Category: Executive Privilege

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OLC’s Fig Leaf Can’t Cover McGahn

Now we come to the crux of the matter, OLC’s claim that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.” 5-20-19 OLC Opinion at 1. Specifically, OLC contends that Don McGahn, the former White House counsel, may not be compelled to testify before the House Judiciary Committee about matters described in the report of Special Counsel Robert Mueller. See id. at 1-2. These include, for example, the question whether McGahn truthfully told the special counsel that President Trump directed him to fire the special counsel or whether McGahn lied about this, as Trump apparently now alleges. See Mueller Report, vol. II, at 84-87. For the reasons that follow, OLC (sometimes known as the Keeper of the Presidential Fig Leaf) is wrong.

Adam White, a keen legal observer who unaccountably agrees with OLC’s analysis, summarizes its reasoning as follows:

As OLC explained, the president’s core advisors are entitled to absolute immunity from compelled appearances before Congress; they are his alter egos, and just as Congress cannot force the president himself to testify before its committees, nor can Congress force his closest advisors to appear. Such compelled testimony would subjugate the president to Congress; it would significantly impair (if not destroy altogether) the president’s ability to receive candid advice from his closest advisors, and it would enable congressional committees to prevent the president’s advisors from actually doing their own work for the president.

In essence, OLC offers a syllogism (1) the president has absolute testimonial immunity; (2) his closest advisers are his “alter egos”; and hence (3) his advisers also have absolute immunity. As we have already seen, however, it is far from established that the president himself has absolute testimonial immunity. Moreover, there is nothing other than OLC’s say-so to support the proposition that White House aides should be considered the president’s “alter egos’ and, in any event, this assertion does little more than assume the conclusion. Saying that an aide is the president’s “alter ego” is simply another way of saying that the aide is entitled to the same immunity as the president. However, as Assistant Attorney General Rehnquist recognized in 1971, the (assumed) fact that the president enjoys an immunity “does not answer the question as to whether his immediate advisers are likewise exempt.” Rehnquist Memorandum at 3.

As it happens, since 1971 the Supreme Court has addressed this very question in a closely related context. In a 1982 opinion joined by Justice Rehnquist, the Court held that senior presidential advisers were not entitled to absolute immunity in civil actions arising out of their official activities, even though the Court held in a companion case that the president was entitled to such immunity. The Court did not dispute “the importance to the President of loyal and efficient subordinates in executing his duties of office,” but found this was simply not enough to justify extending absolute immunity to presidential aides. Harlow v. Fitzgerald, 457 U.S. 800, 808-09 (1982); see also Nixon v. Fitzgerald, 457 U.S. 731 (1982) (holding the president is absolutely immune from civil suits arising from his official duties).

Harlow not only establishes that the president’s advisers may be sued for civil damages, but, as OLC tacitly concedes, it also demonstrates that they can be compelled to testify in judicial proceedings. It would make no sense to claim that White House aides were immune from giving testimony in civil damages actions in which they were the defendants and, in any event, in such cases they would be “compelled” to testify as a practical matter to defend their conduct. Furthermore, despite the numerous criminal investigations that have involved White House aides over the past decades (to name just a few that come to mind in addition to the Mueller probe, Watergate, Iran-Contra, Whitewater, the 1996 campaign fundraising scandal, and the Valerie Plame leak matter), as far as I know OLC has not contended that presidential advisers are immune from testifying in either grand jury proceedings or criminal prosecutions. Thus, there seems to be no serious contention that White House aides have any immunity from testifying in judicial proceedings.

Harlow would seem to be fatal to OLC’s argument. Leaving aside the difficulty of explaining why the Constitution would require that presidential advisers have immunity in congressional, but not judicial, proceedings, Harlow establishes that these advisers are not constitutionally entitled to an immunity simply because it is available to the president. This might seem like a self-evident point (it was to Rehnquist even while he still worked at OLC), but OLC’s syllogism doesn’t work once it is recognized. See Comm. on the Judiciary, U.S. House of Representatives, v. Miers, 558 F.Supp.2d 53, __ (D.D.C. 2008) (executive branch’s argument for presidential adviser immunity from compelled congressional testimony is “virtually foreclosed” by Harlow).

OLC tries to “distinguish” Harlow on the ground that congressional proceedings are fundamentally different than judicial proceedings. But this misses the main point. Harlow doesn’t preclude the possibility White House aides (or executive officials generally) will be treated differently than ordinary citizens in certain situations, but it does preclude the argument that they are entitled to special treatment just because the president is. Thus, even if we grant the proposition that the president is immune from compelled congressional testimony (which, unlike his immunity from civil actions, has not been approved by the Supreme Court or any other court), this is insufficient to establish that his aides are.

White says “[n]o court has ever held that all presidential advisors must testify when subpoenaed.” This is true in the sense that no court has ever held that all firefighters must testify when subpoenaed. But the Supreme Court has made clear that all citizens have a duty to comply with congressional subpoenas:

A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.

United States v. Bryan, 339 U.S. 323, 331 (1950) (emphasis added) (upholding a contempt conviction for failure to comply with a congressional subpoena). The relevant fact, then, is that no court has ever held that presidential advisers have immunity from this “public duty,” and the only court (Judge Bates in the Miers case) to directly address the claimed immunity has roundly rejected it.

Indeed, no court has ever held that any class of citizens or officials is categorically immune from compelled congressional testimony. Witnesses can assert the Fifth Amendment in congressional proceedings, for example, but that does not excuse them from the duty of appearing to invoke the privilege in response to specific questions. Therefore, OLC carries a heavy burden to establish that senior presidential advisers are constitutionally distinct from ordinary citizens and other executive branch officials in such a way that they are entitled to this unique immunity. It must carry this burden, moreover, without the benefit of any supporting authority (other than its own prior memoranda) because, as Judge Bates points out, “[t]he Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context.” Miers, 558 F.Supp.2d at __.

It is also noteworthy that despite the fact that OLC refers to “absolute immunity from compelled congressional testimony,” it acknowledges that this immunity does not extend to testimony regarding the adviser’s “private affairs.” 5-20-19 OLC Opinion at 4, 7. OLC does not elaborate on what it means by this exception (which it refers to simply by quoting an apparently unpublished 1974 memorandum by Assistant Attorney General Antonin Scalia). However, as we saw in an earlier post, in his 1971 congressional testimony, Rehnquist associated this exception with two instances (Donald Dawson in 1951 and Sherman Adams in 1958) in which senior White House officials were alleged to have misused their offices for personal gain. These are hardly “private affairs” as that term would ordinarily be understood. And regardless of what one calls it, OLC fails to explain why the Constitution permits compelled congressional testimony in this instance and not in other cases where a senior adviser has important and non-privileged information that Congress needs.

OLC’s Policy Rationales

As White notes, OLC offers three basic reasons why senior presidential aides must have testimonial immunity in congressional proceedings. Absent such immunity, OLC maintains, (1) the president would be “subjugated” to Congress; (2) the president’s ability to receive candid advice from his closest advisers would be impaired or destroyed; and (3) committees could interfere with the work that these advisers must perform for the president. Let’s take these in reverse order. Continue reading “OLC’s Fig Leaf Can’t Cover McGahn”

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Does the President Enjoy Absolute Testimonial Immunity?

As we saw in my last post, for presidential advisers to have testimonial immunity it is necessary but not sufficient that the president himself have such immunity. Assistant Attorney General Rehnquist noted in 1971 that “[e]veryone associated with the Executive Branch from [the Aaron Burr treason trial] until now, so far as I know, has taken the position that the President himself is absolutely immune from subpoena by anyone . . .” Rehnquist Memorandum at 3. Of course, taking a position is not the same thing as establishing that the position is correct.

OLC’s current justification for the president’s immunity consists of little more than the bare assertion that “Congress may no more summon the President to a congressional committee room than the President may command Members of Congress to appear at the White House.” 5-20-19 OLC Opinion at 1. I have three observations about this assertion. First, it should be noted that it is more modest than the position stated by Rehnquist in 1971. The latter was that the president was immune from “subpoena by anyone.” OLC today refers only to subpoena by Congress, although its reasoning, premised on the fact that the “President stands at the head of a co-equal branch of government,” would seem to apply equally to judicial subpoenas. See 5-20-19 OLC Opinion at 4. By confining its claim, OLC avoids the need to deal with the Supreme Court’s decision in United States v. Nixon, 418 U.S. 683 (1974), which suggests that “even the President may not be absolutely immune from compulsory process more generally.” Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F.Supp.2d 53, __ (2008).

Second, as others have noted, the attempt to equate congressional and presidential subpoena authority makes no sense because the president has no subpoena authority and thus lacks the power to command anyone (other than, I suppose, his subordinates) to appear at the White House. The president’s inability to compel the appearance of members of the Congress therefore says nothing about the subpoena authority of congressional committees.

Third, the comparison makes even less sense when one considers that members of Congress have no immunity from subpoenas themselves. Representatives and senators have been required to appear and testify in many types of proceedings despite the existence of an express constitutional privilege against arrest which was designed to allow them to carry out their legislative duties without interruption while Congress is in session. Though no less authorities than Thomas Jefferson and Joseph Story believed this provision gave members a (temporary) immunity from subpoenas ad testificandum, this position has never been accepted by the courts. See 2 Deschler’s Precedents of the U.S. House of Representatives 817 (“The rulings of the courts, both state and federal, have uniformly expressed the principle that a summons or subpena is not an arrest, and is not precluded by the Constitution.”). Similarly, although members have a privilege against being questioned about legislative activities under the Speech or Debate Clause, this does not equate to an absolute testimonial immunity or the right to refuse to appear when subpoenaed. See Miers, 558 F.Supp.2d at __ (“Members cannot simply assert, without more, that the Speech or Debate Clause shields their activities and thereby preclude all further inquiry.”) Thus, OLC’s comparison would seem to support, rather than refute, the president’s amenability to subpoena. Id.

Interestingly, while OLC relies on many of its prior memoranda in support of its contention that presidential advisers have absolute testimonial immunity, it fails to mention a 1973 memorandum which expresses doubt as to whether even the president himself has such immunity. After discussing the dispute between Chief Justice Marshall and President Jefferson over whether the latter could be required to give evidence in the Aaron Burr treason trial, the memorandum notes that “[m]odern legal discussion of the power of the courts to subpoena the President still adheres to Chief Justice Marshall’s view that the President is not exempt from judicial process, in particular the judicial power compel anyone to give testimony.” Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Presidential Amenability to Judicial Subpoenas 5 (June 25, 1973) (available in OLC FOIA electronic reading room) (hereinafter “Dixon memorandum”). It goes on to note that it is “questionable whether there is adequate precedent for the proposition that the constitutional doctrine of separation of powers precludes vel non the issuance of judicial subpoenas to the President.” Dixon Memorandum at 7.

The same memorandum suggests that any presidential immunity or protection against subpoenas may be limited in cases of alleged official wrongdoing:

A special situation exists with respect to claims of privilege where charges of official wrongdoings are concerned. There appears to be no pertinent precedent as to whether a President can claim privilege in judicial proceedings in that situation. There have been, however, several statements made by Presidents and Attorneys General that privilege will not be invoked vis-a-vis Congress where charges of official wrongdoing are involved. Significantly those statements have usually been made [in the context of] the Congressional power of impeachment.

Dixon Memorandum at 12 (citations omitted) (emphasis added).

Dixon concludes that “the subpoenaing of a President involves a number of complex issues depending on the circumstances in which and the purposes for which the subpoena is issued.” Dixon Memorandum at 13. For example, “it could be argued that a President will not or cannot claim privilege where official misconduct is the subject matter of grand jury proceedings or of a criminal prosecution.” Id. Moreover, “it may well be that a President will not or even may not claim privilege where Congress performs its specific constitutional responsibilities in the field of impeachment.” Id. These observations, it should be noted, precede the Supreme Court’s decision in United States v. Nixon, which only bolsters Dixon’s skepticism regarding the president’s absolute immunity from subpoena.

While OLC’s position on presidential testimonial immunity has little support in judicial precedent or legal doctrine, historical practice is more favorable. As Andy Wright details here, presidents rarely have testified in judicial or congressional proceedings and when they have done so it is generally with an accommodation to indicate the voluntariness of their cooperation. Perhaps most strikingly, neither Andrew Johnson nor Bill Clinton testified in their impeachment trials, nor did Nixon testify in the House Judiciary Committee inquiry regarding his impeachment. I would summarize this history as reflecting a strong constitutional convention against forcing a president to testify in any but the most compelling circumstances.

All this being said, there is no direct judicial precedent on the question of whether a sitting president is entitled to absolute testimonial immunity.  I tend to agree with Steve Vladeck and Ben Wittes that it is more likely than not that the Supreme Court would reject a claim of such immunity, but I also agree with them that “it is not a sure thing, and the President has plausible arguments available to him that a court would have to work through before enforcing a subpoena for his testimony.” There is particular uncertainty as to how newer members of the Court may view the president’s claim of absolute testimonial immunity (and some reason to believe that Justice Kavanaugh, in particular, may be sympathetic to such a claim). Continue reading “Does the President Enjoy Absolute Testimonial Immunity?”

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OLC’s Evolving Position on Testimonial Immunity

In this post I will look at OLC’s claim that its advice on testimonial immunity of senior presidential advisers has been consistent “for nearly five decades.” See 5-20-19 OLC Opinion at 1. As we saw in my first post, since the 1940s the executive branch has generally resisted congressional demands for testimony from such advisers, but on a number of occasions it has permitted these advisers to testify in open congressional hearings and on other occasions it has agreed or offered to provide information from these advisers in alternative ways. Until the mid to late-1990s, the executive branch’s position on this subject was not presented to Congress as an assertion of absolute constitutional immunity, but more like the prophylactic rule described in my last post. Moreover, when OLC’s internal memoranda from this time period are scrutinized (to the extent they are available), they are compatible with this more modest interpretation of its position.

It was not until the Clinton administration that OLC articulated a formal and definitive defense of the proposition that senior presidential advisers are constitutionally immune from compelled congressional testimony. Even then, OLC seems to have accepted this proposition without any serious legal analysis and, in particular, without any consideration of important developments in the case law since Assistant Attorney General William Rehnquist first casually suggested it in 1971. Continue reading “OLC’s Evolving Position on Testimonial Immunity”

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What Does OLC Really Mean By “Testimonial Immunity”?

Following up on my first post on the Office of Legal Counsel’s May 20, 2019 opinion regarding the “testimonial immunity” of senior presidential advisers, let’s turn to OLC’s claim that “for nearly five decades” it has advised that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.” See 5-20-19 OLC Opinion at 1.

Today I want to ask what this advice actually means. After all, it is not at all clear that OLC believes Congress may “constitutionally compel” anyone in the executive branch to provide any information, whether in the form of testimony or documents, regarding their official duties or anything else. Although it would concede that Congress has the constitutional right to demand information needed for legislative and oversight purposes, OLC would deny that Congress ever has the right to “compel” the executive branch to produce such information, at least where the president has asserted executive privilege.

Perhaps OLC would offer the distinction that the president is constitutionally obligated to provide information to Congress unless a valid constitutional basis exists for withholding it; thus, he is “compelled” to provide information where no such basis exists, even though he is the final decisionmaker as to whether or not information should be withheld. In the case of senior presidential advisers, however, the president has complete discretion as to whether to allow them to testify and thus is never “compelled” to do so.

There are a couple problems with this distinction. First, even in OLC’s theory, the immunity of presidential advisers is limited. It does not apply to everyone who works in the White House, but only the president’s “senior” or “immediate” advisers. It does not apply to those with statutory or operational responsibilities. It does not apply to testimony about “personal affairs,” a term which OLC does not define but which, we will see, includes at least matters involving misuse of the adviser’s public position. Thus, even under OLC’s theory, it would seem the president is “compelled” to provide testimony of his advisers under certain circumstances.

More fundamentally, however, OLC and the executive branch maintain that all congressional demands for information are subject to a constitutionally-mandated accommodation process, which consists of a “back-and-forth process under which each branch is constitutionally obligated to negotiate in good faith, articulate with particularity their legitimate institutional needs and interests, and weigh the legitimate needs and interests of the other branch.” This is “not simply an exchange of concessions or a test of political strength” but “an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”

Congressional demands for testimony from senior presidential advisers are not exempt from this accommodation process. OLC acknowledges that “Presidents have occasionally made senior advisers available to accommodate congressional requests, even while defending their legal authority to decline such requests.” 5-20-19 OLC Opinion at 12. During the 2008 litigation in which the House Judiciary Committee attempted to compel former White House counsel Harriet Miers to testify, the Justice Department stressed that the committee was trying to end run the accommodation process. See, e.g., Reply in Support of Defendants’ Motion to Dismiss at 47 (June 12, 2008) (“rather than relying on good faith negotiations and cooperation (including the President’s offer that Ms. Miers appear for an interview), the Committee has invoked this Court’s jurisdiction to judicially compel Ms. Miers’s attendance and sworn testimony at a public hearing”).

It is hard to see how one can square OLC’s understanding of the accommodation process with a claim that presidential advisers are “absolutely immune” from testifying before Congress. If Congress has a “legitimate need” for the testimony of a senior presidential adviser (e.g., because the adviser is an essential fact witness to wrongdoing) and there is no principled reason to withhold the information (e.g., because of the executive’s longstanding position that executive privilege will not be invoked to conceal evidence of criminal or unlawful wrongdoing by executive officials), it would seem that the president would be obligated to permit the adviser to testify. Thus, when Presidents Nixon and Reagan permitted senior advisers to testify about Watergate and Iran-Contra, respectively, they were not merely engaging in acts of presidential grace but carrying out their constitutional obligations.

Any other interpretation would create bizarre inconsistencies in the executive branch position. For example, suppose Congress has a legitimate legislative need for information known only to a senior presidential adviser. If the adviser wrote the information down in a document, the executive branch would have a constitutional obligation (under some circumstances) to provide the document to Congress. But if the same information were only in the adviser’s head, there would be no constitutional obligation to acknowledge the legislative need for the information and any accommodation would be purely a matter of political bargaining. This simply makes no sense.

To be sure, OLC would deny that Congress can use the methods of testimonial compulsion (inherent contempt, criminal contempt or civil litigation) to force senior presidential advisers to testify. However, as already noted, OLC would take the same position with regard to any other type of testimony or evidence if the president has invoked executive privilege. This was made clear in the government’s briefs in the Miers case:

At no time during the long history of interbranch negotiations and accommodations has a court ordered an Executive Branch official—let alone one of the President’s senior advisers—to testify before Congress, nor has the Executive Branch been required by court order to produce documents or a privilege log to Congress. This uniform past practice also has been followed with respect to congressional demands that senior White House advisers appear before congressional committees to justify the President’s decisions. Although such advisers have, from time-to-time, appeared before Congress, at no time in the Nation’s history has a court ordered a senior White House adviser to testify as a result of a congressional subpoena.

Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and in Opposition to Plaintiff’s Motion for Partial Summary Judgment on Counts I and II at 9 (May 9, 2008).

Of course, if the executive branch is wrong about the justiciability of executive-legislative information disputes, OLC would want its absolute immunity argument available as a backup. But the justification for absolute immunity is premised on the notion that without such immunity Congress would routinely use its power to compel the appearance of key White House officials. If the argument is only relevant in judicial proceedings to compel appearance, it is not necessary because courts will prevent any abuse and will not order senior White House aides to testify unless there is a legitimate legislative need for the information.

In short, the only way OLC’s position makes sense is if one understands the “immunity” of senior presidential advisers to be a prophylactic rule or policy asserted by the executive branch in order to keep senior White House officials from having to testify before Congress as a routine matter. Because in most cases their testimony will be largely if not entirely protected by executive privilege, such a policy protects legitimate executive branch interests and is generally accepted by Congress as a matter of comity.

As we will see in my next post on this subject, this is also the best way to interpret OLC’s position on this issue for most of the “nearly five decades” it has offered advice on it.

 

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OLC’s Law Office History of Testimonial Immunity

On May 20, 2019, the Office of Legal Counsel released an opinion entitled “Testimonial Immunity Before Congress of the Former Counsel to the President,” in which OLC concludes that former White House counsel Don McGahn is constitutionally immune from being required to appear, much less testify, before the House Judiciary Committee. Before analyzing OLC’s substantive argument, I want to address two factual assertions it makes about historical practice and its own legal advice regarding this issue.

OLC makes two basic claims. First, it contends that executive branch practice “at least since the Truman Administration” provides a “strong historical foundation for the Executive Branch’s position that Congress may not compel the President’s senior advisers to appear and testify.” Second, it asserts that “for nearly five decades” the Justice Department has maintained that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.”

One might question the relevance of these assertions even if they were true. Neither the executive branch’s unilateral practice of objecting to congressional testimony by White House officials nor its internal opinions regarding the constitutional basis for this practice would constitute authority binding on the other branches, particularly in the absence of any evidence or even allegation of congressional acquiescence. Nevertheless, it is worth scrutinizing OLC’s claims if for no other reason than that it seems to place a great deal of reliance on them. Perhaps this is because, as Judge Bates observed in 2008, the only authority offered by the executive branch for the proposition that White House officials enjoy testimonial immunity is OLC’s prior opinions on the subject.

That being said, the historical record does not support either of OLC’s claims. Today we will look at the evidence with regard to OLC’s description of the historical record. In a future post we will look at its claims regarding its prior advice.

Practice Prior to the Nixon Administration. The Executive Office of the President dates back only to the 1930s, and OLC maintains that since that time “the long-standing policy has been to decline invitations for voluntary appearances and to resist congressional subpoenas for involuntary ones” with respect to White House officials.

OLC has identified only six instances in which White House officials attempted to refuse congressional invitations or demands for testimony during the period prior to the Nixon administration. In three of these cases, the official in question ultimately agreed to testify as the result of political or legal pressure (or both) exerted by Congress.

[Note: CRS has identified a couple of additional instances during the 1940s where White House officials testified regarding allegations they misused their positions for personal gain, but it is not apparent there was any objection in those cases. See CRS Report on Presidential Advisers’ Testimony Before Congressional Committees: An Overview 7-8 (Apr. 10, 2007).]

First, in 1944 during the Franklin D. Roosevelt administration, a Senate subcommittee subpoenaed a presidential aide, Jonathan Daniels, to testify about his reported attempts to compel the head of the Rural Electrification Administration to resign. The aide appeared but refused to testify based on his confidential relationship with the president. After the subcommittee unanimously recommended Daniels be held in contempt, the aide wrote to the subcommittee that he had conferred with the president, who had decided his testimony would not be contrary to the public interest, and was therefore willing to return to the Hill and testify.

A second instance (which is not mentioned in OLC’s May 20 opinion but comes from earlier OLC discussions of this period) concerns Donald Dawson, an aide to President Truman, who was asked in 1951 to testify before a Senate subcommittee investigating the Reconstruction Finance Corporation. Truman “reluctantly” gave permission to Dawson to testify because the inquiry included allegations of wrongdoing against Dawson and Truman wished to give the aide an opportunity to clear his name.

Finally, in 1958 during the Eisenhower administration, the president’s chief of staff, Sherman Adams, testified (with the president’s approval) before a House subcommittee regarding allegations he had improperly interfered with administrative proceedings for the benefit of a New England industrialist with whom he had a longstanding friendship.

On the other hand, OLC identifies three instances in which presidential advisers successfully refused to testify before Congress during this period. One concerned John Steelman, an aide to President Truman, who in 1948 refused subpoenas to testify before a House subcommittee about his communications with Truman regarding administration of the Taft-Hartley Act during a strike. Another also involved Sherman Adams, who in 1955 successfully refused an invitation from a Senate subcommittee to testify regarding a contract between the Atomic Energy Commission and two power companies. Finally, in 1968 an aide to President Lyndon Johnson, W. DeVier Pierson, declined to testify before the Senate Judiciary Committee regarding allegations that Associate Justice Abe Fortas, whose nomination to become chief justice was pending, had inappropriately been involved in drafting certain legislation while serving on the Supreme Court.

It is difficult to see how this history shows anything other than the fact that the White House generally prefers that its staff not testify before Congress. Indeed, in a 1971 internal memorandum (about which more later), Assistant Attorney General William Rehnquist described the practice during this period as “erratic” and noted that “[t]hese precedents are obviously quite inconclusive.” See Memorandum for John D. Ehrlichman, Assistant to the President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Power of Congressional Committee to Compel Testimony of “White House Staff” 4, 6 (Feb. 5, 1971) (“Rehnquist Memorandum”). This would seem to directly contradict OLC’s current assertion that these “precedents” provide a “strong historical foundation” for its constitutional theory.

Practice Since the Nixon Administration. While the  pre-Nixon history provides little or no support for OLC’s position, at least its description of that history appears to be fair. On the other hand, its description of the later history suffers from egregious cherry-picking. Although OLC acknowledges that its examples are “not exhaustive,” it implies that they fairly represent the practice during this period. This is not so.

Nixon administration. OLC cites the refusal of Peter Flanigan, a White House aide, to testify before the Senate Judiciary Committee regarding the nomination of Richard Kleindienst to be attorney general. Somehow it fails to mention that the White House relented within a few days and that Flanigan both appeared before the committee and answered written questions for the record. See Louis Fisher, The Politics of Executive Privilege 73 (2004).

Carter administration. OLC cites two examples of Carter White House aides declining to appear in public congressional hearings, but it neglects to mention that both the White House counsel and national security adviser appeared at congressional hearings regarding alleged misconduct by the president’s brother. Fisher, supra, at 202.

Reagan administration. OLC cites the refusal of the White House counsel to appear in person before a congressional committee (he did agree to answer written questions) regarding allegations of corruption against the secretary of labor. It does not mention President Reagan’s directive to all administration officials to cooperate with the congressional investigation of Iran-Contra, which resulted in a number of former White House officials testifying before Congress. Fisher, supra, at 62-64, 202.

Clinton administration. OLC cites President Clinton’s directive to Beth Nolan, counsel to the president, not to testify before a House committee regarding a clemency decision, but it does not mention that Nolan, along with a number of other former White House aides, testified before the same committee regarding Clinton’s subsequent pardons. Fisher, supra, at 219. It also overlooks the fact that “[a] series of congressional investigations throughout the Clinton years required a large number of White House aides to testify about procedures and actions involving contacts with the Treasury Department, the dismissals of employees in the Travel Office, Whitewater, and access to FBI files.” Fisher, supra, at 203.

Even where OLC acknowledges that presidential  aides have testified, it downplays the significance of these facts. For example, OLC acknowledges in a footnote that during Watergate President Nixon allowed current and former White House officials to appear before Congress, first in closed session and then later in open hearings. However, OLC interprets such occurrences as merely “accommodations” to Congress, as opposed to evidence that executive branch practice with respect to congressional testimony by presidential advisers has been inconsistent, non-absolute, or both. This approach renders OLC’s position non-falsifiable since it only counts evidence that supports it.

Conclusion

Rather than constituting a “strong historical foundation” for OLC’s claim of absolute immunity, the evidence supports Lou Fisher’s conclusion that while Congress does not call White House officials to testify regarding routine oversight matters, it does do so when the circumstances warrant, particularly in cases where these officials have an operational role or are fact witnesses to alleged misconduct. See Fisher, supra, at 226-227. Under these conditions White House officials have in fact testified, “and in large numbers.” Id. at 199; see also CRS Report, supra, at 7-20.

 

 

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A Better Way to Enforce Congressional Subpoenas?

In the course of writing the piece on enforcement of congressional subpoenas that I mentioned yesterday, I was looking for a copy of the House GOP white paper “A Better Way: Our Vision for a Confident America (The Constitution),” which was issued on June 16, 2016. At this time, of course, the Republican controlled Congress had experienced years of frustration in attempting to get information from the Obama administration (and, one has to imagine, was anticipating more of the same in a Hillary Clinton administration). As it turns out, finding a copy of this document online is more difficult than one would expect. Fortunately, I have located a hard copy in my files and post a link here for anyone who is interested (you’re welcome).

Among the proposals suggested by House Republicans in this paper was “expedited access to federal courts to enforce subpoenas” through legislation “requiring the executive branch to comply with deadlines in congressional subpoenas” and “providing a process for expedited court review when the House or Senate decides to bring litigation to enforce a committee subpoena, including expedited review by a three-judge panel at the district court level with immediate appeal to the Supreme Court.” These ideas would be incorporated into H.R. 4010, introduced by Rep. Darrell Issa, which passed the House in 2017 during the first session of the 115th congress but never received a vote in the Senate.

The white paper made two additional legislative proposals that did not make it into Issa’s legislation (at least in its final form). The first was to “clarify[] the nondiscretionary duty of a U.S. attorney to present a certified order for criminal contempt to a grand jury.” The second was to “statutorily eliminat[e] any privileges asserted by the executive branch when used against a congressional request for information.” Both of these would have been vigorously opposed by OLC and the executive branch on constitutional as well as policy grounds.

 

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Recalibrating the “Subpoena Cannon”

(I know some artillery expert from Quora is going to correct my title but you get the idea).

To continue the martial metaphors, the House’s investigatory offensive against the Trump administration is meeting stiff resistance on all fronts or, one might say, running into a stone wall. The administration is refusing to cooperate with any oversight or investigation it considers to be hostile or partisan (so, basically all of them). This noncooperation can take the form of refusing to comply with document requests or subpoenas outright, simply ignoring them, delaying a final response (as in the case of the Ways & Means committee request to the treasury secretary for the Trump tax returns), placing conditions on compliance (as where the White House is refusing to allow witnesses to testify at congressional depositions unless a representative from the counsel’s office is also allowed to attend), instructing or encouraging former executive officials or others not to comply with congressional demands (as the administration apparently plans to do with respect to the Judiciary committee subpoena to former White House counsel Don McGahn), and even bringing legal action to prevent third parties from providing information to Congress (as discussed in my last post).

The situation has given rise to much handwringing in Congress, where House Democrats are predictably characterizing the administration’s actions as “massive, unprecedented obstruction.” The frustration is entirely understandable, but I agree with Andy Wright that it is a bit overwrought to describe the situation as a “constitutional crisis,” particularly at this early stage. The basic problems are ones faced by Congress in every administration, even though the scope of the investigations and sheer number of information disputes is unusual. Moreover, while it may be accurate to describe the administration as engaged in unprecedented stonewalling, it should also be remembered that the Mueller report provides Congress with an exceptional degree of visibility into the areas of the administration about which it is most concerned.

It will come as no surprise to readers of this blog that the House faces a difficult set of challenges in responding to the administration’s recalcitrance because there is no clearly established mechanism for enforcing congressional subpoenas against the executive branch. If an executive branch official refuses to testify or produce documents based on the assertion of executive privilege at the direction of the president, the Justice Department has long maintained that it will not (and constitutionally may not) prosecute the official for contempt of Congress. See, e.g.,  Response to Congressional Requests for Information Regarding Decisions made Under the Independent Counsel Act, 10 OLC 68, 85 (Apr. 28, 1986). Thus, while a House committee may vote to hold this official in contempt and report the contempt to the full House, which in turn may adopt a resolution referring the matter to the U.S. attorney pursuant to 2 U.S.C. § 194, the U.S. attorney will not present the matter to a grand jury and thus the House’s action will be largely symbolic.

It should be noted, however, that this calculus is arguably somewhat different in the case of a former executive branch official. While it is clear that the executive branch would contend that a former official should obey the president’s instructions as to the assertion of executive privilege, and it is highly likely that it would employ similar reasoning to avoid presenting any contempt citation to a grand jury, there is at least some possibility that a future administration might reach a different conclusion, placing the former official in legal jeopardy. At the very least, the former official might worry that having a formal citation of contempt by the House on the record might generate legal expenses or other collateral consequences down the road.

With criminal contempt largely useless, then, the House is considering other options, including inherent contempt. Again, as readers well know, this is the process by which the House (or Senate) can send the Sergeant at Arms to take a recalcitrant witness into custody, bring him before the bar of the house to explain his refusal to testify, and remand him to custody until he changes his mind. Although members of Congress are starting to make noises about reviving this process (something that happens periodically whenever there is divided government), these threats are not very credible in light of the fact that the House has not used it in about a century.

To solve that problem, the estimable Mort Rosenberg has proposed a House rule that would use fines, rather than arrest and detention, as the primary means of forcing executive branch officials to comply with congressional subpoenas. Judiciary committee chairman Nadler has apparently raised this as a way “to put teeth in his party’s numerous investigative inquiries, many of which Trump officials are stonewalling or simply ignoring.”

Not surprisingly, the Justice Department has suggested that it would be unconstitutional to employ inherent contempt against executive branch officials in situations where (it claims) separation of powers principles prohibit the use of criminal contempt. See 10 OLC at 86. There are also obvious practical problems that would be involved with attempting to detain an executive official. See id. (“it seems most unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison an Executive Branch official who claimed executive privilege”). The House’s “cannon” is, after all, only metaphorical, and the executive branch has the Sergeant at Arms and the Capitol Police pretty well out-gunned. Imposing fines instead of imprisonment might mitigate, or at least postpone, this problem, but if the House wanted to have this option available it should have included it in the rules package that was adopted at the beginning of the congress.

Another suggestion is that the House could use political remedies, such as the appropriations process, to punish officials or agencies that refuse to comply with congressional demands for information. Professor Josh Chafetz is a big proponent of this technique. It seems to me that this can be effective when the resistance to congressional demands is coming from the agency level, but it is much harder to do when it is coming from the president (and harder still with this president). To the extent the House has leverage in the appropriations process vis a vis the Senate and the president, it is likely to use it for higher priority items than winning disputes over information access. Put another way, I don’t see the House shutting down the government to get an unredacted copy of the Mueller report.

This leaves what is most commonly thought of as the House’s best legal remedy, a civil action seeking declaratory or injunctive relief to enforce its right to obtain information. Most commonly, this would take the form of an action to enforce a subpoena, but other actions are also possible. For example, the Ways & Means committee could bring suit to enforce its statutory rights to obtain tax return information under 26 U.S.C. § 6103(f). Note that such an action would be analogous to an action to enforce congressional rights to information under 5 U.S.C. § 2954 (commonly known as the Rule of Seven), which is at issue in the case of Cummings v. Murphy currently pending in the D.C. Circuit (though likely presenting a stronger case for congressional standing than Cummings if the committee’s action were authorized by House resolution).

Civil enforcement of subpoenas presents its own set of challenges, namely (1) the absence of any clearly defined process for bringing such actions and unsettled legal issues of justiciability; (2) the fact that courts do not like to be in the middle of political disputes between the legislative and executive branches; and (3) the length of time that it would take to obtain a final enforceable court order, particularly because even if the House prevails at the district court level there will be inevitable appeals to the D.C. Circuit and the Supreme Court. Some of these problems could have been mitigated had the House adopted a brilliant proposed rule (still my blog) on civil enforcement of subpoenas, but alas it failed to do so. Nevertheless, civil enforcement remains the most promising avenue for legal vindication of the House’s constitutional rights. Continue reading “Recalibrating the “Subpoena Cannon””

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How Much of the Mueller Report Will Barr Disclose?

On March 22, 2019, Attorney General Bill Barr notified Congress “pursuant to 28 C.F.R. § 600.9 (a) (3) that Special Counsel Robert S. Mueller III has concluded his investigation of Russian interference in the 2016 election and related matters.” He further informed it that he was in receipt of the special counsel’s “confidential report explaining the prosecution or declination decisions” made in the course of the investigation. Barr advised that he was reviewing the report and anticipated advising the Congress of the special counsel’s “principal conclusions” possibly as early as this weekend. Finally, Barr indicated that he would consult with the special counsel and deputy attorney general “to determine what other information from the report can be released to Congress and the public consistent with the law, including the Special Counsel regulations, and the Department’s long-standing practices and policies.” This latter process will apparently be separate from the advice regarding the “principal conclusions” and presumably be on a longer timeline.

We don’t know, of course, what the long-anticipated “Mueller report” actually says, and we also don’t know how detailed it is. As Barr notes, the regulations only require the special counsel to explain the prosecution and declination decisions he has made. With respect to prosecution decisions, this could simply consist of a summary of publicly available information as the basis for each prosecution is readily inferred from indictments and other court filings. The scope of declination decisions is a bit trickier. Presumably this could include anyone who was identified as a subject or target of the investigation but not ultimately indicted. It might include anyone whom the special counsel seriously considered indicting but did not. It might include the president, but then again it might not because the president cannot be indicted (according to a longstanding Justice Department view) and therefore there was no declination decision for the special counsel to make.

There is also considerable room for interpretation as to what the special counsel’s “explanation” of his decisions should look like. Read narrowly, it could simply consist of a list of individuals charged or not charged along with a brief statement of the reason (e.g., “Individual 1 was not charged with obstruction of justice due to insufficient evidence of corrupt intent.”). But it could reasonably be read much more broadly to allow the special counsel to provide a road map of all the investigatory steps he took and evidence he accumulated so that the reader fully understands why the special counsel reached the decisions he did.

One thing that is clear, however, is that the intended audience for the special counsel’s report is not Congress or the general public. The regulations provide for a “confidential” report to the attorney general only. See 28 C.F.R. § 600.8 (c). In promulgating the special counsel regulations in 1999, the Clinton Justice Department made clear that this report was not to be shared with Congress or the public:

Much legitimate concern has been expressed about the Final Report requirement of the Independent Counsel Act, with respect to both the incentives it creates to over-investigate a matter and the fact that, since it often becomes a public document, it can do harm to legitimate privacy interests. On the other hand, it is appropriate for any federal official to provide a written record upon completion of an assignment, particularly a federal official who has functioned with substantial independence and little supervision. In major cases, federal prosecutors commonly document their decisions not to pursue a case, explaining the factual and legal reasons for the conclusions they have reached.

The principal source of the problems with the Final Report requirement as set forth in the Independent Counsel Act is the fact that the Report typically has been made public, unlike the closing documentation of any other criminal investigation. This single fact both provides an incentive to over-investigate, in order to avoid potential public criticism for not having turned over every stone, and creates potential harm to individual privacy interests.

Therefore, these regulations impose a limited reporting requirement on all Special Counsels, in the form of a summary final report to the Attorney General. This report will be handled as a confidential document, as are internal documents relating to any federal criminal investigation. The interests of the public in being informed of and understanding the reasons for the actions of the Special Counsel will be addressed in the final set of reporting requirements, discussed below.

64 Fed. Reg. 37038, 37041 (July 9, 1999).

This language suggests that the special counsel report should be similar to other declination reports written by federal prosecutors, but need not be as comprehensive as an independent counsel report. In any event, it is treated as an internal Justice Department document, the kind that the executive branch has argued should be considered “the crown jewels of executive privilege” (see here at pages 15-19) and may not be shared with Congress or the public.

But what of the public’s interest in being informed of the reasons for the special counsel’s actions, alluded to in the last sentence of the Federal Register notice? This is addressed in the following special counsel regulation:

The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action-

     *   *   *

(3) Upon conclusion of the Special Counsel’s investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

28 C.F.R. § 600.9 (a).

It should be noted that Barr’s letter of March 22 already notified the committees of the conclusion of the special counsel’s investigation and the fact that there had been no instances of the attorney general nixing a proposed action of the special counsel. It therefore satisfies the requirements of the regulation with the arguable exception of the “explanation for each action,” which presumably refers to an explanation for the termination of the special counsel’s investigation.

Exactly what is meant by this “explanation” is unclear. As Professor Marty Lederman notes, it “might conceivably consist of only a brief outline explaining why Mueller closed up shop, which is all the regulation formally requires.” It seems likely that this is what Barr is referring to when he speaks of the special counsel’s “principal conclusions.” This might be something on the order of a very summary description of the special counsel’s findings without getting into specifics of particular declination decisions. Any greater detail would seem to be more than what the regulation requires.

Lederman argues, however, that this is “merely a floor, not a ceiling.” Barr seems to be thinking along similar lines when he states he will consult with Mueller and Deputy Attorney General Rod Rosenstein to determine whether additional information can be released consistent with the law and DOJ practices and policies. But this additional information release would seem to be beyond the scope of the regulation itself. If the intent of the regulation were to authorize the attorney general to release any part of the special counsel report not otherwise prohibited by law, it picked an awkward way of expressing it.  And if this is Barr’s interpretation, he cannot claim to be legally required to withhold anything other than grand jury information.

In short, it is hard to see how one parses the applicable rules to allow disclosure of only a portion of the Mueller report. The report in essence is a glorified declination memorandum, and either Barr is free to release Mueller’s explanation for his declination decisions or he is not. If he is, it is hard to see how that will not involve getting into both the details of internal prosecutorial decision making (of the kind Lederman correctly notes DOJ does not like to share) and factual information that will impinge upon individual privacy interests. If he is not, it would seem he can share little beyond the report’s “principal conclusions.”

It should be noted that the above analysis is based on the logic of the executive branch’s own regulations and policies. It is not determinative of what would (or should) happen in a legal or constitutional fight between Congress and the executive over access to the Mueller report. There is also an interesting question about the right of White House counsel and the president’s personal lawyers to the Mueller report. It has been reported that the White House will be allowed to review the report for purposes of making executive privilege claims (primarily, one would imagine, those related to the presidential communications branch of the privilege) before it is disclosed to Congress. But will that review encompass the entire report, or only that portion which Barr decides can otherwise be disclosed?

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Some Preliminary Thoughts on the House Judiciary Document Requests

Yesterday the House Judiciary Committee issued document requests to 81 individuals, government agencies and other organizations. The cover letter from Chairman Nadler explains that the committee “is investigating a number of actions that threaten our nation’s longstanding commitment to the rule of law, including allegations of obstruction of justice, public corruption, and other abuses of power.” As Spencer Ackerman put it more colorfully, the committee wants the files of “anyone who might know anything about any allegation about wrongdoing by President Trump, encompassing everything from obstruction of justice to collusion with Russia to paying off potential ex-mistresses.”

At the outset it should be noted that these are document requests, not subpoenas, and therefore do not impose any legal obligation on the recipients, with two caveats. First, the requests put the recipients on notice that the documents are relevant to and being sought in a congressional proceeding, thus establishing or helping to establish one or more elements of obstruction of Congress should any of this evidence later be altered or destroyed.

Second, although there is no legal enforcement mechanism, by practice and policy it is expected that government agencies will respond in good faith to congressional requests for information. See Letter Opinion for the Counsel to the President from Curtis E. Gannon, Acting Asst Atty Gen. for the Off. of Legal Counsel, at 3 (May 1, 2017) (“Upon receipt of a properly authorized oversight request, the Executive Branch’s longstanding policy has been to engage in the accommodation process by supplying the requested information ‘to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.'”) (quoting the Reagan memorandum of 1982); see also Letter from Senate Judiciary Chairman Charles E. Grassley to President Donald Trump at 6 (June 7, 2017) (“the Executive Branch should work to cooperate in good faith with all congressional requests to the fullest extent possible”). It is therefore likely the government recipients (the White House, Department of Justice, FBI, and General Services Administration) will provide some sort of timely response to the committee’s requests.

We can also anticipate, however, that these agencies will contend that the requests are inconsistent with their “constitutional and statutory obligations” in several respects. A number of the requests implicate matters (national security and foreign policy, exercise of the pardon power, discussions between high level advisors and the president personally) that traditionally lie at the heart of the doctrine of executive privilege. See generally Mark J. Rozell, Executive Privilege 49-61 (1994). It seems doubtful that the Trump administration will produce these materials without a fight.

The Judiciary committee has tried to forestall this objection by limiting the initial production to documents already produced to other investigative bodies, such as the Special Counsel’s office and the U.S. Attorney for the Southern District of New York. The administration, however, can be expected to argue that sharing information within the executive branch does not waive the privilege with regard to congressional requests.

The administration will also probably contend that the committee’s requests impinge upon open criminal investigations and violate grand jury secrecy rules. In particular, the document requests to the Justice Department and FBI would seem to encompass materials that these organizations or their components have gathered in their investigative capacities. If so, the administration may argue that the committee is essentially trying to obtain the work product of the Special Counsel and the SDNY.

Another category of recipient to keep an eye on consists of former Trump administration officials, including former Attorney General Jeff Sessions, Chief of Staff Reince Priebus, White House Counsel Don McGahn and many others. These individuals are in a tricky situation. They may have varying degrees of interest in cooperating with the committee, but they are unlikely to want to produce information over the administration’s objections. On the other hand, they probably do not want risk contempt (a possibility if and when the committee issues subpoenas) or incur enormous legal fees by fighting with the committee either.

I suggested on Twitter, half jokingly, that Tom Bossert (the former homeland security advisor and one of the lucky recipients) should interplead the committee and the administration. In all seriousness, though, the former officials might want to consider bringing an action to ask a court to declare whether they should abide by the instructions of the White House or those of the committee. Such an action would certainly be more meritorious (which is not to say necessarily successful) than Jim Comey’s lawsuit against the committee last December.

The remaining 60 or so recipients are individuals and organizations with a variety of interests and legal postures vis a vis the committee’s requests. One (as far as I know) is the president’s personal lawyer, Jay Sekulow, who will presumably assert attorney-client privilege in response to most if not of all of the committee’s requests. Others are foreigners (e.g., Julian Assange, Wikileaks) who will probably ignore the committee’s requests unless it can figure out how to subject them to legal compulsion. Each recipient will have to make a decision about whether and how much to cooperate with the committee based on his/her/its individual situation and interests.

The only thing we can say for sure is there will be no shortage of congressional legal issues to discuss.