Treason as “a legal matter”

In recent weeks, President Trump has continued his troubling practice of accusing folks of treason, clearly not having read the Constitution’s careful definition of treason nor any other authorities that would provide him with even an elementary understanding of American treason law.

In responding to a question last week, the President named several folks from the FBI who were involved in the initial investigation into his campaign, and said their conduct was “treason.”  (WaPo story here). Two weeks ago, he Tweeted that his campaign was “conclusively spied on . . . TREASON means long jail sentences, and this was TREASON.” (see here).  Add these to a long list of treason accusations from this President (see this earlier piece), who seems to conflate disloyalty to him personally with the forms of national disloyalty that are actually treasonous.

Of course, none of these situations that were the subject of the President’s ire actually implicate the law of American treason.  Those who conducted the investigation into the Trump campaign, for example, did not “levy war” against the United States, as that phrase has been long understood, nor did they “adhere” to an American enemy, giving that enemy aid and comfort.  Indeed, if the President believes that this was a species of Adherence Treason, then who, exactly, was the enemy that these public servants were aiding?  Alternatively, if he believes that their attempted “coup” (it was not that, of course) was tantamount to levying war (it wasn’t that, either), how could they possibly have been levying war against the United States?  Trump was, after all, a private citizen at the time.  And a presidential candidate’s campaign is not “the United States.”

The President’s suggestions on this matter are so inane that they cannot, and should not, be taken seriously.  Fortunately, many commentators have reached this very conclusion and said so publicly (see, e.g., here, and here and here), though I suspect the President will not hear any of us.

In a current research project, I amplify the concerns of some of these commentators and tackle the loose rhetoric of treason (by many, across the political spectrum, over recent years — I have covered this ground here before).  But I give particular attention to the dangers of such rhetoric when it comes from a President.  The President sits atop the American military command structure, oversees the work of federal law enforcement agents and prosecutors, and “takes care” that the laws are “faithfully executed.”  When a sitting President publicly accuses someone of a crime — particularly when that crime is of the most serious variety, defined by the Constitution, and punishable by death — the use of this language takes on special meaning and force.  And it can be especially dangerous and irresponsible.

Now, Attorney General Bill Barr has given an interview to Jan Crawford of CBS News, in which he is asked about the President’s suggestions that investigators on the Russian interference probe committed treason.  Somewhat remarkably, the Attorney General’s response was, “not as a legal matter.”

Okay.  But also: yikes.  Of course, he is right that none of this was treason “as a legal matter.”  But, what other kind of “matter” is there when it comes to treason?  Is there some other way of understanding treason that would justify the President’s statements?  Attorney General Barr seems to be implying that there is some extra-legal, political, or cultural construct for treason that one might plausibly use, though it be divorced from the law of treason.  Of course, it is comforting that he did not share the President’s view of treason.  But I fear that his suggestion here has, even if unintentionally, left open a justification for lobbing treason accusations unbounded by law.

Treason is, by definition, a legal matter.  So critical was a proper — and narrow — understanding of treason that the Framers refused to leave it to mere legislation; they constitutionalized it.  They rejected the broader definitions of treason that marked English law under the Statute of 25 Edward III.  They took great care to craft a sufficiently restrictive law of treason, one that could not be used to suppress mere political dissent or to oppress one’s political opponents. Moreover, when we state affirmatively that someone committed murder, or rape, or bank robbery, we necessarily use those terms as a legal matter, in the sense that we are alleging conduct that is previously defined by law and carries some legal consequence.  I suspect that if the President accused a specific person of rape or murder, we would expect a good faith basis for that assertion, one in which underlying facts are specifically applied to the elements of the offense.  We should expect no less when it comes to treason.

I worry, then, that the President’s rhetoric has further contributed to a popular belief that labeling someone as guilty of treason is an acceptable political epithet, one that can be used casually — and for political advantage — without any reference to its legal understanding, history, or background. This rhetoric has invaded national security politics, and has the potential to undermine the seriousness with which Americans should take treason. For this reason, Barr should simply have said to Crawford, “no, there was not treason,” and left it at that.  Saying there was not treason “as a legal matter” is accurate, but also sounds just equivocal enough to invite confusion, and mischief.



The McGahn subpoena, executive privilege, and congressional needs

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

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

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

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

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

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

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

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

The McGahn subpoena and waiver of executive privilege

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

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

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

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

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

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

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

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

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

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

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

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

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

“The necessity of auxiliary precautions”

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

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

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

For multiple reasons, there is fault in that formula.

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

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

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

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

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

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

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




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

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

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

They should get it.  Probably.

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

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

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

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

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

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

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

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

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


RIP, John McCain

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

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

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

Requiescat in pace.


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.”