Category: Executive Privilege

Posted on

Harriet Miers and Assertions of Executive Privilege for Former Officials

Several months ago we discussed whether the president could assert executive privilege to prevent a former official (in that case, former FBI Director Jim Comey) from providing information to Congress, even if the former official wanted to disclose the information. Eric Columbus, a lawyer who had served in the Obama Justice Department, argued that the answer is no. The core of his argument was that there was no legal mechanism to prevent a former official from voluntarily disclosing privileged information to Congress or to anyone else.

In response to Columbus, I noted that executive privilege belongs to the president, not to subordinate officials, and “it is hard to see why the availability of the privilege should turn on the subordinate’s preferences.” The issue I saw was procedural. If the former official declines to obey the president’s instruction to assert executive privilege, and the congressional committee declines to allow the administration to raise its objections directly, the burden would be on the administration to bring a lawsuit to restrain the former official from testifying. An analogous suit was brought by the executive branch to prevent AT&T from complying with a congressional subpoena in the 1970s. See United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977).

In a subsequent article, Columbus acknowledged the possibility of the executive bringing such an action, but argued that it “would almost surely be laughed out of court.” He contended that “[a] court could not enjoin Comey from testifying unless it could fathom a rationale that would also bar Comey from revealing the same information by writing a book, going on the Sunday shows, taking to Twitter or chatting at his local bagel shop.” The premise of Columbus’s argument was that because Comey was eager to provide information to Congress and/or the general public, there was no way for a court (or anyone else) to stop him. Columbus distinguished Comey’s situation from that of a “reluctant” former official, who does not “really” want to testify or provide the information demanded by Congress.

In going through some files the other day, I came across materials related to Harriet Miers, who served as White House counsel in the Bush administration and who is Columbus’s example of a “reluctant” former official subpoenaed by Congress. Contrary to Columbus, it seems to me that the Miers case is basically on all fours with the Comey situation, and I will take this opportunity to explain why. (It also enables me to clean out some old files, so yah!)

About 10 years ago the House Judiciary Committee, then chaired by Representative John Conyers (D-Mich.), conducted an investigation of the Bush administration’s firing of certain U.S. attorneys. In the course of this investigation, the committee issued subpoenas for documents and testimony to several current or former White House officials, including Miers.

Continue reading “Harriet Miers and Assertions of Executive Privilege for Former Officials”

Posted on

Comey’s Choice: Congress or the Press

Former FBI Director Jim Comey’s decision to “leak” (a word which itself has generated controversy in this connection) the contents of his memos of conversations with President Donald Trump to the New York Times has led to much pontificating, but indulge me while I engage in a little more. My interest focuses on the question of why Comey chose to make his revelations first to the media, rather than to Congress.

Much of the commentary seems designed to attack Comey’s credibility by demonstrating that the disclosure to the Times was illegal or improper or, conversely, to bolster his credibility and undermine his critics by arguing the opposite. But the legal and ethical questions surrounding the “leak” (last time in quotes, I promise) are sufficiently murky that their relevance to the believability of Comey’s underlying testimony (particularly if that testimony is supported by contemporaneous memoranda) seems somewhat tangential. Frankly, under the circumstances I can understand how Comey would have been sorely tempted to bend the rules regarding disclosure if that were the only way to get his side of the story out.

Put yourself in Comey’s shoes. It is May 9, 2017, and you have just received a letter from President Trump, along with two enclosures, a letter from Attorney General Jeff Sessions and a memorandum from Deputy Attorney General Rod Rosenstein. The Rosenstein memo explains that you made “serious mistakes” in your handling of Secretary Hillary Clinton’s emails, as a result of which “the FBI’s reputation and credibility have suffered substantial damage” and “the entire Department of Justice” has been affected. The memo, while not quite explicitly recommending you be fired, concludes by saying “the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them.”

The one paragraph letter from Attorney General Sessions to President Trump recommends that Trump remove you as FBI director. Sessions explains that “[b]ased on my evaluation, and for the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI.”

Last but not least, Trump’s own letter informs you that he is accepting the “recommendation” of the attorney general and deputy attorney general, and “you are hereby terminated and removed from office, effective immediately.” The president goes on to elaborate (graciously, he no doubt thinks): “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.”

For purposes of discussion, we will assume you are well aware that many, many people have criticized your handling of the Clinton email investigation, and not a few of those have urged you be removed as FBI director. But you believe that this is not at all why Trump decided to fire you. And you have the evidence to prove it, in the form of contemporaneous memoranda recording a series of meetings and telephone discussions with the president over the past 5 months. These documents show (at least in your view) that Trump fired you because of your handling of the Russia investigation, including the failure to show adequate personal loyalty to Trump in the conduct of that investigation, the failure to “let go” of an inquiry into certain activities of former National Security Advisor Michael Flynn, and your unwillingness or inability to “lift the cloud” which the Russian investigation had cast over the Trump administration.

I think you can understand that anyone in this situation would feel impelled to come forward and bring these memos to the attention of the public and the proper authorities. What I find more difficult to explain is why Comey thought it necessary to have a friend anonymously leak the story to the New York Times, when he could have simply informed the relevant congressional committees, including the Senate Select Committee on Intelligence, that he was in possession of the memos and prepared to testify about their contents.

There are situations where press coverage is needed to attract public and congressional attention to a particular issue, but this was certainly not one of those. Even Michael Schmidt, the New York Times reporter who first wrote about the Comey memos, acknowledged as much on the day Comey was to testify before SSCI:

Q. Has Comey been called to testify in front of the Senate today because of your reporting?

Schmidt. It was certainly a catalyst, but Comey was going to have to go up there at some point and they were going to want to hear from him.

N.Y. Times Podcast, The Daily, 6-8-17 at 9:08.

With this background, let’s look at the legal and ethical issues raised by Comey’s leak to the Times.

Continue reading “Comey’s Choice: Congress or the Press”

Posted on

Comey and Executive Privilege (with Update)

[See Update below]

Former FBI Director Jim Comey is scheduled to testify before the Senate Select Committee on Intelligence (SSCI) next week. He is expected to be asked questions about certain subjects, including his personal conversations with the president, that might be the subject of executive privilege claims. However, because Comey is testifying voluntarily and presumably would like to share this information with the committee, the question arises whether there is any effective method for the administration to stop him from answering questions it believes to be invasive of executive privilege.

In a Twitter thread, Eric Columbus, a former lawyer in the Obama administration, argues that the answer is no. He contends that the privilege only protects a witness from being compelled to provide information. It does not apply, he suggests, to the voluntary testimony of a former government official, just as it does not prevent former officials from writing books or giving interviews in which they discuss conversations with the president or other communications that might fall within the scope of executive privilege. As Columbus puts it, “I know of no precedent for blocking a FORMER official who WANTS to testify.” (all caps in original; its Twitter after all).

To the extent Columbus is suggesting that the applicability of executive privilege turns on whether the former official wants to testify, this seems wrong. The privilege belongs to the president, not to the subordinate official, and it is hard to see why the availability of the privilege should turn on the subordinate’s preferences.

Columbus makes an interesting point about the fact that former officials often write books or make other public disclosures about matters that could be covered by executive privilege. It could be that executive privilege, having developed as an evidentiary doctrine in formal proceedings, simply does not apply to such situations or, alternatively, that it does apply but there is no method of enforcing it. Broad gag orders against former executive branch officials (e.g, requiring them to get preclearance before speaking about their time in office, or threatening sanctions if they make public disclosures that in the judgment of the president or his lawyers violate executive privilege) would raise some tricky First Amendment issues, which we have discussed in the context of analogous prohibitions on congressional staffers. But these issues do not have much bearing on Comey’s testimony in a formal congressional proceeding.

The real problem here is procedural. Assuming for the sake of argument that the president has a valid or at least plausible executive privilege objection, how can that objection be raised in this situation?

The most straightforward answer would be for the executive branch to communicate to Comey (presumably through a lawyer who would attend the hearing) which questions it believes intrude upon executive privilege. Comey would then inform the committee of this objection, and it would then be up to the chairman to decide how to proceed. Comey might refuse to play this role, but I doubt he would do so. It is in his interest to remain above the fray to the extent possible, and to let the real parties in interest (the committee and the executive branch) battle it out.

Even if Comey declines to cooperate, the committee would probably allow the executive branch to raise its objections directly (presumably by having its lawyer stand up and object on a question by question basis). This would be a highly unusual procedure, and it might be contended that the committee’s rules do not permit it. SSCI Rule 8.6 provides that “[a]ny objection raised by a witness or counsel shall be ruled upon by the Chairman or other presiding member, and such ruling shall be the ruling of the Committee unless a majority of the Committee present overrules the ruling of the chair.” The “counsel” referred to here is counsel for the witness, and in this case the government counsel would not be appearing in that capacity. I suspect, though, that SSCI would make an allowance for this unusual situation.

Assuming the executive branch has the opportunity to raise the objection, it is up to the chairman to rule on the objection in the first instance. I imagine there could be some dispute as to whether Rule 8.6 requires the chair to rule immediately or permits him to take the matter under advisement, but let’s assume eventually there is a final ruling from the chair/committee. At that point I expect that Comey would comply with the ruling, as he is under no obligation to risk being held in contempt. This procedure would therefore leave the resolution of the issue ultimately in the control of the committee.

The administration’s only alternative would seem to be to bring an action in federal court against Comey (the Speech or Debate Clause prohibits it from suing the committee). The suit would ask for declaratory and injunctive relief prohibiting Comey from testifying on certain subjects or providing certain information to Congress. The executive branch used this method in the 1970s in an attempt to prevent AT&T from complying with a congressional subpoena. See United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977). Although that case involved national security information, there is no reason in principle why the same method could not be used to resolve a different type of executive privilege issue. Whether the Trump administration wants to take the political heat from bringing such a suit, or whether it is confident that its legal position would ultimately be vindicated in court, are different questions.

UPDATE:

In a follow up exchange on Twitter, Columbus expresses doubt that a court could grant a remedy to the executive branch under the circumstances here. His argument is that the court could not enjoin Comey from discussing the same matters outside of Congress (e.g., it couldn’t stop him from going on the Sunday talk shows to discuss his conversations with the president) so logically it could not enjoin him from talking to Congress either. Essentially he is arguing that because the court cannot grant effective relief, it should dismiss the executive branch’s (hypothetical) lawsuit against Comey for lack of standing.

I agree that a court might accept this argument, but I don’t think it is a slam dunk. To begin with, it assumes that a court would take as a given that a former executive official cannot be enjoined from publicly disclosing confidential (but non-classified) presidential communications contrary to POTUS’s instructions. As far as I know, no such case has been brought, much less decided. While I tend to agree with Columbus that there would be serious problems with such a suit (including First Amendment prior restraint issues), the matter is not so clear that a court would necessarily want to predicate its decision in our hypothetical suit on a prediction about the outcome of this different and more novel case.

Moreover, even if we assume Comey could not be enjoined from disclosing presidential communications outside Congress, it does not follow that such disclosures would be legal or proper. Nor is it guaranteed they would be without consequence. For example, a former official might find his security clearance in jeopardy or face a bar complaint (if, like Comey, he is a lawyer). These potential consequences make it less likely a court can simply assume that Comey (or any former official) would be free to divulge presidential communications in a public setting.

Finally, a court’s view of this issue may very well depend on the position Comey himself takes in our (hypothetical) litigation. As a long time executive branch lawyer, Comey would probably be reluctant to suggest it is generally appropriate for former officials to divulge confidential presidential communications. Such a stance would be at least in tension with the executive branch’s approach to executive privilege, and it might have ramifications for the ability of future presidents to have candid discussions with their FBI directors. I am also not sure Comey would want to open himself up to questioning generally about his discussions with Presidents Trump, Obama or Bush. So I would guess he would be cautious about asserting any general right (much less intent) to make public disclosures about these matters.

I would note that in the course of my exchange with Columbus, a number of tweeters chirped in with comments along the lines of: “If Comey can’t testify before Congress, why wouldn’t he just go on Rachel Maddow or some other cable show and spill the beans there? That’s what I would do!”

The short answer to this is: “Because he’s Comey, not you.” The somewhat longer answer is that I don’t know what Comey might do, but I think he has a number of personal and institutional incentives, alluded to above, not to do that.

In any event, I agree with Columbus that there is a risk that the hypothetical lawsuit against Comey could be dismissed on jurisdictional grounds, but I don’t assess this risk as being as high as he does. If I were advising the president, I would be more concerned with the political cost of bringing such a lawsuit in the first place, as well as the distinct possibility that the executive branch could lose on the merits.

Based on the latest news, though, it sounds like the administration is backing away from asserting executive privilege at all with respect to Comey’s testimony before SSCI.

 

 

 

 

 

 

 

 

 

 

Posted on

The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?

The Court’s Decision

Judge Amy Berman Jackson recently issued her decision in the subpoena enforcement action brought by the House Committee on Oversight and Government Reform (COGR) against the Attorney General. The case arose out of an October 11, 2011 subpoena from COGR to then-Attorney General Holder seeking documents in the “Fast and Furious” investigation. Holder refused to produce certain responsive documents on the ground that they were protected by the deliberative process privilege.

On June 19, 2012, the day before COGR was to vote on a resolution holding him in contempt, Holder asked President Obama to assert executive privilege with regard to the disputed documents. The next day Deputy Attorney General Cole informed COGR that Obama had done so. COGR and the House then proceeded to find Holder in contempt, and COGR was authorized to bring a civil enforcement action in federal court.

Continue reading “The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?”

Posted on

If the Washington Administration Had an Office of Legal Counsel . . .

To:  Edmund Randolph, Attorney General of the United States

From:  Paul Colborn (J.D. expected May 1793), Office of Legal Counsel

Date: April 1, 1792

Re: Assertion of executive privilege in response to congressional requests for information

In preparation for tomorrow’s cabinet meeting, you have requested the opinion of this office on a matter of some delicacy. On March 27, the House of Representatives appointed a special committee to conduct an investigation of recent military operations initiated by Major General Arthur St. Clair, the governor of the Northwest Territory. As this represents the first time the House has authorized an investigation of this sort, our response will set an important precedent.

To briefly review the relevant facts, for the past several years the United States has been engaged in both diplomatic negotiations and military conflict with Indian nations in the Northwest Territory. Pursuant to orders from President Washington, in 1790 St. Clair sent General Josiah Harmar to lead a punitive expedition against the more recalcitrant elements of the indigenous population. This effort did not go well. Harmar lost about 200 men in battle and did not achieve his objective.

Last year St. Clair personally led another offensive against the Miami Indians in the Ohio region. The results were even worse. On November 4, 1791, St. Clair’s army was surrounded and completely destroyed by Indian forces. In a letter to the Secretary of War, St. Clair described this “as unfortunate an action as almost any that has been fought.” 3 Annals of Congress 1055. St. Clair is now considering an early retirement.

The House has empowered its committee “to call for such persons, papers and records, as may be necessary to assist their inquiries.” 3 Annals of Congress 493. Pursuant to this authority, the committee has made a broad request to the President for documents that might shed light on the causes of St. Clair’s defeat. We view this as a “fishing expedition” for politically explosive or embarrassing information that might gain the committee members some attention in the press.

The President has asked his cabinet for advice on how to respond to the committee request. Specifically, he wishes to know whether the House has the constitutional authority to seek the information requested and whether he may or should withhold any of the responsive documents.

We accept that the House is an inquest and is entitled to request documents and other information from the executive branch. See generally Mort Rosenberg, Congressional Oversight Manual (1st ed. 1791). However, this principle must be limited by a doctrine we have termed “executive privilege,” which subsumes the privileges set forth below: Continue reading “If the Washington Administration Had an Office of Legal Counsel . . .”

Posted on

The Solyndra Subpoenas and the White House Response

The House Energy and Commerce Committee has issued subpoenas to the White House Chief of Staff and the Chief of Staff to the Vice President, seeking documents relating to the Solyndra loan scandal. Specifically, each subpoena asks for “[a]ll documents referring or relating in any way to the $535 million loan guarantee issued to Solyndra, Inc. by the Department of Energy.” This is the only request made by the subpoenas. Although they provide a non-exclusive list of examples that would be responsive to the request, they ask for no other documents.

In this letter, the White House Counsel Kathryn Ruemmler responds that the subpoenas are “unprecedented.” Unprecedented in what sense? Obviously, congressional committees have issued numerous subpoenas to prior administrations, including subpoenas seeking documents and testimony from White House officials. Such subpoenas were rare before Watergate (and virtually unheard of before World War II), but they have become rather commonplace since. Here are some examples of congressional subpoenas issued to the Bush Administration. During the Clinton Administration, House Government Reform Committee Chairman Dan Burton became something of a legend for the number of subpoenas he issued (reportedly over a thousand), including many to the White House.

Perhaps there is something about these particular subpoenas that makes them, in Ruemmler’s view, “unprecedented.” But nowhere in her letter does she explain what that might be.

Instead, her primary objection seems to be that the subpoenas are “overbroad.” She characterizes the document request as “extremely broad” because it “encompasses all communications within the White House from the beginning of this Administration to the present that refer or relate to Solyndra,” and she suggests that “any document that references Solyndra, even in passing, is arguably responsive to the Committee’s request.” She contends that responding to such an “expansive request” would place “an unreasonable burden on the President’s ability to meet his constitutional duties.” As an example, she cites the fact that the subpoenas would require producing “thousands of pages of news clips” literally responsive to the requests.

It is hard to characterize this objection as anything but silly. Asking the White House to produce all documents relating to a single small company is hardly placing an undue burden on the presidency. Federal agencies routinely respond to subpoenas and FOIA requests that are far broader in scope. All that needs to be done is to identify those locations most likely to contain responsive documents and to conduct a reasonable search thereof. Since most if not all of those locations will consist of electronic databases, a single search containing the word “Solyndra” would likely suffice.

Continue reading “The Solyndra Subpoenas and the White House Response”

Posted on

More Legal Misinformation About Congress

If there were an award for cramming the most amount of legal misinformation into the shortest segment, Friday’s edition of “Nightly Scoreboard” would surely earn a nomination. The subject was a potential congressional subpoena for White House emails concerning Solyndra, and the discussion took place between host David Asman and former federal prosecutor Annmarie McAvoy.

The premise of the piece was that a congressional subpoena for presidential emails would be “unprecedented” and would raise novel issues of executive privilege and separation of powers. McAvoy explained that “[t]here are certain communications that are not available to the Congress.” The following colloquy ensued:

 McAvoy: The argument will be made that the President has to be able to have full and free and open communications with those who are advising him, be those his senior staffers or be those other people in the industries that he is looking at who can come to him and openly talk to him and that he can communicate with them without having to worry about those communications going over to Congress.

 Asman: But have those statutes even been written- about emails- because this is new territory we’re in?

 McAvoy: It is and it raises a very interesting question because what happens is as we have new technologies essentially the law has to eventually catch up with the technology and it hasn’t as of yet. So they’ll be looking at your basic laws relating—and cases relating—to executive privilege in trying to figure out where this would fit in but there really isn’t a statute that directly applies to emails because it didn’t exist beforehand and none of the presidents before Obama had ever used email.

  Continue reading “More Legal Misinformation About Congress”