Some Preliminary Thoughts on the House Judiciary Document Requests

Yesterday the House Judiciary Committee issued document requests to 81 individuals, government agencies and other organizations. The cover letter from Chairman Nadler explains that the committee “is investigating a number of actions that threaten our nation’s longstanding commitment to the rule of law, including allegations of obstruction of justice, public corruption, and other abuses of power.” As Spencer Ackerman put it more colorfully, the committee wants the files of “anyone who might know anything about any allegation about wrongdoing by President Trump, encompassing everything from obstruction of justice to collusion with Russia to paying off potential ex-mistresses.”

At the outset it should be noted that these are document requests, not subpoenas, and therefore do not impose any legal obligation on the recipients, with two caveats. First, the requests put the recipients on notice that the documents are relevant to and being sought in a congressional proceeding, thus establishing or helping to establish one or more elements of obstruction of Congress should any of this evidence later be altered or destroyed.

Second, although there is no legal enforcement mechanism, by practice and policy it is expected that government agencies will respond in good faith to congressional requests for information. See Letter Opinion for the Counsel to the President from Curtis E. Gannon, Acting Asst Atty Gen. for the Off. of Legal Counsel, at 3 (May 1, 2017) (“Upon receipt of a properly authorized oversight request, the Executive Branch’s longstanding policy has been to engage in the accommodation process by supplying the requested information ‘to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.'”) (quoting the Reagan memorandum of 1982); see also Letter from Senate Judiciary Chairman Charles E. Grassley to President Donald Trump at 6 (June 7, 2017) (“the Executive Branch should work to cooperate in good faith with all congressional requests to the fullest extent possible”). It is therefore likely the government recipients (the White House, Department of Justice, FBI, and General Services Administration) will provide some sort of timely response to the committee’s requests.

We can also anticipate, however, that these agencies will contend that the requests are inconsistent with their “constitutional and statutory obligations” in several respects. A number of the requests implicate matters (national security and foreign policy, exercise of the pardon power, discussions between high level advisors and the president personally) that traditionally lie at the heart of the doctrine of executive privilege. See generally Mark J. Rozell, Executive Privilege 49-61 (1994). It seems doubtful that the Trump administration will produce these materials without a fight.

The Judiciary committee has tried to forestall this objection by limiting the initial production to documents already produced to other investigative bodies, such as the Special Counsel’s office and the U.S. Attorney for the Southern District of New York. The administration, however, can be expected to argue that sharing information within the executive branch does not waive the privilege with regard to congressional requests.

The administration will also probably contend that the committee’s requests impinge upon open criminal investigations and violate grand jury secrecy rules. In particular, the document requests to the Justice Department and FBI would seem to encompass materials that these organizations or their components have gathered in their investigative capacities. If so, the administration may argue that the committee is essentially trying to obtain the work product of the Special Counsel and the SDNY.

Another category of recipient to keep an eye on consists of former Trump administration officials, including former Attorney General Jeff Sessions, Chief of Staff Reince Priebus, White House Counsel Don McGahn and many others. These individuals are in a tricky situation. They may have varying degrees of interest in cooperating with the committee, but they are unlikely to want to produce information over the administration’s objections. On the other hand, they probably do not want risk contempt (a possibility if and when the committee issues subpoenas) or incur enormous legal fees by fighting with the committee either.

I suggested on Twitter, half jokingly, that Tom Bossert (the former homeland security advisor and one of the lucky recipients) should interplead the committee and the administration. In all seriousness, though, the former officials might want to consider bringing an action to ask a court to declare whether they should abide by the instructions of the White House or those of the committee. Such an action would certainly be more meritorious (which is not to say necessarily successful) than Jim Comey’s lawsuit against the committee last December.

The remaining 60 or so recipients are individuals and organizations with a variety of interests and legal postures vis a vis the committee’s requests. One (as far as I know) is the president’s personal lawyer, Jay Sekulow, who will presumably assert attorney-client privilege in response to most if not of all of the committee’s requests. Others are foreigners (e.g., Julian Assange, Wikileaks) who will probably ignore the committee’s requests unless it can figure out how to subject them to legal compulsion. Each recipient will have to make a decision about whether and how much to cooperate with the committee based on his/her/its individual situation and interests.

The only thing we can say for sure is there will be no shortage of congressional legal issues to discuss.

3 Replies to “Some Preliminary Thoughts on the House Judiciary Document Requests”

  1. Given the public interest & importance to the public in the Gang of 81’s information how briskly might courts consider any cases arising in scenarios you mentioned? Delay is a strategy, as is seeking to compel speedy resolution. How might you “game” out the timing of courts’ abilities to either speed up or slow down such cases & the political repercussions to the judicial system from each path? Thanks!

  2. I may try to address this in more detail at some point, but briefly the timing of any dispute resolution will depend on a number of factors. First, the committee has to issue subpoenas. At this point there are only document requests which, as I noted, do not trigger any legal obligation and cannot be judicially enforced. Once subpoenas are issued, the procedure will vary depending on the status of the recipient. For purely private parties, there will be an incentive to comply within the time frame set forth in the subpoena (although reasonable extensions will likely be granted by the committee). If a private party defaults on a subpoena, there is a strong likelihood that the committee would hold it in contempt and that the House would vote to refer that contempt to the US attorney for criminal prosecution. This is a significant risk for any private party, particularly if it has no colorable claim of privilege to assert. It is likely, in my judgment, that DOJ would prosecute such contempts, probably through the US attorney for the District of Columbia but possibly through the Special Counsel’s office or another office that is looking at related matters.

    Government officials or agencies are more complicated. They will undoubtedly consume a significant amount of time going through the internal process described by the Reagan memorandum to determine what privileges will be asserted in response to any subpoena. Regardless of whether the committee waits for that process to be completed, the Justice Department will not prosecute executive branch officials for asserting executive privilege or some other governmental privilege at the direction of the president. That means that to enforce the subpoena the House will have to authorize the committee to bring a civil action in federal court. I would not be optimistic about the chances of getting such a case resolved before the expiration of the congress.

    Former government officials are in a slightly different situation. Although the Justice Department would presumably also refuse to prosecute them for following the president’s instructions, there is a greater risk that they could some day face criminal liability, perhaps in a future administration. There is also a greater chance of an expedited civil action against them. So as I suggested in the post they may be incentivized to ask for some declaratory relief up front, rather than trying to reconcile conflicting demands for the executive and legislative branches.

    Even among the “private parties,” individual situations vary widely and may affect how quickly any issue can be resolved. The chances of compelling Julian Assange to cooperate, for example, seem remote. Some recipients, like Jay Sekulow, would seem to have strong privilege claims that may be raised as to some or all of the requested information. Others are in various stages of criminal proceedings (Stone, Manafort, Cohen) and will make tactical decisions based on their own penal interests. From a legal standpoint, members of the president’s family (Eric and Don Jr.) who have never served in the government are no different than other private individuals, but the political sensitivity of their situation may affect how their matters are handled.

    Overall, I would expect that a number of the recipients will cooperate with the committee’s requests, but for those that decline to do so I would not expect a quick resolution of their disputes.

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