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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More on Bannon and OLC

In connection with my last post, I want to elaborate on Steve Bannon’s advice of counsel defense. The essence of this defense is that legal advice from his counsel that he was not obligated to comply with the select committee’s subpoena negated the “willfulness” required to violate the contempt of Congress statute (2 U.S.C. §192). Leaving aside the question whether this is a valid legal defense (spoiler alert: it is not), Bannon claims that this defense is bolstered by Office of Legal Counsel opinions which he interprets to excuse him from compliance with the select committee’s subpoena. For example, in his discovery motion, Bannon states “[Bannon’s lawyer] consistently advised the Government that Mr. Bannon was acting in accordance with legal opinions issued by the Office of Legal Counsel, U.S. Department of Justice, which analyzed the issues under analogous circumstances.”

The significance of the OLC opinions to the purported defense is unclear. One possibility is that Bannon was directly relying on the OLC opinions themselves, rather than simply on his lawyer’s interpretation of them. Another possibility is that the OLC opinions are cited to bolster the reasonableness of the legal advice the lawyer (Robert Costello) provided his client.

Bannon may also be trying to advance something of a slippery slope argument. If he cannot rely directly or indirectly on OLC opinions, then what of executive officials who receive an OLC opinion that specifically advises they need not comply with a congressional subpoena? This is the scenario that Judge Nichols was apparently concerned about when he posed a hypothetical in which Ron Klain refuses to testify based on OLC advice that he has absolute immunity from compelled congressional testimony. In this situation, Nichols asked, could DOJ advise Klain he is immune and then turn around and prosecute him for defying the congressional subpoena?

Continue reading “More on Bannon and OLC”

Should Judge Nichols Recuse Himself in the Bannon Case?

Many moons ago the Justice Department first presented in court its legal theory that senior White House aides are absolutely immune from compelled congressional testimony with regard to their official duties. Although the DOJ attorney who argued the case did a pretty good job, he was unsuccessful in persuading the district court, which rejected the theory in no uncertain terms. See Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53, 99 (D.D.C. 2008) (Bates, J.) (“[T]he asserted absolute immunity claim here is entirely unsupported by existing case law.”). More than a decade later, another district judge, who is currently nominated to sit on the Supreme Court, strongly agreed, finding that “the Miers court rightly determined not only that the principle of absolute testimonial immunity for senior-level presidential aides has no foundation in law, but also that such a proposition conflicts with key tenets of our constitutional order.” Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 202-03 (D.D.C. 2019) (Ketanji Brown Jackson, J.). Although neither Miers nor McGahn resulted in an appellate decision on the merits, two D.C. Circuit judges wrote opinions strongly questioning or rejecting outright the absolute immunity theory, while not a single judge has expressed any degree of support for it. See Comm. on the Judiciary v. McGahn, 973 F.3d 121, 131 (D.C. Cir. 2020) (Rogers, J., dissenting) (McGahn’s claim of testimonial immunity is foreclosed by precedent); Comm. on the Judiciary v. McGahn, 951 F.3d 510, 536-40 (D.C. Cir. 2020) (Henderson, J., concurring) (explaining at some length why McGahn’s claim of immunity rests on a “shaky foundation”).

As fate and the random assignment system would have it, the DOJ attorney from the Miers case, Carl Nichols, is now himself a federal judge presiding over two high profile cases in which testimonial immunity may be an issue. Both cases arise out of the January 6 select committee investigation. The first is the prosecution of Steve Bannon for refusing to comply with the select committee’s subpoena for documents and testimony. The second is a lawsuit filed by Mark Meadows against the select committee seeking to prohibit the enforcement of subpoenas issued to him and his telecommunications provider. Among the grounds asserted by Meadows for invalidating the testimonial aspects of the subpoena directed at him was that it “contravene[d] Mr. Meadows’ testimonial immunity as a senior executive official.” Meadows Complaint ¶ 153.

Back in November a Politico article by Kyle Cheney and Josh Gerstein discussed whether Judge Nichols should recuse himself from the Bannon case (the Meadows lawsuit had not yet been filed) due to his participation in Miers.  According to former House Counsel Irv Nathan, who argued Miers for the House and is quoted in the piece, Nichols should have considered recusing himself because of the similarity of the issues in the two cases. Nathan explained that in Miers Nichols had “argued that a witness, a private citizen (a former Executive Branch official) following the direction of a President, need not comply with a Congressional subpoena and could refuse even to show up, produce any documents or even itemize the documents alleged to be privileged.” This in his view would undermine the judge’s appearance of impartiality in presiding over the Bannon trial.

Continue reading “Should Judge Nichols Recuse Himself in the Bannon Case?”

ACTUALLY CRIMINAL CONTEMPT MIGHT WORK PRETTY WELL RIGHT ABOUT NOW

I will take the occasion of a tweet by Representative Ted Lieu to make a point so obvious it may have been overlooked. Representative Lieu was responding to a question about why House Democrats have not subpoenaed the administrator of GSA (Emily Murphy, who goes by the adorable twitter handle of @GSAEmily) to ask her why she has not yet ascertained “the apparent successful candidates for the office of President and Vice President” in accordance with the Presidential Transition Act of 1963 (3 U.S.C. § 102 note). Lieu explained:

CONGRESSIONAL SUBPOENAS ARE MEANINGLESS BECAUSE WE CANNOT ENFORCE THEM.

(You can tell he is serious by the all-caps). Lieu goes on to say that GSA would simply ignore a subpoena, and that the House should change its rules to authorize inherent contempt, which would allow the sergeant-at-arms to arrest Murphy or other recalcitrant witnesses and bring them before a committee to testify (and, if they refuse, to try them for contempt before the bar of the House).

Now no one is more concerned than I about the impotence of congressional compulsory process with respect to the executive branch. All options for addressing that problem, including the revival of inherent contempt, should be on table for discussion.

However, the most important thing that the House could do right now to restore respect for its process would be to use the criminal contempt procedure set forth in 2 U.S.C. § 194. Under that provision, when a witness fails to appear, answer questions or produce documents in a congressional investigation, the House or Senate may refer the matter “to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.”

As we have frequently discussed, this provision is normally of little value with regard to executive branch witnesses because the Justice Department, despite the apparently mandatory language of the law, takes the position that it does not require it to take action when a witness asserts an official privilege at the president’s direction. Of course, ordinarily the Justice Department that makes the decision on prosecution is the same as the one that advised the president with regard to assertion of the privilege in the first place. That circumstance does not obtain today. There will be (at least if my twitter feed is to be believed)  a new administration come January 20, 2021, which may be willing to move forward with congressional contempt prosecutions of executive officials (or former executive officials), at least under certain conditions.

In the case of Murphy, for example, there are no grounds that I am aware of, even under the views previously articulated by OLC, for her to refuse to even appear before a congressional committee to discuss her statutory duties with regard to the transition. If she were to simply ignore a subpoena to appear, as Lieu suggests she would, she would be taking a very big risk that a new U.S. attorney for the District of Columbia (the “appropriate” U.S. attorney in this and almost all contempt cases) would decide to prosecute her. I suspect that she would in fact appear pursuant to a subpoena, but if she doesn’t, the House should certainly refer her for prosecution. (If she shows up but refuses to answer particular questions, we can cross that bridge when we come to it.)

Apart from Murphy, the House should be looking at strong contempt cases which could be referred now to the U.S. attorney. Presumably the current (acting) U.S. attorney will take no action on them, but as far as I know there is no way for him to prevent his successor from doing so. If the incoming Biden Justice Department is willing to prosecute one or more of the most egregious cases of executive contempt, that may go some way to restoring effective deterrence. And if it is not willing to do so, that will tell us something as well.

Justice Thomas, the Committee on Manufactures, and the Precedent of 1827

Continuing from my last post, let’s take a closer look at the precedent Justice Thomas considers “particularly significant” for purposes of determining whether Congress may subpoena private documents in a legislative investigation. In 1827, the House Committee on Manufactures (COM), which had been charged with developing a legislative proposal to raise tariffs, asked the House to pass the following resolution: “Resolved, That the Committee on Manufactures be vested with the power to send for persons and papers.” 4 Cong. Deb. 862 (Dec. 31, 1827). Members of the committee believed that it needed to hear from witnesses, particularly representatives of manufacturing interests that would benefit from tariffs, to determine both what goods should be protected and what the optimal tariff amount would be. See id. at 871-73 (Rep. Livingston); 875-76 (Rep. Buchanan).

Here is how Justice Thomas characterizes the ensuing debate over COM’s request:

This debate is particularly significant because of the arguments made by both sides. Proponents made essentially the same arguments the Committees raise here– that the power to send for persons and papers was necessary to inform Congress as it legislated. [4 Cong. Deb.] at 871 (Rep. Livingston). Opponents argued that this power was not part of any legislative function. Id. at 865-866 (Rep. Strong). They also argued that the House of Commons provided no precedent because Congress was a body of limited and enumerated powers. Id. at 882 (Rep. Wood). And in the end, the opponents prevailed. Thus, through 1827, the idea that Congress had the implied power to issue subpoenas for private documents was considered “novel,” “extraordinary,” and “unnecessary.” Id. at 874.

Dissent at 9.

Thus, Thomas argues that the record shows two things: (1) opponents of the resolution argued that Congress lacked the power to issue subpoenas for private documents as part of a legislative investigation; and (2) the opponents prevailed in the debate, thereby establishing a precedent that Congress lacked such power. As I will show below, Thomas badly misreads what happened in this debate.

The first thing to understand is that the debate was not primarily about the legal principle underlying COM’s request. Rather opponents had a practical and political objection to the request, namely that they feared it was a delaying tactic that would prevent a bill from being passed before the end of the session. See 4 Cong. Deb. 869 (Rep. Mallary) (“It certainly looked very much as if the object of the gentlemen, in introducing such a resolution as this, was merely to produce delay.”); id. at 865 (Rep. Strong) (“If the [requested] power be exercised, there will not be time to report and pass the bill during this session.”); see also id. at 866-67 (Rep. Stewart); 866-67 (Rep. Storrs); James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 177 (1926) (“Northern protection against southern free-trade appeared as the dominant issue and found violent partisans within and without Congress.”).

To be sure opponents also objected to COM’s request on the grounds that it was “novel” and “extraordinary.” See 4 Cong. Deb. 862 (Rep. Strong); id. (Rep. Wright of New York); id. at 874 (Rep. Stewart). Some doubted whether the House had the power to grant the request, although only one clearly took the position it did not. See id. at 877 (Rep. Wood).

In this regard opponents of the resolution focused on the unprecedented nature of giving a committee the power to send for “persons and papers” merely in order “to adjust the details of an ordinary bill.” 4 Cong. Deb. 866 (Rep. Strong). COM’s task, they suggested, was to exercise judgment based on a broad assessment of economic and social conditions (what might be termed “legislative facts” in modern parlance), rather than to investigate specific factual situations. See id. at 869-71 (Rep. Mallary). Thus, while Representative Wood expressed the strict view that “the only cases in which the House has a right to send for persons and papers, are those of impeachment, and of contested elections,” id. at 882, other opponents suggested a more nuanced distinction between gathering information to draft an “ordinary bill” and what today we might call “investigative oversight.” The latter position was more consistent with existing House precedent as a number of committees had been authorized to exercise compulsory powers for nonimpeachment investigations (including the St. Clair, Wilkinson, and Calhoun investigations). See Landis, supra, at 170-77; Ernest Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 36-37, 53-54, 64-66, 86-93 (1928).

What is most important, however, is that no one argued that there was something special, either constitutionally or as a matter of House precedent, about giving COM the power to demand the production of private documents (or any documents). The issue was whether COM should have any compulsory powers, not whether it should have the power to call for papers in particular. Indeed, the debate makes clear that COM’s interest was in hearing from witnesses; there is no indication it wished to obtain documents.

It is simply not accurate to suggest, as the dissent does, that opponents “prevailed” on removing COM’s power to call for documents. What actually happened was that Representative Oakley proposed an amendment to the resolution adding the words “with a view to ascertain and report to this House such facts as may be useful to guide the judgment of this House in relation to a revision of the tariff duties on imported goods.” 4 Cong. Deb. 868. The purpose of the proposed amendment (which did not affect the power to call for documents) was to address the objection that COM’s proposed resolution, unlike prior resolutions of this nature, did not specify the purpose for which the power was granted.

Oakley’s amendment mollified no one. Representative Stevenson, a supporter of the original resolution, noted that requiring the committee to submit a detailed report would create the kind of delay opponents feared. 4 Cong. Deb. 869. Representative Mallary, an opponent, remarked “that he could not perceive that the amendment varied in the least the principle of the resolution.” Id. at 869.

Nonetheless, Oakley persisted. He offered a new version of his amendment which he suggested would address the concern expressed by Stevenson. The new amendment was in the nature of a substitute for the original resolution, and it provided in full: “That the Committee on Manufactures be empowered to send for, and to examine persons on oath, concerning the present condition of our manufactures, and to report the minutes of such examination to this House.” 4 Cong. Deb. 873.

This revised amendment appears to have done nothing to soften the opposition of the pro-tariff side. See 4 Cong. Deb. 873 (Rep. Stewart) (noting that he “thought his amendment was substantially the same as the other”). Supporters of the resolution, on the other hand, found it acceptable. See id. at 875 (Rep. Buchanan) (“I am in favor of the amendment proposed by [Oakley]; not because it varies in principle from the resolution reported by the Committee on Manufactures, but because it expresses more fully and distinctly the objects which that committee had in view.”). Though Oakley’s revised amendment did not appear to change any minds, the House accepted it and ultimately approved the resolution as amended. Id. at 888, 890.

Oakley’s revised amendment did eliminate the authorization for COM to call for papers. This, however, was not the expressed purpose of the amendment, and it is unclear whether the omission was even intentional. Oakley himself never mentioned it, and it attracted little attention from anyone else. Representative Wright of New York noted the omission and suggested that Oakley might want to modify the amendment to authorize COM to require witnesses to bring the books of their establishments when they appeared to testify. 4 Cong. Deb. 879. Although no one else followed up on this suggestion, one of the opponents of the resolution (confusingly also named Wright, but from Ohio) attacked Wright of New York for making it. See id. at 885 (“Are gentlemen prepared, sir, to establish an inquisition in this country, that shall pry into the business concerns of individuals, upon common subjects of general legislation?”). Other than this rhetorical jab, no one appeared to care about the issue at all.

There is, in short, nothing to suggest that anyone, including Oakley himself, voted for the revised amendment because it eliminated COM’s power to call for papers. If there were “swing voters” who supported the resolution because of this modification, there is nothing in the record to so indicate. Not a single member argued that the power to call for papers raised a separate constitutional issue or that the elimination of this power affected the constitutionality or propriety of the resolution.

The House’s ultimate adoption of the resolution has been uniformly understood as establishing a precedent in favor of the House’s authority to use compulsory powers for purposes of aiding the drafting of legislation. See Landis, supra, at 177-78; Eberling, supra, at 94-98; Telford Taylor, Grand Inquest: The Story of Congressional Investigations 34 (1955). No commentator has suggested “the opponents prevailed” or interpreted the result as a precedent against the House’s authority to compel the production of documents. Cf. Carl Beck, Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on Un-American Activities, 1945-1957 17 (1959) (“Throughout its history Congress has been aware that this power [to compel the production of documents and papers] is necessary to gather facts in aid of a legislative purpose and to serve as a watchdog upon the executive branch of the government.”).

As Justice Thomas notes, controversy over the extent of congressional compulsory powers did not end in 1827. Dissent at 9-11. However, his discussion of these subsequent controversies overlooks that: (1) like the 1827 debate, they involved whether compulsory powers generally, not the power to compel the production of documents in particular, could be employed in certain types of investigations; (2) those who opposed the use of compulsory powers did not assert the 1827 vote as a precedent in their favor; and (3) these later controversies also invariably were resolved in favor of the compulsory power. Thus, to the extent that Justice Thomas believes that Congress lacks any compulsory power in legislative investigations, he is not asserting a novel position, but one that has been repeatedly rejected by both houses of Congress over two centuries. On the other hand, the idea that Congress specifically lacks the power to compel the production of documents has not only been (impliedly) rejected, it does not appear to have been even asserted.

Thomas’s dissent also alludes to the possibility that congressional subpoenas for documents might violate the Fourth Amendment. See Dissent at 7. This is a different legal argument than the claim Congress lacks the power to subpoena documents in the first place. This argument was raised on at least one occasion of which I am aware, although interestingly the dissent does not cite it. When the original contempt of Congress statute was introduced in 1857, Representative Israel Washburn questioned whether making it a crime to withhold papers from Congress would be consistent with the Fourth Amendment. See David P. Currie, The Constitution in Congress: Democrats and Whigs 1829-1861 222 (2005). Washburn asked “Are you not by this bill dispensing with the conditions and requirements of the Constitution and endeavoring to obtain the possession of private papers without warrant issued upon probable cause, and supported by oath or affirmation?” Id.

It was perhaps an interesting question, though Professor Currie reports that “no one condescended to answer Washburn’s objection.” Of course, if taken seriously, the objection would call into question all congressional as well as judicial document subpoenas and, as Currie notes, has long since been settled by the Supreme Court against Washburn. See id. at 222-23 & nn. 98, 100. It is unclear how throwing the Fourth Amendment into the mix advances Justice Thomas’s argument.

 

Justice Thomas’s Dissent in Trump v. Mazars

Today I will discuss Justice Thomas’s dissent in Trump v. Mazars USA, LLP. Specifically, I will consider how Thomas uses historical practice and precedent to support his claim that “[a]t the time of the founding, the power to subpoena private, nonofficial documents was not included by necessary implication in any of Congress’s legislative powers.” Mazars, slip op. at 3 (Thomas, J., dissenting) (hereinafter “Dissent”).

The starting point for Justice Thomas is that the House has no express power to issue legislative subpoenas and thus it may only be found to have such power if it can “be necessarily implied from an enumerated power.” Dissent at 3. This in itself is fairly noncontroversial, leaving aside the longstanding debate whether “necessary” means absolutely necessary, merely convenient, or somewhere in between. See Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 188-208 (2003).

The challenges for Justice Thomas’s position are two-fold. First, as he acknowledges, the Supreme Court long ago decided this issue against him when it declared the “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” McGrain v. Daugherty, 273 U.S. 135, 174 (1927). Although Thomas points out that McGraindid not involve document subpoenas, he does not contest that its language and reasoning are broad enough to cover such subpoenas, and he acknowledges that subsequent cases have applied it to uphold legislative subpoenas for private documents. Dissent at 14. Nonetheless, he contends that McGrain and its progeny should be disregarded because “this line of cases misunderstands both the original meaning of Article I and the historical practice underlying it.” Id.

This brings us to the second challenge. Even if we assume away the McGrain line of cases, Congress has been issuing legislative subpoenas for private documents for nearly two centuries, even by Thomas’s own reckoning. So in what sense might historical practice demonstrate that the original meaning of Article I does not encompass a congressional power to issue such subpoenas? According to the dissent, the key precedent occurred in 1827, when the Committee on Manufactures (COM) sought the power to subpoena documents and the House rejected the request as “unprecedented.” Dissent at 8. But even if this were true (and we will see that it is not), this would establish only that the issue was unsettled at that point in time. If a majority of the House had determined in 1827 that it lacked the constitutional authority to issue subpoenas for private documents, this would tell us little or nothing about the intent of the founders on this issue. Nor could it have constituted a “constitutional liquidation”  of the issue because, as Thomas acknowledges, the House reversed its (alleged) decision within the next ten years and has followed the practice of issuing such subpoenas ever since. See Dissent at 9-11; see generally William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).

Perhaps one could make the argument that the absence of any history of issuing legislative document subpoenas prior to 1827 demonstrates that this power was not truly “necessary” in the sense required to make it incidental to the legislative power. If this is Thomas’s argument, however, he does not make it explicitly. To the contrary, he criticizes the McGrain Court for adopting “a test that rested heavily on functional considerations.” Dissent at 16. Although he offers his view that “the failure to respond to a subpoena does not pose a fundamental threat to Congress’ ability to exercise its powers,” this “functional” assertion appears in a footnote and is not central to the dissent’s analysis. See Dissent at 17 n.6.

The “key moves” in the dissent’s argument serve to define the universe of relevant practice and precedent so narrowly that none exists prior to the Committee on Manufactures’ request in 1827. First, Thomas insists that only precedent involving the production of private papers, rather than official papers or witness testimony, is relevant. See Dissent at 6. Second, he assumes that the actual exercise of the subpoena or compulsory power, as opposed to the mere authorization of such power by the legislative body, is required to establish a persuasive precedent. Third, he discounts precedents from Parliament and (to a lesser degree) the colonial and early state legislatures on the ground that these bodies are not “exact precursor[s]” to Congress, which has more limited powers. See Dissent at 3-7. Finally, he contends that precedents established in the exercise of nonlegislative functions (such as impeachment, discipline of members, and other quasi-judicial functions) are unpersuasive to establish the existence of a like legislative power. Dissent at 6-7.

This approach allows the dissent to ignore the fact that the practice of investing legislative committees with the power to send for “persons and papers” dates back to the early 17thcentury. Telford Taylor, Grand Inquest: The Story of Congressional Investigations 7 (1955). It was commonly used by Parliament, the colonial assemblies, and the early state legislatures to empower committees to conduct a wide variety of investigations, including those related to election contests, breaches of privilege, government misconduct or maladministration, and proposed legislation. See Taylor, Grand Inquest at 7-12; Ernest Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 14-30 (1928); James M. Landis, Constitutional Limitations on the Power of Investigation, 40 Harv. L. Rev. 153, 161-68 (1926); C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. Pa. L. Rev. 691, 708-15 (1926). While this power was usually provided in connection with a specific investigation, in 1781 the Virginia House of Delegates provided four standing committees (on religion, privileges and elections, courts of justice, and trade) with general power to “send for persons, papers, and records for their information.” Potts, 74 U. Pa. L. Rev. at 716.

The dissent apparently would view this ample historical precedent to be of little weight in the absence of evidence that any of these committees actually subpoenaed private papers or that any witness was punished for withholding them. But given the large number of these investigations and the wide variety of subjects they covered, it is not credible to suggest the term “papers” was understood to be limited to “official papers.” The dissent cites no evidence to suggest that anyone at the time understood these authorizations to be so limited, nor do any of the scholars who have studied these investigations advance such an interpretation.

The dissent’s narrow reading of precedent extends to early congressional practice. Take, for example, the House’s 1792 investigation into General St. Clair’s failed military expedition, which the McGrain Court viewed as significant evidence that the founders understood the power to compel the production of information as an inherent attribute of the legislative power. See McGrain, 273 U.S. at 161, 174. The House empowered the investigating committee “to call for such persons, papers and records as may be necessary to assist their inquiries.” As the McGrain Court understood (and Justice Thomas does not dispute), this language authorized the committee to demand the production of evidence with the implicit backing of the House’s compulsory powers.

According to the dissent, the St. Clair committee “never subpoenaed private, nonofficial documents, which is telling.” Dissent at 7. However, there is nothing in the language of the House’s resolution or in the contemporaneous congressional debates to suggest that the committee’s compulsory authority did not extent to private persons or papers. To the contrary, a significant part of the committee’s investigation involved evaluating the performance of private contractors and the quality of goods they supplied to General St. Clair’s army. See, e.g., I Arthur M. Schlesinger, Jr. & Roger Bruns, eds., Congress Investigates: A Documented History 1792-1974 39 (1983) (committee report of May 8, 1792 noting complaints “as to tents, knapsacks, camp kettles, cartridge boxes, packsaddles, &c. all of which were deficient in quantity and bad in quality”). If the committee were precluded from obtaining information from the contractors or compelling the production of their records, this seems like a significant limitation that would have attracted attention, particularly since the House debated at length whether the inquiry should be conducted by a congressional committee or a military tribunal. See id. at 9-10.

While it may be true that the St. Clair committee never subpoenaed “private, nonofficial documents” (a conclusion that cannot be reached with confidence given that many of the relevant records were not preserved, see id. at 17, 101), there is nothing “telling” about this fact. There is no indication that the committee lacked access to private documents it believed relevant; to the contrary, it reviewed St. Clair’s personal papers as well as information from the private contractors. See id. at 10, 95. There is simply nothing to suggest that the committee doubted its authority to subpoena private papers if necessary.

The overall effect of Justice Thomas’s approach is to narrow the scope of relevant precedent to a very small subset. In order to qualify, a precedent must involve an actual subpoena or document demand (not merely an authorization) by Congress (not by Parliament or a colonial/state legislature) for clearly private papers (not official or arguably official records) in connection with a legislative investigation (not the exercise of a judicial power such as impeachment or discipline of members). Using these restrictive criteria, Thomas contends that when in 1827 COM sought the power to subpoena documents in connection with a proposed bill to raise tariffs, its request was “unprecedented.” Dissent at 8.

Even so, Justice Thomas is wrong. About a year before the committee’s request, another House committee investigating John Calhoun’s prior administration of the War Department subpoenaed documents from an unsuccessful bidder on a government contract. See 3 Reg. of Debates in Cong. 1124 (Feb. 13, 1827). Moreover, the House’s 1810 investigation of General James Wilkinson also obtained testimony and documents from a number of private individuals, at least some of which was obtained from a number of private individuals, at least some of which was obtained by compulsory process. I Schlesinger & Bruns, Congress Investigates at 119 & 170. Thus, even by Thomas’s own standards, COM’s request was not “unprecedented.”

That being said, in my next post we will take a closer look at the 1827 debate precipitated by COM’s request for compulsory powers.

 

 

 

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?”

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.