In case you want to hear more about institutional and constitutional issues surrounding proxy and remote voting, you can listen to me, James Wallner and Kevin Kosar talking to Adam White about the same.
Two years ago to the day I completed a series of posts regarding President Trump’s use and threatened use of the pardon power. Yesterday the president commuted the sentence of Roger Stone, who was charged with and convicted of seven counts of false statements, obstruction and witness tampering. This event has predictably given rise to two competing takes: (1) the president’s action was a “corrupt” use of the pardon/commutation power because it was given to a coconspirator in exchange for his silence; and (2) the president was showing mercy to someone who had been unfairly targeted by the Russian “hoax” investigation cooked up by his political enemies.
The latter position was put forth by the White House press secretary, who asserted in a prepared statement that “Roger Stone is a victim of the Russia Hoax that the Left and its allies in the media perpetrated for years in an attempt to undermine the Trump Presidency.” This claim overlooks the fact that Stone was convicted of obstructing congressional investigations being conducted by committees controlled by Republican majorities in both the House and Senate. He was also convicted of making false statements to the House Permanent Select Committee on Intelligence, chaired at the time by Representative Devin Nunes.
Even if one accepts the most critical possible view of the Russia investigation (namely that the FBI’s “Crossfire Hurricane” investigation was commenced without adequate predication based on political animus toward the Trump campaign and without any serious reason to believe that Trump or anyone on his campaign had engaged in criminal collusion with the Russians), it was still the right and duty of HPSCI to look into allegations regarding Trump’s ties to Russia. As I have noted before, the final HPSCI report is quite critical of a number of aspects of those ties, even as it found no evidence to substantiate a claim of criminal conspiracy between the Trump campaign and Russia (similar to the conclusions reached by the Mueller investigation and the Senate intelligence committee).
A congressional committee may on occasion investigate allegations which turn out in fact to be a hoax, such as the “October Surprise” allegations. This is not, of course, a justification for providing false information to the committee. Indeed, if President Trump believed that there was no merit to the Russia allegations, he would want his subordinates and allies to provide full and truthful information, particularly to committees which could be counted on to give his side of the story a fair shake, and he would be furious that Stone had failed to do so. The fact that he is not speaks volumes.
This does not necessarily mean that Trump’s action was “corrupt” in either the specific sense of a quid pro quo in exchange for Stone to concealing truthful information that might be politically or legally damaging to Trump’s interests or in the more general sense of encouraging others who might desire pardons/commutations to remain silent. There is good reason to suspect that either or both of these may be true, but it is also possible that Trump simply wants to use his powers to reward his friends and punish his enemies. He is so upfront about these desires that it is tempting to assume that something more calculated underlies his actions, but maybe not.
Although the House can and should investigate Trump’s commutation of Stone’s sentence, it should not limit its consideration to the more complicated explanation of his action. As I wrote two years ago, the pattern of how the president has used his pardon power is troubling enough to reach the level of an impeachable offense even if it cannot be proved that he was attempting directly to benefit himself:
At some point a pattern of impulsive and arbitrary use (or threatened use) of the pardon power may rise to the level of impeachable conduct even if there is no ulterior motive to thwart investigations or protect the president from the legal consequences of his actions. The president’s unlimited and unreviewable authority to grant pardons is based on the assumption that he will exercise this vast power with some degree of prudence and deliberation. President Trump, it appears from overwhelming evidence, has interpreted this as a license to issue pardons whenever he so desires, with little or no consideration of consequences or counterarguments. His standard, to the extent he has one, for the exercise of this vast power is his sense of “unfairness,” which seems to be as ill-considered and self-centered as that of a small child.
That is the charitable view. Viewed less charitably, Trump’s self-pardon tweet may reflect a strategy to protect himself and his associates from the special counsel and other investigations that threaten their personal interests. By expressing the authority to pardon himself in connection with the Russia investigation, he emphasized the breadth of his pardon power and willingness to employ it if need be to counter a probe he views as a “witch hunt.” Although the tweet implied Trump has no plans to pardon himself (since he has “done nothing wrong”), one could infer a willingness to pardon others, who may or may not have done something wrong, but whom Trump deems in any event to be victims of a politically motivated witch hunt.
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It is not necessary at this juncture to decide whether the evidence of Trump’s actions and statements regarding the pardon power actually warrant impeachment. It is only required to decide that the evidence is enough (more than enough, IMHO) for the House to open an impeachment inquiry, which is also the only way in which Congress can effectively exercise oversight with respect to the pardon power.
The president’s unlimited discretion to grant clemency is based on the assumption he will exercise his power with prudence and serious deliberation. It is apparent that President Trump has fallen far short of that standard. Whether this fact alone, under our current circumstances, warrants impeachment or whether the evidence establishes with sufficient clarity the use of the pardon power for self-interested or corrupt purposes, are the questions that the House should seek to answer in its inquiry. Should it turn out that the inquiry does not produce sufficient evidence to support impeachment, the worst that happens is that the president will have the benefit of some sorely-needed adult supervision in this area of his presidency.
We will see whether the House sees fit to accept this advice now.
So the Supreme Court’s decision in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), yesterday will be a full employment act for congressional lawyers for the foreseeable future, but today I just wish to weigh in on one relatively minor point. For reasons that escape me, the Court chose to offer the following piece of dicta: “recipients [of congressional subpoenas] have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.” Mazars, slip op. at 12. The Court evidently thought this was a noncontroversial observation, but this is assuredly not the case with regard to common law privileges. As readers of this blog are aware, Congress has long asserted that it is not obligated to respect common law privileges such as the attorney-client privilege.
The sole authority cited by the Court for the proposition that witnesses “retain” their common law privileges is a 2003 Congressional Research Service report written by Louis Fisher. The cited section of the report describes the 1995 dispute between the Clinton administration and congressional committees investigating Whitewater regarding the notes of a White House lawyer regarding a meeting conducted to discuss legal strategy with Clinton’s personal lawyers. The Clinton administration asserted that these notes were protected by attorney-client privilege and they demanded that the congressional committees agree that the production of these notes would not constitute a waiver of the privilege. Fisher notes that as part of an agreement to provide the notes to the Senate Whitewater Committee, “House Banking and Financial Services Committee Chairman Jim Leach announced that the House wold not try to later assert that President Clinton had waived his attorney-client privilege.”
An agreement to not to claim waiver of a privilege is not at all the same thing as agreeing that the privilege may be validly asserted, however. Indeed, in another place where Fisher describes this episode more fully, he notes that Chairman Leach explicitly made the point that the House’s agreement not to assert waiver was in the context of rejecting the existence of the privilege in the first place. See Louis Fisher, The Politics of Executive Privilege 106 (2004) (quoting Leach as noting that “one cannot waive a privilege that never came into being in the first place.”). More importantly, Leach explained that Congress was not obligated to respect the attorney-client privilege even if it applied because “[i]t is well-established by congressional precedent and practice that acceptance of a claim of attorney-client privilege rests in the sole and sound discretion of Congress, and cannot be asserted as a matter of right.” Id.
While the question of whether Congress must respect common law privileges in general, and the attorney-client privilege in particular, will no doubt remain a hotly debated topic, the Supreme Court’s poorly researched dicta on this point should not be given any weight.
Update: Rob Kelner also discussed this issue at Covington’s Political Law Blog (hat tip: @derekmuller).