Does the President Enjoy Absolute Testimonial Immunity?

As we saw in my last post, for presidential advisers to have testimonial immunity it is necessary but not sufficient that the president himself have such immunity. Assistant Attorney General Rehnquist noted in 1971 that “[e]veryone associated with the Executive Branch from [the Aaron Burr treason trial] until now, so far as I know, has taken the position that the President himself is absolutely immune from subpoena by anyone . . .” Rehnquist Memorandum at 3. Of course, taking a position is not the same thing as establishing that the position is correct.

OLC’s current justification for the president’s immunity consists of little more than the bare assertion that “Congress may no more summon the President to a congressional committee room than the President may command Members of Congress to appear at the White House.” 5-20-19 OLC Opinion at 1. I have three observations about this assertion. First, it should be noted that it is more modest than the position stated by Rehnquist in 1971. The latter was that the president was immune from “subpoena by anyone.” OLC today refers only to subpoena by Congress, although its reasoning, premised on the fact that the “President stands at the head of a co-equal branch of government,” would seem to apply equally to judicial subpoenas. See 5-20-19 OLC Opinion at 4. By confining its claim, OLC avoids the need to deal with the Supreme Court’s decision in United States v. Nixon, 418 U.S. 683 (1974), which suggests that “even the President may not be absolutely immune from compulsory process more generally.” Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F.Supp.2d 53, __ (2008).

Second, as others have noted, the attempt to equate congressional and presidential subpoena authority makes no sense because the president has no subpoena authority and thus lacks the power to command anyone (other than, I suppose, his subordinates) to appear at the White House. The president’s inability to compel the appearance of members of the Congress therefore says nothing about the subpoena authority of congressional committees.

Third, the comparison makes even less sense when one considers that members of Congress have no immunity from subpoenas themselves. Representatives and senators have been required to appear and testify in many types of proceedings despite the existence of an express constitutional privilege against arrest which was designed to allow them to carry out their legislative duties without interruption while Congress is in session. Though no less authorities than Thomas Jefferson and Joseph Story believed this provision gave members a (temporary) immunity from subpoenas ad testificandum, this position has never been accepted by the courts. See 2 Deschler’s Precedents of the U.S. House of Representatives 817 (“The rulings of the courts, both state and federal, have uniformly expressed the principle that a summons or subpena is not an arrest, and is not precluded by the Constitution.”). Similarly, although members have a privilege against being questioned about legislative activities under the Speech or Debate Clause, this does not equate to an absolute testimonial immunity or the right to refuse to appear when subpoenaed. See Miers, 558 F.Supp.2d at __ (“Members cannot simply assert, without more, that the Speech or Debate Clause shields their activities and thereby preclude all further inquiry.”) Thus, OLC’s comparison would seem to support, rather than refute, the president’s amenability to subpoena. Id.

Interestingly, while OLC relies on many of its prior memoranda in support of its contention that presidential advisers have absolute testimonial immunity, it fails to mention a 1973 memorandum which expresses doubt as to whether even the president himself has such immunity. After discussing the dispute between Chief Justice Marshall and President Jefferson over whether the latter could be required to give evidence in the Aaron Burr treason trial, the memorandum notes that “[m]odern legal discussion of the power of the courts to subpoena the President still adheres to Chief Justice Marshall’s view that the President is not exempt from judicial process, in particular the judicial power compel anyone to give testimony.” Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Presidential Amenability to Judicial Subpoenas 5 (June 25, 1973) (available in OLC FOIA electronic reading room) (hereinafter “Dixon memorandum”). It goes on to note that it is “questionable whether there is adequate precedent for the proposition that the constitutional doctrine of separation of powers precludes vel non the issuance of judicial subpoenas to the President.” Dixon Memorandum at 7.

The same memorandum suggests that any presidential immunity or protection against subpoenas may be limited in cases of alleged official wrongdoing:

A special situation exists with respect to claims of privilege where charges of official wrongdoings are concerned. There appears to be no pertinent precedent as to whether a President can claim privilege in judicial proceedings in that situation. There have been, however, several statements made by Presidents and Attorneys General that privilege will not be invoked vis-a-vis Congress where charges of official wrongdoing are involved. Significantly those statements have usually been made [in the context of] the Congressional power of impeachment.

Dixon Memorandum at 12 (citations omitted) (emphasis added).

Dixon concludes that “the subpoenaing of a President involves a number of complex issues depending on the circumstances in which and the purposes for which the subpoena is issued.” Dixon Memorandum at 13. For example, “it could be argued that a President will not or cannot claim privilege where official misconduct is the subject matter of grand jury proceedings or of a criminal prosecution.” Id. Moreover, “it may well be that a President will not or even may not claim privilege where Congress performs its specific constitutional responsibilities in the field of impeachment.” Id. These observations, it should be noted, precede the Supreme Court’s decision in United States v. Nixon, which only bolsters Dixon’s skepticism regarding the president’s absolute immunity from subpoena.

While OLC’s position on presidential testimonial immunity has little support in judicial precedent or legal doctrine, historical practice is more favorable. As Andy Wright details here, presidents rarely have testified in judicial or congressional proceedings and when they have done so it is generally with an accommodation to indicate the voluntariness of their cooperation. Perhaps most strikingly, neither Andrew Johnson nor Bill Clinton testified in their impeachment trials, nor did Nixon testify in the House Judiciary Committee inquiry regarding his impeachment. I would summarize this history as reflecting a strong constitutional convention against forcing a president to testify in any but the most compelling circumstances.

All this being said, there is no direct judicial precedent on the question of whether a sitting president is entitled to absolute testimonial immunity.  I tend to agree with Steve Vladeck and Ben Wittes that it is more likely than not that the Supreme Court would reject a claim of such immunity, but I also agree with them that “it is not a sure thing, and the President has plausible arguments available to him that a court would have to work through before enforcing a subpoena for his testimony.” There is particular uncertainty as to how newer members of the Court may view the president’s claim of absolute testimonial immunity (and some reason to believe that Justice Kavanaugh, in particular, may be sympathetic to such a claim). Continue reading “Does the President Enjoy Absolute Testimonial Immunity?”

OLC’s Evolving Position on Testimonial Immunity

In this post I will look at OLC’s claim that its advice on testimonial immunity of senior presidential advisers has been consistent “for nearly five decades.” See 5-20-19 OLC Opinion at 1. As we saw in my first post, since the 1940s the executive branch has generally resisted congressional demands for testimony from such advisers, but on a number of occasions it has permitted these advisers to testify in open congressional hearings and on other occasions it has agreed or offered to provide information from these advisers in alternative ways. Until the mid to late-1990s, the executive branch’s position on this subject was not presented to Congress as an assertion of absolute constitutional immunity, but more like the prophylactic rule described in my last post. Moreover, when OLC’s internal memoranda from this time period are scrutinized (to the extent they are available), they are compatible with this more modest interpretation of its position.

It was not until the Clinton administration that OLC articulated a formal and definitive defense of the proposition that senior presidential advisers are constitutionally immune from compelled congressional testimony. Even then, OLC seems to have accepted this proposition without any serious legal analysis and, in particular, without any consideration of important developments in the case law since Assistant Attorney General William Rehnquist first casually suggested it in 1971. Continue reading “OLC’s Evolving Position on Testimonial Immunity”

OLC’s Law Office History of Testimonial Immunity

On May 20, 2019, the Office of Legal Counsel released an opinion entitled “Testimonial Immunity Before Congress of the Former Counsel to the President,” in which OLC concludes that former White House counsel Don McGahn is constitutionally immune from being required to appear, much less testify, before the House Judiciary Committee. Before analyzing OLC’s substantive argument, I want to address two factual assertions it makes about historical practice and its own legal advice regarding this issue.

OLC makes two basic claims. First, it contends that executive branch practice “at least since the Truman Administration” provides a “strong historical foundation for the Executive Branch’s position that Congress may not compel the President’s senior advisers to appear and testify.” Second, it asserts that “for nearly five decades” the Justice Department has maintained that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.”

One might question the relevance of these assertions even if they were true. Neither the executive branch’s unilateral practice of objecting to congressional testimony by White House officials nor its internal opinions regarding the constitutional basis for this practice would constitute authority binding on the other branches, particularly in the absence of any evidence or even allegation of congressional acquiescence. Nevertheless, it is worth scrutinizing OLC’s claims if for no other reason than that it seems to place a great deal of reliance on them. Perhaps this is because, as Judge Bates observed in 2008, the only authority offered by the executive branch for the proposition that White House officials enjoy testimonial immunity is OLC’s prior opinions on the subject.

That being said, the historical record does not support either of OLC’s claims. Today we will look at the evidence with regard to OLC’s description of the historical record. In a future post we will look at its claims regarding its prior advice.

Practice Prior to the Nixon Administration. The Executive Office of the President dates back only to the 1930s, and OLC maintains that since that time “the long-standing policy has been to decline invitations for voluntary appearances and to resist congressional subpoenas for involuntary ones” with respect to White House officials.

OLC has identified only six instances in which White House officials attempted to refuse congressional invitations or demands for testimony during the period prior to the Nixon administration. In three of these cases, the official in question ultimately agreed to testify as the result of political or legal pressure (or both) exerted by Congress.

[Note: CRS has identified a couple of additional instances during the 1940s where White House officials testified regarding allegations they misused their positions for personal gain, but it is not apparent there was any objection in those cases. See CRS Report on Presidential Advisers’ Testimony Before Congressional Committees: An Overview 7-8 (Apr. 10, 2007).]

First, in 1944 during the Franklin D. Roosevelt administration, a Senate subcommittee subpoenaed a presidential aide, Jonathan Daniels, to testify about his reported attempts to compel the head of the Rural Electrification Administration to resign. The aide appeared but refused to testify based on his confidential relationship with the president. After the subcommittee unanimously recommended Daniels be held in contempt, the aide wrote to the subcommittee that he had conferred with the president, who had decided his testimony would not be contrary to the public interest, and was therefore willing to return to the Hill and testify.

A second instance (which is not mentioned in OLC’s May 20 opinion but comes from earlier OLC discussions of this period) concerns Donald Dawson, an aide to President Truman, who was asked in 1951 to testify before a Senate subcommittee investigating the Reconstruction Finance Corporation. Truman “reluctantly” gave permission to Dawson to testify because the inquiry included allegations of wrongdoing against Dawson and Truman wished to give the aide an opportunity to clear his name.

Finally, in 1958 during the Eisenhower administration, the president’s chief of staff, Sherman Adams, testified (with the president’s approval) before a House subcommittee regarding allegations he had improperly interfered with administrative proceedings for the benefit of a New England industrialist with whom he had a longstanding friendship.

On the other hand, OLC identifies three instances in which presidential advisers successfully refused to testify before Congress during this period. One concerned John Steelman, an aide to President Truman, who in 1948 refused subpoenas to testify before a House subcommittee about his communications with Truman regarding administration of the Taft-Hartley Act during a strike. Another also involved Sherman Adams, who in 1955 successfully refused an invitation from a Senate subcommittee to testify regarding a contract between the Atomic Energy Commission and two power companies. Finally, in 1968 an aide to President Lyndon Johnson, W. DeVier Pierson, declined to testify before the Senate Judiciary Committee regarding allegations that Associate Justice Abe Fortas, whose nomination to become chief justice was pending, had inappropriately been involved in drafting certain legislation while serving on the Supreme Court.

It is difficult to see how this history shows anything other than the fact that the White House generally prefers that its staff not testify before Congress. Indeed, in a 1971 internal memorandum (about which more later), Assistant Attorney General William Rehnquist described the practice during this period as “erratic” and noted that “[t]hese precedents are obviously quite inconclusive.” See Memorandum for John D. Ehrlichman, Assistant to the President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Power of Congressional Committee to Compel Testimony of “White House Staff” 4, 6 (Feb. 5, 1971) (“Rehnquist Memorandum”). This would seem to directly contradict OLC’s current assertion that these “precedents” provide a “strong historical foundation” for its constitutional theory.

Practice Since the Nixon Administration. While the  pre-Nixon history provides little or no support for OLC’s position, at least its description of that history appears to be fair. On the other hand, its description of the later history suffers from egregious cherry-picking. Although OLC acknowledges that its examples are “not exhaustive,” it implies that they fairly represent the practice during this period. This is not so.

Nixon administration. OLC cites the refusal of Peter Flanigan, a White House aide, to testify before the Senate Judiciary Committee regarding the nomination of Richard Kleindienst to be attorney general. Somehow it fails to mention that the White House relented within a few days and that Flanigan both appeared before the committee and answered written questions for the record. See Louis Fisher, The Politics of Executive Privilege 73 (2004).

Carter administration. OLC cites two examples of Carter White House aides declining to appear in public congressional hearings, but it neglects to mention that both the White House counsel and national security adviser appeared at congressional hearings regarding alleged misconduct by the president’s brother. Fisher, supra, at 202.

Reagan administration. OLC cites the refusal of the White House counsel to appear in person before a congressional committee (he did agree to answer written questions) regarding allegations of corruption against the secretary of labor. It does not mention President Reagan’s directive to all administration officials to cooperate with the congressional investigation of Iran-Contra, which resulted in a number of former White House officials testifying before Congress. Fisher, supra, at 62-64, 202.

Clinton administration. OLC cites President Clinton’s directive to Beth Nolan, counsel to the president, not to testify before a House committee regarding a clemency decision, but it does not mention that Nolan, along with a number of other former White House aides, testified before the same committee regarding Clinton’s subsequent pardons. Fisher, supra, at 219. It also overlooks the fact that “[a] series of congressional investigations throughout the Clinton years required a large number of White House aides to testify about procedures and actions involving contacts with the Treasury Department, the dismissals of employees in the Travel Office, Whitewater, and access to FBI files.” Fisher, supra, at 203.

Even where OLC acknowledges that presidential  aides have testified, it downplays the significance of these facts. For example, OLC acknowledges in a footnote that during Watergate President Nixon allowed current and former White House officials to appear before Congress, first in closed session and then later in open hearings. However, OLC interprets such occurrences as merely “accommodations” to Congress, as opposed to evidence that executive branch practice with respect to congressional testimony by presidential advisers has been inconsistent, non-absolute, or both. This approach renders OLC’s position non-falsifiable since it only counts evidence that supports it.

Conclusion

Rather than constituting a “strong historical foundation” for OLC’s claim of absolute immunity, the evidence supports Lou Fisher’s conclusion that while Congress does not call White House officials to testify regarding routine oversight matters, it does do so when the circumstances warrant, particularly in cases where these officials have an operational role or are fact witnesses to alleged misconduct. See Fisher, supra, at 226-227. Under these conditions White House officials have in fact testified, “and in large numbers.” Id. at 199; see also CRS Report, supra, at 7-20.

 

 

Why the Mazars and New York Bank Cases are Moving So Fast, and Why Others Will Not

On Monday, May 20, 2019, Judge Mehta dismissed Trump v. Committee on Oversight and Reform, No. 19-civ-01136 (D.D.C.). The judge’s ruling came just four weeks after President Trump (in his personal capacity) and several of his businesses filed suit to enjoin enforcement of a congressional subpoena to Mazars, an accounting firm that had worked for the Trump companies.  This quick resolution may have surprised some observers because legal experts have been predicting that legal fights between the administration and Congress are likely to drag on for many months if not years and could well be still in litigation when this congress expires in January 2021.

It is important to understand, however, that the Mazars case (and the case in New York which Trump seeks to block congressional subpoena to banks for his financial records) are in a very different procedural posture from other ongoing information disputes (such as those over the Mueller report and related documents, tax returns, or the testimony of current or former administration officials). Mazars and the New York banks are third parties that have indicated they will comply with the congressional subpoenas unless ordered to do otherwise by a court. Therefore, it is Trump’s legal team which needs judicial intervention to alter the status quo, whereas in the other disputes Congress will likely be in the position of asking for judicial assistance.

In the Mazar and New York bank cases, Trump’s legal team initially asked for emergency judicial relief (i.e., a TRO) in order to prevent the cases from becoming moot by virtue of the third parties complying with the subpoenas. In both cases, however, the House Counsel’s office agreed to postpone the return date for the subpoenas until 7 days after a district court ruling on the motion for a preliminary injunction, thereby rendering it unnecessary to have a TRO. As part of the same agreement, the parties agreed to an expedited schedule for briefing and oral argument (which both courts accepted and entered as orders).

As the result of that agreement, Trump’s team was now in the position of nominally seeking expedited relief (a preliminary injunction), but actually no longer needing it so long as the court did not rule on the preliminary injunction motion. This anomaly presented itself when Judge Mehta proposed consolidating the preliminary injunction hearing with a final trial on the merits. Trump’s lawyers objected, saying that they needed more time to prepare for such a trial, and suggesting that instead the preliminary injunction hearing could be pushed back so the record could be fully developed. The House oversight committee, in contrast, had no objection to the proposed consolidation, but emphasized that the preliminary injunction hearing should go on as scheduled regardless.

Judge Mehta did in fact consolidate the merits trial with the preliminary injunction, but it is not clear this mattered much. If the judge had simply denied the preliminary injunction, Mazars would have been expected to comply with the subpoena after 7 days regardless. Presumably Trump’s lawyers would have asked for the judge to stay his ruling until a final merits decision, but they would have been in no better posture (and arguably somewhat worse) than they were as a result of the consolidation. Following the court’s ruling against them on both the preliminary injunction and the merits, they asked the court for a stay, which was denied. Now the plaintiffs’ only option is to obtain a stay from the D.C. Circuit so as to prevent the case from becoming moot before the appellate court can hear it. Had the case not been consolidated, they probably could have sought such relief from the appellate court, but it might have been even harder to get the court to intervene on a matter that was still before the district court (admittedly I am just guessing about this).

In any event, unless the D.C. Circuit issues a stay of the district court’s ruling, Mazars will be required to comply with the subpoena as early as next week. If Judge Ramos, who is presiding over Trump v. Deutsche Bank, No. 1:19-cv-03826 (SDNY) and is hearing argument today,  similarly denies Trump’s preliminary injunction motion, that case could also end within a week of the ruling unless either the district court or the Second Circuit issue a stay.

None of the other information disputes currently percolating are likely to move anywhere nearly as quickly as this. If cases are brought directly against the administration (eg, for the Mueller report or Trump’s tax returns), the congressional plaintiff will not be able to seek expedited relief (a TRO or preliminary injunction) since it will be seeking to change, not preserve, the status quo. Moreover, the executive branch defendant will have little incentive to agree to an expedited briefing or argument.

Exactly how fast a case may move at the district court level will depend on a number of factors, including the complexity of the legal issues and whether any discovery or document review is necessary to resolve the matter (going through the 1.4 million pages of Mueller documents to determine the applicability of different executive privilege claims, for example, could take a very long time). But even a case that presents a relatively straightforward legal issue is likely to take a few months with a normal briefing and argument schedule. In the Miers case, for example, Judge Bates issued his ruling in favor of the House Judiciary Committee about 4 and a half months after the action was filed.

Of course, the district court has a great deal of discretion with regard to scheduling matters. Judge Mehta clearly believed that it was important to expedite the Mazars case (even going so far as to consolidate the merits trial on his own initiative). Even there, though, the court’s reasons for acting quickly were based in part on the fact that it was being asked to interfere with the functioning of a coordinate branch of government. A district court might be less inclined to act quickly when it is being asked by the legislative branch to order the executive branch to turn over information.

Furthermore, however quickly the district court decides the case, the executive branch still has the right to appeal that decision, to seek rehearing en banc of any appellate decision, and ultimately to petition the Supreme Court for review. Even assuming that neither the en banc court nor the Supreme Court decide to hear the case, it is difficult to imagine the full process being complete in much less than a year.

One category of case that might be resolved more quickly would be enforcement actions by Congress against former executive officials like Don McGahn. These individuals are in a situation somewhat analogous to third parties like Mazars, in that they do not have (or purport not to have) a position or interest in whether or not they comply with the subpoena. On the other hand, they do purport to have an obligation to follow the president’s instructions with regard to asserting executive privilege (though opinions differ on whether such an obligation exists).

At any rate, if a district court orders such a former official to comply with a congressional subpoena, the    former official may not wish to risk possible contempt of court by continuing to defy the subpoena. Even if the Justice Department is able to obtain a stay from the district court or the court of appeals, the former official could decide that the district court’s decision is sufficient to release him from any further obligation not to comply. Thus, these cases could be resolved more quickly than direct suits against the executive branch, though probably not as quickly as the Mazars and New York bank cases.

Resources on Congressional Oversight and Executive-Legislative Information Disputes

As there appears to a current demand for resources on congressional oversight, executive privilege and the process for resolving executive-legislative disputes over information, I thought I would post a few suggestions as to places to look for such materials. First, there is this Congressional Investigations Research Page hosted by Georgetown Law (hat tip: Andy Wright). Second, the Congressional Oversight Manual has a list of selected readings starting at page 136. Third, Daniel Schuman has been collecting resources on the congressional oversight and subpoena power, particularly reform proposals.

Finally, here is a link to a 2002 brief filed by BLAG in Waxman v. Evans, which describes in some detail how executive-legislative information disputes have been resolved historically. To the best of my knowledge, this document has not previously been available on line.

A Better Way to Enforce Congressional Subpoenas?

In the course of writing the piece on enforcement of congressional subpoenas that I mentioned yesterday, I was looking for a copy of the House GOP white paper “A Better Way: Our Vision for a Confident America (The Constitution),” which was issued on June 16, 2016. At this time, of course, the Republican controlled Congress had experienced years of frustration in attempting to get information from the Obama administration (and, one has to imagine, was anticipating more of the same in a Hillary Clinton administration). As it turns out, finding a copy of this document online is more difficult than one would expect. Fortunately, I have located a hard copy in my files and post a link here for anyone who is interested (you’re welcome).

Among the proposals suggested by House Republicans in this paper was “expedited access to federal courts to enforce subpoenas” through legislation “requiring the executive branch to comply with deadlines in congressional subpoenas” and “providing a process for expedited court review when the House or Senate decides to bring litigation to enforce a committee subpoena, including expedited review by a three-judge panel at the district court level with immediate appeal to the Supreme Court.” These ideas would be incorporated into H.R. 4010, introduced by Rep. Darrell Issa, which passed the House in 2017 during the first session of the 115th congress but never received a vote in the Senate.

The white paper made two additional legislative proposals that did not make it into Issa’s legislation (at least in its final form). The first was to “clarify[] the nondiscretionary duty of a U.S. attorney to present a certified order for criminal contempt to a grand jury.” The second was to “statutorily eliminat[e] any privileges asserted by the executive branch when used against a congressional request for information.” Both of these would have been vigorously opposed by OLC and the executive branch on constitutional as well as policy grounds.

 

Just Security Piece on Enforcement of Congressional Subpoenas

As I have mentioned before, I have proposed a reform to House rules that would facilitate enforcement of committee subpoenas to the executive branch. Just Security has now published this piece in which I explain the justification for the rule and how it would work using the example of the House Judiciary committee’s efforts to obtain the Mueller report and underlying documents.

Trump v. Deutsche Bank and the Financial Right to Privacy Act

In Trump v. Deutsche Bank et al. (filed in the Southern District of New York), President Trump, in his personal capacity, and various of his companies have again filed to suit to block congressional subpoenas. This time the subpoenas in question were issued by two House committees (Intelligence and Financial Services) to two banks (Deutsche Bank and Capital One) seeking a wide range of financial records relating to Trump and his businesses. The case is similar to the one Trump brought against his accounting firm, except this time he has not named any members of Congress or committees as defendants. The reason for is likely tactical; by having only the banks (which are disinterested stakeholders) as defendants it may be easier to get preliminary relief from the court.

Trump’s primary objection to the subpoenas is the same as in the prior case. He contends that the subpoenas lack a legitimate legislative purpose. In addition, however, he asserts that the committees’ attempts to obtain these “account records violate the statutory requirements that apply to the federal government under the Right to Financial Privacy Act.” These are procedural requirements that apply to efforts by “any government authority” to obtain access to financial records. 12 U.S.C. § 3402. 

This is not the first time someone has raised RFPA objections to a congressional subpoena. In 2001, counsel for Staten Island Bank and Trust raised such objections to a subpoena from the House Committee on Government Reform. In a letter dated October 15, 2001, committee counsel explained that congressional investigations were not implicated by the statute because it was clearly designed to apply only to law enforcement investigations:

Enforcing laws is the province of the executive branch, at which the statute is plainly directed. Congress does, however, have a Constitutional obligation to conduct oversight and legislative fact-finding investigations.  Its power to compel document production in such investigations is a well-established necessity in order to carry out its Constitutional function.  For one to accept your construction of the statute, he would have to believe that by enacting the Financial Right to Privacy Act, Congress intended to strip itself of the power to compel the production of bank records in the conduct of a fact-finding investigation because it is not relevant to a law enforcement inquiry.  Such an interpretation would be an absurdity, and nothing in the legislative history of the Act supports it.

Justice Undone: Clemency Decisions in the Clinton White House, Second Report of the H. Comm. on Gov. Reform, H.R. Rep. 107-454, vol. 3, at 2536 (May 14, 2002). The counsel for the bank accepted the committee’s position and provided all of the responsive records. Id. at 2560.

So we will see if the president’s lawyers fare any better.

 

Recalibrating the “Subpoena Cannon”

(I know some artillery expert from Quora is going to correct my title but you get the idea).

To continue the martial metaphors, the House’s investigatory offensive against the Trump administration is meeting stiff resistance on all fronts or, one might say, running into a stone wall. The administration is refusing to cooperate with any oversight or investigation it considers to be hostile or partisan (so, basically all of them). This noncooperation can take the form of refusing to comply with document requests or subpoenas outright, simply ignoring them, delaying a final response (as in the case of the Ways & Means committee request to the treasury secretary for the Trump tax returns), placing conditions on compliance (as where the White House is refusing to allow witnesses to testify at congressional depositions unless a representative from the counsel’s office is also allowed to attend), instructing or encouraging former executive officials or others not to comply with congressional demands (as the administration apparently plans to do with respect to the Judiciary committee subpoena to former White House counsel Don McGahn), and even bringing legal action to prevent third parties from providing information to Congress (as discussed in my last post).

The situation has given rise to much handwringing in Congress, where House Democrats are predictably characterizing the administration’s actions as “massive, unprecedented obstruction.” The frustration is entirely understandable, but I agree with Andy Wright that it is a bit overwrought to describe the situation as a “constitutional crisis,” particularly at this early stage. The basic problems are ones faced by Congress in every administration, even though the scope of the investigations and sheer number of information disputes is unusual. Moreover, while it may be accurate to describe the administration as engaged in unprecedented stonewalling, it should also be remembered that the Mueller report provides Congress with an exceptional degree of visibility into the areas of the administration about which it is most concerned.

It will come as no surprise to readers of this blog that the House faces a difficult set of challenges in responding to the administration’s recalcitrance because there is no clearly established mechanism for enforcing congressional subpoenas against the executive branch. If an executive branch official refuses to testify or produce documents based on the assertion of executive privilege at the direction of the president, the Justice Department has long maintained that it will not (and constitutionally may not) prosecute the official for contempt of Congress. See, e.g.,  Response to Congressional Requests for Information Regarding Decisions made Under the Independent Counsel Act, 10 OLC 68, 85 (Apr. 28, 1986). Thus, while a House committee may vote to hold this official in contempt and report the contempt to the full House, which in turn may adopt a resolution referring the matter to the U.S. attorney pursuant to 2 U.S.C. § 194, the U.S. attorney will not present the matter to a grand jury and thus the House’s action will be largely symbolic.

It should be noted, however, that this calculus is arguably somewhat different in the case of a former executive branch official. While it is clear that the executive branch would contend that a former official should obey the president’s instructions as to the assertion of executive privilege, and it is highly likely that it would employ similar reasoning to avoid presenting any contempt citation to a grand jury, there is at least some possibility that a future administration might reach a different conclusion, placing the former official in legal jeopardy. At the very least, the former official might worry that having a formal citation of contempt by the House on the record might generate legal expenses or other collateral consequences down the road.

With criminal contempt largely useless, then, the House is considering other options, including inherent contempt. Again, as readers well know, this is the process by which the House (or Senate) can send the Sergeant at Arms to take a recalcitrant witness into custody, bring him before the bar of the house to explain his refusal to testify, and remand him to custody until he changes his mind. Although members of Congress are starting to make noises about reviving this process (something that happens periodically whenever there is divided government), these threats are not very credible in light of the fact that the House has not used it in about a century.

To solve that problem, the estimable Mort Rosenberg has proposed a House rule that would use fines, rather than arrest and detention, as the primary means of forcing executive branch officials to comply with congressional subpoenas. Judiciary committee chairman Nadler has apparently raised this as a way “to put teeth in his party’s numerous investigative inquiries, many of which Trump officials are stonewalling or simply ignoring.”

Not surprisingly, the Justice Department has suggested that it would be unconstitutional to employ inherent contempt against executive branch officials in situations where (it claims) separation of powers principles prohibit the use of criminal contempt. See 10 OLC at 86. There are also obvious practical problems that would be involved with attempting to detain an executive official. See id. (“it seems most unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison an Executive Branch official who claimed executive privilege”). The House’s “cannon” is, after all, only metaphorical, and the executive branch has the Sergeant at Arms and the Capitol Police pretty well out-gunned. Imposing fines instead of imprisonment might mitigate, or at least postpone, this problem, but if the House wanted to have this option available it should have included it in the rules package that was adopted at the beginning of the congress.

Another suggestion is that the House could use political remedies, such as the appropriations process, to punish officials or agencies that refuse to comply with congressional demands for information. Professor Josh Chafetz is a big proponent of this technique. It seems to me that this can be effective when the resistance to congressional demands is coming from the agency level, but it is much harder to do when it is coming from the president (and harder still with this president). To the extent the House has leverage in the appropriations process vis a vis the Senate and the president, it is likely to use it for higher priority items than winning disputes over information access. Put another way, I don’t see the House shutting down the government to get an unredacted copy of the Mueller report.

This leaves what is most commonly thought of as the House’s best legal remedy, a civil action seeking declaratory or injunctive relief to enforce its right to obtain information. Most commonly, this would take the form of an action to enforce a subpoena, but other actions are also possible. For example, the Ways & Means committee could bring suit to enforce its statutory rights to obtain tax return information under 26 U.S.C. § 6103(f). Note that such an action would be analogous to an action to enforce congressional rights to information under 5 U.S.C. § 2954 (commonly known as the Rule of Seven), which is at issue in the case of Cummings v. Murphy currently pending in the D.C. Circuit (though likely presenting a stronger case for congressional standing than Cummings if the committee’s action were authorized by House resolution).

Civil enforcement of subpoenas presents its own set of challenges, namely (1) the absence of any clearly defined process for bringing such actions and unsettled legal issues of justiciability; (2) the fact that courts do not like to be in the middle of political disputes between the legislative and executive branches; and (3) the length of time that it would take to obtain a final enforceable court order, particularly because even if the House prevails at the district court level there will be inevitable appeals to the D.C. Circuit and the Supreme Court. Some of these problems could have been mitigated had the House adopted a brilliant proposed rule (still my blog) on civil enforcement of subpoenas, but alas it failed to do so. Nevertheless, civil enforcement remains the most promising avenue for legal vindication of the House’s constitutional rights. Continue reading “Recalibrating the “Subpoena Cannon””

Trump v. Cummings May Not Be a Slam Dunk for Congress

 

See update below:

On Monday Donald J. Trump (in his personal capacity) and several of his businesses sued Elijah Cummings (chair of the House Committee on Oversight and Reform), the committee’s chief counsel, and Mazars, an accounting firm that had provided services to Trump and his companies. The suit aims to prevent Mazars from complying with a committee subpoena seeking financial statements and similar records related to Trump and his business activities.

Many immediately dismissed this as a nuisance suit designed solely to delay the committee’s investigation. To be honest, this was my first reaction as well. Upon closer inspection, while I still think Trump will lose, the case is somewhat stronger than expected.

While there may well be issues I have not considered, I see the case unfolding in three stages. First, there is the question whether the suit is barred by the Speech or Debate Clause. The answer is yes as to the congressional defendants, but no as to the third party accounting firm. Although the court cannot grant relief against the congressional defendants, it can enjoin Mazars from complying with the congressional subpoena without offending the Speech or Debate Clause. See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 n. 14 (1975) (suggesting a court may inquire into the validity of a subpoena directed to a third party even though a subpoena recipient cannot bring a challenge directly against Congress itself); id. at 516 (“The Speech or Debate Clause cannot be used to avoid meaningful review of constitutional objections to a subpoena simply because the subpoena is served on a third party.”) (Marshall, J., concurring); United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977) (relying on Justice Marshall’s concurrence in Eastland for the proposition that “the fortuity that documents sought by a congressional subpoena are not in the hands of a party claiming injury from the subpoena should not immunize that subpoena from challenge by that party.”). Nor should it matter if the court dismisses the congressional defendants form the case; indeed, Chairman Cummings may want to remain a party so that he can defend the validity of the subpoena.

The second question is whether Trump has asserted a facially valid objection to the subpoena. In my view, a third party challenge to a congressional subpoena must assert a constitutional privilege or some other constitutionally protected right. Here Trump has asserted neither a constitutional privilege nor a statutory/common law privilege (he cites the duty of accounting firms to maintain confidentiality but stops short of claiming, at least as I read the complaint, a legally cognizable privilege).

Instead, Trump claims that the subpoena is invalid because it lacks a legitimate legislative purpose. This is an objection that can be made by the subpoena recipient, but the absence of such purpose does not violate any constitutionally protected right of a third party who may be inconvenienced by or simply opposed to the congressional investigation. Trump relies on the aforementioned footnote 14 in Eastland for the proposition that a third party can challenge the legitimate legislative purpose of a subpoena, but the Court’s reference there was in the context of a First Amendment challenge to a subpoena. I would not read it as allowing a challenge to the legislative purpose by a third party where that purpose was not relevant to an asserted constitutional privilege. Nonetheless, the Eastland footnote is ambiguous on this point and one cannot rule out the possibility a court could agree with Trump’s interpretation.

If a court is willing to scrutinize the legislative purpose here, that would bring us to the third question in the case. Is there a legitimate legislative purpose for the subpoena at issue? The immediate purpose of the subpoena, of course, is to obtain evidence to support allegations by former Trump lawyer Michael Cohen that Trump engaged in dishonest business practices (such as overstating or understating his net worth) in violation of federal law. But what legislative purpose is served by such information?

There are two arguments I can think of in support of Congress’s interest in obtaining the information in question. One would be that the evidence is potentially relevant to impeachment. This, however, is a weak argument. Even if sleazy and illegal business conduct that precedes the president’s time in office is a basis for impeachment, there is no impeachment inquiry in the House and the oversight committee would not have jurisdiction over such an inquiry anyway.

The stronger argument would be that the information is potentially relevant to matters on which legislation may be had. Because Congress’s authority to legislate is broad, and the courts are deferential to congressional judgments about what information may be needed for legislative purposes, this is normally a fairly easy standard to meet. It would probably be enough if the committee had jurisdiction over the federal laws Trump is alleged to have violated. However, it likely does not.

The committee does have broad jurisdiction over matters relating to federal government personnel and agency management and operations generally. Presumably the committee will be able to identify some link between the matters it is investigating and that jurisdiction, but let’s say that it doesn’t jump off the page. And, as Trump’s lawyers can be expected to stress repeatedly, the Supreme Court  has said “[t]here is no congressional power to expose for the sake of exposure.” Watkins v. United States, 354 U.S. 178, 200 (1957).

In short, I think the committee probably wins this case at stage two. If it gets to stage three, the committee still probably has the edge, but it is not a slam dunk.

The good news is that even if the committee were to lose, it should not be on a ground that would compromise Congress’s ability to get information it truly needs. Moreover, by bringing this matter to court, Trump may have undercut arguments that his administration will want to make in the future against judicial involvement in enforcement of congressional subpoenas. This case therefore may inadvertently assist Congress’s forthcoming efforts to bring civil enforcement actions to secure compliance with its subpoenas and demands for information.

Update: Margaret Taylor (@MargLTaylor) points out that Chairman Cummings described the ostensible purpose of the Mazars subpoena in an April 12, 2019 memorandum to committee members. The memo states the committee “has full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.”

The first claim, that the committee is looking into potential illegal conduct by the president, has the advantage of reflecting the actual purpose of the subpoena. On the other hand, it is not true (in my judgment) that the House or the committee has the authority to look into illegality by President Trump for its own sake, particularly with regard to his activities prior to taking office.

The other claims may strike the court as more pretextual, but they are probably close enough for government work. The House undoubtedly has the authority to investigate financial conflicts of interest and potential emoluments violations by the president. It is also plausible, if less than completely clear, that such an inquiry would fall within the committee’s general good government jurisdiction. Whether the committee is actually pursuing such an inquiry, and whether the subpoena to Mazars can reasonably be seen as a first step in pursuing that inquiry, may be more debatable, however.

To me the strongest claim of a legitimate legislative purpose is the last one. If Trump was falsifying his financial statements as a private businessman, it stands to reason that he might also have done so as public official. This seems like a legitimate reason to follow up on Michael Cohen’s allegations of falsified statements. It might not be the committee’s actual reason, but the courts are not suppose to probe the actual motives of members in evaluating legitimate legislative purpose.