Harriet Miers and Assertions of Executive Privilege for Former Officials

Several months ago we discussed whether the president could assert executive privilege to prevent a former official (in that case, former FBI Director Jim Comey) from providing information to Congress, even if the former official wanted to disclose the information. Eric Columbus, a lawyer who had served in the Obama Justice Department, argued that the answer is no. The core of his argument was that there was no legal mechanism to prevent a former official from voluntarily disclosing privileged information to Congress or to anyone else.

In response to Columbus, I noted that executive privilege belongs to the president, not to subordinate officials, and “it is hard to see why the availability of the privilege should turn on the subordinate’s preferences.” The issue I saw was procedural. If the former official declines to obey the president’s instruction to assert executive privilege, and the congressional committee declines to allow the administration to raise its objections directly, the burden would be on the administration to bring a lawsuit to restrain the former official from testifying. An analogous suit was brought by the executive branch to prevent AT&T from complying with a congressional subpoena in the 1970s. See United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977).

In a subsequent article, Columbus acknowledged the possibility of the executive bringing such an action, but argued that it “would almost surely be laughed out of court.” He contended that “[a] court could not enjoin Comey from testifying unless it could fathom a rationale that would also bar Comey from revealing the same information by writing a book, going on the Sunday shows, taking to Twitter or chatting at his local bagel shop.” The premise of Columbus’s argument was that because Comey was eager to provide information to Congress and/or the general public, there was no way for a court (or anyone else) to stop him. Columbus distinguished Comey’s situation from that of a “reluctant” former official, who does not “really” want to testify or provide the information demanded by Congress.

In going through some files the other day, I came across materials related to Harriet Miers, who served as White House counsel in the Bush administration and who is Columbus’s example of a “reluctant” former official subpoenaed by Congress. Contrary to Columbus, it seems to me that the Miers case is basically on all fours with the Comey situation, and I will take this opportunity to explain why. (It also enables me to clean out some old files, so yah!)

About 10 years ago the House Judiciary Committee, then chaired by Representative John Conyers (D-Mich.), conducted an investigation of the Bush administration’s firing of certain U.S. attorneys. In the course of this investigation, the committee issued subpoenas for documents and testimony to several current or former White House officials, including Miers.

On June 27, 2007, Solicitor General Paul Clement wrote to President Bush, advising the president that executive privilege could properly be asserted with respect to the subpoenaed documents and testimony. Although Clement noted that the Miers subpoena and one other (to ex-White House staffer Sara Taylor) were directed to former officials, he drew no constitutional distinction between these subpoenas and those to current officials.

The next day White House counsel Fred Fielding sent a letter to Miers’ personal lawyers (one of whom was Noel Francisco, now Solicitor General in the Trump administration), informing them that the president had decided to invoke executive privilege and asking them to “inform Ms. Miers that the President has directed her not to produce any documents in response to the subpoena.” (emphasis added) Fielding sent another letter to them on July 9, stating that the president had also decided to assert executive privilege with regard to Miers’s testimony and asking them to inform Miers “that the President has directed her not to provide this testimony.” (emphasis added). Fielding also reiterated the president’s prior directive with regard to producing documents.

On July 10, the Office of Legal Counsel (through Principal Deputy Assistant Attorney General Steven Bradbury) issued an opinion finding that Miers was immune from being required to answer questions or even appear before Congress to testify regarding the U.S. attorney matter. Bradbury did not address the issue of whether Miers could testify voluntarily, but he concluded that current and former officials are identically situated for purposes of the executive privilege analysis. As he explained, the “fact that Ms. Miers is a former Counsel to the President does not alter the analysis” because “[s]eparation of powers principles dictate that former Presidents and former senior presidential advisers remain immune from compelled congressional testimony about official matters that occurred during their time as President or senior presidential advisers.”

Also on July 10, Miers’s lawyers informed the House Judiciary Committee of the president’s invocation of executive privilege and his directives regarding the production of documents or testimony. They noted “Ms. Miers is thus subject to conflicting demands, with Congress demanding the production of information that the Counsel to the President has informed her she is prohibited from disclosing.” Further, although Miers “is, of course, respectful of her obligations to respond appropriately to the subpoena issued and served upon her,” under the circumstances she “has no choice other than to comply with direction given her by Counsel to the President.” (emphasis added)

Finally, on July 24, the Justice Department Office of Legislative Affairs wrote to Chairman Conyers, arguing that it would be improper to hold presidential subordinates in contempt for complying with the president’s directive to assert executive privilege. Again, the Justice Department argued that the same principles applied to a former official as to a current one, noting:

It is the Department’s view that the same position necessarily also applies to Ms. Miers’s lawful invocation of her immunity from compelled congressional testimony. The principles that protect an Executive Branch official from prosecution for declining to comply with a congressional subpoena based on a directive from the President asserting executive privilege similarly shield a current or former immediate adviser to the President from prosecution for invoking his or her immunity from compelled congressional testimony—especially when, as here, the President instructs the official to do so.

It appears, therefore, that the position taken by both the executive branch and Miers’s counsel was that Miers was required to obey the president’s instructions as to the assertion of executive privilege, at least to the extent that those instructions were lawful. Miers’s position, at least as a formal matter, was that she was willing to cooperate with the congressional investigation, but was required to comply with the president’s directive to assert executive privilege. It is undoubtedly true that Miers, unlike Comey, had no particular desire to testify before Congress, but it seems doubtful that this distinction has any relevance to the question of whether the president may lawfully instruct a former official to assert the privilege.

The House Judiciary Committee, which did hold Miers in contempt (and ultimately sued to force her to appear before the committee), took the position that she was required to comply with its subpoena, but mostly on grounds that were equally applicable to current officials. The committee did argue that it would be particularly inappropriate to allow a former official to assert immunity from having to even appear before the committee (as opposed to refusing to answer specific questions), but this argument turned on the fact that a former official could not claim that appearing before the committee would distract her from vital government business. As far as I know, neither the committee nor its supporters argued that a former official is free to ignore the president’s lawful instructions with regard to executive privilege.

To the contrary, one of the witnesses supporting the committee, former Clinton White House counsel Beth Nolan (whose October 1, 2007 letter to Conyers appears as an attachment to the committee’s contempt report) noted: “Ms. Miers is a former presidential aide, whose duties to the President no longer require her full-time attention. Were she to appear before the Committee, she would likely be precluded from answering certain—perhaps many—questions because of executive privilege, at least as a preliminary matter.” (emphasis added) Thus, Nolan, like the Bush Justice Department and Miers’s counsel, accepted that a former official is not free to ignore the president’s lawful instructions with regard to executive privilege.

In sum, it seems that the institutional executive branch position is that former officials can be directed by the president to assert executive privilege and that such officials are required to obey those directives, at least as a preliminary matter. It may be that there are no formal sanctions available if a former official chooses to disregard these instructions (or that such sanctions that exist are theoretical and ineffective), but the existence of the obligation appears to be widely accepted, at least among executive branch lawyers.

What would this mean, as a practical matter, if a former official were to inform the White House that he would disclose information to Congress even if the president instructed him otherwise? As mentioned above, I suggested in the Comey matter that one option available to the administration would be to bring a suit for declaratory and injunctive relief to prevent Comey from disclosing the information. As it happens, Marty Lederman had made a pretty much identical observation in connection with the Miers case:

Alternatively, if a contempt citation is issued against a former government official, such as Harriet Miers, she might initiate litigation in federal court seeking to quash the citation or have it declared unlawful. Or, in the unlikely event that it appears a former official such as Miers is inclined to comply with the subpoena, the U.S. itself might try to go to court to enjoin such compliance. See U.S. v. AT&T, 567 F.2d 121 (D.C. Cir. 1977).

Balkinization post (7-6-07) (emphasis in original).

Lederman does not offer a view as to what a court ought to do if such a case were to come before it, but he predicts, based on the experience of cases such as AT&T, that the court’s first reaction would be to try to broker a compromise that accommodates both the information needs of Congress and the confidentiality interests of the executive.

In a subsequent post, Lederman noted the position taken by Neil Eggleston, counsel to Sara Taylor, who maintained that his client was perfectly willing to comply with the congressional subpoena, but did not wish to violate the president’s instructions to assert executive privilege. Lederman, however, argued that former officials like Taylor and Miers had a legal obligation to comply with congressional subpoenas, while the instructions from the president imposed no comparable legal obligation upon them. Accordingly, Lederman contended that the proper procedural resolution of the dispute was for Taylor and Miers to acknowledge their obligation to comply with the subpoena and put the burden on the White House to seek a judicial order enjoining them from testifying. Implicit in Lederman’s comments is that the desire/willingness of former officials to provide information to Congress is not dispositive of the executive privilege question.

(I would note parenthetically that it’s not clear to me why Lederman’s logic would not equally apply to a current executive branch official. If the president’s instructions to assert executive privilege carry no legal obligation, then a current official should also be required to obey congressional subpoenas unless a court orders otherwise. But that is a discussion for another day).

In short, the discussion of the Miers matter seems consistent with the view I expressed with regard to Comey’s testimony. In theory, either Comey or Miers could have chosen to voluntarily disclose information in a non-congressional forum (such as appearing on a talk show or writing a book), but it is not at all clear that a court would view this possibility as precluding it from granting relief to the executive branch as it did in the AT&T case. It is even less apparent that a court would distinguish between an “eager” witness like Comey and a “reluctant” witness like Miers for purposes of determining its ability to grant relief.

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