Author: Michael Stern

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Who Loves Testimonial Immunity? Just Us.

The Department of Justice, at the invitation of presiding judge Carl Nichols, has filed a statement of its views regarding whether former Trump chief of staff Mark Meadows is entitled to assert testimonial immunity in response to a subpoena from the House select committee investigating the January 6 attack on the Capitol. Because the DOJ brief ultimately concludes that Meadows must provide testimony in this instance, its reasoning may escape serious scrutiny in most quarters. But not on this blog.

So let us count the ways DOJ is full of crap.

  1. DOJ’s fundamental position on testimonial immunity has not changed, and it is still supported by nothing more than ipse dixit.  DOJ reiterates “the Executive Branch’s longstanding position” that “a sitting President’s immediate advisers—current and former—cannot be compelled to testify before Congress about their official duties.” DOJ Br. at 7. As it routinely does, DOJ stresses that its position has been consistent over many years and through administrations of both parties, thus proving self-interestedness is a bipartisan phenomenon and little else.

To support this (longstanding- did I mention that?) position, DOJ offers a cursory regurgitation of arguments/assertions it has made many times before: (1) immunity is needed to protect the president’s independence and autonomy; (2) the president’s advisers should not have to appear because their testimony would largely be protected by executive privilege anyway; and (3) without immunity the president’s advisers would be subject to congressional harassment and distraction from their important duties. DOJ Br. at 5-7.

To be sure, DOJ acknowledges that “some judges” have disagreed with its view, citing in a footnote four opinions, two by judges of the U.S. District Court for the District of Columbia and two by judges of the U.S. Court of Appeals for the D.C. Circuit. See DOJ Br. at 7 & n. 4. Left unmentioned is the fact that exactly zero judges have agreed with DOJ’s position or even expressed the slightest interest in adopting it.

More importantly, DOJ makes no effort whatsoever to respond to the judicial criticisms of its position, which were first voiced by Judge Bates in 2008 litigation involving Harriet Miers. See Comm. on the Judiciary v. Miers, 558 F.Supp.2d 53, 100-06 (D.D.C. 2008). Instead, it simply says that it will adhere to its position unless the D.C. Circuit and/or the Supreme Court definitively reject it. DOJ Br. at 7.

This stance is particularly remarkable because another judge called out DOJ for precisely the same obstinacy in 2019:

DOJ . . . assert[s] that Miers was wrongly decided . . . [and] has emphasized that Miers’s sphere of influence is exceedingly limited. The thrust of the latter contention is that Miers is only one opinion . . . and implicitly, that the law is not established by the word of a single district court judge. On the other hand, says DOJ, scores of OLC attorneys have considered this issue over the past five decades, and in a series of opinions, OLC has carefully concluded that senior-level presidential aides do enjoy absolute testimonial immunity. . . . DOJ suggests that, in the absence of a groundswell of judges rejecting the concept, this Court should not readily find that the law is what Miers concluded.

Comm. on the Judiciary v. McGahn, 415 F.Supp.3d 148, 203 (D.D.C. 2019). Instead of confronting the analysis in Miers directly or giving the court “any principled reason to interpret the law in a different fashion than Judge Bates did,” the judge noted, DOJ simply dismissed his ruling “before proceeding to draw solely from OLC opinions to support the argument that senior-level presidential aides have absolute testimonial immunity.” Id.

The judge in question, of course, was none other than Ketanji Brown Jackson, who recently became the first (and so far only) Supreme Court appointment of the current occupant of the White House. Given that the McGahn opinion was Jackson’s most important and well-known opinion prior to her Supreme Court nomination, one might have expected DOJ to at least acknowledge her harsh criticism of its testimonial immunity theory. One would be wrong.

Judge Jackson went far beyond merely disagreeing with DOJ on the issue of testimonial immunity. She agreed with Judge Bates that DOJ’s legal position “is all but foreclosed by the binding case law Miers cites,” and she dissected at length “the logical flaws in DOJ’s legal analysis.” McGahn, 415 F.Supp.3d at 202. The judge found that “absolute testimonial immunity for senior-level White House aides seems to be a fiction that has been fastidiously maintained over the course of time through the force of sheer repetition in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation.” Id. at 214. DOJ’s contention “simply has no basis in law,” its argument “truly makes no sense,” and its position is ultimately based on nothing more than “ipse dixit.” Id. at 206-07, 212 & 214.

In short, Jackson makes clear that she does not view this as a close legal question about which reasonable minds can disagree. Either her McGahn opinion was overwrought and hyperbolic, or DOJ’s testimonial immunity theory is utterly without merit. There is no middle ground.

Maybe someone should ask President Biden which it is. Continue reading “Who Loves Testimonial Immunity? Just Us.”

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SHOULD THERE BE A SENATE RESOLUTION FOR LINDSEY GRAHAM’S GRAND JURY SUBPOENA?

State prosecutors in Georgia are seeking to subpoena Senator Lindsey Graham of South Carolina to testify in a grand jury investigation of alleged efforts to unlawfully alter the outcome of the 2020 presidential election in Georgia. Prosecutors want to question Graham about telephone calls he made to Georgia election officials in the weeks following the November election. Graham has moved to quash the process issued by the Georgia judge supervising the grand jury on three grounds: (1) compelling his testimony would violate the Speech or Debate Clause; (2) sovereign immunity precludes state court process against a U.S. senator for acts occurring in his official capacity; and (3) requiring Graham to testify would unduly interfere with his legislative responsibilities in the Senate.

Today I do not want to focus on the merits of these legal arguments, but on the Senate’s role in this process. Although the Senate (unlike the House) does not have a rule providing explicit procedures for handling incoming subpoenas, Senate precedent and practice require authorization from the chamber before senators, officers or staff may comply with such subpoenas.

For example, on June 8, 2022, the Senate agreed to a resolution submitted by Majority Leader Schumer for himself and Minority Leader McConnell authorizing the former general counsel to the Secretary of the Senate to testify in a criminal case involving a January 6 defendant. The resolution recited the Senate’s longstanding (if debatable) position that “by the privileges of the Senate of the United States and Rule XI of the Standing Rules of the Senate, no evidence under the control or in the possession of the Senate may, by the judicial or administrative process, be taken from such control or possession but by permission of the Senate.” In other words, evidence which the Senate regards as under its control or in its possession may not be provided to a court unless the Senate decides that providing permission “will promote the ends of justice consistent with the privileges of the Senate.”

Does the evidence sought from Graham fall into this category? The answer seems to be yes, at least if one accepts Graham’s characterization of it. According to his motion to quash, the purpose of his contact with Georgia officials was “to gather information relevant to his oversight responsibilities as Chairman of the Senate Judiciary Committee” and “his obligations under the Electoral Count Act of 1887.” Whether or not such activity falls within the legislative sphere protected by Speech or Debate (as Graham contends), it certainly would be sufficiently official in nature to trigger the requirement that the Senate grant permission before testimony may be given.

Graham, of course, does not want to testify and therefore has little incentive to seek a Senate resolution authorizing him to do so. Moreover, although he has not raised lack of Senate permission as a basis for quashing the Georgia process in his initial filing (perhaps for tactical reasons or perhaps because his private lawyers are unaware of this aspect of Senate practice), he may seek to do so at a later date.

This leaves the possibility that another senator will introduce a resolution authorizing Graham to provide the requested testimony. Clearly such a resolution would not receive unanimous consent, which is the way that such resolutions are invariably passed. Furthermore, even if the resolution were adopted, it would not prevent Graham from asserting the Speech or Debate privilege as to some or all of his testimony. It would, however, preclude him from refusing to comply based on the lack of Senate permission and it would likely undermine his sovereign immunity argument because (I think, though I am not sure) any such immunity would belong to the Senate as a whole rather than the individual member.

Finally, a Senate resolution would deal with Graham’s third objection relating to potential conflicts between the Senate’s legislative schedule and a potential grand jury appearance. When the Senate authorizes testimony by a sitting senator, it insists that any court appearance must be consistent with Senate Rule VI, which provides that senators must not absent themselves from the service of the Senate without leave, and therefore that any testimony may not occur when the senator’s attendance at the Senate is necessary for the performance of his or her legislative duties.

Of course, whether or not such a resolution is introduced will depend less on the legal technicalities than whether one or more senators believe that the subject of Graham’s potential testimony is sufficiently important to merit the Senate’s attention. We shall see

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A Former President’s Authority to Assert Executive Privilege is Incompatible with Executive Branch Doctrine

Last week the Gray Center for the Study of the Administrative State held a programentitled “Congress’s Interbranch Role: The Executive, the Court, and Dobbs.” The first panel focused on conflicts between Congress and the executive, particularly disputes over congressional access to information and executive privilege. The panel, consisting of three DOJ/OLC veterans (Professor Josh Chafetz, who was supposed to represent the congressional perspective on these issues, was unfortunately unable to make it), provided an excellent if somewhat executive-tilting overview of the issues in such disputes.

What struck me in listening was the divergence between the principles underlying standard executive branch doctrine on congressional oversight and the theory that a former president may assert executive privilege. Because the panel did not discuss executive privilege as it relates to former presidents, it is worth expounding on that divergence here.

As explained by Will Levi, who was chief of staff to Attorney General Barr in the Trump administration, the executive branch views executive privilege as consisting of four components: (1) presidential communications- communications between the president and senior staff, as well as communications between senior staff and subordinate officials (or even private citizens!) for purposes of formulating advice to the president; (2) deliberative process- predecisional communications in the departments and agencies or other lower levels of the executive branch; (3) law enforcement information (which often arises in the context of attempts to obtain access to investigative or open case files); and (4) state secrets- information related to national security and foreign policy. Levi noted that the presidential communications and deliberative process privileges were qualified privileges that could be overcome by a sufficient congressional showing of need, but he maintained that the law enforcement and state secrets privileges were “more absolute.”

Continue reading “A Former President’s Authority to Assert Executive Privilege is Incompatible with Executive Branch Doctrine”

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Checking the Office of Legal Counsel

As discussed in this Lawfare article by William Ford of Protect Democracy, the House Select Committee on the Modernization of Congress has asked GAO to study the feasibility of establishing a Congressional Office of Legal Counsel (COLC) to act as a congressional analogue to the Office of Legal Counsel (OLC) in the Department of Justice. The idea would be that COLC could issue opinions on controversial separation-of-powers subjects reflecting the views and perspectives of the legislative branch and thereby function as a counterweight to OLC’s invariably pro-executive positions.

The Lawfare article thoughtfully describes the pros and cons of establishing a COLC. I am skeptical of the idea myself, but I look forward to GAO’s analysis of the issue. In the meantime, there are steps that can be taken to level the playing field between Congress and the executive branch in terms of constitutional analysis.

For example, in recent testimony for the House Appropriations Subcommittee on the Legislative Branch, I proposed one small step. The House Counsel’s website could be significantly upgraded to provide more information about its legal functions, including “non-privileged information about its legal advice and representation, including court filings, legal opinions and select explanatory or historical documents that would shed light on its operations and the legal views of the House.” This would provide some modest counterbalance to OLC, which maintains an extensive (though selective) database of its opinions on its website.

Another check on OLC would be to obtain more transparency with respect to some of its most controversial opinions. For example, I have a FOIA request to OLC which seeks information about the January 19, 2020 opinion that it submitted in the first Trump impeachment trial. Specifically, I want to find out if the legal advice that it claimed to have given the administration in October 2019 was before or after the October 8, 2019 letter in which White House Counsel Pat Cipollone told the House it would not comply with any subpoenas relating to its investigation of the former president’s efforts to withhold military aid from Ukraine. So far I have not gotten much (a shocker, I know), but still I persist.

There are many other ideas for reining in executive constitutional overreach. In his recent book The Living Presidency, Professor Sai Prakash has suggestions ranging from defunding the White House Counsel and OLC (p. 255) to having Congress issue its own declarations on controverted constitutional issues (p. 265). Similarly, Professor Emily Berman, in Weaponizing the Office of Legal Counsel proposes a number of reforms, including requiring OLC to include “dissenting opinions” as part of the opinion-writing process and increasing the use of details to Congress to give executive branch lawyers from OLC and elsewhere a better sense of the congressional perspective on disputed constitutional matters.

Thus, there is no shortage of ideas for leveling the legal playing field between Congress and the executive branch. Getting Congress to pay attention to these issues when they are not in the headlines is, however, another matter.

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January 6 Litigation and Federal Court Authority to Resolve Congressional Subpoena Disputes

As litigation regarding the subpoena and investigatory authority of the January 6 select committee proliferates, it is worth stepping back and asking a question that apparently is not being asked in any of these cases: do federal courts have the authority to adjudicate the merits of these disputes?

When a congressional committee first sought the assistance of a federal court to enforce a subpoena for executive branch information, the defense explained that “entry into the federal court is like opening a safe deposit box, where two separate keys are required.” Brief of Richard M. Nixon in Opposition to Plaintiffs’ Motion for Summary Judgment at 9, Senate Select Comm. on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973) (No. 1593-73), reprinted in Appendix to the Hearings of the Senate Select Comm. on Presidential Campaign Activities, Legal Documents Relating to the Select Comm. Hearings, Part I, 93d Cong., 1st sess. 813 (Comm. Print June 28, 1974). The first key was constitutional justiciability; the second was statutory authority. Nixon argued that the Senate Watergate Committee lacked both keys.

For the moment, the question of constitutional justiciability has been settled, at least in the D.C. Circuit, by the ruling in Comm. on the Judiciary v. McGahn, 968 F.3d 755 (D.C. Cir. 2020) (en banc), where the court held that congressional committees have Article III standing to seek judicial enforcement of their subpoenas. While one might argue that this decision does not resolve all potential justiciability issues, the court’s reasoning seems likely to foreclose any successful challenge to the constitutional justiciability of controversies arising from the enforcement of congressional subpoenas, including those that involve attempts to obtain executive branch information.

The question of statutory authorization is murkier and messier. Whether there needs to be explicit statutory authorization to bring a suit to enforce a congressional subpoena remains open. Nearly a century ago, when a congressional committee first sought judicial assistance to enforce a subpoena, the Supreme Court rejected the suit on the ground that the committee lacked authorization to sue, though it left open whether such authorization required statutory enactment or could be accomplished by resolution of a single house. See Reed v. Cty Commissioners, 277 U.S. 376, 388 (1928). When a congressional committee next attempted to enforce a subpoena (the aforementioned Watergate case), Judge Sirica initially dismissed the case because there was no specific jurisdictional statute authorizing such suits. See Senate Select Comm. on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51, 61 (D.D.C. 1973) (“The Court has here been requested to invoke a jurisdiction which only Congress can grant but which Congress has heretofore withheld.”). This problem was solved when Congress passed (and Nixon reluctantly signed) a bill specifically providing for federal court jurisdiction over subpoena enforcement suits by the Senate Watergate Committee (a broader bill that would have applied to suits by all congressional committees passed the Senate but not the House).

Since then there have been many developments, but on balance they are inconclusive. On the one hand, the statute governing general federal question jurisdiction (28 U.S.C. § 1331) was amended to eliminate the amount in controversy requirement, thereby obviating Sirica’s objection to the Senate committee’s attempt to rely on this statute. In the 1980s the Justice Department took the position that this statutory change enabled congressional committees to sue for enforcement of their subpoenas. See Response to Congressional Requests for Information Regarding Decisions made Under the Independent Counsel Act, 10 Op. OLC 68, 87-88 (1986). When the House Judiciary Committee sued to enforce subpoenas to George W. Bush administration officials, the Justice Department conceded that § 1331 provided jurisdiction over the matter, but it contended that the committee lacked a required statutory cause of action. Judge Bates agreed with it on the first point but not on the second. Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53, 64, 78-94 (D.D.C. 2008). In subsequent cases DOJ withdrew its concession on jurisdiction, but several other district courts have agreed with Judge Bates on both points. See, e.g., Comm. on the Judiciary v. McGahn, 415 F.3d 148, 174-76, 193-95 (D.D.C. 2019) (Ketanji Brown Jackson, J.).

On the other hand, Congress has arguably acted as if express authorization for subpoena enforcement actions is required by repeatedly debating (but not passing) broad statutory authorizations and by passing narrower authorizations (such as the statute providing for enforcement suits by Senate Legal Counsel) that apply only to a subset of subpoena enforcement matters. Moreover, a D.C. Circuit panel recently issued an opinion, since vacated, holding that congressional subpoenas are judicially unenforceable in the absence of specific statutory authorization. See Comm. on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Aug. 31, 2020) (holding that the committee lacked a cause of action to enforce its subpoena).

In contrast to the past controversy over congressional subpoena enforcement suits, however, the January 6 cases have proceeded without apparent objections regarding the absence of express statutory authorization, either with regard to subject matter jurisdiction or cause of action. The plaintiffs in these cases rely on §1331 for subject matter jurisdiction, and they presumably would (if challenged) make more or less the same cause of action arguments that congressional committees have advanced in subpoena enforcement cases.

The January 6 cases are different only in that the plaintiffs are the subpoena recipients, rather than the subpoena issuer. It is possible that this is a relevant distinction, but it is not obvious why. As a textual matter, it is difficult to explain how an action brought by a subpoena recipient to enjoin enforcement is one “arising under the Constitution” within the meaning of §1331, but an action by a committee to enforce the very same subpoena would not be.

From a policy standpoint, a regime in which the recipients of congressional subpoenas could avail themselves of judicial remedies, but the committees cannot, is not one that Congress would have chosen. But from Congress’s perspective the most important thing is to obtain clarity on what the state of the law is. To that end it is desirable that the courts address these issues in the January 6 litigation, however they may be resolved.

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Two Lees, One Jackson, and Some Stonewalling

During the confirmation hearings for Judge (soon to be Justice) Ketanji Brown Jackson, she answered written questions for the record from a number of senators, including Senator Mike Lee. One of Senator Lee’s questions (hat tip: Ira Goldman) struck me as odd:

In Committee on the Judiciary v. McGahn, you took an extremely broad view of standing that all but ignored the previous elements of standing that you clung to in Federal Forest Resource Coalition (individualized injury). Setting aside the merits of the underlying controversy, your opinion never once mentions the phrase “political question.” Isn’t a case where the legislative branch is suing the executive branch a quintessential political question?

One problem with this question is that it was based on a false premise—as she pointed out in her answer, Jackson’s opinion in McGahn did in fact (more than once) use the phrase “political question” and it did so in the context of explaining why the political question doctrine was inapplicable to the case before her.  See, e.g., Comm. on the Judiciary v. McGahn, 415 F. Supp.3d 148, 178 (D.D.C. 2019) (“[T]he Supreme Court has specifically confirmed that not all legal claims that impact the political branches are properly deemed non-justiciable political questions.”).

To be sure, Jackson’s discussion of this issue was somewhat in passing. Her primary point was that the Justice Department’s legal arguments on standing and separation of powers sounded like attempts to evoke the political question doctrine without grappling with well-established limits on that doctrine. See id. at 177-78. But because the Justice Department (representing McGahn) did not actually assert that the political question doctrine applied, the judge presumably thought it unnecessary to discuss the doctrine in depth. Perhaps Lee should ask the Justice Department why it did not think McGahn presented a “quintessential political question.”

I think I can save him the trouble, though. There was a time when legal scholars (to the extent they thought about the issue) very likely would have agreed with the sentiment expressed in Lee’s question. As one noted constitutional expert wrote long ago: “In 1958, when the reach of the political question doctrine was far broader than it is today, no lesser an authority than Judge Learned Hand expressed the view that such a dispute [over a congressional subpoena] between two branches of government was a clear example of a nonjusticiable constitutional question.” Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 B.Y.U. L. Rev. 231, 266 (1978). For the last 60 years, though, the law has rejected such a broad view of political questions. Continue reading “Two Lees, One Jackson, and Some Stonewalling”

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More on Bannon and OLC

In connection with my last post, I want to elaborate on Steve Bannon’s advice of counsel defense. The essence of this defense is that legal advice from his counsel that he was not obligated to comply with the select committee’s subpoena negated the “willfulness” required to violate the contempt of Congress statute (2 U.S.C. §192). Leaving aside the question whether this is a valid legal defense (spoiler alert: it is not), Bannon claims that this defense is bolstered by Office of Legal Counsel opinions which he interprets to excuse him from compliance with the select committee’s subpoena. For example, in his discovery motion, Bannon states “[Bannon’s lawyer] consistently advised the Government that Mr. Bannon was acting in accordance with legal opinions issued by the Office of Legal Counsel, U.S. Department of Justice, which analyzed the issues under analogous circumstances.”

The significance of the OLC opinions to the purported defense is unclear. One possibility is that Bannon was directly relying on the OLC opinions themselves, rather than simply on his lawyer’s interpretation of them. Another possibility is that the OLC opinions are cited to bolster the reasonableness of the legal advice the lawyer (Robert Costello) provided his client.

Bannon may also be trying to advance something of a slippery slope argument. If he cannot rely directly or indirectly on OLC opinions, then what of executive officials who receive an OLC opinion that specifically advises they need not comply with a congressional subpoena? This is the scenario that Judge Nichols was apparently concerned about when he posed a hypothetical in which Ron Klain refuses to testify based on OLC advice that he has absolute immunity from compelled congressional testimony. In this situation, Nichols asked, could DOJ advise Klain he is immune and then turn around and prosecute him for defying the congressional subpoena?

Continue reading “More on Bannon and OLC”

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Should Judge Nichols Recuse Himself in the Bannon Case?

Many moons ago the Justice Department first presented in court its legal theory that senior White House aides are absolutely immune from compelled congressional testimony with regard to their official duties. Although the DOJ attorney who argued the case did a pretty good job, he was unsuccessful in persuading the district court, which rejected the theory in no uncertain terms. See Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53, 99 (D.D.C. 2008) (Bates, J.) (“[T]he asserted absolute immunity claim here is entirely unsupported by existing case law.”). More than a decade later, another district judge, who is currently nominated to sit on the Supreme Court, strongly agreed, finding that “the Miers court rightly determined not only that the principle of absolute testimonial immunity for senior-level presidential aides has no foundation in law, but also that such a proposition conflicts with key tenets of our constitutional order.” Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 202-03 (D.D.C. 2019) (Ketanji Brown Jackson, J.). Although neither Miers nor McGahn resulted in an appellate decision on the merits, two D.C. Circuit judges wrote opinions strongly questioning or rejecting outright the absolute immunity theory, while not a single judge has expressed any degree of support for it. See Comm. on the Judiciary v. McGahn, 973 F.3d 121, 131 (D.C. Cir. 2020) (Rogers, J., dissenting) (McGahn’s claim of testimonial immunity is foreclosed by precedent); Comm. on the Judiciary v. McGahn, 951 F.3d 510, 536-40 (D.C. Cir. 2020) (Henderson, J., concurring) (explaining at some length why McGahn’s claim of immunity rests on a “shaky foundation”).

As fate and the random assignment system would have it, the DOJ attorney from the Miers case, Carl Nichols, is now himself a federal judge presiding over two high profile cases in which testimonial immunity may be an issue. Both cases arise out of the January 6 select committee investigation. The first is the prosecution of Steve Bannon for refusing to comply with the select committee’s subpoena for documents and testimony. The second is a lawsuit filed by Mark Meadows against the select committee seeking to prohibit the enforcement of subpoenas issued to him and his telecommunications provider. Among the grounds asserted by Meadows for invalidating the testimonial aspects of the subpoena directed at him was that it “contravene[d] Mr. Meadows’ testimonial immunity as a senior executive official.” Meadows Complaint ¶ 153.

Back in November a Politico article by Kyle Cheney and Josh Gerstein discussed whether Judge Nichols should recuse himself from the Bannon case (the Meadows lawsuit had not yet been filed) due to his participation in Miers.  According to former House Counsel Irv Nathan, who argued Miers for the House and is quoted in the piece, Nichols should have considered recusing himself because of the similarity of the issues in the two cases. Nathan explained that in Miers Nichols had “argued that a witness, a private citizen (a former Executive Branch official) following the direction of a President, need not comply with a Congressional subpoena and could refuse even to show up, produce any documents or even itemize the documents alleged to be privileged.” This in his view would undermine the judge’s appearance of impartiality in presiding over the Bannon trial.

Continue reading “Should Judge Nichols Recuse Himself in the Bannon Case?”

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What Exactly is a Congressional Criminal Referral?

As discussed in my last post, the January 6 select committee has argued in federal court that there is sufficient evidence of misconduct by former President Trump to potentially warrant application of the crime/fraud exception to attorney-client privilege with respect to otherwise privileged communications he may have had with John Eastman. This in turn has sparked renewed speculation as to whether the committee will or should make a “criminal referral” to the Justice Department regarding the former president. According to this Politico article, while “Washington has viewed the decision on a criminal referral against Trump as a major pivot point in the Jan. 6 probe,” some think that the committee’s filing in the Eastman case makes such a referral less important or entirely unnecessary.

But what exactly is a congressional “criminal referral” and what is its significance, if any?

Continue reading “What Exactly is a Congressional Criminal Referral?”