July 27, 2007
Questions and Answers:
Let me try to get us started by sketching some issues raised by the House contempt memo. That memo states five objections to the assertion of executive privilege. Two of them are highly technical: (1) the President himself must personally assert executive privilege, but he has not; and (2) Harriet Miers must, but did not, submit a "privilege log."
The third objection rests on what strikes me as a faulty understanding of executive privilege: (3) there has been no showing that President Bush himself received advice or was even involved in the underlying decisions regarding the U.S. Attorneys. I consider this a faulty view because we have a doctrine of "executive" privilege rather than "Presidential" privilege. Rooted in separation of powers, it protects the confidentiality of communications within the executive branch. To be sure, in United States v. Nixon, the Supreme Court talked about the "privilege of confidentiality of Presidential communications," but that's because the case itself involved such communications. In Cheney v. United States District Court, although the issue was not directly presented, the Supreme Court appeared to accept that the Vice President could raise a claim of executive privilege. (VP Cheney had not yet announced that he's a member of the legislative branch.)
Moreover, precedent aside, it makes sense to extend executive privilege beyond communications directly with the President. In the same way that a claim of "judicial privilege" should protect (at least as a prima facie matter) case-related conversations among lower federal court judges or even their law clerks, rather than just those between Supreme Court Justices and their respective law clerks, so it seems that executive privilege ought to protect some discussions in which the President does not directly participate. This view may pose problems for those who believe strongly in the unitary executive—including the current occupant of the White House—but that's not a reason for the House of Representatives to adopt a faulty view of the privilege.
The heart of the House case is the fourth objection: (4) Even if the privilege were properly raised and applicable, it would be outweighed by the House's need for information relevant to investigating serious wrongdoing. As in the Nixon case, so too here, there is no plausible national security justification for keeping the material secret, and prior administrations have declined to assert executive privilege where Congress sought evidence of wrongdoing by the administration itself. Whether this objection is correct as a matter of case law depends on whether Nixon—with its demanding burden of persuasion on the administration—applies outside the context of a criminal prosecution. The Cheney case suggests that it may not, but this is an open question: We can grant that executive privilege is entitled to greater protection in civil cases than in criminal cases; it does not follow that it is entitled to less protection in a direct conflict between the House and the President.
The fifth and final objection appears technical: (5) When a private citizen faces a congressional subpoena and the White House asserts executive privilege, the proper course is for her to comply, unless the White House succeeds in obtaining a court order blocking her from doing so. This is not merely a technical objection, however. If correct, it would force the administration to go to court as plaintiff seeking a protective order rather than as a defendant against a motion to compel testimony. It's disadvantageous to be the plaintiff in these cases because a judicial decision to stay out benefits the defendant.
Michael's formulation of the issues is quite helpful, but I don't understand why the Cheney case might imply that the balancing of U.S. v. Nixon is inapposite in a civil context. As I recall, in Cheney, there was no formal claim of executive privilege. The Vice President was using the prospect of a serious executive privilege claim as a ground for a narrow reading of the Federal Advisory Committee Act. The Court held that the D.C. Circuit should address this issue without requiring a formal claim of privilege to be put forward. I'm just wondering in what way this might have bearing on the weightiness of any prospective executive privilege claim against Congress.
In Cheney, the Court said:
The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism. As the Court explained, the need for information in the criminal context is much weightier because "our historic[al] commitment to the rule of law ... is nowhere more profoundly manifest than in our view that 'the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer.' " United States v. Nixon, 418 U.S. 683, (quoting Berger v. United States, 295 U. S. 78, 88 (1935)). In light of the "fundamental" and "comprehensive" need for "every man's evidence" in the criminal justice system, 418 U. S., at 709, 710, not only must the Executive Branch first assert privilege to resist disclosure, but privilege claims that shield information from a grand jury proceeding or a criminal trial are not to be "expansively construed, for they are in derogation of the search for truth," id., at 710. The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to production of relevant evidence in civil proceedings does not have the same "constitutional dimensions." Cheney v. United States District Court for the District of Columbia No. 03-475 (June 24, 2004), at 713.
The open issue is whether the Court would say that Congress's need for material from the executive is of the same weight as the need of the criminal process for every person's evidence.
Thanks for getting the conversation going, Mike. Your discussion of the "fourth" objection -- the weight of the House's interests -- is, I think, the heart of the matter here, but I'll wait to see what others have to say about that. For now, I have a quick comment or two about what you call Objection No. 5, and then a question about your interesting and important take on Objection No. 3.
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As for Harriet Miers' refusal to even appear to testify: There are two points of contention here. The first involves the merits of the "absolute immunity" claim for close presidential advisers. It is not at all unusual for recent Administrations (of both parties) to assert that some officials close to the President are categorically immune from compelled testimony -- regardless of the questions being asked. The argument for such immunity is set out in a recent OLC Opinion and in Part II of an earlier AG Reno Opinion, both of which cite earlier AG and OLC opinions, and no other authorities.
There are, however, a significant number of historical examples of close presidential advisers testifying before Congress (see, for instance, the many examples here), and, as far as I can tell, that common practice has not had a deleterious effect on communications within the Executive Office of the President. I, for one, find the reasoning of the Bradbury, Reno, et al., opinions on this question very weak -- but unless others wish to debate this discrete question, I doubt it's worth examining it in detail. Suffice it to say I think the Administration is on its weakest ground and Miers is most in risk of being held in contempt, with respect to this absolute refusal to testify.
The second point here, and the one Mike mentions, is the oddity that the President purported to "direct" private citizens such as Miers to refuse to comply with subpoenas and thereby to violate a federal criminal statute, and that those witnesses -- who claim to have no independent view of the constitutional question -- have actually chosen to violate the law and ignore a formal subpoena in compliance with the President's "direction." As I discussed here, this is unprecedented, and I think it was wrong -- there was only one legal "direction" here (the subpoena), and Miers should have agreed to comply with it, as federal law requires, which would have prompted the Administration itself to file a lawsuit to enjoin her testimony.
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As for Objection No. 3, on the merits of the privilege issue: I agree with Mike that the privilege is not limited to communications with the President himself. However, I would think that at most, and analogous to the law clerk discussions Mike cites, it should be limited to discussions preliminary to, and in the service of, the President's own decisionmaking. (That's not to say that all such communications are privileged, but only that those should be the only communications eligible for the privilege.)
But that's not the case here. The decision to fire the U.S. Attorneys was, in the President's own words, made by "the White House," after consultation with DOJ, but without the President's own involvement. No one is arguing that the privilege applies to the internal DOJ communications, or to the communications between DOJ and White House officials (many of which the Administration has provided to Congress). Indeed, if the decision to fire the officials had been made by the Attorney General, there would be no privilege claim. Why, then, should the constitutional question change merely because the ultimate decisions to remove the officials, and most or all of the pressure to affect criminal prosecutions and investigations, were the work of (I'm surmising here) Karl Rove and Harriet Miers, rather than Alberto Gonzales? In recent decades, more and more functions of the Executive branch have been shifted from agencies to the burgeoning White House staff. Congress already has less ability to oversee those functions, because most of the those White House officials are not Senate-confirmed and are not subject to ordinary oversight. To give those White House officials an additional constitutional privilege that would not be enjoyed by DOJ officials engaged in the same functions seems rather odd.
(Responding to Professor Dorf) Got it - thanks. But this is a distinction between criminal and civil *judicial* proceedings. A civil judicial proceeding would not usually pit the interests of a co-equal branch of government against the interests of the executive in asserting privilege. So, while I don't disagree with your careful formulation, I think it quite unlikely that Cheney has a bearing on congressional investigations, who do implicate the interests of a co-equal branch. [As an aside, I actually think the balancing as stated in Nixon is pretty puzzling because (a) I assume the institutional interest of a court with regard to a criminal trial is avoiding being involved in any violation of a defendant's rights, (b) the defendants in the Nixon case were undoubtedly praying for the tapes' non-release, and (c) a court afraid that a criminal trial was proceeding unconstitutionally could always dismiss the prosecution. The real parties in interest in Nixon, IMHO, actually were Congress and the American people.]
At the present all eyes will probably be on the contempt citations, and how Congress might enforce them. These questions raise many interesting legal issues. Nevertheless, the most important thing Congress could do, if it genuinely believes there is evidence of criminal wrongdoing by persons in the executive branch, is to call for the appointment of a special prosecutor. The Independent Counsel Act has, thankfully, gone to a well deserved repose. But special prosecutors are still quite possible and constitutional, and they may be entirely appropriate given the fact that large swaths of the Justice Department are probably conflicted out of investigating these matters.
To be sure, the President will probably refuse to appoint a special prosecutor if he can help it. After all, the last one he appointed produced Scooter Libby's conviction. That is where Congress comes in. It has many different means at its disposal to pressure the President, including making the option salient before the public, raising public ire against the President for refusing to appoint a special prosecutor, refusing to move on nominations and appointments that the President seeks (or to pass various appropriations bills he likes) until he appoints a special prosecutor, and so on. The real question is whether there is the political will in Congress to do this. If not, I suspect that the various proceedings will drag on until the President leaves office. At the moment, that seems to be his preferred outcome.
It seems to me that the Executive's interest in preserving the confidentiality (and thereby, the candor) of Executive Branch communications is put to its toughest test in the context of a subpoena in aid of a criminal proceeding, both because of the size of the stakes (e.g., liberty and perhaps even life) and because of the nonpolitical nature of the judicial branch. In contrast, the classic case justifying the existence of the privilege (as well as its original exercise) is a contest between the co-equal political branches, where the Legislature seeks internal information from the Executive. To be sure, the interest of a congressional committee for information from the Executive may be weighty, and here the requested information is said to relate to the possibility of serious wrongdoing by Executive officers. But such congressional demands can often be cast plausibly in terms of concerns about potential wrongdoing, which is reason enough why the privilege should not automatically give way (or be waived) in the face of such a claim (as suggested in the House Contempt Report kindly supplied by Marty). I do not mean to imply that the House Committee's assertion of possible wrongdoing is in bad faith, but neither would I expect anyone to deny its inherently political nature.
I also think it was entirely proper for the President to request (I agree that he can no longer "direct") his former subordinate, Ms. Miers, to respect his assertion of Executive privilege by refusing to provide the information claimed to be privileged. If she had refused, I don't know of any sanction available to the President to enforce his request and to force her silence, and I don't see any basis for a court to enjoin her from revealing the information to Congress pursuant to subpoena. By complying with the President's request, she can be held in contempt, but then the question becomes whether the contempt can be judicially enforced. I have a pretty robust view of the now famous "unitary executive” theory, and so the President's recent statement that he would forbid the U.S. Attorney from acting to enforce a congressional contempt citation is to me a constitutional lay down. Indeed, I think OLC's view on this hasn't wavered from one Administration to another. Are we all on common ground here?
Chuck's comments on the merits get right at the central problem, and reveal why executive privilege questions are so notoriously difficult and indeterminate: If we could be sure Congress were "truly," and only, trying to expose Executive branch wrongdoing, the claim for privilege would be very weak. But human nature being what it is, such laudable considerations are often entangled with partisan designs to embarrass and/or weaken the current occupant of the White House. (Of course, in most such cases, including this one, I would argue (and I'm sure others would say the same about the investigations of Clinton), the desire to weaken the Executive is motivated by a sincere belief that the Executive has engaged in wrongdoing . . . as Chuck suggests, these considerations can't possibly be disaggregated.) Which is why perhaps the U.S. v. Nixon "balancing," as indeterminate as it is, is perhaps the best we can do here. And, if we're at all honest, we have to concede that in such a balancing process, courts' decisions will be very heavily influenced by whether they think the allegations of wrongdoing are serious and substantial. So, Chuck -- how should that balance be resolved in this case?
On the remedial question, Chuck asks whether we're all on "common ground" with respect to the OLC view that the U.S. Attorney should not -- cannot -- refer the contempt citation to the grand jury (as the statute requires) once the President has determined that contempt sanctions would be unconstitutional because of executive privilege.
Some common ground, but not entirely. For one thing, the statute doesn't require DOJ to prosecute someone for contempt where the President or AG has concluded that such a prosecution would be unconstitutional. Instead, it only requires the U.S. Attorney to transmit the citation to the grand jury, i.e., in effect to perform a ministerial task on Congress's behalf, because someone has to do it. If the U.S. Attorney were to do that much, and the grand jury were to return an indictment -- presumably after having rejected the privilege claim -- only then should the U.S. Attorney and DOJ decide whether to prosecute the case, in full awareness of what the grand jury had to say. I'm not persuaded that Congress can't require the U.S. Attorney to set the grand jury process in motion.
OK, but what if the grand jury indicts Harriet Miers? Can or should the U.S. Attorney proceed to prosecute her notwithstanding the President's view that it would be unconstitutional? Perhaps not. However, surely Morrison v. Olson, decided after Chuck's 1986 OLC Opinion, makes the question much more complicated than it was in the mid-1980's. I know Morrison is generally shunned 'round these parts; but I think it was rightly decided and, much more importantly, it is still the law (and I suspect it will be for quite some time). Under Morrison, Congress could enact a statute creating an "independent" counsel for these sorts of contempt cases, and such a counsel arguably would not be bound by the privilege decisions of the President. The question then becomes whether it is fair to construe the current statute to have done just that -- i.e., to require the U.S. Attorney to act "independently" of the President in these categories of cases, more like an agent of Congress, in which case such independence would (arguably) be constitutional under Morrison.
That debate, however, is academic, because it is a simple fact that the Administration will not allow the U.S. Attorney to prosecute, or even to refer the citation to the grand jury.
To which Jack responds that Congress should insist on appointment of a Special Counsel such as Fitzgerald or Jaworski. But I can't imagine this Administration will ever do so, no matter how loudly Congress insists upon it.
All of which points to the conclusion that the merits will likely be resolved, if at all, in a civil proceeding brought by the House in federal district court. See pages 33-46 of the Congressional Research Service Report.
I am not a subscriber to the unitary executive theory as Chuck would defend it, for reasons, in the criminal law context, that I sketch below. My question about the criminal contempt route is different - namely, in the wake of the commutation of the Libby sentence, why should we not expect the use of the pardon power to relieve Miers and any other White House personnel from criminal liability? Isn’t this pointless for that reason?
Might it therefore not be preferable for House Democrats simply to refuse to continue funding the positions of confidential White House advisers? If the executive wants to play at unilateralism, why not play the easist Congressional pressure card? (And, lest you think these folks would work for free, the Antideficiency Act forbids it.) Might some such move not be more effective at nudging the White House towards a serious deal -- a deal that, at a minimum, involves a transcript?
The founding generation was well acquainted with criminal prosecution, and did not regard the function as “inherently executive.” The relevent history appears in Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev. 596, 605-607 (1989). It is historically clear that statutory limits on prosecutorial discretion, if otherwise permissible, cannot be regarded as a limit on something the founders intended to be treated as inherently, and inviolably, executive. The provision of the Constitution that requires the President to take care that the laws be faithfully executed is actually a ban on the executive suspension of statutes, handed down from the English Bill of Rights. If anything, it would support, in this context, a limit on the executive’s prerogative not to prosecute itself on the basis of self-adjudicated privileges. (In order to keep this post short, I am omitting a normative defense of giving the Constitution an originalist reading in this context.)
Let me follow up on Marty's last point. I agree with him that President Bush will be loath to appoint a special prosecutor unless it becomes completely politically untenable for him not to. Given that he is nearing the end of his second term with 25 percent approval ratings, how much does he have to lose by stiffing Congress, really?
So suppose Marty is right and assume that Congress will turn to a civil contempt proceeding in the courts. This proceeding will likely take forever, or, what is the political equivalent, until January 2009. The President has run out the clock. Has the President won? Is this the end of the matter? It might be or it might not.
The next President-- especially if he or she is a Democrat, will have no particular reason or justification for refusing to let *former* Justice Department officials-- who are now private citizens-- testify about what they did for the previous Administration. Certainly Karl Rove and Harriet Miers cannot refuse to testify out of loyalty to the next President, whether Democrat or Republican. And the next President will not want to waste political capital defending Bush's cronies.
So the real question is whether the Congress will want to waste time and political capital in its opening weeks on dredging up two year old scandals, which, I hasten to add, might seem rather vindictive. It would be more appropriate (and more likely) for the next President and Congress to promise a "clean" Justice Department-- through various symbolic gestures-- than to keep the US Attorneys scandal going in January 2009. Indeed, Congress would only keep this investigation going if it thinks that the nature of the underlying conduct is very, very serious. For example, if there was evidence that there was a policy of political prosecutions against Democrats, or a deliberate attempt to use the Justice Department to prosecute frivolous cases in order to swing elections in close races. My bet is that Congress will not want to waste the political capital to keep the investigations going unless clear evidence of wrongdoing pops up, and my guess is that this is what President Bush is betting as well.
To be sure, if evidence emerges pointing to serious criminal wrongdoing in the White House, all bets are off. The next President and Congress might then go after members of the former Administration in order to show that they were committed to clean politics and reform. But always remember that if things get too dicey, President Bush has an ace up his sleeve-- the pardon power-- and he is not afraid to use it.
I want to emphasize, in this context, that there are plenty of things this Administration has done that I'd prefer Congress investigate-- and continue investigating in the next Congress. They include (1) the current Administration's policies regarding domestic surveillance, (2) its use and misuse of pre-war intelligence, (3) its prisoner detention and interrogation methods, and (4) war profiteering, and wasted expenditures due to cronyism, incompetence, and the unwise use of no-bid contracts. The first three of these speak to issues of grave constitutional and legal importance; the last concerns the sort of oversight necessary whenever our nation goes to war. (See, e.g, the Truman Commission during WWII.). The fact that Congress has chosen the firing of Justice Department officials as the most important thing to pick a fight about speaks volumes about how political agendas are set in our current political climate.
I agree with Marty that, if a doctrinal test is to answer the question of when a claim of executive privilege should yield to some other interest, a balancing test is about the best we can do. But is it clear that we need a doctrinal test at all? I can think of at least three cleaner alternatives: (1) an absolute privilege for some category of Presidential advisers; (2) no privilege at all in the face of a Congressional or judicial subpoena; or (3) treating the holding in Nixon as a matter of federal common law that can be overridden by statute.
Option (1) is ruled out by Nixon itself but one could argue that this is a mistake. An absolute privilege for White House staff would not give the game over to the President because, as Peter notes, Congress retains the power to de-fund the relevant offices should the President abuse the privilege. The principal difficulty here is that the de-funding option is a very blunt instrument, especially where the alleged abuse concerns people who no longer occupy the relevant offices.
Option (2) will strike many people--myself included--as unwise. Anyone who has ever worked on matters of any sensitivity knows that confidentiality is needed for frank discussions. But eliminating executive privilege would not eliminate the confidentiality of White House conversations. Neither Congress nor the courts would be likely to seek sensitive information at the drop of a hat, and if private parties to litigation do so, there remain the protective measures that a court can take in any case. Cf. Justice Breyer's concurrence in the Paula Jones case.
Were the issue arising as a matter of first impression, my preference would be option (3), treating privilege as a matter of federal common law. The fact that the privilege protects a constitutional value---separation of powers---does not mean that the resulting doctrine itself has to be considered a matter of constitutional law changeable only by constitutional amendment. In other contexts (such as the qualified immunity from suit enjoyed by executive officers) federal common law implements constitutional values but is, nonetheless, common law overridable by statute. Surely it must be at least a tiny bit embarrassing to the proponents of a strong, constitutionally required, executive privilege that the text of the Constitution says nothing about executive privilege.
Of course, treating the privilege as a matter of common law would not solve the current problem, because any effort by Congress to address the matter by statute would face a veto from President Bush and even if a Democratic President were to sign an executive privilege reform bill, the Roberts Court would likely strike it down on the ground that the privilege is a matter of constitutional law rather than common law. (Cf. Dickerson). But that doesn't mean this approach is wrong, just futile.
Marty is right, alas, that Morrison is still the law, and he may also be right, alas again, that it would support a statute authorizing an "independent counsel" to prosecute a confidential advisor to the President for defying a congressional subpoena in obedience to the President's assertion of executive privilege. But surely any self-respecting President would stop such a prosecution in its tracks by pardoning the advisor, as Peter's observation suggests. With respect to defunding presidential advisors, I doubt such a proposal would be able to attract filibuster-proof support, let alone veto-proof support, so using such a threat to leverage a better deal (from Congress' standpoint) seems doubtful. By the way, the President's proposal has struck me as a pretty reasonable compromise, except for the no-transcript provision -- were I asked to testify, I would insist that a transcript be made of anything I said to a congressional committee on this (or any other) controversial subject.
Just a quick response on the President's proposal: The no-transcript requirement has received the most attention and Chuck is right that it is a non-starter. The most important and (to my mind) least defensible condition of that proposal, however, is the scope limitation -- namely, that the documents and testimony the White House has offered to provide would not cover communications made within the White House, i.e., among the presidential advisors who (presumably) made the relevant decisions. Congress cannot possibly determine whether the removals were made for improper reasons unless they find out what Rove and Miers, et al., advised the President, what they decided amongst themselves, and why they did so. But that's precisely the subject matter that the Fielding proposal would take off the table.
I have now had the opportunity to read the variety of posts about the unfortunate, if inevitable, confrontation between the President and the Congress. The bad relations between the branches necessarily puts stress on our Constitutional structure. The Constitution itself does a tolerable job in its implementation of the principle of separation of powers—or at least it did before the rise of the administrative state. And it is quite explicit about the various checks that each branch has over the other two. The Achilles heel in the document, here as everywhere else, are with the question of the implied privileges and immunities that are needed to make the Constitution work, and on this I fear that we are likely to see a standoff between the branches that cannot be resolved by the mysterious art of constitutional interpretation.
In thinking about this problem, my thoughts wandered back to Federalist 64, in which Jay asks the question about the distribution of the power to make treaties between the President who negotiates them and the Senate whose advice and consent is needed before they become part of the law of the land.
The specific point that Jay addressed was whether President had to divulge information from confidential sources as a precondition to having the Senate approve the treaty. His position was, no, that is not required for confidences could hardly be kept by a body as large as the (then) Congress.
So the obvious question, is what next? Answer: a standoff. If the President does not disclose the Senate, or at least a blocking coalition could refuse to ratify the treaty. But there is no way it could compel the information.So what happens here. The President does not need the Senate as he does in the Treaty context, so that his ability to hang tough is much increased. And the response. Well all alternatives are bad. The effort to cut off appropriations comes far too late in the process, and surely represents major overkill. The issuance of contempt citations is dramatic, but unenforceable. The simple truth here is that the executive privilege wins out against the Congress, even if it loses consistently in the court, when, and if, criminal prosecution begins. But the political cost to the President and his advisors is surely high. The real question is how long the President will stand behind our most inept Attorney- General, to which wiser political hands than I must offer an answer.
Chuck, The Dems do not need filibuster-proof support to defund selected positions in the Executive Office of the President. They simply have to refuse to pass out of the House any appropriations bill that contains such funding. Whether this is too blunt an instrument, I am not sure; it's a far more surgical strike threat than the 1995 government shutdown that Gingrich produced.
Jack's list of things he thinks more important to investigate than the U.S. attorney firings does bring to mind the Nixon articles of impeachment. As serious as were the charges that brought him down, it is certainly arguable (and many others have argued) that the Cambodia bombing article, which failed to attract majority support on the House Judiciary Committee, actually stated his worst high crime. Politically, it seems easier to rally support around narratives of corruption than narratives of usurpation or oppression.
Richard's post is a healthy reminder that our constitutional mechanics do not work without some set of informal understandings and practices that avoid brinksmanship. Norms of cooperation have been in increasingly short supply in recent decades.