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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.

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A little help from Congress is better than nothing

Tomorrow the Senate Health, Education, Labor & Pensions Committee, affectionately known as HELP, will hold a hearing entitled “Restoring Trust Through Radical Transparency: Reviewing Recent Events at the Centers for Disease Control and Prevention and Implications for Children’s Health.” Usually committees use the titles of their hearings to clearly communicate the point they are making and/or to gain the interest of the press and public. The somewhat obscure wording of the title for tomorrow’s hearing suggests the committee may be looking for a little less attention, or at least less attention from a certain individual residing at 1600 Pennsylvania Avenue.

The committee’s website shows two witnesses for the hearing. The first is Susan Monarez, the former director of the Centers for Disease Control, who was fired by Secretary of Health & Human Services Robert F. Kennedy, Jr. mere weeks after she was confirmed by the Senate to serve in that position. That timing alone makes the firing an extraordinary action, as well as an affront to the Senate’s advice and consent role.

The second witness is Debra Houry, who also served in a senior role at CDC and who resigned in protest over Monarez’s firing and RFK Jr.’s anti-vaccine agenda, which she believed had “politicized” the CDC. Monarez, according to reports from Politico and others, will testify that she was fired because “I had refused to commit to approving vaccine recommendations without evidence, fire career officials without cause, or resign– and I had shared my concerns with this Committee.”

The fact that the committee is actually hearing from critics of administration policy makes this an extremely rare instance of a congressional committee conducting oversight of the Trump administration. The chair of the HELP committee, Bill Cassidy, is a physician who strongly disagrees with RFK Jr.’s approach to vaccines. One can infer from the hearing title that Cassidy believes the “implications for children’s health” from “recent events” at CDC are not good. But what is this “radical transparency” all about?

The Washington Post explains:

People who have spoken with Cassidy and his staff say that the senator is not seeking a direct confrontation with the Trump administration, wary of being politically punished, but instead is focused on “fact-finding” about Monarez’s abrupt ouster, coronavirus vaccines and other potentially explosive issues. Cassidy also is taking pains to placate Trump and his deputies: The title of Wednesday’s hearing with Monarez — “radical transparency” — is taken from Trump and Kennedy’s own vows to institute radical transparency in government, and he has repeatedly called for Trump to receive a Nobel Peace Prize for his Operation Warp Speed work.

I guess that is why Cassidy decided against going with a more straightforward title, like “Batshit Crazy HHS Secretary is Going to Kill Us All.”

Anyway, despite the political risks, Cassidy has apparently decided to bring some transparency to the administration of HHS, which is pretty radical in the current Congress. Good for him.

 

 

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A Government of Men

“It is the proud boast of our democracy that we have a ‘government of laws and not of men,’” So opens Justice Scalia’s famous dissent in Morrison v. Olson, 487 U.S. 654, 697 (1987), which I happened to be reading recently (as part of a more extensive project on the unitary executive and presidential removal). This post is to address its relevance in the context of a specific recent event, namely the revelation that the Office of Special Counsel (OSC) has opened an investigation into Jack Smith, a former special counsel (though, confusingly, not the kind of special counsel who serves in OSC).

Scalia’s Dissent

Scalia’s dissent may be thought of as having three parts. The first consists of an extensive and vivid dissection of the independent counsel statute, the constitutionality of which was the issue before the Court in Morrison. Briefly stated, Scalia thought the independent counsel statute effectively allowed Congress to compel criminal investigations of high level executive officials and encouraged the overzealous pursuit of criminal charges against such officials by politically unaccountable prosecutors who were likely to be biased against them. This resulted in a fundamental unfairness which institutionalized “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted.” Morrison, 487 U.S. at 728 (Scalia, J., dissenting) (quoting a speech by Robert Jackson while serving as attorney general). [note: all cites to Morrison hereafter are to Scalia’s dissent].

The second part of Scalia’s dissent consists of his argument that the independent counsel act violated the principle of the unitary executive, which he derived from the first sentence of Article II, that “[t]he executive Power shall be vested in a President of the United States.” This principle requires that all executive power (or at least, as Scalia repeatedly put it, all “purely executive power”) be in the “full control” of the president. There are a number of problematic aspects of this theory, which are the subject of my larger project, but for today we will assume that the theory is correct and that the independent counsel statute, by vesting (purely) executive power in a prosecutor who was largely beyond the direct or indirect control of the president, violated the unitary executive principle.

This brings us to the third part of Scalia’s dissent, which is his attempt to draw a connection between the ills of the independent counsel statute and the constitutional violation. Scalia postulates that presidential control will make less likely that there will be prosecutorial abuse against individuals covered by the law. This is no doubt true since the whole point of the law was, as Scalia notes, to ensure independent investigation “when alleged crimes by [the president] or his close associates are at issue. Morrison, 487 U.S. at 710. Congress feared that prosecutors subject to presidential control would be less likely to vigorously investigate such crimes, and it is a simple logical corollary that they would therefore be less likely to abusively or overzealously investigate them. (By the same token, one could say that federal judges would be less likely to unfairly rule against the president or his friends if he had the power to fire them. Not that I am trying to give anyone ideas.)

But what is Scalia’s basis for suggesting that presidential control of prosecutors will, in general, lead to less prosecutorial abuse? Scalia’s argument requires some reason to believe that presidents are likely, on balance, to restrain rather than encourage such abuse. Otherwise the fact (if it be a fact) that the unitary executive theory requires striking down the independent counsel law is nothing more than a happy coincidence.

Scalia does not explicitly consider the possibility that presidential control could result in overenforcement of criminal law, but he does acknowledge the possibility that presidents will underenforce the law when they or their friends are involved. Morrison, 487 U.S. at 710. He offers this by way of reassurance:

The checks against any branch’s abuse of its exclusive powers are twofold: First, retaliation by one of the other branch’s use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more “dangerous to the political rights of the Constitution,” Federalist No. 78) who are guilty of abuse. Political pressures produced special prosecutors—for Teapot Dome and for Watergate, for example—long before this statute created the independent counsel.

Morrison, 487 U.S. at 711 (citations omitted).

Whatever the effectiveness of the first set of checks, they seem equally potent with regard to an independent counsel as to a president. An independent counsel could be impeached and removed from office. A case brought by an independent counsel could be dismissed for malicious prosecution like any other case. Moreover, unlike a president, an independent counsel could be removed (by the attorney general) for cause. Thus, these structural checks against abuse by an independent counsel were at least as significant as those against presidential abuse.

As for the second set of checks, it is true that independent counsels did not have to worry about how public opinion would affect their next election. But the same is true of presidents in their second term. Moreover, while presidents are subject to political pressure that can cause them to change course (as the appointment of special prosecutors for Teapot Dome and Watergate illustrate), independent counsels were hardly immune from such pressures. After all, they required funding by Congress and could not survive without political support. An independent counsel facing a backlash from public opinion would likely lose political support far more quickly than a president. There thus appears to be little reason to believe that constitutional structure would make presidential abuse of the prosecutorial function less likely than abuse by an independent counsel. Continue reading “A Government of Men”

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The Justice Department’s Problem in Responding to the House Oversight Subpoena for the Epstein Files

Today the House Oversight Committee issued this subpoena to Attorney General Pam Bondi seeking all documents in the possession of the Justice Department relating to Jeffrey Epstein, including documents relating to the investigations of Epstein and his associate, Ghislaine Maxwell, for human trafficking, exploitation of minors, sexual abuse, or related activity.

Ordinarily DOJ would resist producing most, if not all, of the responsive material on various purported privilege grounds, including the “law enforcement” privilege, the attorney-client privilege, and the presidential communications privilege (the subpoena specifically requests communications between the Executive Office of the President and the Justice Department regarding the Epstein matter). The political context of this subpoena, however, makes this anything but an ordinary matter, and it is possible that Bondi will decide to produce responsive documents without asserting some (or any) of the arguably available privileges. This, of course, is her right; nothing obligates the executive branch to assert privilege in response to a valid congressional subpoena.

There is, however, one exception. Under Federal Rule of Criminal Procedure 6(e), it is a criminal offense to disclose “a matter occurring before the grand jury” unless a recognized exception applies. Thus, to the extent that the House subpoena covers grand jury transcripts, for example, DOJ cannot lawfully provide them unless a court agrees they are covered by an exception to grand jury secrecy.

Even before the House subpoena issued, in fact, DOJ had applied to federal courts in New York and Florida requesting that the Epstein grand jury transcripts be unsealed. Unfortunately, there is no specific statutory exception that would allow unsealing in this case. The only way that a court could allow public disclosure of the transcripts would be to rely on its inherent authority and, several federal circuits (including the Eleventh Circuit) have held that there is no inherent authority to disclose grand jury material. Because it was bound to follow this Eleventh Circuit caselaw, the federal court in Florida denied DOJ’s application, noting that “the Court’s hands are tied—a point the Government concedes.”

What the Florida court was too polite to mention is that DOJ itself advocated for the Eleventh Circuit precedent in question (which was decided in 2020 during the first Trump administration) and similar restrictive decisions in other circuits. DOJ also fought vigorously the attempt by the House Judiciary Committee in 2019 to obtain grand jury materials related to the Mueller investigation. DOJ lost that case at the district court and D.C. Circuit on the ground that the committee was conducting an impeachment investigation which therefore fell within 6(e)’s exception for disclosures preliminary to or in connection with a “judicial proceeding,”  but DOJ was still in the process of seeking Supreme Court review when the first Trump administration ended, thereby mooting the case. In any event, DOJ’s official position (presumably) remains that courts have no authority to release grand jury materials in response to congressional subpoenas, even in the impeachment context, and certainly not in the case of oversight subpoenas such as that issued today. (In fairness, DOJ’s hostility toward exceptions to grand jury secrecy predates the Trump administration.)

In short, there is no way for DOJ to lawfully provide the House Oversight Committee with grand jury material responsive to its subpoena without permission from a federal court, and, unless it is recanting its prior views, its position is that no federal court has the authority to grant such permission. Even if it were inclined to change this position, the weight of federal court opinion (adopted at DOJ’s urging) says that there is no such authority in the case of oversight (as opposed to impeachment) subpoenas.

This might not be such a big deal if we were only talking about grand jury transcripts. However, DOJ has also taken a much broader view of what constitutes a “matter occurring before the grand jury.” It interprets this phrase to include not only grand jury transcripts, subpoenas and other documents that directly show what happened in the grand jury, but materials which merely relate to the grand jury investigation, such as documents collected in the course of the investigation, witness statements taken outside the grand jury room, and many other documents. Many of the most important documents responsive to the House Oversight subpoena therefore may be covered by DOJ’s expansive view of grand jury material. If it produces these documents without court permission, it will be committing a crime, at least based on its own view of the law. And its own view of the law says that the courts are powerless to grant such permission even if they are asked to do so.

That leaves Attorney General Bondi in something of a difficult position.

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Impeachment, Immunity and Juristocracy (Part VII: What Should Be Done)

Note: since my last post the world has lost another lion of congressional oversight, Mort Rosenberg, who for 35 years was every House and Senate committee’s “go to” expert at the Congressional Research Service for advice and assistance on congressional investigations, executive privilege, vacancies, and many other issues. Mort is mentioned in this post as he has been in many others over the years. He will be greatly missed.

Today concludes the series of posts I began on April 8 on “Immunity, Impeachment and Juristocracy.” The prior posts are as follows:

Part I: Unoriginalist Sin (Apr. 8, 2025)

Part II: Nixon v. Fitzgerald (Apr. 9, 2025)

Part III: “Core” Official Conduct (Apr. 13, 2025)

Part IV: Noncore Official Conduct and Evidentiary Use (Apr. 17, 2025)

Part V: Above the Law (Apr. 27, 2025)

Part VI: Chilling Doom (Apr. 30, 2025)

The upshot of these posts is that Congress cannot rely on other branches or institutions to police, punish or deter executive branch crime or wrongdoing. This is most obviously true of the president, but it also applies to subordinate executive branch officers. Therefore, Congress must assume this responsibility itself.

Historically, congressional investigation of executive branch wrongdoing has generally been an outgrowth of ordinary congressional oversight. Only rarely do such investigations turn into (or begin as) formal impeachment inquiries and even more rarely does the House actually impeach an officer of the executive branch. And, of course, the Senate has never convicted a president or other executive branch officer. The primary consequences for executive branch wrongdoing have been reputational (amplified through the media), forced resignation, firing, and criminal sanctions. But for the reasons discussed in the prior posts (and illustrated by daily headlines), these consequences are much less likely than they once were and their deterrent effect has dramatically diminished if not evaporated.

Professor Jonathan Shaub has posted this article which grapples with the difficulty of holding the executive accountable in the current legal and political environment. See Jonathan David Shaub, White House Inspection, 103 Wash. U. L. Rev. __ (forthcoming 2026). He argues that Congress is ill-equipped to fill the gap:

Congress as investigator—whether pursuant to legislative oversight authority or impeachment authority—has a number of shortcomings, many, but not all, of which are well-known and noncontroversial. First, and perhaps most obviously, Congress is partisan, and, in our current polarized environment, this partisan character combined with the dominant two-party system hampers both the reality and perception of congressional investigation. Second, Congress lacks the ability to enforce its investigative demands on any realistic timeframe. Third, perhaps less obviously, Congress is a poor choice because it lacks expertise and key institutional incentives—in part because of its politicization—related to the confidentiality of investigative files.

White House Inspection, supra, at *42.

None of these concerns are unfounded, but, as discussed below, I think there are reasonably persuasive responses to each. Whether Congress will prove capable of meeting the challenge of the present moment only time will tell. But in a very real sense there is no alternative. Congress is the only institution with the inarguable constitutional authority and duty to hold the executive accountable. Even Shaub’s proposal (which we will discuss shortly) depends in large part on Congress fulfilling the role the framers entrusted to it. Continue reading “Impeachment, Immunity and Juristocracy (Part VII: What Should Be Done)”

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Immunity, Impeachment and Juristocracy (Part VI: Chilling Doom)

Although Trump is more circumspect than Fitzgerald in acknowledging the policymaking nature of its decision, it is nonetheless based on a series of policy intuitions or judgments, some of which are borrowed from Fitzgerald and some of which are not. One in the former category is the need to ensure that the president is not “chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” 603 U.S. at __, slip op. at 13 (quoting Fitzgerald, 457 U.S. at 745). The “hesitation to execute the duties of his office fearlessly and fairly” which “might result” from the specter of potential prosecution “raises ‘unique risks to the effective functioning of government.’” 603 U.S. at __, slip op. at 13 (quoting Fitzgerald, 457 U.S. at 751). Moreover, the Court opined, “[p]otential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.” 603 U.S. at __, slip op. at 13.

The Court did concede that a president “might be exposed to fewer criminal proceedings than the range of civil damage suits that might be brought by various plaintiffs.” Id. But the Court was unimpressed by the government’s argument that the criminal justice system provides adequate safeguards for the concerns it raised. For example, it dismissed the argument that a court could guard against inappropriate use of evidence of the president’s official acts through evidentiary rulings and jury instructions, saying that such “prosaic tools . . . are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” 603 U.S. at __, slip op. at 31.

And what are these “peculiar constitutional concerns”? For one thing, the Court worries that “the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance in office.” Id. This concern, though, seems mismatched to the distinction the Court draws among unofficial/core official/noncore official acts. If the Court fears that the jury will be prejudiced against a former president, it is hard to see why it would matter whether the president is charged with committing an official crime or a purely personal one.

The Court also appears to have a general skepticism of the criminal justice system. The “prosaic tools” of that system “may suffice to protect the constitutional rights of individual criminal defendants,” it says, but are insufficient to protect “the institution of the Presidency.” Id. Similarly, it later rejects “the Government’s assurances that prosecutors and grand juries will not permit political or baseless prosecutions from advancing in the first place,” noting that these are just the assurances “available to every criminal defendant.” Id. at 37. The clear import of these statements is that while the safeguards of the criminal justice system may (or may not) be good enough for ordinary private citizens, they fall short when applied to something the Court really cares about. Continue reading “Immunity, Impeachment and Juristocracy (Part VI: Chilling Doom)”