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Dr. Fauci, Senator Paul, and the Congressional Contempt Process

Today the Senate Homeland Security and Governmental Affairs Committee (HSGAC) voted, 8-5 along party lines, to hold Dr. Anthony Fauci in contempt of Congress for refusing to answer questions before the committee. The HSGAC resolution provides:

Resolved, That pursuant to sections 102 and 104 of the Revised Statutes (2 U.S.C. 192, 194), the President of the Senate shall certify the report of the Committee on Homeland Security and Governmental Affairs of the Senate, detailing the refusal of Dr. Anthony S. Fauci to answer questions pertinent to the subject under inquiry, to the United States Attorney for the District of Columbia, to the end that Dr. Fauci be proceeded against in the manner and form provided by law.

Section 192 of Title 2 provides, in relevant part, “[e]very person who having been summoned as a witness by the authority of . . . any committee of either House of Congress . . . who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor . . . .”

Notwithstanding this language, it is well established that witnesses before Congress may not be punished for valid assertions of their constitutional rights, including the privilege against self-incrimination. Here Fauci refused to answer based on that privilege. Ordinarily that would end the matter unless the committee chose to grant him testimonial use immunity (see 18 U.S.C. §§ 6002, 6005). In this case, however, the committee majority contends that Fauci could not validly invoke the privilege because he received a full pardon from President Joe Biden for the events that were under inquiry by HSGAC.

The main substantive legal issue presented by the contempt is whether that pardon means that Fauci has no reasonable fear of self-incrimination and therefore may not validly invoke the privilege. Fauci argues that it does not, pointing to the fact that Republicans, including President Trump himself, have questioned the validity of Biden’s “autopen pardons.”  Even if the pardon ordinarily would provide adequate assurance against prosecution, Fauci’s lawyers will argue, it does not do so under these circumstances, particularly given the current administration’s demonstrated willingness to prosecute political enemies without justification.

Not being a criminal lawyer or having researched the question, I will not weigh in on whether Fauci has a winning argument on this point. (There is some good discussion in this AP article). It is worth noting, though, as Daniel Schuman discusses here, that a decision against Fauci could enhance a future Congress’s ability to get information from Trump administration officials if/when Trump pardons them.

However, before we get to that point there is a major procedural obstacle to prosecuting Fauci. Section 194 of Title 2 provides:

Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, rec­ords, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before . . . any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or 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.

Some important aspects of this section may not be immediately apparent from reading its rather dense language. It might appear that once “a statement of fact constituting such failure” is reported to the Senate or, if the Senate is not in session, to the president of the Senate that it is the automatic duty of said officer to certify the statement of fact to the “appropriate United States attorney” for presentation to a grand jury. However, the invariable congressional practice under the statute is that when the contempt is reported to the House or Senate, as the case may be, the legislative body itself must vote to certify the contempt before the presiding officer will do so.

There is an exception to that requirement when Congress is not in session. In that case the speaker or president of the Senate may certify the contempt without a vote of the body. The last (and possibly the only) time this was done was in December 1964, when Congress was not in session and a House committee transmitted to the speaker a report regarding witnesses who had refused to testify before one of its subcommittees. The speaker, based on advice from the parliamentarian, understood that he had a mandatory duty to transmit the report to the U.S. attorney. However, the D.C. Circuit rejected that reading of the statute and reversed the convictions that followed. See Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966).

Continue reading “Dr. Fauci, Senator Paul, and the Congressional Contempt Process”

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Madison, the Comptroller of the Treasury, and the Unitary Executive

I will have a lot to say about the unitary executive in the coming weeks. I am less interested in relitigating whether the Supreme Court’s view of the unitary executive, as most recently explained in Trump v. Slaughter, is the correct one, and more interested in figuring out what this decision means as a practical matter and how we go forward from here.

But I do have a quick comment on the exchange between the majority and the dissent regarding James Madison’s suggestion in 1789 that the comptroller of the Treasury, an officer in the Treasury Department, should be subject to special removal  provisions. Chief Justice Roberts, writing for the majority, dismisses this incident, contending that Madison never suggested that the comptroller be protected against presidential removal. See slip op. at 29 n.5. Moreover, whatever Madison intended to suggest, it was not well-received by his colleagues and did not become law. Various unitarians have struggled to explain what Madison meant regarding removal. Professor Saikrishna Prakash, for example, has variously suggested that Madison was misinterpreted, was confused, or was just wrong. See Bamzai & Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1821-23 (2023); Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1070-72 (2006).

Putting aside the controversy over the removal question, however, Madison was clear on why he thought that the comptroller was different than the secretary of the treasury or the secretary of foreign affairs. Madison explained that the comptroller was “not purely of an Executive nature,” but performed duties that were both judicial and executive in nature. 1 Annals of Cong. 611-12 (1789). As Justice Sotomayor noted in dissent, Madison thought that for executive officers “whose duties ‘partak[e] strongly of the judicial character . . . there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the Executive branch.” Sotomayor Dissent, slip op. at 6 (quoting 1 Annals of Cong. 612).

Whatever Madison’s views on the removal question and whether or not others agreed, it does not appear that anyone at the time or since has disputed his underlying point, which is that the comptroller’s functions by their nature were to be performed independently and without presidential interference. Indeed, more than a century later, none other than William Howard Taft, then a former president and the future author of the seminal unitarian decision in United States v. Myers, would make this exact point regarding the same office:

    Then consider the drawing of money from the Treasury Department under an appropriation act. The drawing of the warrant must be approved by the Comptroller of the Treasury. It is for him to say how the appropriation act shall be construed and whether the warrant is lawful and whether the money can be drawn. The Comptroller of the Treasury is an appointee of the President, and in a general sense is his subordinate. If the President does not like him as a Comptroller, he can remove him and with the consent of the Senate put in another one, but under the act of Congress creating the office, the President cannot control or revise the decisions of this officer. His work is like the work I have referred to, quasi-judicial.

William Howard Taft, Our Chief Magistrate and his Powers 81 (1916) (emphasis added).

The Court no longer likes the terminology of “quasi-judicial,” which it apparently views as conclusory. But the idea that the president cannot properly direct or control the performance of particular functions that Congress has delegated to executive officers is one that, as far as I can tell, was utterly uncontroversial until relatively recently. It would have been self-evident to Madison and Taft and, I think, pretty much everybody else that the president could not overrule a comptroller’s decision as to the lawfulness of a warrant and the propriety of drawing money from the treasury.

Are we now in a world where the president can personally issue regulations, decide patent applications, approve drug applications, conduct IRS audits, rule on contract disputes and other claims against the government, conduct immigration proceedings, and dispose of the countless other matters that Congress has delegated to some officer or agency in the vast federal bureaucracy? If so, we are in a brave new world, and we better figure out what we are going to do about it.

Fast.

 

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OLC’s Attack on the Presidential Records Act is Not Worth a Fig Leaf

The Office of Legal Counsel recently declared that the Presidential Records Act (PRA) “is unconstitutional, and the President need not further comply with its dictates.”  50 Op. OLC __, slip op. at 52 (Apr. 1, 2026). There was a time that when such a declaration would have generated major pushback in Congress. When in 2002 President Bush issued an executive order changing the executive branch’s interpretation and application of the PRA in comparatively minor ways, there was bipartisan criticism that these changes violated the spirit and letter of the act. Multiple hearings were held and bipartisan legislation introduced to reverse the executive order, which was ultimately rescinded by President Obama.

By contrast, there has been a fairly muted congressional reaction to the OLC opinion and, as far as I can tell (with the assistance of ChatGPT), complete silence from congressional Republicans. There are several possible reasons for this, but I suspect the most significant is learned helplessness. No one believes that the OLC opinion has anything to do with legal analysis or that there is any point to attempting to have a rational debate about it. Given the daily occurrence of more politically salient scandals, even congressional Democrats have little incentive to spend time on this issue.

In brief, OLC’s argument was that there was no enumerated Article I legislative power that allows Congress to regulate presidential records. This is an astonishing claim that no one had ever made before. OLC notably does not cite any judicial precedent, legal scholarship or even an executive branch opinion which reaches such a conclusion. Notably, when former President Nixon challenged the constitutionality of the Presidential Recordings and Materials Preservation Act (PRMPA), a predecessor statute to the PRA which applied solely to presidential records of the Nixon administration, he made no claim that it was beyond Congress’s enumerated powers. Instead, he argued (among other things) that by asserting public ownership and control of presidential records, PRMPA violated the separation of powers and infringed on executive privilege. These arguments were rejected by the Supreme Court. See Nixon v. Administrator of General Services (“Nixon v. GSA”), 433 U.S. 425 (1977).

OLC’s objections to the PRA are substantially similar to Nixon’s objections to PRMPA, which presents a problem because OLC opinions cannot overrule Supreme Court decisions (at least not yet). OLC attempts to get around this by recasting those objections as relevant to the enumerated powers “issue” (which it made up) and then arguing that the Supreme Court did not decide that issue in Nixon v. GSA. This is a sleight of hand that will not fool anybody who does not want to be fooled.

OLC’s next move is to focus its enumerated powers analysis on the question whether the PRA can be justified as an exercise of Congress’s oversight power. This is odd because Congress’s oversight power is not an enumerated power, and OLC cursorily dismisses or ignores altogether actual enumerated powers that provide fairly obvious grounds for enactment of the PRA. But as Professor Jonathan Shaub observes, focusing on the largely irrelevant issue of the scope of Congress’s authority to obtain executive branch records allows OLC to rely on a “treasure trove” of internal opinions and arguments that it has employed over decades to restrict congressional oversight.

Chief among these is a list of historical instances (or, in Shaub’s phrase, “tired examples”) in which presidents have refused congressional demands for executive branch records. This list was initially developed by executive branch lawyers in the 1940s and 1950s to support the proposition that the sitting president enjoyed total and unreviewable control over executive branch information. It was later employed in the 1980s to support a broad interpretation of the doctrine of executive privilege recognized in United States v. Nixon, 418 U.S. 683 (1974). And executive branch lawyers repurposed it again following Raines v. Byrd, 521 U.S. 811 (1997) to argue against congressional standing to enforce subpoenas. For OLC and its ilk, this list truly is a floor wax and a dessert topping.

Continue reading “OLC’s Attack on the Presidential Records Act is Not Worth a Fig Leaf”

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The Unitary Executive is Watching You

A few months ago a group of six Democratic members of Congress, including Senator Mark Kelly, released a video reminding members of the military that they have a duty to “refuse illegal orders.” The senators and representatives, each of whom has a military or intelligence background, did not identify any particular orders that should be disobeyed, but it was generally assumed that that they were referring to the Trump administration’s legally questionable Venezuelan boat strikes and possibly also the president’s actual or threatened deployment of regular military and National Guard forces in American cities.

The video was subject to reasonable criticism by non-insane people on the ground that it was pointless at best, as servicemembers are well-trained on their duty to disobey unlawful orders, and at worst disruptive to military cohesion and discipline. Among the less mentally balanced, however, the Democrats were labeled the “seditious six” and accused of a “direct attack on this republic.” The latter category included the commander in chief, who fired off the following social media post on November 20, 2025:

It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL. Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand – We won’t have a Country anymore!!! An example MUST BE SET.

In case this take was too nuanced, President Trump followed up with another post shortly thereafter: “SEDITIOUS BEHAVIOR, punishable by DEATH!”

By incredible coincidence, a few days after Trump declared these opposition lawmakers to be enemies of the state his administration announced that it was reviewing “serious allegations of misconduct” against Senator Kelly in his capacity as a retired naval captain. According to a social media post from the Department of “War” (not its actual name), “a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures.” It then explained:

This matter will be handled in compliance with military law, ensuring due process and impartiality. Further official comments will be limited, to preserve the integrity of the proceedings.

At this point you might be thinking that an investigation launched by the executive branch after the president has already publicly declared the guilt of the target doesn’t exactly scream “due process and impartiality,” but at least we can rely upon the military to conduct the actual investigation in a serious and professional manner, as well as to avoid inflammatory public comment, just as it promised to do. Right?

You poor naive sap. TWENTY-SEVEN minutes after the announcement of the investigation, the secretary of “war” reposted the announcement with his own commentary:

The video made by the “Seditious Six” was despicable, reckless, and false. Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of “good order and discipline.” Their foolish screed sows doubt and confusion — which only puts our warriors in danger.

He went on to explain that the investigation was only of Kelly because he alone of the “seditious six” remained subject to the Uniform Code of Military Justice. He closed by vowing that “Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately.”

This doesn’t seem all that impartial, to be honest. But wait, you say. That post wasn’t from the official X account of the secretary of “war.” It was from the personal X account of some guy named “Pete Hegseth.”  So actually there was no violation of the promise to limit “official comments.” And the fact that Hegseth has a personal opinion about Kelly’s conduct should have no bearing on the “impartiality” and “due process” that Senator/Captain Kelly will receive. Right?

Good point!  I jumped the gun in equating Pete Hegseth in his official capacity and Pete Hegseth in his personal capacity. The fact that Hegseth has prejudged Kelly’s guilt in his personal capacity says nothing about whether he can be impartial in his official capacity! Also, war is peace, freedom is slavery, and sycophancy is due process. With thinking like that, you could be the next White House press secretary! (Assuming you meet the physical requirements, of course).

Anyway, the “investigation” was conducted and a few weeks later the secretary, in his official capacity, announced the results. You will be shocked to find out that it did not go well for Kelly. After all that impartiality and due process, Secretary Hegseth (not to be confused with Pete Hegseth the rando with personal opinions) issued a letter of censure to Kelly “for conduct that I have determined to be prejudicial to good order and discipline in the Armed Forces of the United States, conduct which brings discredit upon the same and conduct unbecoming an officer.” In addition to issuing this formal censure, Hegseth stated:

I believe good cause exists to reopen the determination of your retired grade under the provisions of 10 U.S.C. §1370. Accordingly, I will direct the Secretary of the Navy to recommend whether a reduction in grade is appropriate in your case.

After receiving the Secretary of the Navy’s recommendation, I will determine if a reduction is warranted. Any reduction in retired grade would result in a corresponding reduction in retired pay.

The censure letter closes with the observation that “[y]our status as a sitting United States Senator does not exempt you from accountability for conduct that undermines good order and discipline in our Armed Forces.”

Personally, I was on pins and needles waiting to see what the impartial recommendation from the secretary of the navy would be. And what Secretary Hegseth would decide to do about what he had already described on X as “the totality of Captain (for now) Kelly’s reckless misconduct.”

Unfortunately, Kelly short-circuited all this due process by bringing suit in federal court against Secretary Hegseth, as well as the Department of Defense (the actual name of the department Hegseth leads), the secretary of the navy (who I will not name since he has recently had all the publicity he needs), and the Department of the Navy. Kelly asked for a temporary restraining order and preliminary injunction with regard to the administrative proceedings against him, alleging that they, among other things, violated the First Amendment, the Speech or Debate Clause, the separation of powers and his due process rights. The case was assigned to Judge Richard Leon, who in a January 2026 hearing expressed some skepticism about the legal and constitutional basis for the proceedings against Kelly but declined to rule immediately.

The Trump administration then doubled down (another shock). Not content with administrative proceedings against Kelly based on the (highly debatable) legal theory that his status as a retired military officer restricts his First Amendment rights to criticize the government, it sought to criminally indict Kelly and the other Democratic senators and representatives on charges related to the making of the video. It has been reported that the proposed indictments, which have not been made public, charged the defendants with seditious conspiracy. In any event, notwithstanding the (mostly deserved) reputation of grand juries as rubber stamps for the prosecution, on Tuesday, February 10, the federal grand jury to which these charges were presented refused to issue any indictments. (It has been reported that this decision was unanimous).

Two days later (i.e., yesterday) Judge Leon ruled that Kelly was likely to succeed on the merits of his First Amendment claim (therefore rendering it unnecessary to consider the remaining claims) and issued a preliminary injunction in his favor. In a Leonesque opinion filled with too many exclamation marks, the court blasted the government’s actions as textbook retaliation for protected political speech. The court rejected the government’s argument that retired military officers were entitled to reduced First Amendment rights, and it found that argument particularly troubling in the case of a sitting senator. As Leon puts it, “if legislators do not feel free to express their views and the views of their constituents without fear of reprisal by the Executive, our representative system of Government cannot function!” Slip op. at 22 (emphasis in original). The judge closed with the (forlorn) hope that his opinion will enable Secretary Hegseth and his fellow defendants to “more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!” Slip op. at 29 (emphasis in original) (warned you about the exclamation marks).

One point made by the court is noteworthy. It states that “Defendants rest their entire First Amendment defense on the argument that the more limited First Amendment protection for active-duty members of the military extends to a retired naval captain.” Slip op. at 19 (emphasis in original). If this accurately characterizes the government’s position, it suggests that even under the government’s own theory there could not possibly be a constitutional basis for indicting the lawmakers who were not retired military officers. And even as to Kelly himself, the government’s position would not seem to provide a basis for criminal, as opposed to administrative, action. See Slip op. at 23 n.5 (noting that the government does not press an argument that Kelly’s speech falls into an unprotected category like incitement). Continue reading “The Unitary Executive is Watching You”

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Justice Barrett, Liquidation, and the Obiter Dicta of the Myers Case

During the December 8, 2025 oral argument in Trump v. Slaughter (involving the constitutionality of for cause limitations on the removal of FTC commissioners), Justice Barrett asked Slaughter’s counsel (Amit Agarwal) a question that is worth further exploration:

JUSTICE BARRETT:  Counsel, let me say –let –let’s say, just assume, that I disagree with you about the history. Let’s assume that I think –I’ll –I’ll grant you for this purpose that the Decision of 1789, if you just took it in isolation, may be not as conclusive as Myers thought it was.  I’ll just grant that you for purposes of this question. But let’s say that I think the liquidation argument throughout the 19th century shows that by the time of the end of the 19th century up until we get to the ICC and the emergence of what starts to look like the more modern independent agency, that the government has the better of the argument. But let’s say that in 1887, after the ICC and then after the FTC and then after Humphrey’s, when there was more the explosion of independent agencies, that –let’s just assume, again, for this purpose, that at that point, yes, you do have precedents like Humphrey’s.  Humphrey’s clearly is –is, you know, a good case for you. Do you still lose if I think as of 1887 it was liquidated, it was settled, but then we did have cases and congressional practices that veered from that unbroken law?

Transcript, at 158-59.

The precise question Barrett is asking is whether a constitutional issue that has been “liquidated” (i.e., resolved by not by original meaning or judicial decision, but by a course of government practice and general acquiescence) at one point in time can ever become “unliquidated” such that the original settlement is no longer binding. Or, presumably, whether it can be “reliquidated” such that there is a new legal settlement that itself becomes binding.

I have no particularly strong views on this question, but the analysis in Professor Baude’s 2019 law review article on this topic is persuasive. See William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 53-59 (2019) (discussing whether liquidation is necessarily permanent). Baude argues that liquidations should be analogized to judicial precedent, which “suggest that in practice, liquidated provisions can be unliquidated or reliquidated.” Id. at 56. Moreover, even scholars who support stricter adherence to liquidations do not claim that they enjoy absolute permanence. Compare id. at 53 (quoting Professor Caleb Nelson as arguing that liquidations were expected to be permanent in the absence of “extraordinary and peculiar circumstances”).

In the context of the Slaughter case, the Court would be setting aside a practice of establishing independent multimember agencies, which has existed at least since the creation of the Interstate Commerce Commission (ICC) in 1887, and overruling a judicial precedent, Humphrey’s Executor v. United States, 295 U.S. 602 (1935), which affirmed the constitutionality of that practice, in favor of a liquidation which occurred over the years between 1789 and 1887. Even if pre-1887 liquidation would have prohibited the establishment of such independent agencies (which we will get to in a minute), this seems rather inconsistent, to put it mildly, with “liquidation’s goal of providing stability by matching meaning to publicly accepted practice.” Baude, 71 Stan. L. Rev. at 56. One might well conclude that such a situation would constitute “extraordinary and peculiar circumstances” to justify disregarding the earlier liquidation. Indeed, Professor Nelson himself seems to think so.

What Was Actually Liquidated?

In my view, however, even more important than Barrett’s explicit question are those raised by her set up. Was there a liquidation of the removal question prior to 1887? If so, when did that liquidation occur? And what was the scope of that liquidation? Continue reading “Justice Barrett, Liquidation, and the Obiter Dicta of the Myers Case”

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Can State Legislatures Compensate for the Absence of Congressional Oversight?

The Washington Post had an article this weekend that discusses the paucity of oversight hearings in the current Congress, noting that “administration officials testified more often before many committees during the first year of President Joe Biden’s term than they have this year.” The article mentions several areas where Democrats contend that more oversight is needed, including Robert F. Kennedy Jr.’s vaccine policies, the administration’s boat strike campaign and saber rattling toward Venezuela, the failure of DHS secretary Noem to appear before the Senate Judiciary Committee to answer questions about immigration raids and other matters, and the absence of appearances by various financial regulators, including acting director of the CFPB Russell Vought and director of the FHFA Bill Pulte, before the Senate Banking Committee.

The efforts of the Senate Health, Education, Labor and Pensions (HELP) Committee to get Kennedy to testify is a particularly interesting case. In September the committee held a hearing where former CDC director Susan Monarez, who was fired less than a month after being confirmed by the Senate, testified that she was terminated because she refused to comply with Kennedy’s demands that she commit to approving changes to the vaccine schedule regardless of scientific evidence. Her testimony and that of another former HHS staffer contradicted Kennedy’s prior testimony before the committee about the circumstances of her termination and the changes to vaccine policy. Chairman Cassidy, who clearly had serious concerns both about Monarez’s termination and the vaccine policy, noted that the committee had sent a request to HHS for records relating to the subject of Monarez’s testimony, and he invited Kennedy to come before the committee to provide his side of the story. Kennedy has yet to appear before the committee, nor to my knowledge has HHS produced the required records.

On December 9, the committee minority sent a letter to Cassidy demanding that Kennedy be called to testify, and pointing out that, despite his promise to appear before the committee on a quarterly basis if needed, Kennedy had not been before the committee in seven months. However, it appears that Cassidy, who is up for reelection and facing a primary challenge in 2026, is unwilling to press the issue at this time.

The combination of an extraordinarily aggressive and norm-breaking executive and a Congress so passive that Steve Bannon calls it “the Duma” should be a concern to all Americans. Fortunately, our system of separated powers provides other means to scrutinize and check the activities of the federal government.

Among these mechanisms are the oversight and investigatory authorities of the fifty state legislatures. The power of state legislatures to conduct oversight and investigations has long been recognized. See, e.g., Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (“Investigations, whether by standing or special committees, are an established part of representative government.”). As I note in this explainer posted on the Levin Center’s website, state legislatures may gather information and hold hearings regarding federal government activities that affect their states. The exercise of compulsory process, particularly that directed to federal officers and agencies, presents more delicate issues, but legislatures that approach these matters in a thoughtful and deliberate way can successfully navigate them.

As Woodrow Wilson observed 140 years ago, “the only really self-governing people is that people which discusses and interrogates its administration.” If Congress is unwilling or unable to perform that duty, it creates an enormous vacuum that enterprising state legislators should be ready to fill.

 

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Lindsey Halligan and the Unitary Executive

Correction: Bannon and Navarro were not pardoned for contempt of Congress. Trump pardoned Bannon before leaving office in 2021, but that pardon did not cover Bannon’s subsequent contempt of Congress. Navarro has not been pardoned at all. Thanks to @fedjudges on X for the correction.

As you may have heard, James Comey, the former FBI director, deputy attorney general, and 1985 graduate of the University of Chicago Law School, has been indicted for lying to Congress. This is a rarely prosecuted crime. To my knowledge only one person this century has been tried and convicted for congressional perjury or false statements (three others have pled guilty). That person is Roger Stone, who was pardoned by President Trump. Only two people this century have been tried and convicted for the related crime of contempt of Congress. Both of them, Steve Bannon and Peter Navarro, were also pardoned by Trump. [see correction] (Navarro currently works in a senior position in the Trump administration). This is not to mention the hundreds of individuals Trump pardoned for offenses (including obstruction of a congressional proceeding) related to the January 6, 2021 attack on the Capitol. For some reason, however, the Trump administration has decided that protecting the integrity of congressional proceedings is very important in Comey’s case.

Comey thinks he knows the reason. He has filed a motion to dismiss the indictment for vindictive and selective prosecution. The government has responded indignantly that there is no evidence that the relevant decisionmaker in the case harbors any animus toward Comey:

To start, the relevant analysis is whether the “prosecutor charging” the offense “harbored vindictive animus.”  Here, that prosecutor is the U.S. Attorney.  Yet the defendant doesn’t present any evidence that she harbors animus against him.  Instead, he says that he doesn’t need any such evidence because his claim “turns on the animus harbored by the official who prompted the prosecution.”   And, according to him, that is the President.  As discussed below, the President does not harbor vindictive animus against the defendant in the relevant sense.  Before reaching that issue, however, the Court should determine whether the defendant has offered sufficient evidence to find that the President displaced the U.S. Attorney as “the ultimate decision-maker” in bringing this prosecution.

United States’ Response in Opposition to Defendant’s Motion to Dismiss Indictment Based on Vindictive and Selective Prosecution at 20, United States v. Comey, No. 1:25-CR-272-MSN (E.D. Va. filed Nov. 3, 2025) (citations omitted) (hereinafter “Government’s Vindictiveness Br.”).

It is noteworthy that the brief does not dispute that the president could displace the U.S. attorney as the ultimate decisionmaker, only that he did so. Thus, in response to Comey’s argument that the relevant vindictive actor is “the head of the Executive Branch” who is the U.S. attorney’s “ultimate supervisor,” the government concedes that this “might be a legitimate” point “if the defendant had evidence that the President ordered his prosecution.” Id. at 22. In support of the contention that the president did not “order” the prosecution, it cites a statement Trump made in response to a reporter’s question on September 25, the day that Comey was indicted:

I can’t tell you what’s going to happen because I don’t know yet.  Very professional people, headed up by the Attorney General, [Deputy Attorney General] Todd Blanche and [U.S. Attorney] Lindsey Halligan . . . they’re going to make a determination.  I’m not making that determination.  I think I’d be allowed to get involved if I want, but I don’t really choose to do so.

Government’s Vindictiveness Br. at 16 (emphasis added).

The government contends that the relevant decisionmaker is Lindsey Halligan, who was appointed as interim U.S. attorney by Attorney General Pam Bondi on September 22, 2025. Three days later Comey was indicted.

According to the government, Halligan made the decision to indict Comey based on her 72 hours (or less) of experience on the job. This may be difficult to believe as a factual matter, but the government suggests that it is the appropriate legal framework with which to evaluate Comey’s allegation of vindictiveness. It points out that under the law “a U.S. Attorney is tasked with deciding what offenses to prosecute in her district.” Government’s Vindictiveness Br. at 17. In making such decisions she enjoys “broad discretion” and her exercise of that discretion is entitled to a presumption of regularity. Id. The implication is that absent an express order or some other direct intervention by the president, the U.S. attorney is expected to exercise independent judgment in making prosecutorial decisions.

The question I have is whether that legal framework is consistent with the unitary executive theory that the administration advances in judicial proceedings and which seems to be favored by a majority of the current Supreme Court. We will turn to that now. Continue reading “Lindsey Halligan and the Unitary Executive”

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An Outline of Congress’s Interest in the Slaughter Case

Following up on my last post, I think an institutional position for Congress in the Slaughter case would look something like this.

First, the Court can avoid addressing the precedential status of Humphrey’s Executor by holding that courts cannot intervene in a dispute regarding an officer’s purported removal from a multimember commission like the Federal Trade Commission (FTC). The government makes several broad constitutional and statutory arguments against judicial power to provide relief in this case (some of which depend on its view that Slaughter is a presidential subordinate). Brief for Petitioners at 38-47. Whatever the merit of those arguments, there is none to the government’s suggestion that the Court should both reach the substantive question of whether the removal limitation in the FTC Act is constitutional and hold that courts in any event lack the power to grant any relief. If the courts lack the power to grant relief, there is no basis for reaching the merits of Slaughter’s claims. Continue reading “An Outline of Congress’s Interest in the Slaughter Case”

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Who Will Represent Congress in Trump v. Slaughter?

As you may have heard, the Supreme Court has granted certiorari in Trump v. Slaughter, a case in which a Federal Trade Commissioner whom President Trump purported to fire has sought reinstatement to her position. The Court directed the parties to brief two questions: (1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.

In the meantime, cases involving Trump’s purported removal of members of other “independent agencies” and various multimember boards are still kicking around in the lower courts. In addition, there is at least one case involving the purported removal of an individual official, the registrar of copyrights at the Library of Congress.

Allowing the president to exercise at-will removal of the members of agencies such as the FTC, the Merit Systems Protection Board, the Consumer Product Safety Commission, the National Labor Relations Board, and (perhaps) the Federal Reserve will dramatically alter the nature of the various statutory schemes in which these bodies were established. Presidential control of these agencies could transform them into arms of the executive branch and allow them to be used for purposes entirely foreign to that intended by Congress.

When the Supreme Court first considered the constitutionality of a restriction on the president’s power of removal, in Myers v. United States, 272 U.S. 52 (1926), Chief Justice Taft reached out to the Senate to see if it wished to designate an amicus to represent its interests and, when that appeared impracticable, appointed a sitting senator  “to present the views of the legislative branch of the government.”  In more recent years, the Court has declined the suggestion to appoint an amicus specifically to represent the interests of Congress, but in cases where the parties agreed that the removal limitation was unconstitutional it has appointed an amicus to defend the constitutionality of particular statute in question. In one case, Seila Law LLC v. CFPB, 591 U.S. __ (2020), the Bipartisan Legal Advisory Group of the House of Representatives also filed an amicus brief supporting the validity of the removal limitation at issue, noting that “the House has a strong interest in defending the validity of the CFPB Director’s removal protection—and the many similar provisions found throughout the U.S. Code.”

In the Slaughter case there is genuine adversity between the parties regarding the constitutionality of the removal limitation so the Court presumably will not appoint an amicus at all. Moreover, it is unlikely (though not impossible) that either the House or Senate will file amicus briefs in the case due to the difficulty in crafting an institutional position that can survive the political hurdles necessary to authorize the filing of a brief. In the Senate, the brief would need to be approved by the Senate Joint Leadership Group (or by a vote of the Senate itself) and therefore would need bipartisan agreement. In the House, BLAG could approve the brief on a party line vote, but it is unlikely that the Republican majority will want to file anything that might offend the Trump administration. Individual members, of course, can file amicus briefs, but these tend to reflect narrow perspectives and are often filed mostly to make a political statement.

This is unfortunate because the Slaughter case will have ramifications for Congress that go well beyond the particular statute in question or even removal protections in general. Moreover, the parties do not have an incentive to advance some of the congressional interests at stake and, indeed, may not even be aware of them. And Congress itself will not have an opportunity to think about the potential ramifications of the case until it is too late.

One of the more obvious congressional interests at stake is the reliance that Congress has placed on Humphrey’s Executor and its progeny in the 90 years since that case was decided. As the House pointed out in Seila Law:

During that time, Congress has created more than two dozen agencies with explicit for-cause removal protections. The statutes creating those agencies were enacted by twenty different Congresses and signed by twelve Presidents, Republicans and Democrats alike. For-cause removal protections thus reflect an established practice accepted by all three branches and deeply integrated into our governmental structure.

Brief for Amicus Curiae the United States House of Representatives in Support of the Judgment Below at 30, Seila Law (No. 19-7) (citation omitted).

It is not just the for-cause removal protections themselves that will be affected by the Court’s decision, however. Congress also relied upon the validity of these protections in how it structured these agencies and in the powers and duties it assigned to them. Striking down the removal protections while leaving the rest of the statutes intact will in effect enact an entirely new statutory scheme that was never approved by Congress. As was perceptively pointed out in an amicus brief filed by a group of Republican senators, “the CFPB was designed to remain independent from the political branches” and “[s]evering the CFPB Director’s for-cause removal protection from the rest of the Act would therefore create an entirely new system—one that was never legitimized though bicameralism and presentment.” Amicus Brief of U.S. Senators Mike Lee, James Lankford, and M. Michael Rounds Supporting Petitioner at 11, Seila Law (No. 19-7) (emphasis in original). Thus, “a proper respect for congressional authority requires that Congress be allowed to determine, at least in the first instance, how to respond to a holding that any provision of a federal statute is unconstitutional.” Id. at 14.

The Court paid no heed to this admonition in Seila Law, instead concluding with unwarranted confidence that Congress would have preferred a “dependent CFPB” to “no agency at all.” It is not clear how the Court will be able to even make such a cursory judgment regarding dozens of statutes that were enacted (and amended) at different times, all based on an assumption of agency independence that the Court could now upend. Furthermore, these statutes were enacted at times when there were expectations that presidents would not use their powers in ways that even the most enthusiastic supporters of the unitary executive would recognize as improper. See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1837 (2023) (“the Constitution implicitly constrains the President’s discretion to exercise constitutional powers, including removal” through, among other things, his oath to faithfully execute the office). It should not be controversial to note that these expectations no longer hold.

Exactly how Congress should respond to this challenge and how it might ask the Court to frame its opinion to preserve congressional authority are matters on which reasonable people may disagree. But it is not a partisan issue or one that necessarily breaks along ideological lines. Crafting an institutional position that could command bipartisan support in Congress may be an impossible task, but we will not know unless someone tries.