Bannon, Garland and Contempt of Congress: Part III (The Garland Contempt)

I know, I know. With all that has been going on in the political world over the last couple of weeks, a battle over congressional contempt seems like small potatoes. But I will try to convince you in this post that it is more important than at first it might appear.

In my last two posts I set forth legal background on the congressional contempt statute and discussed the contempt conviction of Steve Bannon. Today we will cover another recent contempt proceeding involving Attorney General Merrick Garland, who is refusing to comply with subpoenas issued by two House committees (Judiciary and Oversight & Accountability) for the audio files of Special Counsel Robert Hur’s interview of President Joe Biden. Garland has asserted that the audio files are protected by executive privilege, in accordance with an OLC opinion (not publicly available) and a formal assertion of privilege by President Biden. The committees reported this contempt to the House (see here for the Judiciary report and here for the Oversight & Accountability report), which certified the contempt pursuant to 2 U.S.C. §194. A few days ago the committees filed a civil suit to enforce the subpoenas, and there is also an inherent contempt resolution which has been introduced regarding the matter.

The dispute relates to one hot topic of political controversy due to the nature of the underlying materials that the House committees seek. They want the audio files of the Biden interview, despite having the transcript, because they believe the actual recording of Biden’s answers will provide additional information relevant to their inquiries, including “whether sufficient grounds exist to draft articles of impeachment against President Biden for consideration by the full House of Representatives and to determine if legislation is needed to codify procedures governing the Department’s special counsel investigations or to strengthen the Department’s commitment to impartial justice.” Resolution Recommending that the House of Representatives Find United States Attorney General Merrick B. Garland in Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued by the Committee on the Judiciary, H.R. Rep. 118-527, at 2 (2024) (“Garland Contempt Report”). Notwithstanding the somewhat vague explanations as to exactly why the committees need this information, it is apparent that they want to see whether the audio files shed light on the state of Biden’s mental faculties and, more specifically, whether the recording substantiates the special counsel’s finding that Biden is a “doddering old fool” (ok, the actual quote is a “sympathetic, well-meaning elderly man with a poor memory,” but I think my paraphrase is close enough for government work).

The Biden administration claims that the audio files are protected by the so-called law enforcement component of executive privilege.  You may recall that my first post in this series discussed the 1984 OLC opinion in which the EPA administrator refused to comply with a congressional subpoena on the ground the doctrine of executive privilege encompasses open law enforcement files. The executive branch, however, has continued to expand the scope of this supposed law enforcement component of executive privilege. In a 2000 letter from the Justice Department to the House Rules Committee, for example, the department asserted that the privilege would extend to internal deliberative documents such as declination memoranda even in closed cases. And in cases like that of the Biden audio files, which involve neither open law enforcement files nor deliberative information, the department has nonetheless asserted executive privilege applies because disclosure would supposedly “have a chilling effect on high-profile witnesses in future criminal investigations.” See Garland Contempt Report at 28 (minority views).

Congress has never accepted the theory that executive privilege protects law enforcement files from congressional scrutiny, particularly with respect to closed matters. This theory, it argues, conflicts with the Supreme Court’s recognition of broad congressional power to oversee and legislate with respect to the Department of Justice. Thus, the Court has upheld the validity of a Senate resolution to inquire into malfeasance or negligence in the administration of the department, including prosecutorial decision-making:

It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of legislation; but it does show that the subject to be investigated was the administration of the Department of Justice — whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers, specific instances of alleged neglect being recited. Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit.

This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation, and that the department is maintained and its activities are carried on under such appropriations as, in the judgment of Congress, are needed from year to year.

McGrain v. Daugherty, 273 U.S. 135, 177-78 (1927). Congress contends that its power to enact legislation and conduct oversight regarding the Department of Justice, including its prosecutorial functions, precludes any presumptive constitutional right to withhold information of this kind. See Mort Rosenberg, When Congress Comes Calling 81-82 (2017) (arguing that prosecutorial discretion is not a core presidential power that can justify a claim of executive privilege).

Congress has a strong argument here, or at least it did until last week, when the Supreme Court decided Trump v. United States (2024), in which, among other highly questionable pro-presidential statements, the majority referred to the president’s “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” One might hope that the lower courts will recognize the importance of allowing Congress access to information relating to the impeachment function since that is effectively one of the few checks on presidential power that remains. But I would not count on it.

This is not to say that a court would necessarily uphold the assertion of executive privilege here. The House committees are not challenging the decision to withhold the audio files primarily on the ground that executive privilege is wholly inapplicable. Instead, they focus on the fact the Biden administration has already released the transcript of the interview. This constituted a waiver of any executive privilege that may have existed, they argue. Furthermore, there is no legitimate confidentiality interest that can justify the withholding of the audio files under these circumstances, where the committees are attempting to discern whether Biden’s responses to the special counsel’s questions were the product of a poor memory or declining mental condition, on the one hand, or reflect intentional evasiveness, on the other. Garland Contempt Report at 12. Merely reading the transcript is inadequate because “[w]hile the text of the Department-created transcripts purport to reflect the words uttered during these interviews, they do not reflect important verbal context, such as tone or tenor, or nonverbal context, such as pauses or pace of delivery.” Id.

 The rejoinders to these arguments from Garland and committee Democrats are essentially three-fold. First, they argue that the president has properly invoked executive privilege, which can be overcome only with a sufficient showing of need. Second, they argue that there is no need here because the transcripts are adequate to provide the committee with the information it needs and there is no reason for the committees to be scrutinizing the president’s mental capacity in any event. Third, they contend that the justifications offered to obtain the audio files are pretextual and that committee Republicans only want them to embarrass Biden before the election.

Andrew McCarthy finds these “rationales for stonewalling” to be “laughable.” He calls the refusal to produce the audio files “blatant obstruction,” and he argues that Congress’s institutional interest in obtaining relevant, non-privileged information “should transcend partisanship—i.e., if you are a member of Congress, you have a duty to defend Congress’s prerogatives, even if doing so may cause problems for a president of your own party.” He also points to “blind partisanship” by members of Congress as enabling the executive to take unreasonable positions, knowing that members of the president’s party in Congress will support him regardless.

McCarthy’s point regarding partisanship is well-taken, but he certainly has a selective way of applying this point. When it came to the Steve Bannon contempt, McCarthy’s accusation of “partisanship” was directed at the January 6 committee, including Liz Cheney, Adam Kinzinger, and by extension the 7 other Republicans who voted in favor of certifying the contempt. Since Bannon clearly had “relevant, non-privileged information,” and his claims of privilege were far more “laughable” than Garland’s, logical consistency would suggest that the “blind partisanship” charge would be most accurately leveled at House Judiciary Committee Chair Jim Jordan, who is leading the contempt effort against Garland and who also led the effort to oppose holding Bannon in contempt. See Liz Cheney, Oath and Honor: A Memoir and a Warning 227-29 (2023) (discussing Jordan’s testimony before the Rules Committee on the Bannon contempt resolution).

Interestingly, both McCarthy and the committee Democrats draw an analogy between the effort to obtain Trump tax returns during the 116th Congress and the effort to get the Biden interview audio files here. This strikes me as a fair analogy. I pointed out at the time that the argument for obtaining the tax returns was marginal (and required some suspension of disbelief to validate the asserted legislative need). As discussed below, the same is true of the effort to obtain the audio files here. The Democrats point out that Jordan was a vigorous defender of presidential privacy in the tax returns matter and has flipped 180 degrees now that he is investigating a Democratic president. See Garland Contempt Report at 39-40 (dissenting views). Of course, unmentioned is the fact that the Democrats have also switched positions in the opposite direction.

Unfortunately, pointing out that everybody is a hypocrite does not tell you much about which position is correct. Continue reading “Bannon, Garland and Contempt of Congress: Part III (The Garland Contempt)”

Bannon, Garland and Contempt of Congress: Part II (The Bannon Contempt)

Steve Bannon, a close political associate of former President Trump who briefly served in the Trump White House in 2017, was indicted, convicted, and sentenced to a four-month prison term for contempt of Congress in connection with the investigation conducted by the January 6 select committee. He has been ordered to report to prison on July 1, which is today.

Andy McCarthy’s June 8 column on the Bannon case seems primarily aimed at convincing the sort of MAGA-adjacent types who might still read National Review that there was nothing untoward about the trial judge’s decision to order Bannon to prison. This decision resulted in what McCarthy euphemistically calls “gnashing of teeth” by MAGA leaders, including Bannon and Trump. Trump, for example, posted on Truth Social that sending Bannon to prison represented the “unAmerican Weaponization of our Law Enforcement” and then demanded, with his usual logical consistency, that members of the select committee themselves be indicted. Even more ominously, Mike Davis, the former Gorsuch clerk and Senate Judiciary Committee staffer turned weird MAGA personality, warned “Biden Democrats” on X that “[y]our glee will turn into terror after January 20, 2025” and “[r]evenge is best served cold.”

McCarthy points out (as I did to Davis) that the trial judge, Carl Nichols, is a Trump appointee and thus not a very likely participant in a conspiracy of “Biden Democrats.” He explains in some detail why Judge Nichols had treated Bannon fairly and, if anything, had bent over backwards to give him every benefit of the doubt. All this sounds reasonable to me and certainly much more plausible than the idea that Nichols is somehow involved in “weaponizing” the law against poor Steve Bannon.

Perhaps to make these unpalatable facts go down easier, however, McCarthy castigates the Justice Department and the select committee for prosecuting Bannon in the first place. This is where I have a serious disagreement. McCarthy’s position seems to be that Bannon was most likely guilty of the crime charged, but that his legal position was plausible or “arguably lawful” and that the proper and “normal” way to resolve this disagreement was through a civil action, rather than criminal prosecution. This position makes no sense to me. Continue reading “Bannon, Garland and Contempt of Congress: Part II (The Bannon Contempt)”

Bannon, Garland and Contempt of Congress: Part I (Legal Background)

National Review’s legal contributing editor, Andrew McCarthy, has written two recent columns regarding the House’s use of criminal contempt. One involves Donald Trump’s political associate, Steve Bannon, who has been ordered to report to prison on July 1 to serve a four-month sentence for his refusal to comply with a subpoena to testify before the January 6 select committee. The second involves the House’s vote to hold the current attorney general, Merrick Garland, in contempt for failing to comply with the House Judiciary Committee’s subpoena for the recording of President Joe Biden’s interview with former special counsel Robert Hur.

I have some significant disagreements with McCarthy’s views, which I will discuss in future posts. Today, however, I want to provide some background on the relevant law, which is necessary for understanding the context of these disagreements.

Both matters arise under 2 U.S.C. §194, which provides that whenever a witness is summoned to testify or produce documents by a congressional committee and fails to appear, answer pertinent questions, and/or produce the documents at issue

and the fact of such failure or failures is reported to either House while Congress is in session . . . it shall be the duty of the [] President of the Senate or the Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.

You may notice that there is quite a bit of mandatory language in this statutory provision, i.e., references to “duty” and/or what a particular officer “shall” do. I particularly like the part which states “it shall be the duty of the presiding officer to certify a contempt report and then helpfully explains, in case the meaning of “duty” is unclear, “and he shall so certify.” This reminds me of the instructions for the Holy Hand Grenade of Antioch.

The underlying offense of contempt of Congress is defined by a separate statutory provision, which provides:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

2 U.S.C. § 192.

On its face this provision requires “[e]very person” summoned by the authority of either house of Congress to produce information demanded by a congressional committee, but it also implicitly or explicitly suggests certain limits to this legal duty. First, the information must relate to a “matter under inquiry” by the committee. Second, at least in the case of a refusal to answer questions, the question must be “pertinent to the matter under inquiry.” Third, the default must be “willful,” which suggests that “non-willful” defaults (whatever that may mean) do not constitute a crime. Finally, it is well known that there are certain constitutional privileges which apply in congressional proceedings, the least controversial of which is the privilege against self-incrimination. It may therefore be inferred that the statute does not (and could not) make it a crime to assert a valid constitutional privilege.

The last of these raises another problem. Who decides if a witness has asserted a valid privilege? Put another way, what happens if a witness asserts a privilege and the committee decides that it does not constitute a valid reason for refusing to comply with its demands for information?

Continue reading “Bannon, Garland and Contempt of Congress: Part I (Legal Background)”

The House Does Not Have to Allow Agency Counsel to Attend Depositions

In Lawfare I have a piece explaining why the House has the power to enforce subpoenas for depositions against executive officials and is not required to allow agency counsel to attend.

While the investigations prompting these subpoenas are controversial, the legal issue in the lawsuits is unrelated to the merits of the committee’s inquiries. In the case of all three subpoenas, the Justice Department directed the witnesses not to appear because, under the terms of the House rules governing deposition testimony, only the personal counsel for a witness is allowed to attend. The Justice Department maintains that it is constitutionally entitled to have agency counsel in attendance, which is prohibited by the House rules. The committee offered to allow agency counsel to be present in an adjoining room, where the witness and his personal counsel could consult them if need be, but the department rejected this accommodation.

While this may appear on the surface to be a modest procedural dispute, it has broader ramifications. The Justice Department’s claim is that agency counsel must be in the room, not to protect the rights of witnesses, but to guard the president’s purported authority to control the dissemination of all executive branch information. It is thus part of a larger and increasingly aggressive executive branch doctrine, which threatens to make Congress virtually impotent to obtain the information it needs for legislative and other purposes. (Law professor and Office of Legal Counsel (OLC) veteran Jonathan Shaub thoroughly detailed this doctrine in a 2020 law review article.) Moreover, as I wrote in 2019, the Justice Department’s position on congressional depositions is “wholly without legal support and in considerable tension with federal whistleblower laws.”

Levin Center Program on “How Courts Are Shaping Congress’ Power to Investigate”

On Wednesday, February 8, 2023, from noon to 1:30pm, Elise Bean of the Levin Center will be moderating a virtual program on “How Courts are Shaping Congress’ Power to Investigate.” The participants include former House Counsel Doug Letter, as well as law professors Emily Berman, Andy Grewal and William Ortman. (Grewal’s title should also include “tweeter extraordinaire”).

A large number of recent court decisions, including most importantly the Supreme Court’s decision in Trump v. Mazars, have major implications for congressional oversight. (I am in fact working on an article with the tentative title of “How Mazars Will Shape the Congressional-Executive Informational Battlefield.”) So I am very much looking forward to hearing what these scholars and practitioners have to say.

You can register for the program here.

The Attorney-Client Privilege in Congressional Investigations after Mazars

I have been meaning to blog about a new article by Dave Rapallo entitled House Rules: Congress and the Attorney-Client Privilege, 100 Wash. U. L. Rev. 455 (2022), which analyzes the Supreme Court’s dicta in Trump v. Mazars that recipients of congressional subpoenas “have long been understood” to retain common law privileges such as the attorney-client privilege. I commend Professor Rapallo’s article for its thorough analysis and defense of Congress’s historic position that it is not obligated to respect the attorney-client privilege or other privileges that stem from the common law, not the Constitution. Just this week his article was named the winner of the 2022 Levin Center Award for Excellence in Oversight Research (which also served as a reminder to me to post on this subject).

When the Mazars decision was announced, I pointed out that to the extent Chief Justice Roberts was commenting on what had “long been understood” by Congress, his observation was clearly wrong and not supported by the sole authority cited for the proposition, a 2003 CRS report by Louis Fisher. Contrary to the chief justice’s assertion, Congress has long asserted that it has discretion to decide whether to accept claims of common law privileges such as the attorney-client privilege. I therefore concluded (somewhat undiplomatically) that “the Supreme Court’s poorly researched dicta on this point should not be given any weight.” Continue reading “The Attorney-Client Privilege in Congressional Investigations after Mazars”

Will the Appointment of a Special Counsel Affect a Congressional Referral of Donald Trump for Contempt of Congress?

The Attorney General has appointed Jack Smith to serve as Special Counsel to conduct an investigation of certain matters relating to former President Donald Trump, including “whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021, as well as any matters that arose or might arise directly from this investigation or that are within the scope of 28 C.F.R. §600.4(a).” The regulations at 28 C.F.R. §600.4(a) provide that “[t]he jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.”

This jurisdiction does not appear to cover a potential certification by the House, pursuant to 2 U.S.C. §194, of Trump’s failure to appear and/or produce documents in response to the subpoena from the January 6 select committee. Although that subpoena relates to the subject of the Special Counsel’s January 6 investigation and Trump’s defiance of the subpoena constitutes a possible violation of law, I doubt that violation of law in 2022 would be considered to be “in connection with” efforts to interfere with the transfer of power or electoral vote count in late 2020 and early 2021 within the meaning of the appointment order. Similarly, while contempt of Congress under 2 U.S.C. §192 is a violation of law and a federal misdemeanor, Trump’s contempt arose from the congressional investigation, not from either the Special Counsel’s investigation or the prior federal criminal investigation over which he is assuming control. Thus, the Special Counsel will probably not be able to assert direct jurisdiction over such a contempt certification.

However, 28 C.F.R. §600.4(b) provides that “[i]f in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.” Thus, were the Special Counsel to determine that expanding his jurisdiction to include a congressional contempt referral is appropriate under the terms of 28 C.F.R. §600.4(b), it would be up to the Attorney General to make that decision.

It seems to me that there is enough of a link between the Special Counsel’s investigation and a contempt referral of Trump to support an expansion of the Special Counsel’s jurisdiction under this somewhat nebulous standard. After all, the committee’s subpoena relates to factual matters which are directly relevant to the Special Counsel’s investigation, and it may advance that investigation to determine why Trump withheld testimony and documents from the committee. Moreover, a separate part of the Special Counsel’s investigation relates to Trump’s failure to cooperate with government efforts to retrieve classified and other official documents in his possession and Trump’s possible obstruction of a grand jury investigation by failure to produce documents responsive to its subpoena. His refusal to comply with the January 6 committee’s subpoena therefore may demonstrate a pattern of illegal behavior.

Even if the Special Counsel’s jurisdiction were expanded, this does not necessarily mean Trump will be prosecuted for contempt of Congress. The Special Counsel regulations require that the Special Counsel ordinarily “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” 28 C.F.R. §600.7(a). This is the provision that (arguably) prevented Special Counsel Mueller from indicting then-President Trump due to the Office of Legal Counsel’s determination that the Constitution prohibits indictment of a sitting president. Similarly, Special Counsel Smith might be prohibited from prosecuting Trump for invoking testimonial immunity because of the longstanding DOJ/OLC view that a former president is absolutely immune from compelled congressional testimony.

There are, however, several reasons why this view may not (and probably should not) bind Smith. First (and most dubiously), there is the argument (also made with respect to Mueller) that a special counsel is not bound by OLC opinions but is free to reach his or her own conclusions on constitutional questions. Second, although the view that a former president enjoys absolute testimonial immunity has been reflected in opinions and pleadings, it has not to my knowledge been the subject of a formal analysis and opinion by OLC (or DOJ). Thus, in contrast to OLC’s formal opinion that a sitting president cannot be indicted, the department’s position on absolute immunity for former presidents may be fairly characterized as more of an assumption than a definitive opinion. Third (and most importantly), OLC has always viewed the scope of absolute immunity to be limited to official activities. Here there is ample room for the Special Counsel to conclude that at least some of the matters about which the January 6 committee wishes to question Trump are political or personal, rather than official. [Note that if Trump’s legal team takes the position in the litigation over classified documents and presidential records that certain documents in his possession should be considered personal or political, this may cut against his interests here].

Furthermore, even if Smith concludes that Trump is protected by absolute testimonial immunity, this would not prevent prosecution with regard to Trump’s withholding of documents responsive to the congressional subpoena. While there are no doubt those at main Justice who would be reluctant to prosecute a former president for asserting invalid but non-frivolous objections to a congressional document subpoena, these concerns would not appear to rise to the level of a practice or policy that would be binding upon the Special Counsel.

For all of these reasons the appointment of a special counsel makes it substantially more likely that a certification under 2 U.S.C. §194 could actually result in a criminal prosecution of the former president. The January 6 committee should take this into account in deciding how to proceed with regard to Trump’s defiance of its subpoena.

How Should the January 6 Committee Respond to Trump’s Lawsuit?

On Friday, November 11, former President Trump filed suit against the January 6 committee to prevent enforcement of the subpoena for documents and testimony the committee issued to him on October 21. The complaint asserts that as a former president Trump is absolutely immune from compelled congressional testimony (at least outside the realm of impeachment). In addition, it alleges that the subpoena is invalid for a number of reasons, including that it was not issued for a valid legislative purpose, that it fails the heightened standard of scrutiny established by the Supreme Court for subpoenas of presidential information, and that the January 6 committee lacked authority to issue subpoenas because it was improperly constituted.

All of these claims, in my view, should lose, and I think they all probably would if the litigation ever resulted in a final judgment on the merits. However, as Trump’s lawyers well understand, there is very little chance of that happening before the January 6 committee expires at the end of this Congress, which will most likely moot the case. For Trump’s legal team, the advantage of this lawsuit is that it will buy time and possibly forestall a contempt vote in the House. Continue reading “How Should the January 6 Committee Respond to Trump’s Lawsuit?”

Some Thoughts on the January 6 Committee Subpoena to Former President Trump

As you may have heard, the January 6 select committee has adopted a resolution authorizing its chair to issue a subpoena for documents and testimony under oath to former President Donald Trump. This action raises some legal, political and practical issues, which are considered below.

Is a former president immune from a congressional subpoena? The answer to this question is pretty clearly no. It has been well-established since Watergate that even sitting presidents are subject to judicial subpoena and, as the D.C. Circuit recently observed, its own precedent from that era “strongly implies that [sitting] Presidents enjoy no blanket immunity from congressional subpoenas.” Trump v. Mazars U.S., LLP, 940 F.3d 710, 722 (D.C. Cir. 2019), rev’d and remanded on other grounds, 140 S.Ct. 2019 (2020). It is therefore very unlikely that former presidents would be found to enjoy such blanket immunity.

Is a former president absolutely immune from compelled congressional testimony about his official activities? For reasons I have discussed before, the answer to this question should be no, although I acknowledge there are good reasons why Congress should be (and historically has been) reluctant to compel the appearance of former presidents except in extraordinary circumstances. Continue reading “Some Thoughts on the January 6 Committee Subpoena to Former President Trump”

Who Loves Testimonial Immunity? Just Us.

The Department of Justice, at the invitation of presiding judge Carl Nichols, has filed a statement of its views regarding whether former Trump chief of staff Mark Meadows is entitled to assert testimonial immunity in response to a subpoena from the House select committee investigating the January 6 attack on the Capitol. Because the DOJ brief ultimately concludes that Meadows must provide testimony in this instance, its reasoning may escape serious scrutiny in most quarters. But not on this blog.

So let us count the ways DOJ is full of crap.

  1. DOJ’s fundamental position on testimonial immunity has not changed, and it is still supported by nothing more than ipse dixit.  DOJ reiterates “the Executive Branch’s longstanding position” that “a sitting President’s immediate advisers—current and former—cannot be compelled to testify before Congress about their official duties.” DOJ Br. at 7. As it routinely does, DOJ stresses that its position has been consistent over many years and through administrations of both parties, thus proving self-interestedness is a bipartisan phenomenon and little else.

To support this (longstanding- did I mention that?) position, DOJ offers a cursory regurgitation of arguments/assertions it has made many times before: (1) immunity is needed to protect the president’s independence and autonomy; (2) the president’s advisers should not have to appear because their testimony would largely be protected by executive privilege anyway; and (3) without immunity the president’s advisers would be subject to congressional harassment and distraction from their important duties. DOJ Br. at 5-7.

To be sure, DOJ acknowledges that “some judges” have disagreed with its view, citing in a footnote four opinions, two by judges of the U.S. District Court for the District of Columbia and two by judges of the U.S. Court of Appeals for the D.C. Circuit. See DOJ Br. at 7 & n. 4. Left unmentioned is the fact that exactly zero judges have agreed with DOJ’s position or even expressed the slightest interest in adopting it.

More importantly, DOJ makes no effort whatsoever to respond to the judicial criticisms of its position, which were first voiced by Judge Bates in 2008 litigation involving Harriet Miers. See Comm. on the Judiciary v. Miers, 558 F.Supp.2d 53, 100-06 (D.D.C. 2008). Instead, it simply says that it will adhere to its position unless the D.C. Circuit and/or the Supreme Court definitively reject it. DOJ Br. at 7.

This stance is particularly remarkable because another judge called out DOJ for precisely the same obstinacy in 2019:

DOJ . . . assert[s] that Miers was wrongly decided . . . [and] has emphasized that Miers’s sphere of influence is exceedingly limited. The thrust of the latter contention is that Miers is only one opinion . . . and implicitly, that the law is not established by the word of a single district court judge. On the other hand, says DOJ, scores of OLC attorneys have considered this issue over the past five decades, and in a series of opinions, OLC has carefully concluded that senior-level presidential aides do enjoy absolute testimonial immunity. . . . DOJ suggests that, in the absence of a groundswell of judges rejecting the concept, this Court should not readily find that the law is what Miers concluded.

Comm. on the Judiciary v. McGahn, 415 F.Supp.3d 148, 203 (D.D.C. 2019). Instead of confronting the analysis in Miers directly or giving the court “any principled reason to interpret the law in a different fashion than Judge Bates did,” the judge noted, DOJ simply dismissed his ruling “before proceeding to draw solely from OLC opinions to support the argument that senior-level presidential aides have absolute testimonial immunity.” Id.

The judge in question, of course, was none other than Ketanji Brown Jackson, who recently became the first (and so far only) Supreme Court appointment of the current occupant of the White House. Given that the McGahn opinion was Jackson’s most important and well-known opinion prior to her Supreme Court nomination, one might have expected DOJ to at least acknowledge her harsh criticism of its testimonial immunity theory. One would be wrong.

Judge Jackson went far beyond merely disagreeing with DOJ on the issue of testimonial immunity. She agreed with Judge Bates that DOJ’s legal position “is all but foreclosed by the binding case law Miers cites,” and she dissected at length “the logical flaws in DOJ’s legal analysis.” McGahn, 415 F.Supp.3d at 202. The judge found that “absolute testimonial immunity for senior-level White House aides seems to be a fiction that has been fastidiously maintained over the course of time through the force of sheer repetition in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation.” Id. at 214. DOJ’s contention “simply has no basis in law,” its argument “truly makes no sense,” and its position is ultimately based on nothing more than “ipse dixit.” Id. at 206-07, 212 & 214.

In short, Jackson makes clear that she does not view this as a close legal question about which reasonable minds can disagree. Either her McGahn opinion was overwrought and hyperbolic, or DOJ’s testimonial immunity theory is utterly without merit. There is no middle ground.

Maybe someone should ask President Biden which it is. Continue reading “Who Loves Testimonial Immunity? Just Us.”