Category: Congressional Subpoenas

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More Standing Confusion in Mazars/Deutsche Bank

Since my last post on standing in Mazars/Deustche Bank, the Supreme Court ordered the parties to file supplemental briefs on the question whether the political question doctrine or “related justiciability principles” bear on the Court’s consideration of these cases. These letter briefs have now been filed and, not surprisingly, none of the parties have changed their position that the case is justiciable and the Court should decide it on the merits.

It is important to note that the Court’s order was specifically focused on political question-type issues, which presumably means the Court wants to know whether there is a problem in deciding what is in substance, if not form, a dispute between the legislative and executive branches. In my interpretation, the Court was asking the Solicitor General in particular how to explain the Justice Department’s position that Article III does not permit the Court to adjudicate subpoena disputes between the branches, yet somehow allows the Court to decide exactly the same type of separation of powers issue raised by President Trump’s attack on the congressional subpoenas to third parties here.

That is a good question and the Solicitor General’s answer, IMHO, amounted to gobbledygook. Hopefully this question will be pursued in oral argument and we may discuss it further in due course. For today, however, I want to focus on the logically antecedent question of what gives Trump standing to complain about the congressional subpoenas in the first place. Although this was not the focus of the Court’s order, Trump’s lawyers spent the first page and a half of their letter brief attempting to explain why such standing exists. Their argument, however, did nothing to assuage my skepticism.

They begin by asserting that the disclosure of Trump’s “private records” or “private papers” is a “tangible” and “concrete” injury. The nature of the injury is not further explained. Is it based upon the premise that Trump owns the records or information in question? As discussed in my prior post, it is not apparent that the records in question necessarily belong to Trump personally. Indeed, the letter brief refers to “Petitioners’ private records,” but “petitioners” include corporate entities which are legally distinct from Trump. Similarly, to the extent that standing is premised on an alleged legal right to prohibit the third party accountant and banks from disclosing the information in question, such right may belong to various business entities, only some of which are even parties to the lawsuit.

The brief cites no authority for the proposition that an individual generally has standing to object to a subpoena for his private papers or financial information in the hands of a third party. It does cite Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which holds that Congress’s effort to curb the dissemination of false personal information in the Fair Credit Reporting Act does not establish that such dissemination results in a concrete harm to an individual whose information was so disclosed. How this case supports Trump’s standing is left to the imagination.

The brief also quotes United States v. Nixon, 418 U.S. 683, 696 (1974), for the proposition that “‘resistance to [a] subpoena present[s] an obvious controversy in the ordinary sense.'” Hopefully, however, an enterprising Supreme Court clerk will look up the full quote, which goes like this:

The demands of and the resistance to the subpoena present an obvious controversy in the ordinary sense, but that alone is not sufficient to meet constitutional standards. In the constitutional sense, controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve. Here [the matter is justiciable because] at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one official of the Executive Branch within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communications of the President.

Id. at 696-97. In Trump’s case, of course, he is not “resisting” a subpoena at all; instead, he is attempting to enlist the assistance of the courts to prohibit third parties from complying with subpoenas. Moreover, he is not claiming that those subpoenas violate either an official privilege (as President Nixon did) or a personal privilege. Instead, he argues that the subpoenas exceed the authority of the committees that issued them because those committees lack a legitimate legislative need for the information sought. True, he bases this argument in part on the idea that Congress lacks the power to enact certain legislation relating to the presidency, but he does not claim that the production of the information itself violates some legal right or privilege belonging to him.

To see the difference, consider the congressional hearing at which Trump’s former personal lawyer, Michael Cohen, testified about various legal and ethical improprieties in the conduct of Trump’s personal and financial affairs. Trump undoubtedly would have had standing to sue Cohen to prevent him from testifying as to information protected by the attorney-client privilege (why he chose not to do so is something of a mystery). But I don’t see why he would have standing to object to Cohen’s testimony on the ground that the committee’s investigation lacked a legislative purpose, any more than he could complain that the subject of the investigation fell within the jurisdiction of a different committee under the House rules. These are objections that Cohen himself could have raised, but third parties would not, at least ordinarily, be permitted to do so.

Finally, Trump’s brief cites Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975), which suggests that a third party may be able challenge a congressional subpoena for lack of a legitimate legislative purpose. As we have discussed before, however, the language in Eastland was dicta in the context of a claim that the subpoena violated the third party’s constitutional rights. As explained by another case cited in Trump’s brief, “[t]he plaintiffs have standing to challenge the legality of [congressional] subpoenas on the ground that the forced disclosure of the materials requested would allegedly violate their federal constitutional rights . . .” Bergman v. Senate Special Comm. on Aging, 389 F. Supp. 1127, 1130 (S.D.N.Y. 1975).

There are undoubtedly many cases in which an individual would be injured by a subpoena to a third party seeking private or personal information about that individual. The fact that Trump cannot identify any authority for applying the Eastland dicta outside the context of a claimed violation of constitutional right or privilege is reason to be skeptical that it applies to mere attacks on the validity of a subpoena to a third party.

 

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Could Standing Still be an Issue in Mazars/Deutsche Bank?

When we first discussed the Mazars case (almost one year ago), I suggested that one of the issues would be whether President Trump had standing to object to congressional document subpoenas directed to third parties when he was not claiming constitutional or other privilege in the subpoenaed documents. While Trump and his companies objected to the subpoenas on the grounds that the underlying investigation lacked a legitimate legislative purpose, it was not clear that anyone other than the subpoena recipients should be able to challenge them on that basis.

However, the House did not raise standing as an issue in either the Mazars (involving a subpoena to Trump’s accounting firm) or Deutsche Bank (involving subpoenas to two banks for records relating to Trump’s finances) cases. Nor did any of the judges in those cases question standing. In her Mazars dissent, Judge Rao asserts “[a] subpoena’s force extends beyond its recipient, which the majority has implicitly acknowledged by declining to question President Trump’s standing to challenge the subpoena’s validity.” In Deutsche Bank, the Second Circuit notes “there is no dispute that Plaintiffs had standing in the District Court to challenge the lawfulness of the Committees’ subpoenas by seeking injunctive relief against the Banks as custodians of the documents. See United States Servicemen’s Fund v. Eastland, 488 F.2d 1252, 1260 (D.C. Cir. 1973) (‘[T]he plaintiffs have no alternative means to vindicate their rights.’) (italics omitted), rev’d on other grounds without questioning plaintiffs’ standing, 421 U.S. 491 (1975).” In their Supreme Court brief, Trump’s counsel simply observe that neither the DC Circuit nor Second Circuit  questioned standing and cite a footnote in the Supreme Court’s Eastland decision for the proposition that third parties can challenge legislative purpose. Brief for Petitioners at 59 n.7 (filed Jan. 27, 2020); see Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 n. 14 (1975).

Eastland, however, involved a claim that the subpoena to a bank for an organization’s financial records violated its First Amendment rights. Here there is no claim that the subpoena violates any constitutional privilege or right; Trump simply objects to the validity of the investigation in which the subpoena was issued. As I noted in my original post, I would not read the footnote in Eastland as allowing third parties to challenge the legislative purpose of a congressional subpoena when that purpose is not relevant to an asserted constitutional privilege. And the conclusory references to Eastland  suggest that there is no other caselaw supporting the argument for standing.

In any event, Trump’s standing is premised on the idea, suggested by the Second Circuit, that the subpoenaed records belong to him, and the banks (and the accounting firm) are merely “custodians.” But it is not at all clear that this is true for many of the documents in question. As the House points out       “[m]any of the subpoenaed documents are internal bank records that the President may never have seen or even known about.” Brief for Respondents at 65 (filed Feb. 26, 2020). 

Furthermore, an amicus brief filed by two Boston University law professors points out that most of the records at issue are not Trump’s personal financial records but records of various business entities that are legally separate from him. Indeed, in many cases these entities no longer exist, no longer are owned by Trump and/or are not parties to the litigation. They argue that Trump has no rights in these corporate records and cannot assert any of his legal objections with respect to them. See Brief of Boston University School of Law Professors Sean J. Kealy and James J. Wheaton as Amici Curiae in Support of Respondents at 23-26 (filed Mar. 3, 2020). They also argue that even those entities which are parties to the litigation cannot assert claims based on alleged lack of legitimate legislative purpose because those claims are founded in separation of powers concerns which have no possible application to these business organizations. Id. at 27-29; see also Brief for Respondents at 65 (“The fact that the President is the principal owner of the Trump Organization cannot provide it immunity from Congressional investigation.”).

All of which suggests to me it remains possible that the Court could dispose of this case for lack of standing (which, of course, is a non-waivable jurisdictional requirement). The chief justice will undoubtedly want the Court to speak with one voice if at all possible, and standing might be the way to achieve that result. I suspect, moreover, that the justices will have qualms about opening up the federal courts to litigants seeking to delay and disrupt congressional investigations, a point that was well argued by an amicus brief filed on behalf of former House general counsels and congressional staff. See Brief of Former House General Counsels and Former Congressional Staff as Amici Curiae Supporting Respondents (filed Mar. 4, 2020).

We will see if standing comes up in the (telephonic) oral argument now scheduled for May 12.

 

 

 

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Can McGahn be Prosecuted for Contempt of Congress?

In a fractured decision, a D.C. Circuit panel has held that the House lacks standing to civilly enforce a testimonial subpoena to former White House counsel Don McGahn. The lead opinion by Judge Griffith concludes, with some caveats, that “Article III of the Constitution forbids federal courts from resolving this kind of inter branch information dispute.” Griffith op. at 2. The problem, he explains, is not that the underlying legal issue (whether McGahn is absolutely immune from congressional subpoenas) is nonjusticiable; a court could resolve that issue in a proper proceeding, such as a prosecution for contempt of Congress or a habeas proceeding arising out of Congress’s exercise of the inherent contempt power. Id. at 22. This type of proceeding, however, does not present a case or controversy that may be adjudicated by a federal court. Id. at 8-9.

Judge Griffith denies that this holding would render Congress “powerless” in its disputes with the executive branch because Congress retains “a series of political tools to bring the Executive Branch to heel.” Griffith op. at 13. He explains that “Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President’s nominees, harness public opinion, delay or derail the President’s legislative agenda, or impeach recalcitrant officers.” Id.

The conflation of purely political remedies, such as withholding appropriations or harnessing public opinion, with those founded on legal right is some confounding. True, Congress is often able to use such political leverage to obtain information needed to conduct routine oversight of executive agencies. But such tools are hardly adequate when the president is personally motivated to withhold information from Congress. One might as well argue that members of Congress suspected of criminal wrongdoing can be persuaded to turn over potentially incriminating evidence by the president’s threat to veto their pet projects.

Impeachment is also an inadequate remedy, particularly where the president is withholding evidence of impeachable offenses. Threats of impeaching the president for withholding information are unlikely to convince him to turn over incriminating evidence he believes will lead to his impeachment anyway. Moreover, as recent experience demonstrates, the Senate is unlikely to convict the president for withholding evidence, at least as long as his lawyers can advance any legal theory, no matter how tenuous, to support his action.

As Judge Griffith notes, Congress may hold executive officers in contempt if they fail to comply with subpoenas. This, however, constitutes a remedy only if some consequences flow (or at least potentially flow) from the finding of contempt. Otherwise Congress might as well send a strongly worded letter. Continue reading “Can McGahn be Prosecuted for Contempt of Congress?”

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Questions about OLC’s Role in Responding to House Subpoenas in the Impeachment Inquiry

On Monday I am participating in a Transparency Caucus program entitled “Shedding Light on the DOJ’s Office of Legal Counsel Opinions.” (It will take place at 2pm in Longworth; email Hannah.Mansbach@mail.house.gov if you would like to attend). In that connection, I want to raise an issue regarding OLC’s role in the administration’s decision not to cooperate with the House’s Ukraine investigation and the president’s defense with regard to the second article of impeachment (obstruction of Congress) which resulted from that decision.

The president’s trial brief in the Senate impeachment trial attached an OLC memorandum on “House’s Committees’ Authority to Investigate for Impeachment.” This memorandum, dated January 19, 2020, purported to memorialize oral advice previously given to the White House counsel regarding whether House committees “could compel the production of documents in furtherance of an asserted impeachment inquiry.” OLC Memorandum of 1-19-20 at 2. OLC “advised that the committees lacked such authority because, at the time the subpoenas were issued, the House had not adopted any resolution authorizing the committees to conduct an impeachment inquiry.” Id.

The OLC memorandum is a little fuzzy, however, as to when this advice was given. It is clear that the request for advice came sometime after the issuance of a series of subpoenas issued by House committees in late September and early October 2019. See OLC Memorandum of 1-19-20 at 2 (“Upon the issuance of these subpoenas, you asked whether these committees could compel the production of documents and testimony in furtherance of an asserted impeachment inquiry”): id. at 8  (“Following service of these subpoenas, you and other officials within the Executive Branch requested our advice . . .). The earliest of the subpoenas specifically referenced was on September 27 (to the Secretary of State), the second was on October 4 (to the Acting White House Chief of Staff), and the latest was October 10 (to the Secretary of Energy). See OLC Memorandum of 1-19-20 at 1-2.

The most plausible reading of the OLC memorandum is that the request for advice was made on or after October 10 or, at the earliest, on or after October 4, when the second subpoena was issued. Of course, it is possible that the memorandum refers inaccurately to “subpoenas” when the request was actually made after the issuance of the first subpoena on September 27. This seems unlikely, however, because OLC was undoubtedly aware of the significance of this issue and had no reason to suggest that the request was made later than it actually was.

The OLC memorandum indicates that it provided its initial advice sometime on or before October 31, when the House adopted Resolution 660, formally authorizing an impeachment inquiry. See OLC Memorandum of 1-19-20 at 39. It does not, however, provide any greater specificity on when it first advised the White House counsel and/or other executive officials of its legal conclusion that the subpoenas were invalid.

Why does this matter? Because on October 8, the White House counsel sent a  letter to the House flatly refusing to cooperate with the House’s impeachment inquiry. This letter raises a number of objections, many of which are political rather than legal in nature, to the impeachment inquiry. One of those objections, stated in a single conclusory paragraph, is that the inquiry is “constitutionally invalid”  because of the lack of any formal House vote on the matter. See Letter of Oct. 8, 2019 at 2-3. There is nothing in the letter, however, to suggest that the administration would provide information to the House even if such a vote were to occur; to the contrary, it indicates that the only way the administration would even discuss the possibility of providing information is if the House dropped its impeachment inquiry  and agreed “to return to the regular order of oversight requests.” Id. at 8.

For at least three reasons it seems highly unlikely that OLC had provided even its initial advice to White House counsel as of October 8. First, as already noted OLC probably had not even received a request at that point. Second, even if OLC had received the request as early as September 27, it hardly seems possible that it could have formed a responsible legal opinion by October 8, given that it purported to rest that opinion on an exhaustive historical survey of judicial, executive and legislative statements and practice, including nearly 100 House impeachment inquiries. See OLC Memorandum of 1-19-20 at 13-39; id. at 21 (referring to the “weighty historical record, which involves nearly 100 authorized impeachment investigations”). Third, there is no reference in the October 8 letter to any OLC advice on this issue, though it refers to OLC opinions on other issues it raises.

If the October 8 letter was sent before OLC had advised on this issue, it certainly undercuts the White House’s argument that the president was acting in good faith to protect the legitimate confidentiality interests of the executive branch and that he was relying on legal advice from OLC in doing so. See Senate trial brief of Donald J. Trump at 36 (“the legal principles invoked by the President and other Administration officials are critical for preserving the separation of powers– and based on advice from the Department of Justice’s Office of Legal Counsel”). It also raises the question whether OLC could provide independent legal advice when the president had already formally asserted a position on the issue.

Even if OLC did weigh in before the October 8 letter, it would be important to know how long it spent formulating its opinion before providing that advice. It is also important to find out whether OLC reviewed and approved the October 8 letter. Did OLC advise the White House counsel that the House should be informed that its objection to the impeachment inquiry was curable through a properly worded resolution? Is it consistent with the executive branch’s obligation of negotiating in good faith over information requests to conceal or misrepresent objections that could otherwise have been easily satisfied by the House?

Ventilating these issues would be a great first step toward transparency for OLC.

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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).

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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.

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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.

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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.

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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.

 

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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.