Month: September 2026

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Leon Black’s Frivolous Lawsuit

Earlier this month the billionaire Leon Black sued the House Committee on Oversight and Government Reform (COGR) in federal district court, seeking injunctive and declaratory relief regarding two subpoenas that the committee had served upon him. The subpoenas related to COGR’s investigation into the activities of Jeffrey Epstein, who was a longtime business associate of Black’s.

COGR informed Black that its investigation included the following:

(i) the alleged mismanagement of the federal government’s investigation into Mr. Jeffrey Epstein and Ms. Ghislaine Maxwell, (ii) the circumstances and subsequent investigations of Epstein’s death, (iii) the operation of sex-trafficking rings and ways for the federal government to effectively combat them, (iv) ways in which Epstein and Maxwell sought to curry favor and exercise influence to protect their illegal activities, and (v) potential violations of ethics rules related to elected officials.

Although Black emphasizes that COGR’s jurisdiction (which he concedes is “broad”) is “not unbounded” and must be “in furtherance of a valid legislative purpose,” he does not appear to contest that the investigation described falls within COGR’s jurisdiction and has a valid legislative purpose. He seems to accept that COGR is legitimately investigating matters involving Epstein and Maxwell, “including federal investigative decisions, federal records, sex-trafficking enforcement, victim protection, potential ethics issues involving elected officials, and related legislative reforms.” Complaint ¶ 77.

Nor does Black appear to claim that it is unreasonable for the committee to view him as a source of potentially relevant information for its investigation. Black does not dispute COGR Chairman James Comer’s statement that “Leon Black had an extensive personal and financial relationship with Jeffrey Epstein spanning decades and paid him at least $158 million after Epstein became a registered sex offender.” These facts alone would warrant inquiring of Black to determine what information he might have regarding the subjects of the committee’s investigation.

Indeed, although Black does not expressly admit this, his complaint suggests he had no objection to COGR’s inquiring of him regarding his financial relationship with Epstein and any knowledge he may have had regarding Epstein’s sex-trafficking and other illicit activities. (He claims to have “no knowledge of any of Epstein’s heinous conduct. Complaint ¶ 38.) Black stresses that he voluntarily appeared for an interview by the committee staff and was prepared to answer questions about “his prior professional relationship with Epstein.” Complaint ¶ 28. However, Black informed the committee through counsel that he would “decline to answer questions relating solely to his personal life and the personal lives of third parties.” Complaint ¶ 26.

Specifically, Black does not want to provide any documents or testimony to the committee regarding the subject of non-disclosure agreements (NDAs) that he has entered into with various women. How many such NDAs exist? Black explicitly acknowledges the existence of two. Complaint ¶ 30. He implicitly acknowledges the existence of multiple additional NDAs because he says that “[c]ounsel for certain of these individuals” have insisted that Black not provide information about “their clients” or the NDAs they signed. Complaint ¶ 33. However, at his voluntary interview Black declined to answer when staff asked “[h]ow many NDAs are you a party to?” Complaint ¶ 31. So we can assume the answer to that question is at least five, and maybe a lot more than that.

In Black’s view, the fact that he, billionaire benefactor and close personal friend of Jeffrey Epstein, entered into NDAs with multiple women has nothing to do with Epstein and therefore has no bearing on COGR’s investigation. This might be less than obvious to the committee in light of evidence such as that spelled out in Senator Ron Wyden’s March 20, 2026 letter to Black, which included the following passage:

[R]ecords unsealed by the DOJ indicate that Epstein may have served as a “fixer” regarding women who were paid tens of millions of dollars in exchange for their silence. Unsealed records indicate that you may have funneled hush money payments to women using Epstein as a middleman, raising concerns of potential money laundering. Epstein also provided the location of women on your payroll to a well-connected Russian government operative and asked for “suggestions” on how to deal with them.

This sounds to me like something COGR could reasonably inquire about and not, as Black argues, simply private information with no possible bearing on its investigation.

Legal Analysis

For purposes of our discussion, however, it makes little difference whether we accept Black’s characterization of COGR’s subpoenas. That is because the court does not need to, and almost certainly will not, reach the issue whether COGR is entitled to ask Black about the NDAs or any other particular subject. Instead, Black’s lawsuit must fail because it is well-settled that courts lack power to restrain congressional committees from issuing or enforcing a subpoena, regardless of the recipient’s claim that the subpoena violates constitutional privilege, was improperly motivated, or is otherwise unlawful. Continue reading “Leon Black’s Frivolous Lawsuit”

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The Unitary Executive (Part 7): Slaughtering Accountability

If there is one central idea of the unitarians, it is that the president should control all executive authority because he can then be held accountable for the use or misuse of that authority. Related is the idea that independent officers or agencies are unaccountable. The Slaughter decision relies heavily on the narrative that the framers rejected a plural or divided executive where the chief magistrate would be little more than the chair of an executive council. See Trump v. Slaughter, 609 U.S. __, slip op. at 5-9 (2026) (hereinafter “Slaughter Maj. Op.”).

Chief Justice Roberts explains that the reason for departing from this weak executive model, which prevailed in most of the early state constitutions, was that a single strong executive was needed to focus responsibility and ensure that the chief executive was accountable to the people. Diffusing executive power, it was thought, would enable the chief executive to shift responsibility to others and create confusion in the public mind as to whom should receive credit or blame for executive actions. In contrast, a single empowered president would, in the words of James Iredell, “be personally responsible for everything.” Slaughter Maj. Op. at 9 (quoting Answers to Mr. Mason’s Objections to the New Constitution (1788), in Pamphlets on the Constitution of the United States 348 (P. Ford ed. 1888)) (emphasis added by the Court, I think).

The chief justice notes that the creation of a strong presidency was facilitated by the fact “everyone at the Convention knew who that President would be—the Convention’s presiding officer, George Washington.” Slaughter Maj. Op. at 7-8. See also The Living Presidency at 32 (“This was not a constitution built to curb a Geroge III, a Richard Nixon, or a Chairman Mao. It was built to empower the virtuous, selfless, and thoughtful George Washington.”).

This observation is presumably not just a passing pleasantry. It suggests that the framers may have erred on the side of a strong presidency on the assumption that presidents would have a character like Washington’s. This in turn implies that it might not work as well for presidents less virtuous, selfless, and thoughtful than Washington, to say nothing of presidents less virtuous, selfless, and thoughtful than George III or Nixon (I’ll leave Mao out of it).

Such an observation would make perfect sense if we were discussing, say, the pardon power. The Constitution on its face grants a broad pardon power, which may have been influenced by the fact the framers believed that Washington would use it carefully and responsibly. The Court might properly say that it cannot narrow the scope of the pardon power on the ground that the framers did not anticipate how it would be abused by modern presidents. The remedy for this problem would be the political process, most likely in the form of a constitutional amendment.

But the Court’s approach to the unitary executive is different. Apart from the reference to Washington, it gives no consideration to the possibility that the strongly unitary executive might have a downside or negative consequences unforeseen by the framers. It avoids making any response to the potential (and indeed observable) dire consequences of the unitary executive, though they are clearly identified in Justice Sotomayor’s dissent and Justice Gorsuch’s concurrence. Instead, the Court simply asserts (repeatedly) that anything other than its version of the unitary executive amounts to a fourth branch of government which destroys democratic accountability through the president.

The Court’s claims in this regard are particularly striking given the fact that, by the Court’s own admission, its version of the unitary executive has not prevailed during much of the republic’s history. From 1867 to 1887, the Tenure of Office Act was in force, placing substantial limits on the president’s ability to remove any principal officer. From 1935 to 2026, presidential removal of principal officers of independent agencies was restricted under the (now overruled) doctrine of Humphrey’s Executor and for most of that time Congress was understood to have substantial latitude in designating agencies and functions as independent. Finally, during the period from 1887 to 1926, when the Court decided Myers, there were a number of statutes which restricted presidential removal of particular types of officers, including the restriction on removal of postmasters struck down in that case.

Given the many decades during which the president’s removal power was (in the Court’s view) unconstitutionally restricted, one would expect abundant evidence of the negative consequences the Court associates with a non-unitary executive. For example, instances in which the president was unable to ensure that the law was faithfully executed. Or examples of unaccountable agencies executing the law in a manner strongly opposed by the president. Or evidence of public confusion over responsibility for the actions of independent agencies. Strangely, none of this information is presented by the Court’s opinion.

Continue reading “The Unitary Executive (Part 7): Slaughtering Accountability”

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The Unitary Executive (Part 6): The Case of the Attorney General

At least since Watergate the confirmation of an attorney general has been considered a matter of particular importance and sensitivity. This reflects both the necessity of ensuring that the administration of justice is conducted impartially and the difficulty in drawing clear lines as to how the president and White House may properly exercise influence over the Department of Justice. See Green & Roiphe, 70 Ala. L. Rev. at 6 (“It is not always easy to distinguish between legitimate policy objectives reflecting the President’s platform and agenda and illegitimate interference with prosecutorial discretion.”). Accordingly, senators have relied on the professional reputation and character of the nominee, assurances of independence by the nominee, and the nominee’s willingness to abide by prophylactic policies such as those limiting contacts between the White House and the Department of Justice. See id. at 22 (“Attorney General nominees since Watergate have endorsed the principle of prosecutorial independence from the President, and Senators have regarded a commitment to independence from the President as an essential qualification for the position.”).

This safeguard, however, has been undermined, perhaps fatally, by two developments. The first is President Trump’s constant and flagrant interventions in criminal cases to benefit his friends and harm his enemies. These interventions, both public and private, make a mockery of any norms of political non-interference with the administration of justice. The second development is unitary executive theory itself, which holds that all executive power belongs to the president personally and that executive officers merely exercise it on his behalf. The idea of independence, whether of an executive officer or an executive agency, is therefore seen as a contradiction in terms and a violation of the constitutional order. The Supreme Court seems to have validated this conclusion with its pronouncement that the president enjoys “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” Trump v. United States, 603 U.S. 593, 621(2024). As Professor Jack Goldsmith has noted, “[t]he Court applied this principle to deny Congress and the courts the power to stop the president from using DOJ law enforcement tools to achieve what would otherwise be a crime.”

The Decline and Fall of DOJ Independence

The two Trump administrations illustrate the decline and fall of DOJ independence. In the first Trump administration, Senator Jeff Sessions was nominated and confirmed as attorney general. During the confirmation process, he made various commitments to the Senate, including that he would seek the advice of Justice Department ethics experts in determining whether to recuse himself from investigations relating to alleged Russian interference in the 2016 presidential election. Sessions ultimately did recuse himself from the investigation, leading to sharp and public rebukes from Trump, who believed that Sessions should have asserted control over the investigation in order to protect Trump’s personal and political interests. There is little doubt this was the reason Trump fired Sessions immediately after the 2018 election. Although the dismissal of Sessions should have raised the same concerns as Duane’s firing and the Saturday Night Massacre, it provoked little congressional or public backlash.

Trump’s next nominee for attorney general, Bill Barr, was pressed for and gave a series of assurances to the Senate about his independence. In his written testimony, Barr repeated an assurance he had given the Senate during his confirmation hearings 27 years earlier:

The Attorney General has very special obligations, unique obligations. He holds in trust the fair and impartial administration of justice. It is the Attorney General’s responsibility to enforce the law evenhandedly and with integrity. The Attorney General must ensure that the administration of justice – the enforcement of the law – is above and away from politics. Nothing could be more destructive of our system of government, of the rule of law, or the Department of Justice as an institution, than any toleration of political interference with the enforcement of the law.

In his oral testimony, Barr elaborated. He made clear that whatever guidance was received from the president, decisions on specific prosecutions were the responsibility of the attorney general. In response to questions from Senator Feinstein, he said: “So, in my opinion, if he attempts–if a President attempts to intervene in a matter that he has a stake in to protect himself, that should first be looked at as a breach of his constitutional duties–whether it also violates a statute, depending on what statute comes into play, and what all the facts are.”

In response to Senator Durbin, Barr said “I will not be bullied into doing anything I think is wrong by anybody, whether it be editorial boards or Congress or the President.” In response to Senator Coons, he said he would not carry out an illegal instruction comparable to Nixon’s direction to fire the special prosecutor and stated that “on the enforcement side, especially where matters are of either personal or political interest to people at the White House, then there would be–there has to be an arm’s length relationship.”

Continue reading “The Unitary Executive (Part 6): The Case of the Attorney General”

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The Unitary Executive (Part 5): The Psychology of Office

In the last post we discussed how the unitary executory changes the psychology of executive office from being one of an agent of the law to being an agent of the president. Some might object, however, that the unitary executive can co-exist with a measure of independence among executive officers. Professor Prakash seems to suggest as much when he observes that “[t]he Senate’s role in consenting to appointments is vital, not only because senators vet a candidate’s fitness for office, but also because senators often convince nominees to supply various assurances, including, among other things, their future use of delegated powers, the advice these nominees will give the president, and the nominees’ willingness to resign should presidents abuse their power.” Living Presidency at 252-53.

Under some circumstances, there would be merit to this point. As discussed in prior posts, in the past the conventional wisdom was that presidents could not properly direct officers in the exercise of powers committed to their discretion. Regardless of whether the executive branch fully embraced this understanding, there were strong political and legal disincentives to prevent presidents from overtly attempting to direct executive officers in their decision-making. A determined officer therefore had significant leverage to push back against presidential pressure.

For example, from the Nixon administration to the early Obama administration, there were a number of occasions where presidents and “dependent” regulatory agencies (i.e., those headed by officers removable at will) clashed over the issuance of regulations or other specific regulatory decisions. See generally Robert V. Percival, Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?, 79 Fordham L. Rev. 2487, 2497-2532 (2011). These disputes were resolved in a variety of ways. Sometimes agency officials knuckled under to White House pressure; sometimes the president backed down and the agency went ahead with its preferred action; sometimes a compromise was reached; and sometimes an agency official resigned in protest or in recognition of irreconcilable differences. Moreover, because judicial review of the ultimate agency action or inaction was often available, courts sometimes overturned the agency decision on the ground that it resulted from improper communication or political pressure from the president or White House. See id. at 2504-05, 2508-09 & 2523-24 (citing cases).

Unitarians and nonunitarians have debated whether these episodes support or undermine the proposition that the president has constitutional directive authority over regulatory decisions. Compare Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 348 (2008) (arguing that this history is consistent with unitary executive theory) with Percival, 79 Fordham L. Rev. at 2499-2500 (arguing the contrary). But the relevant question here is what degree of control presidents had in actual practice, not in constitutional theory. Presidents undoubtedly had indirect influence over agency decisions by virtue of the appointment power, which enables them to select individuals inclined to follow their policies generally, and they also could use their internal bully pulpit to try to influence specific decisions. Had they been willing to accept the political costs and legal/practical risks, they could have fired uncooperative officials and tried to replace them with more pliant appointees. None, however, took this step.

Furthermore, none of the presidents in question overtly challenged the norm that formal decisionmaking authority rested with the agency, not with the president. Significantly, while they issued executive orders establishing internal review mechanisms for regulatory actions, they stopped short of claiming directive authority over the decisions of dependent agencies. See Percival, 79 Fordham L. Rev. at 2513 (noting that “the Reagan, Bush, and Clinton executive orders expressly eschewed assertions of [directive] authority”); id. at 2530 (“President Obama continues the tradition of eschewing directive authority in the executive order outlining his regulatory review program.”). Thus, in practice agency officials could rely on the norm or understanding that they had the ultimate decisionmaking authority to resist presidential pressure. Cf. Percival, 79 Fordham L. Rev. at 2533 (the question of directive authority “determines whether agency heads have a legal entitlement to refuse to comply with a presidential directive when it directs them to act in a way they believe is illegal, improper, or unwise”). There was simply no easy mechanism for a president to overcome a determined agency official’s refusal to make a particular regulatory decision.

The unitary executive theory changes the psychology of office by identifying the president as the constitutional decisionmaker. The agency official makes decisions only as a matter of delegation from the president, and that delegation can be revoked at any time. Even if the regulatory decision constitutes the jural act of the agency, rather than the president, it would be constitutionally wrongful for the agency officer to refuse to carry out the president’s direction, just as it would be to refuse to carry out an order of a court. Moreover, the unitary executive theory, at least the version endorsed by Prakash, would say that the president could perform the jural act himself, a theory that goes beyond anything that Jackson or Nixon claimed. According to Prakash, Jackson could have simply bypassed Duane and directly ordered the withdrawal of federal funds from the Bank of the United States. Nixon likewise could have directly ordered the withdrawal of the grand jury subpoena and/or fired Cox personally. This theory leaves little or no room for an executive officer to assert a measure of decisional independence.

Continue reading “The Unitary Executive (Part 5): The Psychology of Office”