Category: Oversight of the Executive

Posted on

Barr on Grand Jury Redactions

I have not watched most of Attorney General Barr’s testimony over the past couple days, but I gather from clips and reporting that he has made a few remarks regarding grand jury material redactions from the Mueller report. I have a few brief comments on these statements.

First, Barr notes, correctly, that under the Mckeever decision no grand jury material can be provided to Congress or the public except pursuant to one of the express exceptions set forth in Rule 6(e). He also indicates he does not see at the moment that any of those exceptions apply. He suggests, however, a willingness to discuss 6(e) redactions once the report is released, specifically with regard to any redactions that might be material to understanding the report or its conclusions.

Barr mentions the possibility of “workarounds” with regard to the redacted material. By this he might mean providing non-grand jury material that would provide the needed context or substantiation to substitute for whatever was redacted. He also may be leaving open the possibility of seeking permission from the court to release 6(e) material, although he appears disinclined to go that route at the moment.

Barr made one comment of potential legal significance. With regard to grand jury material in the report to Congress by independent counsel Ken Starr, Barr suggested that this was immaterial to the current circumstances because Starr was operating pursuant to a statute that “overrode” the provisions of Rule 6(e). Barr here is referring to 28 U.S.C. § 595(c), discussed in my prior post, which provided “[a]n independent counsel shall advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for an impeachment.”

Barr is correct that in Starr’s view § 595(c) overrode the requirements of grand jury secrecy. As explained in Starr’s report to Congress (see note 18), however, out of an abundance of caution he also sought express authorization from the Special Division to disclose grand jury material. The Special Division then authorized Starr to release grand jury material and provided “this authorization constitutes an order for purposes of Federal Rule of Criminal Procedure 6(e)(3)(C)(i) permitting disclosure of all grand jury material that the independent counsel deems necessary to comply with the requirements of § 595(c).”

The Special Division’s order does not say that section 595(c) overrides the requirements of grand jury secrecy. It may or may not have agreed with Starr on this point. By issuing an order pursuant to the “judicial proceeding” exception, however, the panel indicated that Starr’s disclosure was also justified under that exception, presumably because it was “preliminarily to” the “judicial proceeding” of impeachment.

Of course, it is impossible to know from the Special Division’s brief order what role section 595(c) played in its decision to invoke the “judicial proceeding” exception. It may have believed, for example, that section 595(c) effectively gave the independent counsel the authority to decide what materials were necessary for the House to receive. (That Starr’s application to the Special Division is still under seal makes it particularly difficult to discern the panel’s thinking on this). Nevertheless, it is hard to see how its order makes sense unless impeachment is the “judicial proceeding” on which it was based. This in turn indicates that a disclosure can be “preliminarily to” an impeachment proceeding even if no impeachment inquiry has yet been formally initiated.

It should also be noted that the Freeh/LaBella disclosure was not made pursuant to section 595(c). Although it is possible that the Justice Department could attempt to distinguish that disclosure on the grounds that an impeachment inquiry was underway (although on a different subject than that of the disclosure), there is nothing in the language of Rule 6(e) or in any of the relevant precedents to suggest that this is a material distinction.

In short, if Barr is merely suggesting that the absence of section 595(c)’s reporting requirement makes it inappropriate to seek here the kind of blanket authorization to disclose grand jury material received by Ken Starr, he makes a reasonable point. If, on the other hand, he is arguing that Chief Judge Howell would be without power to order disclosure of grand jury material in the Mueller report because of the absence of a “judicial proceeding,” he is in my opinion mistaken.

Posted on

The D.C. Circuit’s McKeever Decision Supports Use of the Freeh/LaBella Procedure for Handling the Mueller Report

On its face, Friday’s D.C. Circuit decision in McKeever v. Barr, involving a historian’s request for access to grand jury materials from 1957 for purposes of a book he is writing, might seem to have little relevance to redactions in the Mueller report. In fact, however, the decision turns on the court’s interpretation of a 1974 precedent in which Chief Judge Sirica authorized “disclosure of a sealed grand jury report to aid in the inquiry by the House Judiciary Committee into possible grounds for impeachment of President Nixon.” McKeever, majority slip op. at 9 n. 3; see In re Report & Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219 (D.D.C. 1974). More precisely, it turns on the McKeever court’s interpretation of the D.C. Circuit’s 1974 en banc interpretation of Judge Sirca’s decision. See Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (en banc).

As explained below, this decision is potentially  significant with respect to the Mueller report.

The McKeever majority ruled that judges lack inherent authority to disclose grand jury materials protected by Fed. R. Crim. P. 6(e) outside of the express exceptions set forth in that rule. Acknowledging the court’s decision in Haldeman was ambiguous on this point, McKeever construed Haldeman as approving Judge Sirica’s disclosure on the grounds that a House impeachment inquiry is a “judicial proceeding” for purposes of Fed. R. Crim. P. 6(e)(3)(E)(i), which is one of the explicit exceptions to grand jury secrecy set forth in the rule. McKeever, majority slip op. at 9 n. 3. It therefore concluded Haldeman did not stand as a precedent in favor of a court’s inherent authority to release grand jury materials.

Judge Srinivasan dissented in McKeever. While he noted that the “judicial proceeding” exception to Rule 6(e) “arguably applied” to the release of a grand jury report to Congress in connection with an impeachment investigation, he did not interpret Judge Sirica’s decision as relying on that exception. Instead, in Judge Srinivasan’s view the best reading of the en banc opinion in Haldeman was that it approved Judge Sirica’s exercise of inherent authority to release the report. See McKeever, dissent slip op. at 2-5.

Whatever one’s evaluation of the relative strengths of these positions, the majority opinion in McKeever is, at least for the moment, the controlling law in the D.C. Circuit. Thus, Congress cannot now ask the district court to release grand jury material in the Mueller report based on the court’s inherent authority. The Justice Department likewise could not support such a request even if it agreed with it (which it clearly would not, given that DOJ urged the narrow reading of the court’s authority adopted by the McKeever majority).

This does not mean, however, that Congress has no options for obtaining access to grand jury material in the Mueller report. It merely means that any disclosure to Congress must be pursuant to one of the express exceptions to grand jury secrecy listed in Rule 6(e).

Continue reading “The D.C. Circuit’s McKeever Decision Supports Use of the Freeh/LaBella Procedure for Handling the Mueller Report”

Posted on

A Proposal for Dealing with Mueller Report Redactions

In our political culture of contempt and pervasive paranoia, it is hardly surprising that Attorney General Barr’s refusal to release immediately the unreacted Mueller report has led many to accuse him of a coverup. So while I agree with Ben Wittes that everyone should chill out and wait to see what Barr actually produces in the next week or so, the reality is that any redactions will raise suspicions.

Fortunately, there is a relatively simple way to address this problem. The idea comes from the impeachment proceedings against President Clinton in 1998. The House Judiciary committee, which was reviewing the allegations against Clinton in the Starr report, wanted access to the Freeh and LaBella memos, internal Justice Department documents that recommended appointment of an independent counsel to investigate campaign fundraising violations during the 1996 presidential election cycle. The Justice Department took the position that these memoranda could not be shared with Congress because, among other reasons, they contained grand jury material protected under Fed. R. Crim. P. 6(e). (It would later turn out DOJ had been rather overly enthusiastic about designating grand jury material, including for example a quote from a Dick Morris book).

In light of the impeachment investigation (and the associated political pressure from Congress), the Clinton Justice Department agreed to ask the judge supervising the grand jury, Chief Judge Norma Holloway Johnson, to allow the committee access to the memoranda. After a couple of attempts (the committee, through House counsel, had to file its own motion after the court denied DOJ’s first request), Judge Johnson agreed to allow the committee limited access to the memoranda. As Peter Baker described the court’s decision: “Each side could send a single staff member to read the memos, but no copies could be made and no notes taken.” Peter Baker, The Breach: Inside the Impeachment and Trial of William Jefferson Clinton 183-85 (2000). That way the committee would have a basis for requesting any additional material it believed was relevant to its proceedings (it ultimately did not do so).

A similar process could be used to deal with redactions from the Mueller report. The court could permit two Judiciary committee staffers (one majority, one minority) to review the unreacted report. They would be prohibited from taking notes or disclosing the contents of the report publicly. If, however, there were redactions the committee believed to be improper or to contain important information, it could ask the court to release that information.

This seems like a reasonable way for protecting any legitimate Justice Department interests while reassuring the public that the attorney general is fulfilling his promise of maximum transparency.

Posted on

Why Congress May Not Want a Completely Unredacted Mueller Report

Yesterday we discussed potential redactions to the Mueller report with respect to grand jury material protected under Federal Rule of Criminal Procedure 6(e). Today we will discuss the other category of redactions mentioned in Attorney General Barr’s March 24 letter, namely “any information that could impact other ongoing matters, including those that the Special Counsel has referred to other offices.” In other words, the report contains some information about, or that “could impact,” ongoing criminal matters relating to the subject of the special counsel’s investigation and/or individuals involved involved in that investigation as targets, subjects or witnesses.

Historically, the Justice Department has been extremely reluctant to share its internal investigative and litigation files with Congress. Attorney General Robert Jackson famously declared the executive branch position in a 1941 opinion responding to congressional requests for FBI reports and other internal DOJ documents relating to investigations of labor unrest in industrial establishments with naval contracts. See Position of the Executive Dep’t Regarding Investigative Reports, 40 Op. Atty Gen. 45, 1941 U.S. AG Lexis 28 (Apr. 30, 1941). Jackson argued that such disclosure “would not be in the public interest” because it would “seriously prejudice law enforcement” (by tipping the government’s hand to actual and potential defendants), assist foreign adversaries, undermine the use of confidential informants and perpetuate “the grossest kind of injustice to innocent individuals.” Id.  at **2-4. Jackson allowed, however, that there were exceptions to the executive’s position, including that “pertinent information would be supplied in impeachment proceedings, usually instituted at the suggestion of the Department and for the good of the administration of justice.” Id. at *12.

In fact, Congress has been successful in obtaining internal Justice Department documents on a number of occasions. See generally Congressional Investigations of the Department of Justice, 1920-2012: History, Law, and Practice, CRS Report for Congress 15-49 (Nov. 5, 2012). In most if not all cases, however, the congressional investigation involved alleged wrongdoing at the Justice Department itself, not merely an attempt to learn about wrongdoing being investigated by the Department. Moreover, Congress has been far more successful at obtaining information from closed investigations. Thus CRS notes:

In the last 85 years, Congress has consistently sought and obtained access to information concerning prosecutorial misconduct in Department of Justice officials in closed cases; and access to pre-decisional deliberative prosecutorial memoranda– while often resisted by the Department– is usually released upon committee insistence, as well. In contrast, the Department rarely releases– and committees rarely subpoena– material relevant to open criminal investigations.

Id. at 2.

This suggests that the Justice Department would be on solid ground if it redacted information from the Mueller report relating to open criminal investigations, particularly in the absence of any claim of wrongdoing regarding how the Department is handling those investigations. (Note the potential irony that those in Congress who are alleging wrongdoing at the Department, namely House Republicans, are likely not those who would be pushing for full disclosure of the Mueller report). Moreover, congressional investigating committees might want to think twice before insisting that information relating to open criminal investigations be produced since this will tip off potential defendants as to what allegations are being investigated and what evidence exists to support them.

Of course, the committees will want to scrutinize any redactions to make sure that they are no broader than necessary to protect the integrity of ongoing investigations. They will properly demand assurance that none of the redacted information will be shared with potential defendants, including the president. They may even ask the attorney general to promise that specified Justice Department officials are free to share information they believe to be relevant to impeachment proceedings with the House Judiciary committee (I am not placing any bets on how likely they are to get that).

At the end of the day, though, Congress may not want to take a knee-jerk position against any redactions related to open criminal investigations.

Posted on

Congress’s Response to Potential Redaction of Grand Jury Material in the Mueller Report

In his letter yesterday to Congress, Attorney General Barr reiterated that “my goal and intent is to release as much of the Special Counsel’s report as I can consistent with applicable law, regulations, and Departmental policies.” Barr, noted, however that “[b]ased on my discussions with the Special Counsel and my initial review, the report contains material that is or could be subject to Federal Rule of Criminal Procedure 6(e)” (emphasis added), which restricts “disclosure of matters occurring before the grand jury.” Before deciding how much of the report can be released, the Justice Department must “identify the 6(e) material that by law cannot be made public.”

Although the redaction of grand jury material runs counter to Congress’s goal of full transparency for the Mueller report, it may on balance work in Congress’s favor. First, unless the Justice Department adopts a broad interpretation of grand jury secrecy, there should be little need to redact information in order to comply with Rule 6(e). The only material clearly covered by the rule would be direct references to what transpired before the grand jury. Thus, for example, discussion of evidence (such as documents or witness interviews) without reference to the grand jury should not fall within the rule even if that evidence was presented to the grand jury. See Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight, CRS Report for Congress 11-13 (Jan. 10, 2019). Because Mueller presumably drafted the report with an understanding of Rule 6(e)’s strictures, it is reasonable to assume that the need for redactions will be minimal.

Second, Congress can seek judicial authorization for disclosure of any material withheld under 6(e). It can do this by filing an application with the chief judge in the district where the grand jury was empaneled (presumably the chief judge of the United States District Court for the District of Columbia, although Mueller also had a grand jury in Virginia), asking for a determination whether the material in question falls with 6(e) and, if so, authorization of disclosure of the material to a congressional committee. Although it is possible that a committee could obtain access to protected material for oversight purposes under the court’s exercise of its inherent authority, its argument will be considerably stronger if it is acting pursuant to the impeachment power. See CRS Report, supra, at 41 (“where a congressional committee has sought grand jury materials in connection with the contemplated impeachment of a specific public official, several courts have recognized that court-ordered disclosure may be available pursuant to the ‘judicial proceeding’ exception.”). Thus, if the Justice Department attempts to withhold a significant amount of grand jury material, it may inadvertently hasten the advent of formal impeachment proceedings.

Finally, the Office of Legal Counsel has recognized that in “rare circumstances” the president’s “Article II responsibilities may independently justify the disclosure of pertinent grand jury information to him and his advisors.” Whether the President May Have Access to Grand Jury Material in the Course of Exercising his Authority to Grant Pardons, 24 OLC Op. 366, 367 (Dec. 22, 2000). It reached this conclusion in part based on case law allowing congressional access, noting “if congressional access to grand jury materials may be independently justified on the basis of its Article I power, it would be anomalous to contend that presidential access to such materials could not be justified on the basis of the President’s Article II powers.” Disclosure of Grand Jury Matters to the President and Other Officials, 17 OLC Op. 59, 68 (Sept. 21, 1993). OLC, however, cautioned that such disclosures not be routine, be undertaken only in accordance with carefully crafted procedures, and that obtaining advance court approval would be preferable.

Given that the Mueller grand jury was investigating possible crimes of the president and his close associates, it would seem inadvisable (to say the least) for the president to get access to any grand jury material withheld from Congress. In light of the OLC opinions allowing such disclosures under some circumstances, including where the president believes it would be relevant to his exercise of the pardon authority, the House Judiciary committee should demand that the attorney general notify it of any special access to grand jury information granted to the president.

And DOJ would be well-advised to keep any Rule 6(e) redactions to the bare minimum.

Posted on

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?

Posted on

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.

Posted on

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.

Posted on

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.

Posted on

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”