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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.

 Ok, first of all, there is nothing new or unprecedented about Congress issuing subpoenas for emails. Since at least the 1990s, congressional subpoenas for documents have typically been accompanied by a standard definition of “documents” that broadly encompasses many types of electronic information, including emails. (For an example of a 1998 subpoena, see Appendix A to this report). As far as I know, no one has suggested that Congress’s authority to obtain emails is any less than its authority to obtain other types of documents.

Second, Congress has frequently sought and (somewhat less frequently) obtained emails from the executive branch, including the White House. There was, some may recall, a congressional investigation of missing White House emails during the Clinton Administration, which resulted, according to this congressional report, in the White House spending over $12 million to reconstruct emails for review by the House Government Reform Committee and providing thousands of pages of White House emails to the committee, including emails between the Vice President and his staff.

Third, while it may be true that President Obama is the first president to have a personal email account, this has absolutely no bearing on the executive privilege issue. Lets say the White House counsel wants to send a memo to the President. The memo could be printed out and hand delivered to the Oval Office, or it could be emailed to an assistant and printed out for the President’s review, or it could be emailed directly to the President. The method of delivery is completely irrelevant to whether the memo is privileged.

Emails to or from the President would no doubt raise significant executive privilege issues, but these would be no different than those raised by, say, tapes of presidential conversations in the Oval Office.  The doctrine of executive privilege is neither absolute nor unlimited, as President Nixon found out when he was required to surrender such tapes to the grand jury (and eventually to Congress). Moreover, contrary to McAvoy’s suggestion, emails (or other communications) between the President and individuals outside of the government, such as officials at Solyndra or other green energy companies, would probably be entitled to no protection at all.

Fourth, I have no idea what “statutes” Asman and McAvoy are talking about. There is no statute that governs claims of executive privilege, which is a judicially created doctrine. The only statute that might bear on a congressional subpoena to the White House would be the congressional contempt statute, 2 USC 192. While it is true that this statute long predates the existence of email (or, for that matter, of the telephone), no one has argued that it is inapplicable to a refusal to provide emails. Certainly the executive branch (which has a rather strong interest in preserving its own authority to obtain emails) is not going to make such an argument.

Which brings me to the question of how congressional subpoenas are enforced, which Asman and McAvoy appear not to understand. McAvoy indicates that if the President refused to comply with a subpoena, Congress would have to go to court to enforce its demands, and “the courts may or may not force him to comply.” She then suggests that the case “most likely would go all the way up to the Supreme Court,” to which Asman responds “that could take weeks or months.”

Weeks? To get a dispute between Congress and the executive branch to the Supreme Court? Before such a dispute can go to the courts, first the committee and then the House would have to vote to hold the recipient in contempt. That alone will take weeks or months. In the very unlikely event that the House decided to proceed to court, it would take years before such a dispute could reach the Supreme Court, during which time the Congress would have expired and the case in all likelihood would be moot.

As I have pointed out before, no court has ever ordered the President or any executive branch official to comply with a congressional subpoena. No dispute regarding a congressional subpoena has ever reached, much less been decided by, the Supreme Court. That, among many other reasons, is why it is highly unlikely that Congress would take this dispute to court. It is far more likely that any dispute will be resolved by political negotiation or through other enforcement mechanisms available to Congress.

If you would like to know more about these enforcement mechanisms, see Josh Chafetz’s forthcoming article, “Congress’s Constitution”. In the meantime, try not to pay too much attention to the talking heads on television.

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