Category: Oversight of the Executive

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How Much of the Mueller Report Will Barr Disclose?

On March 22, 2019, Attorney General Bill Barr notified Congress “pursuant to 28 C.F.R. § 600.9 (a) (3) that Special Counsel Robert S. Mueller III has concluded his investigation of Russian interference in the 2016 election and related matters.” He further informed it that he was in receipt of the special counsel’s “confidential report explaining the prosecution or declination decisions” made in the course of the investigation. Barr advised that he was reviewing the report and anticipated advising the Congress of the special counsel’s “principal conclusions” possibly as early as this weekend. Finally, Barr indicated that he would consult with the special counsel and deputy attorney general “to determine what other information from the report can be released to Congress and the public consistent with the law, including the Special Counsel regulations, and the Department’s long-standing practices and policies.” This latter process will apparently be separate from the advice regarding the “principal conclusions” and presumably be on a longer timeline.

We don’t know, of course, what the long-anticipated “Mueller report” actually says, and we also don’t know how detailed it is. As Barr notes, the regulations only require the special counsel to explain the prosecution and declination decisions he has made. With respect to prosecution decisions, this could simply consist of a summary of publicly available information as the basis for each prosecution is readily inferred from indictments and other court filings. The scope of declination decisions is a bit trickier. Presumably this could include anyone who was identified as a subject or target of the investigation but not ultimately indicted. It might include anyone whom the special counsel seriously considered indicting but did not. It might include the president, but then again it might not because the president cannot be indicted (according to a longstanding Justice Department view) and therefore there was no declination decision for the special counsel to make.

There is also considerable room for interpretation as to what the special counsel’s “explanation” of his decisions should look like. Read narrowly, it could simply consist of a list of individuals charged or not charged along with a brief statement of the reason (e.g., “Individual 1 was not charged with obstruction of justice due to insufficient evidence of corrupt intent.”). But it could reasonably be read much more broadly to allow the special counsel to provide a road map of all the investigatory steps he took and evidence he accumulated so that the reader fully understands why the special counsel reached the decisions he did.

One thing that is clear, however, is that the intended audience for the special counsel’s report is not Congress or the general public. The regulations provide for a “confidential” report to the attorney general only. See 28 C.F.R. § 600.8 (c). In promulgating the special counsel regulations in 1999, the Clinton Justice Department made clear that this report was not to be shared with Congress or the public:

Much legitimate concern has been expressed about the Final Report requirement of the Independent Counsel Act, with respect to both the incentives it creates to over-investigate a matter and the fact that, since it often becomes a public document, it can do harm to legitimate privacy interests. On the other hand, it is appropriate for any federal official to provide a written record upon completion of an assignment, particularly a federal official who has functioned with substantial independence and little supervision. In major cases, federal prosecutors commonly document their decisions not to pursue a case, explaining the factual and legal reasons for the conclusions they have reached.

The principal source of the problems with the Final Report requirement as set forth in the Independent Counsel Act is the fact that the Report typically has been made public, unlike the closing documentation of any other criminal investigation. This single fact both provides an incentive to over-investigate, in order to avoid potential public criticism for not having turned over every stone, and creates potential harm to individual privacy interests.

Therefore, these regulations impose a limited reporting requirement on all Special Counsels, in the form of a summary final report to the Attorney General. This report will be handled as a confidential document, as are internal documents relating to any federal criminal investigation. The interests of the public in being informed of and understanding the reasons for the actions of the Special Counsel will be addressed in the final set of reporting requirements, discussed below.

64 Fed. Reg. 37038, 37041 (July 9, 1999).

This language suggests that the special counsel report should be similar to other declination reports written by federal prosecutors, but need not be as comprehensive as an independent counsel report. In any event, it is treated as an internal Justice Department document, the kind that the executive branch has argued should be considered “the crown jewels of executive privilege” (see here at pages 15-19) and may not be shared with Congress or the public.

But what of the public’s interest in being informed of the reasons for the special counsel’s actions, alluded to in the last sentence of the Federal Register notice? This is addressed in the following special counsel regulation:

The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action-

     *   *   *

(3) Upon conclusion of the Special Counsel’s investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

28 C.F.R. § 600.9 (a).

It should be noted that Barr’s letter of March 22 already notified the committees of the conclusion of the special counsel’s investigation and the fact that there had been no instances of the attorney general nixing a proposed action of the special counsel. It therefore satisfies the requirements of the regulation with the arguable exception of the “explanation for each action,” which presumably refers to an explanation for the termination of the special counsel’s investigation.

Exactly what is meant by this “explanation” is unclear. As Professor Marty Lederman notes, it “might conceivably consist of only a brief outline explaining why Mueller closed up shop, which is all the regulation formally requires.” It seems likely that this is what Barr is referring to when he speaks of the special counsel’s “principal conclusions.” This might be something on the order of a very summary description of the special counsel’s findings without getting into specifics of particular declination decisions. Any greater detail would seem to be more than what the regulation requires.

Lederman argues, however, that this is “merely a floor, not a ceiling.” Barr seems to be thinking along similar lines when he states he will consult with Mueller and Deputy Attorney General Rod Rosenstein to determine whether additional information can be released consistent with the law and DOJ practices and policies. But this additional information release would seem to be beyond the scope of the regulation itself. If the intent of the regulation were to authorize the attorney general to release any part of the special counsel report not otherwise prohibited by law, it picked an awkward way of expressing it.  And if this is Barr’s interpretation, he cannot claim to be legally required to withhold anything other than grand jury information.

In short, it is hard to see how one parses the applicable rules to allow disclosure of only a portion of the Mueller report. The report in essence is a glorified declination memorandum, and either Barr is free to release Mueller’s explanation for his declination decisions or he is not. If he is, it is hard to see how that will not involve getting into both the details of internal prosecutorial decision making (of the kind Lederman correctly notes DOJ does not like to share) and factual information that will impinge upon individual privacy interests. If he is not, it would seem he can share little beyond the report’s “principal conclusions.”

It should be noted that the above analysis is based on the logic of the executive branch’s own regulations and policies. It is not determinative of what would (or should) happen in a legal or constitutional fight between Congress and the executive over access to the Mueller report. There is also an interesting question about the right of White House counsel and the president’s personal lawyers to the Mueller report. It has been reported that the White House will be allowed to review the report for purposes of making executive privilege claims (primarily, one would imagine, those related to the presidential communications branch of the privilege) before it is disclosed to Congress. But will that review encompass the entire report, or only that portion which Barr decides can otherwise be disclosed?

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Some Preliminary Thoughts on the House Judiciary Document Requests

Yesterday the House Judiciary Committee issued document requests to 81 individuals, government agencies and other organizations. The cover letter from Chairman Nadler explains that the committee “is investigating a number of actions that threaten our nation’s longstanding commitment to the rule of law, including allegations of obstruction of justice, public corruption, and other abuses of power.” As Spencer Ackerman put it more colorfully, the committee wants the files of “anyone who might know anything about any allegation about wrongdoing by President Trump, encompassing everything from obstruction of justice to collusion with Russia to paying off potential ex-mistresses.”

At the outset it should be noted that these are document requests, not subpoenas, and therefore do not impose any legal obligation on the recipients, with two caveats. First, the requests put the recipients on notice that the documents are relevant to and being sought in a congressional proceeding, thus establishing or helping to establish one or more elements of obstruction of Congress should any of this evidence later be altered or destroyed.

Second, although there is no legal enforcement mechanism, by practice and policy it is expected that government agencies will respond in good faith to congressional requests for information. See Letter Opinion for the Counsel to the President from Curtis E. Gannon, Acting Asst Atty Gen. for the Off. of Legal Counsel, at 3 (May 1, 2017) (“Upon receipt of a properly authorized oversight request, the Executive Branch’s longstanding policy has been to engage in the accommodation process by supplying the requested information ‘to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.'”) (quoting the Reagan memorandum of 1982); see also Letter from Senate Judiciary Chairman Charles E. Grassley to President Donald Trump at 6 (June 7, 2017) (“the Executive Branch should work to cooperate in good faith with all congressional requests to the fullest extent possible”). It is therefore likely the government recipients (the White House, Department of Justice, FBI, and General Services Administration) will provide some sort of timely response to the committee’s requests.

We can also anticipate, however, that these agencies will contend that the requests are inconsistent with their “constitutional and statutory obligations” in several respects. A number of the requests implicate matters (national security and foreign policy, exercise of the pardon power, discussions between high level advisors and the president personally) that traditionally lie at the heart of the doctrine of executive privilege. See generally Mark J. Rozell, Executive Privilege 49-61 (1994). It seems doubtful that the Trump administration will produce these materials without a fight.

The Judiciary committee has tried to forestall this objection by limiting the initial production to documents already produced to other investigative bodies, such as the Special Counsel’s office and the U.S. Attorney for the Southern District of New York. The administration, however, can be expected to argue that sharing information within the executive branch does not waive the privilege with regard to congressional requests.

The administration will also probably contend that the committee’s requests impinge upon open criminal investigations and violate grand jury secrecy rules. In particular, the document requests to the Justice Department and FBI would seem to encompass materials that these organizations or their components have gathered in their investigative capacities. If so, the administration may argue that the committee is essentially trying to obtain the work product of the Special Counsel and the SDNY.

Another category of recipient to keep an eye on consists of former Trump administration officials, including former Attorney General Jeff Sessions, Chief of Staff Reince Priebus, White House Counsel Don McGahn and many others. These individuals are in a tricky situation. They may have varying degrees of interest in cooperating with the committee, but they are unlikely to want to produce information over the administration’s objections. On the other hand, they probably do not want risk contempt (a possibility if and when the committee issues subpoenas) or incur enormous legal fees by fighting with the committee either.

I suggested on Twitter, half jokingly, that Tom Bossert (the former homeland security advisor and one of the lucky recipients) should interplead the committee and the administration. In all seriousness, though, the former 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. Such an action would certainly be more meritorious (which is not to say necessarily successful) than Jim Comey’s lawsuit against the committee last December.

The remaining 60 or so recipients are individuals and organizations with a variety of interests and legal postures vis a vis the committee’s requests. One (as far as I know) is the president’s personal lawyer, Jay Sekulow, who will presumably assert attorney-client privilege in response to most if not of all of the committee’s requests. Others are foreigners (e.g., Julian Assange, Wikileaks) who will probably ignore the committee’s requests unless it can figure out how to subject them to legal compulsion. Each recipient will have to make a decision about whether and how much to cooperate with the committee based on his/her/its individual situation and interests.

The only thing we can say for sure is there will be no shortage of congressional legal issues to discuss.

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The Justice Department’s Inventive New Process for (Not) Responding to Congressional Questions

Acting Attorney General Matthew Whitaker was scheduled to appear before the House Committee on the Judiciary tomorrow. According to the latest communication by the Department of Justice, however, he may refuse to appear because the committee has authorized a subpoena for his testimony (even though the subpoena has not actually been served on him). [Update: it seems he will appear after all].

This unusual chain of events began in early January, when Judiciary Committee Chair Jerry Nadler invited Whitaker to testify before the committee at a general oversight hearing regarding the Department of Justice’s operations. Nadler identified a broad range of areas regarding which the committee would likely have questions. Some of these areas related specifically to the investigation of Special Counsel Robert Mueller; others involved completely unrelated areas. The former included questions about Whitaker’s decision not to recuse himself from matters involving the investigation and the question of how the investigation is currently being supervised at the Department of Justice. In addition, Nadler notes “[w]e must discuss the impact of the President’s near-daily statements attacking the integrity of the Department of Justice, the FBI, and Special Counsel Robert Mueller’s investigation.”

After some back and forth over scheduling, Whitaker agreed to testify at a February 8 hearing. On January 22, Nadler sent him a follow-up letter listing a series of specific questions Whitaker could expect to be asked at the hearing. Some of these questions fell clearly within the subjects delineated in Nadler’s earlier letter; others were arguably beyond the scope. For example, some of the questions focused on discussions with President Trump about the investigation by the U.S. Attorney for the Southern District of New York, something that was not specifically mentioned in Nadler’s first letter but is closely related the Special Counsel’s investigation as well as Trump’s general attacks on the Department of Justice.

In any event, Nadler explained that he was sending these questions because “your responses may implicate communications with the President of the United States.” Nadler directed Whitaker to “take any steps that may be necessary for the White House to consider these communications and for the President to determine whether he will invoke executive privilege.” Absent such a formal invocation of privilege by the president, Nadler stated “I will expect you to answer these questions fully and to the best of your knowledge.”

Earlier today, the committee held a business meeting for the purpose of authorizing a testimonial subpoena to Whitaker. According to Nadler, this was necessary “[i]n an abundance of caution to ensure Mr. Whitaker both appears in the hearing room on Friday morning and answers our questions cleanly . . . .”

As a legal matter, it is not clear why this step was deemed necessary. If Whitaker had simply failed to show up at the hearing after saying that he would (which seems unlikely), the committee would presumably have had to subpoena him for a future hearing, which could be easily done whether or not a subpoena had previously been authorized. On the other hand, if Whitaker showed up voluntarily, he would be under the same obligation to answer questions as he would have been under subpoena. See Sinclair v. United States, 279 U.S. 263, 291 (1929) (holding that the congressional contempt statute’s penalty for refusing to answer questions “plainly extends to a case where a person voluntarily appears as a witness without being summoned as well as to the case of one being required to attend.”).

In any event, the Department of Justice (through Assistant Attorney General for Legislative Affairs Stephen E. Boyd) responded to the committee’s authorization of a subpoena by demanding a written assurance “that the Committee will not issue a subpoena to the Acting Attorney General on or before February 8, and that the Committee will engage in good faith negotiations with the Department before issuing a subpoena.”

The first part of this demand is simply the flip side of the committee’s position and is rather silly. If Whitaker shows up at the hearing, there is no reason for the committee to serve him with a subpoena. Conversely, there is no reason to demand that the committee not serve him with a subpoena if he shows up. It really does not matter.

The second part of the demand, however, is different. The Department is using the committee’s theatrical and unnecessary authorization of a subpoena as an opportunity to establish a new and (as far as I know) unprecedented position regarding the process for responding to congressional questions at a hearing. According to Boyd’s letter, the appropriate process for responding to questions that may implicate executive privilege is that first the committee must ask the questions at a hearing in which the witness appears voluntarily, then there must be a period of negotiation in which the parties attempt to resolve differences and, only then, if an accommodation cannot be reached, the committee may issue a subpoena and the president may choose to formally invoke executive privilege.

This is ridiculous. In support of this theory, Boyd quotes an opinion by the once (and presumably future) Attorney General, Bill Barr. But Barr’s opinion related to the process for producing documents, not oral testimony. Although there is nothing prohibiting a committee from issuing a document subpoena in the first instance, the ordinary process is to begin with a document request, have a period of negotiation and the proceed to a subpoena. Indeed, my proposed House rule would formalize that process and add deadlines to ensure that committees are able to get a final response (including a decision by the president whether or not to invoke executive privilege) within a timeframe that is useful for fulfilling their oversight functions.

The proposed rule does not address oral testimony, however, because there the process is different. A committee is free to ask witnesses any questions pertinent to a matter within the committee’s jurisdiction. If the witness declines to answer on grounds of executive privilege (or, more precisely, that the question is one on which the president might decide to invoke executive privilege), theoretically the committee could move immediately to hold the witness in contempt. There is no need to issue a subsequent subpoena because, as we have already seen, the witness is under a legal obligation to answer at the time the questions are asked. As a matter both of practice and practicality, however, the committee should give the witness an opportunity to consult with White House counsel and others to determine whether the president intends to formally invoke the privilege before moving forward with contempt.

The problem is that there is no deadline within which the president must make this decision. The executive branch can (and does) drag the process out indefinitely, often citing the layers of legal counsel that must be consulted before a decision is reached (agency counsel, if applicable, then the Office of Legal Counsel, then the Attorney General, then the White House counsel, etc.). If Congress proceeds with contempt in the meantime, the president can invoke executive privilege immediately before the final contempt vote or even thereafter. And there is little Congress can do about it.

By informing Whitaker of the specific questions before the hearing, Chairman Nadler is cleverly trying to speed up this process (in a manner analogous to my proposed rule on document subpoenas). Whitaker is clearly on notice as to the types of questions that will be asked and has had an opportunity to consult with others in the Department and the White House as to where to draw the lines. But it would not be advisable to press this too far. Until the hearing is actually held, there is no way to say for sure what questions will be asked, whether the committee will be satisfied with Whitaker’s answers to particular questions, what follow up questions might be asked, etc. So assuming that the president does not formally invoke executive privilege before the hearing, the committee should provide Whitaker with a limited but reasonable period of time to determine whether the privilege will be invoked. If the time period expires without any invocation, the committee will be in as strong a position as possible to move forward with contempt.

Of course, the committee still has the problem of how to enforce the contempt. But we will leave that problem for another day.

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Congressional Subpoenas, Contempt, and Executive Privilege: Molly Reynolds and Stan Brand Discuss

There will undoubtedly be a lot of content appearing in the next few months about congressional subpoenas and how to enforce them, along with the related topics of contempt of Congress and executive privilege. Most of this will be review for the regular readers of this blog (you can click on the “congressional investigations,” “contempt of Congress” or “executive privilege” categories to see Point of Order’s prior posts on these topics), but you still might want to check out this podcast featuring Molly Reynolds of Brookings and former House General Counsel Stan Brand, which provides a good overview of the subject as well as some history of the House Counsel’s office (you can find out, for example, why Neil Gorsuch might not be the biggest fan of the congressional subpoena power).

As Stan explains, the biggest problem with congressional subpoenas is that there is no clearly established mechanism to enforce them against the executive branch. Civil contempt is the only currently usable method, but it faces a number of obstacles, the greatest of which is that it is somewhere between extremely difficult and impossible to get a resolution within the time frame of a two-year congress. This gives the Justice Department and its clients a strong incentive to delay as much as possible, knowing that by the time a court gets around to deciding the dispute, it is likely that the whole matter will be moot.

As it happens, I have proposed a reform to House rules designed to address this problem (you can read about it here). Thus far the House in its wisdom has not seen fit to adopt this proposal, but perhaps someone will bring it to the attention of the new House Select Committee on the Modernization of Congress.

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The HPSCI Russia Report, Reconsidered

What seems eons ago, but was only last spring, the House Permanent Select Committee on Intelligence (HPSCI) issued its report on “Russian Active Measures” in connection with the 2016 presidential election. The report was largely dismissed as a partisan effort by Chairman Devin Nunes, “one of Trump’s staunchest allies in Congress and a former adviser to his transition team,” to protect the president. The HPSCI minority issued separate views that claimed the majority’s findings were “crafted to advance a political narrative that exonerates the President, downplays Russia’s preference and support for then-candidate Trump, explains away repeated contacts by Trump associates with Russia-aligned actors, and seeks to shift suspicion towards President Trump’s political opponents and the prior administration.” Both the majority report and the minority response were then quickly forgotten.

With the Democrats assuming control of the committee in the 116thCongress, however, the HPSCI report may assume new significance. For one thing, the incoming majority will reopen the investigation in order to answer questions it claims the Republicans failed to adequately pursue. For another, there will be questions about the veracity of witnesses who testified before HPSCI in the 115thCongress. Michael Cohen, the president’s personal lawyer, has already plead guilty to making false statements to both HPSCI and the Senate intelligence committee regarding his efforts to pursue a Trump Tower Moscow deal during the 2016 presidential campaign.

It is important to distinguish between the facts reported by HPSCI and the characterization of those facts by the committee majority. It is fair to say that the HPSCI report gave President Trump the benefit of every reasonable doubt (and perhaps some unreasonable ones), but the facts it reported are nonetheless damning enough. Moreover, although the committee may have sought to exonerate the president in some respects, it also had some very pointed criticisms of the judgment and ethics of his campaign. It is therefore worth reviewing what HPSCI reported in the spring of 2018.

Russia’s Active Measures

The committee found that Russia employed an “active measures campaign” in connection with the 2016 election, a campaign which “achieved its primary goal of inciting division and discord among Americans.” It was “multifaceted,” “leverage[ing] cyberattacks, covert platforms, social media, third-party intermediaries, and state-run media.” Furthermore, “[h]acked material was disseminated through this myriad network . . . in conjunction with derisive messages posted on social media” in order to “undermine confidence in the election,” “sow fear and division in American society,” and ultimately to sabotage “the effectiveness of the future administration.”

The HPSCI report notes that Russia’s campaign was consistent with its efforts in other countries: “Russia supports fringe political parties and non-governmental organizations in Europe to further the Kremlin’s agenda while also disparaging or discrediting politicians and groups seen as hostile to Moscow.” For example, “during the recent French Presidential elections, Russian-controlled media highlighted defamatory stories about the private life and campaign funding of the more Russia-skeptic Emmanuel Macron.”

While the report avoids labeling Donald Trump (or for that matter Bernie Sanders or Jill Stein) as a “fringe” candidate supported by Russia, one can read between the lines. In any event, the report leaves no doubt who played the role of Macron in the U.S. election of 2016. Russian media “was critical of presidential candidates from both major parties but was consistently critical of candidate Clinton through the election.”

Clinton and her campaign were also the focus of Russia’s cyberattacks and its use of Wikileaks to disseminate politically damaging information obtained in those attacks. Thus, the report confirms key intelligence community findings, including that “Russian intelligence services, acting on the orders of Russian President Vladimir Putin, launched cyber and conventional influence operations—notably by leaking politically sensitive emails obtained from computer intrusions—during the 2016 election.”

Why was Clinton targeted as the more “Russia-skeptic” candidate? The report does not directly answer that question, but it provides some clues. It points out that “candidate Trump and several of his campaign advisers expressed policy views toward Russia quite different than those espoused by much of the Republican foreign policy establishment . . . .”

Trump also had an unusual number of campaign aides with pro-Russian views or close ties to Russia. These included his campaign chairman, Paul Manafort, who at the time of the report had been indicted for financial crimes related to his pre-campaign Russian activities. As the report notes, “[i]f the accusations against Manafort are true, he should have never served as a senior official with a campaign for the U.S. presidency, much less campaign chairman or manager.” (A jury found in August that many of the accusations were true.). Continue reading “The HPSCI Russia Report, Reconsidered”

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Kavanaugh’s Missing Records

Yeah, I know. The transparency and separation of powers issues that everyone thought were so important with respect to the Kavanaugh nomination a week or so ago are now yesterday’s news. For that very reason, I am putting a longer piece on the Presidential Records Act and its application to the Kavanaugh hearing on the back burner. But I want to make a relatively brief point on the subject at this time.

With all the charges and countercharges relating to what documents were and were not produced from Kavanaugh’s prior government employment, it is easy to become confused as to what is actually at issue. In my view, the most important question has to do with the documents from Kavanaugh’s service at the White House counsel’s office that were withheld from the Senate Judiciary Committee.

Under the PRA, all of Kavanaugh’s documents from his service in the GW Bush White House are in the custody of the Archivist of the United States (and his agency the National Archives and Records Administration or NARA). At the outset, the committee majority and minority disagreed whether to request that NARA produce Kavanaugh’s documents from both his service as an attorney in the White House counsel’s office and later as President Bush’s staff secretary. Chairman Grassley decided that the former employment was far more relevant to Kavanaugh’s nomination and that requesting the latter would unreasonably delay the process. Accordingly, the committee requested that NARA produce only the White House counsel documents. While people may disagree with Grassley on this, the decision was one for him to make (and, for what it’s worth, seems reasonable to me).

The problem arises from the fact that the committee did not receive all of Kavanaugh’s White House counsel documents. Instead, some 27,110 documents (amounting to 101,921 pages) were withheld entirely from the committee on grounds of constitutional privilege. Other documents were withheld for other reasons (e.g., lack of responsiveness) and some documents were produced to the committee on a confidential basis, but it is the roughly 100,000 pages of material withheld as constitutionally privileged that present by far the most important issue, both in terms of compliance with constitutional and legal requirements and from the perspective of obtaining the information most relevant to Kavanaugh’s confirmation.

For purposes of discussion, we will assume that all of the documents in question were plausibly within the scope of constitutional privilege (or, as it is more commonly called, executive privilege). It should be understood that the word “plausibly” is doing a lot of work here. The scope of executive privilege is a highly contested matter, and executive branch lawyers (not surprisingly) tend to take a broader view than others. Moreover, as anyone who has had to review documents for privilege can attest, applying even an agreed-upon standard to particular documents is often more of an art than a science. So if one starts with a broad view of executive privilege and errs on the side of withholding anything that might arguably fall within that broad scope, one can “plausibly” withhold quite a bit of material. Indeed, one might be able to withhold nearly everything from Kavanaugh’s records that would be of actual relevance to assessing his performance as a White House lawyer.

So what exactly was withheld from the committee? According to a letter from a private law firm retained by former President Bush, the “most significant portion of these documents reflect deliberations and candid advice concerning the selection and nomination of judicial candidates, the confidentiality of which is critical to any President’s ability to carry out this core constitutional executive function.” One can certainly understand why the executive branch might be reluctant to share these files with Congress. Presumably they would contain candid discussion, including negative information and opinions, regarding actual and potential judicial nominees. To give one hypothetical but realistic example, there could be a file on a candidate who was not nominated because of alleged misconduct that may or may not have occurred in the distant past. The potential leak of such information might undercut the ability of future presidents to find qualified judicial candidates and to obtain information and candid advice regarding the exercise of the nomination power.

Of course, it is possible that the nomination files would have information that would be in some way relevant to Kavanaugh’s confirmation. They might show something about his judgment, about what qualities he thinks are important in a judge, or about his inclinations with regard to judicial philosophy. Nonetheless, I can see a strong argument that the relevance of this information is outweighed by the potential harm to the president’s nominating power and collateral damage to the judicial branch. (Needless to say, nothing in the events of the past week has inspired confidence in the ability of Congress to avoid such consequences). Thus, the withholding of judicial nomination files seems relatively defensible.

Less so is the withholding of the remaining documents at issue, which include “advice submitted directly to President Bush; substantive communications between White House staff about communications with President Bush; and substantive, deliberative discussions relating to or about executive orders or legislation considered by the Executive Office of the President.” These categories seem broad enough to encompass all of Kavanaugh’s work that would be of the most interest, including the subjects I discussed in my last post.

Let’s take one of those subjects as an example. As I mentioned previously, Kavanaugh was intimately involved in a controversial Bush executive order regarding the procedures for complying with the requirements of the PRA. (Yes, it is ironic, as Amy Howe notes, that we are discussing the use of the PRA to obtain access to documents involving legal work on the interpretation of the PRA). The documents produced to the committee confirm Kavanaugh’s deep involvement in the subject; Howe notes “another White House lawyer jokingly referring to him as ‘Mr. Presidential Records.’” Thus, there are hundreds if not thousands of pages of printouts of public or external materials related to the PRA (legal opinions, law review articles, court pleadings, congressional testimony and correspondence, etc.).

What is missing, as far as I can tell, is any evidence of Kavanaugh’s legal analysis, his participation in drafting and promulgating the executive order, or his role in deciding how to respond to criticism of the executive order by Congress and others. To illustrate the point, take a look at a printout of an August 15, 2001 email from Kavanaugh to White House counsel Alberto Gonzales. The subject is “New draft Presidential Records EO.” The brief email states: “The plan is to get this into the OMB process by the end of the week. Note new Section 5, which both is accurate and should deflect criticism.” And a handwritten note on the printout, apparently from Gonzales, instructs Kavanaugh to “prepare a cover memo . . . explaining what this is and the need—as well as possible negative repercussions.”

Although this non-substantive email was produced to the committee, the attached draft executive order was not, nor was the memo that Kavanaugh presumably prepared in response to Gonzales’s instruction.  Among other things, there is no way to tell how Kavanaugh initially drafted the executive order (if he did), what legal analysis or policy thinking underlay that draft or subsequent revisions, what the problem was with the troublesome Section 5 or how it was fixed, or what Kavanaugh’s memo identified as the need for the new executive order or the “possible negative repercussions.” All of the documents that would provide insight into Kavanaugh’s actual work on this matter appear to have been withheld.

Again, we can concede that internal deliberations related to the executive order were plausibly within the scope of executive privilege at the time they occurred (2001-03). It should be noted, however, that at least 15 years have elapsed since these deliberations took place, and the Supreme Court has recognized that executive privilege is “subject to erosion over time after an administration leaves office.” Nixon v. Administrator of General Services, 433 U.S. 425, 451 (1977). In contrast to the judicial nomination files, it is difficult to identify any particularized harm that might occur from making these materials public, still less from making them available to the committee on a confidential basis.

Even more important than the question of whether these documents could be properly withheld on grounds of executive privilege is whether the decision was made in a legally authorized manner. Because there is a wide range of views on when executive privilege can or should be asserted, it is essential that the decision to assert the privilege be made in a proper and accountable manner. As recognized by the PRA, the primary interest in asserting executive privilege in presidential records, particularly with respect to matters that do not involve classified information or state secrets, belongs to the former president from whose administration they originate. See Hearings Regarding Executive Order 13233 and the Presidential Records Act Before the House Subcomm. on Gov’t Efficiency, Financial Mgt. & Intergovernmental Relations of the Comm. on Government Reform 24 (Nov. 6, 2001) (testimony of Acting Asst. Atty. Gen. Edward Whelan) (“In short, in enacting the PRA, Congress envisioned a balancing act—an orderly process for making presidential records ‘available to the public as rapidly and completely as possible,’ while preserving opportunities former Presidents, at least, to assert constitutionally based privileges as grounds for withholding documents from mandatory disclosure.”) (citations omitted). Even where the privilege constitutionally may be asserted, moreover, there is nothing in the Constitution requiring that it must be asserted. Id. at 29.

Here President Bush did not assert executive privilege. Instead, Bush’s lawyers have informed the committee that they have withheld documents on grounds of executive privilege because “the White House, after consultation with the Department of Justice, has directed that we not provide these documents.” NARA, while still at an early stage in terms of reviewing Kavanaugh’s documents, has informed the committee that certain records are being withheld based on the determination by “representatives of the former and incumbent Presidents” that the documents concern “internal assessments about the qualifications of a judicial candidate, the confidentiality of which is critical to the process of advising the President regarding potential nominations.” This is clearly not a claim that President Bush has asserted executive privilege.

To be sure, Executive Order 13489, the executive order currently governing presidential records (which replaced the Bush executive order previously discussed), provides for the possibility that the incumbent president may assert executive privilege with respect to the records of a former president even where the latter has declined to do so. However, section 3(c) of E.O. 13489 provides specific procedures under which the issue must be presented to the incumbent president by the White House counsel and Attorney General, and section 3(d) requires that the president’s decision to assert executive privilege be specifically documented by the White House counsel. No one has suggested that the issue has been presented to President Trump or that he has made any such decision, nor has the required documentation been generated. Thus, it seems clear that no proper assertion of executive privilege has been made pursuant to the PRA or E.O. 13489. See also 44 U.S.C. §2208(b)(1) (“For purposes of this section, the decision to assert any claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) must be made personally by a former President or the incumbent President, as applicable.”).

In short, the decision to withhold more than 100,000 pages of White House counsel records from the Senate Judiciary Committee on grounds of executive privilege is substantively questionable with regard to those documents other than judicial nomination files, and the entire withholding appears to be procedurally improper under the PRA and E.O. 13489. Apart from legal infirmities, moreover, the broad withholding of these documents appears to have defeated the purpose of the committee’s request by depriving it of any information that would provide a significant insight with regard to how Kavanaugh performed his duties as a White House lawyer.

 

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Of Special Counsels and Congressional Investigations: Questions for Judge Kavanaugh

Note: click here to access full piece.

As you may have heard, President Trump has nominated Brett Kavanaugh, currently a judge on the U.S. Court of Appeals for the D.C. Circuit, to fill the vacancy on the Supreme Court. There has been a good deal of discussion about how a Justice Kavanaugh might approach issues of executive power, and in particular how he might rule on certain (at this point hypothetical) questions arising from the investigation by special counsel Robert Mueller into Russian interference in the 2016 presidential election.

I would like to propose a different line of questioning for Kavanaugh’s confirmation hearing, one that is not designed to score points for the pro-confirmation or anti-confirmation teams, but instead to illuminate the legal/constitutional framework within which allegations of presidential misconduct must be addressed. The jumping-off point for this discussion is Kavanaugh’s repeatedly expressed preference for congressional, rather than criminal, investigation of presidential misconduct. As we will see, this preference is not (or at least should not be) controversial, but it is in some tension with Kavanaugh’s efforts to hinder congressional oversight during his time as associate White House counsel.

Some background on Kavanaugh’s career: after graduating from Yale Law School in 1990, he spent several years clerking, culminating in a clerkship for Justice Anthony Kennedy, whose seat he has been nominated to fill. Kavanaugh went on to work for Kenneth Starr, the independent counsel appointed to investigate the Whitewater and Lewinsky matters. After a brief stint at Kirkland & Ellis, he joined the new George W. Bush administration, spending the first couple of years in the White House counsel’s office and then becoming the president’s staff secretary. President Bush appointed Kavanaugh to the D.C. Circuit in 2006.

Along the way, Kavanaugh authored three works relevant to our discussion today (there may be more, but I haven’t read them). Two are law review articles that have garnered a lot of attention. The third is Kavanaugh’s 2013 opinion in In re Aiken County, which I have mentioned previously but which has escaped widespread notice until recently.

The full piece is too long for a blog post but it may be accessed here. To sum up briefly, these are the three most important points I would aim to establish during Kavanaugh’s confirmation hearing:

1.  According to Kavanaugh, Congress is or should be the sole entity to determine whether the conduct of a sitting president warrants a sanction. The special counsel should not (or perhaps constitutionally may not) indict or prosecute a sitting president. (I think Kavanaugh is right about this, but it is important that Congress and the general public understand this view).

2.  Congress must have investigatory powers as strong as (or stronger than) those of the special counsel, at least when it is investigating presidential misconduct. Kavanaugh has recognized that a special counsel has a right of broad access to executive branch information, and he should do the same for Congress. Whether or not Kavanaugh accepts this proposition (or will speak to it at all), it seems to me a logical corollary of the first point. Otherwise we would be in a “catch 22” situation where only Congress can judge the conduct of a president but only the special counsel has access to the information needed to make that judgment.

3.  During his time at the White House counsel’s office, Kavanaugh was a key architect/defender of legal positions allowing the Bush administration to withhold information from Congress, including with respect to several congressional investigations involving serious and credible allegations of executive branch wrongdoing (the campaign finance, Boston FBI and Clinton pardon investigations). Kavanaugh should be pressed to explain the apparent inconsistency between those positions and points 1 and 2 above by, for example, acknowledging that the Bush administration positions were ill-considered and/or distinguishing them on the grounds that they are inapplicable to an investigation of a sitting president.

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HPSCI Doesn’t Need Don McGahn’s Permission to Release Schiff Memo

We discussed a couple weeks ago the process by which the House Permanent Select Committee on Intelligence (HPSCI) may publicly release classified information. Pursuant to House Rule X(11)(g)(2)(A), HPSCI had voted on January 29 to release the so-called “Nunes Memo.” This vote authorized the committee to release the memo

after the expiration of a five-day period following the day on which notice of the vote to disclose is transmitted to the President unless, before the expiration of the five-day period, the President, personally in writing, notifies the select committee that he objects to the disclosure of such information, provides his reasons therefor, and certifies that the threat to the national interest of the United States posed by the disclosure is of such gravity that it outweighs any public interest in the disclosure.

House Rule X(11)(g)(2)(B).

On February 2, President Trump declassified the Nunes Memo in response to HPSCI’s action. Although HPSCI’s January 29 vote was not a request to declassify the memo, there is nothing inherently wrong with declassifying the memo prior to the expiration of the five-day period, thereby allowing the committee to release the document earlier. However, there was no requirement that the president declassify the document. Once the five days expired without an objection satisfying the requirements of the rule, the committee was free to release the memo regardless of whether it had been declassified.

It appears, however, that the declassification of the Nunes Memo was something other than the executive branch’s attempt to be helpful. On February 5, HPSCI again voted to invoke the disclosure rule, this time with regard to the rebuttal memorandum prepared by the Democratic minority (the “Schiff Memo”). In response the president has neither declassified the memo nor objected in accordance with the rule.

Instead, by letter to HPSCI dated February 9, White House counsel Don McGahn explained that because “the public release of classified information by unilateral action of the Legislative Branch is extremely rare and raises serious separation of powers concerns, as the Constitution vests the President with the authority to control access to sensitive national security information . . . we are once again treating the Committee’s action as a request for declassification pursuant to the President’s constitutional authority.”  Moreover, although the president “is inclined” to declassify the Schiff Memo, he is “unable to do so at this time” because the memo “contains numerous properly classified and especially sensitive passages.” According to McGahn, President Trump “encourages” HPSCI to work with the Department of Justice to revise the Schiff Memo “to mitigate the risks identified by the Department,” and the “Executive Branch stands ready to review any subsequent draft” of the memo “for declassification at the earliest time.”

There is only one problem with this cooperative sounding letter. The House rule does not require any declassification decisions by the president or anyone else.  What it does require is an objection and specific certification by the president “personally and in writing.” These requirements are not satisfied by McGahn’s letter because McGahn is not the president and his letter does not contain the required certification.

McGahn’s position is that the executive branch will treat the HPSCI vote as if it were a request for declassification because otherwise HPSCI’s action would raise “serious separation of powers concerns.” This is a hitherto unknown means of constitutional avoidance. There was no ambiguity in HPSCI’s action and McGahn cannot pretend it did not happen because he thinks it might raise constitutional issues. It should be noted, moreover, that the executive branch has never before questioned the constitutionality of the House and Senate disclosure rules. McGahn’s only basis for doing so now is a single jump cite to Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988), a case which involved the executive branch’s authority to deny security clearance to its own employees.

HPSCI apparently wishes to work with the Department of Justice to ensure that nothing in the Schiff Memo jeopardizes national security. This is appropriate and reasonable. However, it is essential to protect its constitutional prerogatives that HPSCI make it clear it in no way accepts McGahn’s position with regard to the House rule. Once the five-day period expires, the executive branch has no standing to raise objections and HPSCI has no legal obligation to get permission from McGahn or anyone else before releasing the memo. Any redactions or other modifications that the committee wishes to make for national security reasons are entirely within its own discretion.

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Marking Time on the Nunes Memo (with update)

In the past few days a lot of people (relatively speaking) have been reading this post (“Congressional Release of Classified Information and the Speech or Debate Clause”), which discusses the process by which the House and Senate intelligence committees may release classified information to the public. This spike in interest, I presume, relates to the vote yesterday of the House Permanent Select Committee on Intelligence (HPSCI) to release the “Nunes memo,” which details alleged abuses of the FISA process during the investigation of Russia’s involvement in the 2016 elections.

My prior posts on this subject have focused on the Senate (mostly in connection with the release of the “torture memo”, see here, here, here and here), but the House procedure is basically the same as that of the Senate, except that there is no requirement that HPSCI consult with or notify the chamber’s leadership. Thus, as provided by House Rule X(11)(g)(2)(B), HPSCI “may disclose publicly” the Nunes memo “after the expiration of a five-day period following the day on which notice of the vote to disclose is transmitted to the President,” unless in the interim the president objects in the manner specified by the rule.

As far as I can tell, the memo was not transmitted to the White House yesterday, so lets assume it will be transmitted today (note there is no requirement that HPSCI transmit the memo within a specified period of time). When will the five day period expire? If one counted every calendar day, it would expire at midnight on Sunday, February 4, and the memo could be released as early as Monday, February 5. Traditionally, however, the House considers Sunday to be a “dies non” so it will almost certainly not count for the computation. I am less clear on whether Saturday would be counted. Often House rules provide that Saturdays and legal holidays (as well as Sundays) are not counted for purposes of computing days, but there is no such express provision in the rule governing HPSCI’s release of information. So I am not sure whether the Parliamentarians will count Saturday or not. Depending on the answer, the memo would be releasable on Tuesday or Wednesday, unless an objection is received from the president.

What happens if the five days expire with no objection? The rule says that HPSCI “may” disclose the information at that point. It does not say that it must do so. But who decides whether the memo will actually be released? The rule says the information may be released by the “select committee.” It could therefore be argued that an individual member still cannot release the memo until HPSCI itself takes some further action. This might be interpreted to require that the committee take another vote, but since the rule elsewhere specifies other votes the committee must take, it seems likely that no formal vote is required. The Parliamentarians may rule that the chair can release the memo on behalf of the committee, but no one else may do so without the permission of the chair or another vote of the committee.

What if the White House asks for more time to evaluate the memo? Nothing in the rule expressly allows for the five day period to be extended. If the chair controls the release, he can agree to delay until the White House has an opportunity to respond. But once the five days expire, it would appear that the memo is releasable, even if it is not actually released. Any objection received after the expiration of the five days is (at least arguably) ineffective. Thus, if any faction of HPSCI (or the House) wanted the memo released, they could argue that the president’s objections were invalid under the rule.

[update: the above assumes that the transmission of the memo and “notice of the vote to disclose” occur simultaneously. This makes a certain amount of sense since it would be pointless to transmit the notice of the vote without informing the president of what is to be disclosed, given that the purpose of the five day period is for the president to decide whether to object to disclosure. But it is possible that HPSCI could transmit the memo to the president without a formal notice of the vote to disclose, thereby delaying the commencement of the five day period. So this represents another uncertainty as to when exactly the memo can/will be released publicly.]

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Wright on Executive Privilege with Some Additional Thoughts Hazarded by Stern

Steve Bannon, the former chief strategist in the Trump White House, has refused to answer questions from the House Permanent Select Committee on Intelligence (HPSCI) regarding his time in the White House and on the presidential transition team. Bannon claims these subjects may implicate executive privilege and is deferring to the White House counsel’s office as to whether the privilege will be invoked.

I was going to post some comments on this issue, but almost everything I was going to say is admirably covered by Professor Andy Wright here. Wright’s key points are (1) Bannon’s status as a former government official is irrelevant to the legal merits of the privilege claim, though it could impact how the matter is resolved procedurally (more on that in a minute); (2) the privilege belongs to the president, not to the subordinate official; (3) it is thus appropriate to provide the president, with the advice of White House counsel and other executive branch lawyers, an opportunity to decide whether to invoke the privilege formally; (4) if negotiations do not resolve the issue, HPSCI must move forward with a formal contempt process; (5) while it may ultimately be decided that executive privilege does not attach to presidential transitions, the question at this point is an open one; and (6) even if the privilege does apply, HPSCI will still have strong arguments in favor of requiring Bannon to answer some or all of its questions.

One point of qualification. While I agree with Wright that issues of executive privilege have to be decided on a question-by-question basis, the burden is not on Bannon to make sure that specific questions get asked. In other words, if Bannon issued a “blanket refusal [to answer] about all swaths of time during his transition and White House roles,” as Wright indicates, it is still incumbent on HPSCI to make a record of the specific questions it wants answered. Failure to do so could undermine its legal position or delay resolution of the merits should the dispute reach the courts.

This brings us to the procedure HPSCI should employ to resolve this matter. As Wright notes, there are three avenues available (criminal contempt, civil litigation and inherent contempt). Each has its drawbacks and none is guaranteed to work (or work in a timely fashion) even if one assumes HPSCI would win the executive privilege issue on the merits.

As we discussed in connection with the Comey matter, however, the procedure followed with regard to a former official might differ from the norm. If Bannon takes the position that he will abide by HPSCI’s rulings on executive privilege unless otherwise directed by a federal court, the burden would be on the executive branch to bring a civil action and obtain a speedy order (presumably a TRO) directing Bannon not to testify.

On the other hand, Bannon might say that he will abide by the president’s instructions even if it means being held in contempt by HPSCI and the House. If so, the House could consider employing the rarest form of testimonial compulsion, inherent contempt. In this procedure, Bannon would be arrested by the Sergeant at Arms and brought before the bar of the House. If he continues to refuse to testify, the House could remand him into the custody of the Sergeant at Arms until he changes his mind (or convinces a court to release him on a habeas petition). This is a drastic remedy, which has not been employed by the House in about a century. But if the House is serious about reasserting its institutional prerogatives, there could hardly be a more inviting target than Mr. Bannon.

Anyway, there is something about incarcerating Bannon in the basement of the Capitol that seems like where 2018 is going, don’t you think?

P.S. RIP Geoffrey Hazard.