Oversight of the Executive - Point of Order

April 8, 2025

Immunity, Impeachment and Juristocracy (Part I: Unoriginalist Sin)

Today I will start a series of posts on the Supreme Court’s decision on presidential criminal immunity, Trump v. United States, 603 U.S. __, 144 S.Ct. 2312 (2024), and its implications for the legal accountability of the executive. While I am harshly critical of that decision, my main purpose is not to show that it is wrong, but rather that it (along with related developments) dramatically increases the need for systemic congressional oversight of executive (not just presidential) wrongdoing. Moreover, because the decision also threatens Congress’s authority to conduct ordinary legislative oversight, the exercise of the oversight power in the House should be integrated to the extent possible with the impeachment power. Finally, because the courts may refuse to assist or actively thwart congressional investigations, Congress should seek to minimize judicial involvement in any aspect of its inquiries.

Today’s post will address the Trump decision from the perspective of original meaning. Again, my point is not so much that the decision is wrong (though it definitely is), but that its reasoning is untethered to any standard other than the personal opinions of at least five justices, which at the present time happen to be extremely pro-executive power. As Robert Delahunty and John Yoo wrote recently, the Court’s decision in Trump is “one of the most resounding defenses of executive power in its history.” While they mean that as a compliment, not everyone will view it as self-evidently laudatory.

Regarding the legal merits of the decision, Professor Jack Goldsmith commented shortly after the decision came down:

Many people seem to have a strong opinion about whether the Court’s recognition of fairly broad presidential immunity was “right” or “wrong.” But the standard sources of constitutional law do not permit a definitive answer to that question.

I respectfully disagree. I do think the “standard sources of constitutional law” permit a definitive answer to the question. Specifically, the most standard of all sources of constitutional law, namely the text of the Constitution, dictates the answer to the question.

To see why, let’s take a look at the “defense” of Trump offered by Delahunty and Yoo. I put the word “defense” in quotes because their argument clarifies the nature of the Court’s decision in a way that the majority, I think, might find less than congenial.

It is not surprising that Delahunty and Yoo would be supportive of the Trump decision. First, they are legal conservatives who would ordinarily be expected to agree with and defend the Court’s conservative majority. Second, they are veterans of the Office of Legal Counsel with expansive views of executive power. Third, as the piece itself makes clear, they are harshly critical of the supposed “lawfare” against Donald Trump.

Despite their strong predisposition to agree with the outcome of the Trump case, Delahunty and Yoo are clear about its lack of foundation in the original meaning of the Constitution. (To be sure, many other scholars have noted the non-originalist nature of the decision, but few of them are as enthusiastic about the result as Delahunty and Yoo). They acknowledge that “the Court rejected the strong originalist evidence against presidential immunity” and observe that “Chief Justice Roberts’ reasoning ran contrary to the textual and historical evidence at hand, which Justice Sotomayor’s dissent briefly surveyed.”

The authors go on to discuss Alexander Hamilton’s commentary in the Federalist Papers to buttress their point. They cite Federalist No. 69, in which Hamilton states: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes and misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” They further cite Hamilton’s explanation in Federalist No. 65 that impeachment and conviction does not “terminate the chastisement of the offender,” who rather “will still be liable to prosecution and punishment in the ordinary course of law.”

What is interesting is that Delahunty and Yoo cease their analysis of the original meaning there, as if Hamilton’s statements standing alone refute the Trump Court’s position. They simply state “[i]t is difficult, if not impossible, to find evidence from the founding period that overcomes Hamilton’s clear statements, which he made to defend the proposed Constitution during the fight over ratification.” They then move on from the “originalist” portion of their argument. The implication is that Hamilton’s “clear statements” refute the Court’s conclusion, unless one can find other evidence to “overcome” them.

But nothing in the Trump Court’s opinion ostensibly disagrees with Hamilton’s statements. The Court does not dispute that criminal prosecution may follow impeachment and conviction, which after all is explicitly set forth in the Impeachment Judgment Clause of the Constitution itself. See U.S. Const., art. I, § 3, cl.7 (“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”). Nor did the Court claim that the president is categorically excluded from the Impeachment Judgment Clause. It therefore acknowledges that in some cases Hamilton is correct that a former president would “be liable to prosecution and punishment in the ordinary course of law.”

What Chief Justice Roberts claims is that while the Impeachment Judgment Clause shows that a former president may be prosecuted, it “does not indicate whether . . . [he may] be prosecuted for his official conduct in particular.” Trump v. United States, 603 U.S. ___, slip op. at 38 (emphasis in original). Similarly, he cursorily dismisses other founding era evidence, including Federalist No. 69, on they ground they fail to “indicate whether [the president] may be prosecuted for his official conduct.” Id., slip op. at 39. Thus, the chief justice might say, a former president can be prosecuted for murdering his wife or robbing a bank, just not for official misconduct.

Delahunty and Yoo fail to respond to this argument, which is hard to explain. Perhaps they felt it was so self-evidently disingenuous that responding would undercut the remainder of the article, which praises the decision for various non-originalist reasons. Whatever the reason, they do not point out the obvious flaw in Roberts’s position, which is that impeachment is directed first and foremost at official misconduct. Hamilton’s audience was not concerned with the possibility that a president might murder his wife or rob a bank. They were worried about a president who might abuse his office for treasonous or corrupt purposes.

Although the impeachment provisions of the Constitution apply to a wide range of civil officers, they were drafted primarily with the president in mind. See, e.g., Raoul Berger, Impeachment: The Constitutional Problems 106 (1973) (“in the impeachment debate the Convention was almost exclusively concerned with the President”). Moreover, the prosecution of presidential criminality was expressly discussed at the Philadelphia Convention. Edmund Randolph, for example, objected to giving the president the pardon power in cases of treason, arguing that “[t]he President may himself be guilty” and “[t]he Traytors may be his own instruments.” James Wilson responded: “Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he himself be a party to the guilt he can be impeached and prosecuted.” 2 The Records of the Federal Convention of 1787 626 (Max Farrand ed., 1903).

Delahunty and Yoo point out that under Trump “the President enjoys no immunity for private, unofficial acts.” But as they surely know, impeachment is not concerned primarily with such acts. The Impeachment Judgment Clause relates to prosecutions for conduct constituting “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. const., art. II, § 4. This phrase is aimed principally, if not exclusively, at official misconduct, particularly criminal conduct intimately tied to public office. The Randolph/Wilson colloquy, for example, is about a president who pardons traitors who had been acting as “his own instruments.” This envisions a president who is organizing a treasonous conspiracy under the authority of his office, not one committing treason as a private individual.

Historically there has been great controversy over whether ordinary criminal conduct (such as murder, rape or robbery) is even a proper subject of impeachment. The constitutional treatise writer William Rawle maintained that “[i]n general those offenses which may be committed equally by a private person as a public officer, are not the subjects of impeachment.” William Rawle, A View of the Constitution 215 (1829). Many others have held similar views. See Berger, Impeachment, at 202 (“It is generally said, though a few voices to the contrary are not wanting, that impeachment is limited to acts performed in an official capacity.”). It would make no sense to hold this view if it were understood the Impeachment Judgment Clause applied only to ordinary crimes. Conversely, if there had been even a minority position that the president was immune from prosecution for official acts, one would expect that this would have been advanced in arguments against the view that impeachment is limited to acts performed in an official capacity. The fact that no one argued for presidential official act immunity is therefore strong evidence of an understanding that no such immunity existed.

When Delahunty and Yoo say that Trump was contrary to the “strong originalist evidence” or the “textual and historical evidence,” therefore, what they are actually saying is that Trump is flatly inconsistent both with what the Constitution says and with what it has been uniformly understood to mean. The relative paucity of statements about the president’s potential criminal liability or immunity for official acts reflects not an “unsettled question,” as some have suggested, but the fact that no one thought this was a question at all. (As will be discussed in my next post, the closest I can find to anyone expressing doubt, publicly or privately, about the president’s accountability to the criminal law prior to 2021 is a single comment by Justice Rehnquist which, in context, underscores how marginal the idea was).

If Trump cannot be justified on originalist grounds, what “defense” can be offered of the decision? In my next post I will look at the non-originalist underpinnings of the opinion.

February 23, 2025February 23, 2025

The Exciting (Well, To Me) Conclusion of the JOR Memo

When we last left the saga of the JOR memo, Roberts had reached the (imho erroneous) conclusion that while executive officers “are subject to subpoena to testify before the United States House of Representatives or a committee thereof in connection with hearings for legislative purposes, the question as to whether the public interest requires them to refuse to answer a question or refuse to produce records in their custody or control is for their determination as a public officer.”

He does not stop there, however. Instead, he turns to the question “whether by reason of the law creating the Federal Communications Commission and the quasi-legislative and quasi-judicial nature of its functions this agency is an executive agency and whether the officials thereof thus are answerable to the President of the United States or to the Congress.” Relying on Humphrey’s Executor v. United States, 295 U.S. 602 (1935), he found that the FCC “is a quasi-legislative and judicial body and is not part of the executive branch of the Government.” Therefore, he concluded, “it is further my opinion that a member or officer of the Federal Communications Commission is required to answer a subpoena by Congress and to testify or produce records of said agency subject to punishment for contempt if he refuses to do so.”

The logic of Roberts’s position seems to be this. Because executive agencies are “answerable” to the president alone, Congress may not exercise compulsory subpoena power with respect to them. However, because independent agencies are not “answerable” to the president, but only to Congress, Congress may subpoena them and punish their officers and employees if they fail to comply. While there is a certain internal consistency in this position, it founders on the deficiencies of the original premise, which we have already discussed and need not belabor here.

Perhaps more interesting is the question of why Roberts wrote this memo in the first place. It seems to be addressing a question that would be of interest to the FCC itself or someone at the FCC who had been subpoenaed by the House committee. But the memorandum is written strangely if he was concerned only with the legal obligations of the FCC and its officers. Roberts spends a good deal of the memo arguing that executive officers are exempt from congressional compulsion, yet that point is immaterial to his ultimate resolution of the issue. Moreover, however sincerely Roberts may have held his view, he must have known that this was hardly a settled issue and was one vigorously contested by Congress. If he were simply advising someone at the FCC of their legal obligations, he would have written something like “although there is a strong argument that executive officers cannot be punished for withholding information from Congress on the grounds of the public interest, this argument does not apply to the FCC because _______.” The fact that he was so emphatic in his conclusion regarding executive officers suggests that he may have been writing with the interests of others in mind.

Continue reading “The Exciting (Well, To Me) Conclusion of the JOR Memo”

February 13, 2025

Getting Some Answers About DOGE

So I have been planning to write posts on so many topics that I have gotten around to none of them. But a social media discussion today impels me to mention a House procedure which seems well suited, as a first step, to addressing some of the many questions which have arisen regarding the so-called Department of Government Efficiency (DOGE).

Whatever else it may be, DOGE is not in fact a government department. So what is it? As explained by this CRS report, it is in theory a renamed version of an entity originally established in the Executive Office of the President in 2014 by President Obama. It was previously named the U.S. Digital Service and was supposed to help improve agency digital services. (Whether it actually did this is not mentioned). It sounds like the U.S. Digital Service was not originally authorized or funded by Congress. Instead, the OMB director transferred funds to the U.S. Digital Service from the “Information Technology Oversight and Reform” appropriations account for the Executive Office of the President. However, it did receive funding in one of the gigantic COVID relief bills.

In reality, DOGE seems to be an entirely different entity than the U.S. Digital Service, though presumably it is funded through the same mechanism. But although there have been some executive orders laying out DOGE’s functions in skeleton form (including one since the CRS report was issued), many questions remain. These include the status of Elon Musk, who has been identified as a “special government employee” and who may or not be serving as the “USDS Administrator” who the executive orders identify as being in charge of DOGE. Regardless of whether Musk or someone else is formally in charge of DOGE, the question remains whether that position may be filled by someone who is not an officer of the United States and not appointed in accordance with the Appointments Clause.

In theory, as we discussed long ago, the White House is allowed to employ “advisers” who need not be officers of the United States because they exercise no “independent authority or sovereign power,” as Obama’s White House Counsel explained in 2009. I expressed some skepticism of this theory when it was raised to justify Obama’s various “czars,” and I see no reason to be less skeptical of its application to the head of DOGE, which seems to be even more blatantly operational and not simply advisory. In any event, there is no way to make an informed judgment about the constitutionality of DOGE’s operation without some more information on what it is doing and what powers, if any, it has.

There are many other questions about DOGE. Who is hiring the DOGE staff? What screening mechanisms are employed with regard to conflicts of interest? What information and systems are DOGE staff allowed to access at departments and agencies? What supervision are administration officials exercising (or permitted to exercise) with regard to the activities of DOGE staff within their departments and agencies? Does the White House understand DOGE to be covered by laws about transparency, privacy, and ethics and, if so, which ones and how?

One way to get such answers would be through the normal committee oversight process. However, at the moment there does not seem to be much interest on the part of Republican committee chairs in either the Senate or House. An alternative method of getting information, which can be employed by any member of the House of either party, is to offer what is known as a resolution of inquiry. As explained by CRS in a 2017 report:

A resolution of inquiry is a simple resolution making a direct request or demand of the President or the head of an executive department to furnish the House with specific factual information in the Administration’s possession. Under the rules and precedents of the House of Representatives, such resolutions, if properly drafted, are given a privileged parliamentary status. This means that, under certain circumstances, a resolution of inquiry can be brought to the House floor for consideration even if the committee to which it was referred has not reported it and the majority party leadership has not scheduled it for action.

Of course, introducing a resolution of inquiry does not guarantee it will be adopted by the House. But it should get you a floor vote (after 14 days in committee). And I would think that voting against a resolution of inquiry that simply tries to get some information about what the heck DOGE is doing may not be that easy for some Republican members of the House.

Anyway, its an idea.

January 15, 2025

The JOR Memo, the Myers Case, and the Theory of Executive Privilege

To assess the executive privilege argument of the JOR memo, we should begin by drawing three distinctions which are either blurred or ignored in that memo (and the subsequent Wolkinson memo). These are (1) constitutional immunity versus (common law or constitutional) privilege; (2) the protections available to the chief executive versus those available to lower level officials; and (3) subpoenas to appear and provide testimony versus subpoenas to produce documents.

These distinctions are suggested by a passage from a prominent legal treatise that Roberts quotes:

Subpoena to Executive. It is well settled that public officials are not bound to disclose state secrets or to submit public papers to judicial scrutiny. Partly on this ground, and partly because of the immunity of the executive from judicial control on account of the tripartite separation of powers, it seems now to be undisputed that courts cannot compel the attendance of the chief executive as a witness.

JOR memo at 4-5 (quoting 12 Corpus Juris 896 (W. Mack, ed. 1917)) (emphasis added).

This passage distinguishes between the right of public officials to protect state secrets, which is a common law privilege, and the constitutionally based theory of “immunity of the executive from judicial control on account of the tripartite separation of powers.” There were several governmental privileges widely understood to be available under common law, but these protections were limited in scope and generally qualified rather than absolute even when they applied. See Jonathan David Shaub, Common Law Executive Privilege(s) (forthcoming 2025).

The passage also addresses judicial subpoenas to the “chief executive” (i.e., a governor or president) and opines (with some exaggeration) that it is “undisputed” such subpoenas cannot be enforced. The rationale given is based partly on common law privileges and partly on state and federal separation of powers principles that prohibit compulsion of the chief executive. But the fact that the chief executive is (or may be) beyond the compulsory power of the court does not imply the same for lower-level officers.

Finally, the passage baldly asserts that public officials are not required to submit “public papers to judicial scrutiny.” Again this seems to be a significant exaggeration, but there is language in some of the cases and secondary sources cited by the treatise which suggests a broad discretion on the part of chief executives and (sometimes) other high-level public officials to withhold certain types of public papers in judicial proceedings.

The authorities speaking to these questions are a mix of English and state cases, along with some 19^th century evidentiary treatises. No federal authority had addressed the issue as of the time of the JOR memo. Moreover, none of the authorities spoke to congressional proceedings at all. According to Roberts, however, Myers somehow supports the proposition that while executive officers “are subject to subpoena to testify before the United States House of Representatives or a committee thereof in connection with hearings for legislative purposes, the question as to whether the public interest requires them to refuse to answer a question or refuse to produce records in their custody or control is for their determination as a public officer.” JOR memo at 4.

As noted in my last post, why Roberts thinks Myers supports this result is somewhat obscure. There seem to be two possible arguments, which are discussed below. Continue reading “The JOR Memo, the Myers Case, and the Theory of Executive Privilege”

January 6, 2025

The JOR Memo and William Howard Taft

Having claimed that the power of Congress to compel the production of information has been established by Supreme Court precedent only as to private persons, Roberts turns to “the right of the United States House of Representatives or a committee thereof to compel the testimony of or the production of records by officers of the executive branch of the Government.” JOR Memo at 3. Key to the resolution of this question, according to Roberts, is Chief Justice Taft’s opinion for the Court in Myers v. United States, 272 U.S. 52 (1926), which held that the power to remove executive officers is vested in the president alone and may not constitutionally be restricted by Congress.

Taft’s opinion, which was issued one year before the Court’s unanimous decision in McGrain, does not involve or discuss congressional investigations or the obligation of executive officers to respond to subpoenas or demands for information. Exactly why Roberts thinks the opinion is relevant at all is somewhat obscure (I will take that up in my next post), but nothing in its language or reasoning has any direct bearing on the issue at hand.

A more useful guide to Taft’s thinking on the executive’s obligation to produce information to the other branches is a book he wrote after his presidency but before his appointment to the Court. See William Howard Taft, Our Chief Magistrate and his Powers (1916). Roberts does not mention this book, but interestingly Wolkinson cites it at several points in his 1948 memorandum.

In one passage Wolkinson quotes prominently, Taft says:

The President is required by the Constitution from time to time to give to Congress information on the state of the Union, and to recommend for its consideration such measures as he shall judge necessary and expedient, but this does not enable Congress or either House of Congress to elicit from him confidential information which he has acquired for the purpose of enabling him to discharge his constitutional duties, if he does not deem the disclosure of such information prudent or in the public interest.

Our Chief Magistrate 129.

This should not be read as a claim that the president may forbid his subordinates from complying with compulsory process whenever he deems it to be in the public interest. Instead Taft is addressing the president’s personal obligation to provide information demanded by Congress. This is confirmed by the ensuing paragraphs, which discuss several occasions on which sitting presidents successfully refused to comply with demands for information from Congress or the courts. See Our Chief Magistrate 129-30. These incidents, which also appear in the JOR and/or Wolkinson memos, include Washington’s refusal to provide the House with documents relating to the Jay Treaty (on the ground that the House has no constitutional role in the treaty-making process), Grant’s rejection of a demand from the House to identify executive acts he performed away from the seat of government, and Jefferson’s objection to appearing in court or producing documents in response to a subpoena duces tecum issued to him by Chief Justice Marshall in the Burr treason trial. None of these incidents involved a president directing his subordinates to withhold documents or refuse to testify in response to the compulsory process of Congress or the courts.

Continue reading “The JOR Memo and William Howard Taft”

January 3, 2025January 3, 2025

The JOR Memo’s Analysis of the Congressional Investigatory Power

Continuing where I left off, the JOR memo (as I will call it) begins by framing the question of the congressional right to obtain information from the executive as follows:

In considering this matter it must be remembered that our form of Government is tripartite, i.e., executive, legislative and judiciary. Each branch in so far as the exercise of its constitutional functions are concerned is independent of the other.

To permit one branch of the Government by affirmative or negative action to defeat the right of the other to perform its constitutional functions would be to destroy the very form and substance of our democratic government. Further, to say that one branch in the exercise of its constitutional functions can force the other to reach any particular decision or to perform any specific act, which under the Constitution is in the sole discretion of the other, would likewise shake the foundation of our democracy.

(emphasis added).

In addition to being rather dramatic, this argument is more than a little circular. A congressional demand for information from the executive only “defeat[s] the right [of the executive] to perform its constitutional functions” if one assumes that the constitutional functions of the executive include deciding what information should be withheld from Congress. This, however, is precisely the question at issue. Likewise, it is unexceptionable to contend that Congress cannot force the president to make a decision or perform a specific act which the Constitution leaves to the latter’s “sole discretion.” But this assertion does nothing to advance the proposition, which certainly cannot be found in the Constitution’s text, that the president in fact has the “sole discretion” to decide what information should be provided to Congress.

To illustrate this point, one need only look to a hearing held by the House select committee on the FCC a few weeks prior. At a July 9, 1943 hearing, the committee chair, the conservative southern Democrat Eugene B. Cox, decried the fact that President Roosevelt had directed the War and Navy Departments not to produce documents requested by the committee on the grounds to do so would be contrary to the public interest. FCC Hearing at 73-74. In Cox’s view, this action amounted to executive interference with the proper functioning of the legislative branch. In language which perhaps Roberts parroted in his own memorandum, Cox then stated:

It scarcely need be said that the whole concept of our American system of government under our Constitution rests upon the fundamental principle that each of the three coordinate independent branches of the Government, although checked and balanced each by the other, cannot be subject to domination by the others without the whole structure crumbling.

Id.

Thus, while Cox and Roberts agree that the Constitution establishes three separate and independent branches of government (indeed, it scarcely need be said), this tells us very little about whether Congress has the right to compel the executive branch to provide information or who makes the ultimate determination whether the public interest requires withholding of information in response to any particular congressional request for information.

Continue reading “The JOR Memo’s Analysis of the Congressional Investigatory Power”

January 2, 2025

Another Early Executive Privilege Memo

Referring your attention to a post I wrote a few weeks ago regarding the 1948 Wolkinson memo that I found at the Truman Library, there was one other document located in the same file. Unlike the Wolkinson memo, this document, to the best of my knowledge, has not previously been made publicly available. Predating the Wolkinson memo by five years, its argument is similar (with some differences that I will discuss) and thus may be the earliest iteration of what would become known as the doctrine of executive privilege.

The document in question is a 10-page memorandum entitled “Authority of the Congress to Compel Testimony or the Production of Records.” It does not say to whom it is addressed, but the author is identified as James O’Connor Roberts, and it is dated August 10, 1943.

The first sentence of the memorandum states that the memo will address “the right of the United States House of Representatives to require testimony of, or the production of records by, officers of the Federal Communications Commission.” This question undoubtedly was asked in the context of the then-ongoing proceedings of a House select committee which was holding a series of contentious hearings in the summer of 1943. See generally Study and Investigation of the Federal Communications Commission, Hearings Before the House Select Comm. to Investigate the Federal Communications Commission, 78^th Cong. (1943) (“FCC Hearing”).

As noted above, it is not clear for whom the memo was prepared, although it appears to be written from the perspective of someone interested in grounds for resisting the informational demands of the select committee. Since it specifically addresses the obligations of officers of the FCC, it may have been requested by FCC commissioners and/or attorneys who were facing demands for testimony and documents from the select committee. See, eg., FCC Hearing at 42-67 (testimony of FCC Chairman Fly and FCC General Counsel Denny). On the other hand, there were others in the Roosevelt administration, up to and including the president himself, who were concerned about the select committee’s investigation and did not wish to cooperate with its demands for information. See id. at 67-74.

Nothing that I have learned about the memo’s author so far sheds much light on his purpose for preparing the memo. James O’Connor Roberts was a fairly prominent and well-connected Washington lawyer who was active in civic and philanthropic causes. At one time he had worked for the federal government but he went into private practice in the 1930s. He might well have been asked to prepare the memo by someone at the FCC, the Department of Justice or the White House, but at this point it is hard to say.

How the memo got into President Truman’s White House files is also something of a mystery. Truman, of course, was not president or even in the administration in 1943. Roberts participated in meetings with Truman at the White House on several occasions in 1948 and 1949, mostly in connection with charitable or civic events such as the annual Christmas lunch of the Chatterbox Club (don’t ask me). Truman also appointed Roberts to serve on the Subversive Activities Control Board in 1952. Whether any of this relates to how the memo found its way into the Truman White House is anybody’s guess.

Anyone who has more information about this memo or its author is welcome to contact me. In the meantime, I plan to do a series of posts unpacking and analyzing the arguments made in this short but interesting document.

December 2, 2024

Truman, Wolkinson, and the Invention of Executive Privilege

Apropos of nothing, I was reading Judge MacKinnon’s dissent in Nixon v. Sirica, 487 F.2d 700, 729 (D.C. Cir. 1973) (en banc) and came across a passage I had not paid attention to before. In arguing that historical practice “firmly establish[es] a custom and usage that a President need not produce information which he considers would be contrary to the public interest,” id. at 737, MacKinnon cites the following episode from the Truman administration:

In 1948, following an abortive attempt by a Republican-controlled Congress to obtain certain information and papers from the executive department, a bill was prepared which, if enacted, would have required every President to produce confidential information even though he considered that compliance would be contrary to the public interest. President Truman thought that such a law would be unconstitutional and in preparation for the 1948 presidential election campaign he had a lengthy memorandum prepared (hereinafter referred to as the “Truman Memorandum”). The Truman Memorandum recites all the principal instances, beginning in 1796, where Presidents have refused to furnish information or papers to Congress.

Id. at 731.

MacKinnon cites a 1948 New York Times article which discusses this memorandum. The article, written in the midst of the Truman-Dewey presidential campaign, explains that “President Truman’s legal advisers have prepared for his use in the campaign a book-length memorandum designed to prove his right to refuse to deliver any papers or information held by him or his Cabinet officers to the Congress or its committees.” The article notes that the memorandum relates most immediately to controversies regarding Truman’s refusal to provide information regarding federal employee “disloyalty files” to congressional committees, but that it also may be seen in the light of “much larger issues”

The article does not identify the “legal advisers” who drafted the memorandum. It does, however, cite “[o]ne of the authors of the memorandum [who] compared the relationship of the President and Congress under the Constitution to that of husband and wife, in a marriage where laws cannot compel one to acquiesce to the other.” In this somewhat odd analogy the “ultimate disposition of a quarrel between them” could only be by a political “divorce” in the form of impeachment proceedings against the president.

After conferring with Professors Josh Chafetz and Jonathan Shaub, I concluded that the memorandum in question was likely an early version of the famous memorandum prepared by Herman Wolkinson, the obscure and mysterious Justice Department official whose work would later become the basis for the Eisenhower administration’s creation of the doctrine of executive privilege. Wolkinson first published his study in 1949 as a three-part series of articles in the Federal Bar Journal, but to my knowledge this 1948 version had not been made publicly available.

Judge MacKinnon clearly had a copy (perhaps from his days at the Eisenhower Department of Justice), and he indicated that the original was kept at the Truman Library. So I reached out to the very helpful staff at the Truman Library and they found for me the 102 page memorandum described in New York Times article.

As suspected, this is a version of the Wolkinson memorandum. In fact, as far as I can tell, it is identical, except for a few changes in formatting, spacing, punctuation, etc., to the version that then-Deputy Attorney General William Rogers submitted to a Senate Judiciary subcommittee on April 10, 1957. See Freedom of Information and Secrecy in Government, Hearing before the Senate Subcomm. on Constitutional Rights of the Comm. on the Judiciary, 85^th Cong., 2d sess. 62 (1958).

Rogers described the memorandum as “a study prepared in this Department” and that is how I always understood the Wolkinson memorandum. I assumed that Wolkinson had been charged, as a DOJ employee, with researching the issue of executive privilege to assist the Department in responding to congressional demands for information during the Truman administration and that his work was re-discovered when President Eisenhower asked his attorney general for legal authority to justify resisting Senator McCarthy’s demands for information from the Army and other parts of the executive branch.

If in fact the memorandum was prepared for use in the Truman campaign of 1948, that raises some questions. How did Wolkinson become a “legal adviser” to the Truman campaign? Was he the sole author or were there others? Was he the source of the odd marriage analogy provided to the Times reporter? Why would it be appropriate for a career Justice Department lawyer to be providing legal assistance to the president’s campaign team? (I guess if the president’s “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” as asserted by the Supreme Court in Trump v. United States, covers the attempted use of the Justice Department to overturn an election the president lost, he can also use it to try to win the election in the first place.)

Anyway, this all may be of little interest to anyone who isn’t an executive privilege scholar (and perhaps not even to those who are). But given the importance of the Wolkinson memo and how little seems to be known about it, I thought it worth flagging.

June 3, 2024June 3, 2024

Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity

In the Supreme Court argument on Donald Trump’s claim of absolute presidential immunity from criminal liability for “official acts,” Trump’s counsel, John Sauer, relied heavily on the Court’s Speech or Debate jurisprudence. See Transcript at 6-8, 31, 34, 36 & 46. Sauer did not go so far as to claim the president was literally entitled to protection under the Speech or Debate Clause, but he contended the issues addressed in the Speech or Debate Clause were “very analogous” to those presented by the criminal prosecution of a (former) president, Tr. at 34, and he argued for the creation of a parallel immunity for the president. Tr. at 36. For the reasons explained below, this argument should be rejected and, even if it were accepted, provides little if any protection for Sauer’s client in this case. Continue reading “Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity”