Mazars and Common Law Privileges Before Congress

So the Supreme Court’s decision in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), yesterday will be a full employment act for congressional lawyers for the foreseeable future, but today I just wish to weigh in on one relatively minor point. For reasons that escape me, the Court chose to offer the following piece of dicta: “recipients [of congressional subpoenas] have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.” Mazars, slip op. at 12. The Court evidently thought this was a noncontroversial observation, but this is assuredly not the case with regard to common law privileges. As readers of this blog are aware, Congress has long asserted that it is not obligated to respect common law privileges such as the attorney-client privilege.

The sole authority cited by the Court for the proposition that witnesses “retain” their common law privileges is a 2003 Congressional Research Service report written by Louis Fisher. The cited section of the report describes the 1995 dispute between the Clinton administration and congressional committees investigating Whitewater regarding the notes of a White House lawyer regarding a meeting conducted to discuss legal strategy with Clinton’s personal lawyers. The Clinton administration asserted that these notes were protected by attorney-client privilege and they demanded that the congressional committees agree that the production of these notes would not constitute a waiver of the privilege. Fisher notes that as part of an agreement to provide the notes to the Senate Whitewater Committee, “House Banking and Financial Services Committee Chairman Jim Leach announced that the House wold not try to later assert that President Clinton had waived his attorney-client privilege.”

An agreement to not to claim waiver of a privilege is not at all the same thing as agreeing that the privilege may be validly asserted, however. Indeed, in another place where Fisher describes this episode more fully, he notes that Chairman Leach explicitly made the point that the  House’s agreement not to assert waiver was in the context of rejecting the existence of the privilege in the first place. See Louis Fisher, The Politics of Executive Privilege 106 (2004) (quoting Leach as noting that “one cannot waive a privilege that never came into being in the first place.”). More importantly, Leach explained that Congress was not obligated to respect the attorney-client privilege even if it applied because “[i]t is well-established by congressional precedent and practice that acceptance of a claim of attorney-client privilege rests in the sole and sound discretion of Congress, and cannot be asserted as a matter of right.” Id.

While the question of whether Congress must respect common law privileges in general, and the attorney-client privilege in particular, will no doubt remain a hotly debated topic, the Supreme Court’s poorly researched dicta on this point should not be given any weight.

Update: Rob Kelner also discussed this issue at Covington’s Political Law Blog (hat tip: @derekmuller).

Roger Cramton’s Memorandum Surfaces

Remember the Roger Cramton memorandum we discussed a few months ago? (Of course you do, scarcely a waking moment goes by when you don’t think “I wonder what ever happened with that Roger Cramton memorandum?”). This was one of the memoranda cited by the Office of Legal Counsel in footnote 1 of its opinion declaring that former White House counsel Don McGahn was absolutely immune from having to appear in response to a congressional subpoena.

As we have discussed, OLC’s argument for absolute immunity is based in large part on “precedent” consisting of its own prior statements on the subject. But, as two federal judges have now pointed out, OLC cannot create precedent simply on its own say-so. Last month Judge Ketanji Brown Jackson wrote, in her scathing rejection of McGahn’s claim of immunity, that OLC’s initial theory of absolute immunity set forth in the 1971 Rehnquist memorandum “was seemingly formed out of nothing” and “it appears that an endorsement of the principles that OLC espouses would amount to adopting the absolute testimonial immunity for senior-level presidential aides by ipse dixit.” Comm. on the Judiciary, U.S. House of Representatives v. McGahn, No. 19-cv-2379, slip op. at 99, 102 (D.D.C. Nov. 25, 2019); see also Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp.2d 53, 86 (D.D.C. 2008) (rejecting OLC’s opinions on absolute immunity as “conclusory and recursive”). Furthermore, as both Judge Jackson and Judge Bates noted, the original justification for immunity set forth in the Rehnquist memorandum would not apply to former White House officials at all. See McGahn, slip op. at 100; Miers, 558 F. Supp.2d at 88 n. 36.

Enter the aforementioned Cramton memorandum of December 21, 1972 to “the Honorable John W. Dean, III,” Counsel to the President. Although OLC cited this memorandum in its opinion on McGahn, it did not make it public at the time, nor did it bother to mention that this memorandum differed in an important respect from the argument that it was making. We know this now because OLC has just posted it on its website. Hat tip: @kpolantz and @EricColumbus.

To wit, the Cramton memorandum concludes that former White House officials should not be entitled to the same absolute immunity as current officials. It states:

We have one caveat with respect to our conclusion. While we believe that an assertion of Executive privilege with respect to specific testimony on the subject of advice given by the former staff member to the President is entirely proper, we have some reservations about the propriety of invoking the privilege to direct the former staff member not to appear at all. This aspect of the Executive privilege has in the past been claimed only for the President and his most intimate, immediate advisers. One of the justifications that has been advanced for an immediate adviser declining to appear is that he is presumptively available to the President 24 hours a day; the necessity to appear before congressional committees therefore could impair that availability. This consideration would obviously not justify a refusal to appear by a former staff member. However, this justification is in our view neither the only nor the best one. An immediate assistant to the President may be said to serve as his alter ego in implementing Presidential policies. On this theory, the same considerations that were persuasive to former President Truman would apply to justify a refusal to appear by such a former staff member, if the scope of his testimony is to be limited to his activities while serving in that capacity.

In conclusion, we believe that an invocation of the privilege with respect to particular testimony by a former staff member on the subject of advice given the President is quite clearly proper; on the other hand, we believe an invocation of the privilege as a basis for refusal to appear at all is a closer question. An intention to invoke the privilege with respect to particular testimony could certainly be announced. This as a practical matter may solve the problem. If, however, the interrogation is expected to extend to non-privileged matters, a decision that the former staff member should not appear at all would not, in our opinion, be justified.

Memorandum of 12-21-1972 at 6-7 (emphasis added).

To be sure, this language does not foreclose a refusal to appear by a former White House official if the testimony is expected to involve only privileged matters (though it suggests this is a “closer question”). If, on the other hand, non-privileged matters are involved, it indicates that such a refusal would not be justified. This position is inconsistent with OLC’s current stance, which is that former officials are absolutely immune from any questioning about their official activities, regardless whether they are privileged. As OLC “explained” in its McGahn opinion, “the concept of immunity is distinct from, and broader than, the question whether executive privilege would protect a witness’s response to any particular question.” 5-20-19 Opinion at 17. Moreover, it asserted that “consistent with our prior precedents, we find no material distinction between the compelled congressional testimony of current and former senior advisers to the President.” Id. at 16. This again is inconsistent with the Cramton memorandum.

Furthermore, the Cramton memorandum implicitly rejects OLC rationales for extending immunity to former officials. If allowing such officials to testify about non-privileged matters will not impair the president’s ability to obtain confidential advice, there is no reason why they should not appear and invoke the privilege on a question by question basis (like every other executive official outside the White House). Moreover, Cramton obviously did not believe that allowing former officials to appear would adversely impact the president’s “autonomy.”

It seems to me that if you are going to rest an argument on ipse dixit, you ought at least to be honest about the ipse.  Maybe the D.C. Circuit will have some questions about this too.

Judge Leon’s Ruling in the Kupperman Case Could be Important Even if it Does not Reach the Merits

The lawsuit brought by former deputy national security advisor Charles Kupperman continues, for the moment, despite the House’s withdrawal of its subpoena. Most likely, Judge Leon will end up dismissing the case as nonjusticiable on one ground or another. However, it could matter a good deal which ground(s) the court relies upon.

If the case is dismissed as moot due to the withdrawal of the subpoena, it would be of little consequence. On the other hand, if the court were to base its dismissal on the president’s lack of authority to direct Kupperman not to appear in response to the subpoena, its ruling is potentially of much greater significance. As Jonathan Shaub has noted in connection with the House’s lawsuit against former White House counsel Don McGahn, a judicial ruling that the president lacks authority to direct former officials how to respond to congressional subpoenas might be more important than a ruling on the merits of the absolute immunity issue. While the latter would affect only the relatively small group of senior White House advisors who allegedly are protected by absolute immunity, the former “could be far-reaching, encompassing all disputes involving former officials whether they are grounded in immunity or executive privilege.”

Kupperman’s complaint alleges that he “has a duty to abide by a lawful constitutional assertion of immunity by the President and a lawful instruction by the President that he decline to testify before Congress concerning his official duties as a close advisor to the President.” Complaint ¶ 41. Note that this arguably constitutes two distinct assertions. At one level, it is an assertion that if the claimed immunity exists, it belongs to the president, not to the subordinate official, and therefore Kupperman cannot or should not waive it contrary to the president’s instruction. This makes sense to me. Since the immunity (if it exists) is designed to protect the presidency, it should be the president’s decision whether to assert or waive it.

Of course, as Eric Columbus has pointed out, former officials not infrequently choose to disclose confidential information regarding their government service in medial interviews or tell-all books. Indeed, former national security advisor John Bolton, who is currently declining to testify before Congress based on the president’s assertion of “absolute immunity,” has a book deal in which he will presumably discuss many of the matters allegedly covered by that immunity. (As one Twitter wag put it, absolute immunity is a monarchical doctrine so naturally it has a “royalty exception.” Ok, that wag was me.). While there is a tension between this fact and the non-waiver principle, in my view it simply illustrates that the executive branch has no means of punishing former officials who violate a duty not to disclose non-classified information (about which more below).

Kupperman also appears to be making a second and stronger assertion. He seems to be claiming that a former official has a duty to obey the president’s instruction, regardless of whether the former official agrees with the president’s legal position. As Shaub points out, though, it is not clear where the president gets the authority to direct a private citizen’s response to a congressional subpoena. OLC’s past pronouncements suggest it believes the president has this authority, but it fails to “offer any constitutional analysis to support that conclusion.” (Shaub, this might be a good place to note, is a former OLC lawyer).

If Judge Leon were to conclude the president lacks authority to direct Kupperman’s response to the subpoena, he could dismiss the case without reaching the merits. Kupperman claims to be facing “irreconcilable commands” from the executive and legislative branches, but if he is not bound to obey the president’s command, the alleged conflict disappears and can provide no basis for him to sue. He then would be in a posture no different than any other congressional witness who asserts a potentially valid privilege. He can choose to assert absolute immunity if he wishes and, when the committee (properly) rejects that assertion, he can decide whether to comply or risk the possibility of a contempt proceeding. There is no reason why he, any more than any other congressional witness in this situation, should be entitled to an advance court ruling to forestall contempt.

A somewhat narrower approach the court might take is to side step the question of legal duty entirely. Instead, the court might ask what injury Kupperman would suffer should he choose to ignore the president’s directive not to testify. Kupperman alleges that “an erroneous judgment to appear and testify in obedience to the House Defendants’ subpoena would unlawfully impair the President in the exercise of his core national security responsibilities,” Complaint ¶ 2, but it is hard to see how this constitutes an injury to Kupperman. As suggested earlier, there do not appear to be any practical repercussions to a former official who reveals confidential but non-classified information, whether before Congress or in a tell-all book. In the absence of any adverse consequence Kupperman will suffer as a result of disregarding the president’s order, it would seem he lacks standing to sue regardless of whether the president has the authority to issue the order.

Even if Kupperman has a legal duty to assert absolute immunity when instructed to do so by the president, it does not follow that he is obligated to go into contempt to protect the president’s privilege. For example, a lawyer who is subpoenaed by a congressional committee to provide privileged information of a current or former client is obligated to assert the privilege if her client so instructs, but she is not obligated to go into contempt in order to fulfill her professional obligations. See D.C. Bar Ethics Opinion 288 (Feb. 1999). There is no reason why a former government official should be required to do more when instructed by the president; after all, the president has ample other tools, including filing his own lawsuit, to protect whatever confidentiality interests are at issue.

In short, a non-merits dismissal of Kupperman v. House could still have a significant (and beneficial) effect on the House’s ability to get information in the current impeachment inquiry and/or in future information disputes between the political branches.

OLC’s Evolving Position on Testimonial Immunity

In this post I will look at OLC’s claim that its advice on testimonial immunity of senior presidential advisers has been consistent “for nearly five decades.” See 5-20-19 OLC Opinion at 1. As we saw in my first post, since the 1940s the executive branch has generally resisted congressional demands for testimony from such advisers, but on a number of occasions it has permitted these advisers to testify in open congressional hearings and on other occasions it has agreed or offered to provide information from these advisers in alternative ways. Until the mid to late-1990s, the executive branch’s position on this subject was not presented to Congress as an assertion of absolute constitutional immunity, but more like the prophylactic rule described in my last post. Moreover, when OLC’s internal memoranda from this time period are scrutinized (to the extent they are available), they are compatible with this more modest interpretation of its position.

It was not until the Clinton administration that OLC articulated a formal and definitive defense of the proposition that senior presidential advisers are constitutionally immune from compelled congressional testimony. Even then, OLC seems to have accepted this proposition without any serious legal analysis and, in particular, without any consideration of important developments in the case law since Assistant Attorney General William Rehnquist first casually suggested it in 1971. Continue reading “OLC’s Evolving Position on Testimonial Immunity”

A Better Way to Enforce Congressional Subpoenas?

In the course of writing the piece on enforcement of congressional subpoenas that I mentioned yesterday, I was looking for a copy of the House GOP white paper “A Better Way: Our Vision for a Confident America (The Constitution),” which was issued on June 16, 2016. At this time, of course, the Republican controlled Congress had experienced years of frustration in attempting to get information from the Obama administration (and, one has to imagine, was anticipating more of the same in a Hillary Clinton administration). As it turns out, finding a copy of this document online is more difficult than one would expect. Fortunately, I have located a hard copy in my files and post a link here for anyone who is interested (you’re welcome).

Among the proposals suggested by House Republicans in this paper was “expedited access to federal courts to enforce subpoenas” through legislation “requiring the executive branch to comply with deadlines in congressional subpoenas” and “providing a process for expedited court review when the House or Senate decides to bring litigation to enforce a committee subpoena, including expedited review by a three-judge panel at the district court level with immediate appeal to the Supreme Court.” These ideas would be incorporated into H.R. 4010, introduced by Rep. Darrell Issa, which passed the House in 2017 during the first session of the 115th congress but never received a vote in the Senate.

The white paper made two additional legislative proposals that did not make it into Issa’s legislation (at least in its final form). The first was to “clarify[] the nondiscretionary duty of a U.S. attorney to present a certified order for criminal contempt to a grand jury.” The second was to “statutorily eliminat[e] any privileges asserted by the executive branch when used against a congressional request for information.” Both of these would have been vigorously opposed by OLC and the executive branch on constitutional as well as policy grounds.


Can BLAG Authorize a Subpoena Enforcement Action?

According to this CNN report, the House Ways & Means committee, which had previously requested President Trump’s tax returns pursuant to 26 U.S.C. § 6103(f), has now issued subpoenas to the Treasury Department and IRS for the same information. Although the committee believes that it can sue to enforce the statutory duty to provide information under § 6103(f), it was advised by House counsel that issuing subpoenas would bolster its case in court.

There are interesting questions about the scope of the committee’s authority under § 6103(f), which we have previously discussed, and whether the issuance of subpoenas will help or hurt the committee’s chances in court. However, what I want to highlight now is an issue that may be more consequential than these. According to CNN, the speaker is considering whether to authorize a civil action to enforce the subpoenas (and, presumably, the committee’s statutory right of access) through the Bipartisan Legal Advisory Group, rather than a vote of the House. Back in February, I raised the possibility that language added to House Rule II(8)(B) in the 114th congress could be used in this fashion.

The new language in question provides that “[u]nless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.” There are two potential problems with using this language to allow BLAG to authorize a lawsuit by the Ways & Means committee. The first is that the language does not explicitly authorize BLAG to initiate litigation on the House’s behalf. The purpose of the rule change was “to conform to current practice.” As explained in my February post, this referred to the practice of BLAG intervening in existing litigation to defend the constitutionality of statutes (in particular, the Defense of Marriage Act) the Justice Department refused to defend. There was not, and as far as I know has never been, a practice of BLAG initiating litigation.

There is a second problem with respect to litigation to enforce subpoenas. House Rule XI(2)(m)(3)(C) provides “[c]ompliance with a subpoena issued by a committee or subcommittee . . . may be enforced only as authorized or directed by the House.” This provision seems to override Rule II(8)(B), which only applies “[u]nless otherwise provided by the House.” One would have to argue, somewhat circularly, that Rule II(8)(B) allows BLAG to authorize or direct subpoena enforcement on behalf of the House, in order to prevent Rule XI(2)(m)(3)(C) from overriding Rule II(8)(B). I am somewhat skeptical that the parliamentarians would agree with this argument, but . . . (this is where I would insert the shruggie emoji if we were on Twitter).

In any event, if BLAG claims the authority to authorize subpoena enforcement actions, this could improve the efficiency of the “subpoena cannon” considerably. On the other hand, it will almost certainly lead the minority to challenge both BLAG’s interpretation of the rules and its decisions to authorize particular actions on the House floor.

Trump v. Deutsche Bank and the Financial Right to Privacy Act

In Trump v. Deutsche Bank et al. (filed in the Southern District of New York), President Trump, in his personal capacity, and various of his companies have again filed to suit to block congressional subpoenas. This time the subpoenas in question were issued by two House committees (Intelligence and Financial Services) to two banks (Deutsche Bank and Capital One) seeking a wide range of financial records relating to Trump and his businesses. The case is similar to the one Trump brought against his accounting firm, except this time he has not named any members of Congress or committees as defendants. The reason for is likely tactical; by having only the banks (which are disinterested stakeholders) as defendants it may be easier to get preliminary relief from the court.

Trump’s primary objection to the subpoenas is the same as in the prior case. He contends that the subpoenas lack a legitimate legislative purpose. In addition, however, he asserts that the committees’ attempts to obtain these “account records violate the statutory requirements that apply to the federal government under the Right to Financial Privacy Act.” These are procedural requirements that apply to efforts by “any government authority” to obtain access to financial records. 12 U.S.C. § 3402. 

This is not the first time someone has raised RFPA objections to a congressional subpoena. In 2001, counsel for Staten Island Bank and Trust raised such objections to a subpoena from the House Committee on Government Reform. In a letter dated October 15, 2001, committee counsel explained that congressional investigations were not implicated by the statute because it was clearly designed to apply only to law enforcement investigations:

Enforcing laws is the province of the executive branch, at which the statute is plainly directed. Congress does, however, have a Constitutional obligation to conduct oversight and legislative fact-finding investigations.  Its power to compel document production in such investigations is a well-established necessity in order to carry out its Constitutional function.  For one to accept your construction of the statute, he would have to believe that by enacting the Financial Right to Privacy Act, Congress intended to strip itself of the power to compel the production of bank records in the conduct of a fact-finding investigation because it is not relevant to a law enforcement inquiry.  Such an interpretation would be an absurdity, and nothing in the legislative history of the Act supports it.

Justice Undone: Clemency Decisions in the Clinton White House, Second Report of the H. Comm. on Gov. Reform, H.R. Rep. 107-454, vol. 3, at 2536 (May 14, 2002). The counsel for the bank accepted the committee’s position and provided all of the responsive records. Id. at 2560.

So we will see if the president’s lawyers fare any better.


Congressional Committees Should Consider Addressing Fifth Amendment Waiver in their Rules

As we move toward the opening of the 116thCongress, there are many ideas for reforming congressional rules and practice. One small but not insignificant change that might be considered relates to an issue that arises from time to time—when does a witness before Congress waive her Fifth Amendment privilege by making a voluntary exculpatory opening statement? We discussed this issue about five years ago in connection with Lois Lerner’s appearance before the House Committee on Oversight and Government Reform (see more here and here).

2015 law review article by Jason Kornmehl concludes that while the question is a close one, Lerner likely waived her Fifth Amendment rights “because her opening statement contained not only a general denial of wrongdoing, but also incriminating factual assertions as well as reference to the Inspector General’s ambiguous findings in the audit report on the IRS.” Kornmehl also makes two recommendations for future congressional practice: (1) congressional committees should not require witnesses to appear when it is absolutely certain they will invoke their privilege against self-incrimination and (2) witnesses who might invoke the privilege (e.g., if they are the subject of a parallel criminal investigation) should be advised that an opening statement may be deemed a waiver of the privilege, at least if it goes beyond a general assertion of innocence.

My own view is slightly different. When a witness advises a committee she intends to invoke the Fifth, there are valid reasons why it might nonetheless require her to appear, including the possibilities that she will change her mind or the committee will decide to offer her immunity. While no doubt there are instances when this power is abused, it is not necessarily improper for a committee to decide that a particular witness, particularly an executive branch official, should be required to invoke the privilege publicly.

I do, however, agree that committees should adopt rules and practices that clearly advise witnesses that making an opening statement may be deemed a waiver of the privilege. A witness should be able to state that she is acting on advice of counsel and that no adverse inferences should be drawn from her decision to follow that advice. Beyond that, witnesses and counsel should be advised that the committee will deem an opening statement to constitute a waiver of the privilege.



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.


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.