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.

 

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Fourth Amendment basics after Collins v. Virginia

This week the Supreme Court decided Collins v. Virginia.  There (as I explained in more detail here, before the Court granted cert), Collins was prosecuted for receiving a stolen motorcycle.  After multiple high-speed chases in which police were eluded by a modified motorcycle, and after learning that Collins possessed the offending (and stolen) motorcycle, an officer went to a house being rented by Collins’s girlfriend and saw a motorcycle that appeared to match the one for which police were searching.  It was covered in a tarp.  The officer entered the driveway, lifted the tarp, and ran the license plate and VIN, confirming that it was stolen.  Collins argued that the search of the motorcycle could not be justified by the automobile exception to the Fourth Amendment warrant requirement, and the Court this week agreed.

Justice Sotomayor’s opinion for the Court held that motorcycle was within the curtilage of the home and that the automobile exception did not extend to the curtilage.  That is, an officer may not enter the curtilage for the purpose of performing the search of a vehicle pursuant to the automobile exception.  Indeed, the Court makes much of the concept of curtilage in this case.  But the Court’s statement of the underlying law is incomplete, which, I worry, affects the soundness of the Court’s holding.

Justice Sotomayor states that, “[w]hen an officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred.  Such conduct thus is presumptively unreasonable absent a warrant.”  That is true, but incomplete.  Such conduct is presumptively unreasonable absent a warrant or some exception to the warrant requirement (like, for example, the automobile exception).  If the officer’s conduct fits an exception to the warrant requirement, then, even a warrantless search in the home or its curtilage is usually permissible under the Fourth Amendment.  Indeed, the exception is what makes the search or seizure constitutionally reasonable, even if warrantless, i.e., the exception overcomes the presumption.

The Court’s discussion of curtilage would be dispositive if this was a case about whether a search had occurred.  The fact that the officer physically entered the curtilage shows that the officer conducted a search.  But as the Court concedes (see fn. 2), no one — not even Virginia — disputes this.  Having established a search, then, the ultimate constitutional question is whether the search was reasonable.

That question is not ordinarily answered by mere reference to the location of the search.  If it was, then any search or seizure conducted within the home or its curtilage would be, by definition, unreasonable.  This point about conflating a search with its reasonableness is one notable aspect of Justice Alito’s sensible dissent.  As Alito says, the decision here “is based on a misunderstanding of Fourth Amendment basics.”  Determining whether the officer invaded the curtilage, he says, “determines only whether a search is governed by the Fourth Amendment.  The concept plays no other role in Fourth Amendment analysis.”

For example, assume that a police officer with probable cause wants to arrest X while X is standing in the driveway of his home.  Or that an officer wants to conduct a search of X incident to arrest in X’s curtilage.  Or that an officer with reasonable suspicion wants to enter X’s curtilage to conduct a Terry stop of X.  Or suppose an officer enters X’s curtilage for the purpose of questioning X about a recent crime that occurred in the neighborhood, and while there, obtains X’s clear and voluntary consent to search X’s car or garage or bedroom.  Surely the Fourth Amendment cases would permit these actions, even without a warrant, and even within the curtilage of the home.  But the Court now appears to hold that the automobile exception is different.

Moreover, the Collins Court’s reliance on key cases is also incomplete.  For example, the Court correctly cites Payton v. New York for the proposition that an arrest warrant for an in-home arrest helps to protect the sanctity of the home.  The Court also correctly cites the rule that warrantless arrests in public are valid, see United States v. Watson, but neglects to mention that warrantless arrests outside of the home but within the curtilage can also be constitutionally reasonable.  See, e.g., United States v. Santana.

The Court also relies heavily on Florida v. Jardines.  But Jardines was not a reasonableness case; it was merely a search case.  And the Court did not hold that the dog sniff there was unreasonable.  It merely held that the dog sniff was a search.  Nor does the Court in Collins spend much time on the notion of implied licenses. Yet Jardines does not speak of intrusions simpliciter.  Rather, Jardines speaks of “unlicensed” physical intrusions onto the curtilage, those that are neither explicitly nor implicitly permitted by the property owner.  Perhaps what the Collins Court is really saying is that the implied license given to the police to enter one’s curtilage does not extend to allowing police to inspect a vehicle in the driveway for evidence of criminality.  That is a sensible conclusion, and one likely dictated by Jardines.  But that merely tells us that the police have exceeded the scope of their license and thus conducted a search.  Again, no one here disputes that a search occurred.

Of course, this does not mean that the automobile exception should have justified the officer’s search in Collins.  It simply means that the Court could have better explained its reasoning with respect to other factors that limit the scope of the exception and that made this search unreasonable, ones unrelated to curtilage.

Indeed, if the reasonableness determination was based on the location of the search or seizure — making the search or seizure unreasonable because it was performed within the the home or its curtilage — then none of the warrant exceptions (like those in the hypos above) would apply in the home or curtilage.  That would include things like exigency, consent, plain view, etc., which we know from earlier cases have been permitted within the home or curtilage (Alito, for example, cites Brigham City v. Stuart).

But that cannot possibly be what the Court held in Collins.  In its conclusion, after all, the Court specifically says that perhaps there was another basis for concluding that the warrantless search was permissible, such as on the basis of an exigent circumstance.  See slip op. at 14.  So we know from the opinion that the Court did not mean to abolish warrant exceptions generally within the curtilage.

Perhaps, then, the best way to understand the Collins opinion is to say that this particular exception does not apply in the curtilage, notwithstanding others that may apply.  In other words, the Court is deliberately linking the unreasonableness of the motorcycle search to its location in the curtilage, even though such a linkage does not ordinarily attend Fourth Amendment reasonableness analysis.  Otherwise (or, perhaps, “nevertheless”), I fear that the Court’s over-emphasis on curtilage to justify its rule will create some mischief in future cases in which police want to employ an exception to the warrant requirement when they are within the curtilage of a home.  If the automobile exception does not apply within the curtilage, are there other warrant exceptions that also should not apply there?  I suspect members of the defense bar might now press that question.

In any event, as I said last year, add this to the long list of auto exception cases that start with “C.”

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.

Let’s cook: Drug Trafficking and the Federal Death Penalty

Today, in remarks in New Hampshire, and via the White House website, the President announced an opioid prevention and enforcement plan and repeated his previous suggestions about imposing the death penalty for drug trafficking.  That issue has garnered significant attention, though it is not clear whether he will propose any new death penalty to federal criminal law.

The President often speaks in grandiose and vague terms, so it is difficult to know what he means by a death penalty “for drug traffickers.”  His language on this issue seems to be the very species of flumadiddle that nearly always characterizes his public speech on matters of complex policy.

Quite possibly, what he has meant in other remarks is a death penalty option in cases where a dealer distributes to a person who then subsequently dies from the drug received as part of the transaction.  The President did not elaborate on this today, though the White House announcement of the plan says that the Justice Department would seek the death penalty “where appropriate under current law.”  But the President also said today that DOJ is “working very hard” on changing the law.  Nothing more specific, naturally.

Several issues come to mind.

First, the idea of a death penalty connected to drug trafficking is not at all outrageous or even unusual.  Several provisions of federal criminal law already provide for this (the firearms statutes, the CCE/drug kingpin law, the drive-by shooting law, and even the racketeering laws, like VICAR).  Moreover, Congress in 1994 beefed up the capital punishment provisions for CCE/kingpin-related crimes in the Federal Death Penalty Act (FDPA).  See 18 U.S.C. 3591(b).  Indeed, a drug kingpin — Juan Raul Garza — is one of only three people executed by the federal government in the modern death penalty era (he was executed a little over a week after the Government executed Timothy McVeigh).

I understand the President to be demanding stronger enforcement of those laws.  But to suggest, as he did today, that the country maybe is “not ready” for a capital drug trafficking law suggests either that he does not know that current law already covers this ground, or that he has an unusual new capital drug trafficking law somewhere up his sleeve (is that what he meant when he said that DOJ is working to change the law?).

Second, if a new capital drug trafficking law was adopted, what would it look like?  The idea that the act of engaging in a drug transaction in which the recipient dies would be punishable by death — particularly where the victim’s death is reasonably foreseeable — is not as outrageous as it may seem.

The idea could be based on a fairly standard theory of felony murder — death resulting from the commission or attempted commission of the underlying drug trafficking felony.  And it would be consistent with the theory of non-capital death-resulting penalties used not only in the some of the federal statutes mentioned above, but also those contained in the core drug offense penalty statutes.  See, e.g., 21 U.S.C. 841(b)(1); 21 U.S.C. 960.  Those statutes could be amended to include death as a penalty for the death-resulting conduct.

This general idea could, however, raise significant questions of causation and culpability, depending upon how the law is drafted.  Who is the cause of the victim’s death: the street-level dealer?  The distributor?  The manufacturer?  The victim?  When does the chain of causation between the underlying felony and the death end? (but see this earlier post on one of the federal statutes punishing death-resulting drug activity).  Would it matter that the victim took the drugs voluntarily?  That might matter to FDPA enforcement, because one of the mitigating factors listed in section 3592(b) is that “the victim consented to the criminal conduct that resulted in the victim’s death.”  A new  statute could also raise questions about Eighth Amendment proportionality under the rule of Enmund v. Florida, if the dealer/trafficker’s culpability is too attenuated from the death (though I would argue that Tison v. Arizona would likely provide an important counterweight to any Enmund claim, where the dealer/trafficker could be said to be a major participant with reckless disregard for human life, which may be especially true when trafficking in certain opioids).

So there are some open questions raised by the idea of a new capital drug trafficking statute, and perhaps that has made the White House hesitant to propose one.

Finally, even assuming that the President’s interest in seeking more death penalties in drug cases is desirable, and that he is simply asking for stronger enforcement of current law without any new additions to the prosecutorial menu, publicly pressuring the Justice Department to seek the death penalty is a dangerous game to play.

A President should be able to make his law enforcement priorities known, including his support for the death penalty.  Every President shifts DOJ resources to those areas he wishes to prioritize (gangs, guns, corporate crime, etc.).  Still, as I have previously written in the context of the President’s public statements about the Saipov case, whenever the President appears to be putting political pressure on the Justice Department to seek the death penalty, that pressure can create the impression that the DOJ’s death penalty review process is a sham.  It undermines public confidence in what should be a serious and apolitical review based on the facts and circumstances of each case.  That confidence, and the sober nature of DOJ death penalty protocol enforcement, is critical to the continued legitimacy of the federal death penalty.

To be fair, today’s remarks do not raise quite the same concerns — advocating a death penalty generally for a category of federal offenders is not the same as advocating it in a specific case without having all of the available facts and evidence.  And the White House’s statement that the DOJ “will” seek the death penalty “where appropriate under current law” may suggest that the review process will remain objective.  But, it also raises a concern: does the White House mean to say that the DOJ will seek the death penalty where the statutory scheme provides for it?  Or does the White House mean that the DOJ will seek the death penalty only where current law allows it and the DOJ concludes from its internal review that death is an appropriate punishment based on the specific facts and circumstances of the case?  Big difference.

The President’s proclivity for public bombast when wanting to appear “tough” can have negative consequences for the policies he claims to support, transforming tough talk into presidential weakness.  His counter-opioid plan has some admirable components.  They deserve a serious but careful defense.

Trump and Thomas on guns, after Parkland

Gun law and policy dominated much of this past week’s news.  While the President expressed interest in supporting new measures, he also returned to some of the more extreme gun rights rhetoric that we saw during the campaign.  Meanwhile, little-noticed, another Second Amendment voice emerged.

During the presidential campaign, then-candidate Trump took positions on gun rights that call into question the reliability of his views (his campaign website links to gun policy are now gone, but see the contemporaneous reporting here and here).  He apparently believed that “law-abiding people should be able to own the firearm of their choice.  The government has no business dictating what types of firearms good, honest people are allowed to own.”  Although he asserted that current laws should be enforced, he also objected to gun bans.  I covered this ground during the campaign, noting the incoherence of his position.

The President announced this week that he has directed the Attorney General to craft regulations making bump fire stocks unlawful.  Set aside for the moment that a President who has boasted about undoing the regulatory state is now pushing new regulations (rather than legislation, which he could recommend).  The idea appears to be based on the proposition that the accessory functionally turns a semiautomatic weapon into an automatic one (a “machine gun”), and thus into a weapon that is already banned.  See 18 U.S.C. 922(o).  Whether done through new legislation or a new regulation, effectively, the President is now supporting a ban on a specific type of firearm, which differs markedly from the line that he peddled during the campaign.

The President also stated this week that he was open to legislation expanding background checks for firearms purchases (NYT coverage here).  During the campaign, as reported, Trump criticized efforts to expand background checks, saying that we should not expand a broken system and even promising to undo President Obama’s executive action on background checks (see here).  Perhaps his tepidly-expressed support this week will depend upon the specifics of forthcoming legislation.  But the real test of the President’s mettle on this issue will come when he is asked to back a measure that the NRA does not support.

Finally, he endorsed the idea of arming school teachers and staff (see WaPo here).  This idea may be worthy of consideration, but it is not a gun restriction. It will not reduce the number of guns available, nor would it likely deter many school shooters (e.g., those who expect, even hope, to be killed during their attack).  Moreover, whatever the merits of the idea with respect to school safety (and there are some), it is hard to see how this idea would protect Americans from gun violence in places that are not schools, or how it will help to curb gun trafficking, or gun crimes committed by street gangs or other criminal organizations that regularly employ and stockpile firearms, including military-style weaponry.

Another strong gun-rights view, however, appeared this week and was largely ignored.  Earlier in the week, Justice Thomas issued an opinion dissenting from the denial of certiorari in Silvester v. Becerra, a Second Amendment case involving the constitutionality of California’s 10-day waiting period for existing gun owners.  Repeating assertions he has made in earlier cases, Justice Thomas lamented the Court’s treatment of the Second Amendment, referring to it as a “disfavored right” and a “constitutional orphan.”  He correctly noted that the Court has not heard argument in a Second Amendment case in eight years, and has not granted a case assessing the constitutionality of a gun law in 10 years (since D.C. v. Heller).

Obviously, Justice Thomas’s several pleas to this effect have not persuaded the Court.  In fact, I wonder whether recent events will further dampen the likelihood that the Court will show interest in reviewing gun restrictions in the near future.  But his observations demand attention.  After all, it only takes four votes to grant.  So the question now is: will the Chief Justice and Justices Thomas, Alito, and Gorsuch ever agree on taking a new Second Amendment case?  What’s holding them back?

Since Heller, gun rights have become significantly liberalized in many states.  The practical effect of liberalization is that, even if courts restrict Second Amendment rights, the states remain free to keep gun rights broader than they would be pursuant to the Second Amendment.  Of course, Congress could mitigate some of this liberalization with federal legislation.  The most meaningful fights over gun rights therefore may not be found in Second Amendment litigation in the courts, important though that litigation may be.  Rather, the most meaningful battles may well be in Congress and in legislative bodies around the country that have seen fit to liberalize gun rights.  Still, close and pervasive gun regulation exists in America, and it is that regulation that is the subject of so many Second Amendment challenges.  Problem is, is this the right time for the Court to consider striking down gun regulations?

The mere fact of a political battle over individual rights does not necessarily mean that courts will stay on the sidelines (consider, for example, the same-sex marriage issue).  And rights are meant to be safe from the whims of political majorities.  Still, for now, perhaps the Court is content to leave its substantive Second Amendment jurisprudence where it stands after Heller, and leave the remainder to the political process, state constitutional law, and federal courts.  But if that is true, would it not prove Justice Thomas’s point?

One of Heller’s virtues was its recognition that Second Amendment rights are not unlimited; that a Nation devoted to the possession of guns for lawful self-defense and defense of others can also be a Nation where those same guns are sensibly regulated.  Imagine that, rather than avoiding the matter, the Court granted multiple Second Amendment cases and simply read Heller narrowly, clarifying the standard of review and applying it to protect most gun regulation.  That may not please Justice Thomas, and it would certainly result in amplified calls from some gun-rights advocates for appointment of “pro-gun” judges.  But a more fully developed Second Amendment jurisprudence could be helpful to the ongoing political debate about gun rights by clarifying the scope of the Constitution’s protection.

Indeed, a more fully developed Second Amendment case law could (depending upon its direction) have the effect of making absolutist Second Amendment rhetoric even less acceptable, pushing extreme gun rights talk further into the fringe and easing the legal path for sensible new criminal laws to prevent and punish gun violence.  That result would prove even more powerful if it came from the Court’s conservatives.  And for his part, the President could abandon his own loose rhetoric and return conservatism to its more natural place of balance, away from the extreme: that is, a decent respect for the tradition of gun rights tempered with a recognition that sensible gun regulation bears an important relationship to controlling crime and violence.

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.