In the Supreme Court argument on Donald Trump’s claim of absolute presidential immunity from criminal liability for “official acts,” Trump’s counsel, John Sauer, relied heavily on the Court’s Speech or Debate jurisprudence. See Transcript at 6-8, 31, 34, 36 & 46. Sauer did not go so far as to claim the president was literally entitled to protection under the Speech or Debate Clause, but he contended the issues addressed in the Speech or Debate Clause were “very analogous” to those presented by the criminal prosecution of a (former) president, Tr. at 34, and he argued for the creation of a parallel immunity for the president. Tr. at 36. For the reasons explained below, this argument should be rejected and, even if it were accepted, provides little if any protection for Sauer’s client in this case. Continue reading “Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity”
How Should the January 6 Committee Respond to Trump’s Lawsuit?
On Friday, November 11, former President Trump filed suit against the January 6 committee to prevent enforcement of the subpoena for documents and testimony the committee issued to him on October 21. The complaint asserts that as a former president Trump is absolutely immune from compelled congressional testimony (at least outside the realm of impeachment). In addition, it alleges that the subpoena is invalid for a number of reasons, including that it was not issued for a valid legislative purpose, that it fails the heightened standard of scrutiny established by the Supreme Court for subpoenas of presidential information, and that the January 6 committee lacked authority to issue subpoenas because it was improperly constituted.
All of these claims, in my view, should lose, and I think they all probably would if the litigation ever resulted in a final judgment on the merits. However, as Trump’s lawyers well understand, there is very little chance of that happening before the January 6 committee expires at the end of this Congress, which will most likely moot the case. For Trump’s legal team, the advantage of this lawsuit is that it will buy time and possibly forestall a contempt vote in the House. Continue reading “How Should the January 6 Committee Respond to Trump’s Lawsuit?”
Some Thoughts on the January 6 Committee Subpoena to Former President Trump
As you may have heard, the January 6 select committee has adopted a resolution authorizing its chair to issue a subpoena for documents and testimony under oath to former President Donald Trump. This action raises some legal, political and practical issues, which are considered below.
Is a former president immune from a congressional subpoena? The answer to this question is pretty clearly no. It has been well-established since Watergate that even sitting presidents are subject to judicial subpoena and, as the D.C. Circuit recently observed, its own precedent from that era “strongly implies that [sitting] Presidents enjoy no blanket immunity from congressional subpoenas.” Trump v. Mazars U.S., LLP, 940 F.3d 710, 722 (D.C. Cir. 2019), rev’d and remanded on other grounds, 140 S.Ct. 2019 (2020). It is therefore very unlikely that former presidents would be found to enjoy such blanket immunity.
Is a former president absolutely immune from compelled congressional testimony about his official activities? For reasons I have discussed before, the answer to this question should be no, although I acknowledge there are good reasons why Congress should be (and historically has been) reluctant to compel the appearance of former presidents except in extraordinary circumstances. Continue reading “Some Thoughts on the January 6 Committee Subpoena to Former President Trump”
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.”
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”
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?
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?”
Lawfare Article on the Presidential Records Case
I have a piece up at Lawfare on former President Trump’s lawsuit to stop the National Archives from releasing his presidential records to the House committee investigating the January 6 attack on the Capitol.
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.
Roger Cramton on Executive Privilege
Who is Roger Cramton, I hear you ask? He was the author of a 1972 memorandum cited in footnote 1 of the OLC’s 5-20-19 opinion on the testimonial immunity of former White House counsel Don McGahn. It is cited as “Memorandum for John W. Dean III, Counsel to the President, from Roger C. Cramton, Assistant Attorney General, Office of Legal Counsel, Re: Availability of Executive Privilege Where Congressional Committee Seeks Testimony of Former White House Official on Advice Given President on Official Matters (Dec. 21, 1972) (Cramton Memorandum).
I have not located a copy of the Cramton Memorandum (if anyone has, please forward), but I did come across this March 23, 1973 New York Times piece (an op-ed, I assume) written by Mr. Cramton. It is entitled “Why Executive Privilege Won’t Kill You,” which, you have to admit, sets a pretty low bar. Cramton addresses the controversy over the Nixon administration’s refusal to allow high level advisers, such as Henry Kissinger, John Ehrlichman, H.R. Haldeman, Peter Flanigan and John W. Dean, to testify before Congress.
Cramton’s defense of this practice is entirely based on the premise that these witnesses will be asked about privileged matters relating to advice given to the president. He contended that “[p]residential adverser are not subject to interrogation any more than a law clerk can be asked about the factors or discussions that preceded a decision of his judge or legislative aide asked about conversations with his Congressman.” The president’s “official family” must be able to give him candid advice uninhibited by fear their views “will be subject to subsequent disclosure or second-guessing.”
I have three observations about Cramton ‘s position. First, it was obviously part of an effort to justify the Nixon administration’s refusal to cooperate with Congress’s Watergate investigation. Just a couple weeks after the New York Times piece, Chairman Sam Ervin held a press conference calling this position “executive poppycock” and saying “Divine right went out with the American Revolution and doesn’t belong to White House aides.” Karl Campbell, Senator Sam Ervin, Last of the Founding Fathers 285 (2007). Nixon backed down shortly thereafter and allowed his closest aides to testify. Id. at 285-86.
Second, Cramton’s public statement, at least, does not claim that White House aides have absolute immunity from appearing on Capitol Hill or testifying about non-privileged matters. In this it is consistent with public pronouncements of William Rehnquist and other executive branch lawyers. It does suggest that presidential communications are absolutely privileged, but this position was rejected by the Supreme Court a year later in United States v. Nixon.
Finally, it is odd that OLC today relies on Cramton’s position, given that it failed in every conceivable way. Top White House advisers such as Haldeman, Ehrlichman and Dean were forced to testify before Congress when President Nixon realized it was politically and legally unsustainable to refuse. The Supreme Court subsequently rejected the legal reasoning on which the refusal was based. And the entire effort was revealed to be part of a criminal conspiracy which resulted in Haldeman, Ehrlichman and Dean going to prison.
It seems odd, anyway.