Questions about OLC’s Role in Responding to House Subpoenas in the Impeachment Inquiry

On Monday I am participating in a Transparency Caucus program entitled “Shedding Light on the DOJ’s Office of Legal Counsel Opinions.” (It will take place at 2pm in Longworth; email Hannah.Mansbach@mail.house.gov if you would like to attend). In that connection, I want to raise an issue regarding OLC’s role in the administration’s decision not to cooperate with the House’s Ukraine investigation and the president’s defense with regard to the second article of impeachment (obstruction of Congress) which resulted from that decision.

The president’s trial brief in the Senate impeachment trial attached an OLC memorandum on “House’s Committees’ Authority to Investigate for Impeachment.” This memorandum, dated January 19, 2020, purported to memorialize oral advice previously given to the White House counsel regarding whether House committees “could compel the production of documents in furtherance of an asserted impeachment inquiry.” OLC Memorandum of 1-19-20 at 2. OLC “advised that the committees lacked such authority because, at the time the subpoenas were issued, the House had not adopted any resolution authorizing the committees to conduct an impeachment inquiry.” Id.

The OLC memorandum is a little fuzzy, however, as to when this advice was given. It is clear that the request for advice came sometime after the issuance of a series of subpoenas issued by House committees in late September and early October 2019. See OLC Memorandum of 1-19-20 at 2 (“Upon the issuance of these subpoenas, you asked whether these committees could compel the production of documents and testimony in furtherance of an asserted impeachment inquiry”): id. at 8  (“Following service of these subpoenas, you and other officials within the Executive Branch requested our advice . . .). The earliest of the subpoenas specifically referenced was on September 27 (to the Secretary of State), the second was on October 4 (to the Acting White House Chief of Staff), and the latest was October 10 (to the Secretary of Energy). See OLC Memorandum of 1-19-20 at 1-2.

The most plausible reading of the OLC memorandum is that the request for advice was made on or after October 10 or, at the earliest, on or after October 4, when the second subpoena was issued. Of course, it is possible that the memorandum refers inaccurately to “subpoenas” when the request was actually made after the issuance of the first subpoena on September 27. This seems unlikely, however, because OLC was undoubtedly aware of the significance of this issue and had no reason to suggest that the request was made later than it actually was.

The OLC memorandum indicates that it provided its initial advice sometime on or before October 31, when the House adopted Resolution 660, formally authorizing an impeachment inquiry. See OLC Memorandum of 1-19-20 at 39. It does not, however, provide any greater specificity on when it first advised the White House counsel and/or other executive officials of its legal conclusion that the subpoenas were invalid.

Why does this matter? Because on October 8, the White House counsel sent a  letter to the House flatly refusing to cooperate with the House’s impeachment inquiry. This letter raises a number of objections, many of which are political rather than legal in nature, to the impeachment inquiry. One of those objections, stated in a single conclusory paragraph, is that the inquiry is “constitutionally invalid”  because of the lack of any formal House vote on the matter. See Letter of Oct. 8, 2019 at 2-3. There is nothing in the letter, however, to suggest that the administration would provide information to the House even if such a vote were to occur; to the contrary, it indicates that the only way the administration would even discuss the possibility of providing information is if the House dropped its impeachment inquiry  and agreed “to return to the regular order of oversight requests.” Id. at 8.

For at least three reasons it seems highly unlikely that OLC had provided even its initial advice to White House counsel as of October 8. First, as already noted OLC probably had not even received a request at that point. Second, even if OLC had received the request as early as September 27, it hardly seems possible that it could have formed a responsible legal opinion by October 8, given that it purported to rest that opinion on an exhaustive historical survey of judicial, executive and legislative statements and practice, including nearly 100 House impeachment inquiries. See OLC Memorandum of 1-19-20 at 13-39; id. at 21 (referring to the “weighty historical record, which involves nearly 100 authorized impeachment investigations”). Third, there is no reference in the October 8 letter to any OLC advice on this issue, though it refers to OLC opinions on other issues it raises.

If the October 8 letter was sent before OLC had advised on this issue, it certainly undercuts the White House’s argument that the president was acting in good faith to protect the legitimate confidentiality interests of the executive branch and that he was relying on legal advice from OLC in doing so. See Senate trial brief of Donald J. Trump at 36 (“the legal principles invoked by the President and other Administration officials are critical for preserving the separation of powers– and based on advice from the Department of Justice’s Office of Legal Counsel”). It also raises the question whether OLC could provide independent legal advice when the president had already formally asserted a position on the issue.

Even if OLC did weigh in before the October 8 letter, it would be important to know how long it spent formulating its opinion before providing that advice. It is also important to find out whether OLC reviewed and approved the October 8 letter. Did OLC advise the White House counsel that the House should be informed that its objection to the impeachment inquiry was curable through a properly worded resolution? Is it consistent with the executive branch’s obligation of negotiating in good faith over information requests to conceal or misrepresent objections that could otherwise have been easily satisfied by the House?

Ventilating these issues would be a great first step toward transparency for OLC.

A Negotiated Resolution for the Second Article of Impeachment

Professor Jonathan Turley has been extremely critical of the second article of impeachment against President Trump. Turley claims that the charge of obstruction of Congress is improper because the House failed to pursue judicial relief for the president’s failure to comply with its subpoenas and requests for information. He asserts that by not giving the White House an opportunity to challenge subpoenas the House “effectively made the seeking of judicial review a ‘high crime and misdemeanor.'”

I think Turley is wrong for a number of reasons, but whether he is right or wrong is not so important at this juncture. My concern is that the Senate will acquit the president on the obstruction of Congress charge without first hearing from witnesses or obtaining documents that were withheld from the House. This action would be (reasonably) construed as standing for the proposition that the president can withhold any information he pleases from Congress, regardless of the reason or whether any privilege is invoked.

Here Turley has a suggestion which is worth considering. (I made a similar suggestion independently so I will share the blame.) Senators could offer a motion to dismiss the second article on the condition that the White House makes available the witnesses and documents the Senate needs to properly evaluate the first article, abuse of power. In essence, this would allow the president to purge his contempt by agreeing to provide the disputed information, something that Congress routinely allows contumacious witnesses to do.

On one point I am not in agreement with Turley, however. He suggests that the White House should still have the opportunity to litigate privilege claims. This is impractical and improper. Assuming the White House is allowed to raise privilege claims as to specific questions or documents, going to a federal district judge for a decision is (1) inconsistent with the constitutional design, which gives the Senate the sole power to try impeachments; (2) totally impractical (is the Senate going to wait while each objection is litigated to the Supreme Court?); and (3) downright silly in a presidential impeachment trial. You have the (expletive deleted) chief justice sitting right there! Let him rule.

This solution has something for everyone. The president and his defenders get half of the charges dismissed. The House managers get the evidence they have demanded. The Senate majority leader gets an assurance the trial will not drag on indefinitely. There is at least a measure of transparency and accountability for the president’s misconduct. And the House and Senate preserve at least a measure of their authority and dignity.

When it Raines, it Pours: Congressional Standing and DOJ’s Ever Expanding Reading of Raines v. Byrd

 

This is a followup to my last post (which is now back up).

In a recent post, which has somehow disappeared from the website, I discussed how during the January 3 oral argument in Committee on the Judiciary v. McGahn (which you can listen to here), the Justice Department advanced both a “narrow” and a “broad” position with respect to congressional standing. Under the narrow position, Congress (or either house or any member or committee of either house) lacks standing to sue the executive branch for any official or institutional injury, including informational injuries caused by defiance of a subpoena. Under the broad position, Congress lacks standing to sue anybody, including vendors who fail to deliver on contractual obligations or private parties who fail to comply with subpoenas.

As I discussed in the now vanished post, Judge Thomas Griffith (who formerly served as Senate Legal Counsel) seemed particularly taken aback by the Justice Department’s broad position, which would render unconstitutional the Senate’s longstanding statutory authority to civilly enforce subpoenas. See 28 U.S.C. § 1365; 2 U.S.C. §§ 288b(b) & 288d. This authority has been used on at least seven occasions since 1978, most recently in the Backpage case in 2016. See Mort Rosenberg, When Congress Comes Calling 27-28 (2017).

Below I discuss the history of DOJ’s gradually expanding positions against congressional standing and suggest why it might have chosen this moment to unveil its broadest attack yet.

Both the Justice Department’s narrow and broad positions on congressional standing purport to be founded on Raines v. Byrd, 521 U.S. 811 (1997), which held that individual representatives and senators lacked standing to challenge the constitutionality of the Line Item Veto Act. As we will see, however, even the narrow version of DOJ’s position reflects a gradual expansion of its reading of Raines over the more than two decades since that case was decided.

The Briefing in Raines

In Raines, Congress and the president were on the same side (the Line Item Veto Act was supported by President Clinton and a strong bipartisan majority in the Republican Congress). The Justice Department, representing the executive branch defendants, both defended the act’s constitutionality and challenged the standing of the congressional plaintiffs to bring the case at all. The House (through the Bipartisan Legal Advisory Group) and Senate filed a joint amicus brief in support of the act’s constitutionality, but did not take a position on standing.

In its jurisdictional statement, the Justice Department explained it had “two distinct objections” to the standing of individual members of Congress. First, “litigation on behalf of the United States is entrusted to the Executive rather than the Legislative Branch.” Citing Buckley v. Valeo, 424 U.S. 1, 138 (1976), it argued that “[a] lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.'” Jurisdictional Statement at 18-19 n.8 (Apr. 18, 1997), Raines v. Byrd, 521 U.S. 811 (1997). Second, it argued “a suit brought by an individual Member cannot properly be characterized as one filed on behalf of Congress (let alone the United States), particularly where (as here) the suit attacks the constitutionality of a federal statute.” Id.

In its main brief, the Justice Department reiterated these two arguments. See Br. for the Appellants at 25-27(May 9, 1997), Raines v. Byrd, 521 U.S. 811 (1997). However, it also acknowledged that “[d]ifferent considerations may be presented if Congress (or one House thereof) seeks judicial review in aid of its legislative functions.” Id. at 26-27 n.14. Citing specifically to the Senate Legal Counsel’s authority to bring civil enforcement actions for subpoenas as well as the Supreme Court’s recognition of the congressional power of inquiry “with process to enforce it” in McGrain v. Daugherty, 273 U.S.135, 174 (1927), DOJ suggested that such informational injuries would interfere with Congress’s performance of its lawmaking functions. In contrast,  because constitutional or legal challenges to the execution of laws after enactment “would not prevent Congress from performing its own responsibilities,” Congress “has no judicially cognizable interest in the Line Item Veto Act’s constitutional status.” Id.

The congressional amicus brief took no position on the standing issue presented in Raines, a fact that the Court would expressly note. Raines, 521 U.S. at 818 n.2. We did, however, urge that “the Court should decide only the standing question necessarily presented by this case, as different separation of powers concerns may well predominate when an entire body of Congress is seeking to protect its rights.” Joint Br. of U.S. Senate and the Bipartisan Legal Advisory Group of the U.S. House of Representatives as Amici Curiae for Reversal at 2 n.2 (May 9, 1997), Raines v. Byrd, 521 U.S. 811 (1997). We explained that “[d]istinct and significant considerations could arise in a case in which either House, or the entire Congress, sought to invoke the courts’ jurisdiction to protect its constitutional prerogatives and duties against the Executive or a private party.” Id. In this regard we reminded the Court of a recent Senate subpoena enforcement action in which the Court had declined to intervene. See Senate Select Comm. on Ethics v. Packwood, 845 F. Supp. 17 (D.D.C.) (enforcing Senate committee subpoena), emergency motion for stay pending appeal denied, No. 94-5023, Order (D.C. Cir. Feb. 18, 1994), application for stay denied, 510 U.S. 1319 (1994) (Rehnquist, C.J., in chambers).

In short, the congressional amici did not want the Court to reach or accept the Justice Department’s Buckley argument, which would have applied to lawsuits by either house or Congress as a whole. DOJ obviously did not agree with that, but it did agree with congressional amici that standing to enforce subpoenas and redress informational injuries presented distinct issues that were not involved in Raines.

It is noteworthy that counsel of record for congressional amici was then-Senate Legal Counsel Thomas Griffith (as you might have gathered, I was on the brief as well). Current House Counsel Doug Letter was on the briefs for the Justice Department.

The Raines Decision

The plaintiffs in Raines alleged that the Line Item Veto Act unconstitutionally diminished their legislative power and that of Congress by allowing the president to cancel individual items of spending in an appropriations bill that had been duly enacted into law. The Court held that they lacked standing to maintain this suit.

Consistent with the urging of congressional amici, the Court abstained from announcing a broad rule that would govern all congressional standing. Instead, it identified six factors or considerations that influenced its conclusion that the individual members lacked standing to challenge the Line Item Veto Act under the circumstances presented: (1) “reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional,” thus requiring an “especially rigorous” standing analysis; (2) the injury in question was official or institutional, not personal; (3) the institutional injury was “wholly abstract and widely dispersed,” not concrete and particularized; (4) the legislators were not authorized by Congress or either house to vindicate its institutional interests (and indeed their lawsuit was opposed by congressional amici); (5) historical experience showed that analogous confrontations between the legislative and executive branches had not been resolved by lawsuits “brought on the basis of claimed injury to official authority or power;” and (6) the Court’s conclusion neither deprived members of Congress of an adequate remedy (since they could repeal the law or exempt future appropriations from its reach) nor foreclosed a constitutional challenge to the Line Item Veto Act by other parties. Raines, 521 U.S. at 819-21, 826-29.

For at least three reasons, the Raines decision cannot reasonably be read to govern lawsuits brought or authorized by either house to enforce subpoenas (or otherwise redress informational injuries). Most obviously, the Court clearly limited its holding, as congressional amici had suggested, to claims by individual members of Congress. Raines, 521 U.S. at 830 (“We therefore hold that these individual members of Congress do not have a sufficient ‘personal stake’ in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing.”) (emphasis added). The Court went even beyond amici’s suggestion by noting “[w]e attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.” Id. at 829.

Second, nothing in the Court’s decision endorses or supports DOJ’s Buckley-based argument regarding the executive branch’s (alleged) exclusive right to bring certain types of lawsuits. It simply ignores this argument entirely (Buckley is cited only once in an unrelated context). This does not prevent DOJ from continuing to make the Buckley argument, of course, but it does (or should) foreclose it from reading Raines as somehow supporting that argument.

Finally, the Court’s decision does not address congressional subpoena enforcement or informational injuries, which raise “different considerations” (to use DOJ’s words) or “distinct and significant considerations” (to use those of congressional amici) from those of the “abstract” injuries involved in Raines. Although the Court refers critically to certain D.C. Circuit precedent on congressional standing, 521 U.S. at 820 n.4, it makes no mention of that circuit’s precedent recognizing congressional informational standing. See, e.g., United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976) (the “House as a whole has standing to assert its investigatory power”). Moreover, the Court’s historical discussion makes no mention of informational disputes between the branches (much less such disputes between Congress and private parties). The only reference to informational standing in Raines appears in Justice Souter’s concurrence, in which he approvingly cites DOJ’s acknowledgement that such issues are not involved in the case before the Court. Raines, 521 U.S. at 831 n. 2 (Souter, J., concurring).

In short, it is absurd to read Raines as sub silentio deciding the question of congressional standing to enforce subpoenas or overruling D.C. Circuit precedent on point, particularly given that Congress and the executive branch agreed these informational injury issues were not involved in the case. Continue reading “When it Raines, it Pours: Congressional Standing and DOJ’s Ever Expanding Reading of Raines v. Byrd”

The Justice Department’s Broad New Attack on Congressional Standing

Ever since the January 3 D.C. Circuit oral argument in Committee on the Judiciary v. McGahn (which you can listen to here), I have been puzzling over the Justice Department’s position with regard to the issue of congressional standing. (I mean, that’s not the only thing I’ve been doing, in case you were worrying about my mental health.)

The Justice Department lawyer, Hashim Mooppan, made a point of stressing DOJ’s view that Congress lacks standing to sue anybody for anything, including suing private parties to enforce subpoenas or redress other informational injuries. As an alternative to this broader position, he offered the “narrower” view that Congress lacks standing to bring suits against the executive branch, arguing that history establishes that such interbranch disputes are to be resolved through the political process.

Judge Griffith, in particular, seemed somewhat taken aback by the broad position. As he pointed out, the Senate has long had statutory authority specifically authorizing it to enforce its subpoenas in court (though there is an exception for federal executive officials asserting authorized governmental privileges). See 28 U.S.C. § 1365; 2 U.S.C. §§ 288b(b), 288d. Mooppan said the Justice Department believes that statute to be unconstitutional, though he added it would be “more unconstitutional” if there were no exception.

Judge Griffith, of course, is intimately familiar with the Senate statute, having served as Senate Legal Counsel from 1995-99. While the Senate infrequently exercises this statutory authority, it has done so  on at least seven occasions since the statute was enacted in 1978. See Morton Rosenberg, When Congress Comes Calling 27-28 (2017). It does not appear that on any of these occasions, the most recent of which occurred in 2016, was the Senate’s standing challenged. See Senate Perm. Subcomm. on Investigations v. Ferrer, No. 16-5232 (D.C. Cir. May 16, 2017). That might be one reason why Judge Griffith was surprised by DOJ’s broad position.

Another reason he might have been surprised is that the Justice Department has not, as far as I can tell, ever taken this position before. This includes the briefs submitted in the McGahn case itself, which appear to advance only the narrower theory that “the Committee lacks Article III standing to seek judicial resolution of this interbranch dispute.” Br. for Defendant-Appellant at 14 (Dec. 9, 2019); Reply Br. for Defendant-Appellant at 2 (Dec. 19, 2019), Comm. on the Judiciary v. McGahn (D.C. Cir.) (No. 19-5331). Although at least one element of DOJ’s argument (relating to the nature of the injury) would be applicable to any subpoena enforcement, the overwhelming focus is on the interbranch nature of the dispute. See Br. of Defendant-Appellant, supra, at 14-33; Reply Br. of Defendant-Appellant, supra, at 2-12. More importantly, nowhere in its McGahn papers does DOJ explicitly state that congressional committees lack standing to enforce subpoenas against parties other than the executive branch.

This surely was not an accident. For more than two decades, the Justice Department has danced around the question of congressional standing to enforce subpoenas,  and in particular whether Congress has standing to enforce subpoenas against private parties and other non-executive branch actors. For example, in 2008 the Justice Department discussed the Senate’s statutory authority to enforce subpoenas and observed in a footnote that “[w]hether the Senate would have Article III standing for an action brought pursuant to 2 U.S.C. § 288 is, of course, a separate question.” Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and in Opposition to Plaintiff’s Motion for Partial Summary Judgment on Counts I and II (May 9, 2008), Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008). But as far as I know DOJ never attempted to answer this question in Miers or any other case up until January 3, 2020.

So why, then, has DOJ chosen this moment to take a definitive stand on this issue?

I have a theory. But, first, some history will be helpful. I will cover that in my next post.

Who Decides When the Chief Justice Presides?

A few days ago I tweeted the following in regard to the debate over whether President Trump has actually been impeached:

There is a simple way to resolve this. @senatemajldr should send a note to the Chief Justice, notifying him of the House vote. If the CJ shows up at the Senate the next day, Trump is impeached. If not, six more weeks of winter.

This was intended to be a joke. (In case you were wondering whether I know the difference between the chief justice and a groundhog). On second thought, though, it raises a couple of interesting points. (Well, I think they’re interesting. You can decide for yourself.).

First, while the debate over whether Trump has been impeached is largely rhetorical, there is a substantive constitutional question underlying it. Has the House completed the actions required to allow the Senate to commence an impeachment trial? Or is it necessary for the House to take additional steps (such as providing formal notice, appointing managers, or exhibiting the articles of impeachment) before the Senate may constitutionally exercise the power to try impeachments?

I emphasize the question of constitutional power, as distinct from the operation of the Senate’s impeachment rules, which themselves may require the House to provide formal notice before a trial may begin. These rules are subject to amendment or reinterpretation by the Senate, but there is also a constitutional limitation on the Senate’s authority which is beyond the power of that body to change. The Constitution implicitly forbids the Senate from trying an impeachment until its jurisdiction has been invoked by action of the House. Cf. Jefferson’s Manual Sec. LIII (“The Lords can not impeach any to themselves, nor join in the accusation, because they are the judges.). The question is whether the House’s impeachment vote is sufficient as a constitutional matter to trigger the Senate’s jurisdiction.

This question is not answered by the fact that the Constitution gives the House the sole power of impeachment and the Senate the sole power to try impeachments. Each house has exclusive authority to determine how to exercise its own power, but this does not mean it has the exclusive authority to determine when the power exists in the first place (or what the courts would call “jurisdiction to determine jurisdiction”). Such an issue would arise if the House attempted to impeach or the Senate attempted to try a person who claimed not to be subject to the impeachment power at all (e.g., a private citizen). It similarly arises if there is a dispute whether an individual has been impeached such that the Senate’s power to try the impeachment is invoked.

Let’s imagine then in the current situation that the Senate attempts to act upon the House’s impeachment of President Trump. The House could take the position that the Senate has not yet acquired jurisdiction and lacks the power to act. For the reasons noted above, this dispute would be distinguishable from  questions relating to the Senate’s authority to determine how to “try” an impeachment, which were found to be nonjusticiable by the Supreme Court. See Nixon v. United States, 506 U.S. 224 (1993). Nonetheless, it is unlikely that a court could or would arbitrate such a dispute between the houses.

This, however, is where the second interesting point arises. The Senate cannot exercise its power to try this impeachment without summoning the chief justice to preside. See Nixon, 506 U.S. at 230 (noting there are “three very specific requirements that the Constitution does impose on the Senate when trying impeachments: The Members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried.”). If the Senate’s jurisdiction is in controversy, the House could ask the chief justice not to appear. Arguably, the chief justice would have to resolve the jurisdictional question before appearing in the Senate.

It is perhaps more likely that the chief justice would conclude that this motion should be presented to him in his capacity as presiding officer (e.g., after he has appeared and taken the oath). Suppose then that the chief justice, as presiding officer, decides that the Senate lacks jurisdiction. Should this ruling be appealable to the Senate? If the Senate overrules the chief justice, is he obligated to preside over a trial he believes to be constitutionally invalid? These questions have no clear answer and, as far as I know, there is no precedent to provide guidance.

These questions illustrate the difficulty the Senate would face if it attempted to unilaterally dismiss the impeachment (for want of prosecution or for any other reason) without the chief justice’s acquiescence. Notwithstanding the Justice Department’s suggestion to the contrary, the chief justice’s role in an impeachment trial is far more than merely administrative.

One might say that confusing the chief justice with a parliamentarian is almost as bad as confusing him with a groundhog. (Ok, that would be an odd thing to say, but you get the point.).

The Justice Department’s “Interesting” Comments on the Chief Justice’s Role in an Impeachment Trial

The Constitution mentions the chief justice for one purpose only, and apparently it is so he can serve as Charlie McCarthy to Liz McDonough’s Edgar Bergen. Or so one would understand from the Department of Justice’s brief in In re Application of the Committee on the Judiciary, United States House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, currently pending before the D.C. Circuit.

Continue reading “The Justice Department’s “Interesting” Comments on the Chief Justice’s Role in an Impeachment Trial”

Roger Cramton’s Memorandum Surfaces

Remember the Roger Cramton memorandum we discussed a few months ago? (Of course you do, scarcely a waking moment goes by when you don’t think “I wonder what ever happened with that Roger Cramton memorandum?”). This was one of the memoranda cited by the Office of Legal Counsel in footnote 1 of its opinion declaring that former White House counsel Don McGahn was absolutely immune from having to appear in response to a congressional subpoena.

As we have discussed, OLC’s argument for absolute immunity is based in large part on “precedent” consisting of its own prior statements on the subject. But, as two federal judges have now pointed out, OLC cannot create precedent simply on its own say-so. Last month Judge Ketanji Brown Jackson wrote, in her scathing rejection of McGahn’s claim of immunity, that OLC’s initial theory of absolute immunity set forth in the 1971 Rehnquist memorandum “was seemingly formed out of nothing” and “it appears that an endorsement of the principles that OLC espouses would amount to adopting the absolute testimonial immunity for senior-level presidential aides by ipse dixit.” Comm. on the Judiciary, U.S. House of Representatives v. McGahn, No. 19-cv-2379, slip op. at 99, 102 (D.D.C. Nov. 25, 2019); see also Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp.2d 53, 86 (D.D.C. 2008) (rejecting OLC’s opinions on absolute immunity as “conclusory and recursive”). Furthermore, as both Judge Jackson and Judge Bates noted, the original justification for immunity set forth in the Rehnquist memorandum would not apply to former White House officials at all. See McGahn, slip op. at 100; Miers, 558 F. Supp.2d at 88 n. 36.

Enter the aforementioned Cramton memorandum of December 21, 1972 to “the Honorable John W. Dean, III,” Counsel to the President. Although OLC cited this memorandum in its opinion on McGahn, it did not make it public at the time, nor did it bother to mention that this memorandum differed in an important respect from the argument that it was making. We know this now because OLC has just posted it on its website. Hat tip: @kpolantz and @EricColumbus.

To wit, the Cramton memorandum concludes that former White House officials should not be entitled to the same absolute immunity as current officials. It states:

We have one caveat with respect to our conclusion. While we believe that an assertion of Executive privilege with respect to specific testimony on the subject of advice given by the former staff member to the President is entirely proper, we have some reservations about the propriety of invoking the privilege to direct the former staff member not to appear at all. This aspect of the Executive privilege has in the past been claimed only for the President and his most intimate, immediate advisers. One of the justifications that has been advanced for an immediate adviser declining to appear is that he is presumptively available to the President 24 hours a day; the necessity to appear before congressional committees therefore could impair that availability. This consideration would obviously not justify a refusal to appear by a former staff member. However, this justification is in our view neither the only nor the best one. An immediate assistant to the President may be said to serve as his alter ego in implementing Presidential policies. On this theory, the same considerations that were persuasive to former President Truman would apply to justify a refusal to appear by such a former staff member, if the scope of his testimony is to be limited to his activities while serving in that capacity.

In conclusion, we believe that an invocation of the privilege with respect to particular testimony by a former staff member on the subject of advice given the President is quite clearly proper; on the other hand, we believe an invocation of the privilege as a basis for refusal to appear at all is a closer question. An intention to invoke the privilege with respect to particular testimony could certainly be announced. This as a practical matter may solve the problem. If, however, the interrogation is expected to extend to non-privileged matters, a decision that the former staff member should not appear at all would not, in our opinion, be justified.

Memorandum of 12-21-1972 at 6-7 (emphasis added).

To be sure, this language does not foreclose a refusal to appear by a former White House official if the testimony is expected to involve only privileged matters (though it suggests this is a “closer question”). If, on the other hand, non-privileged matters are involved, it indicates that such a refusal would not be justified. This position is inconsistent with OLC’s current stance, which is that former officials are absolutely immune from any questioning about their official activities, regardless whether they are privileged. As OLC “explained” in its McGahn opinion, “the concept of immunity is distinct from, and broader than, the question whether executive privilege would protect a witness’s response to any particular question.” 5-20-19 Opinion at 17. Moreover, it asserted that “consistent with our prior precedents, we find no material distinction between the compelled congressional testimony of current and former senior advisers to the President.” Id. at 16. This again is inconsistent with the Cramton memorandum.

Furthermore, the Cramton memorandum implicitly rejects OLC rationales for extending immunity to former officials. If allowing such officials to testify about non-privileged matters will not impair the president’s ability to obtain confidential advice, there is no reason why they should not appear and invoke the privilege on a question by question basis (like every other executive official outside the White House). Moreover, Cramton obviously did not believe that allowing former officials to appear would adversely impact the president’s “autonomy.”

It seems to me that if you are going to rest an argument on ipse dixit, you ought at least to be honest about the ipse.  Maybe the D.C. Circuit will have some questions about this too.

Impeachment and Disqualification

The proposed articles of impeachment against President Trump call not only for his removal from office, but for his “disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” No doubt the drafters of these articles assume such disqualification would prevent Trump from ever again serving as president. Readers of this blog, however, are aware that this is no longer an uncontested proposition (see here, here, here, here, here, here, and, most recently, here for a few of our prior discussions of this issue).

While I am aware that the president’s conviction and removal, much less disqualification, remain unlikely events, if he were to be disqualified it would be extremely important that there be as much clarity as possible on this issue. I have little doubt that should the Senate disqualify Trump from future office, he would not hesitate to seize upon the argument that the presidency does not constitute an “office of honor, trust, or profit under the United States” within the meaning of the Disqualification Clause. Moreover, members of the House who will vote on articles of impeachment and members of the Senate who will presumably vote on conviction and removal, and possibly on disqualification as well, are entitled to know of the existence of this issue.

I therefore propose that before voting on articles of impeachment, the House consider and approve a resolution along the following lines: “Resolved, That in the considered judgment of this House, the Office of President of the United States of America is an Office of honor, Trust or Profit under the United States within the meaning of the Sixth Clause of the Third Section of the First Article of the Constitution of the United States.”

Historical Practice and the Applicability of the Foreign Emoluments Clause to the President

I want to return briefly to the question  whether the president holds an “Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (FEC). As far as I know, no judge in any of the three emoluments cases has expressed any support for the theory, pressed by Professors Tillman and Blackman in various amicus briefs, that the president does not hold such an office and therefore is not subject to the FEC. Nonetheless, the argument seems to have gained some traction in the legal academy, enough that Judge Rao, during the Mazars oral argument, referred to a dispute or debate among legal scholars on the subject. For that reason, I think it is worth calling attention to a congressional report that I recently came across which is of some relevance to this debate and which (again, as far as I know) has not been previously mentioned in that connection.

As background, you may recall that a key element of the Tillman/Blackman theory is that early presidents accepted gifts from foreign governments that allegedly would have been proscribed by the FEC if that clause applied to the president. The fact that these presidents accepted such gifts without seeking congressional consent, the argument goes, constitutes compelling evidence of the clause’s original meaning.

One might ask, though, why would this be so? Assuming that presidents accepted gifts otherwise proscribed by the FEC, this could reflect (1) lack of awareness of or attentiveness to the FEC; (2) a deliberate decision to ignore the FEC; or (3) a sincere but mistaken view the FEC did not apply to the presidency. It is not obvious why the facts as described by Tillman and Blackman should be given any particular weight in ascertaining the meaning of the FEC. Cf. Comm. on the Judiciary, U.S. House of Representatives, v. McGahn, No. 19-cv-2379, slip op. at 98 (D.D.C. Nov. 25, 2019) (“It goes without saying that longevity alone does not transform an unsupported notion into law.”). Continue reading “Historical Practice and the Applicability of the Foreign Emoluments Clause to the President”