Balkinization  

Wednesday, March 21, 2007

Can Bush Assert Executive Privilege in the U.S. Attorney Controversy?

JB

This turns out to be a pretty difficult question. And as Marty points out below, for political reasons, the President is going to shy away from playing this card unless he has to-- but that won't stop others from promoting the idea vigorously. No doubt we'll have more on this in the weeks ahead, but here are a few basic ideas to think about.

If this were a case where a sitting grand jury were investigating charges of conspiracy or obstruction of justice, the President would probably not be able to assert executive privilege to prevent executive branch officials from testifying about communications among the President and his closest advisors. This is essentially the holding of U.S. v Nixon, which recognized the constitutional basis of the privilege, and the doctrine was developed further in later lower court cases during during the Clinton Administration.

However, this is not a case involving grand jury testimony or a case in which the needs of the criminal process weigh against presidential privilege. Rather, it is a case involving a Congressional inquiry for purposes of oversight and possible legislative reforms. Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d. 725 (D.C. Cir. 1974), decided before U.S. v. Nixon, upheld a claim of privilege in tape recordings of conversations between President Nixon and his staff in the face of claims that Congress needed the information for oversight and to consider new legislation. Senate Select Committee does not hold that Congress cannot successfully overcome executive privilege in cases of oversight and legislative need-- and in fact the court emphasized the special circumstances of that case. (In particular, the House Impeachment committee already had access to some of the tapes the Senate Committee sought.) Rather, the case suggests that the President might have been on somewhat stronger ground there than President Nixon was in U.S. v. Nixon. (Later Administrations have read the Senate Select Committee case to suggest that Congress's interests weigh less heavily when it is seeking oversight rather than information necessary to produce new legislation, but I think this is not the best reading of the case. One could argue that where Congress is investigating possible wrongdoing by executive officials, the need for disclosure is higher, along the lines of the argument in U.S. v. Nixon.).

This history suggests two things. First, if Congress were to pressure the President to appoint a special prosecutor (as in the Plame case) to look into allegations of obstruction of justice in the firings, that prosecutor could probably compel testimony before a grand jury. (Of course, the President could always fire the prosecutor rather than allow the testimony, but if he was in such a weak political position that he had to allow a special prosecutor in the first place, firing the prosecutor later on would probably be politically impossible.).

Of course, that is one reason why Congress should push hard for the appointment of a special prosecutor to investigate criminal wrongdoing instead of relying solely on Congressional oversight hearings. It is important to recognize that even if the President otherwise had authority to fire the US Attorneys does not mean that the firings could not violate criminal laws like conspiracy or obstruction of justice if there was evidence that the firings were designed to forestall or to interfere with prosecutions. For the same reasons, of course, the President would probably resist the appointment of a special prosecutor initially-- because it would undermine his claims of executive privilege-- unless the appointment of a special prosecutor became politically unavoidable, as it turned out to be in the Plame case.

Second, even though the President may be on stronger ground in the present case because the privilege is balanced against the need for Congress to engage in oversight rather than the needs of the criminal justice system, the President may have potentially undermined his case by offering to allow Rove and Miers to meet informally in a closed door session with Congress without testifying under oath. Marty points out that the offer is carefully calibrated not to include testimony about actual conversations with the President so as to preserve the possibility of asserting executive privilege later on. Nevertheless, it will be hard to draw lines between what Rove and Miers can and can't talk about, and if the President is willing to allow disclosure of such sensitive information on an informal basis, the argument that he needs to refuse a broader set of disclosures under oath is somewhat weakened. That may ultimately may tip the scales in Congress's favor.


Comments:

Can Bush Assert Executive Privilege in the U.S. Attorney Controversy?

Yes.

Does it make sense? No.

Will the courts uphold it? No (see U.S. v. Nixon

Can Congress hold any maladministration official that refuses a subpoena in contempt of Congress? Yes.

Cheers,
 

See a satirical visual that lampoons the Bush administration's version of "Justice Is Served"...here:

www.thoughttheater.com
 

[from the post]: ...Second, even though the President is on stronger ground in the present case because the privilege is balanced against the need for Congress to engage in oversight rather than the needs of the criminal justice system, ...

I think this is a bit of a misdirection. While courts have recgnised that privilege might be at its lowest ebb in the context of a criminal prosecution (in the case of the "state secrets privilege" in particular), that had to do with the fact that a criminal defendant has a right to as much information as possible to defend themself (and a Constitutional right to compel witnesses for their defence). But here, the information sought is not (in theory) exculpatory and needed for the defence of an accused person, but rather it is potentially for the purposes of putting the friggin' maladministraiton hacks in jail. As such, the "special" needs of a criminal prosecution are really not much different than those of Congress in passing laws seeking a "more perfect union"; both criminal investigations of maladministration wrongdoing and Congressional inquiry in search of information to pass better laws to prevent further such abuses are arguably equally compellng in terms of both individual justice and societal interests.

Cheers,
 

The offer to allow Rove and Miers testify to Congress just as long as the circumstances ensured that they didn't have to be truthful was more than stupid and arrogant, it was incredibly ill-advised, if it were to be swiftly followed with a claim of executive privilege. What? Their knowledge is so crucial to the functioning of the executive branch that it is covered by a privilege, just as long as they're under oath? That sounds like a winning legal argument. I think the downfall of this administration could very well be the unbelievably third-rate legal advice it's receiving. Having callow yes-men reassure Bush that invading Iraq was a swell idea has led to unmitigated disaster in the Middle East, but for a president who lives in a bubble and has a sociopathic disregard for the suffering of others, he's not much affected. But having the same sort of incompetent sycophants dispensing legal advice can lead to dire consequences. If you're going to run a criminal enterprise, hire good legal help. Mob mouthpieces aren't schmucks.
 

Arne, I modified the post slightly before I saw your comments. I do think that the congressional oversight argument is stronger than most recent presidential administrations have suggested.
 

Let's say Congress said this wasn't oversight at all--or rather, that they were also thinking some new legislation might be needed.

If they said that they had concerns that existing procedures for appointing U.S. Attorneys had insufficient safeguards against politicization of justice, and were trying to find out what loopholes to close, wouldn't that make the asserted state interest pretty strong?
 

My usual half humorous reaction to contempt of Congress charges is that Congress is contemptuous of everyone else, so why shouldn't people be contemptuous of Congress?

But, seriously, this offer was both stupid and insulting. While I can think of circumstances under which it might make sense to make such an offer privately, to do so publicly must mean that Bush actually wants a confrontation, and expects to win it.

Hm, why would that be the case?

Just speculating, but it's clear that corruption, in the conventional sense of bribery and insider trading, is rampant in Congress. (That, or becoming elected magically makes you a stock trading genius.) Tolerated, too, as you can see from the fact that they've even considered giving Jefferson a plum committee assignment after everyone knows he's guilty as hell of bribery.

And Bush, somewhat irrationally, does not regard himself as corrupt, because he doesn't cheat on his wife, or fill his own pockets. (He's got a narrow conception of corruption, I'd guess. Narrower than mine, anyway.)

Maybe Bush is planning on ending the tacit ethics ceasefire in Washington, and mucking out the Congressional Augean stables. And figures that he'll come out on top of such a confrontation?
 

Thanks, Jules Siegel, for that informative post.

FYI, here is an online link to the CRS Congressional Oversight Manual, which does provide a general description of subpoenas and their enforcement. And here is a link to Congressional Access to Executive Branch Information: Legislative Tools, also from CRS.

It is important to realize that the standoff between the White House and Congress is still far from critical. Negotiation is still possible, and history suggests that a settlement might not be reached until the parties actually are at the brink -- which could be the point where a house of Congress is on the verge of citing some recalcitrant party for contempt.

As I understand it, the next steps (today and tomorrow) are that the Senate and House Judiciary committees will vote to authorize subpoenas. Actually issuing them would be a separate step, and service yet another. Then the targets might attack the subpoenas in court -- one route to litigation -- or even just stonewall. In the latter case, it would first be up to the houses of congress to vote contempt. Enforcing such a contempt holding -- in what would be at least ironic and perhaps explosive -- typically would rely on a U.S. attorney unless Congress were to dust off its own cumbersome procedures for trying the party in the legislature.

So the dance commences. Fred Fielding is an old hand at this stuff; that's why he was recruited. It is also not the first rodeo for Patrick Leahy and John Conyers.
 

Professor Balkin:

Of course, that is one reason why Congress should push hard for the appointment of a special prosecutor to investigate criminal wrongdoing instead of relying solely on Congressional oversight hearings. It is important to recognize that even if the President otherwise had authority to fire the US Attorneys does not mean that the firings could not violate criminal laws like conspiracy or obstruction of justice if there was evidence that the firings were designed to forestall or to interfere with prosecutions.

Obstruction of exactly what investigations or prosecutions? These folks appear to have been fired for declining to investigate voter Dem voter fraud cases in their jurisdictions. Thus, the only obvious "obstruction of justice" here appears to fall within the prosecutorial discretion of the fired US Attorneys.
 

Usually obstruction of justice occurs when someone hinders an investigation. Can you have obstruction of justice for the reverse, i.e. pushing someone to unreasonably pursue an investigation?
 

What is the difference in privilege between:

Communications between the WH and external parties (I think this is what Bush agreed to release Tuesday).

Communications between WH staff (Rove to Miers).

Communications with the POTUS.

Also are there differences in privilege if only the confirming the date/time of communication on a broad subject, leaving out the content? (Did the pres know and when did he know?)

The last question is based on this idea: although the advice given might be privileged, the results of the process are known and public. Also, up until a late date, it appears that the president didn't know about the details of the process. How can the president exert privilege, to protect his ability to get unvarnished advice, if he wasn't in the loop and wasn't getting any advice?

I heard Bud Cummins wonder if Bush ever even knew who he was. Maybe there needs to be some paper trail maintained on political appointees, because if they actually serve at the pleasure of the president, can that authority be verbally delegated?
 

Zathras:

Usually obstruction of justice occurs when someone hinders an investigation. Can you have obstruction of justice for the reverse, i.e. pushing someone to unreasonably pursue an investigation?

18 USC § 1503:

"(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States...."

Cheers,
 

"Bart" DePalma:

Obstruction of exactly what investigations or prosecutions? These folks appear to have been fired for declining to investigate voter Dem voter fraud cases in their jurisdictions. Thus, the only obvious "obstruction of justice" here appears to fall within the prosecutorial discretion of the fired US Attorneys.

The Dubya-appointed USAs did investigate, and found there are no "there" there. "Bart" is free to express his own opinions (deluded thought they may be), but he's not free to make facts up.

Cheers,
 

My reference to Jules Siegel above was to give a h/t his informative post about congressional subpoenas in a related thread at Volokh. I failed to make that clear.
 

arne:

The "influence" to which 18 USC 1503 refers that meant to obstruct an existing investigation or prosecution of a legal action, thus the term "obstruction of justice."

Do some research and find us a federal case where a supervisor ordering a subordinate at Justice to investigate an allegation of criminal activity was convicted of obstruction of justice in violation of 18 USC 1503.

The Dubya-appointed USAs did investigate, and found there are no "there" there.

That is what some of them claim. Care to do some actual investigation yourself and provide exactly what these US Attorneys actually did to investigate voter fraud in their jurisdictions?
 

Bart says: That is what some of them claim. Care to do some actual investigation yourself and provide exactly what these US Attorneys actually did to investigate voter fraud in their jurisdictions?

According to David Iglesias (Republican US Atty for New Mexico), he created a voter fraud task force to investigate these types of claims. He also worked with the FBI and the DOJ's public integrity section to determine whether there was enough evidence to prosecute. He examined the FBI's evidence and found that it did not support bringing a case, and neither the FBI nor the DOJ found any problems with his conclusions or with the investigation.
 

adam:

The Inglesias voter fraud task force was formed in 2004 based on largely Dem complaints, lasted 10 weeks and referred a number of matters to the FBI for further investigation.

In 2006, after receiving a number of largely GOP complaints, Inglesias did nothing of which I am aware. Thus, my question stands.
 

Bart,

Please tell us where we, like you, can discover what complaints may have been made to Iglesias in 2006, and also how we can find out what he did.
 

Bart,

Are suggesting that Iglesias, a Republican appointed by Bush, was somehow more inclined to investigate complaints of voter fraud by Democrats than complaints issued by Republicans? I am skeptical to say the least. In any case, I believe you are mistaken on the facts. The concern about voter fraud stemmed from the 2004 election, not the 2006 election. These complaints were filed primarily by Republicans, not Democrats. see this link, which describes the complaints, the investigation and Iglesias' reasons for not indicting:

http://www.nytimes.com/2007/03/18/washington/18attorneys.html?bl=&ei=5087%0A&en=47a69d5cd8348721&ex=1174536000&pagewanted=all

The controversy concerning the 2006 elections arose not from voter fraud, but from the failure to indict and convict former Democratic New Mexico state legislators before the elections in November. Two Republican Congressmen pressured Iglesias to file indictments before the election (obviously, these indictments would have hurt the Dems' strategy of painting the Republicans as the party of corruption and scandal). His name was added to the list of prosecutors to be fired following the 2006 election.
 

Actually, only two of the fired US attorneys (David Iglesias and David McKay) were accused of failing to investigate Democratic vote fraud.

If eight US attorneys were fired, all for failing to find Democratic vote fraud in elections the Democrats won by extremely narrow margins, that would smell a good deal worse than what we have now.
 

"Bart" DePalma:

The "influence" to which 18 USC 1503 refers that meant to obstruct an existing investigation or prosecution of a legal action, thus the term "obstruction of justice."

And your cite for this non-obvious interpretation of the plain word "influence" is?______

Do some research and find us a federal case where a supervisor ordering a subordinate at Justice to investigate an allegation of criminal activity was convicted of obstruction of justice in violation of 18 USC 1503.

There may never have been any maladministration corrupt enought o do this. But it's your assertion. Find a case that says that your interpretation of "influence" is what you say it is.

[Arne]: The Dubya-appointed USAs did investigate, and found there are no "there" there.

That is what some of them claim. Care to do some actual investigation yourself and provide exactly what these US Attorneys actually did to investigate voter fraud in their jurisdictions?


No. Why don't you show how they were wrong (and they weren't the only ones of the opinion there was no "there" there) in not prosecuting on the evidence (or lack thereof)?

Cheers,
 

Charles said...

Bart, Please tell us where we, like you, can discover what complaints may have been made to Iglesias in 2006, and also how we can find out what he did.

In an article heavily slated to the Dem storyline of "heroic prosecutors fired for political reasons," the Washington Post still recently provided a decent thumbnail sketch of complaints by GOP groups and congressional reps to Inglesias (and McKay) during the 2006 elections and how Inglesias pointed to his 2004 task force as if that somehow addressed his inaction on the 2006 complaints.

It would be interesting if the WP and the rest of the Dem media did report on the substance of this alleged voter fraud, which are the only potential crimes involved in this entire non scandal.
 

Bart,

You really should read what you recommend. It reported not only the paltry number of complaints, but also what was done, which apparently was to consider them, together with the FBI, and decide they couldn't be prosecuted.

Hence, your statement that Iglesias did nothing about them is based on not reading the article you sent me to.

In fact, the article further indicates to me that this is just the kind of public attorney we need more of.

The fact that he was fired just smells worse now.
 

Question: what is the justification for more deference to Executive Privilege in political cases than criminal cases?

The justification for EP is that the President needs to keep secrets for political purposes (National Security, etc). It would seem to me that a judge would be in a poor position to judge the political needs of the country, as he is a legal officer and not a political officer.

On the other hand, Congress is a political body, which has the power to legislate on secrecy classification and the political needs of the country. Congress is the perfect organ to decide whether the president has a justifiable political need to keep a secret - of course through appropriate processes that protect confidentiality during the investigations leading up to a subpoena.

Impeachment power was given to Congress and not the judicial branch for a reason: decisions that are essentially political need to be taken by political bodies.
 

I am not sure I see the logic in saying that the executive branch, when it offers an accomodation to the legislature, has thereby weakened its claim for executive privilege. It seems counter-intuitive. Would we say that if the executive let's, for example, the WH counsel testify, that the Congress has a better claim to force testimony from the president?
 

Bart,

Where are you getting the idea that there were voter fraud complaints in the 2006 election that Iglesias did not address? All of the complaints I have seen refer to voter fraud in the 2004 election. The article you link to does not claim that there were allegations of voter fraud in 2006 in New Mexico. As I said before, the 2006 election "controversy" had to do with claims that Iglesias failed to prosecute former Dem state legislators before the 2006 election. There may have been lingering resentment in 2006 re: Iglesias' failure to convict anyone for voter fraud arising from the 2004 elections. But that is quite different from what you are claiming.
 

Thomas:

I am not sure I see the logic in saying that the executive branch, when it offers an accomodation to the legislature, has thereby weakened its claim for executive privilege. It seems counter-intuitive.

They're showing that such revelations don't wreak havoc with the preznit's need for "good information" (which in itself is a laugh given the fiasco in Iraq; how could we have done worse?)

Cheers,
 

adam:

"Bart" is immmune to facts. He's "making [his] own reality".

Cheers,
 

So Arne are you saying that, given cooperation on some portion, the Congress can insist on the president's testimony?

The separation of powers and respect for a co-equal branch of government would seem to prohibit that, and executive privilege is meant to protect those interests as well.
 

Thomas,

wouldn't co-equal branches of government demand that Congress can investigate the executive branch, and issue subpoenas to anyone they want? If only the executive branch has that power of investigation and enforcement, then ultimately co-equal actual means unequal; the president has the FBI, but Congress can't return the favor - presidency wins.
 

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