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?

 

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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.

Extortion, deprivation of rights, and the myth of the Twitter counter-punch: Part II

In my last post, I focused on the potential civil rights issues arising from the account given by Joe Scarborough and Mika Brzezinski concerning their allegation that the President, through his staff, asked them to apologize for negative coverage and make their coverage more positive in exchange for the President using his authority to stop publication of a potentially damaging story about them in the National Enquirer.  Again, there appears to be more to this story, the President denies Joe’s account, and it is unclear as yet whose version is correct.  My previous post discussed the federal statutes that make it a crime to willfully deprive a person of his rights, 18 U.S.C. 242, and to conspire to injure, oppress, threaten, or intimidate a person in the exercise of a constitutional right, or because of his exercise of a constitutional right.  18 U.S.C. 241.  But because there has been some commentary on the potential extortion and reputational blackmail aspects of this story, I will now focus on those.

First, let’s begin with the statutes that proscribe extortion.  The Hobbs Act, 18 U.S.C. 1951, does so, but I think the Hobbs Act is problematic here.  This law makes it a crime to obstruct, delay, or affect commerce by extortion.  It further defines “extortion” in section 1951(b)(2) as the “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

The problem is that, in this case, even assuming the truth of Joe’s account, there was likely no effort to obtain “property.”  Although intangible things can be “property,” the Supreme Court held in Sekhar v. United States that “property,” for purposes of Hobbs Act extortion, must be capable of transfer from one person to another.  It must be obtainable.  The Sekhar Court also distinguished between extortion and coercion, which, the Court said, is threatening another person to do or abstain from doing something that he or she has a legal right to do or abstain from doing.  Coercion, then, need not involve transferable, obtainable property; Hobbs Act extortion does.  And the Hobbs Act does not cover mere coercion.

The other statutes that might seem directly relevant here are those in the statutory scheme involving interstate communications, 18 U.S.C. 875.  In particular, consider subsections (b) and (d), both of which forbid threatening interstate communications made with the “intent to extort.”  They also require that the threats be to “injure the person of another” (as in (b)) or to “injure the property or reputation of the addressee” (as in (d)).  If Joe’s account is true, then if the President was threatening to greenlight a story that would cause reputational or financial jury to Joe and Mika, this would seem to fit the injury element, even though it is not physical injury as required by subsection (b) (that is, if we can say that “injury to the person” also includes reputational or financial injury; of course, this could also mean physical injury only).

Here the problem is that the mens rea element requires an “intent to extort . . . money or other thing of value.”  Even in Joe’s account, the President did not seek money.  The question, then, would be whether the President’s alleged effort to extract an apology, and thereby change the substantive content of Morning Joe’s coverage, would constitute extorting a “thing of value.”  One might argue that a political commentary show’s substantive coverage of the President is a “thing of value” because it is the show’s content that attracts viewers and advertisers, revenue and ratings.   Perhaps, it could be argued, Morning Joe’s viability would be affected if it changed the way it covered the President.  But this would seem to be a contested issue in a case under either section 875(b) or section 875(d).  And if Sekhar’s understanding of extortion in the Hobbs Act context also applies to the extortion provisions of section 875, then it would not be enough to simply show that there was merely intent to coerce.

A somewhat more viable statute in the section 875 scheme could be subsection (c), which also forbids interstate communications that threaten to injure the person of another, but does not require any intent to extort.  Thus, we can avoid the extortion/coercion problem that Sekhar acknowledged, as well as the tricky issues involving money and what a “thing of value” is.   The Supreme Court held in Elonis v. United States that section 875(c) requires that the actor send a communication with the purpose of making a threat, or with knowledge that the communication will be viewed as a threat.  Mere negligence will not suffice, but the Court did not address recklessness (Justice Alito’s separate opinion would have allowed a conviction based on recklessness — “conscious[ly] disregard[ing] the risk that the communication will be viewed as a true threat”).  Again, if a threat to injure reputation or to cause financial harm satisfies the “injury to the person of another” element, then this would seem to be a better fit than the more complicated extortion statutes.

In short, those who say this alleged incident might not fit the legal standards for extortion or reputational blackmail may well be right.  I am not sure, however, that failure to satisfy extortion or reputational blackmail is, or should be, the end of the matter.  Again, if the First Amendment protects Joe and Mika from a threat of the kind alleged, then sections 241 and 242 are potentially implicated, and section 875(c) is worth a closer look.  But even if, as is certainly possible, Joe’s allegations would be insufficient to support application of the criminal statutes I have mentioned, there remains the question of whether — if the facts are as Joe alleges them — this amounts to a serious abuse of power, one that implicates the First Amendment rights of the media and that deserves greater scrutiny by Congress, the institution charged with investigating presidential abuses.

Questioning the media, even in a combative tone, is one thing, and hardly new for presidents.  But if a president seeks to do harm to individual members of the media merely because the president dislikes the content of, and viewpoint expressed in, the media’s coverage of him, that is quite another thing entirely.  And constitutionalists should stand firm against such an authoritarian posture, whether criminal or not.

Extortion, deprivation of rights, and the myth of the Twitter counter-punch: Part I

I rarely comment on the President’s tweets, unless they implicate a legal or constitutional issue of relevance.  And I am confident that everything has been said already about the President’s repugnant tweets concerning Mika Brzezinski and Joe Scarborough.  There is a follow-up issue on which I prefer to focus, but I will add only these thoughts on the tweet itself.

First, using a Twitter account to insult people is a rather pathetic form of “counter-punching,” and probably should not count as such.  In this context, “counter-punching” would be appearing in person on Morning Joe and saying to Joe and Mika’s faces exactly what the President said via Twitter.  Second, even if it is “counter-punching,” our civil society — and notably our criminal law — has always taken an unkind view of certain disproportionate forms of “counter-punching.”  If someone pushes me on the subway, or insults me on the street, or slaps me in the face, I do not have the right to shoot him in the forehead with a rifle.  Proportionality matters.

That said, another issue arose yesterday during Morning Joe that has received some attention.  During yesterday’s broadcast, Joe and Mika described a story in which, according to them, the President — through one or more of his staff at the White House — threatened to permit the publication of a story in the National Enquirer about Joe and Mika’s personal life together if they refused to call the President and apologize for their negative commentary on him.  If they called and apologized, Joe’s account goes, the President would use his influence and connections with the Enquirer to kill the Enquirer story.  The President denies the account as it was told on the show, but Joe claims to have documentary evidence to prove the version he told.

Several commentators have explored whether this amounts to criminal extortion or reputational blackmail.  I want to add just a bit more to the criminal law angle, but I will reserve a discussion of the extortion statutes for a separate post.  Instead, I will focus this post on the potential deprivation of constitutional rights and conspiracy to do so, both of which are serious federal crimes.

For purposes of this legal discussion, I will assume the accuracy of Joe’s description of the events, though we still do not know for certain what exactly happened and it is possible that Joe’s account leaves out salient details that could affect the legal analysis here.  I also interpret his account as not simply an effort by the President to seek an apology, but also to induce Joe and Mika to stop making negative comments about the President and to cover the President in a positive light (otherwise, what’s the point?).  So based on this, here are the legal issues that I think could be relevant that concern the potential criminal deprivation of civil rights.

If Joe’s account is accurate, then it is possible that the President has endeavored to coerce the media into doing something with its coverage, or refraining from doing something with its coverage, by threatening reputational or financial harm to television hosts based on the content of their speech (or, worse still, the viewpoint expressed).  If so, this has very serious First Amendment implications, and raises the question of whether the President has willfully deprived Joe and Mika of their First Amendment — and perhaps equal protection — rights under color of law, in violation of 18 U.S.C. 242.

As always, in any section 242 case, there is the question of what “willfully” means.  The Supreme Court said in Screws v. United States that this includes “open defiance or reckless disregard of a constitutional requirement which has been made specific and definite.”  There may also be some question as to whether the President was acting “under color of law,” if he was relying simply on his private relationship with the Enquirer rather than on any official power as President.  But there is case law holding that an official acts “under color of law” when he uses the victim’s fear of his power as a public official to induce the victim to do something or refrain from doing something.  See United States v. Giordano, 442 F.3d 30 (2nd. Cir. 2006).

And that connection is strengthened if the President used White House staff to communicate his threats.  Indeed, if Joe’s account is accurate, then the use of White House staff would seem to implicate 18 U.S.C. 241, which says that it is a crime for “two or more persons to conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.”  The conspiracy problem is worse still if the President formed an agreement with the folks at the Enquirer in this regard, though the Enquirer denies any contact with the White House on this specific matter.  The conspiracy against rights statute does not require color of law, nor does it require an overt act in furtherance of the agreement.  Criminal liability attaches the moment that the agreement is formed.

Of course, presidents and other politicians often use their position to influence media coverage (granting special access, etc.).  Doing so is not typically thought to implicate the First Amendment.  The question here is whether, assuming the veracity of Joe’s account, there is something different — and constitutionally pernicious — about coercing a change in viewpoint by threatening to allow publication of potentially damaging information about a media figure’s personal life.  The act-omission distinction might also be important here under section 242 (if the allegation is simply that the President failed to do something), although the theory could be that the threat itself constitutes the deprivation.

All of this is subject to the usual caveats that, first, it is not clear that the President violated a criminal law; and second, even if he committed a criminal offense, he likely would not be prosecuted while in office.  Still, as I have said before, this would not immunize him from a congressional investigation or impeachment.  Some may think that further discussion of this story makes a mountain out of a molehill.  But if Joe’s account is true — if the President used his office, and those in his charge, to communicate to prominent cable news hosts that he would greenlight, or at least not intervene to stop, a potentially damaging story about their personal lives as a way of coercing them into apologizing for negative content and giving him more positive coverage — then it is hard to imagine how this would not constitute a serious abuse of power and a threat to the First Amendment of the Constitution.  And it is surely worthy of a congressional inquiry.

Revitalizing Congress

Congress does not work for the President.  Congressional staff do not work for the President (let’s set aside the detail problem for now).  Just as Congress should not endeavor to destroy the President, neither should it seek to protect him.  It is not Congress’s duty to clear a path for the President or to help him deliver on presidential campaign promises.  It is, rather, the responsibility of Congress to check the President and to assert its own institutional prerogatives, using the limited tools that the Constitution has afforded it.  Unfortunately, loyalty to the president or to a political Party has usurped what should be the Senator or Representative’s ultimately loyalties: the legislative branch they serve, and, chiefly, the Constitution.

The entire enterprise of congressional oversight and investigation of the executive branch depends upon accepting the premise of institutional defense.  Senators and Representatives must accept that Congress must gather facts and evidence from the President and his subordinates in order for Congress to fulfill its constitutional role in the separation of powers.  That is, congressional oversight and investigation of the executive depend upon a recognition that the institutional interests of Congress are paramount to any loyalties owed to the President or to the Member’s political Party.

When congressional oversight and investigation are viewed merely as extensions of Party politics and political campaigning, however, oversight and investigation become meaningless as legislative prerogatives.  Congress consequently becomes weakened institutionally.  While there are certainly important bipartisan exceptions, Members of both Parties, over time, have too often either abused or ignored their responsibilities to conduct effective and meaningful oversight and investigation in aid of Congress’s constitutional functions, instead serving as blockers for the president during the opposition’s pass-rush.

Madison, in Federalist 51, described legislative power as the predominant authority in a republic.  He explained that this requires dividing legislative authority (into distinct bodies) and fortifying the executive (as with a veto). Hamilton, too, acknowledged in Federalist 73 the “superior weight and influence of the legislative body in a free government.”  (Hamilton, in fact, spent considerable time in The Federalist defending the veto, worrying about the accumulation of legislative power, and explaining how the executive could defend itself against the legislature, even noting the “hazard to the executive in a trial of strength with that body.”  How quaint.)  And the Supreme Court has consistently recognized that the power to investigate is a function of Congress’s power to legislate.  But modern politics have changed the way the institution operates, the way it is perceived, and the way the executive relates to it.

The over-sized modern presidency has far greater national stature than even the most high-profile Senator or Representative, and exerts tremendous influence over individual Members, influence that enables the President to dictate the content of national legislation and, often, the path of legislative oversight.  For its part, the modern Congress has contributed to the weakening of its place in the constitutional system.  The “dysfunction” of Congress is a subject well-covered in the literature, and although it is likely the case that many Democrats and Republicans privately enjoy cordial relationships, that privately held goodwill rarely manifests itself in the day-to-day public work of the institution.   The end result is that the venerable institution of Congress appears to be a mere wing of each Party’s national political infrastructure.  And when the majority in either chamber shares the President’s Party, that chamber’s majority appears to be transformed into a mere clerk of the executive.  This persistent quiescence with the executive further weakens the institution and minimizes its public stature.

But Congress can, at long last, fight back.  Oversight and investigation offer a good place to start, because this is an area in which Members from different parties can coalesce in defense of institutional interests.  Congress can also staff up, and increase the budget for congressional staff, so that Congress can compete with the other branches (especially the executive branch) in securing and keeping highly-qualified professionals.  Via our friends at Leg Branch, this recent piece in the Washington Post explains some of the difficulties.

The current controversies have given the Congress the opportunity to revitalize itself, to assert its institutional independence from the President and the dominant Parties.   If it does not (and there are signs that many individual Members are not interested in doing so), it will remain feckless and weak.  Madison and Hamilton were right to worry about the legislature’s ability to absorb the powers of the other departments.  The President, as Hamilton argued, should have tools for his defense.  But the accumulation of power into the executive is no better than accumulation in the Congress.  And Hamilton properly explained in No. 73 that the partitioning of power among the branches also teaches us that the branches should be independent.  Congress does not work for the President — and its Members should not be satisfied with perpetuating the appearance that it does.

 

Can the President commit a crime or an impeachable offense even when exercising constitutional power?

America’s civic education continues.  Although much of what we have endured recently is not particularly good news for the Nation, it should at least be heartening that nearly 20 million people watched the (underwhelming) Comey hearing.  If only that many Americans took such an interest in congressional hearings more generally.

We have also heard lately about the theory of the unitary executive, which some observers have used to explain why the President’s actions with respect to James Comey are neither criminal nor otherwise improper.    Former Speaker Newt Gingrich asserted something like this recently when he said that the President “cannot obstruct justice,” citing the fact that the President is the chief executive  (as others have duly noted, such as in the linked article from The Hill, Gingrich voted to impeach President Clinton on obstruction of justice grounds).  Gingrich’s quote calls to mind President Nixon’s 1977 assertion to Sir David Frost that, “when the President does it, that means that it is not illegal.”

At its core, the unitary executive posits both an obvious textual notion (that the executive power is vested in “a” president) and a structural one (that the president enjoys all executive power and thus controls anyone who assists him in exercising such power).  But the unitary executive model does not really answer two critical questions that have been raised by the Trump-Comey saga: first, when, if ever, does the exercise of constitutional power by the president amount to a punishable crime?; and second, at what point does the exercise of a constitutional power constitute an abuse of such power?  These two questions are at the heart of a distinction that has become lost in the debate over criminality, and that is the distinction between violations of the existing federal criminal law and the political world of impeachable offenses (see my earlier post here).

Because the President has the power to “take care that the laws be faithfully executed,” he has the power to determine who will be prosecuted and investigated.  Therefore, as some have argued, the President had the authority to instruct Comey not to continue pursuing former National Security Advisor Mike Flynn, and doing so cannot be obstruction of justice.  And, the argument continues, because the President has the appointment power, as well as the Take Care Clause power, firing the FBI Director also cannot be obstruction.  I have before elaborated (in the above linked post) upon the obstruction statutes and explained why I think reliance on those statutes is problematic in this case.  But let’s set aside the applicability of the statutes as a matter of statutory interpretation and federal prosecutorial practice, and focus instead upon the question of how far the President’s power extends.  Do his motives matter when exercising his powers?

Suppose, as a hypothetical example, that the President gathered the FBI Director and Attorney General in the Oval Office and gave the following order, pursuant to his Take Care Clause powers: in an effort to root out terrorists, the FBI shall enter and search, without a warrant and without any particularized suspicion, the home of any Muslim living in the United States.  The FBI and AG agree and the order is carried out.  Such action would implicate not just the Fourth Amendment, but also the federal civil rights statute relating to willful deprivations of rights, 18 U.S.C. 242, as well as the civil rights conspiracy statute.  18 U.S.C. 241.  Is the President immune from subsequent criminal prosecution merely because he has the power to direct federal investigations and prosecutions?  Could the President be impeached for issuing such an order, on the ground that even though he has the power to direct investigations, this was a serious abuse of that power?

Let’s take another example.  Suppose the President agrees with a representative of Defendant D that the President will order the Justice Department not to prosecute D for a crime that D has committed.  In exchange for that official act, the President accepts from D one million dollars.  Is this conduct bribery, notwithstanding the fact that the official act for which there is a quid pro quo is a constitutional power vested in the President?  Is it impeachable? (remember that the Impeachment Clause of Article II, section 3 specifically lists bribery as impeachable).

Or, to take the example of another power vested solely in the President — the power to grant reprieves and pardons for offenses against the United States — suppose the President granted a pardon to D in exchange for a payment of one million dollars.  Is the President’s motive for the official act of granting the pardon irrelevant simply because the corrupt motive, and the quid pro quo, are tied to the exercise of a constitutional power vested in the President?

I ask these questions because I think it is important to note that even if we accept the unitary executive model, and even if we believe that directing criminal investigations and prosecutions is a core executive function over which the president should have control, we can still acknowledge that what motivates a President in carrying out that function could still have legal significance.  In my bribery examples, for instance, the power of ordering the DOJ not to prosecute, or the power of actually granting the pardon, are not, without more, the problem; the problem is that those exercises of power were intended to facilitate bribery.  Indeed, because bribery requires an official act, it seems clear from its inclusion in the Impeachment Clause that the Framers understood that a President can still be held legally accountable even when the offense arises from an exercise of official power.

It may very well be that President Trump has committed neither a crime nor an impeachable offense.  But whether he has committed either cannot, I think, depend merely upon whether his action was based on the exercise of a constitutional power.  Perhaps the President’s state of mind matters.  After all, implicit in an “abuse of power” is the existence of an official power that can otherwise be legitimately used.

Which leads to a final point about the distinction between criminality and impeachment.  Much of the attention will fall upon the Special Counsel.  But the congressional investigations here are also important because, unlike the Special Counsel’s investigation (which is criminal in nature), the Congress can gather facts and evidence regarding abuses of power that may not meet the defined elements of a crime or be prosecutable.  The congressional investigative power is at once broader and more narrow than the Special Counsel’s work — Congress cannot criminally prosecute the President, but it can engage in oversight of the executive, which includes the power to impeach and convict.  That distinction is critical if one assumes that a sitting President cannot be criminally prosecuted.  Problem is, would a Republican Congress ever allow impeachment to proceed?  To answer that, we need to take a deeper dive into the existing dynamics of a Senator or Representative’s institutional loyalty to Congress, rather than to the President or the Party.

 

Could the President assert executive privilege to block Comey’s Senate testimony?

Now that James Comey is slated to testify before the Senate Intelligence Committee next week, there has been some speculation as to whether President Trump will try to block Comey’s testimony with an assertion of executive privilege.  To be precise, such an assertion would only apply to testimony involving presidential communications; it would not cover any and all aspects of Comey’s testimony about his work as FBI director, so “blocking” is not entirely accurate.  Though I believe in a robust executive privilege where appropriate, I am skeptical of the use of executive privilege under these circumstances.  Still, I think it is fair to say that we are entering (mostly) uncharted waters next week.

The leading case on executive privilege is United States v. Nixon.  Although it recognized the constitutional dimensions of executive privilege, the Court ultimately found that the privilege is not absolute and rejected President Nixon’s assertion of the privilege.  This, of course, set the stage for Nixon’s resignation, after the House Judiciary Committee had adopted articles of impeachment.  The reasons for the Court’s ultimate decision are instructive.  According to the unanimous opinion by Chief Justice Burger, “when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.”  The Court then stated, “[a]bsent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in the confidentiality of Presidential communications is significantly diminished” by requiring in camera review by a federal district court.

Much of the Nixon case proceeds from there to explain why a generalized assertion of presidential confidentiality should yield to the demands of justice in a criminal investigation.  The privilege is rooted in the separation of powers and should ordinarily be accorded deference, but, again, is not absolute.  There is also, the Court acknowledged, constitutional dimension to the need for evidence in criminal cases.  Consequently, the Court held, where the claim of privilege is merely generalized (not specific to a particular military, diplomatic, or national security secret), “it cannot prevail over the demands of due process of law in the fair administration of criminal justice.  The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Nixon’s application to the Comey testimony is therefore imperfect, but useful.  Two dimensions of executive privilege, as understood in Nixon, are important in relation to the upcoming Comey testimony: first, the nature of the proceeding; and second, the subject matter underlying a claim of privilege.

Nixon is really about the role of the privilege in criminal cases.  Comey is testifying in a congressional investigation, not a criminal one.  It is not clear precisely how Nixon is to apply in the congressional committee setting.  Because of the constitutional dimension of executive privilege that derives from the separation of powers, and the need to not simply protect the prerogatives of the presidency but also to protect against Congress, to quote Madison in Federalist No. 48, “drawing all power into its impetuous vortex,” there is a natural concern about compelling the disclosure of presidential communications to the legislative branch.

And yet, while executive privilege is constitutionally based, so is Congress’s power to investigate.  Congress has institutional prerogatives, too.  Claims of executive privilege therefore have often conflicted with claims about the need for information in a congressional inquiry; the implications for the separation of powers are obvious.  These conflicts are normally handled through a process of mutual accommodation and compromise by the legislative and executive branches.  Judicial review in such situations is not unheard of, but is rare.  And the Supreme Court has never had occasion to address the matter specifically.

Still, the relationship between this particular congressional investigation and the existing criminal investigation being conducted by the Special Counsel is undeniable, and likely close.  Moreover, although the congressional investigative setting is not strictly criminal, it can display attributes that look much like a criminal inquiry.  Congressional committees must respect legitimate invocations of the privilege against compelled self-incrimination; can grant immunity to witnesses; and have even referred individuals for criminal prosecution.  There is often a Congress-as-Prosecutor quality to congressional investigation and oversight, even though Congress lacks any formal criminal prosecution powers (even inherent contempt is not strictly criminal, though it looks the part).

So while it is tempting to distinguish Nixon by relying upon the formal difference between a criminal proceeding and a congressional investigative hearing (and there is a difference), the nature of this particular hearing and its connection to an ongoing criminal probe in the executive branch suggests that this scenario may be more like Nixon than it first appears.  Nevertheless, there is something to the notion that a claim of executive privilege should be taken quite seriously when the legislative branch is seeking to pierce the deliberative processes of the presidency.

This brings us to subject matter.  To make any assertion of the privilege palatable, the President would likely have to be very specific about the subject matter of his claim — he would have to assert that some military, diplomatic, or national security secret would be divulged as a result of Comey’s testimony, or, at a minimum, that the testimony relates to the decision-making functions of the presidency.  An assertion of privilege is also complicated here by the fact that the President has spoken openly and publicly about his private conversations with Comey.  This also raises the question of whether the President has waived any claim of privilege because he spoke publicly on the subject matter (I personally think this is a dubious argument as it has been couched by some, though it is a stronger argument with respect to testimony about very specific subjects; in other words, public statements about one subject would not necessarily serve as a waiver with respect to all conversations with Comey).

But waiver is not the only concern with respect to those public statements.  Rather, another major concern is that the President has implicated Comey’s own credibility (which Comey should have the right to defend), and has made statements that vaguely suggest, if not criminality, at least the possibility that the President has failed to “take care that the laws be faithfully executed,” as required by Article II.  That is a subject worthy of congressional oversight and inquiry.  Nixon’s concern about an undifferentiated claim of confidentiality conflicting with “other values” therefore seems useful in this context, given what we know about the need for information in this particular congressional investigation and the need to explore the veracity and implications of the President’s own public comments on the matter.

As a practical matter, Comey is likely to prefer to keep his testimony narrow, so as not to compromise the Special Counsel’s investigation.  But to the extent that it could cover his communications with the President, it remains unclear whether the President will attempt to intervene with a claim of executive privilege.  I suspect that doing so would be politically unwise, further contributing to an already damaging “what-is-the-Trump-Administration-hiding-now?” narrative.  Legally, the question is more complicated.  But if the Nixon decision is an authoritative guide in this situation, then that decision, along with the rule of law concerns that animate it, likely militates against recognizing the privilege here, unless the President can show something more than a mere general interest in confidentiality.