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.

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.

Helpful commentary on the constitutionality of Syrian airstrikes

Despite the relative popularity of the President’s use of airstrikes last week in Syria, the argument continues as to whether the President’s action was constitutionally problematic.  The Congress has not debated, much less approved, a new authorization for force in Syria, whether against the Syrian government or ISIL (and it is notable that we have now taken hostile action against both sides of the conflict there).  And there is no question that the President could not rely upon the existing AUMFs for last week’s airstrikes.  Therefore, his only reservoir of power for this action is Article II of the Constitution.  The President’s report to the Congress pursuant to the War Powers Act is here.

The folks at Lawfare have typically excellent commentary on the matter.

John Bellinger’s piece on the War Powers Report is here.

Andrew Kent’s piece is here (with a good discussion of originalist views on war powers allocation).

Jack Goldsmith’s piece is here.

If the President has a longer-term military strategy in Syria, his ability to engage there without approval from Congress is, legally, probably substantially limited.  But because a federal court is unlikely to police the allocation of constitutional war powers, it is for Congress to defend its own prerogatives.  Even without seeing a plan from the President, Congress should long ago have been debating the American military role in the Syrian conflict, or, at a minimum, the scope of presidential powers to attack ISIL.  As long as Congress remains silent, however, it will continue to send a signal to this and other Presidents that it acquiesces in any military action.  It is possible that members of Congress are reluctant to take a position on the use of force abroad, fearing being stuck with their vote if the mission goes poorly.  But the use of American military force — and the blood and treasure of the American people — is not a matter on which the legislative branch should be perpetually silent.

 

The constitutional education of America, and of its President

The Ninth Circuit has ruled that President Trump’s Executive Order could remain subject to a stay issued by the District Court in Seattle.  The opinion is here.  This is not a ruling on the merits, though the emergency relief standard was applied and the Court concluded that there was not a likelihood that the Government would succeed on the merits of the case.  The court’s holding was, in my view, a dubious one, though not an unreasonable one.

Regardless of one’s position on either the wisdom or legality of the Order (and I believe the arguments for its legality are far stronger than the arguments for its wisdom), the entire episode has served as a kind of civic education for the American people.  Americans are confronted with serious questions about the scope of presidential power, of constitutional rights, of the place of religion in the scheme of law and policy, and of the role of courts in cases where rights and security intersect.  We have had other such moments in our history.  But it is difficult to think of a time in recent memory when so many valuable questions of constitutional government arose over a single official act.

Americans, regardless of party or viewpoint on the Order, should take time to carefully consider these matters and what they mean for the Republic.  That does not mean that they should all crack open a copy of The Federalist Papers (though we could all do much worse than to spend a few moments with Publius these days), or study The Steel Seizure Case by the fireside with a glass of chianti.  It does mean, though, that Americans ought to savor the opportunity to reflect on what it means to live under a rule of law and a venerable Constitution that diffuses government power.  They should reflect on what it means to have limited government, to have checks that prevent presidents from simply acting at will and checks that prevent judges from ruling as philosopher-kings.

One hopes, too, that the President will savor the same opportunity.  His actions for the past two weeks (nearly two years!) have created serious questions about his commitment to the rule of law and to constitutionalism, questions I raised during the campaign and that have persisted despite my dim hope that his authoritarian tendencies might be tempered by institutions, by an appreciation of history, and by the sheer weight of his office.  The one bright spot in this period was his nomination of Judge Gorsuch.  But as I said during the campaign, it is not enough that Presidents appoint judges who are constitutionalists.  The President himself must demonstrate that same fidelity.

Presidents can be critical of the courts.  The judiciary is not immune from criticism, nor should it be.  Lincoln, before his presidency, thoughtfully criticized the Dred Scott decision.  FDR’s tussles with the Supreme Court were so tense that he proposed packing the Court with Justices who would approve his economic recovery programs.  President Bush respectfully criticized the Supreme Court’s war on terror decisions that disfavored his expansive view of presidential power.  President Obama criticized the Court’s Citizens United opinion during the State of the Union Address.  It is fair, and proper, that political leaders disagree with judges from time to time.  But criticism that seeks not merely to disagree with, but rather to de-legitimize, courts and judges does violence to the separation of powers and a politically independent judiciary.  This is, unfortunately, President Trump’s modus operandi.  He prefers to de-legitimize a critic or opponent, often ad hominem, rather than contest them on the merits.  It is the last refuge of a man who is out of his element on substance.

So, rather than make any one of the credible substantive arguments he could have made in defense of the Order, naturally the President chose instead to personally insult Judge James Robart as a “so-called judge” (never mind the judge’s unanimous confirmation by the Senate).  And perhaps worst of all, he then asserted that federal judges who opposed the Order would be held responsible for a terrorist attack – it is hard to think of a more insidious presidential assertion about the judiciary.

To worsen things, he also fired Acting Attorney General Sally Yates for her refusal to enforce the Order.  This was admittedly a somewhat more complicated matter.  Yates’s directive to the Justice Department would have been stronger had she set forth more precisely her legal arguments against the Order, arguments that almost surely would have been vindicated in the 9th Circuit’s opinion (though surely she could have articulated grounds for the Order’s defense, as well).  And there is no question that the President had the power to relieve her of her duties.  But firing her on the spot did little to inspire confidence in his judgment; it was a rash display of raw power that sent the wrong message and failed to consider the longer-term consequences.  Imagine now how Attorney General Sessions must feel.  General Sessions has been placed in an untenable position, and one that diminishes his capacity for independence from the President.  Even the most ardent defender of the Unitary Executive must shudder at the thought of an Attorney General who may have to choose between defending the Constitution and losing his job.

To some extent, the President’s constitutional schooling of late may include a lesson on a truth that his critics repeatedly noted during the campaign: words matter.  Lately, the President has been reminded of his disgraceful pander that called for a “complete and total shutdown of Muslims” entering the country.  But the problem goes even deeper.  The Government’s claim in litigation that the President should be entitled to great deference in matters of national security is a sound, if imperfect, claim.  But when giving deference to Presidents, it may well be that courts generally trust that the President is knowledgeable and credible on those matters, that his judgment is worthy of deference because he has thought seriously about the problem and vetted his decisions through the collective expertise of the military, intelligence, and security communities.  This President, by contrast, is the one who said he knows more than the generals about ISIS, appeared to suggest that the CIA was using the same tactics as the Nazis, heaps bizarre praise on Russia’s ruling dictator while heaping scorn on genuine American heroes like John McCain and John Lewis, and said our military leaders had been “reduced to rubble.”  And it is becoming increasingly clear that the vetting of this Order was shoddy, at best.   Is it any wonder, then, that informed jurists would be reluctant to defer to this President’s judgments?

Does all of this make the Trump Presidency hopeless?  It does not.  On the Executive Order, the Government retains considerable arguments in favor of its constitutionality – or at least in favor of substantial deference to the President’s national security decisions, in light of the limits on the judiciary’s expertise in such matters – though the prudent course may be to scrap the Order altogether and start over.  Judge Gorsuch will likely make an outstanding Supreme Court Justice.  Tax reform is a real possibility.  And this President may be able to play to his strengths in securing a major infrastructure package on a bipartisan basis.

But the President needs to right this ship in a hurry.  The collection of rash, impulsive, and even bitter statements over the past two weeks has created a portrait of a President who views his official powers as a one-way ratchet.  He has created the impression that the law must bend to his will, lest a tantrum follow.  Of course, Americans should have seen some of this coming.  But the people, through their representatives in the Electoral College, elected him anyway.  Perhaps, then, it is fitting to be reminded of Madison’s admonition in Federalist 51 on the importance of separated powers: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”