And this is why we have the Speech or Debate Clause

Americans have had to endure many insults to the Constitution in recent months and years.  This week brought yet another, in the aftermath of the impeachment inquiry that recently began in the House: that is, the idea of the executive branch investigating members of Congress, hauling them into court, and criminally punishing them for things they say in legislative debate.  The Constitution explicitly forbids this, and for very good reason.

Yesterday, in front of the world, the President made the following public claim about Representative Adam Schiff, chair of the House Permanent Select Committee on Intelligence (HPSCI): “they should look at him for treason.”  When pressed on this bizarre claim at a subsequent press conference, the President did not disavow his earlier treason language, and stated that this was because Schiff “lied” when describing the President’s controversial July 25 phone call with Ukrainian President Volodymyr Zelenskyy.  At a HPSCI hearing following release of a memo that summarized the contents of the call, Schiff attempted to paraphrase the relevant portions by stating what he believed was the real meaning behind the President’s conversation with Zelenskyy.

At no point did Schiff represent that this interpretation of the call was a literal description of it; indeed, Schiff stated explicitly that he was interpreting the “essence” of the President’s remarks, which were “in not so many words” (video of Schiff’s opening statement is available here, from PBS). Moreover, everyone already had access to the call memo at the time of Schiff’s summary interpretation, so it should have been obvious to anyone paying attention that he was not literally quoting the President.  Nonetheless, the President said it should be “illegal” and “treasonous,” and earlier in the week, had Tweeted about Schiff’s speech, ending the Tweet: “Arrest for Treason?”

As is his habit, the President has completely and unapologetically misunderstood even the very basics of treason law.  Every so often, I am compelled to post about this phenomenon (see, e.g., here and here).  In fact, I have a new article forthcoming in the Hastings Constitutional Law Quarterly that addresses the problem of modern treason rhetoric (I don’t focus my criticism solely on President Trump — others are also offenders — but he plays a starring role nonetheles, because as President he oversees federal law enforcement, making his rhetoric uniquely problematic). However clumsy or inartful Schiff’s tactic may have been, Schiff did not levy war against the United States, nor did he “adhere” to any “enemy” of the United States by giving them “aid and comfort.”  That ends the treason inquiry.

The Framers crafted a very narrow definition of treason and explicitly rejected things like compassing and lese majeste.  Although President Trump’s behavior often seems to suggest that he views himself as the embodiment of the Nation, such that disloyalty to him is by definition disloyalty to the Nation, American treason law has never taken this view of the presidential office.  And I am confident that no one in the Justice Department — not even the President’s most obsequious sycophants — would pursue this.

But set aside, for the moment, the President’s ignorance of treason law. The President was actually suggesting criminal investigation and potential prosecution of a member of Congress for speech that occurred in the course of legislative debate over a matter unquestionably within the House’s jurisdiction.  But the Speech or Debate Clause of Article I, section 6 says that “for any Speech or Debate in either house, [Senators and Representatives] shall not be questioned in any other place.”

The Clause offers multiple protections for Members of Congress, and one of them is that Members cannot be sued or criminally prosecuted for actions that form “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings,” as well as acts “with respect to the consideration and passage or rejection of proposed legislation or with respect to matters which the Constitution places within the jurisdiction of either House.”  Gravel v. United States, 408 U.S. 606, 625 (1972).  Although the Supreme Court has placed some limits on the scope of the Clause, see, e.g., Hutchinson v. Proxmire, 443 U.S. 111 (1979), there is no question that Schiff’s statements in the hearing were plainly within the Clause’s protections.  So while the Clause does not cover everything that a Member of Congress does, where it applies its protection is absolute.

The Clause has its origins in English practice, to prevent the monarch from using threats of official punishment as a way to intimidate Parliament and coerce compliance with royal preferences or demands. Josh Chafetz’s excellent Congress’s Constitution ably describes the history of the Clause and explains why it is significant: if members of Congress could be subjected to lawsuits or criminal prosecution for their legislative acts, their ability to have meaningful debate about important matters would be “seriously hampered” and their ability to confront the executive and judicial branches would be compromised.  Imagine, for example, if President Trump could facilitate criminal prosecution of, or sue in tort, a Senator or Representative who did not accede to his wishes or who publicly criticized him.  Real debate would be stifled, and the President would have effective control over the legislature.  The Speech or Debate Clause safeguards the Congress against such intimidation and coercion, and thereby helps to ensure that Congress can perform its constitutional functions, including investigation and oversight of the other branches, without fearing official retribution from overzealous prosecutors or unfriendly judges.

What the President suggested this week — in addition to demonstrating a profound and dangerous misunderstanding of treason — is emphatically what the Constitution’s Framers sought to forbid.  We should add to the President’s reading list not only the Treason Clause of Article III, but Article I, section 6, as well.  Or, perhaps, the impeachment inquiry could also consider this new presidential offense against the Constitution.

 

The McGahn subpoena, executive privilege, and congressional needs

In my last post, I suggested that the publication in the Mueller Report of former White House Counsel Don McGahn’s statements to investigators probably waives the presidential communications privilege as to those statements.  It might not, however, waive the privilege as to matters unreported or not revealed in the investigation.  This raises an interesting question: if Congress could only ask McGahn about information it already has (in the form of the Mueller Report), why call him at all?  Wouldn’t his testimony be simply cumulative of the Report?

First, the President’s tweets come back to haunt him once again.  If he says McGahn is lying, or that the Report falsely states the facts about his communications with McGahn, then Congress is entitled to explore the discrepancy between the President’s assertions and the evidence described in the Report.  Remember also that Attorney General Barr’s determination that there was no obstruction crime only binds the Justice Department, not Congress.  The House has independent constitutional authority to determine whether high crimes and misdemeanors were committed, and could very well adopt the theory of obstruction that the Mueller Report sets forth (but that Barr rejected).  Compare, for example, Josh Blackman’s skeptical analyses at Lawfare (here, here, here) with this letter from former federal prosecutors, arguing that the President would have been charged with obstruction if he were not insulated by internal DOJ policy.  Given the already simmering debate about the underlying criminal law, then, any dispute about underlying facts would justify even more congressional investigation, not less.

Second, even if McGahn ultimately testifies only as to what is contained in the Mueller Report, the House can argue that there is value in hearing this story told live, before a worldwide television audience, and subject to questioning.  In that context, his credibility can be evaluated and the public can determine whether he is telling a believable story about the President’s conduct.

Finally, and more fundamentally, the biggest issue is whether the House can compel testimony that is otherwise covered by the executive privilege (assuming it, or at least some of it, is).  The answer is yes, though it would likely result in a major fight, and one that the House could very easily lose. (Jonathan Shaub has this excellent analysis over at Lawfare, covering important ground on the McGahn matter).

Much has been written on the subject of congressional demands for information versus presidential assertions of privilege, so I will refrain from covering the case law and literature as a whole.  It suffices to say that the executive privilege generally — and the presidential communications privilege, in particular — is qualified, not absolute.  Just as the Supreme Court held in Nixon that it must yield to the demands of justice in a criminal case, so, too, have courts recognized that the privilege is qualified as against congressional process.  See House Committee on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008).  If Congress can show both substantial need and that the information it seeks is otherwise unavailable, then it could potentially overcome the privilege.

The question then is how Congress could enforce the subpoena.  The DOJ has taken the position that an executive branch official cannot be prosecuted for criminal contempt where he or she lawfully relies on a presidential claim of executive privilege.  See 8 Op. OLC at 140.  (The same DOJ document argued that Congress’s inherent contempt power also does not extend to such situations, see id. at n.42, but it is hard to see how Congress is bound by this determination, and it is not clear that the memo is even correct about this).  Barring unlikely use of inherent contempt in this situation, the practical result would be a protracted civil enforcement proceeding — which the OLC memo specifically acknowledges to be a viable method of vindicating congressional interests.  Id. at 137.

As to McGahn (and other potential witnesses), in my view, the House has an even greater chance of prevailing in a subpoena fight regarding executive privilege if the information it seeks is necessary to an impeachment inquiry.  This is not essential, and the House could theoretically prevail without it.  For example, thanks to the President’s tweets denying the evidence regarding McGahn, Congress could argue a need to resolve the factual question, and that evidence is otherwise unavailable except through direct testimony from McGahn.  But beyond this, absent some specific legislation for which McGahn’s testimony would be critical, impeachment would dramatically sharpen the House’s showing of need, and perhaps earn greater deference from the judiciary in a civil enforcement proceeding.

Of course, some House Democrats are reluctant to start that process formally (though for reasons that seem to have more to do with electoral politics and their fears about 2020 than the legal and constitutional merits of an impeachment inquiry).  But their hand would likely be strengthened in any ensuing litigation if their inquiries are part of the impeachment process.  And based on the Mueller Report, McGahn would almost surely be critical to any impeachment inquiry.

The McGahn subpoena and waiver of executive privilege

At yesterday’s hearing before the Senate Judiciary Committee, Attorney General Bill Barr was asked about whether former White House Counsel Don McGahn would be permitted to testify before Congress.  McGahn is mentioned prominently and repeatedly throughout the Mueller Report, most notably with respect to the Special Counsel’s analysis of whether the President criminally obstructed justice by allegedly ordering McGahn to see to the firing of the Special Counsel and then by allegedly telling McGahn to fabricate a record about whether the President had done so.  See Mueller Report, Vol. II, at 81, 85-90, 113-20.  McGahn spoke voluntarily to Special Counsel investigators, and the White House never asserted executive privilege as to his testimony.

Now, McGahn is the lucky recipient of a House Judiciary Committee subpoena.  Did the President waive the privilege, such that it could not be invoked to forbid McGahn’s testimony before House Judiciary?

General Barr was emphatic yesterday in stating that the privilege had not been waived (though this is a separate issue from whether McGahn would be permitted to testify in any event).  We also now know that White House Counsel Emmett Flood has argued that there was no waiver.  The conventional wisdom here, however, is that the President waived the privilege because the information was revealed to a third-party, without objection from the President.  For this reason, waiver may well be the right outcome.  But the issue may be more complicated than it first seems.

Let’s assume that the presidential communications privilege applies here.  Of course, there could be some question about that.  For example, after the Report was released, the President issued a tweet in which he questioned the accuracy of McGahn’s reported statements: “I never told [] McGahn to fire [] Mueller,” he said, claiming this was more “fake news.”  So what, exactly, is the material for which confidentiality is sought?  That’s important, because the privilege only extends to matters that are “quintessential and non-delegable” presidential powers.  See In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997).  Although appointment and removal usually fit that category — e.g., removing a cabinet officer — the Special Counsel is removable only by the Attorney General.  See 28 C.F.R. 600.7(d).  This raises some question as to whether the discussion about firing Mueller relates to a “quintessential and non-delegable” presidential power that cannot be exercised by another officer.

But, assuming arguendo that the communications are otherwise privileged, two questions arise: 1) was the presidential communications privilege waived?  And 2) even if not, could McGahn still be compelled to testify?  I’ll try a quick analysis of the first question here, with reference to just a couple of relevant cases.

In In re Sealed Case, the court of appeals considered whether the Clinton White House had waived the privilege with respect to documents created in the investigation of former Secretary of Agriculture Mike Espy.  The White House Counsel’s Office conducted its own investigation of Espy and issued a report that was publicly released.  A grand jury then issued a subpoena for the documents related to the report, and the White House asserted privilege.  The Office of Independent Counsel argued waiver and moved to compel production to the grand jury.  The D.C. Circuit agreed that waiver applied to “specific documents that [the White House] voluntarily revealed to third parties outside the White House.”  Id. at 237.  This included the report and a document sent to Espy’s lawyer.

But consider also the district court’s opinion in Citizens for Responsibility and Ethics in Washington (CREW) v. U.S. Dep’t of Justice, 658 F. Supp.2d 217 (D.D.C. 2009).  There, CREW brought a FOIA action to obtain records of Vice President Cheney’s interviews with the FBI, as part of the Special Counsel investigation into exposure of Valerie Plame’s identity as a covert CIA operative.  The House Oversight & Government Reform Committee also sought the records via subpoena, so the CREW request was co-extensive with the congressional request.  But President Bush asserted executive privilege, and the succeeding Obama DOJ fought disclosure.

CREW argued that the White House waived the privilege once Cheney voluntarily disclosed the information to the Special Counsel investigators — a third-party outside of the White House.  But, after discussing Sealed Case, Judge Sullivan concluded that not every disclosure to a third-party amounts to waiver.  In this case, although Vice President Cheney had revealed the information to a third-party outside the White House, that party was a federal law enforcement officer, who works in the executive branch (though is also to some extent independent) and exercises executive functions.  Therefore, Judge Sullivan determined, Cheney’s voluntary disclosure was a protected inter-agency disclosure and the privilege had not been waived, even though the White House never formally invoked the privilege.

Because McGahn’s disclosures were made to investigators working within the executive branch, it is tempting to conclude that, pursuant to CREW, there is no waiver.  Moreover, as in both CREW and Sealed Case, the White House could argue here that although it never formally invoked the privilege, both courts held that no formal invocation is necessary to sustain the privilege later.  And although the claim in CREW arose under FOIA, which contains an exemption for inter-agency documents, the court’s discussion of the presidential communications privilege does not appear to be unique to the FOIA context.

CREW, though, should not be overstated. Perhaps the most important distinction between Cheney’s disclosures and the McGahn disclosures is that McGahn’s statements were released to the entire world in the Mueller Report.  By contrast, Special Counsel Fitzgerald never issued a similar public report (and was emphatic about not doing so, see here).  Therefore, McGahn’s statements are more like those that would have been contained in the Clinton White House’s Espy Report, where the privilege was considered waived.  That is, the disclosures were not merely to another executive branch official, but — ultimately — to the public. That proverbial cat, then, is out of the bag.  See also Center for Effective Government v. U.S. Dep’t of State, 7 F. Supp.3d 16 (D.D.C. 2013) (distinguishing CREW and finding privilege did not extend to presidential directive that was widely distributed throughout executive branch).

Moreover, the waiver analysis should not turn on the fact that the request is coming from Congress rather than a grand jury.  Flood’s letter to Barr makes this argument, that the privilege has special force in the context of congressional requests because of the separation of powers.  He also says that there is a difference between wanting aides to voluntarily cooperate with a criminal investigation, on the one hand, and giving information to Congress, on the other.  But nothing in CREW or other cases suggests that the inference of waiver is stronger in one instance as compared to the other.  And, though Flood’s position is worth serious attention, the separation of powers argument could actually cut the other way: Congress has constitutional powers that require it to receive certain information, even when (sometimes, especially when) the information comes from a coordinate branch.  See this post.  A mere assertion of the privilege does not categorically mean the President prevails.

That said, if Congress seeks information from McGahn that is not covered by the Mueller Report, then there is a legitimate argument that the privilege as to such information — assuming it otherwise meets the criteria for invoking the presidential communications privilege — is not waived merely because it is waived as to other statements (those that were disclosed in the Report).  And that would arguably be true even if the unreported information was disclosed to third-party law enforcement agents during the Mueller investigation.

If this is the right analysis, and Congress can only have access to those statements by McGahn that are already in the public record via the Mueller Report, why bother subpoenaing him at all?  I’ll address that in the next post.

“The necessity of auxiliary precautions”

Madison reminds us in Federalist #47 that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”  Later, in Federalist #51, he explains the safeguards against a “gradual concentration” of power into one department: giving each department the “constitutional means and personal motives” to resist encroachments.  There is considerable, and legitimate, debate about the wisdom, legality, and efficacy of the current House investigations into the President’s conduct and whether he has abused his office and powers.  But perhaps the chief virtue of a robust investigative posture is this: to ensure that Congress does not yield permanently to a presidential leviathan and descend further into constitutional obscurity.

The President’s responses to the Mueller Report and to the House’s effort to learn more about his conduct, and those of his congressional defenders, give sufficient reason for concern about both the aggrandizement of executive power and the diminution of Congress.  A President in our system usually cannot accumulate power unilaterally — it requires the complicity of those serving in another branch of government.  Consider: the insistence of presidential defenders, including those in the legislative branch, that he has not engaged in any conduct worthy of further investigation; the President’s contumacious opposition to congressional investigations and compulsory process, and the obsequious adherence to the President’s interests — rather than institutional interests of the Congress — by congressional Republicans; and his suggestion (see here) that he would take any impeachment case “first” to the Supreme Court (setting aside, apparently, any concerns about the Court’s Article III jurisdiction, but clearly assuming that the judiciary will defend him and not Congress).  The concern that this may be a President grasping for omnipotence is especially troubling when one considers that, according to this Politico report, some of his supporters view him as literally being sent by god.  Consequently, all members of Congress, of both parties, should fear the grave consequences of allowing the President to steamroll the legislative branch time and again — all while presidential loyalists in the legislature either stand idly by or, worse still, root for the steamroller.

Consider also that the current House investigations exist alongside two other notable factors: the Justice Department’s position that a sitting President cannot be indicted, and a presidential election next year.  If a President cannot be indicted and prosecuted while in office, perhaps this increases the pressure on Congress to investigate and, potentially, impeach.  Yet one argument I hear repeatedly is that ordinary voters do not talk, or really care, about the Mueller investigation, Russian election interference, or possible presidential criminality.  They care, it is said, about their financial condition, taxes, health care, and drug prices.  Therefore, the argument goes, rather than wasting time and resources on investigations that make Congress look vindictive, we should simply allow the voters to decide whether the President’s conduct and performance in office justify re-election.

For multiple reasons, there is fault in that formula.

First, Congress does — and should — spend considerable time and resources on a range of matters that average voters are not discussing night after night at the kitchen table.  It is unlikely that most voters are grappling with who should serve on the Federal Reserve Board or sit on a United States District Court in some distant state, or which research on deadly diseases gets the most funding, or how much should be spent on a particular military aircraft,  or what the punishment should be for some new federal crime.  But these are matters of significance to legislators.  Congress should not forego its consideration of such matters merely because voters do not ask about those matters at town halls or campaign stops.  I suspect most voters understand this, and appreciate the import of those matters even if they do not drive dinner-table conversation.

Members of Congress take an oath to “support and defend” the Constitution.  Determining whether the President has abused his office, violated his oath, or failed to take care that the laws are faithfully executed might not make the kitchen table or campaign conversation.  But presidential accountability is essential to ensuring a safe government and a meaningful separation of powers.  I suspect most voters, deep down, do care about the integrity of their constitutional government and the American rule of law.

Second, information gathering is key to Congress’s constitutional functions.  If the President or others in the administration can persist in preventing Congress from acquiring the information it seeks, then Congress cannot effectively craft remedial legislation or hold public actors accountable.  The President and others may not only escape responsibility, but in so doing, they can also inhibit the functioning, and diminish the role, of the Congress in the constitutional system — to the ultimate aggrandizement of the executive.  This is yet another reason why congressional impotence can have the effect of producing that “gradual concentration” in a single branch, of which Madison warned.

This is not to say that President Trump is somehow unique in resisting congressional investigative authority.  Presidents of all parties battle with Congress, often over access to information.  Conflict between the political branches is ordinarily a good thing, where each branch is asserting its own constitutional prerogatives.  And usually, the conflict is resolved through the processes of negotiation and accommodation.  President Trump, however, appears to be taking an absolute position against the House’s investigative power — and does not appear to be doing so based on any legitimate Article II claim.  The current episode therefore potentially poses a far greater threat to constitutional equilibrium than many of the typical access-to-information disputes of the past.

Third, the President has a constitutional obligation to preserve, protect, and defend the Constitution, as well as a mandate pursuant to the Take Care Clause.  In my view, unless the President is acting to protect a constitutional right or his own constitutional powers under Article II, he must respect and safeguard the Congress, including Congress’s information-gathering authority in aid of its legislative powers.  If he fails to do so — again, without reliance on a conflicting constitutional power or right — then his failure amounts to an abuse of his office that is subject to the institutional check  of impeachment.  That the President does not like the subject matter of the investigation, or believes that the investigation is motivated by partisanship or electoral politics, or that it will reveal damaging information, is not a sufficient ground for undermining legitimate exercises of legislative authority.

Of course, Congress is capable of overreaching, of engaging in oversight and investigation that is hyperpartisan, ill-conceived, or unwarranted.  A gradual concentration of power in Congress is no better than a gradual concentration of power in the executive.  Congressional investigation is almost always better for the constitutional system, and the place of Congress in it, when it is bipartisan.  But that is unlikely at the moment.  Nonetheless, the current investigative efforts by the House are not petty exercises.  They are central to the preservation of Congress’s place in the constitutional separation of powers, and to ensuring that the presidential leviathan does not swallow all rival interests.

Though it may seem appealing to rely on the next election as the manner by which the President is judged, supplanting congressional power with a presidential election will do nothing to guard against presidential accumulations of power.  And if the President wins, the problem will only worsen, Congress having once again ceded its role when it had the chance to do otherwise.  As Madison reminds us in Number 51: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

 

 

 

Why Congress is entitled to all of the Mueller Report (maybe, if it really wants it)

Early 2019 brought two historic developments in American law and politics: the Democratic Party’s takeover of control in the House of Representatives, and, now, the conclusion of Special Counsel Robert Mueller’s investigation into Russian election interference and related matters.  Today, these two developments are overlapping in ways that are critical to our understanding of American constitutional government and the separation of powers.

The Attorney General recently identified Mueller’s “principal conclusions” in this letter to the House and Senate Judiciary Committees.  He said that Mueller could not establish a criminal conspiracy or coordination between the Trump Campaign and the Russian Government, but that Mueller also could not exonerate the President on the question of whether he obstructed justice (Attorney General Barr then took the liberty of concluding that there was insufficient evidence of obstruction).  Notably, because of the possible inclusion of grand jury information in the Report, Attorney General Barr’s letter also suggested the potential need to redact some of the Report before its public release.  Given the change in House control, however, it was inevitable that the Democratic chairs of the relevant House committees, including House Judiciary, would — as they now have (see here) — seek the full and unredacted Report.

They should get it.  Probably.

It is true that the Federal Rules of Criminal Procedure, as enforced through federal criminal law, provide for the secrecy of grand jury information (see Rule 6 here).  It is also true that federal criminal law protects classified information from unauthorized disclosures.  There are good reasons for both of those prohibitions and they should generally be strictly observed.  There are, of course, exceptions to those disclosure prohibitions.  But more importantly, those prohibitions are the subject simply of rules and statutes — non-constitutional justifications for nondisclosure of information.  When Congress seeks information through its investigative authority, however, it is exercising a constitutional power.

As long as Congress is seeking the information in aid of its legislative powers, it (though not the general public, necessarily) should typically have access to whatever information it deems appropriate for the exercise of those powers.  That standard would not be difficult to satisfy in this instance.  The information in the Mueller Report — including information otherwise subject to redaction — could be useful to the Congress in either crafting legislation (such as, for example, a new election security law, or new anti-corruption laws for federal officials) or in carrying out its constitutional power to impeach for treason, bribery, or other high crimes and misdemeanors.

Indeed, notwithstanding Attorney General Barr’s conclusion on obstruction, as well as the political difficulty (if not impossibility) of President Trump’s conviction and removal by the Senate, the House is not bound by the Attorney General’s determination that the evidence of obstruction is insufficient.  That conclusion has dispositive force in the Executive Branch, to the extent that it takes a criminal prosecution off the table.  But Congress could independently examine and weigh the evidence, and reach a different conclusion.  The House, of course, cannot prosecute the President for a crime or order his prosecution by the Justice Department, but it can conclude that there is evidence of a high crime and misdemeanor sufficient to warrant impeachment proceedings.

Consequently, the heirarchy of authority here suggests that Congress’s constitutional power to investigate in aid of Article I supersedes a rule or statute on nondisclosure, even a sensible one.  This would justify both a subpoena as well as a request for a court order commanding disclosure (again, to Congress, though not necessarily to the public).

The best rejoinder to this from the Executive would rely not merely on rule or statute, but rather on a claim that nondisclosure of grand jury or classified material would be necessary to the fulfillment of the President’s constitutional powers.  If that is the case, then we have a bona fide constitutional showdown, with the President’s Article II authority being used to counter Congress’s Article I authority.  These types of showdowns have happened with some frequency in congressional history, where Presidents have asserted executive privilege to resist disclosures to Congress.  Though those impasses are typically resolved with mutual accommodations, they have produced a few temporary constitutional confrontations of note.  The competing constitutional claims are not easy to resolve.

Here, however, we potentially have a different kind of constitutional confrontation.  The President has said publicly, on multiple occasions (see, e.g., here and here), that he does not object to public disclosure of the Report.  Of course, he has also said that the scope of disclosure is “up to the Attorney General,” but the Attorney General cannot unilaterally claim executive privilege.  Barring such an assertion from the President, then, the Attorney General would have to argue that disclosure of otherwise protected material would, for example, interfere with the President’s duty to take care that the laws be faithfully executed.  That argument may have particular force where the material at issue relates to ongoing investigations or prosecutions (investigations or prosecutions with which Congress may not want to interfere anyway), or internal deliberations at Justice.  Given General Barr’s generous view of presidential powers, it is not difficult to imagine him making such a case with respect to some material.  Indeed, the Justice Department is generally loathe to disclose information, even to Congress, about internal prosecutorial decision-making, so as to protect its Article II prerogatives.  It is therefore notable that General Barr has expressed willingness to disclose even significant portions of the Report.

Of course, Congress may not really want an entirely unredacted Report (for reasons I have identified, and which Michael Stern identifies here).  Also, much of the information in the Report may not even be subject to the grand jury secrecy rules (again, see Stern’s post here).  So this controversy may be overstated.  And if members of Congress do receive access to sensitive information, they should treat that information with great care and discretion, to protect the integrity of the grand jury system as well as national security (though it is also worth noting that if a member of Congress discloses information in the Report in the course of performing a legitimate legislative act, such as during a committee hearing, the Speech or Debate Clause protects the member against criminal prosecution, see, e.g., Gravel v. United States, 408 U.S. 606 (1972)).

Still, unless it encounters a credible Article II-based constitutional argument for nondisclosure, Congress should — if it really wants it — be entitled to the full Report as a consequence of its investigative and impeachment authority.

On a related note, I am grateful to the Wayne Law Review for publishing my recent piece, Congressional Law Enforcement. The article tackles some of the investigative tools that the new House majority possesses, and some of the legal issues that attend the use of those tools.  Although I wrote and published the paper before the midterm elections, the analysis has special force now that one-party rule has ended and there is a more robust exercise of congressional oversight and investigative authority in the House.  I am also grateful to LegBranch and the R Street Institute for inviting me to publish this blog post last Fall that summarizes my work in the article.

 

RIP, John McCain

Captain John McCain was a bona fide American hero.  Country First was not simply a campaign slogan to him.  It was, rather, a principle for which he constantly strove in his extraordinary life.  And it became a principle that, over time, too often separated him from many others in power.

One of my greatest fears is that current and future generations of political leaders in America will choose the wrong models on which to pursue public service.  They will, I fear, too often take their cues from ideologues, blind and unthinking partisans, charlatans, panderers, and seducers.  I hope I am wrong.  I hope, rather, that their model for public life will be one who is faithful to the Constitution; who is smart and independent, courageous and strong, good-humored and witty, but sensitive to the seriousness of political life and public service; who detests pettiness and tribalism and who subordinates partisanship to the national interest; who champions sound institutions and a robust rule of law; and who comprehends the fragility of democratic rule.

John McCain was such a model.  May his legacy live forever in the hearts and minds of the American people, whom he honorably served and for whom he fought and sacrificed.  Country First, indeed.

Requiescat in pace.

 

Federal jurisdiction and criminal justice in the Sooner State

The Supreme Court granted certiorari this week in Royal v. Murphy, a case at the intersection of federal jurisdiction, American Indian Law, and the death penalty.  It is also one that could affect the criminal justice system of — and a lot of people in — one state. It boils down to the following question: did Congress ever disestablish the boundaries of the Muscogee (Creek) Nation Reservation in eastern Oklahoma?

Patrick Dwayne Murphy was convicted of capital murder and sentenced to death in Oklahoma state court for killing George Jacobs on August 28, 1999.  As set forth in the opinion of the Tenth Circuit Court of Appeals, Jacobs was riding in a car with Mark Sumka in eastern Oklahoma after a day of drinking.  Murphy was driving with two other men in a car on the same road.  Murphy ran Sumka off of the road and confronted him, while Murphy’s companions began beating Jacobs; Murphy then joined the attack.  As it turns out, the court noted, Jacobs had a prior relationship with Patsy Jacobs, with whom Murphy lived.  And Murphy had stated to Patsy that he was “going to get” George.

As the appeals court explained, the evidence showed that George Jacobs was found barely alive in a rural roadside ditch with a bloody face and slashes across his chest and stomach.   His genitals had been severed and his throat had been slit.  He soon bled to death.  According to the State and the state court’s summary of the evidence (see cert petition with appendix here), Murphy and his accomplices even boasted about severing Jacobs’s genitals and placing them in his mouth, and that they “had tried to stomp on [Jacobs’s] head like a pancake.”

After the attack, the evidence summary showed, Murphy instructed everyone involved to remove their clothes so that he could burn them.  Murphy and his cohorts then went to the home of one of his accomplices, where George Jacobs’s son — George Jr. — was staying.  Apparently, they planned to kill the son, too.  But the accomplice’s mother intervened and stopped them.  Murphy later confessed his actions to Patsy, the evidence showed.  In addition, Sumka saw Murphy throw his folding knife into the woods, and investigators later recovered the knife.

Murphy is a member of the Creek Nation, as was George Jacobs.

Federal criminal law (the Major Crimes Act) provides that only the United States has jurisdiction over certain crimes committed by an Indian in Indian country.  18 U.S.C. 1153.  So, as here, a murder committed by an Indian in Indian country can only be prosecuted in federal court, not state court.  On post-conviction review, the Tenth Circuit held that, applying Supreme Court precedent in Solem v. Bartlett, Congress had never disestablished the Creek Reservation.  Consequently, the court held, this crime occurred in Indian country, over which Oklahoma lacks jurisdiction.

The explanation of Native American history in Oklahoma is extensive. For pertinent (and very interesting) details, see the Tenth Circuit’s opinion and the State’s cert petition.  The bottom line, though, is this: both Murphy and Oklahoma agree that this offense was committed on land that would be part of the Creek Reservation, if Congress has not disestablished the Reservation as such.  The Supreme Court must now determine whether Congress ever did so.

More broadly, Oklahoma argues that the resolution of this issue matters a lot to the people there. The land at issue comprises over three million acres in Oklahoma (including most of Tulsa, a city of over 400,000); 4,600 square miles; and a population of over 750,000.  Oklahoma also expresses concern that the lower court’s decision extends to the boundaries of the Five Tribes (the Creeks, Cherokees, Choctaws, Chickasaws, and Seminoles), which, if true, would massively extend Indian country within the State (43% of the State’s land mass).

If Oklahoma cannot prosecute certain categories of crimes committed in this region of the State, the argument runs, this could have serious consequences for the State’s ability to exercise its criminal jurisdiction and could dramatically increase the number of federal criminal cases that the United States would have to manage.  Oklahoma also notes the potential effects in other areas of law, such as taxation.  Murphy downplayed these effects in his brief in opposition, but will no doubt need to address these concerns on merits review.

More immediately, though, the resolution of this issue will likely determine Murphy’s fate.  If the Court finds that the Creek Reservation was clearly disestablished, then Murphy’s conviction and death sentence will stand, unless some other legal impediment arises.  But if the Court determines that the Reservation was clearly not disestablished, and holds in Murphy’s favor, then the Justice Department must decide whether to prosecute the case (this would not, of course, raise Double Jeopardy concerns because of the separate sovereign doctrine).

Yet even that is not the end of the matter.  Even if the DOJ prosecutes Murphy or another person similarly situated, the Federal Death Penalty Act contains a special provision for Indian country cases: “no person subject to the jurisdiction of an Indian tribal government shall be subject to a capital sentence under this chapter for any offense the Federal jurisdiction for which is predicated solely on Indian country  . . . and which has occurred within the boundaries of Indian country,” unless the governing body of the tribe has decided otherwise.  18 U.S.C. 3598.  If effective as to Murphy, this would prevent the Justice Department from even seeking the death penalty against him.  And it would have the same effect on any other similarly situated person who commits a murder within this territory.  The question would then be whether federal jurisdiction could be established on some other basis.

A final complication is this: the case is on post-conviction, not direct, review.  And the state court opinion rejected Murphy’s claim that this was an Indian country case.  One of the contested issues in the lower courts was whether the Anti-Terrorism and Effective Death Penalty Act (AEDPA) governs the case.  See 28 U.S.C. 2254.  If so, then the federal courts must give deference to the state court opinion, unless the state court’s decision was “contrary to, or an unreasonable application of, clearly established Federal law,” as determined by the Supreme Court.

This requires two distinct considerations in Royal: first, whether claims regarding Indian country jurisdiction are reviewed under AEDPA deference (about which there appears to be legitimate dispute); and second, even if AEDPA deferential review applies, whether Supreme Court precedent clearly shows that the state court’s decision — affirming state jurisdiction, based on disestablishment — was wrong (this was the basis of the Tenth Circuit’s decision).

This is a complicated and fascinating case.  Watch for it next Term.

Impeachment and presidential responsibility

My latest article, “Conviction, Nullification, and the Limits of Impeachment as Politics,” has now been published in the Case Western Reserve Law Review.  In it, I argue that although impeachment is often denominated as “political,” that description both overstates and misstates the nature of impeachment, which represents a sober constitutional moment that must rise above ordinary politics.  That is especially true when an impeachment reaches the Senate, which is transformed from a political body into a quasi-judicial body adjudicating guilt.

Although not strictly “criminal” in the conventional sense, and although an impeachable offense arguably need not be a defined part of the existing criminal law, much impeachment law and procedure is nonetheless informed by the law of crimes.  Note, in particular, that the Constitution requires that the Senate “convict” an impeached official, a term that the Constitution normally employs only in the context of criminal adjudications.  In light of this understanding, when the United States Senate sits as a court of impeachment, I argue, it is transformed into a body where the incidents of partisanship and political coalition-building that characterize ordinary legislative business must ultimately be subordinated to objective judgments about higher-order interests.  Those interests include fairness, the rule of law, the separation of powers, and — when the president is impeached — presidential responsibility.

Hamilton spoke of presidential responsibility in the impeachment context.  Arguing for energy in the executive in Federalist No. 70, Hamilton urged unity.  Unity is better for, among other things, holding presidents responsible (because plural executives will try to shift blame from one to the other).  Unity therefore allows the people the chance to discover “with facility and clearness the misdeeds of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.”  Hamilton then returns to responsibility in Federalist No. 77, where he reiterates impeachment as a safeguard for abuses of executive power.  Indeed, in No. 77, Hamilton is defending the Senate’s role as a check on presidential appointment power.  He is demonstrating that this check, along with impeachment, reflects the safety of a system in which the legislature has control over the executive when he abuses his office.

Impeachment has, of course, been much in the news of late, and a subject of multiple posts here.  Last week, for example, reporting concerned statements by former Senate Democratic Leader Harry Reid, who cautioned Democrats against aggressively pursuing impeachment of President Trump.  “Stop it,” he said of impeachment talk, noting the political risks to Democrats.  But Reid also went on to say that vital institutions — the legislative branch and judiciary — have been “decimated” and that constitutional checks and balances have been “sliding out the door” since Trump’s election.

This is worthy of reflection.  If — if — the President has deliberately violated the Constitution, or done serious damage to the separation of powers, and if those offenses are sufficiently serious, why not talk about the possibility of impeachment?

If you are among those who have demanded that congressional Republicans in the Trump Era set aside political calculations and place national interests above party interests — even if doing so presents political risks — then you must acknowledge that this wise advice should apply to Democrats, as well.  If the interests of preserving constitutional government and the rule of law demand an impeachment inquiry (and presidential accountability), why ignore that demand merely because impeachment brings political risks?

Of course, whether a president has committed impeachable offenses is a separate, and complicated, matter.  People of good faith can reasonably debate whether this President, or others, committed impeachable offenses.  Indeed, that debate may well be premature with respect to the current President (and I remain skeptical that pre-presidential private acts can be impeachable, even if they are criminal).  But even setting aside whether sufficient evidence exists to convict a president of a crime, if a president endeavored to thwart a criminal investigation or prosecution, to undermine the legitimacy of and public confidence in federal law enforcement officials or of the criminal law, or to exert undue influence upon an investigation or prosecution, this would raise serious questions about whether the president had abused his office and violated the sacred commands of Article II.  That part of the Constitution requires him to “take care that the laws be faithfully executed,” as well as to faithfully execute his office and to preserve, protect, and defend the Constitution.  Those questions rise to the level of gravely serious when the president engages in such actions for the purpose of protecting himself or his associates from being implicated in wrongdoing, or of endeavoring to assure that the laws are not enforced against him or his allies.

Congress must therefore ask, if those conditions ever existed, even short of prosecutable criminality, would they be worthy of an impeachment inquiry?  If so, would it matter that there was political risk, or would fidelity to constitutional government be more important, despite the risks?

Senator Reid is correct that impeachments are “unpleasant.”  Moreover, the super-majority requirement for conviction in the Senate makes it difficult to imagine any president being convicted when the Senate is closely divided along party lines.  Surely the Senate would be rightly concerned about taking up an impeachment where acquittal was a foregone conclusion.  Those are not inconsiderable factors.  And there is no question that Congress is a political beast.  But just as raw politics or partisanship should not be employed to instigate an impeachment or drive a conviction, neither should raw politics or partisanship be employed to scuttle a legitimate impeachment inquiry or sensible senatorial judgment about guilt.

As I urge in this paper, there must be limits to the electoral calculations and partisan machinations that attend impeachments, particularly those that form of a part of ordinary Senate business, once impeachment has arrived at the chamber.  Otherwise, the constitutional mechanisms for presidential responsibility become substantially weakened, and Congress takes yet another step toward irrelevance.

Investigations, privileges, and Bannon’s gamble on contempt

On Tuesday, former White House chief strategist Steve Bannon refused to answer questions from the House Intelligence Committee concerning his time in the Trump transition and on the President’s staff.  He was immediately subpoenaed, and required to appear again yesterday.  As Politico reports here, he communicated to the Committee that its demand was unreasonable.  He further indicated that he would be working with the White House to determine whether it would be asserting executive privilege to prevent him from testifying.  Chief of Staff John Kelly indicated on Wednesday, however, that the White House had not asserted executive privilege on Bannon’s behalf, contradicting some earlier understandings.  See The Hill report here.

If Kelly is right, then Bannon’s action fits a pattern of witnesses in the congressional Russia investigations simply choosing, on their own, when they will answer questions and when they will not, with no apparent consequences.

Several problems emerge from this saga.

1.  Bannon cannot assert executive privilege.  Only the President can.  Bannon’s apparent assertion Tuesday (if Kelly was right) and again yesterday, is based on what I call preemptive executive privilege.  This is when a witness hypothesizes that an answer might possibly implicate executive privilege, even though it has not been invoked, so the witness will preemptively refuse to answer based on the future possibility of a presidential invocation.  This is problematic, and Congress should put a stop to it.  Unless there is a clear basis for a legitimate assertion of the privilege—in which case there is an argument that Congress should be sensitive to the President’s constitutional prerogatives—Congress should demand that the witness answer or, if not already under subpoena, be subpoenaed and then held in contempt for any refusal to comply.  In most cases, Congress’s prerogatives will outweigh these preemptive assertions.

2.  Bannon was also issued a subpoena to testify before the grand jury in the Special Counsel’s criminal probe, though apparently he is now being allowed to meet with federal prosecutors outside of the grand jury environment.  Bannon is reportedly saying that he will tell the Special Counsel “everything,” (see Daily Beast coverage here) though he apparently believes he does not have to answer to Congress (yet).  Bannon may be relying on an oft-heard claim about executive privilege and its basis in the separation of powers—it can be invoked against Congress but not in a probe within the executive branch.

This view misapprehends the privilege as it applies (to the extent that it does) before Congress.  First, it is wrong to suggest that the mere invocation of the privilege in a congressional investigation is per se adequate to enforce it.  While it is true that executive privilege has its foundations in the separation of powers, it is not true that any invocation of it in the courts or before Congress is necessarily effective.  The Supreme Court has never held that a congressional investigation must yield to a claim of executive privilege, and there is precedent for the opposite conclusion.  See, e.g., House Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008).  Of course, usually these kinds of disputes are resolved through accommodation, and that may well happen here.  Perhaps it should. But Congress could seek enforcement of the Bannon subpoena even if there is an invocation of the privilege.

My guess is that Bannon is betting against that.  Bannon clearly knows that he cannot avoid the Special Counsel through a claim of executive privilege, see United States v. Nixon, and yet I would imagine that Bannon is counting on Congress not seeking enforcement of the subpoena.  He has ample reason to bet on that, given this Congress’s lax enforcement of its prerogatives with other witnesses.  Or perhaps he is ultimately counting on a process of accommodation.  So, assuming arguendo that there is an invocation of the privilege on which Bannon could theoretically rely, the question is whether Congress will have the institutional backbone to enforce it, and call Bannon’s bluff.  (On the other hand, if the White House refuses to assert the privilege, perhaps Bannon will comply; or perhaps he will continue to resist and simply gamble on non-enforcement).

3.  Bannon refused to answer Tuesday and was subpoenaed.  On the spot.  And yet other witnesses from the Trump campaign have refused to answer questions and were not subjected to a subpoena.

In particular, consider that Donald Trump Jr. recently appeared before the Committee and refused to answer questions about his discussions with his father, raising a bizarre claim of attorney-client privilege (which has been largely debunked, see here).  Even if the assertion was legitimate, the attorney-client privilege, unlike executive privilege, is not a constitutionally-based privilege, and Congress could simply rule that the privilege should yield to the need for disclosure of the information it seeks.  If that is the case, then why did Trump Jr. not receive a subpoena?  Why has the Committee not compelled him, and others who have balked at answering certain questions, to appear again before the Committee and give the requested information or be subject to a contempt prosecution (as, apparently, is now being contemplated for Bannon)?

Investigative power is meaningless unless Congress is willing to compel testimony and punish non-compliance; otherwise, witnesses have no incentive to play ball with Congress.  The contempt power is one of the most important tools available to Congress.  And recent history shows that congressional Republicans know how to use it (ask Lois Lerner and Eric Holder).

If a Republican Congress can hold Lois Lerner in contempt for refusing to give testimony after a bungled assertion of the Fifth Amendment privilege (a constitutional privilege, and one that was later validated by the DOJ), then surely it can demand answers after an absurd assertion of the attorney-client privilege or a wholly preemptive assertion of executive privilege that probably doesn’t apply anyway.  If, like me, you think that it is critical that Congress investigate Russian active measures and take legislative steps to thwart further Russian influence, then it seems clear that Congress needs full information about Russia’s activities in 2016.  These witnesses may have important and useful information, and they should be required to give it, in aid of the legislative function.

The failure to insist upon important information from witnesses during a critical investigation offers yet another example of the damage that can be done to constitutional government when legislators become slaves to party loyalty and/or the president of their party.  Republicans in Congress must have a fuller appreciation for their role in the separation of powers and their institutional prerogatives (Democrats had the same problem during the last Administration).  They seem to have finally awoken to this notion when dealing with Steve Bannon.  But will they hold his feet to the fire?  And if so, what about the others who have simply taken a pass on cooperating?

 

Checks and the dangers of political hero worship

For those who revere the new tax legislation, December 20, 2017 was a memorable day.  To those who revere the constitutional separation of powers, it was also a memorable day — but for all of the wrong reasons.

After passage of the tax bill in each chamber, but before signing it, the President hosted Republican members of Congress at the White House.  Had they gathered for a traditional bill signing, or perhaps a holiday mixer full of lively conversation and egg nog, the gathering would have been relatively unremarkable.  What transpired there, however, was, to a constitutionalist, utterly chilling.  Speaker after speaker sung the praises of President Trump (see this WaPo piece). This kind of praise may actually reflect a deification of the President, and the presidency itself, that troubles modern constitutional politics and complicates the separation of powers.

Now, it is important not to overstate the problem.  The Constitution requires that the President and Congress agree on legislation before it can become law.  It is not constitutionally problematic that the White House and the Congress have some meeting of the minds on legislation.  Nor is it constitutionally problematic, or even uncommon, that members of Congress compliment the President when they are in agreement with him on some matter of public importance.  This happens in other presidencies, too.  But this event went beyond the kind of constitutionally necessary departmental duality that characterizes lawmaking pursuant to Article I, section 7.  And these were not merely kind words or gestures of respect.  Rather, it was the kind of effusive hero worship that has become all-too-common in the President’s orbit.  When it comes from Congress, it is a special problem.  Congress is not supposed to be in the President’s orbit.

It is common to hear talk of Donald Trump’s demands for loyalty.  Loyalty is one thing; supporting the boss publicly is one thing.  This is different.  Trump seems to prefer, if not demand, gushing, melodramatic praise that treats him as an omnipotent and omnibenevolent deity.  All that is good flows from him; all that is not is someone else’s fault.  One wonders whether these men and women ever spoke of Lincoln or Reagan the way that they spoke about President Trump last week.

There are, of course, practical, even strategic, reasons for this kind of public worship — assuming one does not actually worship President Trump.

First, those who work for the President may do this because it may be what he expects of them and anything less would jeopardize their position.  (consider the similarly pathetic cabinet meeting earlier this year, which one reporter described as the “weirdest cabinet meeting ever.”  See here.).  But this would not explain such adulation from a member of Congress, unless the member is under the impression that he works for the President — a deeply ignorant notion but one that is not at all off of the table in the modern Congress when it is controlled by the same party as the President.

Second, one may offer flattery for the purposes of extracting some benefit.  It must be one of the worst-kept secrets in Washington: if you want something from President Trump, simply go on television and talk about him as if he is a god.  Perhaps, then, it was this second explanation that applies to the tax bill gathering last week.  After all, what better way to secure the President’s support for all manner of other policies than to lavish him with adoration?  If so, it is politically understandable, but no less troubling to those of us who still regard the constitutional separation of powers as worthy of preservation.  Here’s why.

The deification of the presidency only amplifies the powers of the executive at the expense of others in the constitutional system.  This is inconsistent with the Constitution’s distribution of power and is especially unnerving when the President is already prone to unreasonable self-aggrandizement.  It also sends a signal that Republicans in Congress have now officially anchored themselves to the President.  That makes it all the more difficult to resist the President when he comes calling, all the more difficult to publicly disagree with the President, and all the more difficult to serve as an effective constitutional check on the President.  Critical checks — rejecting legislative recommendations, conducting effective oversight, and engaging in meaningful investigation of executive wrongdoing — become casualties when Congress deifies the President.

This latter point is especially important for Republicans.  They already face significant obstacles in the upcoming midterm elections.  But one of the most potent campaign themes of the 2018 cycle could be related to checks: candidates (mostly Democrats) vowing that if they are elected, they will work to be an effective check on this President and Republicans in Congress who refuse to counter him.

If Republicans in Congress are perceived as mere errand boys for the President, incapable of holding him accountable or publicly disavowing him, they will be handing their opponents a potentially powerful argument for making a change in congressional control.  Republicans who fully embrace the President — and who must commit to all of the embarrassing adulation that embracing him seems to require — may be counting on a strong economy to bolster their chances of re-election.  And running in a Republican primary without praising the President may be especially difficult for many Republicans, depending upon where they are running.  But with every word of praise, they aggrandize the powers of the presidency, perpetuate glorification of the office and of Trump himself, and make themselves increasingly vulnerable to a campaign predicated on the importance of having checks in the system.

When President Obama held office, congressional Republicans used to talk a good game about the separation of powers.  Since President Trump’s inauguration, I cannot recall the last time I heard congressional Republicans as a group advocate for a robust separation of powers.  To be sure, some have resisted the lure of a deified President Trump.  But on the whole, the separation of powers has been relegated to second- or even third-class status, giving way instead to the push for a shared legislative agenda and, worse still, party loyalty for its own sake.  Last week’s display of pathetic obsequiousness was simply the latest, and maybe most emphatic, sign yet that Republicans in Congress have abandoned their constitutional role in favor of worshiping at Trumpism’s altar.