by Delahunty and Yoo. I put the word “defense” in quotes because their argument clarifies the nature of the Court’s decision in a way that the majority, I think, might find less than congenial.

It is not surprising that Delahunty and Yoo would be supportive of the Trump decision. First, they are legal conservatives who would ordinarily be expected to agree with and defend the Court’s conservative majority. Second, they are veterans of the Office of Legal Counsel with expansive views of executive power. Third, as the piece itself makes clear, they are harshly critical of the supposed “lawfare” against Donald Trump.

Despite their strong predisposition to agree with the outcome of the Trump case, Delahunty and Yoo are clear about its lack of foundation in the original meaning of the Constitution. (To be sure, many other scholars have noted the non-originalist nature of the decision, but few of them are as enthusiastic about the result as Delahunty and Yoo). They acknowledge that “the Court rejected the strong originalist evidence against presidential immunity” and observe that “Chief Justice Roberts’ reasoning ran contrary to the textual and historical evidence at hand, which Justice Sotomayor’s dissent briefly surveyed.”

The authors go on to discuss Alexander Hamilton’s commentary in the Federalist Papers to buttress their point. They cite Federalist No. 69, in which Hamilton states: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes and misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” They further cite Hamilton’s explanation in Federalist No. 65 that impeachment and conviction does not “terminate the chastisement of the offender,” who rather “will still be liable to prosecution and punishment in the ordinary course of law.”

What is interesting is that Delahunty and Yoo cease their analysis of the original meaning there, as if Hamilton’s statements standing alone refute the Trump Court’s position. They simply state “[i]t is difficult, if not impossible, to find evidence from the founding period that overcomes Hamilton’s clear statements, which he made to defend the proposed Constitution during the fight over ratification.” They then move on from the “originalist” portion of their argument. The implication is that Hamilton’s “clear statements” refute the Court’s conclusion, unless one can find other evidence to “overcome” them.

But nothing in the Trump Court’s opinion ostensibly disagrees with Hamilton’s statements. The Court does not dispute that criminal prosecution may follow impeachment and conviction, which after all is explicitly set forth in the Impeachment Judgment Clause of the Constitution itself. See U.S. Const., art. I, § 3, cl.7 (“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”). Nor did the Court claim that the president is categorically excluded from the Impeachment Judgment Clause. It therefore acknowledges that in some cases Hamilton is correct that a former president would “be liable to prosecution and punishment in the ordinary course of law.”

What Chief Justice Roberts claims is that while the Impeachment Judgment Clause shows that a former president may be prosecuted, it “does not indicate whether . . . [he may] be prosecuted for his official conduct in particular.” Trump v. United States, 603 U.S. ___, slip op. at 38 (emphasis in original). Similarly, he cursorily dismisses other founding era evidence, including Federalist No. 69, on they ground they fail to “indicate whether [the president] may be prosecuted for his official conduct.” Id., slip op. at 39. Thus, the chief justice might say, a former president can be prosecuted for murdering his wife or robbing a bank, just not for official misconduct.

Delahunty and Yoo fail to respond to this argument, which is hard to explain. Perhaps they felt it was so self-evidently disingenuous that responding would undercut the remainder of the article, which praises the decision for various non-originalist reasons. Whatever the reason, they do not point out the obvious flaw in Roberts’s position, which is that impeachment is directed first and foremost at official misconduct. Hamilton’s audience was not concerned with the possibility that a president might murder his wife or rob a bank. They were worried about a president who might abuse his office for treasonous or corrupt purposes.

Although the impeachment provisions of the Constitution apply to a wide range of civil officers, they were drafted primarily with the president in mind. See, e.g., Raoul Berger, Impeachment: The Constitutional Problems 106 (1973) (“in the impeachment debate the Convention was almost exclusively concerned with the President”). Moreover, the prosecution of presidential criminality was expressly discussed at the Philadelphia Convention. Edmund Randolph, for example, objected to giving the president the pardon power in cases of treason, arguing that “[t]he President may himself be guilty” and “[t]he Traytors may be his own instruments.” James Wilson responded: “Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he himself be a party to the guilt he can be impeached and prosecuted.” 2 The Records of the Federal Convention of 1787 626 (Max Farrand ed., 1903).

Delahunty and Yoo point out that under Trump “the President enjoys no immunity for private, unofficial acts.” But as they surely know, impeachment is not concerned primarily with such acts. The Impeachment Judgment Clause relates to prosecutions for conduct constituting “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. const., art. II, § 4. This phrase is aimed principally, if not exclusively, at official misconduct, particularly criminal conduct intimately tied to public office. The Randolph/Wilson colloquy, for example, is about a president who pardons traitors who had been acting as “his own instruments.” This envisions a president who is organizing a treasonous conspiracy under the authority of his office, not one committing treason as a private individual.

Historically there has been great controversy over whether ordinary criminal conduct (such as murder, rape or robbery) is even a proper subject of impeachment. The constitutional treatise writer William Rawle maintained that “[i]n general those offenses which may be committed equally by a private person as a public officer, are not the subjects of impeachment.” William Rawle, A View of the Constitution 215 (1829). Many others have held similar views. See Berger, Impeachment, at 202 (“It is generally said, though a few voices to the contrary are not wanting, that impeachment is limited to acts performed in an official capacity.”). It would make no sense to hold this view if it were understood the Impeachment Judgment Clause applied only to ordinary crimes. Conversely, if there had been even a minority position that the president was immune from prosecution for official acts, one would expect that this would have been advanced in arguments against the view that impeachment is limited to acts performed in an official capacity. The fact that no one argued for presidential official act immunity is therefore strong evidence of an understanding that no such immunity existed.

When Delahunty and Yoo say that Trump was contrary to the “strong originalist evidence” or the “textual and historical evidence,” therefore, what they are actually saying is that Trump is flatly inconsistent both with what the Constitution says and with what it has been uniformly understood to mean. The relative paucity of statements about the president’s potential criminal liability or immunity for official acts reflects not an “unsettled question,” as some have suggested, but the fact that no one thought this was a question at all. (As will be discussed in my next post, the closest I can find to anyone expressing doubt, publicly or privately, about the president’s accountability to the criminal law prior to 2021 is a single comment by Justice Rehnquist which, in context, underscores how marginal the idea was).

If Trump cannot be justified on originalist grounds, what “defense” can be offered of the decision? In my next post I will look at the non-originalist underpinnings of the opinion.

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God Save the United States and this Honorable Court

As reported by SCOTUSblog (among many others), Chief Justice Roberts today issued the statement that “[f]or more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

The statement was, of course, made against the background of repeated impeachment threats made against federal judges who have had the audacity to issue rulings unfavorable to the Trump administration. Trump allies such as Elon Musk have been calling for judicial impeachments on social media for several weeks. At least four impeachment resolutions have been introduced so far in this Congress: one against Judge Amir Hatem Mahdy Ali of the U.S. District Court for the District of Columbia; one against Judge John D. Bates, also of the U.S. District Court for the District of Columbia; and two (see here and here) against Paul Engelmayer of the U.S. District Court for the Southern District of New York. In addition, earlier this morning President Trump demanded the impeachment of the Chief Judge of the U.S. District Court for the District of Columbia, James Boasberg, on Truth Social, and one of his congressional lackeys promptly boasted on social media that he was introducing an impeachment resolution for Boasberg as well.

The fact that Roberts chose now to opine on this matter may strike some as rather ironic. During the first Trump impeachment, at which Roberts presided in accordance with article I, §3, cl. 6 of the Constitution, he basically sat like a potted plant while studiously avoiding making rulings or offering opinions on the legal issues in the case (admittedly the role which tradition and the inclination of the Senate tend to demand). He declined to participate at all in the second Trump impeachment, thereby providing implicit support for the theory that a former president was not subject to impeachment. When faced in Trump v. Anderson with the argument that Trump’s conduct in connection with January 6 disqualified him from serving again as president, he advanced an interpretation of section 3 of the 14th amendment which came perilously close to making that provision a dead letter for the presidency. And finally, in Trump v. United States (a case I will be discussing further in upcoming posts), he endorsed a theory of presidential immunity which is wholly at odds with the Constitution and which, as a practical matter, allowed the former president to escape legal consequences for his allegedly criminal conduct in office.

Having failed repeatedly to exercise the authority which the Constitution  bestows upon him, the chief justice here chooses to speak on a matter which is arguably none of his business. To be sure, the opinion he offers is completely reasonable. As we discussed long ago, there is a strong constitutional norm or convention against impeaching judges for their rulings, regardless of how wrongheaded they are thought to be. But it is Congress, not the Court, which has established this principle, and the Court has recognized that the subject of impeachment is a political question constitutionally committed to Congress alone. Thus, if Congress were to decide it wants to start impeaching judges for their rulings, there is little that the chief justice or the Court could do to stop it.

Of course, there is no chance that an impeachment of any of these judges would be successful. I doubt that there are enough votes in the House to adopt articles of impeachment, much less to convict in the Senate. Indeed, I suspect that the House Judiciary Committee would be loath even to hold hearings on these judicial impeachments because that would provide a public forum for discussing the underlying cases which prompted the offensive rulings. I imagine House Democrats would love the opportunity to call for testimony from the likes of Elon Musk and the Alleged Acting Administrator of DOGE.

It is therefore doubtful that Roberts thought his statement was either necessary or helpful to forestall impeachment proceedings. It is more likely he was trying to assure lower court judges that he and his fellow justices will not countenance an organized campaign of intimidation against them. Whether that assurance will turn out to be worth the paper it is written on remains to be seen. Recent history provides ample reason for skepticism.

 

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In Memoriam: Elise Bean, Public Servant

Elise Bean was a singular figure in the world of congressional oversight. She spent her career on the Hill working for Senator Carl Levin (D-Mich), most notably as his chief counsel and staff director for the Permanent Subcommittee on Investigations (PSI). There she led the staff of one of Congress’s most storied investigative committees under the chairmanship of a senator known for his commitment to congressional oversight and institutional prerogatives. Many of the most important investigations she led at PSI are discussed in a book she wrote after leaving the Hill in 2014, Financial Exposure: Carl Levin’s Senate Investigations into Finance and Tax Abuse (2018).

Elise passed away on January 14 of this year at the much too young age of 68. I was stunned to learn of her death the next day when it was announced at a panel on congressional oversight that she was supposed to moderate. I had last spoken with Elise a couple months earlier, and at the time she was in complete remission from pancreatic cancer. But the cancer returned suddenly. The loss it caused will be felt deeply by the entire congressional oversight community and her many friends and colleagues.

Although we overlapped on the Hill, I did not really know Elise until we met in connection with the Legislative Branch Capacity Working Group (Make Congress Great Again!), which was launched in 2016. Elise was a tireless advocate for enhancing congressional capacity and, in particular, for strengthening and professionalizing Congress’s oversight capabilities. In her post-Hill career, she helped to establish the Levin Center for Oversight and Democracy, a nonprofit organization dedicated to the development of bipartisan oversight capacity both in Congress and state legislatures. One of her significant initiatives as the director of the Levin Center’s Washington, D.C. office was to put on “oversight boot camps” at which hundreds of congressional staffers have been taught the techniques of conducting investigations.

Elise was also incredibly generous with her time. Each semester I taught congressional oversight at the George Washington School of Political Management, Elise enthusiastically agreed to guest lecture one of my classes. And her enthusiasm was contagious—student evaluations consistently rated her lecture as one of the highlights of the course. Elise would illustrate the “Levin Oversight Principles” with examples from her days at PSI. She was particularly fond of recounting PSI’s investigation into abusive practices at credit card companies. The lead witness at the committee hearing was a man named Wannemacher (aka “the wedding guy”), who had incurred $3,200 in charges for his 2001 wedding, paid nearly twice ($6,300) that amount to the credit card company over the next six years, and still owed more ($4,400) than the original debt. The power of such stories to mold public opinion was demonstrated by the fact that the company forgave the debt right before the hearing in a desperate (and unsuccessful) effort to keep the wedding guy from testifying.

One of the Levin Oversight Principles was to be “relentlessly bipartisan,” something that Elise always stressed. This is not an idea that is much in fashion these days; undoubtedly many people on both sides of the political divide would scoff at it as naïve, weak and impractical. But while Elise’s support for bipartisanship might have been partially rooted in an optimistic view of human nature that many (myself included tbh) do not share, it was also pragmatic. A bipartisan investigation is going to be far more effective in getting information and a sympathetic hearing from the public, and lasting reforms are far more likely when there is bipartisan support. And while ruthless partisanship may seem attractive in the moment, it has a tendency to backfire. (How many Senate Democrats wish today they had listened to Senator Levin when he warned of the consequences of nuking the filibuster for nominations?)

A corollary principle was to first “focus on the facts” in any congressional investigation. Just as the facts don’t care about your feelings, they don’t care about your political party. If the ultimate purpose of congressional oversight is to effect policy change that will promote the public good, as Elise deeply believed, establishing a clear and comprehensive factual record (preferably one agreed to by both the majority and minority) is the first step in identifying needed reforms. Having a debate about the best policy response based on a shared understanding of the facts, she would argue, is the most constructive way to proceed. And if you believe that your ideas and policies are truly the best, why would you fear agreement on the facts?

But whether or not you agree with Elise’s approach to congressional oversight, no one could dispute her commitment to her craft, her amazing work ethic, and her infectious spirit that made everyone around her better. As Senator Blumenthal noted in a tribute delivered on the Senate floor: “She looked for the good in people, in our government, and created more good in the world. Those who knew her will cherish and strive to continue her legacy.”

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The Exciting (Well, To Me) Conclusion of the JOR Memo

When we last left the saga of the JOR memo, Roberts had reached the (imho erroneous) conclusion that while executive officers “are subject to subpoena to testify before the United States House of Representatives or a committee thereof in connection with hearings for legislative purposes, the question as to whether the public interest requires them to refuse to answer a question or refuse to produce records in their custody or control is for their determination as a public officer.”

He does not stop there, however.  Instead, he turns to the question “whether by reason of the law creating the Federal Communications Commission and the quasi-legislative and quasi-judicial nature of its functions this agency is an executive agency and whether the officials thereof thus are answerable to the President of the United States or to the Congress.” Relying on Humphrey’s Executor v. United States, 295 U.S. 602 (1935), he found that the FCC “is a quasi-legislative and judicial body and is not part of the executive branch of the Government.” Therefore, he concluded, “it is further my opinion that a member or officer of the Federal Communications Commission is required to answer a subpoena by Congress and to testify or produce records of said agency subject to punishment for contempt if he refuses to do so.”

The logic of Roberts’s position seems to be this. Because executive agencies are “answerable” to the president alone, Congress may not exercise compulsory subpoena power with respect to them. However, because independent agencies are not “answerable” to the president, but only to Congress, Congress may subpoena them and punish their officers and employees if they fail to comply. While there is a certain internal consistency in this position, it founders on the deficiencies of the original premise, which we have already discussed and need not belabor here.

Perhaps more interesting is the question of why Roberts wrote this memo in the first place. It seems to be addressing a question that would be of interest to the FCC itself or someone at the FCC who had been subpoenaed by the House committee. But the memorandum is written strangely if he was concerned only with the legal obligations of the FCC and its officers. Roberts spends a good deal of the memo arguing that executive officers are exempt from congressional compulsion, yet that point is immaterial to his ultimate resolution of the issue. Moreover, however sincerely Roberts may have held his view, he must have known that this was hardly a settled issue and was one vigorously contested by Congress. If he were simply advising someone at the FCC of their legal obligations, he would have written something like “although there is a strong argument that executive officers cannot be punished for withholding information from Congress on the grounds of the public interest, this argument does not apply to the FCC because _______.” The fact that he was so emphatic in his conclusion regarding executive officers suggests that he may have been writing with the interests of others in mind.

Continue reading “The Exciting (Well, To Me) Conclusion of the JOR Memo”

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Getting Some Answers About DOGE

So I have been planning to write posts on so many topics that I have gotten around to none of them. But a social media discussion today impels me to mention a House procedure which seems well suited, as a first step, to addressing some of the many questions which have arisen regarding the so-called Department of Government Efficiency (DOGE).

Whatever else it may be, DOGE is not in fact a government department. So what is it? As explained by this CRS report, it is in theory a renamed version of an entity originally established in the Executive Office of the President in 2014 by President Obama. It was previously named the U.S. Digital Service and was supposed to help improve agency digital services. (Whether it actually did this is not mentioned). It sounds like the U.S. Digital Service was not originally  authorized or funded by Congress. Instead, the OMB director transferred funds to the U.S. Digital Service from the “Information Technology Oversight and Reform” appropriations account for the Executive Office of the President. However, it did receive funding in one of the gigantic COVID relief bills.

In reality, DOGE seems to be an entirely different entity than the U.S. Digital Service, though presumably it is funded through the same mechanism. But although there have been some executive orders laying out DOGE’s functions in skeleton form (including one since the CRS report was issued), many questions remain. These include the status of Elon Musk, who has been identified as a “special government employee” and who may or not be serving as the “USDS Administrator” who the executive orders identify as being in charge of DOGE. Regardless of whether Musk or someone else is formally in charge of DOGE, the question remains whether that position may be filled by someone who is not an officer of the United States and not appointed in accordance with the Appointments Clause.

In theory, as we discussed long ago, the White House is allowed to employ “advisers” who need not be officers of the United States because they exercise no “independent authority or sovereign power,” as Obama’s White House Counsel explained in 2009. I expressed some skepticism of this theory when it was raised to justify Obama’s various “czars,” and I see no reason to be less skeptical of its application to the head of DOGE, which seems to be even more blatantly operational and not simply advisory. In any event, there is no way to make an informed judgment about the constitutionality of DOGE’s operation without some more information on what it is doing and what powers, if any, it has.

There are many other questions about DOGE. Who is hiring the DOGE staff? What screening mechanisms are employed with regard to conflicts of interest? What information and systems are DOGE staff allowed to access at departments and agencies? What supervision are administration officials exercising (or permitted to exercise) with regard to the activities of DOGE staff within their departments and agencies? Does the White House understand DOGE to be covered by laws about transparency, privacy, and ethics and, if so, which ones and how?

One way to get such answers would be through the normal committee oversight process. However, at the moment there does not seem to be much interest on the part of Republican committee chairs in either the Senate or House. An alternative method of getting information, which can be employed by any member of the House of either party, is to offer what is known as a resolution of inquiry. As explained by CRS in a 2017 report:

A resolution of inquiry is a simple resolution making a direct request or demand of the President or the head of an executive department to furnish the House with specific factual information in the Administration’s possession. Under the rules and precedents of the House of Representatives, such resolutions, if properly drafted, are given a privileged parliamentary status. This means that, under certain circumstances, a resolution of inquiry can be brought to the House floor for consideration even if the committee to which it was referred has not reported it and the majority party leadership has not scheduled it for action.

Of course, introducing a resolution of inquiry does not guarantee it will be adopted by the House. But it should get you a floor vote (after 14 days in committee). And I would think that voting against a resolution of inquiry that simply tries to get some information about what the heck DOGE is doing may not be that easy for some Republican members of the House.

Anyway, its an idea.

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The JOR Memo, the Myers Case, and the Theory of Executive Privilege

To assess the executive privilege argument of the JOR memo, we should begin by drawing three distinctions which are either blurred or ignored in that memo (and the subsequent Wolkinson memo). These are (1) constitutional immunity versus (common law or constitutional) privilege; (2) the protections available to the chief executive versus those available to lower level officials; and (3) subpoenas to appear and provide testimony versus subpoenas to produce documents.

These distinctions are suggested by a passage from a prominent legal treatise that Roberts quotes:

Subpoena to Executive. It is well settled that public officials are not bound to disclose state secrets or to submit public papers to judicial scrutiny. Partly on this ground, and partly because of the immunity of the executive from judicial control on account of the tripartite separation of powers, it seems now to be undisputed that courts cannot compel the attendance of the chief executive as a witness.

JOR memo at 4-5 (quoting 12 Corpus Juris 896 (W. Mack, ed. 1917)) (emphasis added).

This passage distinguishes between the right of public officials to protect state secrets, which is a common law privilege, and the constitutionally based theory of “immunity of the executive from judicial control on account of the tripartite separation of powers.” There were several governmental privileges widely understood to be available under common law, but these protections were limited in scope and generally qualified rather than absolute even when they applied. See Jonathan David Shaub, Common Law Executive Privilege(s) (forthcoming 2025).

The passage also addresses judicial subpoenas to the “chief executive” (i.e., a governor or president) and opines (with some exaggeration) that it is “undisputed” such subpoenas cannot be enforced. The rationale given is based partly on common law privileges and partly on state and federal separation of powers principles that prohibit compulsion of the chief executive. But the fact that the chief executive is (or may be) beyond the compulsory power of the court does not imply the same for lower-level officers.

Finally, the passage baldly asserts that public officials are not required to submit “public papers to judicial scrutiny.” Again this seems to be a significant exaggeration, but there is language in some of the cases and secondary sources cited by the treatise which suggests a broad discretion on the part of chief executives and (sometimes) other high-level public officials to withhold certain types of public papers in judicial proceedings.

The authorities speaking to these questions are a mix of English and state cases, along with some 19th century evidentiary treatises. No federal authority had addressed the issue as of the time of the JOR memo. Moreover, none of the authorities spoke to congressional proceedings at all. According to Roberts, however, Myers somehow supports the proposition that while executive officers “are subject to subpoena to testify before the United States House of Representatives or a committee thereof in connection with hearings for legislative purposes, the question as to whether the public interest requires them to refuse to answer a question or refuse to produce records in their custody or control is for their determination as a public officer.” JOR memo at 4.

As noted in my last post, why Roberts thinks Myers supports this result is somewhat obscure. There seem to be two possible arguments, which are discussed below. Continue reading “The JOR Memo, the Myers Case, and the Theory of Executive Privilege”

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The JOR Memo and William Howard Taft

Having claimed that the power of Congress to compel the production of information has been established by Supreme Court precedent only as to private persons, Roberts turns to “the right of the United States House of Representatives or a committee thereof to compel the testimony of or the production of records by officers of the executive branch of the Government.” JOR Memo at 3. Key to the resolution of this question, according to Roberts, is Chief Justice Taft’s opinion for the Court in Myers v. United States, 272 U.S. 52 (1926), which held that the power to remove executive officers is vested in the president alone and may not constitutionally be restricted by Congress.

Taft’s opinion, which was issued one year before the Court’s unanimous decision in McGrain, does not involve or discuss congressional investigations or the obligation of executive officers to respond to subpoenas or demands for information. Exactly why Roberts thinks the opinion is relevant at all is somewhat obscure (I will take that up in my next post), but nothing in its language or reasoning has any direct bearing on the issue at hand.

A more useful guide to Taft’s thinking on the executive’s obligation to produce information to the other branches is a book he wrote after his presidency but before his appointment to the Court. See William Howard Taft, Our Chief Magistrate and his Powers (1916). Roberts does not mention this book, but interestingly Wolkinson cites it at several points in his 1948 memorandum.

In one passage Wolkinson quotes prominently, Taft says:

The President is required by the Constitution from time to time to give to Congress information on the state of the Union, and to recommend for its consideration such measures as he shall judge necessary and expedient, but this does not enable Congress or either House of Congress to elicit from him confidential information which he has acquired for the purpose of enabling him to discharge his constitutional duties, if he does not deem the disclosure of such information prudent or in the public interest.

Our Chief Magistrate 129.

This should not be read as a claim that the president may forbid his subordinates from complying with compulsory process whenever he deems it to be in the public interest. Instead Taft is addressing the president’s personal obligation to provide information demanded by Congress. This is confirmed by the ensuing paragraphs, which discuss several occasions on which sitting presidents successfully refused to comply with demands for information from Congress or the courts. See Our Chief Magistrate 129-30. These incidents, which also appear in the JOR and/or Wolkinson memos, include Washington’s refusal to provide the House with documents relating to the Jay Treaty (on the ground that the House has no constitutional role in the treaty-making process), Grant’s rejection of a demand from the House to identify executive acts he performed away from the seat of government, and Jefferson’s objection to appearing in court or producing documents in response to a subpoena duces tecum issued to him by Chief Justice Marshall in the Burr treason trial. None of these incidents involved a president directing his subordinates to withhold documents or refuse to testify in response to the compulsory process of Congress or the courts.

Continue reading “The JOR Memo and William Howard Taft”

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The JOR Memo’s Analysis of the Congressional Investigatory Power

Continuing where I left off, the JOR memo (as I will call it) begins by framing the question of the congressional right to obtain information from the executive as follows:

In considering this matter it must be remembered that our form of Government is tripartite, i.e., executive, legislative and judiciary. Each branch in so far as the exercise of its constitutional functions are concerned is independent of the other.

To permit one branch of the Government by affirmative or negative action to defeat the right of the other to perform its constitutional functions would be to destroy the very form and substance of our democratic government. Further, to say that one branch in the exercise of its constitutional functions can force the other to reach any particular decision or to perform any specific act, which under the Constitution is in the sole discretion of the other, would likewise shake the foundation of our democracy.

(emphasis added).

In addition to being rather dramatic, this argument is more than a little circular. A congressional demand for information from the executive only “defeat[s] the right [of the executive] to perform its constitutional functions” if one assumes that the constitutional functions of the executive include deciding what information should be withheld from Congress. This, however, is precisely the question at issue. Likewise, it is unexceptionable to contend that Congress cannot force the president to make a decision or perform a specific act which the Constitution leaves to the latter’s “sole discretion.” But this assertion does nothing to advance the proposition, which certainly cannot be found in the Constitution’s text, that the president in fact has the “sole discretion” to decide what information should be provided to Congress.

To illustrate this point, one need only look to a hearing held by the House select committee on the FCC a few weeks prior. At a July 9, 1943 hearing, the committee chair, the conservative southern Democrat Eugene B. Cox, decried the fact that President Roosevelt had directed the War and Navy Departments not to produce documents requested by the committee on the grounds to do so would be contrary to the public interest. FCC Hearing at 73-74. In Cox’s view, this action amounted to executive interference with the proper functioning of the legislative branch. In language which perhaps Roberts parroted in his own memorandum, Cox then stated:

It scarcely need be said that the whole concept of our American system of government under our Constitution rests upon the fundamental principle that each of the three coordinate independent branches of the Government, although checked and balanced each by the other, cannot be subject to domination by the others without the whole structure crumbling.

Id.

Thus, while Cox and Roberts agree that the Constitution establishes three separate and independent branches of government (indeed, it scarcely need be said), this tells us very little about whether Congress has the right to compel the executive branch to provide information or who makes the ultimate determination whether the public interest requires withholding of information in response to any particular congressional request for information.

Continue reading “The JOR Memo’s Analysis of the Congressional Investigatory Power”