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Bannon, Garland and Contempt of Congress: Part III (The Garland Contempt)

I know, I know. With all that has been going on in the political world over the last couple of weeks, a battle over congressional contempt seems like small potatoes. But I will try to convince you in this post that it is more important than at first it might appear.

In my last two posts I set forth legal background on the congressional contempt statute and discussed the contempt conviction of Steve Bannon. Today we will cover another recent contempt proceeding involving Attorney General Merrick Garland, who is refusing to comply with subpoenas issued by two House committees (Judiciary and Oversight & Accountability) for the audio files of Special Counsel Robert Hur’s interview of President Joe Biden. Garland has asserted that the audio files are protected by executive privilege, in accordance with an OLC opinion (not publicly available) and a formal assertion of privilege by President Biden. The committees reported this contempt to the House (see here for the Judiciary report and here for the Oversight & Accountability report), which certified the contempt pursuant to 2 U.S.C. §194. A few days ago the committees filed a civil suit to enforce the subpoenas, and there is also an inherent contempt resolution which has been introduced regarding the matter.

The dispute relates to one hot topic of political controversy due to the nature of the underlying materials that the House committees seek. They want the audio files of the Biden interview, despite having the transcript, because they believe the actual recording of Biden’s answers will provide additional information relevant to their inquiries, including “whether sufficient grounds exist to draft articles of impeachment against President Biden for consideration by the full House of Representatives and to determine if legislation is needed to codify procedures governing the Department’s special counsel investigations or to strengthen the Department’s commitment to impartial justice.” Resolution Recommending that the House of Representatives Find United States Attorney General Merrick B. Garland in Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued by the Committee on the Judiciary, H.R. Rep. 118-527, at 2 (2024) (“Garland Contempt Report”). Notwithstanding the somewhat vague explanations as to exactly why the committees need this information, it is apparent that they want to see whether the audio files shed light on the state of Biden’s mental faculties and, more specifically, whether the recording substantiates the special counsel’s finding that Biden is a “doddering old fool” (ok, the actual quote is a “sympathetic, well-meaning elderly man with a poor memory,” but I think my paraphrase is close enough for government work).

The Biden administration claims that the audio files are protected by the so-called law enforcement component of executive privilege.  You may recall that my first post in this series discussed the 1984 OLC opinion in which the EPA administrator refused to comply with a congressional subpoena on the ground the doctrine of executive privilege encompasses open law enforcement files. The executive branch, however, has continued to expand the scope of this supposed law enforcement component of executive privilege. In a 2000 letter from the Justice Department to the House Rules Committee, for example, the department asserted that the privilege would extend to internal deliberative documents such as declination memoranda even in closed cases. And in cases like that of the Biden audio files, which involve neither open law enforcement files nor deliberative information, the department has nonetheless asserted executive privilege applies because disclosure would supposedly “have a chilling effect on high-profile witnesses in future criminal investigations.” See Garland Contempt Report at 28 (minority views).

Congress has never accepted the theory that executive privilege protects law enforcement files from congressional scrutiny, particularly with respect to closed matters. This theory, it argues, conflicts with the Supreme Court’s recognition of broad congressional power to oversee and legislate with respect to the Department of Justice. Thus, the Court has upheld the validity of a Senate resolution to inquire into malfeasance or negligence in the administration of the department, including prosecutorial decision-making:

It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of legislation; but it does show that the subject to be investigated was the administration of the Department of Justice — whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers, specific instances of alleged neglect being recited. Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit.

This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation, and that the department is maintained and its activities are carried on under such appropriations as, in the judgment of Congress, are needed from year to year.

McGrain v. Daugherty, 273 U.S. 135, 177-78 (1927). Congress contends that its power to enact legislation and conduct oversight regarding the Department of Justice, including its prosecutorial functions, precludes any presumptive constitutional right to withhold information of this kind. See Mort Rosenberg, When Congress Comes Calling 81-82 (2017) (arguing that prosecutorial discretion is not a core presidential power that can justify a claim of executive privilege).

Congress has a strong argument here, or at least it did until last week, when the Supreme Court decided Trump v. United States (2024), in which, among other highly questionable pro-presidential statements, the majority referred to the president’s “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” One might hope that the lower courts will recognize the importance of allowing Congress access to information relating to the impeachment function since that is effectively one of the few checks on presidential power that remains. But I would not count on it.

This is not to say that a court would necessarily uphold the assertion of executive privilege here. The House committees are not challenging the decision to withhold the audio files primarily on the ground that executive privilege is wholly inapplicable. Instead, they focus on the fact the Biden administration has already released the transcript of the interview. This constituted a waiver of any executive privilege that may have existed, they argue. Furthermore, there is no legitimate confidentiality interest that can justify the withholding of the audio files under these circumstances, where the committees are attempting to discern whether Biden’s responses to the special counsel’s questions were the product of a poor memory or declining mental condition, on the one hand, or reflect intentional evasiveness, on the other. Garland Contempt Report at 12. Merely reading the transcript is inadequate because “[w]hile the text of the Department-created transcripts purport to reflect the words uttered during these interviews, they do not reflect important verbal context, such as tone or tenor, or nonverbal context, such as pauses or pace of delivery.” Id.

 The rejoinders to these arguments from Garland and committee Democrats are essentially three-fold. First, they argue that the president has properly invoked executive privilege, which can be overcome only with a sufficient showing of need. Second, they argue that there is no need here because the transcripts are adequate to provide the committee with the information it needs and there is no reason for the committees to be scrutinizing the president’s mental capacity in any event. Third, they contend that the justifications offered to obtain the audio files are pretextual and that committee Republicans only want them to embarrass Biden before the election.

Andrew McCarthy finds these “rationales for stonewalling” to be “laughable.” He calls the refusal to produce the audio files “blatant obstruction,” and he argues that Congress’s institutional interest in obtaining relevant, non-privileged information “should transcend partisanship—i.e., if you are a member of Congress, you have a duty to defend Congress’s prerogatives, even if doing so may cause problems for a president of your own party.” He also points to “blind partisanship” by members of Congress as enabling the executive to take unreasonable positions, knowing that members of the president’s party in Congress will support him regardless.

McCarthy’s point regarding partisanship is well-taken, but he certainly has a selective way of applying this point. When it came to the Steve Bannon contempt, McCarthy’s accusation of “partisanship” was directed at the January 6 committee, including Liz Cheney, Adam Kinzinger, and by extension the 7 other Republicans who voted in favor of certifying the contempt. Since Bannon clearly had “relevant, non-privileged information,” and his claims of privilege were far more “laughable” than Garland’s, logical consistency would suggest that the “blind partisanship” charge would be most accurately leveled at House Judiciary Committee Chair Jim Jordan, who is leading the contempt effort against Garland and who also led the effort to oppose holding Bannon in contempt. See Liz Cheney, Oath and Honor: A Memoir and a Warning 227-29 (2023) (discussing Jordan’s testimony before the Rules Committee on the Bannon contempt resolution).

Interestingly, both McCarthy and the committee Democrats draw an analogy between the effort to obtain Trump tax returns during the 116th Congress and the effort to get the Biden interview audio files here. This strikes me as a fair analogy. I pointed out at the time that the argument for obtaining the tax returns was marginal (and required some suspension of disbelief to validate the asserted legislative need). As discussed below, the same is true of the effort to obtain the audio files here. The Democrats point out that Jordan was a vigorous defender of presidential privacy in the tax returns matter and has flipped 180 degrees now that he is investigating a Democratic president. See Garland Contempt Report at 39-40 (dissenting views). Of course, unmentioned is the fact that the Democrats have also switched positions in the opposite direction.

Unfortunately, pointing out that everybody is a hypocrite does not tell you much about which position is correct. Continue reading “Bannon, Garland and Contempt of Congress: Part III (The Garland Contempt)”

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Bannon, Garland and Contempt of Congress: Part II (The Bannon Contempt)

Steve Bannon, a close political associate of former President Trump who briefly served in the Trump White House in 2017, was indicted, convicted, and sentenced to a four-month prison term for contempt of Congress in connection with the investigation conducted by the January 6 select committee. He has been ordered to report to prison on July 1, which is today.

Andy McCarthy’s June 8 column on the Bannon case seems primarily aimed at convincing the sort of MAGA-adjacent types who might still read National Review that there was nothing untoward about the trial judge’s decision to order Bannon to prison. This decision resulted in what McCarthy euphemistically calls “gnashing of teeth” by MAGA leaders, including Bannon and Trump. Trump, for example, posted on Truth Social that sending Bannon to prison represented the “unAmerican Weaponization of our Law Enforcement” and then demanded, with his usual logical consistency, that members of the select committee themselves be indicted. Even more ominously, Mike Davis, the former Gorsuch clerk and Senate Judiciary Committee staffer turned weird MAGA personality, warned “Biden Democrats” on X that “[y]our glee will turn into terror after January 20, 2025” and “[r]evenge is best served cold.”

McCarthy points out (as I did to Davis) that the trial judge, Carl Nichols, is a Trump appointee and thus not a very likely participant in a conspiracy of “Biden Democrats.” He explains in some detail why Judge Nichols had treated Bannon fairly and, if anything, had bent over backwards to give him every benefit of the doubt. All this sounds reasonable to me and certainly much more plausible than the idea that Nichols is somehow involved in “weaponizing” the law against poor Steve Bannon.

Perhaps to make these unpalatable facts go down easier, however, McCarthy castigates the Justice Department and the select committee for prosecuting Bannon in the first place. This is where I have a serious disagreement. McCarthy’s position seems to be that Bannon was most likely guilty of the crime charged, but that his legal position was plausible or “arguably lawful” and that the proper and “normal” way to resolve this disagreement was through a civil action, rather than criminal prosecution. This position makes no sense to me. Continue reading “Bannon, Garland and Contempt of Congress: Part II (The Bannon Contempt)”

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Bannon, Garland and Contempt of Congress: Part I (Legal Background)

National Review’s legal contributing editor, Andrew McCarthy, has written two recent columns regarding the House’s use of criminal contempt. One involves Donald Trump’s political associate, Steve Bannon, who has been ordered to report to prison on July 1 to serve a four-month sentence for his refusal to comply with a subpoena to testify before the January 6 select committee. The second involves the House’s vote to hold the current attorney general, Merrick Garland, in contempt for failing to comply with the House Judiciary Committee’s subpoena for the recording of President Joe Biden’s interview with former special counsel Robert Hur.

I have some significant disagreements with McCarthy’s views, which I will discuss in future posts. Today, however, I want to provide some background on the relevant law, which is necessary for understanding the context of these disagreements.

Both matters arise under 2 U.S.C. §194, which provides that whenever a witness is summoned to testify or produce documents by a congressional committee and fails to appear, answer pertinent questions, and/or produce the documents at issue

and the fact of such failure or failures is reported to either House while Congress is in session . . . it shall be the duty of the [] President of the Senate or the Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.

You may notice that there is quite a bit of mandatory language in this statutory provision, i.e., references to “duty” and/or what a particular officer “shall” do. I particularly like the part which states “it shall be the duty of the presiding officer to certify a contempt report and then helpfully explains, in case the meaning of “duty” is unclear, “and he shall so certify.” This reminds me of the instructions for the Holy Hand Grenade of Antioch.

The underlying offense of contempt of Congress is defined by a separate statutory provision, which provides:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

2 U.S.C. § 192.

On its face this provision requires “[e]very person” summoned by the authority of either house of Congress to produce information demanded by a congressional committee, but it also implicitly or explicitly suggests certain limits to this legal duty. First, the information must relate to a “matter under inquiry” by the committee. Second, at least in the case of a refusal to answer questions, the question must be “pertinent to the matter under inquiry.” Third, the default must be “willful,” which suggests that “non-willful” defaults (whatever that may mean) do not constitute a crime. Finally, it is well known that there are certain constitutional privileges which apply in congressional proceedings, the least controversial of which is the privilege against self-incrimination. It may therefore be inferred that the statute does not (and could not) make it a crime to assert a valid constitutional privilege.

The last of these raises another problem. Who decides if a witness has asserted a valid privilege? Put another way, what happens if a witness asserts a privilege and the committee decides that it does not constitute a valid reason for refusing to comply with its demands for information?

Continue reading “Bannon, Garland and Contempt of Congress: Part I (Legal Background)”

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The House Does Not Have to Allow Agency Counsel to Attend Depositions

In Lawfare I have a piece explaining why the House has the power to enforce subpoenas for depositions against executive officials and is not required to allow agency counsel to attend.

While the investigations prompting these subpoenas are controversial, the legal issue in the lawsuits is unrelated to the merits of the committee’s inquiries. In the case of all three subpoenas, the Justice Department directed the witnesses not to appear because, under the terms of the House rules governing deposition testimony, only the personal counsel for a witness is allowed to attend. The Justice Department maintains that it is constitutionally entitled to have agency counsel in attendance, which is prohibited by the House rules. The committee offered to allow agency counsel to be present in an adjoining room, where the witness and his personal counsel could consult them if need be, but the department rejected this accommodation.

While this may appear on the surface to be a modest procedural dispute, it has broader ramifications. The Justice Department’s claim is that agency counsel must be in the room, not to protect the rights of witnesses, but to guard the president’s purported authority to control the dissemination of all executive branch information. It is thus part of a larger and increasingly aggressive executive branch doctrine, which threatens to make Congress virtually impotent to obtain the information it needs for legislative and other purposes. (Law professor and Office of Legal Counsel (OLC) veteran Jonathan Shaub thoroughly detailed this doctrine in a 2020 law review article.) Moreover, as I wrote in 2019, the Justice Department’s position on congressional depositions is “wholly without legal support and in considerable tension with federal whistleblower laws.”

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Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity

In the Supreme Court argument on Donald Trump’s claim of absolute presidential immunity from criminal liability for “official acts,” Trump’s counsel, John Sauer, relied heavily on the Court’s Speech or Debate jurisprudence. See Transcript at 6-8, 31, 34, 36 & 46. Sauer did not go so far as to claim the president was literally entitled to protection under the Speech or Debate Clause, but he contended the issues addressed in the Speech or Debate Clause were “very analogous” to those presented by the criminal prosecution of a (former) president, Tr. at 34, and he argued for the creation of a parallel immunity for the president. Tr. at 36. For the reasons explained below, this argument should be rejected and, even if it were accepted, provides little if any protection for Sauer’s client in this case. Continue reading “Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity”

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The Blount Case and Congressional Precedent

         Today I want to return to a subject mentioned in a prior post relating to the 1799 impeachment trial of former Senator William Blount for acts committed prior to his expulsion by the Senate. Blount’s offenses, though not directly connected to his service in the Senate, were serious. Blount concocted a scheme to get himself out of financial difficulties by starting a war in which Indians and frontiersmen would attack Spanish Florida and Louisiana for the purpose of transferring those territories to Great Britain. A little light treason, as they might say on Arrested Development.

         Nonetheless, Blount’s impeachment was dismissed after the Senate, by a relatively close vote of 14-11, decided that it “ought not to hold jurisdiction of the said impeachment.” The Senate’s deliberations were secret and its order of dismissal did not specify why it had reached this decision. However, the conventional view or interpretation (as I will refer to it herein) is that the Senate was persuaded by Blount’s defense that senators are not “civil officers of the United States” and therefore not subject to impeachment.

         This conventional view has been challenged in modern times, most prominently by Professor Buckner Melton, a leading scholar of the Blount case. Professor Melton argues that because there were three different jurisdictional arguments made by Blount’s defense, it cannot be assumed that the Senate acted because of the “officer of the United States” issue:

Given all the possibilities the arguments had raised, the silence of the motion to dismiss as to the specific jurisdictional reasons for the dismissal is crucial. Given that silence, the dismissal cannot be taken clearly to mean that Senators aren’t civil officers or that they aren’t subject to impeachment. It may mean that; it may not. We simply don’t know.

Buckner F. Melton, Jr., Let Me Be Blunt: In Blount, the Senate Never Said that Senators Aren’t Impeachable, 33 Quinnipiac L. Rev. 33, 38 (2014). He argues that “nowhere in the Blount proceedings did the Senate establish any rule or precedent that Senators cannot be impeached.” Id. at 36.

         At the outset we should distinguish among three potential reasons why the decision in the Blount case might be important. The first is that as a founding era decision of the Senate, it could shed direct light on the original meaning of the Constitution. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayer as consistent with the First Amendment in large part based on congressional practice dating  back to the First Congress); id. at 790 (“In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress—their actions reveal their intent.”). For this purpose the weight given to the Blount decision might depend not only on the closeness of the vote, but also on who (i.e., framers and/or ratifiers) voted each way.

         A second and distinct reason for the Blount case’s potential significance is that signified by the conventional view, namely that the case constitutes an authoritative congressional precedent for the proposition that senators (and by extension members of the House) are not impeachable “civil officers of the United States.” Such precedents are recognized both by the courts and Congress, though it is fair to say that the courts have been ambivalent about the weight to give them. See, e.g., Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 817-19 (2015) (citing favorable congressional precedent while suggesting that a contrary, but divided, precedent should not be relied upon due to likely political motives underlying it); id. at 824-25, 837-39 (Roberts, C.J., dissenting) (accusing majority of ignoring the controlling congressional precedent); Powell v. McCormack, 395 U.S. 486, 546-47 & n.85 (1969) (casting doubt on the value of congressional precedent, apart from its utility in illuminating the intent of the framers). On the other hand, Congress, the most important constitutional actor with regard to impeachment, tends to take its own precedents rather seriously. And as discussed further below, the Blount case (and the interpretation which followed it) should be understood as a particularly significant type of congressional precedent, one which satisfies the criteria for “constitutional liquidation” (a term which is not as ominous as it sounds).

         The third reason why the Blount case may be considered important, and the one which has given the case some attention in recent months, relates to the interpretation of section 3 of the 14th amendment. As we have discussed previously, the Blount case helps to explain why the framers of section 3 thought it necessary, or at least prudent, to separately enumerate senators and representatives, rather than assuming they would be covered by the general categories of “officer of the United States” and “office . . . under the United States.” It should be noted that the Blount case’s relevance here does not necessarily depend on its precedential status; what matters for the section 3 issue is what the framers of the 14thamendment thought the Blount case stood for, not whether their view was correct. Even those who question the Blount case’s precedential status, such as Professor Lederman, acknowledge that there was “ongoing debate and uncertainty” at the time of the 14th amendment’s framing about whether members of Congress were officers of the United States, which could explain the decision to separately enumerate members out of an abundance of caution.

         Our subject today, however, is only the second of these three reasons—the precedential status and effect of the Blount case apart from any bearing it might have on original meaning. I will endeavor to show, contra Professors Melton, Lederman and others, that the conventional view of the Blount case is in fact the correct one.      Continue reading “The Blount Case and Congressional Precedent”

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Disqualified President’s Day: Navigating the Enforcement of Section 3 in a “Dangerously Unclear” Legal Framework

So for present purposes let’s assume that the Supreme Court allows Donald Trump to remain on the ballot but says nothing to undercut the possibility that he could be prevented from assuming the presidency under section 3 of the 14th amendment. Do other mechanisms exist to stop Trump from taking office on the ground that he is an insurrectionist disqualified by section 3?

All parties in Trump v. Anderson agree that section 5 of the 14th amendment, which provides “Congress shall have the power to enforce, by appropriate legislation, the provisions of [the 14th amendment],” allows Congress to establish statutory methods for the enforcement of section 3. Trump asserts that such federal legislation is the only way the judiciary may enforce section 3. See Trump Brief at 18. Furthermore, Trump maintains (and to my knowledge no one has disputed) that the only such legislation currently in force is the Insurrection Act, 18 U.S.C. § 2383. Accordingly, Trump’s position is that Congress has effectively left “criminal prosecution under 18 U.S.C. § 2383 as the sole means of removing insurrectionist office-holders.” Trump Reply Brief at 20.

Continue reading “Disqualified President’s Day: Navigating the Enforcement of Section 3 in a “Dangerously Unclear” Legal Framework”

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What’s Next for Section 3?

There is a consensus, based on last week’s oral argument in Trump v. Anderson, that the U.S. Supreme Court will reverse the Colorado Supreme Court’s ruling that Donald Trump must be removed from that state’s primary ballot because he engaged in insurrection within the meaning of section 3 of the 14th amendment. The question now is on what basis the Court will rule and whether its ruling will leave it up to Congress to decide whether Trump is disqualified under section 3.

To understand the Court’s options, it is helpful to consider the distinction drawn by Professor Derek Muller here between treating this case as primarily presenting a substantive question of constitutional law under section 3 or as primarily presenting a question of election law regarding the scope of state power to adjudicate the qualifications of presidential candidates. In Muller’s view it should properly be analyzed as the latter.

I agree. It seems to me that the question of substantive enforcement is not squarely presented by this case. As noted in my last post, no one argues that states can disqualify a sitting president or, for that matter, any other federal official while in office. Perhaps a state could challenge in court the official acts of an alleged federal insurrectionist, but I suspect not and, in any event, that is not what is involved in this case.

It follows that the questions asked at oral argument regarding the automatic disqualification of a sitting president were largely beside the point. For example, Justice Gorsuch (I think) had a line of questions about whether Trump ceased to be the lawful president on January 7, 2021 and whether his actions were legally ineffective from that point on. Colorado’s counsel suggested that the answer would depend on the operation of the de facto officer doctrine, which I suspect was not comforting to the Court. A more comforting (and I think plausible) answer would have been that an insurrectionist in federal office does not automatically lose the powers of that office and can only be removed in accordance with federal law, i.e., by impeachment (or possibly by mechanisms established by law pursuant to section 5 of the 14th amendment). That answer, moreover, should in no way compromise Colorado’s position, which is founded on its election powers, not on powers granted by section 3.

For the same reason, though, even if a sitting president were automatically disqualified by section 3, that would not help Colorado. Colorado has no power under section 3 to decide if a federal official is an insurrectionist. Its determination that Trump is an insurrectionist, even if valid and binding for purposes of keeping him off Colorado’s ballot, would in no way prevent him from assuming or exercising the powers of the presidency. Whatever mechanism(s) may or may not exist to prevent Trump from holding the presidency or exercising the powers thereof, they do not turn on the factual findings of a single state judge or the legal conclusions of a single state supreme court.

The real question is what powers states have, whether pursuant to the Presidential Electors Clause of Article II or otherwise, to impose or adjudicate qualifications for presidential candidates. To take a simple example, suppose a state passed a law providing that no candidate could appear on the general or primary election ballot unless at least 40 years of age (or, alternatively, that its presidential electors are prohibited from voting for any candidate who is under 40). Would such a law be unconstitutional because it imposes a qualification beyond that specified by the Constitution?

Professor Muller says yes, stating in his amicus brief (at page 19) that “[s]tates may not add qualifications to presidential candidates.” He cites a footnote in the Supreme Court’s recent decision regarding the authority of states to bind their presidential electors to vote for the winner of the state’s popular election. See Chiafalo v. Washington, 591 U.S. ___, 140 S.Ct. 2316, 2324 n. 4 (2020). The footnote says “if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.” Id. (emphasis added).

I read that as leaving the question open (i.e., that the Presidential Qualifications Clause may or may not prohibit states from imposing new requirements), but Muller knows more about this that I do. Furthermore, both the justices and parties in Trump v. Anderson seemed to be operating under the assumption that states lack the power to add qualifications to presidential candidates. Thus, the point seems to be effectively conceded for purposes of this case, even if I (and others, including Professor Akhil Amar) harbor doubts.

That being the case, it should be relatively straightforward for the Court to write an opinion that leaves Trump on the ballot without addressing whether he is ultimately qualified to hold the presidency under section 3. As Trump’s counsel stressed during oral argument, section 3 only provides that a disqualified insurrectionist may not “hold any office, civil or military, under the United States.” It does not prevent anyone from running for office. Moreover, Congress is expressly empowered to remove the disability imposed by section3. Therefore, the Court may simply hold that removing Trump from the ballot now, when any disqualification imposed by section 3 could be removed by Congress before inauguration day in 2025, amounts to imposing an additional qualification in violation of the Presidential Qualifications Clause.

To be sure, it would be equally plausible for the Court to hold that states are free to remove from the presidential ballot candidates they (reasonably) believe to be disqualified under section 3 and that the burden is on the candidates to get a waiver from Congress if they want to be reinstated. However, as suggested in my last post and confirmed by the oral argument, the Court really, really does not want to reach that result for a bunch of institutional and practical reasons. And if the Court can reach the result it wants without straining logic or existing law, it is a pretty good bet that is what it will do.

If that happens the Court will have no need to decide whether Trump is actually disqualified under section 3. It may or may not address or comment on whether there are other mechanisms by which Trump’s eligibility might be adjudicated prior to his assuming office. In my next post I will consider what those might be.

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Some final pre-game thoughts on Trump v. Anderson

The legal drama of 2024 continues, as the D.C. Circuit held yesterday that former president Trump is not entitled to assert immunity in the federal prosecution for alleged crimes committed in connection with his efforts to contest the results of the 2020 election, including the January 6, 2021 violent breach of the U.S. Capitol. The federal criminal case involving January 6 is not to be confused with the Georgia criminal case related to January 6, or the federal civil case against Trump for January 6, or the federal criminal case against Trump that does not involve January 6, or the New York criminal case against Trump that does not involve January 6, or other New York civil cases against him, well, you get the idea. The former president has his share of legal troubles.

None of these, however, is this week’s headline event. That honor belongs to Trump v. Anderson, which will be argued tomorrow, February 8, before the Supreme Court. As I am sure you know, the Court will be hearing Trump’s appeal of the Colorado Supreme Court’s decision that he may not appear on that state’s Republican primary ballot because he is disqualified from holding the presidency, under section 3 of the 14th amendment, by virtue of his having “engaged in insurrection.”

Trump v. Anderson is a very complicated case, involving a lot of difficult and novel issues. There are several paths the Court could choose to go down, and on each of those paths are one or more forks in the road that branch off in different directions. This makes it very difficult to predict how the Court will decide the case, although most observers, myself included, think it is most likely it will not affirm the decision to remove Trump from the ballot.

That prediction rests more on institutional incentives than legal analysis, though. The Court, particularly Chief Justice Roberts, will not want to be seen as depriving voters of the opportunity to support the candidate of their choice. At the same time, the Court (at least most of the justices) will not want to condone Trump’s behavior and will probably want to avoid taking a position, if possible, on whether his conduct amounted to “engaging in insurrection.” This implies a compromise decision where the Court takes one of many “off-ramps” that allow it to avoid the merits of the insurrection issue, while allowing Trump to remain on the ballot.

As far as it goes, this would be a “pro-Trump” result. But the Court can avoid the appearance of political bias in various ways. One is to act unanimously, or close to it, which means attracting support from its three Democratic appointees. A second (related to the first) is to make clear in its decision, as did the D.C. Circuit in its immunity opinion, that Trump’s conduct (excuse me, Trump’s “alleged” conduct) in connection with the 2020 election and January 6 went far beyond what was lawful or acceptable. A third (also related to the first) would be to leave open the question whether Trump will ultimately be qualified to hold the presidency under section 3 and possibly to lay out one or more mechanisms by which that issue could be resolved in the future. That would open a whole other can of worms, which we will have to leave to a future post.

Finally, Trump will undoubtedly be asking the Court to review the D.C. Circuit’s immunity decision (under the D.C. Circuit’s order, he has only until February 12 to request Supreme Court review if he wishes an automatic stay of the mandate). While the criminal prosecution and the section 3 disqualification case are legally distinct and unrelated, a speedy (and hopefully unanimous) rejection of Trump’s claim of immunity from criminal prosecution would go a long way toward protecting the Court from claims of political favoritism.

While these speculations are based on the political and practical realities, they do not exist in a vacuum separate from legal analysis. Affirming the D.C. Circuit’s decision on immunity (or simply denying Trump’s petition for certiorari) would be legally correct and it would be difficult to justify any other result. In contrast, affirming the Colorado Supreme Court’s decision would be much more problematic from the standpoint of existing legal doctrine.

The legal complexities of Trump v. Anderson are laid out in a series of lengthy posts by Professor Marty Lederman at Balkinization (see here for the first of many). I agree with many of the points Lederman makes, while others, such as on mootness and statutory jurisdiction, sound plausible but I have not thought much about. There is one point in particular that I want to highlight, one that I have not seen anywhere else—except on my twitter (or whatever we are calling it now) feed.

I am not sure if this case has anything to do with whether section 3 is “self-executing.” Whatever power Colorado has here stems from its authority to determine the manner of appointment of presidential electors, not enforcement of section 3.

— Mike Stern (@mls1776) December 25, 2023

As I noted there and in various other tweets, it has generally been accepted that one key issue in Colorado and other states where Trump’s ballot access has been challenged is whether section 3 is “self-executing.” There is some confusion about exactly what “self-executing” means, as Trump claims he is not disputing that section 3 is self-executing, but merely that it can only be enforced pursuant to specific congressional legislation. See Trump Reply Br. at 19-20. This strikes me as a distinction without a difference. In any event, the bottom line claim is the same- section 3 can only be enforced to the extent that Congress so provides through legislation under section 5 of the 14th amendment.

But, as Professor Lederman explains here, Colorado is not enforcing section 3, which is something states clearly cannot do with respect to federal officials, most obviously including the president. No one would argue, I hope, that a state could declare the sitting president, whether it were Trump, Biden or anyone else, to be disqualified under section 3 (or any other constitutional provision) and therefore proceed to treat the president’s actions as null and void. Instead, what Colorado is doing is applying its own election laws, which (according to the Colorado Supreme Court) require it to remove from the ballot candidates who are ineligible for office for any reason, including violation of section 3. Now it may (or may not) be that Colorado is constitutionally forbidden from exercising this power with respect to presidential candidates who are in fact eligible to hold office. In that case Trump’s alleged eligibility under section 3 would be a defense to Colorado’s action, but that would not make Colorado’s action an enforcement or implementation of section 3.

One more observation about the “self-execution” issue. Trump’s position is that the only method currently authorized by Congress for enforcing section 3 is the Insurrection Act, a criminal statute currently codified at 18 U.S.C. § 2383. This strikes me as being in some tension with his position that he is absolutely immune from criminal prosecution for his actions relating to the 2020 election and January 6. Perhaps someone will ask his counsel about that tomorrow.

Finally, I will note that I do have one strong, although perhaps not too significant for present purposes, disagreement with Professor Lederman. He contends that members of Congress are “officers of the United States” and hold “offices under the United States” at least for some constitutional purposes. This is an arguable (though imho mistaken) proposition, and it is certainly true that there has been controversy about this throughout our history, including at the time of the framing and ratification of the 14th amendment. However, Lederman goes too far when he suggests that the Blount case was not generally understood to stand for the proposition that members of Congress are not “civil officers of the United States” and therefore not subject to impeachment. As I pointed out to him on twitter (or whatever), this is just plain wrong, as all the early treatise writers (Tucker, Rawle, Story) so understood this to be the rationale of the Blount case. As do more modern writers, such as Professor David Currie and Lederman’s colleague at Georgetown Law School, Professor Josh Chafetz. See Josh Chafetz, Congress’s Constitution 149 (2017) (“The Senate decided that members of Congress were no ‘civil Officers’ and therefore not impeachable; instead, they expelled [Blount] by a vote of twenty-five to one.”).

Further exploration of that topic, however, will have to wait for another day.

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The Significance of the Election and Appointment Issue (and Professor Tillman’s Request to Participate in Oral Argument)

In my last post I explained why the terms “election” and “appointment,” as used in the original Constitution, should not be read as mutually exclusive. Today I will explain why that matters for Trump v. Anderson, the Colorado disqualification case currently pending before the Supreme Court.

But first I must note a surprising, and somewhat related, development. Professor Tillman has asked the Court for leave to participate in oral argument. I guess this was considered reasonable because the Colorado Supreme Court granted Tillman leave, through his counsel (Professor Blackman), to participate in its oral argument (though ultimately Blackman was unable to do). But still.

In any event, Tillman’s reasons for wanting to participate in oral argument relate in part to the subject of today’s post, as will be explained below.

The primary reason it matters whether elected officials are also “appointed” within the meaning of the Constitution relates to the question whether the president is an “officer of the United States.” The position taken by former president Trump, as well as by Professor Tillman and other amici, is that the term “officer of the United States” is defined (effectively, though not expressly) by Article II to include only those officers who are appointed pursuant to the Appointments Clause. Because section 3 of the 14th amendment applies only to those who took an oath as “officers of the United States,” they argue, it does not apply to taking an oath as president because the president is not appointed pursuant to the Appointments Clause.

The Appointments Clause provides:

[The president] shall nominate, and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of the Departments.

U.S. const., art. II, § 2, cl. 2 (emphasis added).

On its face the italicized phrase “whose Appointments are not herein otherwise provided for” would seem to show that there is a category of “Officers of the United States” who are not appointed in accordance with the Appointments Clause because their appointments are “herein otherwise provided for.” Or at least that the Appointments Clause is not attempting to define the term “officer of the United States” in, as the Conkling committee put it, the “enlarged and general sense of the Constitution.” In other words, the clause either affirmatively demonstrates that there are “officers of the United States” who are not appointed in accordance with its provisions or indicates that nothing in the clause itself negates the possibility of such officers.

Tillman and Blackman do not accept this reading. If I understand them correctly (and I am not sure I do, despite having read their passages on this several times), they contend that the positions “not herein otherwise provided for” are those offices expressly mentioned earlier in the same sentence, namely ambassadors, other public ministers and consuls, and judges of the Supreme Court. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 383-87,442-48 (2023). Put differently, they apparently believe that the framers felt the need– for an unknown reason—to explain what they meant by the word “other” in “all other Officers of the United States.” It is as if I said “I am inviting Fred, George, and some other people to my party, and by that I mean people who are not Fred and George but are in fact additional to Fred and George.” This might be a perfectly normal thing to do if you are writing a Monty Python skit, but it makes no sense as a matter of constitutional drafting.

Roger Parloff puts it somewhat more politely when he says that Tillman and Blackman adopt a reading of the words in question that is “exactly the opposite of what they appear to say.” And James Heilpern and Michael Worley are more polite still when they point out (pp. 27-31) that Tillman and Blackman offer no reason for rejecting the “most natural reading” of the Appointments Clause in favor of an unnaturally narrow construction of the phrase “whose Appointments are not herein otherwise provided for.”

To bolster their case, Tillman and Blackman point to the word “appointments” as evidence that the phrase in question cannot be referring to elected officials such as the president. That is why it is important to understand that the word “appointment” at the time of the framing was a general term that could embrace any process, including election, for filling an office. As Heilpern and Worley put it (p. 30), “[o]nce one understands this linguistic convention, we think the meaning of ‘whose Appointments are not herein otherwise provided for’ is clear and see no reason that it would not include the President.”

In their merits brief, the Colorado respondents argued that Trump’s interpretation of “officer of the United States” fails to account for the “not herein otherwise provided for” language of the Appointments Clause. According to Tillman, Trump failed to address this issue in his merits brief and therefore Tillman should be given oral argument time to offer his explanation of the language. This seems like an odd basis for a request for amicus oral argument, but I support it on the ground of its entertainment value alone. But I should also be given 5 minutes to provide rebuttal in the form of a Monty Python skit.

Tillman also says he should be given oral argument time to explain “his personal correspondence with the late Justice Scalia touching on the issues now before this Court.” I can see the confused look on your face so let me explain.

You may recall that a long ago there was controversy over then-President Obama’s recess appointments, which the Supreme Court declared to be illegal in a 2014 case fondly remembered by readers of this blog. Justice Scalia’s concurrence in that case begins “[e]xcept where the Constitution or a valid federal law provides otherwise, all ‘Officers of the United States’ must be appointed by the President ‘by and with the Advice and Consent of the Senate.’” NLRB v. Noel Canning, 573 U.S. 513, 569 (2014) (Scalia, J., concurring) (emphasis added). Scalia’s reference to a “valid federal law” refers to the portion of the Appointments Clause which permits Congress to vest the appointment of inferior officers in the president alone, in the courts or in the heads of departments. His reference to “the Constitution . . . provid[ing] otherwise” likewise obviously refers to the “not herein otherwise provided for” language of the Appointments Clause and suggests that he agrees with Heilpern and Worley on the “most natural reading” of those words.

Professor Tillman, however, was not happy that Justice Scalia read the language of the Appointments Clause to mean what it obviously says, rather than what Tillman thinks it says. Tillman therefore (I am not making this up) wrote to Scalia to ask him to explain further what he meant by this language. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 445 (2023). Scalia sent a note in reply to Tillman (I am still not making this up) as follows:

         I meant exactly what I wrote. The manner by which the President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.

Id. at 446.

Now I would be cautious about putting too much weight on this note. A reasonable inference is that Scalia thought all the officials he mentioned are officers of the United States, but it is hard to say how much, if any, consideration he gave to that subject. It is fair to conclude, however, that Scalia rejected the centerpiece of the Tillman/Blackman theory of “officer of the United States” because he did not believe such officers were limited to those appointed in accordance with the Appointments Clause. But this is merely to say that Scalia reads that clause to mean what it says and what his Noel Canning concurrence says that it means.

I am not sure how the Supreme Court will benefit from Tillman’s further elaboration on this “personal correspondence.” But it would be entertaining.