Balkinization  

Wednesday, March 21, 2007

Did Anyone in the White House Act Unlawfully?

Marty Lederman

Jack is right that there are few judicial decisions on executive privilege, and that these disputes are typically resolved through negotiation. This one probably will be, too.

But what about the constitutional "merits" of the privilege claim, such as they are? It's hard to say. But it is worth noting two arguments increasingly being pushed by the President's supporters, both of which were invoked last night by Michael Carvin on the NewsHour.

First, "this is advice within the White House itself, and that's typically where you draw the line."

It is true that every Administration, of both parties, often articulates the view that communications within the President's close confines are virtually inviolate, and that the President's closest advisers cannot be compelled to testify. For instance, when National Security Advisor Rice was asked to testify before the 9/11 Commission, White House Counsel Gonzales wrote that "based on principles underlying the Constitutional separation of powers, Presidents of both parties have long taken the position that White House advisors and staff are not subject to the jurisdiction of legislative bodies and do not provide testimony -- even on a voluntary basis -- on policy matters discussed within the White House or advice given to the President." (Rice testified on certain conditions.)

Surely there is something to this, and the Court would be most reluctant to intrude on Executive communications the closer those communications get to the President himself. But the Court has never established a flat rule that such communications are per se privileged -- after all, Nixon had to turn over his tapes of Oval Office conversations -- or that close advisors can never be compelled to testify. And as I mentioned yesterday, it's not uncommon for such close aides to testify about matters in the Executive Office of the President -- it happened frequently in the Clinton Administration, for instance. In this case, if any wrongdoing occurred, it almost certainly occurred in the White House itself, which is where any incriminating evidence would be. Thus, if Congress is entitled to actually learn about the reasons for the U.S. Attorneys' dismissals, and possible pressure brought to bear on their prosecutorial practices, then it will necessarily need to receive information about what transpired in the White House. (After all, it was the President who dismissed the officers.)

Second, Carvin said that "there's no evidence of criminal wrongdoing here," and "the Supreme Court has made it clear: You need a very clear showing of a reasonable suspicion of criminal wrongdoing to overcome the president's inherent power to get unfettered advice from his advisers."

That's wrong. The Court has never even suggested such a rule, let alone "made it clear." Congress also has the power to investigate the workings of the Executive branch simply to determine whether legislative amendments are necessary in order prevent or deter undesirable government practices, and perhaps even for the basic function of facilitating "the American people's ability to reconstruct and come to terms with their history," Nixon v. Administrator, 433 U.S. at 452-453 (although for that purpose the need might not be as urgent).

Nevertheless, there is at least a grain of truth in Carvin's remark, because as the Court's opinion in the Cheney Task Force case makes clear, 542 U.S. at 384-386, the Court will be more sympathetic to demands for Executive branch communications and testimony if there is evidence of criminal wrongdoing and such information is needed to determine whether such wrongdoing occurred.

Carvin claims that there's no evidence of such wrongdoing in this case. And others have argued that because under current law the President can remove U.S. Attorneys for virtually any reason, there's really nothing to investigate here.

Is that right?

If there was any crime committed here, it was probably the "corrupt" influencing of a government proceeding. See 18 U.S.C. 1505 ("Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, . . . Shall be fined under this title, imprisoned not more than 5 years"); and 18 U.S.C. 1512(c)(2) ("Whoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.")

If, say, Karl Rove, or Harriet Miers, or someone else in the White House, tried to pressure the U.S. Attorneys to drop investigations because the targets (e.g., Duke Cunningham) were Republicans, or to press certain investigations or prosectutions because the targets were Democrats (e.g., pressure to bring "vote fraud" cases regardless of whether there was any evidence of such fraud), that would arguably be an attempt to "corruptly" influence official proceedings -- to bring improper influences to bear on whether an investigation goes forward, or whether a prosecution is initiated. This is especially so because, as my colleague Julie O'Sullivan has explained in a very informative recent article (96 Journal of Criminal Law & Criminology 643, 697-708 (2006)), the definitions of "corruptly" in these statutes are exceedingly vague and capacious, and could easily encompass such behavior . . . if it that's what happened.

What gives me pause about the prospect of violations of sections 1505 and 1512, however, is that presumably Karl Rove, Harriet Miers, et al., were serving as agents of the President. And the decision whether to prosecute a federal case under current law is ultimately the responsibility of the President himself. Can the President (or those acting on his behalf) "corruptly" influence decisions over which he himself has the ultimate authority? That seems like an odd notion (and would certainly be a novel application of the corrupt influence statutes), but I don't know enough about these criminal statutes to say for certain. (I would certainly welcome knowledgeable comments about these statutes as applied to this unusual situation.)

In any event, even if the corrupt-influence statutes are inapposite here, pressuring the U.S. Attorneys to make prosecution decisions based on the partisan affiliation of the possible defendants would still be unlawful, because it would violate the President's constitutional obligation to take care that the laws are faithfully executed. Indeed, the very act of removing the U.S. Attorneys might itself constitute a "take care" violation if they were fired so as to prevent prosecution of Republicans, or to smooth the way for unwarranted prosecutions of Democrats. Just because the President can remove U.S. Attorneys at will does not mean that any ground for removal is permissible. There are constitutional limits. He could not fire them because of their religion or race, for instance. And he could not fire them in order to ensure partisan prosecutorail decisionmaking. As Stuart Taylor remarked on the NewsHour: "You fire the U.S. attorney because you want him to do more death penalty cases, that's fine. You fire him because you want a Republican, that's fine. You fire him because you want to put a patronage appointee in the job, that's fine. You fire him because he's not prosecuting Democrats or because he is prosecuting Republicans, that's not fine."

And if such impermissible prosecutorial considerations had something to do with these removals, it's likely that the only evidence of that is in the White House itself, e.g., in internal documents.

This doesn't mean that the President should lose the executive privilege battle, if it is ever "resolved." But to the extent the merits of such decisions are influenced by whether the information is necessary to determine whether there was any criminal (or, in this, unconstitutional) wrongdoing -- and surely that is one relevant factor in the constitutional balance -- this might be such a case.

Comments:

Follow the money trail, like Lam was doing, and you will see it runs from Brent Wilkes, to Cheney's office, to the Dukester. Literally. People in DC and San Diego KNOW why Lam was fired and were discussing it for some time now prior to this scandal breaking. But to earn our stay in society's good graces card, we have to tap dance around this knowledge until the last paper is signed in the guilty pleas. Fine, as a lawyer I must, that hesitation to pronounce guilt is very good thing. Fine. But people in the know , know, and they knew right after Foggigo's house was raided. This is an internecine struggle within the intel community. As was Watergate. You will be seeing more leaks on this issue
 

I respectfully and very emphatically dissent, but I've chosen to do so (at insufferable length, I concede) on my own bandwidth rather than burdening yours, Professor.
 

When a President sets policy, the U.S. Attorney is obliged to implement it or face the prospect of removal. It ought to be worth noting when, in the news, critics call such removal partisan without providing explicits. [Be sure, also, to consider that one politician may have asked for removal for the wrong reasons yet the removal was made because attorney was malingering.]

In other words, shine the light of day on partisan critics shouting "partisan" to throw sand in your eyes. Shine it also on the incompetent, malicious, or ever-gullible press that refuses to notice.
 

"What gives me pause about the prospect of violations of sections 1505 and 1512, however, is that presumably Karl Rove, Harriet Miers, et al., were serving as agents of the President."

Where it gets murkier, however, is in the same place the internal deliberations argument gets murky: two New Mexico senators, that is, members of the legislature, apparently pressured attorney Iglesias but consulted the White House. Thus a crime may have been committed under 18 U.S.C. 1505 by people outside the executive branch, but I wonder if because they involved White House staff and thereby negated the "internalness" of the deliberations, White House staff would not be protected by executive privilege.
 

"And the decision whether to prosecute a federal case under current law is ultimately the responsibility of the President himself. Can the President (or those acting on his behalf) "corruptly" influence decisions over which he himself has the ultimate authority?"

This disturbingly sounds like the famed Nixon quote about when the President does something, its not breaking the law. I think the American people have disavowed that interpretation, even if the courts have not.
 

Professor Lederman:

If, say, Karl Rove, or Harriet Miers, or someone else in the White House, tried to pressure the U.S. Attorneys to drop investigations because the targets (e.g., Duke Cunningham) were Republicans, or to press certain investigations or prosectutions because the targets were Democrats (e.g., pressure to bring "vote fraud" cases regardless of whether there was any evidence of such fraud), that would arguably be an attempt to "corruptly" influence official proceedings

To start, the White House has released the communications between the WH and Justice on this matter and the US Attorneys have testified. There is no evidence of any communications between the WH and these prosecutors on any prosecutions or failures to investigate or prosecute.

If one of the US Attorneys claimed that Karl Rove was pressuring them to drop a case against a GOP congressman, then you might have evidence of criminal wrongdoing which would merit a subpoena to compel Mr. Rove to testify under oath (although the better practice would be to start a criminal investigation against Rove.) However, there is no such evidence to start an investigation.

More interestingly, exactly how do you propose a President or a subordinate working as his agent can "corruptly" suggest or even order a subordinate US Attorney to investigate voter fraud? The President is the sole executive and thus the chief law enforcement officer. The US Attorney is a subordinate and has no autonomy not granted by the President. Unless you are suggesting that a mere investigation of voter fraud is somehow illegal, I am having a hard time seeing your point that an order, much less a suggestion, to conduct such an investigation can be illegal or "corrupt."

"You fire him because he's not prosecuting Democrats or because he is prosecuting Republicans, that's not fine."

Apart from the fact that the premise is pure speculation without evidence, for the sake of argument, exactly why would firing a prosecutor for bringing cases against only one party not be fine? Unless you claim that one party has a monopoly virtue and the other on corruption, the mere appearance that a prosecutor is only pursuing complaints against one party should be ringing ethical alarm bells with any conscientious boss.
 

Surely there is something to this, and the Court would be most reluctant to intrude on Executive communications the closer those communications get to the President himself. But the Court has never established a flat rule that such communications are per se privileged

Why does the Supreme Court get the last word on whether Congress can demand to know the advice given to the President by his closest counselors? It would be equally reasonable to say that the President has the last word on whether or not Supreme Court clerks can be forced to testify about what their Justice said about an important case.
 

Mr. Buck: As a practical matter, the Supreme Court gets the last word because the alternative would be tanks on the Mall. We faced that constitutional crisis in 1974 in United States v. Nixon, in which some folks seriously urged Nixon to just ignore the Supreme Court's ruling that he had to turn over the Oval Office tapes, with others suggesting that he burn them. Instead, he climbed into the helicopter after signing over to Jerry Ford. To a lesser degree, Al Gore faced that crisis when he, as Veep, read out the electors' votes that effectuated the SCOTUS' ruling in Bush v. Gore. The Radical Republicans backed down from threats to impeach Lincoln near the end of the Civil War, but went through with them against Andrew Johnson, but then the Senate backed down when it acquitted him over the Tenure in Office Act (which was blatantly unconstitutional).

This literally goes back at least to Marbury v. Madison at the dawn of the Republic.

Sometimes the Supreme Court punts -- the "political question" doctrine. If the current SCOTUS saw this as a transparently political fight, it might do that in the case of a Congressional subpoena over the fired U.S. Attorneys. (But I doubt it.)

Ultimately we depend on each branch deferring in some respect to the other because the alternative is chaos and civil war. It's all about checks and balances, baby. (And yet, to paraphrase Stalin's comment about the Pope, "How many divisions does Congress have?" That's the fear, but that's why we're not the U.S.S.R. circa 1944 or 1992.)


I suspect even Prof. Lederman and I are in agreement on these general principles, or at least most of them.
 

But if you bring up U.S. v. Nixon and Marbury v. Madison, you also have to take into account that both were disputes between the Executive and the Judiciary over their respective roles. In both, the Supreme Court was asserting Judicial Branch power.

In this case, we are still talking a political dispute between Congress and the Executive, the two political branches.
 

Prof. Lederman:

Surely there is something to this, and the Court would be most reluctant to intrude on Executive communications the closer those communications get to the President himself.

I just don't "get it". Why is there an interest in keeping such advice "confidential"? Shouldn't we demand of our gummint that they be able to defend their actions? If they're getting good advice, NP. If they're getting bad advice, I want to know about it.

While I'm not interested in the personal peccadillos of Dubya, such as how many pretzels he eats, I do care about the advice he's getting an what he's saying. We televise 24X7 Congress when it's in session, and hearings are open except when sentitive information (such as national security matters) is involved. No harm done. Can't the maladministration stand scrutiny? Can't they defend themselves?

Cheers
 

>>Can't the maladministration stand scrutiny? Can't they defend themselves?<<

On that note, why not just install audio/video recorders in all elected officials' offices to record all advice and discussion? Hey, it should be public, right?

And just a bit further, why do we allow attorneys and clients confidentiality? If their conversations aren't breaking laws, why not make them public? What are they afraid of?

And corporate board rooms. If they're not breaking the law, they have nothing to fear.

Right?

How about our homes?

Wouldn't it be better if *everything* were public? After all, only criminals should fear to have light shined on their words and actions. And we don't want to protect criminals. Do we?

OK, enough sarcasm. The real answer is, no one would give advice to a president (or a representative) if the knew they were going to be the subject of such scrutiny. It's not because the advice is illegal. It's because you can't be candid if you know 350 million people are listening.
 

I've reprinted, in full and by permission, Prof. Lederman's gracious, thoughtful, and articulate response to my post, which he sent to me via email, on my own blog, at this link. As he notes there, he may have more to say here on the Balkinization blog on these topics.
 

pcrh:

In arne's world, privacy is for Dems, criminals and terrorists, not GOP presidents.
 

"Bart" DePalma:

If one of the US Attorneys claimed that Karl Rove was pressuring them to drop a case against a GOP congressman, then you might have evidence of criminal wrongdoing which would merit a subpoena to compel Mr. Rove to testify under oath....

Pressuring then is one thing. But firing them may achieve the same purpose, and more efficiently. That doens't make it "legal".

Cheers,
 

"Bart" DePalma is just lost at sea:

Apart from the fact that the premise is pure speculation without evidence, for the sake of argument, exactly why would firing a prosecutor for bringing cases against only one party not be fine? Unless you claim that one party has a monopoly virtue and the other on corruption, the mere appearance that a prosecutor is only pursuing complaints against one party should be ringing ethical alarm bells with any conscientious boss.

Huh?!?!?

If one party did have a monopoly on virtue, and the other one on corruption, then a skewed prosecution record might be "fine". If that is not true, then an excessive preponderance of cases against one party compared ot the other smacks of politicisation of justice, and that is not fine. Which is what Prof. Lederman was saying. "Bart" is just confoozed (totally) here.

Cheers,
 

If one party did have a monopoly on virtue, and the other one on corruption, then a skewed prosecution record might be "fine". If that is not true, then an excessive preponderance of cases against one party compared ot the other smacks of politicisation of justice, and that is not fine. Which is what Prof. Lederman was saying. "Bart" is just confoozed (totally) here.

I guess I should ask you to define "fine" here. Are you suggesting that it is illegal? Or just not something you are comfortable with?

One counter to your suggestion is that the two parties "cheat" differently in elections, and not surprisingly, are more sensitive to the other party's cheating.

So, presidents and AGs from the two parties may have very different ideas of what type of voter fraud they think is more important, and as a result what type to prioritize. And prioritizing this way may result in very different outcomes.

p.s. One of the things that I hate about Blogger Word Verification are times like this, when the page is displayed w/o the words to verify. I then have to save my comment, refresh the page, paste in the comment, and try to get WV right. Another is carefully typing in the letters, just to have to try again.
 

I guess a short way of saying what I just did at length is that disparate impact often does not indicate causation, but may be attributable to other factors.
 

Evidence is a big problem in proving political motivation. Suppose Bush orders a US attorney to drop a particular corruption case against a big-city Republican mayor. He doesn't say "Don't prosecute Republicans," but "Don't waste your money on a case that's not a priority," or "that I think you will lose". What is a judge to think?

We don't want that "corruptly" interfere statute too broad, either. Otherwise, the President could order a US Attorney prosecuted for insufficient energy in a case prosecuting Democrats, claiming that the US Attorney was purposely being slow. Which, in fact, he might well have been--- but firing him is a better solution.
 

pcrh:

On that note, why not just install audio/video recorders in all elected officials' offices to record all advice and discussion? Hey, it should be public, right?

Sounds good to me.

Cheers,
 

Bruce Hayden:

[Arne]: If one party did have a monopoly on virtue, and the other one on corruption, then a skewed prosecution record might be "fine". If that is not true, then an excessive preponderance of cases against one party compared ot the other smacks of politicisation of justice, and that is not fine. Which is what Prof. Lederman was saying. "Bart" is just confoozed (totally) here.

I guess I should ask you to define "fine" here....


"Fine" = fine. It's OK. If only one party is cheating, then prosecuting only one party would be the expected behaviour.

... Are you suggesting that it is illegal? Or just not something you are comfortable with?

Read it again,, keeping in mind my more recent elucidation.

One counter to your suggestion is that the two parties "cheat" differently in elections, and not surprisingly, are more sensitive to the other party's cheating.

Also covered above. If that's true, fine. If indeed both parties have some level of cheating, and only one is being prosecuted, is that "fine" with you?

Cheers,
 

pcrh,

Florida has a Sunshine Law that requires all public business to be conducted in, well, public. Commissioners can't contact city managers privately to discuss matters - it's all got to go on the record.

I can't know how much corruption has been eliminated by the law -- any competent crook can work his way around it -- but it definitely has not caused Florida to drop into the sea (unlike global warming will).

Public officials are agents of the public - they have no right to privacy regarding their public conduct, beyond the exigent needs of the state (such as national security or diplomacy). That makes them completely different from private citizens on their private business. However, if I am on company business, it is fairly common for employers to record their employees conversations.

The issue isn't privacy, it's confidentiality and the process by which that confidentially can be terminated. So put the cameras and recording devices in the oval office!
 

Arne's "excessive preponderance of cases against one party compared ot the other" is based on a "study", not of prosecutions, not of investigations, but of news accounts of the same. And that "study" found the "excessive preponderance" only at the state and local level, not the federal level.

Major media outlets are based in big cities, which are overwhelmingly controlled by the Democratic party. What, then, would be less suprising, than to find that the media disproportionately cover investigations happening in their own backyards, and so disproportionately cover investigations of Democrats?

We don't, in short, know that there's really a disproportion to explain.
 

Brett:

Arne's "excessive preponderance of cases against one party compared ot the other" is based on a "study", not of prosecutions, not of investigations, but of news accounts of the same. And that "study" found the "excessive preponderance" only at the state and local level, not the federal level.

Just a FYI, I cited no study. I was speaking in the hypothetical.

But the study you are referring to is one means of getting evidence of such anomalous disparities in prosecutions. Thanks for mentioning it. If you wish to explain the findings away, feel free to come forth with your own evidence to support your theories.

Cheers,
 

You don't need evidence to prove that a study proves nothing. I freely admit that I don't know the actual ratio of investigations/prosecutions according to party. Neither do you.

Difference is, I'm willing to admit it.
 

Brett,

I find your argument disingenuous. The claim is not that we know, in some existential sense, that disproportionate prosecution was on-going. The argument is that there is evidence to suspect the disproportionality. That requires a much lower standard of proof. No one is yelling, yet, to hang the bastards, but we simply want a full investigation to find out what the case is, and whether criminal prosecution is warranted.

If you needed proof at a scientific level rather than preliminary suggestive data to begin an investigation, our investigative rate would quickly approach zero.
 

Brett:

You don't need evidence to prove that a study proves nothing....

I didn't say it either proved everything or proved nothing. In fact, I didn't mention the words "proof" or "prove" at all. Care to argue with anything other than a "straw man" of your own construction?

... I freely admit that I don't know the actual ratio of investigations/prosecutions according to party. Neither do you.

Nor did I say so. Why not "explain" what you were trying to "explain" to someone who GAF?

Cheers,
 

"Bart" DePalma says:

In arne's world, privacy is for Dems, criminals and terrorists, not GOP presidents.

Ummm, no, "Bart", you're projecting.

We're not asking how many times Jeff Gannon (nee Jimmy Guckert) slid ol' Dubya the one-eyed snake during his visits to the White House long after the press conferences for the day had ended. See if you can discern the difference.

Cheers,
 

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