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Impeachment and Constitutional Deliberation

The House Judiciary Committee has filed its long awaited lawsuit against Don McGahn, seeking declaratory and injunctive relief from the court with respect to McGahn’s refusal to appear before the committee to testify regarding his knowledge of matters described in the report of Special Counsel Robert S. Mueller III. Specifically, the committee is interested in matters such as “how President Trump used his official power to oust Special Counsel Mueller and end his investigation; to force then-Attorney General Jeff Sessions to transgress Department of Justice (DOJ) ethics rules to limit the scope of Mueller’s investigation; to demand that White House staff generate false accounts of the President’s conduct; and to influence witnesses not to cooperate with the investigation.” Complaint ¶ 2. The complaint repeatedly emphasizes that it needs this information in order to decide whether to recommend articles of impeachment against the president. See Complaint ¶¶ 1, 4, 10, 17, 19, 57, 61-62, 64, 95, 97, 100 & 105.

All of this is well and good. As we have discussed, McGahn is an important witness and there is no merit to DOJ’s claim that he is “absolutely immune” from testifying before Congress. The committee’s express invocation of the impeachment power further strengthens its claim for judicial relief and undermines what little persuasive value the OLC opinions on absolute immunity might otherwise have had.

It is important, however, not to conflate the committee’s litigation position and its constitutional responsibility regarding impeachment. The McGahn lawsuit is focused on substantiating specific allegations raised in the Mueller report, namely the obstruction of justice matters discussed in volume 2. See Complaint ¶ 1 (committee “is now determining whether to recommend articles of impeachment against the President based on the obstructive conduct described by the Special Counsel.”).

While the president’s conduct as described in volume 2 of the Mueller report clearly should be an element of any impeachment inquiry, it is questionable whether obstruction of justice alone can carry the weight of impeachment in this case. This is particularly true if one views obstruction as a specific statutory crime, rather than as a more colloquial term for President Trump’s implacable opposition to the Mueller investigation (or, for that matter, any other investigation he associates with the “deep state” or his political opponents).

For one thing, the special counsel declined to reach a conclusion as to whether Trump committed the crime of obstruction. Many believe he would have reached this conclusion had it not been for the OLC opinion prohibiting the indictment of a sitting president, but Mueller himself declined to substantiate this theory and it seems inadvisable to place much reliance on an unprovable hypothetical.

In addition, there are serious legal questions regarding whether the president’s exercise of his Article II powers, such as firing the FBI director or seeking to fire the special counsel, can constitute criminal obstruction. Professor Jack Goldsmith argues that “many of the 10 events outlined in Volume II of the Mueller report could not even theoretically be crimes under the obstruction statutes as they are currently written.” This is a controversial position, but it is not a frivolous one. It is also not an issue likely to be settled in the course of an impeachment proceeding.

Finally, focusing on questions of criminal obstruction requires the committee to evaluate Trump’s state of mind. See Complaint ¶ 66 (“McGahn’s testimony would provide significant evidence of the President’s motivations for his actions.”). I am skeptical, however, that McGahn is going to be able to shed much light on the president’s motives. Other presidents (Nixon and Clinton) have attempted to obstruct legal investigations or proceedings, but they did so only when they felt they had no other choice. Trump’s words and actions in general, and specifically in connection with the Russia probe, appear to be visceral in nature and to have little connection to a rational calculation of the consequences. Perhaps this is a clever strategy on Trump’s part, but I expect McGahn is as perplexed as the rest of us.

This is by no means to suggest that Trump’s conduct is unimpeachable, so to speak. The constitutional standard of high crimes and misdemeanors is quite different than the criminal standard for obstruction of justice. Thus, Goldsmith observes that “[i]n combination with Trump’s other abuses of power over the past two and a half years, I have little trouble concluding that Trump committed impeachable offenses, should Congress want to pursue that option.” The point here is that Congress’s task is more complicated than simply evaluating a handful of presidential actions to determine whether they satisfy the elements of criminal obstruction of justice. It must decide how to interpret and apply the constitutional standard of “high crimes and misdemeanors,” which is by design a more discretionary and less determinate function than that performed by a criminal court. See Neal Katyal, Impeachment as Congressional Constitutional Interpretation, 63 Law & Contemp. Problems 169, 175-79 (2000). And it must do so in the context of Trump’s highly unusual behavior in office. Continue reading “Impeachment and Constitutional Deliberation”

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I’ll Take My Grand Jury Materials with a Hint of Impeachment

Last Friday, July 26, the House Judiciary Committee filed an application with the U.S. District Court for the District of Columbia seeking release of certain grand jury materials related to the report and investigation of former Special Counsel Robert S. Mueller III. The committee contends that the Mueller report “provided Members of Congress with substantial evidence that the President of the United States repeatedly attempted to undermine and derail a criminal investigation of the utmost importance to the nation.” Application at 1. Accordingly, “the House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity– approval of articles of impeachment.” Id. 

Some may view this, from a political perspective, as “impeachment lite” (Twitter wags had a variety of other terms like “impeachment-tinged” and “impeachment-infused”). From a legal perspective, however, I think this is probably good enough, at least for this particular controversy. Here’s why.

The committee’s primary argument is that the court should authorize the release of the grand jury information pursuant to Fed. R. Crim. P. 6(e)(3)(E), which provides “[t]he court may authorize disclosure of a grand jury matter . . . (i) preliminarily to or in connection with a judicial proceeding.” This provision is applicable here, the committee contends, because it is conducting an investigation to determine whether to recommend articles of impeachment with respect to the president. Application at 30-31. It bears emphasis that the committee does not contend this provision applies to congressional investigations outside the context of impeachment, nor would there be any basis for it to do so.

As we have discussed, controlling authority in the D.C. Circuit establishes that an impeachment proceeding qualifies as a “judicial proceeding” within the meaning of Fed. R. Crim. P. 6(e)(3)(E)(i). Specifically, a Senate impeachment trial is judicial in character and a House impeachment inquiry is therefor preliminary to or in connection with a judicial proceeding for these purposes. Application at 28-29.

To be sure, there is no Supreme Court authority on point, and it is possible that the Court would conclude that the term “judicial proceeding” refers to a proceeding conducted by the judiciary, not merely a proceeding that is judicial in character. (Of course, a Senate impeachment trial of the president is presided over by the chief justice, somewhat blurring this distinction.). However, if the Court were to reject the committee’s position in this respect, I strongly suspect that it would accept its alternative argument (currently foreclosed in the D.C. Circuit) that a federal court retains inherent authority to disclose grand jury materials under these circumstances. See Application at 40-41. I do not believe the Supreme Court would hold that there is no legal mechanism by which grand jury material relevant to impeachment can be transmitted to the House (or Senate), a conclusion that would be in considerable tension with the Constitution’s preference (at least) for impeachment rather than indictment of a sitting president. See, e.g., Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2158 (1998) (citing with approval President Nixon’s argument that “[w]hatever the grand jury may claim about a President, its only possible proper recourse is to refer such facts, with the consent of the court, to the House and leave the conclusions of criminality to the body which is constitutionally empowered to make them”); see also id. at 2156 (“any information gathered with respect to executive branch officials that could reflect negatively on their fitness for office should be disclosed to Congress”).

The more difficult issue for the committee is establishing that disclosure of grand jury materials in these circumstances would be for purposes of impeachment, rather than simply for general oversight. As I have written elsewhere, the committee would clearly be in a stronger position if the House had formally initiated an impeachment inquiry. That being said, nothing in the language of Rule 6(e)(3)(E)(i) expressly requires the formal initiation of any particular proceeding and to the contrary the rule suggests that the disclosure may occur before (“preliminarily to”) such initiation.

Here it is worth noting that while it is the Senate impeachment trial that has been held to be a “judicial proceeding” for these purposes, there is also a strong argument that the House’s exercise of its power of impeachment likewise constitutes a judicial proceeding. Certainly the House’s power is judicial, rather than legislative, in nature. It is possible, however, to argue that the House’s proceeding are less judicial than the Senate’s because the latter performs the adjudicative function of a criminal court while the former performs the investigative function of a grand jury. In any event, it probably makes little difference to the outcome of the committee’s application because in either case the committee must persuade the court that its current investigation is sufficiently tied to the impeachment process.

To meet this burden, the committee points to the following: (1) impeachment falls within the committee’s jurisdiction and articles of impeachment (including in the current congress H. Res. 13, a resolution calling for the impeachment of President Trump) are invariably referred to the committee; (2) the committee has repeatedly indicated in various ways, such as statements by the chairman and a contempt report adopted by vote fo the committee, that it is assessing whether to recommend articles of impeachment with respect to the president; (3) the House Rules Committee, in its report accompanying H. Res. 430, similarly explained that the committee was considering whether to recommend such articles of impeachment; and (4) the full House voted to adopt H. Res. 430, which confirms the committee’s investigatory authority with regard to the Mueller report and related matters and expressly authorizes it to continue its efforts to obtain information, including by filing an application for grand jury material pursuant to Fed. R. Crim. P. 6(e)(3)(E). This authorization by the House implicitly recognizes that the committee is seeking grand jury information for impeachment purposes since, as mentioned previously, there is no other basis upon which the committee could avail itself of this provision.

While there are no guarantees in litigation, in my view this is a pretty strong case. Given the language of the rule and the past flexible practice in the context of impeachment, the committee should prevail in its application. Whatever the outcome, though, it will be interesting to see how the Justice Department responds.

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What Does the D.C. Circuit’s Order In Blumenthal v. Trump Tell Us?

For one thing, there is not likely to be any emoluments discovery in this case in the near future, if at all. For another, we are likely to get a significant legislative standing decision from the D.C. Circuit in the not too distant future.

On July 19, a panel of the D.C. Circuit (Judges Millettt, Pillard and Wilkins, all Obama appointees) issued an order which, while denying President Trump the immediate relief he sought, strongly agreed with the president’s view that the legal issues in the case should be resolved before discovery (or at least anything more than “limited discovery”) takes place. Specifically, the panel indicated that there are two open legal issues that are potentially fatal to the claims brought by the congressional plaintiffs. It states that “because either of those issues could be dispositive of this case, it appears to this court that the district court abused its discretion” by refusing to certify the case for immediate appeal.

The D.C. Circuit also indicated its concerns with “the separation of powers issues present in a lawsuit brought by members of the Legislative Branch against the President of the United States.” These concerns, it strongly suggested, counsel against moving forward with discovery if the case may be resolved on legal grounds alone. (The district judge, Judge Sullivan, took the hint and suspended discovery immediately after the D.C. Circuit issued its order.).

Although the panel remanded the case to Judge Sullivan to reconsider the certification issue, its directive seems pretty clear: certify immediately. There is one caveat, however. The panel suggested that the district court might wish to address “whether discovery is even necessary (or more limited discovery would suffice) to establish whether there is an entitlement to declaratory and injunctive relief of the type sought by plaintiffs.” This raises the possibility the plaintiffs could win a victory at the district court level (e.g., an order from Judge Sullivan declaring that President Trump is violating the Foreign Emoluments Clause), which would be politically useful even though unlikely to survive legally.

The two legal issues that will soon be before the D.C. Circuit are (1) whether there is a cause of action against the president for violations of the Foreign Emoluments Clause and (2) whether the congressional plaintiffs have standing to seek relief for violations of the clause. The latter question, as noted in my last post, has potentially broader significance for subpoena enforcement and other litigation by the House against the Trump administration. The panel made only one cryptic comment on the issue, noting the “standing question arises at the intersection of precedent” and citing Virginia House of Delegates v. Bethune-Hill, 139 S.Ct. 1945 (2019) and Coleman v. Miller, 307 U.S. 433 (1939).

Based on the current state of legislative standing precedent, I think the Blumenthal plaintiffs are likely to lose on standing. The question is whether or not they will lose on narrow grounds that otherwise leave untouched the ability of each house to enforce subpoenas and other information demands in court.

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Emoluments Suits Status: Keep an Eye on Blumenthal v. Trump

The Fourth Circuit recently issued its decision in District of Columbia v. Trump (the emoluments lawsuit brought by DC and Maryland against President Trump) and, not surprisingly, the court ordered the case dismissed for lack of standing. Equally unsurprising was the court’s criticism of the district judge, who it found had committed a “clear abuse of discretion” in refusing to certify the case for appeal.

The court’s reasoning with respect to the plaintiffs’ standing theory (namely that these jurisdictions or their citizens are suffering competitive injury from the Trump Hotel in DC) largely tracks my earlier observations. This standing theory fails because (1) it is sheer speculation whether Trump’s alleged violations of the emoluments clauses inflict any injury at all, i.e., Trump’s relationship with the Trump Hotel may help its competitors as much or more than it hurts them; and (2) these competitive interests are not in any event within the zone of interests protected by the emoluments clauses.

The court gives short shrift, however, to one theory that seemed more plausible to me. The domestics emoluments clause appears designed to ensure that no state exercises undue influence over the president. To the extent Trump has accepted prohibited emoluments from certain states, it is arguable that other states (such as Maryland) have suffered an injury within the zone of interests protected by the clause. The Fourth Circuit rejected this theory as an attempt to assert a “generalized grievance,” but it did not directly confront the proposition that the clause protects the states qua states, not just the general public.

What does this mean for the prospects for the three emoluments lawsuits against Trump? Although the plaintiffs may seek further review, D.C. v. Trump is unlikely to go anywhere now. The other suit predicated on a competitive injury theory, CREW v. Trump, was dismissed by the district court and is now pending before the Second Circuit. It seems unlikely to make it to the discovery stage either, at least anytime soon.

The case to keep an eye on is Blumenthal v. Trump, which was filed by Democratic members of Congress in federal court in D.C. It presents distinct standing issues. The plaintiffs claim that they have suffered an institutional injury due to Trump’s failure to present (alleged) foreign emoluments to Congress for its consent under the Foreign Emoluments Clause. Judge Sullivan accepted this theory and refused to dismiss the case for lack of standing. This decision, however, is questionable at best under existing Supreme Court precedent, particularly in light of the Court’s most recent ruling on legislative standing.

The Justice Department has sought a writ of mandamus from the D.C. Circuit to prevent Judge Sullivan from moving forward with discovery in the Blumenthal case. It has indicated that if it does not receive a decision from the appellate court by July 22, it may seek relief from the Supreme Court, (hat tip: Seth Barrett Tillman). Should the Supreme Court agree to hear the case, it could use the opportunity to address broader questions of legislative standing that remain unresolved, which could affect the Ways and Means committee lawsuit to obtain Trump’s tax returns and other contemplated House litigation against the administration.

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What to Look For in the Mazars Oral Argument

Tomorrow the Mazars subpoena case will be argued before the D.C. Circuit (Judges Tatel, Millett and Rao). In this appeal, President Trump (in his private capacity) has advanced a novel and audacious theory in support of his contention that the congressional subpoena at issue lacks a “legitimate legislative purpose.” Trump is asking the D.C. Circuit to reverse the decision of the district court, which denied Trump’s application for an injunction to prevent Mazars, his accounting firm, from producing financial records responsive to the subpoena.

As Judge Mehta pointed out in his decision below, the legal standards employed by the courts to review congressional subpoenas and investigations are generally so deferential that they “do not substantially constrain Congress.” Rather than fighting this proposition head on, Trump’s lawyers focus primarily on seeking a carve-out from Congress’s broad investigatory and oversight authority for those who hold constitutional offices (i.e., the president and Supreme Court justices).

The lynchpin of this argument is the distinction between Congress’s legislative and judicial powers. Although it has long been understood that Congress must have some ability to obtain information needed to consider and craft legislative measures, the scope of this power was once highly controversial. Following the Supreme Court’s decision in Kilbourn v. Thompson, 103 U.S. 168 (1880), which stressed that Congress, unlike the British Parliament, was not a court of general jurisdiction, it was widely believed that Congress’s authority to compel the production of information for legislative purposes was limited at best. This reading of Kilbourn, however, was undermined by later Supreme Court cases beginning with McGrain v. Daugherty, 273 U.S. 135 (1927). These subsequent cases, Judge Mehta noted, render Kilbourn “largely impotent as a guiding constitutional principle.”

Trump attempts to revive Kilbourn for a limited purpose. His theory goes something like this. Congress generally has broad legislative and oversight authority with respect to the departments and agencies of government, including offices created by statute. With respect to constitutional offices, however, Congress’s legislative authority is “severely constrained.” Trump Br. at 4, 38. Thus, Trump claims that Congress cannot rely on its legislative authority to seek his financial records because these records are not relevant to a subject on which legislation may be had.

To be sure, Trump acknowledges that Congress also has powers of a judicial nature. But, following Kilbourn, he stresses that these are not of general scope, but are limited to those areas expressly identified in the Constitution, namely judging elections, disciplining members, and, most importantly, impeachment. For those who hold constitutional offices, therefore, impeachment is the only method (Trump argues) by which Congress can investigate alleged wrongdoing.

Thus, “[w]hile Congress could presumably use subpoenas to advance these non-legislative powers, the Committee has not invoked them.” Trump Br. at 45. In fact, Trump takes pains to demonstrate that Speaker Pelosi has disavowed any intent to go down the path of impeachment. Trump Br. at 47-48.

The novelty of this argument is illustrated by the fact that one of the principal “authorities” cited in Trump’s brief is a three-page law student note that is more than a century old. See Note, Congressional Power to Punish for Contempt, 30 Harv. L. Rev. 384 (1917) (cited in Trump Br. at 17-18). The apparent utility of this note from Trump’s perspective is that it vividly distinguishes congressional contempt in the context of impeachment from that in the context of legislative oversight:

A committee of the House considering an impeachment is like a Grand Jury hearing evidence which may lead to the return of an indictment– it is a judicial body and it is one provided for by the Constitution. It must surely have the power to call witnesses, and the power is of little avail if these witnesses may contemptuously refuse to respond, or may be influenced or intimidated by outside contempts of the body before whom they are testifying. If the House is to sit in a judicial capacity, it must have the protection that a court has.

Note, 30 Harv. L. Rev. at 385. Yet even this note, which predates McGrain, concludes that “[t]he power to legislate . . . by necessary implication include[s] the power to examine witnesses and to compel them to respond by contempt proceedings.” Id. at 386.

Why would the Trump team rely on what seems like a very long shot argument? The short answer is I don’t know, but three possibilities come to mind. First, Trump’s lawyers may simply believe this is the best argument available to them. Second, it may be thought that stressing the lack of impeachment proceedings helps Trump’s cause beyond the confines of this particular case (e.g., with public opinion and/or with courts that will be ruling on more difficult subpoena enforcement issues in the months ahead). Third, Trump’s legal team may believe that advancing a bold legal theory is the best way to get the Supreme Court to grant certiorari, which strings out the proceedings even if it is unlikely to deliver an ultimate victory.

The two things to look for in tomorrow’s argument: (1) how much interest does the panel show in impeachment and why the House has declined to initiate impeachment proceedings to date, and (2) whether Judge Rao (the lone Republican appointee) seems at all open to Trump’s arguments. A unanimous panel opinion will make further review less likely.

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It’s (Probably Not) Complicated: The House Lacks Standing in Nagarwala

A commentator has observed that “[t]he Supreme Court’s and lower federal courts’ jurisprudence on legislative standing is complicated.” Bradford C. Mank, Does a House of Congress Have Standing Over Appropriations?: The House of Representatives Challenges the Affordable Care Act, 19 U. Pa. J. Const. L. 141, 143 (2016). Generally speaking, this is true. A series of Supreme Court decisions over the past two decades have produced mixed and often inconclusive results, which tell us something about the views of individual justices but provide little in the way of definitive answers from the Court as a whole.

We know, for example, that there are two current justices at the most liberal/permissive end of the spectrum on legislative standing. Justice Breyer would have held that individual federal legislators had standing to challenge the constitutionality of the Line Item Veto Act (he was joined in this view only by the now-retired Justice Stevens). See Raines v. Byrd, 521 U.S. 811, 838 (1997) (Breyer, J., dissenting). In subsequent cases that presented the question whether state or federal legislative bodies had institutional standing, Justice Breyer supported legislative standing in each case. See Va. House of Delegates v. Bethune-Hill, No. 18-281 (June 17, 2019) (Virginia house of delegates); Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. __ (2015) (both houses of Arizona legislature); United States v. Windsor, 570 U.S. 744 (2013) (U.S. House of Representatives); Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999) (U.S. House).

Justice Alito has also staked out what Professor Mank calls a “novel” and “broad” approach to legislative standing. See 19 U. Pa. J. Const. L. at 183, 189. In Windsor, although a majority of the Court found it unnecessary to  resolve the question of congressional standing, Justice Alito opined that “in the narrow category of cases in which a court strikes down an Act of Congress and the Executive declines to defend the Act, Congress both has standing to defend the undefended statute and is a proper party to do so.” Similarly, in this term’s Bethune-Hill decision, Alito (writing for himself, the chief justice, and Justices Breyer and Kavanaugh) would have found that the Virginia house of delegates had standing to defend the constitutionality of a redistricting plan passed by the Virginia general assembly. The Bethune-Hill majority, however, held that the Virginia house, “as a single chamber of a bicameral legislature,” lacked standing to assert an injury (invalidation of the redistricting plan) which had been suffered by the legislature as a whole.

Which brings us to the pending motion of the U.S. House of Representatives to intervene in United States v. Nagarwala, No. 19-1015 (6th Cir.). Nagarwala involves a criminal prosecution of individuals in Michigan for practicing female genital mutilation in violation of a federal statute, 18 U.S.C. § 116(a). The district court dismissed these charges on the ground that the statute exceeded Congress’s enumerated powers. The Justice Department initially filed a notice of appeal, but subsequently informed Congress pursuant to 28 U.S.C. § 530D(a)(i)(B)(ii) that it lacked a reasonable basis to defend the constitutionality of the law and therefore would not pursue an appeal. The House, through the Bipartisan Legal Advisory Group (BLAG), moved to intervene in the case to defend the constitutionality of the statute. Unlike other issues of legislative standing that may present themselves in the coming months, this one is fairly straightforward.  Continue reading “It’s (Probably Not) Complicated: The House Lacks Standing in Nagarwala”

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Another Split Between House Ethics and the OCE Board

See update below.

This post is to flag an obscure dispute which popped up a few weeks ago between the House Ethics Committee and the Office of Congressional Ethics (hat tip: Bryson Morgan). The issue involves public disclosure of OCE referrals when (a) the referral recommends further review of allegations against a House member, officer or employee (the subject); (b) the ethics committee establishes an investigative subcommittee to review the allegations; and (c) the subject resigns from the House after the establishment of the investigative subcommittee but less than a year after OCE’s referral.

The relevant facts are as follows. On April 16, 2018, OCE transmitted a referral to the ethics committee recommending it further investigate Oliver Schwab, then the chief of staff to Representative David Schweikert, for certain alleged financial improprieties in violation of House rules, standards and federal law. On the same day OCE transmitted a separate referral regarding related allegations against Representative Schweikert. (Note: the merits of the allegations against Schweikert or Schwab are not pertinent to our discussion here).

On June 28, 2018, the ethics committee announced it was establishing an investigative subcommittee to inquire into the allegations against Schweikert and Schwab based on the OCE referrals. On July 9, 2018, however, Schwab resigned as chief of staff and left the House’s employ. Based on longstanding House interpretation and practice, this caused the committee to lose jurisdiction over Schwab.

The House rules provide that generally the ethics committee must make public the OCE’s report and findings within 45 days of receiving them, although the chair and ranking member may jointly decide to delay this action for up to another 45 days. House Rule XI(3)(b)(8)(B). Thus, the Schwab report and findings would normally have been required to be made public no later than July 16, 2018.

However, there are certain exceptions to this disclosure requirement, including the following:

[I]f the committee establishes an investigative subcommittee regarding [a matter referred by the OCE board], then the report and findings of the board shall not be made public until the conclusion of the investigative subcommittee process and the committee shall issue a public statement of the establishment of an investigative subcommittee . . . . If any such investigative subcommittee does not conclude its review within one year after the board transmits a report respecting any matter, then the committee shall make public the report and upon the expiration of the Congress in which the report is made public, the committee shall make public any findings.

House Rule XI (3)(b)(8)(B)(iii) [yeah, seriously you can spend 20 minutes trying to find this subparagraph in the House Rules].

One might think that Schwab’s departure from the House would represent the “conclusion of the investigative subcommittee process” with respect to him, thereby releasing the committee from the hold period and requiring it to make public the OCE’s report and findings under the general disclosure rule. The committee, however, did not make public the OCE’s report and findings regarding Schwab at any time during 2018.

On April 16, 2019, one year after the Schwab and Schweikert referrals were received, the ethics committee made public the Schweikert report and findings based on the fact that the investigative subcommittee was still conducting its investigation into the allegations against Schweikert and public release was therefore required due to the fact the subcommittee “d[id] not conclude its review within one year” of the OCE referral. The ethics committee, however, made no public disclosure with respect to Schwab.

The committee’s failure to make disclosure here was not an isolated action or based on any consideration peculiar to Schwab’s case. Instead, it appears the committee has followed a general practice of not disclosing the OCE report and findings for individuals no longer subject to its jurisdiction (it followed the same practice in the case of former Representative Jim Renacci, for example). The basis for this practice is unclear as the rules do not seem to contain an exception to public disclosure requirements for subjects who resign from the House prior to the time disclosure is required. The closest I can come up with is that the rules require the committee to provide one-day prior notice of disclosure to “the applicable Member, officer, or employee.” Rule XI (3)(b)(8)(A).  If one interprets this to require notice to a current member, officer or employee, one could conclude (I suppose) that disclosure cannot be made once the subject resigns.

Regardless, the OCE board apparently does not agree with the ethics committee’s interpretation of the rules. On June 7, 2019, the board “voted unanimously to release the OCE’s report and findings concerning former House employee Mr. Oliver Schwab, as the Board determined that release was mandated by the Resolution and House rules.” The board has followed the same course in earlier cases (including Renacci’s) where the committee failed to make public disclosure.

The problem is that even if one believes OCE’s interpretation of the governing rules is more persuasive than that of the ethics committee (a view to which I am inclined), nothing in either the House rules or OCE’s charter resolution (H.Res. 895) appears to require or authorize OCE to make public disclosures if the ethics committee fails to do so. [Update: Bryson Morgan points to Section 1(f)(1)(B) of H.Res. 895 as potentially authorizing OCE’s disclosure. This section generally prohibits any disclosure by OCE of testimony or other information, and states “[a]ny communication to any person or entity outside the Office may occur only as authorized by the board as necessary to conduct official business or pursuant to its rules.” This provision acknowledges that the board has the power to authorize disclosures “as necessary to conduct official business.” Whether this authorizes the board to make disclosures on the grounds that the ethics committee failed to do so is a question we will leave for another day.]  Thus far, however, the committee has been disinclined to make an issue of OCE’s actions, nor has any former member or staffer sought to challenge OCE’s authority in this regard.

All of which is pretty inside baseball, but if something should blow up in the future, you will be prepared.

 

 

 

 

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Roger Cramton on Executive Privilege

Who is Roger Cramton, I hear you ask? He was the author of a 1972 memorandum cited in footnote 1 of the OLC’s 5-20-19 opinion on the testimonial immunity of former White House counsel Don McGahn. It is cited as “Memorandum for John W. Dean III, Counsel to the President, from Roger C. Cramton, Assistant Attorney General, Office of Legal Counsel, Re: Availability of Executive Privilege Where Congressional Committee Seeks Testimony of Former White House Official on Advice Given President on Official Matters (Dec. 21, 1972) (Cramton Memorandum).

I have not located a copy of the Cramton Memorandum (if anyone has, please forward), but I did come across this March 23, 1973 New York Times piece (an op-ed, I assume) written by Mr. Cramton. It is entitled “Why Executive Privilege Won’t Kill You,” which, you have to admit, sets a pretty low bar. Cramton addresses the controversy over the Nixon administration’s refusal to allow high level advisers, such as Henry Kissinger, John Ehrlichman, H.R. Haldeman, Peter Flanigan and John W. Dean, to testify before Congress.

Cramton’s defense of this practice is entirely based on the premise that these witnesses will be asked about privileged matters relating to advice given to the president. He contended that “[p]residential adverser are not subject to interrogation any more than a law clerk can be asked about the factors or discussions that preceded a decision of his judge or legislative aide asked about conversations with his Congressman.” The president’s “official family” must be able to give him candid advice uninhibited by fear their views “will be subject to subsequent disclosure or second-guessing.”

I have three observations about Cramton ‘s position. First, it was obviously part of an effort to justify the Nixon administration’s refusal to cooperate with Congress’s Watergate investigation. Just a couple weeks after the New York Times piece, Chairman Sam Ervin held a press conference calling this position “executive poppycock” and saying “Divine right went out with the American  Revolution and doesn’t belong to White House aides.” Karl Campbell, Senator Sam Ervin, Last of the Founding Fathers 285 (2007). Nixon backed down shortly thereafter and allowed his closest aides to testify. Id. at 285-86.

Second, Cramton’s public statement, at least, does not claim that White House aides have absolute immunity from appearing on  Capitol Hill or testifying about non-privileged matters. In this it is consistent with public pronouncements of William Rehnquist and other executive branch lawyers. It does suggest that presidential communications are absolutely privileged, but this position was rejected by the Supreme Court a year later in United States v. Nixon.

Finally, it is odd that OLC today relies on Cramton’s position, given that it failed in every conceivable way. Top White House advisers such as Haldeman, Ehrlichman and Dean were forced to testify before Congress when President Nixon realized it was politically and legally unsustainable to refuse. The Supreme Court subsequently rejected the legal reasoning on which the refusal was based. And the entire effort was revealed to be part of a criminal conspiracy which resulted in Haldeman, Ehrlichman and Dean going to prison.

It seems odd, anyway.

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OLC’s Fig Leaf Can’t Cover McGahn

Now we come to the crux of the matter, OLC’s claim that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.” 5-20-19 OLC Opinion at 1. Specifically, OLC contends that Don McGahn, the former White House counsel, may not be compelled to testify before the House Judiciary Committee about matters described in the report of Special Counsel Robert Mueller. See id. at 1-2. These include, for example, the question whether McGahn truthfully told the special counsel that President Trump directed him to fire the special counsel or whether McGahn lied about this, as Trump apparently now alleges. See Mueller Report, vol. II, at 84-87. For the reasons that follow, OLC (sometimes known as the Keeper of the Presidential Fig Leaf) is wrong.

Adam White, a keen legal observer who unaccountably agrees with OLC’s analysis, summarizes its reasoning as follows:

As OLC explained, the president’s core advisors are entitled to absolute immunity from compelled appearances before Congress; they are his alter egos, and just as Congress cannot force the president himself to testify before its committees, nor can Congress force his closest advisors to appear. Such compelled testimony would subjugate the president to Congress; it would significantly impair (if not destroy altogether) the president’s ability to receive candid advice from his closest advisors, and it would enable congressional committees to prevent the president’s advisors from actually doing their own work for the president.

In essence, OLC offers a syllogism (1) the president has absolute testimonial immunity; (2) his closest advisers are his “alter egos”; and hence (3) his advisers also have absolute immunity. As we have already seen, however, it is far from established that the president himself has absolute testimonial immunity. Moreover, there is nothing other than OLC’s say-so to support the proposition that White House aides should be considered the president’s “alter egos’ and, in any event, this assertion does little more than assume the conclusion. Saying that an aide is the president’s “alter ego” is simply another way of saying that the aide is entitled to the same immunity as the president. However, as Assistant Attorney General Rehnquist recognized in 1971, the (assumed) fact that the president enjoys an immunity “does not answer the question as to whether his immediate advisers are likewise exempt.” Rehnquist Memorandum at 3.

As it happens, since 1971 the Supreme Court has addressed this very question in a closely related context. In a 1982 opinion joined by Justice Rehnquist, the Court held that senior presidential advisers were not entitled to absolute immunity in civil actions arising out of their official activities, even though the Court held in a companion case that the president was entitled to such immunity. The Court did not dispute “the importance to the President of loyal and efficient subordinates in executing his duties of office,” but found this was simply not enough to justify extending absolute immunity to presidential aides. Harlow v. Fitzgerald, 457 U.S. 800, 808-09 (1982); see also Nixon v. Fitzgerald, 457 U.S. 731 (1982) (holding the president is absolutely immune from civil suits arising from his official duties).

Harlow not only establishes that the president’s advisers may be sued for civil damages, but, as OLC tacitly concedes, it also demonstrates that they can be compelled to testify in judicial proceedings. It would make no sense to claim that White House aides were immune from giving testimony in civil damages actions in which they were the defendants and, in any event, in such cases they would be “compelled” to testify as a practical matter to defend their conduct. Furthermore, despite the numerous criminal investigations that have involved White House aides over the past decades (to name just a few that come to mind in addition to the Mueller probe, Watergate, Iran-Contra, Whitewater, the 1996 campaign fundraising scandal, and the Valerie Plame leak matter), as far as I know OLC has not contended that presidential advisers are immune from testifying in either grand jury proceedings or criminal prosecutions. Thus, there seems to be no serious contention that White House aides have any immunity from testifying in judicial proceedings.

Harlow would seem to be fatal to OLC’s argument. Leaving aside the difficulty of explaining why the Constitution would require that presidential advisers have immunity in congressional, but not judicial, proceedings, Harlow establishes that these advisers are not constitutionally entitled to an immunity simply because it is available to the president. This might seem like a self-evident point (it was to Rehnquist even while he still worked at OLC), but OLC’s syllogism doesn’t work once it is recognized. See Comm. on the Judiciary, U.S. House of Representatives, v. Miers, 558 F.Supp.2d 53, __ (D.D.C. 2008) (executive branch’s argument for presidential adviser immunity from compelled congressional testimony is “virtually foreclosed” by Harlow).

OLC tries to “distinguish” Harlow on the ground that congressional proceedings are fundamentally different than judicial proceedings. But this misses the main point. Harlow doesn’t preclude the possibility White House aides (or executive officials generally) will be treated differently than ordinary citizens in certain situations, but it does preclude the argument that they are entitled to special treatment just because the president is. Thus, even if we grant the proposition that the president is immune from compelled congressional testimony (which, unlike his immunity from civil actions, has not been approved by the Supreme Court or any other court), this is insufficient to establish that his aides are.

White says “[n]o court has ever held that all presidential advisors must testify when subpoenaed.” This is true in the sense that no court has ever held that all firefighters must testify when subpoenaed. But the Supreme Court has made clear that all citizens have a duty to comply with congressional subpoenas:

A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.

United States v. Bryan, 339 U.S. 323, 331 (1950) (emphasis added) (upholding a contempt conviction for failure to comply with a congressional subpoena). The relevant fact, then, is that no court has ever held that presidential advisers have immunity from this “public duty,” and the only court (Judge Bates in the Miers case) to directly address the claimed immunity has roundly rejected it.

Indeed, no court has ever held that any class of citizens or officials is categorically immune from compelled congressional testimony. Witnesses can assert the Fifth Amendment in congressional proceedings, for example, but that does not excuse them from the duty of appearing to invoke the privilege in response to specific questions. Therefore, OLC carries a heavy burden to establish that senior presidential advisers are constitutionally distinct from ordinary citizens and other executive branch officials in such a way that they are entitled to this unique immunity. It must carry this burden, moreover, without the benefit of any supporting authority (other than its own prior memoranda) because, as Judge Bates points out, “[t]he Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context.” Miers, 558 F.Supp.2d at __.

It is also noteworthy that despite the fact that OLC refers to “absolute immunity from compelled congressional testimony,” it acknowledges that this immunity does not extend to testimony regarding the adviser’s “private affairs.” 5-20-19 OLC Opinion at 4, 7. OLC does not elaborate on what it means by this exception (which it refers to simply by quoting an apparently unpublished 1974 memorandum by Assistant Attorney General Antonin Scalia). However, as we saw in an earlier post, in his 1971 congressional testimony, Rehnquist associated this exception with two instances (Donald Dawson in 1951 and Sherman Adams in 1958) in which senior White House officials were alleged to have misused their offices for personal gain. These are hardly “private affairs” as that term would ordinarily be understood. And regardless of what one calls it, OLC fails to explain why the Constitution permits compelled congressional testimony in this instance and not in other cases where a senior adviser has important and non-privileged information that Congress needs.

OLC’s Policy Rationales

As White notes, OLC offers three basic reasons why senior presidential aides must have testimonial immunity in congressional proceedings. Absent such immunity, OLC maintains, (1) the president would be “subjugated” to Congress; (2) the president’s ability to receive candid advice from his closest advisers would be impaired or destroyed; and (3) committees could interfere with the work that these advisers must perform for the president. Let’s take these in reverse order. Continue reading “OLC’s Fig Leaf Can’t Cover McGahn”