Category: Oversight of the Executive

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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.

 

 

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Harriet Miers and Assertions of Executive Privilege for Former Officials

Several months ago we discussed whether the president could assert executive privilege to prevent a former official (in that case, former FBI Director Jim Comey) from providing information to Congress, even if the former official wanted to disclose the information. Eric Columbus, a lawyer who had served in the Obama Justice Department, argued that the answer is no. The core of his argument was that there was no legal mechanism to prevent a former official from voluntarily disclosing privileged information to Congress or to anyone else.

In response to Columbus, I noted that executive privilege belongs to the president, not to subordinate officials, and “it is hard to see why the availability of the privilege should turn on the subordinate’s preferences.” The issue I saw was procedural. If the former official declines to obey the president’s instruction to assert executive privilege, and the congressional committee declines to allow the administration to raise its objections directly, the burden would be on the administration to bring a lawsuit to restrain the former official from testifying. An analogous suit was brought by the executive branch to prevent AT&T from complying with a congressional subpoena in the 1970s. See United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977).

In a subsequent article, Columbus acknowledged the possibility of the executive bringing such an action, but argued that it “would almost surely be laughed out of court.” He contended that “[a] court could not enjoin Comey from testifying unless it could fathom a rationale that would also bar Comey from revealing the same information by writing a book, going on the Sunday shows, taking to Twitter or chatting at his local bagel shop.” The premise of Columbus’s argument was that because Comey was eager to provide information to Congress and/or the general public, there was no way for a court (or anyone else) to stop him. Columbus distinguished Comey’s situation from that of a “reluctant” former official, who does not “really” want to testify or provide the information demanded by Congress.

In going through some files the other day, I came across materials related to Harriet Miers, who served as White House counsel in the Bush administration and who is Columbus’s example of a “reluctant” former official subpoenaed by Congress. Contrary to Columbus, it seems to me that the Miers case is basically on all fours with the Comey situation, and I will take this opportunity to explain why. (It also enables me to clean out some old files, so yah!)

About 10 years ago the House Judiciary Committee, then chaired by Representative John Conyers (D-Mich.), conducted an investigation of the Bush administration’s firing of certain U.S. attorneys. In the course of this investigation, the committee issued subpoenas for documents and testimony to several current or former White House officials, including Miers.

Continue reading “Harriet Miers and Assertions of Executive Privilege for Former Officials”

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Can Congressional Committees Exempt their Oversight Correspondence from FOIA?

A minor kerfuffle erupted recently over letters sent by certain House committees, including the Committee on Financial Services, to agencies within their jurisdiction maintaining that future communications between the committee and the agency should be treated as “congressional records” not subject to the Freedom of Information Act. For example, this letter from Chairman Hensarling of the Financial Services Committee to the Treasury Department states in part:

 Because of the often sensitive and confidential nature of [communications from the committee to Treasury], and in order to ensure the unfettered flow of information necessary to assist the Committee in performing its important legislative and oversight functions, the Committee intends to retain control of all such communications, and will be entrusting them to your agency only for use in handling those matters. Likewise, any documents created or compiled by your agency in connection with any responses to such Committee communications, including but not limited to any replies to the Committee, are also records of the Committee and remain subject to the Committee’s control.

All such documents and communications constitute congressional records, not “agency records,” for purposes of the Freedom of Information Act, and remain subject to congressional control even when in the physical possession of the Agency. As such, they should be segregated from agency records, and access to them should be limited to Agency personnel who need such access for purposes of providing information or assistance to the Committee.

The effect of this request, if honored by the agencies, would be to require each agency to withhold from FOIA requesters both any written communications from the committee and any documents created or compiled by the agency in response to communications from the committee.

The basis of the House’s legal position is a series of D.C. Circuit cases beginning with Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), vacated in part on other grounds, 607 F.2d 367 (D.C. Cir. 1979) (per curiam). In Goland, the court held that the transcript of a closed congressional hearing that was provided to the CIA did not thereby become an agency record for purposes of FOIA. The court relied on the fact that the congressional committee had held the hearing, which involved discussion of sensitive intelligence matters, in executive session and had marked the transcript “secret” before providing a copy to the CIA. Under these facts, the court concluded that Congress must have intended to retain control over the document and to provide it to the CIA only for internal reference purposes and as a “trustee” for Congress. To find otherwise, the court reasoned, would force Congress “either to surrender its constitutional prerogative of maintaining secrecy, or to suffer an impairment of its oversight role.”

The Goland court’s reasoning might have been limited to situations in which Congress shares executive session materials with an agency. As the court noted, “when Congress transfers secret documents to an agency, for a limited purpose and on condition of secrecy, we see no reason to think it thereby waives its own prerogative of confidentiality and resigns itself to the FOIA exemptions which bind the agency and not it.” However, in subsequent cases the D.C. Circuit recognized in principle that agency-created documents might be congressional documents if they were created or assembled in response to a congressional request and Congress manifested an intent to control the documents in question.

In 2004, the D.C. Circuit applied this principle in the context of a letter from the Joint Committee on Taxation to the Internal Revenue Service requesting certain information regarding the IRS’s auditing of tax-exempt organizations. The JCT letter concluded with the following statement: “This document is a Congressional record and is entrusted to the Internal Revenue Service for your use only. This document may not be disclosed without the prior approval of the Joint Committee.”

(Full disclosure: while at the House Counsel’s office, I advised JCT on various aspects of its position regarding the application of FOIA to its communications with executive agencies, including the use of legends such as that noted above.)

A FOIA request was made to the IRS, which declined to produce not only the JCT letter but the IRS response thereto on the grounds that they were congressional documents not subject to FOIA. After the district court ruled in the IRS’s favor, the case was appealed to the D.C. Circuit. See United We Stand America, Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004). Quoting an earlier case, Paisley v. CIA, 712 F.2d 686, 693, 696 (D.C. Cir. 1983), the court found the controlling standard was whether there was sufficient “indicia of congressional intent” to show “Congress has manifested its own intent to retain control” of the documents in question.

Applying this standard to the facts before it, the United We Stand court concluded that “under all of the circumstances surrounding the IRS’s creation and possession of the documents, we find sufficient indicia of congressional intent to control, but only with respect to the Joint Committee’s April 28 request and those portions of the IRS response that would reveal that request.” In reaching this conclusion, the court stressed the fact that the JCT request only referred to “this document,” i.e., the request itself, rather than the IRS response thereto. The court suggested that had JCT wished to maintain control over the IRS response, it could have done so by referring to “this document and all IRS documents created in response to it.”

The House’s current position seems to be well-grounded in the language and reasoning of the D.C. Circuit’s caselaw, particularly the United We Stand decision. The government watchdog group American Oversight, in this letter to the House Counsel, contends that the House’s “sweeping and circular position appears to be a radical extrapolation from specific language in case law.” But it looks to me like the House is simply doing what the D.C. Circuit suggested it do in order to protect its oversight correspondence from FOIA.

If watchdog groups want to challenge the House’s position, they can bring cases outside the D.C. Circuit or they try to get the issue to the D.C. Circuit sitting en banc or to the Supreme Court. But under the existing case law of the D.C. Circuit, it looks like it will be an uphill climb.

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Comey’s Choice: Congress or the Press

Former FBI Director Jim Comey’s decision to “leak” (a word which itself has generated controversy in this connection) the contents of his memos of conversations with President Donald Trump to the New York Times has led to much pontificating, but indulge me while I engage in a little more. My interest focuses on the question of why Comey chose to make his revelations first to the media, rather than to Congress.

Much of the commentary seems designed to attack Comey’s credibility by demonstrating that the disclosure to the Times was illegal or improper or, conversely, to bolster his credibility and undermine his critics by arguing the opposite. But the legal and ethical questions surrounding the “leak” (last time in quotes, I promise) are sufficiently murky that their relevance to the believability of Comey’s underlying testimony (particularly if that testimony is supported by contemporaneous memoranda) seems somewhat tangential. Frankly, under the circumstances I can understand how Comey would have been sorely tempted to bend the rules regarding disclosure if that were the only way to get his side of the story out.

Put yourself in Comey’s shoes. It is May 9, 2017, and you have just received a letter from President Trump, along with two enclosures, a letter from Attorney General Jeff Sessions and a memorandum from Deputy Attorney General Rod Rosenstein. The Rosenstein memo explains that you made “serious mistakes” in your handling of Secretary Hillary Clinton’s emails, as a result of which “the FBI’s reputation and credibility have suffered substantial damage” and “the entire Department of Justice” has been affected. The memo, while not quite explicitly recommending you be fired, concludes by saying “the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them.”

The one paragraph letter from Attorney General Sessions to President Trump recommends that Trump remove you as FBI director. Sessions explains that “[b]ased on my evaluation, and for the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI.”

Last but not least, Trump’s own letter informs you that he is accepting the “recommendation” of the attorney general and deputy attorney general, and “you are hereby terminated and removed from office, effective immediately.” The president goes on to elaborate (graciously, he no doubt thinks): “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.”

For purposes of discussion, we will assume you are well aware that many, many people have criticized your handling of the Clinton email investigation, and not a few of those have urged you be removed as FBI director. But you believe that this is not at all why Trump decided to fire you. And you have the evidence to prove it, in the form of contemporaneous memoranda recording a series of meetings and telephone discussions with the president over the past 5 months. These documents show (at least in your view) that Trump fired you because of your handling of the Russia investigation, including the failure to show adequate personal loyalty to Trump in the conduct of that investigation, the failure to “let go” of an inquiry into certain activities of former National Security Advisor Michael Flynn, and your unwillingness or inability to “lift the cloud” which the Russian investigation had cast over the Trump administration.

I think you can understand that anyone in this situation would feel impelled to come forward and bring these memos to the attention of the public and the proper authorities. What I find more difficult to explain is why Comey thought it necessary to have a friend anonymously leak the story to the New York Times, when he could have simply informed the relevant congressional committees, including the Senate Select Committee on Intelligence, that he was in possession of the memos and prepared to testify about their contents.

There are situations where press coverage is needed to attract public and congressional attention to a particular issue, but this was certainly not one of those. Even Michael Schmidt, the New York Times reporter who first wrote about the Comey memos, acknowledged as much on the day Comey was to testify before SSCI:

Q. Has Comey been called to testify in front of the Senate today because of your reporting?

Schmidt. It was certainly a catalyst, but Comey was going to have to go up there at some point and they were going to want to hear from him.

N.Y. Times Podcast, The Daily, 6-8-17 at 9:08.

With this background, let’s look at the legal and ethical issues raised by Comey’s leak to the Times.

Continue reading “Comey’s Choice: Congress or the Press”

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Comey and Executive Privilege (with Update)

[See Update below]

Former FBI Director Jim Comey is scheduled to testify before the Senate Select Committee on Intelligence (SSCI) next week. He is expected to be asked questions about certain subjects, including his personal conversations with the president, that might be the subject of executive privilege claims. However, because Comey is testifying voluntarily and presumably would like to share this information with the committee, the question arises whether there is any effective method for the administration to stop him from answering questions it believes to be invasive of executive privilege.

In a Twitter thread, Eric Columbus, a former lawyer in the Obama administration, argues that the answer is no. He contends that the privilege only protects a witness from being compelled to provide information. It does not apply, he suggests, to the voluntary testimony of a former government official, just as it does not prevent former officials from writing books or giving interviews in which they discuss conversations with the president or other communications that might fall within the scope of executive privilege. As Columbus puts it, “I know of no precedent for blocking a FORMER official who WANTS to testify.” (all caps in original; its Twitter after all).

To the extent Columbus is suggesting that the applicability of executive privilege turns on whether the former official wants to testify, this seems wrong. The privilege belongs to the president, not to the subordinate official, and it is hard to see why the availability of the privilege should turn on the subordinate’s preferences.

Columbus makes an interesting point about the fact that former officials often write books or make other public disclosures about matters that could be covered by executive privilege. It could be that executive privilege, having developed as an evidentiary doctrine in formal proceedings, simply does not apply to such situations or, alternatively, that it does apply but there is no method of enforcing it. Broad gag orders against former executive branch officials (e.g, requiring them to get preclearance before speaking about their time in office, or threatening sanctions if they make public disclosures that in the judgment of the president or his lawyers violate executive privilege) would raise some tricky First Amendment issues, which we have discussed in the context of analogous prohibitions on congressional staffers. But these issues do not have much bearing on Comey’s testimony in a formal congressional proceeding.

The real problem here is procedural. Assuming for the sake of argument that the president has a valid or at least plausible executive privilege objection, how can that objection be raised in this situation?

The most straightforward answer would be for the executive branch to communicate to Comey (presumably through a lawyer who would attend the hearing) which questions it believes intrude upon executive privilege. Comey would then inform the committee of this objection, and it would then be up to the chairman to decide how to proceed. Comey might refuse to play this role, but I doubt he would do so. It is in his interest to remain above the fray to the extent possible, and to let the real parties in interest (the committee and the executive branch) battle it out.

Even if Comey declines to cooperate, the committee would probably allow the executive branch to raise its objections directly (presumably by having its lawyer stand up and object on a question by question basis). This would be a highly unusual procedure, and it might be contended that the committee’s rules do not permit it. SSCI Rule 8.6 provides that “[a]ny objection raised by a witness or counsel shall be ruled upon by the Chairman or other presiding member, and such ruling shall be the ruling of the Committee unless a majority of the Committee present overrules the ruling of the chair.” The “counsel” referred to here is counsel for the witness, and in this case the government counsel would not be appearing in that capacity. I suspect, though, that SSCI would make an allowance for this unusual situation.

Assuming the executive branch has the opportunity to raise the objection, it is up to the chairman to rule on the objection in the first instance. I imagine there could be some dispute as to whether Rule 8.6 requires the chair to rule immediately or permits him to take the matter under advisement, but let’s assume eventually there is a final ruling from the chair/committee. At that point I expect that Comey would comply with the ruling, as he is under no obligation to risk being held in contempt. This procedure would therefore leave the resolution of the issue ultimately in the control of the committee.

The administration’s only alternative would seem to be to bring an action in federal court against Comey (the Speech or Debate Clause prohibits it from suing the committee). The suit would ask for declaratory and injunctive relief prohibiting Comey from testifying on certain subjects or providing certain information to Congress. The executive branch used this method in the 1970s in an attempt to prevent AT&T from complying with a congressional subpoena. See United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977). Although that case involved national security information, there is no reason in principle why the same method could not be used to resolve a different type of executive privilege issue. Whether the Trump administration wants to take the political heat from bringing such a suit, or whether it is confident that its legal position would ultimately be vindicated in court, are different questions.

UPDATE:

In a follow up exchange on Twitter, Columbus expresses doubt that a court could grant a remedy to the executive branch under the circumstances here. His argument is that the court could not enjoin Comey from discussing the same matters outside of Congress (e.g., it couldn’t stop him from going on the Sunday talk shows to discuss his conversations with the president) so logically it could not enjoin him from talking to Congress either. Essentially he is arguing that because the court cannot grant effective relief, it should dismiss the executive branch’s (hypothetical) lawsuit against Comey for lack of standing.

I agree that a court might accept this argument, but I don’t think it is a slam dunk. To begin with, it assumes that a court would take as a given that a former executive official cannot be enjoined from publicly disclosing confidential (but non-classified) presidential communications contrary to POTUS’s instructions. As far as I know, no such case has been brought, much less decided. While I tend to agree with Columbus that there would be serious problems with such a suit (including First Amendment prior restraint issues), the matter is not so clear that a court would necessarily want to predicate its decision in our hypothetical suit on a prediction about the outcome of this different and more novel case.

Moreover, even if we assume Comey could not be enjoined from disclosing presidential communications outside Congress, it does not follow that such disclosures would be legal or proper. Nor is it guaranteed they would be without consequence. For example, a former official might find his security clearance in jeopardy or face a bar complaint (if, like Comey, he is a lawyer). These potential consequences make it less likely a court can simply assume that Comey (or any former official) would be free to divulge presidential communications in a public setting.

Finally, a court’s view of this issue may very well depend on the position Comey himself takes in our (hypothetical) litigation. As a long time executive branch lawyer, Comey would probably be reluctant to suggest it is generally appropriate for former officials to divulge confidential presidential communications. Such a stance would be at least in tension with the executive branch’s approach to executive privilege, and it might have ramifications for the ability of future presidents to have candid discussions with their FBI directors. I am also not sure Comey would want to open himself up to questioning generally about his discussions with Presidents Trump, Obama or Bush. So I would guess he would be cautious about asserting any general right (much less intent) to make public disclosures about these matters.

I would note that in the course of my exchange with Columbus, a number of tweeters chirped in with comments along the lines of: “If Comey can’t testify before Congress, why wouldn’t he just go on Rachel Maddow or some other cable show and spill the beans there? That’s what I would do!”

The short answer to this is: “Because he’s Comey, not you.” The somewhat longer answer is that I don’t know what Comey might do, but I think he has a number of personal and institutional incentives, alluded to above, not to do that.

In any event, I agree with Columbus that there is a risk that the hypothetical lawsuit against Comey could be dismissed on jurisdictional grounds, but I don’t assess this risk as being as high as he does. If I were advising the president, I would be more concerned with the political cost of bringing such a lawsuit in the first place, as well as the distinct possibility that the executive branch could lose on the merits.

Based on the latest news, though, it sounds like the administration is backing away from asserting executive privilege at all with respect to Comey’s testimony before SSCI.