Levin Center Program on “How Courts Are Shaping Congress’ Power to Investigate”

On Wednesday, February 8, 2023, from noon to 1:30pm, Elise Bean of the Levin Center will be moderating a virtual program on “How Courts are Shaping Congress’ Power to Investigate.” The participants include former House Counsel Doug Letter, as well as law professors Emily Berman, Andy Grewal and William Ortman. (Grewal’s title should also include “tweeter extraordinaire”).

A large number of recent court decisions, including most importantly the Supreme Court’s decision in Trump v. Mazars, have major implications for congressional oversight. (I am in fact working on an article with the tentative title of “How Mazars Will Shape the Congressional-Executive Informational Battlefield.”) So I am very much looking forward to hearing what these scholars and practitioners have to say.

You can register for the program here.

Potential Roadblocks to a Congressional Investigation of the Dobbs leak

The Supreme Court recently released its report on the leaking of the draft Dobbs decision. Spoiler alert: they don’t know who did it. I have to admit I have not actually read the report, though I have read or listened to the opinions of many people who (may) have. The main takeaway for me is that the chances of a tv show about the Marshal of the Supreme Court have gone way down. Sad.

Of more interest to this blog, however, is the suggestion that Congress, specifically the House Judiciary Committee, may take up the slack and launch its own investigation of the matter. If so, this will raise some important and unresolved questions about the scope of congressional authority to probe the activities of the judicial branch. As discussed below, it may be more difficult for the committee to get information about this matter than it anticipates.

Continue reading “Potential Roadblocks to a Congressional Investigation of the Dobbs leak”

The Attorney-Client Privilege in Congressional Investigations after Mazars

I have been meaning to blog about a new article by Dave Rapallo entitled House Rules: Congress and the Attorney-Client Privilege, 100 Wash. U. L. Rev. 455 (2022), which analyzes the Supreme Court’s dicta in Trump v. Mazars that recipients of congressional subpoenas “have long been understood” to retain common law privileges such as the attorney-client privilege. I commend Professor Rapallo’s article for its thorough analysis and defense of Congress’s historic position that it is not obligated to respect the attorney-client privilege or other privileges that stem from the common law, not the Constitution. Just this week his article was named the winner of the 2022 Levin Center Award for Excellence in Oversight Research (which also served as a reminder to me to post on this subject).

When the Mazars decision was announced, I pointed out that to the extent Chief Justice Roberts was commenting on what had “long been understood” by Congress, his observation was clearly wrong and not supported by the sole authority cited for the proposition, a 2003 CRS report by Louis Fisher. Contrary to the chief justice’s assertion, Congress has long asserted that it has discretion to decide whether to accept claims of common law privileges such as the attorney-client privilege. I therefore concluded (somewhat undiplomatically) that “the Supreme Court’s poorly researched dicta on this point should not be given any weight.” Continue reading “The Attorney-Client Privilege in Congressional Investigations after Mazars”

Will the Appointment of a Special Counsel Affect a Congressional Referral of Donald Trump for Contempt of Congress?

The Attorney General has appointed Jack Smith to serve as Special Counsel to conduct an investigation of certain matters relating to former President Donald Trump, including “whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021, as well as any matters that arose or might arise directly from this investigation or that are within the scope of 28 C.F.R. §600.4(a).” The regulations at 28 C.F.R. §600.4(a) provide that “[t]he jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.”

This jurisdiction does not appear to cover a potential certification by the House, pursuant to 2 U.S.C. §194, of Trump’s failure to appear and/or produce documents in response to the subpoena from the January 6 select committee. Although that subpoena relates to the subject of the Special Counsel’s January 6 investigation and Trump’s defiance of the subpoena constitutes a possible violation of law, I doubt that violation of law in 2022 would be considered to be “in connection with” efforts to interfere with the transfer of power or electoral vote count in late 2020 and early 2021 within the meaning of the appointment order. Similarly, while contempt of Congress under 2 U.S.C. §192 is a violation of law and a federal misdemeanor, Trump’s contempt arose from the congressional investigation, not from either the Special Counsel’s investigation or the prior federal criminal investigation over which he is assuming control. Thus, the Special Counsel will probably not be able to assert direct jurisdiction over such a contempt certification.

However, 28 C.F.R. §600.4(b) provides that “[i]f in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.” Thus, were the Special Counsel to determine that expanding his jurisdiction to include a congressional contempt referral is appropriate under the terms of 28 C.F.R. §600.4(b), it would be up to the Attorney General to make that decision.

It seems to me that there is enough of a link between the Special Counsel’s investigation and a contempt referral of Trump to support an expansion of the Special Counsel’s jurisdiction under this somewhat nebulous standard. After all, the committee’s subpoena relates to factual matters which are directly relevant to the Special Counsel’s investigation, and it may advance that investigation to determine why Trump withheld testimony and documents from the committee. Moreover, a separate part of the Special Counsel’s investigation relates to Trump’s failure to cooperate with government efforts to retrieve classified and other official documents in his possession and Trump’s possible obstruction of a grand jury investigation by failure to produce documents responsive to its subpoena. His refusal to comply with the January 6 committee’s subpoena therefore may demonstrate a pattern of illegal behavior.

Even if the Special Counsel’s jurisdiction were expanded, this does not necessarily mean Trump will be prosecuted for contempt of Congress. The Special Counsel regulations require that the Special Counsel ordinarily “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” 28 C.F.R. §600.7(a). This is the provision that (arguably) prevented Special Counsel Mueller from indicting then-President Trump due to the Office of Legal Counsel’s determination that the Constitution prohibits indictment of a sitting president. Similarly, Special Counsel Smith might be prohibited from prosecuting Trump for invoking testimonial immunity because of the longstanding DOJ/OLC view that a former president is absolutely immune from compelled congressional testimony.

There are, however, several reasons why this view may not (and probably should not) bind Smith. First (and most dubiously), there is the argument (also made with respect to Mueller) that a special counsel is not bound by OLC opinions but is free to reach his or her own conclusions on constitutional questions. Second, although the view that a former president enjoys absolute testimonial immunity has been reflected in opinions and pleadings, it has not to my knowledge been the subject of a formal analysis and opinion by OLC (or DOJ). Thus, in contrast to OLC’s formal opinion that a sitting president cannot be indicted, the department’s position on absolute immunity for former presidents may be fairly characterized as more of an assumption than a definitive opinion. Third (and most importantly), OLC has always viewed the scope of absolute immunity to be limited to official activities. Here there is ample room for the Special Counsel to conclude that at least some of the matters about which the January 6 committee wishes to question Trump are political or personal, rather than official. [Note that if Trump’s legal team takes the position in the litigation over classified documents and presidential records that certain documents in his possession should be considered personal or political, this may cut against his interests here].

Furthermore, even if Smith concludes that Trump is protected by absolute testimonial immunity, this would not prevent prosecution with regard to Trump’s withholding of documents responsive to the congressional subpoena. While there are no doubt those at main Justice who would be reluctant to prosecute a former president for asserting invalid but non-frivolous objections to a congressional document subpoena, these concerns would not appear to rise to the level of a practice or policy that would be binding upon the Special Counsel.

For all of these reasons the appointment of a special counsel makes it substantially more likely that a certification under 2 U.S.C. §194 could actually result in a criminal prosecution of the former president. The January 6 committee should take this into account in deciding how to proceed with regard to Trump’s defiance of its subpoena.

How Should the January 6 Committee Respond to Trump’s Lawsuit?

On Friday, November 11, former President Trump filed suit against the January 6 committee to prevent enforcement of the subpoena for documents and testimony the committee issued to him on October 21. The complaint asserts that as a former president Trump is absolutely immune from compelled congressional testimony (at least outside the realm of impeachment). In addition, it alleges that the subpoena is invalid for a number of reasons, including that it was not issued for a valid legislative purpose, that it fails the heightened standard of scrutiny established by the Supreme Court for subpoenas of presidential information, and that the January 6 committee lacked authority to issue subpoenas because it was improperly constituted.

All of these claims, in my view, should lose, and I think they all probably would if the litigation ever resulted in a final judgment on the merits. However, as Trump’s lawyers well understand, there is very little chance of that happening before the January 6 committee expires at the end of this Congress, which will most likely moot the case. For Trump’s legal team, the advantage of this lawsuit is that it will buy time and possibly forestall a contempt vote in the House. Continue reading “How Should the January 6 Committee Respond to Trump’s Lawsuit?”

Some Thoughts on the January 6 Committee Subpoena to Former President Trump

As you may have heard, the January 6 select committee has adopted a resolution authorizing its chair to issue a subpoena for documents and testimony under oath to former President Donald Trump. This action raises some legal, political and practical issues, which are considered below.

Is a former president immune from a congressional subpoena? The answer to this question is pretty clearly no. It has been well-established since Watergate that even sitting presidents are subject to judicial subpoena and, as the D.C. Circuit recently observed, its own precedent from that era “strongly implies that [sitting] Presidents enjoy no blanket immunity from congressional subpoenas.” Trump v. Mazars U.S., LLP, 940 F.3d 710, 722 (D.C. Cir. 2019), rev’d and remanded on other grounds, 140 S.Ct. 2019 (2020). It is therefore very unlikely that former presidents would be found to enjoy such blanket immunity.

Is a former president absolutely immune from compelled congressional testimony about his official activities? For reasons I have discussed before, the answer to this question should be no, although I acknowledge there are good reasons why Congress should be (and historically has been) reluctant to compel the appearance of former presidents except in extraordinary circumstances. Continue reading “Some Thoughts on the January 6 Committee Subpoena to Former President Trump”

Who Loves Testimonial Immunity? Just Us.

The Department of Justice, at the invitation of presiding judge Carl Nichols, has filed a statement of its views regarding whether former Trump chief of staff Mark Meadows is entitled to assert testimonial immunity in response to a subpoena from the House select committee investigating the January 6 attack on the Capitol. Because the DOJ brief ultimately concludes that Meadows must provide testimony in this instance, its reasoning may escape serious scrutiny in most quarters. But not on this blog.

So let us count the ways DOJ is full of crap.

  1. DOJ’s fundamental position on testimonial immunity has not changed, and it is still supported by nothing more than ipse dixit.  DOJ reiterates “the Executive Branch’s longstanding position” that “a sitting President’s immediate advisers—current and former—cannot be compelled to testify before Congress about their official duties.” DOJ Br. at 7. As it routinely does, DOJ stresses that its position has been consistent over many years and through administrations of both parties, thus proving self-interestedness is a bipartisan phenomenon and little else.

To support this (longstanding- did I mention that?) position, DOJ offers a cursory regurgitation of arguments/assertions it has made many times before: (1) immunity is needed to protect the president’s independence and autonomy; (2) the president’s advisers should not have to appear because their testimony would largely be protected by executive privilege anyway; and (3) without immunity the president’s advisers would be subject to congressional harassment and distraction from their important duties. DOJ Br. at 5-7.

To be sure, DOJ acknowledges that “some judges” have disagreed with its view, citing in a footnote four opinions, two by judges of the U.S. District Court for the District of Columbia and two by judges of the U.S. Court of Appeals for the D.C. Circuit. See DOJ Br. at 7 & n. 4. Left unmentioned is the fact that exactly zero judges have agreed with DOJ’s position or even expressed the slightest interest in adopting it.

More importantly, DOJ makes no effort whatsoever to respond to the judicial criticisms of its position, which were first voiced by Judge Bates in 2008 litigation involving Harriet Miers. See Comm. on the Judiciary v. Miers, 558 F.Supp.2d 53, 100-06 (D.D.C. 2008). Instead, it simply says that it will adhere to its position unless the D.C. Circuit and/or the Supreme Court definitively reject it. DOJ Br. at 7.

This stance is particularly remarkable because another judge called out DOJ for precisely the same obstinacy in 2019:

DOJ . . . assert[s] that Miers was wrongly decided . . . [and] has emphasized that Miers’s sphere of influence is exceedingly limited. The thrust of the latter contention is that Miers is only one opinion . . . and implicitly, that the law is not established by the word of a single district court judge. On the other hand, says DOJ, scores of OLC attorneys have considered this issue over the past five decades, and in a series of opinions, OLC has carefully concluded that senior-level presidential aides do enjoy absolute testimonial immunity. . . . DOJ suggests that, in the absence of a groundswell of judges rejecting the concept, this Court should not readily find that the law is what Miers concluded.

Comm. on the Judiciary v. McGahn, 415 F.Supp.3d 148, 203 (D.D.C. 2019). Instead of confronting the analysis in Miers directly or giving the court “any principled reason to interpret the law in a different fashion than Judge Bates did,” the judge noted, DOJ simply dismissed his ruling “before proceeding to draw solely from OLC opinions to support the argument that senior-level presidential aides have absolute testimonial immunity.” Id.

The judge in question, of course, was none other than Ketanji Brown Jackson, who recently became the first (and so far only) Supreme Court appointment of the current occupant of the White House. Given that the McGahn opinion was Jackson’s most important and well-known opinion prior to her Supreme Court nomination, one might have expected DOJ to at least acknowledge her harsh criticism of its testimonial immunity theory. One would be wrong.

Judge Jackson went far beyond merely disagreeing with DOJ on the issue of testimonial immunity. She agreed with Judge Bates that DOJ’s legal position “is all but foreclosed by the binding case law Miers cites,” and she dissected at length “the logical flaws in DOJ’s legal analysis.” McGahn, 415 F.Supp.3d at 202. The judge found that “absolute testimonial immunity for senior-level White House aides seems to be a fiction that has been fastidiously maintained over the course of time through the force of sheer repetition in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation.” Id. at 214. DOJ’s contention “simply has no basis in law,” its argument “truly makes no sense,” and its position is ultimately based on nothing more than “ipse dixit.” Id. at 206-07, 212 & 214.

In short, Jackson makes clear that she does not view this as a close legal question about which reasonable minds can disagree. Either her McGahn opinion was overwrought and hyperbolic, or DOJ’s testimonial immunity theory is utterly without merit. There is no middle ground.

Maybe someone should ask President Biden which it is. Continue reading “Who Loves Testimonial Immunity? Just Us.”

SHOULD THERE BE A SENATE RESOLUTION FOR LINDSEY GRAHAM’S GRAND JURY SUBPOENA?

State prosecutors in Georgia are seeking to subpoena Senator Lindsey Graham of South Carolina to testify in a grand jury investigation of alleged efforts to unlawfully alter the outcome of the 2020 presidential election in Georgia. Prosecutors want to question Graham about telephone calls he made to Georgia election officials in the weeks following the November election. Graham has moved to quash the process issued by the Georgia judge supervising the grand jury on three grounds: (1) compelling his testimony would violate the Speech or Debate Clause; (2) sovereign immunity precludes state court process against a U.S. senator for acts occurring in his official capacity; and (3) requiring Graham to testify would unduly interfere with his legislative responsibilities in the Senate.

Today I do not want to focus on the merits of these legal arguments, but on the Senate’s role in this process. Although the Senate (unlike the House) does not have a rule providing explicit procedures for handling incoming subpoenas, Senate precedent and practice require authorization from the chamber before senators, officers or staff may comply with such subpoenas.

For example, on June 8, 2022, the Senate agreed to a resolution submitted by Majority Leader Schumer for himself and Minority Leader McConnell authorizing the former general counsel to the Secretary of the Senate to testify in a criminal case involving a January 6 defendant. The resolution recited the Senate’s longstanding (if debatable) position that “by the privileges of the Senate of the United States and Rule XI of the Standing Rules of the Senate, no evidence under the control or in the possession of the Senate may, by the judicial or administrative process, be taken from such control or possession but by permission of the Senate.” In other words, evidence which the Senate regards as under its control or in its possession may not be provided to a court unless the Senate decides that providing permission “will promote the ends of justice consistent with the privileges of the Senate.”

Does the evidence sought from Graham fall into this category? The answer seems to be yes, at least if one accepts Graham’s characterization of it. According to his motion to quash, the purpose of his contact with Georgia officials was “to gather information relevant to his oversight responsibilities as Chairman of the Senate Judiciary Committee” and “his obligations under the Electoral Count Act of 1887.” Whether or not such activity falls within the legislative sphere protected by Speech or Debate (as Graham contends), it certainly would be sufficiently official in nature to trigger the requirement that the Senate grant permission before testimony may be given.

Graham, of course, does not want to testify and therefore has little incentive to seek a Senate resolution authorizing him to do so. Moreover, although he has not raised lack of Senate permission as a basis for quashing the Georgia process in his initial filing (perhaps for tactical reasons or perhaps because his private lawyers are unaware of this aspect of Senate practice), he may seek to do so at a later date.

This leaves the possibility that another senator will introduce a resolution authorizing Graham to provide the requested testimony. Clearly such a resolution would not receive unanimous consent, which is the way that such resolutions are invariably passed. Furthermore, even if the resolution were adopted, it would not prevent Graham from asserting the Speech or Debate privilege as to some or all of his testimony. It would, however, preclude him from refusing to comply based on the lack of Senate permission and it would likely undermine his sovereign immunity argument because (I think, though I am not sure) any such immunity would belong to the Senate as a whole rather than the individual member.

Finally, a Senate resolution would deal with Graham’s third objection relating to potential conflicts between the Senate’s legislative schedule and a potential grand jury appearance. When the Senate authorizes testimony by a sitting senator, it insists that any court appearance must be consistent with Senate Rule VI, which provides that senators must not absent themselves from the service of the Senate without leave, and therefore that any testimony may not occur when the senator’s attendance at the Senate is necessary for the performance of his or her legislative duties.

Of course, whether or not such a resolution is introduced will depend less on the legal technicalities than whether one or more senators believe that the subject of Graham’s potential testimony is sufficiently important to merit the Senate’s attention. We shall see

A Former President’s Authority to Assert Executive Privilege is Incompatible with Executive Branch Doctrine

Last week the Gray Center for the Study of the Administrative State held a programentitled “Congress’s Interbranch Role: The Executive, the Court, and Dobbs.” The first panel focused on conflicts between Congress and the executive, particularly disputes over congressional access to information and executive privilege. The panel, consisting of three DOJ/OLC veterans (Professor Josh Chafetz, who was supposed to represent the congressional perspective on these issues, was unfortunately unable to make it), provided an excellent if somewhat executive-tilting overview of the issues in such disputes.

What struck me in listening was the divergence between the principles underlying standard executive branch doctrine on congressional oversight and the theory that a former president may assert executive privilege. Because the panel did not discuss executive privilege as it relates to former presidents, it is worth expounding on that divergence here.

As explained by Will Levi, who was chief of staff to Attorney General Barr in the Trump administration, the executive branch views executive privilege as consisting of four components: (1) presidential communications- communications between the president and senior staff, as well as communications between senior staff and subordinate officials (or even private citizens!) for purposes of formulating advice to the president; (2) deliberative process- predecisional communications in the departments and agencies or other lower levels of the executive branch; (3) law enforcement information (which often arises in the context of attempts to obtain access to investigative or open case files); and (4) state secrets- information related to national security and foreign policy. Levi noted that the presidential communications and deliberative process privileges were qualified privileges that could be overcome by a sufficient congressional showing of need, but he maintained that the law enforcement and state secrets privileges were “more absolute.”

Continue reading “A Former President’s Authority to Assert Executive Privilege is Incompatible with Executive Branch Doctrine”

Checking the Office of Legal Counsel

As discussed in this Lawfare article by William Ford of Protect Democracy, the House Select Committee on the Modernization of Congress has asked GAO to study the feasibility of establishing a Congressional Office of Legal Counsel (COLC) to act as a congressional analogue to the Office of Legal Counsel (OLC) in the Department of Justice. The idea would be that COLC could issue opinions on controversial separation-of-powers subjects reflecting the views and perspectives of the legislative branch and thereby function as a counterweight to OLC’s invariably pro-executive positions.

The Lawfare article thoughtfully describes the pros and cons of establishing a COLC. I am skeptical of the idea myself, but I look forward to GAO’s analysis of the issue. In the meantime, there are steps that can be taken to level the playing field between Congress and the executive branch in terms of constitutional analysis.

For example, in recent testimony for the House Appropriations Subcommittee on the Legislative Branch, I proposed one small step. The House Counsel’s website could be significantly upgraded to provide more information about its legal functions, including “non-privileged information about its legal advice and representation, including court filings, legal opinions and select explanatory or historical documents that would shed light on its operations and the legal views of the House.” This would provide some modest counterbalance to OLC, which maintains an extensive (though selective) database of its opinions on its website.

Another check on OLC would be to obtain more transparency with respect to some of its most controversial opinions. For example, I have a FOIA request to OLC which seeks information about the January 19, 2020 opinion that it submitted in the first Trump impeachment trial. Specifically, I want to find out if the legal advice that it claimed to have given the administration in October 2019 was before or after the October 8, 2019 letter in which White House Counsel Pat Cipollone told the House it would not comply with any subpoenas relating to its investigation of the former president’s efforts to withhold military aid from Ukraine. So far I have not gotten much (a shocker, I know), but still I persist.

There are many other ideas for reining in executive constitutional overreach. In his recent book The Living Presidency, Professor Sai Prakash has suggestions ranging from defunding the White House Counsel and OLC (p. 255) to having Congress issue its own declarations on controverted constitutional issues (p. 265). Similarly, Professor Emily Berman, in Weaponizing the Office of Legal Counsel proposes a number of reforms, including requiring OLC to include “dissenting opinions” as part of the opinion-writing process and increasing the use of details to Congress to give executive branch lawyers from OLC and elsewhere a better sense of the congressional perspective on disputed constitutional matters.

Thus, there is no shortage of ideas for leveling the legal playing field between Congress and the executive branch. Getting Congress to pay attention to these issues when they are not in the headlines is, however, another matter.