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.
Posted 11:12 PM by Marty Lederman [link]