Subpoenas, Recalcitrant Witnesses, and the Senate Impeachment Trial

Law Twitter is abuzz (I guess this is a mixed metaphor) about this TPM post by Josh Marshall, who makes the following points regarding an impeachment trial in the Senate: (1) the House will have the opportunity to request subpoenas for any witnesses it wishes, including those who refused to appear during the House proceedings (e.g., Giuliani, Mulvaney, Bolton); (2) the chief justice will likely make a ruling on these requests in the first instance (the Senate could  overrule him, but probably would not); and (3) the courts will not interfere with these subpoenas because the trial of impeachment is solely a matter for the Senate. See Nixon v. United States, 506 U.S. 224 (1993). He therefore posits that the House will have a much better chance of forcing reluctant witnesses to testify in the trial than it has had in the course of its own impeachment inquiry.

I will assume that points 1 and 2 are correct, though it remains to be seen whether the Senate will restrict witnesses up front and whether the chief justice will choose to rule on motions in the first instance or simply refer them to the Senate. But what happens if the House requests that certain witnesses be subpoenaed and these requests are granted by the chief justice and/or the Senate?

As a practical matter, there will be tremendous pressure on the witnesses to comply. It is one thing to defy the authority of the House with the backing of executive branch lawyers who maintain, however implausibly, that the impeachment inquiry is illegitimate and unconstitutional.  It is quite another to defy a subpoena signed by the chief justice of the United States pursuant to the Senate’s unquestionable constitutional authority to conduct an impeachment trial of the president. It will be particularly difficult for a private citizen like Giuliani, who does not even have the veneer of “absolute immunity” or some other constitutionally based privilege, to justify a refusal to appear. But even a witness who asserts such a privilege would have to consider carefully the possibility of future prosecution for contempt of Congress or other potential consequences (Mulvaney, Bolton and Giuliani are all lawyers, for example, who could be subject to professional discipline).

If, however, a witness chooses to defy the subpoena, matters get more complicated. The fact that the Senate has exclusive jurisdiction over the conduct of an impeachment trial does not, in itself, answer the question of how to force a recalcitrant witness to obey its commands.

Here it is important to distinguish between two distinct powers that the Senate could exercise. The most frequently discussed is the contempt power, which we have been reviewing at some length. But the Senate also has the power to issue a warrant of attachment, which directs the Sergeant at Arms to arrest an individual and bring him before the bar of the Senate to be interrogated. See Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616-20 (1929) (holding that the Senate could use an arrest warrant to bring before it a witness in an elections case); McGrain v. Daugherty, 273 U.S. 135, 158 (1927) (approving the same procedure in a legislative oversight investigation). The arrest warrant serves as an alternative for witnesses who cannot be relied upon to comply with a subpoena.

If the Senate is willing to employ such process, it seems to me extremely likely that it will be effective. I do not expect that the witnesses in question would  attempt to flee or physically resist the Sergeant at Arms. I certainly would not expect the executive branch to offer physical protection against execution of a warrant signed by the chief justice. Of course, if I am wrong about this, we would be in a true constitutional crisis.

More plausibly, the witnesses could attempt to challenge their arrest through a habeas proceeding. For example, Mulvaney, Bolton or other current or former senior White House advisors could argue that they are absolutely immune from congressional process, even in the context of an impeachment proceeding. I believe that this argument would have a near zero chance of success. In addition to the infirmities of the absolute immunity position which we have previously discussed, the Senate would have a strong argument that the courts lack jurisdiction even to consider the merits of the issue given its exclusive authority over impeachment. And leaving all that aside, it is difficult to imagine a federal district judge interfering with an arrest warrant signed by the chief justice.

The arrest warrant, however, only ensures that the witness’s physical appearance before the Senate. It does not address what happens if the witness still refuses to answer questions or produce documents. In that case, the Senate would have to employ the contempt power in order to force the witness to comply. This would impose substantially greater costs on the Senate. For one thing, it would have to interrupt the impeachment trial to conduct a collateral proceeding in which the witness would be asked to show cause why he should not be held in contempt. For another, if the witness is adjudged guilty of contempt, the Sergeant at Arms would have to keep him in custody until he agrees to testify (or the impeachment trial concludes). There would also be a greater risk of judicial interference if a witness is held for a substantial period of time.

In all likelihood, though, it will not be necessary for the Senate to take things that far. If the Senate subpoenas witnesses requested by the House and indicates that it is serious about enforcement (whether by way of criminal referral or otherwise), I expect those witnesses to appear and answer questions (though there may be some assertions of executive privilege).

Judge Leon’s Ruling in the Kupperman Case Could be Important Even if it Does not Reach the Merits

The lawsuit brought by former deputy national security advisor Charles Kupperman continues, for the moment, despite the House’s withdrawal of its subpoena. Most likely, Judge Leon will end up dismissing the case as nonjusticiable on one ground or another. However, it could matter a good deal which ground(s) the court relies upon.

If the case is dismissed as moot due to the withdrawal of the subpoena, it would be of little consequence. On the other hand, if the court were to base its dismissal on the president’s lack of authority to direct Kupperman not to appear in response to the subpoena, its ruling is potentially of much greater significance. As Jonathan Shaub has noted in connection with the House’s lawsuit against former White House counsel Don McGahn, a judicial ruling that the president lacks authority to direct former officials how to respond to congressional subpoenas might be more important than a ruling on the merits of the absolute immunity issue. While the latter would affect only the relatively small group of senior White House advisors who allegedly are protected by absolute immunity, the former “could be far-reaching, encompassing all disputes involving former officials whether they are grounded in immunity or executive privilege.”

Kupperman’s complaint alleges that he “has a duty to abide by a lawful constitutional assertion of immunity by the President and a lawful instruction by the President that he decline to testify before Congress concerning his official duties as a close advisor to the President.” Complaint ¶ 41. Note that this arguably constitutes two distinct assertions. At one level, it is an assertion that if the claimed immunity exists, it belongs to the president, not to the subordinate official, and therefore Kupperman cannot or should not waive it contrary to the president’s instruction. This makes sense to me. Since the immunity (if it exists) is designed to protect the presidency, it should be the president’s decision whether to assert or waive it.

Of course, as Eric Columbus has pointed out, former officials not infrequently choose to disclose confidential information regarding their government service in medial interviews or tell-all books. Indeed, former national security advisor John Bolton, who is currently declining to testify before Congress based on the president’s assertion of “absolute immunity,” has a book deal in which he will presumably discuss many of the matters allegedly covered by that immunity. (As one Twitter wag put it, absolute immunity is a monarchical doctrine so naturally it has a “royalty exception.” Ok, that wag was me.). While there is a tension between this fact and the non-waiver principle, in my view it simply illustrates that the executive branch has no means of punishing former officials who violate a duty not to disclose non-classified information (about which more below).

Kupperman also appears to be making a second and stronger assertion. He seems to be claiming that a former official has a duty to obey the president’s instruction, regardless of whether the former official agrees with the president’s legal position. As Shaub points out, though, it is not clear where the president gets the authority to direct a private citizen’s response to a congressional subpoena. OLC’s past pronouncements suggest it believes the president has this authority, but it fails to “offer any constitutional analysis to support that conclusion.” (Shaub, this might be a good place to note, is a former OLC lawyer).

If Judge Leon were to conclude the president lacks authority to direct Kupperman’s response to the subpoena, he could dismiss the case without reaching the merits. Kupperman claims to be facing “irreconcilable commands” from the executive and legislative branches, but if he is not bound to obey the president’s command, the alleged conflict disappears and can provide no basis for him to sue. He then would be in a posture no different than any other congressional witness who asserts a potentially valid privilege. He can choose to assert absolute immunity if he wishes and, when the committee (properly) rejects that assertion, he can decide whether to comply or risk the possibility of a contempt proceeding. There is no reason why he, any more than any other congressional witness in this situation, should be entitled to an advance court ruling to forestall contempt.

A somewhat narrower approach the court might take is to side step the question of legal duty entirely. Instead, the court might ask what injury Kupperman would suffer should he choose to ignore the president’s directive not to testify. Kupperman alleges that “an erroneous judgment to appear and testify in obedience to the House Defendants’ subpoena would unlawfully impair the President in the exercise of his core national security responsibilities,” Complaint ¶ 2, but it is hard to see how this constitutes an injury to Kupperman. As suggested earlier, there do not appear to be any practical repercussions to a former official who reveals confidential but non-classified information, whether before Congress or in a tell-all book. In the absence of any adverse consequence Kupperman will suffer as a result of disregarding the president’s order, it would seem he lacks standing to sue regardless of whether the president has the authority to issue the order.

Even if Kupperman has a legal duty to assert absolute immunity when instructed to do so by the president, it does not follow that he is obligated to go into contempt to protect the president’s privilege. For example, a lawyer who is subpoenaed by a congressional committee to provide privileged information of a current or former client is obligated to assert the privilege if her client so instructs, but she is not obligated to go into contempt in order to fulfill her professional obligations. See D.C. Bar Ethics Opinion 288 (Feb. 1999). There is no reason why a former government official should be required to do more when instructed by the president; after all, the president has ample other tools, including filing his own lawsuit, to protect whatever confidentiality interests are at issue.

In short, a non-merits dismissal of Kupperman v. House could still have a significant (and beneficial) effect on the House’s ability to get information in the current impeachment inquiry and/or in future information disputes between the political branches.

Congress in Court: Where Things Stand Today

Charlie Savage of the NY Times wrote an article over the summer which flagged the sheer volume of litigation in which the House has been involved this year. His count at the time was nine separate lawsuits in which the House was a party, plus four others in which it had filed amicus briefs. The cases in which the House is a party include three suits initiated by President Trump in his personal capacity to block Congress’s access to his financial records (Mazars, Deutsche Bank, and the effort to stop New York state authorities from providing his tax records to House committees), three initiated by the House to obtain information (the suit to require the Treasury Department to produce Trump’s tax records, the application for access to grand jury material, and the action to force Don McGahn to testify), plus the House’s effort to enjoin the border wall and its attempt to intervene in support of the constitutionality of the female genital mutilation statute.  The ninth, I think, would be the litigation over the Affordable Care Act. (I haven’t kept track of the cases in which the House has appeared as an amicus, but one was the census litigation).

Now the House is party to at least one more case (Kupperman), and it appears that Mick Mulvaney, his motion to intervene in the Kupperman case having been withdrawn, will be filing his own separate suit, which will bring the grand total of cases in which the House is a party to 11. In addition, there are several other ongoing cases that could affect the House’s institutional interests, including Blumenthal v. Trump, where members of Congress are suing the president for alleged violations of the emoluments clauses.

One of these cases has already produced a significant appellate court decision  (Mazars) and there are likely to be a number of important decisions coming out of the district and appellate courts in the next couple of months. The Supreme Court will be asked to weigh in and it seems very likely it will agree to hear at least one of these cases, if for no other reason than to decide questions of legislative standing. In the meantime, the House has decided, probably wisely, that further litigation is pointless in light of its determination to conclude impeachment proceedings in the near future (presumably by the end of the year).

We are therefore entering into a period in which there will be (1) a highly unusual amount of judicial precedent generated with potentially enormous impact on the balance of congressional and executive power and (2) an extremely difficult to predict interaction between these judicial opinions and ongoing impeachment proceedings (possibly including, if President Trump’s past statements are credited, an effort to directly challenge these proceedings in court). We cannot rule out the possibility that the chief justice of the United States will  be presiding over an impeachment trial in the Senate while the Supreme Court is being asked to consider directly or indirectly related issues at the same time.

In addition to all this, the very fact that Congress and the executive have taken so many of their disputes to court could itself have major effects on how our constitutional system functions in the future. As former House deputy general counsel Charlie Tiefer told Savage, “this is like nothing else in history.” It is probably not too early to start thinking about the consequences.

Why Mulvaney’s Attempt to Intervene in Kupperman’s Lawsuit is Bad for the White House

White House chief of staff Mick Mulvaney has filed this motion to intervene in the lawsuit brought by Charles Kupperman, just as the House is trying to moot the case by withdrawing its subpoena to Kupperman. Like Kupperman, Mulvaney has been subpoenaed by the House to give testimony in the impeachment inquiry and has been directed by the president not to testify based on absolute immunity. Unlike Kupperman, Mulvaney still works in the administration. Also unlike Kupperman, who is suing both the House and President Trump and purports to be neutral on the merits, Mulvaney is only suing the House defendants and appears to be supporting the president’s legal position on the merits.

Mulvaney argues that he should be permitted to intervene because a ruling that Kupperman is obligated to comply with his congressional subpoena could adversely affect Mulvaney, apparently by encouraging the House to move forward with some sort of action against him. Somewhat inconsistently, Mulvaney also argues that his interests will not be adequately represented by Kupperman because his situation is legally distinguishable– he “is both a closer and a more senior adviser to the President than was Mr. Kupperman.” Be that as it may, Judge Leon has scheduled a hearing tomorrow to discuss Mulvaney’s motion, and I guess we will know soon enough whether the motion to intervene will be granted.

The more interesting question is why Mulvaney is taking this action. Some suggest that this gambit is part of a White House strategy to undercut the House’s argument on uncooperative witnesses. The House has been arguing that those who fail to cooperate with its investigation are guilty of obstruction and that when the president directs a witness not to appear or testify one can reasonably make the inference that the testimony of that witness would be adverse to the president’s interests. The president’s defenders can respond that witnesses like Kupperman and Mulvaney are not acting lawlessly but seeking a judicial resolution of conflicting instructions from the political branches; they can also point to the House’s position in the Kupperman case as evidence the House is attempting to avoid a decision on the merits of its legal position.

I do not doubt these arguments will be made (indeed, I suggested as much in my last post), but I am skeptical that this is what motivated either Kupperman or Mulvaney. To begin with, there is little evidence to suggest the White House has a “strategy” for responding to the impeachment inquiry beyond its initial declaration that the inquiry is invalid and no one should cooperate with it. The fecklessness of that strategy is what has impelled individual witnesses to chart their own path on the advice of private counsel.

It also seems to me unlikely Kupperman and John Bolton (who share a lawyer and a legal strategy) are coordinating their actions with anyone else. In a letter to the House (which was also filed with the court) on Friday, their lawyer, Chuck Cooper, specifically denied that Kupperman’s “lawsuit [has] been coordinated in any way with the White House.” I see no reason to question the accuracy of this representation.

In the same letter Cooper responded to the House’s argument that his clients should follow whatever legal ruling emerges from the lawsuit against former White House counsel Don McGahn with the following remarkable paragraph:

Here, unlike McGahn, information concerning national security and foreign affairs is at the heart of the Committees’ impeachment inquiry, and it is difficult to imagine any question that the Committees might put to Dr. Kupperman that would not implicate these sensitive areas. After all, Dr. Kupperman was the Deputy National Security Advisor to the President throughout the period [of] your inquiry. The same is true, of course, of Ambassador Bolton, who was the National Security Advisor to the President, and who was personally involved in many of the events, meetings, and conversations about which you have already received testimony, as well as many relevant meetings and conversations that have not yet been discussed in the testimonies so far.

(emphasis added).

At the risk of stating the obvious, if your objective is to keep your clients from having to testify, emphasizing how much important knowledge they have is a funny way to go about it. Cooper could easily have said something like: “As you have wisely recognized by backing off the subpoenas to my clients, they have nothing to add that would be more than cumulative  of other witnesses or that would advance your impeachment inquiry.” That is what you would say if the goal is to get your clients out of testifying and/or to advance the White House narrative. Instead, Cooper’s message to the House seems to be: “my client(s) have important information which they would like to share with you and you will want to hear so you should let us proceed with this lawsuit.” The message was clear enough that even the president seems to have understood it.

Of course, it is theoretically possible that Mulvaney’s attempt to intervene is designed to further a White House plan to which Kupperman/Bolton are not parties. This would seem rather risky, though, as it could quickly expose rifts between Cooper’s clients and the White House. Moreover, it is hard to see why Mulvaney needs to intervene in order for the White House to get rhetorical mileage out of the case. If it is dismissed as nonjusticiable (or, less likely, Judge Leon rules on the merits in favor of the president), the White House can score the same political points regardless of whether Mulvaney is a party. From the White House’s perspective, therefore, Mulvaney’s move has some potential downside and little if any upside.

Furthermore, although Mulvaney is avoiding the optics of actually suing the president, his legal position is in fact adverse to the president’s on the issue of justiciability. The Justice Department has already indicated that it will take the position that Kupperman’s suit is nonjusticiable, consistent with its position in the McGahn case. It cannot be helpful from the Justice Department’s perspective to have the president’s current chief of staff contradicting it on this key legal issue.

Finally, if Mulvaney were pulling a political stunt, he would have hired tv lawyers (you know the kind I mean). Instead, he is represented by Bill Pittard, another real lawyer and the former deputy general counsel to the House. The sort of attorney you would retain if you wanted to keep a channel of communication open to the House Counsel’s office.

My guess, therefore, is that Mulvaney’s primary if not sole objective is to protect his own personal legal interests. By joining (or attempting to join) Kupperman, Bolton and McGahn, he is hoping for a kind of herd immunity from potential contempt or other prosecutions stemming from his defiance of the congressional subpoena. That also means that if they testify, he will probably use that as political cover to testify as well.

This does not strike me as good news for the White House.

Why the House Withdrew the Kupperman Subpoena

As I discussed in this Just Security piece last week,  Charles Kupperman, the former deputy national security advisor in the Trump administration, has brought suit against the House of Representatives, the President of the United States, the Speaker of the House, and three House committee chairs. Ordinarily this constellation of defendants is only seen in nuisance suits filed by pro se plaintiffs who think the government or space aliens are monitoring them through dental fillings, but this is a serious lawsuit brought by the kind of real lawyers (Cooper & Kirk) who take notes and everything.

Kupperman’s suit arose out of a subpoena he received from the House committees to testify in the Ukraine impeachment inquiry. President Trump then directed Kupperman not to appear or testify in response to the House subpoena based on the theory that, as a senior White House advisor, he is absolutely immune from compelled congressional testimony. Kupperman is interpleading the defendants to determine which of the political branches trumps (so to speak) the other. Note: in March I suggested, somewhat casually, that “former [administration] officials might want to consider bringing an action to ask a court to declare whether they should abide by the instructions of the White House or those of the committee.”

Now the House has informed the district court judge (Judge Leon) that it has withdrawn the subpoena and asked him to dismiss the case as moot. The reason for this action, I submit, lies not in the merits of the absolute immunity issue (which, as we have discussed at some length, strongly favor the House), but rather in justiciability issues the House would rather not confront.

The House had previously indicated it intended to move to dismiss the case as nonjusticiable. It certainly has a straightforward argument that the Speech or Debate Clause requires the dismissal of the House defendants. See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 507 (1975). However, it is not clear what would happen to the lawsuit if the House defendants alone were dismissed. Arguably the case might go on with only the president as a defendant, which would leave no one to advance the House’s position on the merits. Presumably it was for that reason that the House did not seek to be dismissed as defendants in the Mazars and Deutsche Bank cases, choosing instead to remain in those cases in order to defend the validity of the congressional subpoenas at issue.

Somewhat more puzzlingly, the House did not challenge the standing of President Trump or his companies to challenge the validity of the subpoenas in the Mazars or Deutsche Bank litigation. (So far none of the judges to consider these cases have questioned their justiciability either). Thus, in the House’s view it is apparently proper for a court to consider the merits of a challenge to the validity of a congressional subpoena brought by a third party, even when that third party claims neither a privilege nor a property interest in the documents sought by the subpoena.

Let us alter the facts of the case somewhat and suppose that Mazars itself, as the subpoena  recipient, had brought suit, asking the court to determine whether the subpoena was valid. (To make the hypothetical parallel to Kupperman’s, assume that Mazars had been instructed by a third party, such as its private client or a state entity, that compliance with the allegedly invalid subpoena would violate a legal duty). It seems incongruous to maintain that the actual Mazars case is justiciable but the hypothetical one would not be.

Furthermore, the House itself is suing former White House counsel Don McGahn in a case that raises precisely the same absolute immunity issue as Kupperman. In McGahn, the House argues that the case is justiciable, while the Justice Department contends that disputes over information access between the political branches are not appropriate for judicial resolution. DOJ almost certainly would make the same argument in Kupperman’s lawsuit, maintaining that disputes over Kupperman’s testimony should be resolved through the traditional process of negotiation and accommodation. This would leave the House in the awkward position of agreeing with the Justice Department on justiciability, while vigorously arguing against its reasons for reaching that result.

In addition, it is not clear how a “victory” on justiciability would advance the House’s immediate interests. Without a decision on the merits, Kupperman would presumably continue to refuse to appear and testify, at least until higher court(s) have had an opportunity to weigh in. This likely would deprive the House of his testimony within a usable timeframe. Meanwhile, the president’s defenders would claim that the House’s position on justiciability shows (1) the House lacks confidence in the merits of its absolute immunity argument and (2) the House itself bears some responsibility for Kupperman’s failure to testify.

To be sure, the House does have a long-term institutional interest in preventing witnesses from, in effect, seeking to quash congressional subpoenas in federal court. But coming up with a principled basis for distinguishing Kupperman from McGahn and Mazars/Deutsche Bank may be tricky.

By withdrawing the subpoena, the House hopes to avoid the need to navigate this legal minefield. And if it receives a favorable decision on McGahn’s claim of absolute immunity, it will renew its request/demand for testimony from Kupperman (and Kupperman’s former boss, John Bolton, who is also represented by Cooper & Kirk). If they refuse, the House probably would not take further legal action, but at least it would be well-positioned to argue in the impeachment proceedings that the refusal of these witnesses to testify reflects something other than uncertainty about the state of the law.

Somewhat surprisingly, so far Judge Leon does not seem to be buying the House’s gambit. He has refused to dismiss the case as moot, and has ordered the parties to continue the expedited briefing schedule. Paradoxically, this might be good news for the House (if not the House’s overworked legal staff). It seems to me unlikely that Judge Leon would be that eager to retain jurisdiction over the case unless he thinks Kupperman ought to testify.

There are ways the judge could facilitate that result besides issuing a decision on the merits in the House’s favor (which likely would be appealed anyway). First, during oral argument he could ask the Justice Department what it would do if Kupperman were to violate the president’s instructions not to testify. Since the most likely answer to this is “nothing,” the court would thereby demonstrate Kupperman will suffer no injury by testifying, possibly depriving him of any excuse for non-compliance. Second, the judge might just order the parties to engage in that negotiation and accommodation process the Justice Department claims is constitutionally mandated. Allowing Kupperman to be deposed with the participation of a White House lawyer who can raise any specific executive privilege claims seems like the most straightforward solution to the problem.

 

What to Look For in the Mazars Oral Argument

Tomorrow the Mazars subpoena case will be argued before the D.C. Circuit (Judges Tatel, Millett and Rao). In this appeal, President Trump (in his private capacity) has advanced a novel and audacious theory in support of his contention that the congressional subpoena at issue lacks a “legitimate legislative purpose.” Trump is asking the D.C. Circuit to reverse the decision of the district court, which denied Trump’s application for an injunction to prevent Mazars, his accounting firm, from producing financial records responsive to the subpoena.

As Judge Mehta pointed out in his decision below, the legal standards employed by the courts to review congressional subpoenas and investigations are generally so deferential that they “do not substantially constrain Congress.” Rather than fighting this proposition head on, Trump’s lawyers focus primarily on seeking a carve-out from Congress’s broad investigatory and oversight authority for those who hold constitutional offices (i.e., the president and Supreme Court justices).

The lynchpin of this argument is the distinction between Congress’s legislative and judicial powers. Although it has long been understood that Congress must have some ability to obtain information needed to consider and craft legislative measures, the scope of this power was once highly controversial. Following the Supreme Court’s decision in Kilbourn v. Thompson, 103 U.S. 168 (1880), which stressed that Congress, unlike the British Parliament, was not a court of general jurisdiction, it was widely believed that Congress’s authority to compel the production of information for legislative purposes was limited at best. This reading of Kilbourn, however, was undermined by later Supreme Court cases beginning with McGrain v. Daugherty, 273 U.S. 135 (1927). These subsequent cases, Judge Mehta noted, render Kilbourn “largely impotent as a guiding constitutional principle.”

Trump attempts to revive Kilbourn for a limited purpose. His theory goes something like this. Congress generally has broad legislative and oversight authority with respect to the departments and agencies of government, including offices created by statute. With respect to constitutional offices, however, Congress’s legislative authority is “severely constrained.” Trump Br. at 4, 38. Thus, Trump claims that Congress cannot rely on its legislative authority to seek his financial records because these records are not relevant to a subject on which legislation may be had.

To be sure, Trump acknowledges that Congress also has powers of a judicial nature. But, following Kilbourn, he stresses that these are not of general scope, but are limited to those areas expressly identified in the Constitution, namely judging elections, disciplining members, and, most importantly, impeachment. For those who hold constitutional offices, therefore, impeachment is the only method (Trump argues) by which Congress can investigate alleged wrongdoing.

Thus, “[w]hile Congress could presumably use subpoenas to advance these non-legislative powers, the Committee has not invoked them.” Trump Br. at 45. In fact, Trump takes pains to demonstrate that Speaker Pelosi has disavowed any intent to go down the path of impeachment. Trump Br. at 47-48.

The novelty of this argument is illustrated by the fact that one of the principal “authorities” cited in Trump’s brief is a three-page law student note that is more than a century old. See Note, Congressional Power to Punish for Contempt, 30 Harv. L. Rev. 384 (1917) (cited in Trump Br. at 17-18). The apparent utility of this note from Trump’s perspective is that it vividly distinguishes congressional contempt in the context of impeachment from that in the context of legislative oversight:

A committee of the House considering an impeachment is like a Grand Jury hearing evidence which may lead to the return of an indictment– it is a judicial body and it is one provided for by the Constitution. It must surely have the power to call witnesses, and the power is of little avail if these witnesses may contemptuously refuse to respond, or may be influenced or intimidated by outside contempts of the body before whom they are testifying. If the House is to sit in a judicial capacity, it must have the protection that a court has.

Note, 30 Harv. L. Rev. at 385. Yet even this note, which predates McGrain, concludes that “[t]he power to legislate . . . by necessary implication include[s] the power to examine witnesses and to compel them to respond by contempt proceedings.” Id. at 386.

Why would the Trump team rely on what seems like a very long shot argument? The short answer is I don’t know, but three possibilities come to mind. First, Trump’s lawyers may simply believe this is the best argument available to them. Second, it may be thought that stressing the lack of impeachment proceedings helps Trump’s cause beyond the confines of this particular case (e.g., with public opinion and/or with courts that will be ruling on more difficult subpoena enforcement issues in the months ahead). Third, Trump’s legal team may believe that advancing a bold legal theory is the best way to get the Supreme Court to grant certiorari, which strings out the proceedings even if it is unlikely to deliver an ultimate victory.

The two things to look for in tomorrow’s argument: (1) how much interest does the panel show in impeachment and why the House has declined to initiate impeachment proceedings to date, and (2) whether Judge Rao (the lone Republican appointee) seems at all open to Trump’s arguments. A unanimous panel opinion will make further review less likely.

OLC’s Fig Leaf Can’t Cover McGahn

Now we come to the crux of the matter, OLC’s claim that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.” 5-20-19 OLC Opinion at 1. Specifically, OLC contends that Don McGahn, the former White House counsel, may not be compelled to testify before the House Judiciary Committee about matters described in the report of Special Counsel Robert Mueller. See id. at 1-2. These include, for example, the question whether McGahn truthfully told the special counsel that President Trump directed him to fire the special counsel or whether McGahn lied about this, as Trump apparently now alleges. See Mueller Report, vol. II, at 84-87. For the reasons that follow, OLC (sometimes known as the Keeper of the Presidential Fig Leaf) is wrong.

Adam White, a keen legal observer who unaccountably agrees with OLC’s analysis, summarizes its reasoning as follows:

As OLC explained, the president’s core advisors are entitled to absolute immunity from compelled appearances before Congress; they are his alter egos, and just as Congress cannot force the president himself to testify before its committees, nor can Congress force his closest advisors to appear. Such compelled testimony would subjugate the president to Congress; it would significantly impair (if not destroy altogether) the president’s ability to receive candid advice from his closest advisors, and it would enable congressional committees to prevent the president’s advisors from actually doing their own work for the president.

In essence, OLC offers a syllogism (1) the president has absolute testimonial immunity; (2) his closest advisers are his “alter egos”; and hence (3) his advisers also have absolute immunity. As we have already seen, however, it is far from established that the president himself has absolute testimonial immunity. Moreover, there is nothing other than OLC’s say-so to support the proposition that White House aides should be considered the president’s “alter egos’ and, in any event, this assertion does little more than assume the conclusion. Saying that an aide is the president’s “alter ego” is simply another way of saying that the aide is entitled to the same immunity as the president. However, as Assistant Attorney General Rehnquist recognized in 1971, the (assumed) fact that the president enjoys an immunity “does not answer the question as to whether his immediate advisers are likewise exempt.” Rehnquist Memorandum at 3.

As it happens, since 1971 the Supreme Court has addressed this very question in a closely related context. In a 1982 opinion joined by Justice Rehnquist, the Court held that senior presidential advisers were not entitled to absolute immunity in civil actions arising out of their official activities, even though the Court held in a companion case that the president was entitled to such immunity. The Court did not dispute “the importance to the President of loyal and efficient subordinates in executing his duties of office,” but found this was simply not enough to justify extending absolute immunity to presidential aides. Harlow v. Fitzgerald, 457 U.S. 800, 808-09 (1982); see also Nixon v. Fitzgerald, 457 U.S. 731 (1982) (holding the president is absolutely immune from civil suits arising from his official duties).

Harlow not only establishes that the president’s advisers may be sued for civil damages, but, as OLC tacitly concedes, it also demonstrates that they can be compelled to testify in judicial proceedings. It would make no sense to claim that White House aides were immune from giving testimony in civil damages actions in which they were the defendants and, in any event, in such cases they would be “compelled” to testify as a practical matter to defend their conduct. Furthermore, despite the numerous criminal investigations that have involved White House aides over the past decades (to name just a few that come to mind in addition to the Mueller probe, Watergate, Iran-Contra, Whitewater, the 1996 campaign fundraising scandal, and the Valerie Plame leak matter), as far as I know OLC has not contended that presidential advisers are immune from testifying in either grand jury proceedings or criminal prosecutions. Thus, there seems to be no serious contention that White House aides have any immunity from testifying in judicial proceedings.

Harlow would seem to be fatal to OLC’s argument. Leaving aside the difficulty of explaining why the Constitution would require that presidential advisers have immunity in congressional, but not judicial, proceedings, Harlow establishes that these advisers are not constitutionally entitled to an immunity simply because it is available to the president. This might seem like a self-evident point (it was to Rehnquist even while he still worked at OLC), but OLC’s syllogism doesn’t work once it is recognized. See Comm. on the Judiciary, U.S. House of Representatives, v. Miers, 558 F.Supp.2d 53, __ (D.D.C. 2008) (executive branch’s argument for presidential adviser immunity from compelled congressional testimony is “virtually foreclosed” by Harlow).

OLC tries to “distinguish” Harlow on the ground that congressional proceedings are fundamentally different than judicial proceedings. But this misses the main point. Harlow doesn’t preclude the possibility White House aides (or executive officials generally) will be treated differently than ordinary citizens in certain situations, but it does preclude the argument that they are entitled to special treatment just because the president is. Thus, even if we grant the proposition that the president is immune from compelled congressional testimony (which, unlike his immunity from civil actions, has not been approved by the Supreme Court or any other court), this is insufficient to establish that his aides are.

White says “[n]o court has ever held that all presidential advisors must testify when subpoenaed.” This is true in the sense that no court has ever held that all firefighters must testify when subpoenaed. But the Supreme Court has made clear that all citizens have a duty to comply with congressional subpoenas:

A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.

United States v. Bryan, 339 U.S. 323, 331 (1950) (emphasis added) (upholding a contempt conviction for failure to comply with a congressional subpoena). The relevant fact, then, is that no court has ever held that presidential advisers have immunity from this “public duty,” and the only court (Judge Bates in the Miers case) to directly address the claimed immunity has roundly rejected it.

Indeed, no court has ever held that any class of citizens or officials is categorically immune from compelled congressional testimony. Witnesses can assert the Fifth Amendment in congressional proceedings, for example, but that does not excuse them from the duty of appearing to invoke the privilege in response to specific questions. Therefore, OLC carries a heavy burden to establish that senior presidential advisers are constitutionally distinct from ordinary citizens and other executive branch officials in such a way that they are entitled to this unique immunity. It must carry this burden, moreover, without the benefit of any supporting authority (other than its own prior memoranda) because, as Judge Bates points out, “[t]he Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context.” Miers, 558 F.Supp.2d at __.

It is also noteworthy that despite the fact that OLC refers to “absolute immunity from compelled congressional testimony,” it acknowledges that this immunity does not extend to testimony regarding the adviser’s “private affairs.” 5-20-19 OLC Opinion at 4, 7. OLC does not elaborate on what it means by this exception (which it refers to simply by quoting an apparently unpublished 1974 memorandum by Assistant Attorney General Antonin Scalia). However, as we saw in an earlier post, in his 1971 congressional testimony, Rehnquist associated this exception with two instances (Donald Dawson in 1951 and Sherman Adams in 1958) in which senior White House officials were alleged to have misused their offices for personal gain. These are hardly “private affairs” as that term would ordinarily be understood. And regardless of what one calls it, OLC fails to explain why the Constitution permits compelled congressional testimony in this instance and not in other cases where a senior adviser has important and non-privileged information that Congress needs.

OLC’s Policy Rationales

As White notes, OLC offers three basic reasons why senior presidential aides must have testimonial immunity in congressional proceedings. Absent such immunity, OLC maintains, (1) the president would be “subjugated” to Congress; (2) the president’s ability to receive candid advice from his closest advisers would be impaired or destroyed; and (3) committees could interfere with the work that these advisers must perform for the president. Let’s take these in reverse order. Continue reading “OLC’s Fig Leaf Can’t Cover McGahn”

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?”

Update on BLAG’s Authority to Initiate Subpoena Enforcement Action

As I discussed in a prior post,  House Rule II(8)(B) currently provides with respect to the Bipartisan Legal Advisory Group:

There is established a Bipartisan Legal Advisory Group composed of the Speaker and the majority and minority leaderships. Unless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.

As I noted in the prior post, it is possible to argue that this provision authorizes BLAG to initiate litigation on behalf of and in the name of the House. This raises the question whether BLAG could file a subpoena enforcement action on behalf and in the name of the House without a House vote on the particular subpoena in question. Such an interpretation would have to be squared with the language of House Rule XI that “[c]ompliance with a subpoena issued by a committee or subcommittee . . . may be enforced only as authorized or directed by the House.”

It turns out that I was not the first person to think of this. Unbeknownst to me (and, I suspect, most House members), Rules Committee Chairman Jim McGovern had inserted the following statement in the record on January 3, 2019:

I want to speak regarding House Rule II(8)(B). Pursuant to this provision, the Bipartisan Legal Advisory Group (BLAG) is delegated the authority to speak for the full House of Representatives with respect to all litigation matters. A vote of the BLAG to authorize litigation and to articulate the institutional position of the House in that litigation, is the equivalent of a vote of the full House of Representatives. For example, in the 115th Congress, the BLAG, pursuant to Rule II(8)(B), authorized House Committees to intervene in ongoing litigation. The BLAG has been delegated this authority for all litigation matters, and I want to be clear that this includes litigation related to the civil enforcement of a Committee subpoena. If a Committee determines that one or more of its duly issued subpoenas has not been complied with and that civil enforcement is necessary, the BLAG, pursuant to House Rule (II)(8)(B), may authorize the House Office of General Counsel to initiate civil litigation on behalf of this Committee to enforce the Committee’s subpoena(s) in federal district court.

Based on this “legislative history,” would a court conclude that BLAG’s authority to “speak[] for, and articulate[] the institutional position of, the House in all litigation matters” empowers it to authorize a committee to bring suit in federal court? I remain somewhat skeptical, but Chairman McGovern’s statement presumably would strengthen that argument. It appears, however, that the House is planning to adopt a much more explicit resolution on that issue, which is wise.