Thursday, January 11, 2018
Recall the lawsuit by Summer Zervos against Donald Trump for defamation. It's filed in New York state court and Trump has argued that Clinton v. Jones, the 1997 case in which the United States Supreme Court held that President Clinton was not immune from being sued, should not apply to state court proceedings.
In an amicus brief filed in Zervos v. Trump, and available on ssrn, three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court,now argue that the rule should apply to state court as well. The professors - - - Stephen Burbank, Richard Parker, and Lucas Powe, Jr. - - - argue that a President should be amenable to suit in state as well as federal court, with appropriate docket-management accommodations made in light of the demands on a President's time and attention.
At issue is footnote 13 of Clinton v. Jones which might be read to distinguish state court proceedings from the federal one involved in Clinton:
Because the Supremacy Clause makes federal law “the supreme Law of the Land,” Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” Art. II, §3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here. Cf ., e.g. , Hancock v. Train , 426 U.S. 167, 178 -179 (1976); Mayo v. United States , 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit congressional consent no state may command federal officials . . . to take action in derogation of their . . . federal responsibilities”).
The amicus brief contends that the footnote is best read as limited to the problem of direct control of presidential activities by a state court. That, they argue, is not the Zervos suit, since Zervos' lawsuit has nothing to do with the president's duties. They conclude that the best reading of the Constitution, the requirements of federalism and the rule of law, and the Supreme Court's decision in Clinton v. Jones direct that state courts be permitted to entertain suits against sitting Presidents for conduct arising from their pre-Presidential conduct, just as federal courts can.
Judge Jennifer Schecter has yet to issue a ruling.
Sunday, April 2, 2017
In a Memorandum Opinion and Order, Judge David Hale ruled on a motion to dismiss the complaint in Nwanguma v. Trump which includes a count of incitement to riot by then-candidate Trump during a campaign event in Louisville, Kentucky on March 1, 2016. The complaint alleges that the candidate told the crowd “Get ’em out of here,” when the plaintiffs were "peacefully protesting" at a campaign rally. Allegedly as a result of the candidate's encouragement, three individual defendants pushed, shoved, and struck the three plaintiffs. The complaint contended that candidate Trump should be held vicariously liable for the tortious actions of the individual defendants; Judge Hale dismissed this count as not having sufficient allegations that the candidate (or his campaign) "had the right to control the other defendants’ actions." The complaint also contained a count regarding the candidate's negligence and failure to protect, which Judge Hale did not dismiss.
Most important from a constitutional standpoint, Judge Hale denied Trump's motion to dismiss the incitement to riot claim despite the defendant's argument that Trump's statement "Get ’em out of here” was protected by the First Amendment. As Judge Hale relates, under the landmark case of Brandenberg v. Ohio (1969), as well as the Sixth Circuit's en banc decision in Bible Believers v. Wayne County (2015), speech may not be “sanctioned as incitement to riot unless
(1) the speech explicitly or implicitly encouraged the use of violence or lawless action,
(2) the speaker intends that his speech will result in the use of violence or lawless action, and
(3) the imminent use of violence or lawless action is the likely result of his speech.”
Judge Hale analyzes each of these prongs in turn.
First, Judge Hale concludes that Trump's statement, “Get ’em out of here,” is phrased in the "imperative; it was an order, an instruction, a command." It is therefore unlike the protected speech in NAACP v. Claiborne Hardware Co. (1982) (“If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”); Hess v. Indiana (1973) (“We’ll take the fucking street again.”); or Watts v. United States (1969) (“If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”).
Second, Judge Hale concludes that the complaint states sufficient allegations of Trump's intent, although whether "he actually intended for violence to occur is beyond the scope of the Court’s inquiry at the motion-to-dismiss stage."
Third, Judge Hale rules that "the complaint adequately alleges that Trump’s statement was likely to result in violence—most obviously, by alleging that violence actually occurred as a result of the statement." Additionally, the complaint describes "a prior Trump rally at which a protestor was attacked."
The case is now on course to proceed.
Tuesday, February 7, 2017
The wife of the President has two pending defamation claims that not only involve interesting First Amendment issues, but may also be relevant to the pending Emoluments Clause challenge.
First there is the complaint in Melania Trump v. Tarpley (and Mail Media), filed in Maryland state court. This suit alleges that statements by blogger Webster Griffin Tarpley in a blog post, including “Ms. Trump Reportedly Obsessed by Fear of Salacious Revelations by Wealthy Clients from Her Time as a High-End Escort” and “It is widely known that Melania was not a working model but rather a high end escort.” The complaint survived the motion to dismiss by Tarpley, with the Judge ruling from the bench reportedly rejecting the blogger defendant’s argument that he was not making the statement as a fact but merely reporting rumors. The judge further reportedly stated that the alleged statements were defamatory: “The court believes most people, when they hear the words 'high-end escort' that describes a prostitute. There could be no more defamatory statement than to call a woman a prostitute."
Additionally, as the news report stated:
The judge also seemed skeptical that such salacious claims were deserving of the highest level of legal protection given that Melania Trump was the wife of a candidate and not a candidate herself.
"The interests affected are arguably not that important because the plaintiff wasn't the one running for office," [Judge] Burrell said.
This would seem to imply that Melania Trump was not a public figure, a conclusion that does not seem sustainable. The judge did, however, seem to dismiss the plaintiff’s claim that the false statements included injuries to her husband’s business.
Maryland Judge Burrell did , however, dismiss the complaint as against Mail Media for lack of jurisdiction against the company.
Ms. Trump has now filed a complaint in New York against Mail Media (Mail Online), alleging defamation and intentional infliction of emotional distress based on the same facts. Interestingly, Ms. Trump has dropped the allegations of injuries to her husband's business and included more specific injuries to her own business and lost opportunities. Paragraph 3 of the Complaint reads:
As a result of Defendant’s publication of defamatory statements about Plaintiff, Plaintiffs brand has lost significant value, and major business opportunities that were otherwise available to her have been lost and/or substantially impacted. The economic damage to Plaintiffs brand, and licensing, marketing and endorsement opportunities caused by the publication of Mail Online’s defamatory article, is multiple millions of dollars. Plaintiff had the unique, once-in-a-lifetime opportunity, as an extremely famous and well-known person, as well as a former professional model and brand spokesperson, and successful businesswoman, to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multi-million dollar business relationships for a multi-year term during which Plaintiff is one of the most photographed women in the world. These product categories would have included, among other things, apparel, accessories, shoes, jewelry, cosmetics, hair care, skin care and fragrance.
This allegation has raised some eyebrows as it seems to allege that Melania Trump intended to monetize her "once-in-a-lifetime opportunity" for a "multi-year term" as First Lady by promoting her personal products. Indeed, Melania Trump's initial biography on the White House website lends credence to this view:
This entry has since been removed, although it does not seem the removal is connected to the August 2016 publications about Melania Trump.
Should discovery on damages ensue, it could be a trove of material for those claiming that conflicts of interests exist in Donald Trump's official position and his businesses, including his family businesses. However, note that under Seattle Times v. Rhinehart (1984), a judge could certainly order nondisclosure of the material gained by Mail Media despite the defendant's press status.
Meanwhile, also in New York state court, Donald Trump is defending a defamation suit filed by Zervos Summer based on allegations that he called her charges of sexual harassment by him false.
Thursday, January 26, 2017
There's a new handy guide collecting resources that will come in handy for ConLawProfs, students, lawyers, and the general public.
In conjunction with the course, Presidential Power, to be offered at University of Washington School of Law by Professors Kathryn Watts and Sanne Knudsen, law librarian Mary Whisner has developed an excellent "Readings and resources concerning presidential power" library guide available here.
Some of the guide tracks the course, and is thus in development, but the "Books about Presidential Power" section is a great place to start understanding the legal, historical, and political dimensions of the issues. The "Useful Reference" portion is a good overview, with a handy link to the Federal Register feed.
Additionally, here are two PBS "crash course" videos - - - from 2015 - - - that are also worth a watch:
Friday, January 20, 2017
A few days before he was sworn in as President of the United States, the complaint in Zervos v. Trump was filed in New York state court alleging a cause of action for defamation, raising several constitutional issues.
First, the issue of whether the chief executive of the United States is entitled to a stay of the proceedings while he occupies the office seems to be resolved by the United States Supreme Court's unanimous 1997 decision in Clinton v. Jones. Jones was decided on a separation of powers issue, of course, given that Paula Jones had filed an action alleging sexual harassment by Bill Clinton before he became president. However, the general reasoning seems applicable. The Court in Jones stated that it was not persuaded of the seriousness of the alleged risks that this decision will generate a large volume of politically motivated harassing and frivolous litigation and that national security concerns might prevent the President from explaining a legitimate need for a continuance, noting that it had confidence in the ability of judges to deal with both concerns.
Second, a complaint of defamation almost always raises a First Amendment concern. Interestingly, here one question would be whether the plaintiff, Summer Zervos, was a public figure under Gertz v. Robert Welch, Inc, so that she would have to prove "actual malice" on the part of the defendant. It would seem that Zervos appearance on Trump's television show, The Apprentice, would make her at least a limited public figure. Moreover, even if not then, her decision to "speak publicly" about her interactions with Trump after sexual harassment became an issue in the campaign, most likely made her a limited public figure.
Yet even if Zervos is a public figure, the complaint alleges that Trump made the statements knowing that they were false or with reckless disregard of their truth or falsity. The complaint makes allegations of numerous statements, including embedding a tweet with a photograph of Zervos:
Interestingly, the complaint also alleges that "all these liars" - - - the women who claimed Trump had sexually harassed them - - - "will be sued after the election is over." Trump has been called a "libel bully" in an article that briefly made headlines for being stifled by the American Bar Association for fear of it provoking the very conduct it analyzed. But it seems as if the tables have been turned.
It's far too early for predicting outcomes, but meanwhile ConLawProfs could use this as an interested Con Law problem - - - or an exam question.
Tuesday, November 22, 2016
Julie Silverbrook of The Constitutional Sources Project has a worthwhile "brief history" of the Emoluments Clause, including the text and this excerpt from The Federalist No. 22: "Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption." The passage goes on to contrast monarchies with republican governments, the former being less susceptible to corruption because the hereditary monarch "has so great a personal interest in the government, and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the State."
Scholar Zephyr Teachout has also been discussing Emoluments, as we noted here; And now might be a good time to reread Teachout's 2014 book Corruption in America). [update: If you don't have the book handy, her 2012 essay, Gifts, Offices, and Corruption is available on ssrn.]
While it has been argued that the Emoluments Clause should not apply to the President as we noted here, its application to a President-Elect is even more uncertain.
Law professors looking for a class exercise (or perhaps a paper topic) could use any number of examples, although a "hypothetical" based on an Argentina construction project might be useful. Here is the situation courtesy of a storify of tweets and here is the piece from The Hill.
Saturday, November 19, 2016
Trump supporters who have cited the shameful Korematsu ruling in support of Muslim registries (and possibly worse) might take a look at Noah Feldman's explanation in the NYT why the case was "not correct when it was decided, and . . . is not correct today." Here's Eugene Rostow's longer piece that makes similar points, referenced by Feldman.
Seems like somebody in the Trump camp could put an end to this nonsense--these suggestions that a President Trump could use this despicable ruling as support for contemptible policies. Or at least they could speak out against it (that is, if they wanted to). A president-elect might even use a frank and open repudiation of these Korematsu claims as an opportunity for some public civic education.
We posted several years ago on Peter Irons's efforts calling for Supreme Court repudiation of Korematsu and the other internment rulings. The chatter from Trump supporters, invoking the disgraceful (and disgraced) Korematsu ruling, underscore why efforts like this are so important.
Wednesday, January 20, 2016
Judge Amy Berman Jackson (D.D.C.) yesterday ordered the Attorney General to turn over certain post-February 4, 2011, documents generated in the executive branch over how to respond to congressional inquiries into the Fast and Furious program.
But don't chalk this up as a win for Congress. Judge Jackson ruled that the documents had to be turned over because the government had already revealed much of the content, in the publicly-available DOJ Inspector General report on the program, and not because they weren't otherwise protected by executive privilege.
If anything, this ruling is a win for the administration. That's because Judge Jackson ruled that documents related to how the government would respond to congressional and press inquiries were covered by deliberative process privilege--even if they failed the balance (but only because the government had already released their content).
In the end, though, maybe "split decision" best describes the ruling.
Judge Jackson's ruling is just the latest in the long-running dispute between the House Committee on Oversight and the administration. Recall that the Committee sought administration documents related to the Fast and Furious program, including post-February 4, 2011, documents discussing how the administration should respond to congressional requests for documents. (February 4, 2011, is significant, because that's the date when DOJ denied that it used the gun-walking tactic. DOJ later acknowledged the program. The Committee then expanded its investigation to include the circumstances of DOJ's initial denial, and why it took so long to tell Congress that its initial denial was wrong.)
Judge Jackson ruled that post-February 4, 2011, documents related to how the government would respond to congressional inquiries were protected under the deliberative process prong of executive privilege. (Under D.C. Circuit law, deliberative process covers communications between executive branch officials other than the President that are "crucial to fulfillment of the unique role and responsibilities of the executive branch." (Traditional executive privilege covers communications only between executive branch officials and the President.)) That's because they were both predecisional and deliberative, and fell within the kinds of communications that were covered under other circuit rulings. She also said that DOJ's list of those documents sufficiently showed that they were covered by the deliberative process privilege.
But coverage doesn't end the inquiry. The deliberative process privilege (like its parent executive privilege) is a qualified privilege, which means that the courts balance the government's interest against any counter-veiling interest in obtaining the privileged material. Here, Judge Jackson ruled that the Committee had an undisputed counter-veiling interest in oversight and investigation, and that DOJ had already released the content through the publicly-available OIG report:
What harm to the interests advanced by the privilege would flow from the transfer of the specific records sought here to the Committee when the Department has already elected to release a detailed Inspector General report that quotes liberally from the same records? The Department has already laid bare the records of its internal deliberations--and even published portions of interviews revealing its officials' thoughts and impressions about those records. While the defense has succeeded in making its case for the general legal principle that deliberative materials--including the sorts of materials at issue here--deserve protection even in the face of a Congressional subpoena, it can point to no particular harm that could flow from compliance with this subpoena, for these records, that it did not already bring about itself.
Judge Jackson also ordered DOJ to turn over eight documents over which DOJ asserted no privilege. She declined to order DOJ to turn over yet other post-February 4, 2011, documents that the parties are still wrangling over. (They can't agree on the scope of the Committee's request, and the court declined to intervene.)
Wednesday, March 25, 2015
Judge Edgardo Ramos (SDNY) dismissed a private defamation case this week after the government moved to intervene and asserted the state secrets privilege. Judge Ramos ruled that moving forward with the case at all (even excluding privileged evidence) would "impose an unjustifiable risk of disclosing state secrets." The ruling thus puts an end to the case, unless and until appealed. It is not a ruling on the merits, however.
The case, Restis v. American Coalition Against Nuclear Iran, involves Greek shipping magnate Victor Restis's defamation claim against the group United Against Nuclear Iran for claiming, as part of its "name and shame" campaign, that Restis was involved in the illegal exportation of Iranian oil in violation of international sanctions. Restis sued UANI, and the government intervened and moved to dismiss on state secrets grounds, filing a classified declaration by the head of the government department that has control over the matter in support. (The government asserted, and the court apparently accepted, that the government couldn't even reveal "the department that has control over the matter" without risking the disclosure of secret information.)
Judge Ramos reviewed the declaration in camera and held two ex parte, in camera meetings with the government before determining that the state secrets privilege applied. "Having carefully reviewed the classified declarations and documents submitted by the Government ex parte, and being cognizant of a district court's obligation to grant 'utmost deference' to the executive's determination of the likely import of disclosure of the information on military or diplomatic security, the Court is satisfied that there is a reasonable danger that disclosure of the facts underlying the Government's assertion would in fact jeopardize national security."
Judge Ramos went on to say that "further litigation of this action would impose an unjustifiable risk of disclosing state secrets" and dismissed the case entirely. (Under the state secrets privilege, Judge Ramos might have allowed the case to move forward without the privileged evidence. But here, he said, any further litigation would risk disclosure.)
Notably absent from the ruling was any discussion of the state secrets privilege as a separation-of-powers principle. (Treating the privilege as a separation-of-powers principle has in the past led to a much more robust privilege, as in the Fourth Circuit's ruling in El-Masri.) Instead, Judge Ramos treated the privilege as it was designed and as the government apparently asserted it--as an evidentiary privilege. Even so, the government's assertion of the privilege resulted in the dismissal of the entire case.
Judge Ramos rejected the plaintiff's arguments that the government shouldn't be able to rely only on ex parte submissions for its assertion and that the case could be litigated in an in camera trial--because the evidence was apparently too secret even to tell the lawyers. Judge Ramos wrote, "The nature of the information here requires that counsel not be granted access."
Judge Ramos gave a hat tip--but only a hat tip--to the plaintiff's interest in access to justice:
The Court recognizes that dismissal is a "harsh sanction." It is particularly so in this case because Plaintiffs not only do not get their day in court, but cannot be told why.
Still, he said that "dismissal is nonetheless appropriate," because "there is no intermediate solution that would allow this litigation to proceed while also safeguarding the secrets at issue."
March 25, 2015 in Cases and Case Materials, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets | Permalink | Comments (0) | TrackBack (0)
Thursday, July 17, 2014
White House Counsel Neil Eggleston wrote this week to Congressman Darrell Issa, Chair of the House Oversight Committee, to explain why David Simas, Assistant to the President and Director of the White House Office of Political Strategy and Outreach, wouldn't appear before Issa's Committee this week. Issa issued a subpoena to Simas as part of the Committee's investigation of possible Hatch Act violations in Simas's office.
Eggleston's letter to Issa explains that Simas, as an immediate presidential adviser, is absolutely immune from congressional testimonial subpoenas. Eggleston cites a recently issued OLC memo (apparently not yet public) and the "longstanding position of Administrations of both political parties."
Indeed, the administration's position is exactly the same as the position of the Bush White House when Congress issued subpoenas to Harriet Miers and Karl Rove. (Congress was investigating the firings of U.S. attorneys.) That episode resulted in Committee on the Judiciary v. Miers, the D.C. Circuit ruling granting Miers and Chief of Staff Josh Bolton's motion for stay pending appeal of the lower court's ruling against them. (The Committee and House held Miers in contempt and sued to get her to testify; she asserted absolute immunity under executive privilege. The district court ruled that Miers was not absolutely immune and denied her motion for a stay pending appeal.) The appeals court did not reach the merits, however. Instead, Miers and Bolton effectively ran the clock on the case.
Issa is now reportedly considering holding Simas in contempt of Congress.
Although the claims of privilege are exactly the same, there is one big difference in the two cases: Issa opposed holding Miers in contempt.
Monday, September 30, 2013
Judge Amy Berman Jackson (D.D.C.) today denied AG Eric Holder's motion to dismiss a case brought against him by the House Oversight and Government Reform Committee seeking to enforce its subpoena for documents related to DOJ's infamous February 4, 2011, letter denying that gun-walking in the "fast and furious" program had taken place. (The subpoena wasn't over the "fast and furious" program itself; instead, it was for any documents related to the government's February 4 denial.) Our latest post on the case, with background and links to earlier posts, is here.
Judge Jackson ruled in Committee on Oversight v. Holder that the case is justiciable, and that there's no good reason for the courts to decline to hear it. The ruling doesn't touch the merits.
The ruling means that the case will move forward on the merits question--whether executive privilege protects the subpoenaed documents--unless the parties settle.
Judge Jackson wrote that the case was a straightforward application of Committee on the Judiciary v. Miers:
And five years ago, another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here. In a case involving a different Congress and a different President, [Miers], the court concluded in a persuasive opinion that it had jurisdiction to resolve a similar clash between the branches.
Op. at 4.
September 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, October 17, 2012
Earlier this week the Justice Department filed its motion to dismiss and supporting memorandum in Committee on Oversight and Government Reform v. Holder. The motion was expected, and the arguments are not a surprise.
Recall that the Committee brought the case seeking a declaration that the administration's assertion of executive privilege was without merit and that its failure to turn over certain documents to the Committee in its investigation of the "Fast and Furious" program was without justification. The Committee seeks an order requiring the government to turn over these documents.
Recall also that since the Committee filed its suit, the DOJ Inspector General issued its report into the program and testified before Congress on it.
DOJ argues that the court lacks Article III jurisdiction because the case presents a political question and that separation-of-powers principles counsel against the case moving forward. In short, DOJ says that the political branches should work this out. According to the Department, this is especially so with regard to material on internal deliberations regarding the Department's responses to congressional inquiries for substantive material on the program.
DOJ also argued that the court lacks subject matter jurisdiction and that the Committee has no cause of action. It says that the Committee brought the case under 28 U.S.C. Sec. 1331, but that given the history of that provision and 28 U.S.C. Sec. 1365, the court lacks jurisdiction. In particular, DOJ argues that Congress enacted 1365, giving the court jurisdiction over Senate subpoena enforcement actions, after Congress was foiled by the old amount-in-controversy in 1331. (Congress asserted no claim for monetary damages in that case.) Congress later removed the amount-in-controversy requirement, but DOJ argues that 1365, with its careful language limiting jurisdiction to cases brought by the Senate (not the House), trumps. (Otherwise 1365 would be a nullity.) If so, the court lacks jurisdiction over the House Committee's suit. Morever, DOJ says that the Committee has no cause of action, because the Declaratory Judgment Act contains no independent cause of action (contrary to the D.C. District court's own relatively recent prior ruling in Miers) and because the Constitution grants no independent cause of action.
Now we wait for the Committee's response.
October 17, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Executive Privilege, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Monday, August 13, 2012
The House Committee on Oversight and Government Reform filed its anticipated complaint today in the United States District Court for the District of Columbia against Attorney General Eric Holder, seeking a declaration that AG Holder's assertion of executive privilege is without merit and that his failure to turn over certain documents to the Committee was without justification, and requiring AG Holder to turn over certain "obstruction" documents.
The complaint seeks a mere subset of the larger body of documents originally sought by the Committee--the so-called "Obstruction Component" documents, relating to DOJ's alleged obstruction of the Committee's investigation into the Fast and Furious program. (The Committee does not seek other documents covered in its earlier subpoena--the "Operations Component" documents, related to the operations of the program--although it maintains its right to seek and to receive those documents.) The Committee explains, in paragraph 62 of the complaint:
The Department's and the Attorney General's response to the Committee's investigation has been woefully inadequate in every respect. However, notwithstanding their lack of cooperation, the Committee has managed to obtain sufficient facts--principally through the aid of DOJ whistleblowers--to begin reporting to the American people on the Operations Component of its investigation. Accordingly, although the Committee has a legal and constitutional right to obtain from the Attorney General all documents responsible to the Holder Subpoena not already produced, the Committee chooses in this action to seek only a limited subset of such responsive but unproduced documents, namely, those documents that are relevant to the Obstruction Component of the Committee's investigation which the Committee cannot obtain from any other source. To that end, the Committee here seeks to compel the Attorney General to produce those documents dated or that were created after February 4, 2011, that are responsive to Categories 1, 4, 5, and 10 of the Holder Subpoena [attached to the complaint]. In the Committee's judgment, this limited subset of responsive documents--referred to herein as the "Post-February 4 Subset"--includes or constitutes the documents most likely to be relevant to the Obstruction Component of the Committee's investigation and, when produced, most likely to enable the Committee to complete its investigation.
Here's what the Committee thinks of the administration's executive privilege claim:
The principal legal issue presented here is whether the Attorney General may withhold that limited subset on the basis of "Executive privilege" where there has been no suggestion that the documents at issue implicate or otherwise involve any advice to the President, and where the Department's actions do not involve core constitutional functions of the President.
No Court has ever held that "Executive privilege" extends anywhere near as far as the Attorney General here contends that it does. Indeed, it is no exaggeration to say that the Attorney General's conception of the reach of "Executive privilege," were it to be accepted, would cripple congressional oversight of Executive branch agencies, to the very great detriment of the Nation and our constitutional structure. Accordingly, the Committee asks this Court to reject the Attorney General's assertion of "Executive privilege" and order him forthwith to comply with the Committee's subpoena, as set forth below.
Compl. at page 3.
Recall that AG Holder urged the assertion of the privilege based on "executive branch deliberative communications"--supported, AG Holder argued, by several DOJ and OLC opinions (including DOJ advice, authored by Paul Clement, in the Bush administration relating to the assertion of executive privilege in the congressional investigation on the politicization of the Justice Department). See Holder Memo at 2-3.
The privilege dispute thus centers on whether the President himself had to be part of the communications--or whether the communication had to be in relation to advice to the President--or whether the privilege applies more broadly over "executive branch deliberative communications" that did not involve the President directly.
In the D.C. court's last foray into this and similar issues, in a similar case involving above-mentioned congressional investigations into the politicization of the Justice Department, Committee on the Judiciary v. Miers, Judge John D. Bates ruled that the Committee jumped the several significant hurdles to get the case into court and that White House Counsel Harriet Miers did not have absolute immunity from testifying before Congress. (The case was stayed pending appeal and resolved itself by agreement of the parties in January 2009.)
But while Judge Bates's opinion dealt at length with (and ultimately rejected) the defendants' claimed barriers to the Committee's suit, it did not resolve the executive privilege issues presented in this case.
Miers may provide useful guidance, though, for a more pragmatic reasons: The D.C. Circuit in that case declined to put the appeal on the fast track, suggesting that the case could become moot when the 110th Congress, along with its subpoenas, expired.
This case, like that one, will not reach final judicial resolution (and maybe even not a district court ruling) before the end of the current Congress. The case could fizzle out--that is, moot out, because the subpoena will have expired with the current Congress--when the new Congress comes in . . . unless the new House reauthorizes it.
August 13, 2012 in Cases and Case Materials, Congressional Authority, Executive Authority, Executive Privilege, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, June 28, 2012
The House of Representatives voted today to approve House Resolution 706, holding AG Eric Holder in contempt of Congress for declining to turn over documents related to the DOJ's response to congressional and media inquiries into the Fast and Furious program. Under the Resolution, the House holds AG Holder in contempt and authorizes the Chair of the House Oversight and Government Reform Committee, Rep. Darrell Issa, "to initiate or intervene in judicial proceedings in any Federal court of competent jurisdiction . . . to seek declaratory judgments affirming the duty of [AG Holder] to comply with any subpoena that is a subject of the resolution accompanying House Report 112-546"--the report issued by the Committee last week.
The move means that Rep. Issa and his committee can take the case directly to court, bypassing another option--referring the matter to the Assistant U.S. Attorney for D.C. If Rep. Issa files, he will ask the court to order AG Holder to turn over the subpoenaed documents, notwithstanding the administration's assertion last week of executive privilege.
The vote was 255 to 67, largely along party lines. Seventeen Democrats voted with Republicans; two Republicans crossed the aisle. More than 100 Democrats boycotted the vote altogether.
Wednesday, June 20, 2012
The President today formally asserted executive privilege in the ongoing dispute between the House Oversight and Government Reform Committee and AG Eric Holder related to the Committee's subpoena for documents from Holder related to Fast and Furious. The move comes as the Committee is considering a contempt resolution against AG Holder for withholding documents related to the Department of Justice's investigation into the program and its reaction to Committee and media inquiries.
The move means that the contempt resolution by the Committee will have even less effect in ultimately producing any documents than it might have had before the assertion of privilege. (And it's not clear that the resolution would have had any effect, anyway.) If past practice is any guide, the invocation of executive privilege ensures that the Department of Justice will not prosecute for criminal contempt. (Recall that the contempt resolution, as of yesterday, refers the matter to the US Attorney for D.C., and apparently does not seek authority for the Committee or the House to pursue a civil judgment in federal court.)
AG Holder asked President Obama to invoke executive privilege in this letter yesterday. In the letter, AG Holder writes that he is
very concerned that compelled production to Congress of internal Executive Branch documents generated in the course of the deliberative process concerning its response to congressional oversight and related media inquiries would have significant, damaging consequences: It would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch's ability to respond independently and effectively to congressional oversight. This would raise substantial separation of powers concerns and potentially create an imbalance in the relationship between these two co-equal branches of the Government.
AG Holder wrote that the Committee's interest in the material didn't meet the standard to overcome an assertion of executive privilege--"demonstrably critical to the responsible fulfillment of the Committee's functions," Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974)--because it's not obviously related to a legislative function of the Committee, because the Department already substantially complied with the Committee's requests, and because an internal IG investigation should assuage any congressional concerns that the Department is attempting to conceal important facts.
Deputy AG James Cole wrote this letter to Representative Issa, summarizing AG Holder's legal analysis and reporting that the President had formally invoked the privilege.
Wednesday, February 15, 2012
Republicans on the House Energy and Commerce Committee will vote on Friday whether to subpoena administration officials in the Committee's ongoing investigation into the Solyndra loan guarantee. We posted on this most recenty here; here's the proposed resolution.
Republicans seek testimony from five officials:
- Kevin Carroll, Energy Branch Chief, OMB
- Kelly Colyar, Branch Chief, OMB
- Aditya Kumar, Deputy Assistant to the Vice President and Senior Advisor to then White House Chief of Staff Rahm Emanuel
- Fouad Saad, Program Examiner, OMB
- Heather Zichal, Deputy Assistant to the President for Energy and Climate Change
The Committee site has other resources, including a web-cast of Friday's hearing, at 10:15 a.m. Eastern time.
Wednesday, January 25, 2012
Republicans in the House Energy and Commerce Committee wrote to the White House demanding memos on White House deliberations on health care reform referenced in Ryan Lizza's piece in The New Yorker, The Obama Memos: The Making of a Post-Post-Partisan Presidency. Republicans argued that the White House now waived any claim of executive privilege over the memos (although the White House has apparently never made such a claim).
According to the letter, the House Energy and Commerce Committee has been looking into "negotiations and agreements made between representatives from the White House Office of Health Reform (WHOHR) and various health care industry stakeholders regarding health care reform legislation" for over two years now. Republicans on the Committee say that the White House has refused to cooperate by turning over internal memos. But they also say that those memos made their way to Lizza, and that the White House has now waived any assertion of executive privilege:
Finally, while the White House has so far studiously avoided asserting executive privilege and has simply refused to provide the requested information, by voluntarily providing this information to a reporter the White House has waived any right to refuse production of these materials based on claims of privilege.
A footnote to this sentence reads:
In In Re Sealed Case the D.C. Court of Appeals addressed this issue when it held the White House had waived claims of privilege in regards to documents it voluntarily revealed to third parties outside the White House.
The Republicans' request is appropriately tailored to the documents they seek (and claim have been voluntarily released) under the approach to the executive privilege and the deliberative privilege In Re Sealed Case, but there's no indication that the White House voluntarily released them to Lizza--that Lizza didn't get them from some other source, or that the White House provided only selected information from them (and not the memos themselves). Absent a voluntary release of the memos themselves, the White House almost certainly has not waived any available privilege. And In Re Sealed Case suggests that the White House is under no obligation to assert the privilege until the Committee seeks to compel release (although In Re Sealed Case dealt with a different situation--an assertion of privilege against the OIC, not a congressional committee).
Thursday, November 10, 2011
As we just noted, before Clinton v. Jones, there was United States v. Nixon.
And now there are the Richard Nixon grand jury documents available on GPO:
In May 1975, the Watergate Special Prosecution Force (WSPF) decided that it was necessary to question former President Richard M. Nixon in connection with various investigations being conducted by the WSPF. Mr. Nixon was questioned over the period of two days, June 23 and June 24, 1975, and the testimony was taken as part of various investigations being conducted by the January 7, 1974, Grand Jury for the District of Columbia (the third Watergate Grand Jury). Chief Judge George Hart signed an order authorizing that the sworn deposition of Mr. Nixon be taken at the Coast Guard Station in San Mateo, California with two members of the grand jury present.
Included is much discussion of the 18 and a half minute gap in the tapes.
The Court's unanimous opinion in Clinton v. Jones (1997), involving the postponement of the civil case by Paula Jones against then-President Clinton, is excerpted in most Constitutional Law casebooks, usually right after United States v. Nixon (1974), involving the subpoena duces tecum seeking Watergate material from then-President Richard Nixon.
The statement in the Clinton v. Jones opinion, authored by Justice Stevens, that the Jones litigation was "highly unlikely to occupy any substantial amount of petitioner’s time," seemed to have been proven false by subsequent events. In his new book, Five Chiefs, Justice Stevens, defends his statement:
[T]he Court had been confronted with the question whether either the Constitution or respect for the office of the president required a federal district court to defer the trial of a damages claim against President Clinton until after the end of his term. In a unanimous opinion that Bill [Rehnquist] assigned to me, we upheld the decisions of the lower courts denying the request for a stay of the trial. Among the arguments that we rejected was a claim that permitting the trial to proceed would violate the doctrine of separation of powers.
While I am not aware of any significant scholarly criticism of the legal analysis in my opinion, numerous commentators have rather enthusiastically suggested that only the village idiot could have authored one statement that I made. In my response to the argument that the burdens of the litigation would impair the president’s ability to discharge his official duties, I declare: "If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency. As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.” Clinton later gave deposition testimony that triggered his impeachment, which, in turn, obviously occupied a huge amount of his time. These events, it is argued, proved my comments to have been ludicrous.
That appraisal depends on a failure to recognize both the difference between the trial proceedings and the unforeseen impeachment. A postponement of the trial would not necessarily have justified a postponement of the president’s deposition. Indeed, as the president’s lawyers stated at oral argument, a delay in the trial would have increased the need for depositions because of the risk that key witnesses’ memories might fade. Given that case (Clinton v. Jones ) was settled, we will never know just how much time a trial would have consumed. We did know that our ruling did not give rise to the predicted avalanche of litigation. And the impeachment proceedings were certainly not a part of “the case at hand” referred to in our opinion.
Still the reaction to my words illustrates that an author is seldom the best judge of how readers will react to his work.
Note however that Court did not simply uphold "the decisions of the lower courts denying the request for a stay of the trial," as Stevens states. Instead, as Stevens' opinion for the Court stated:
we are persuaded that it was an abuse of discretion for the District Court to defer the trial until after the President leaves office. Such a lengthy and categorical stay takes no account whatever of the respondent's interest in bringing the case to trial. The complaint was filed within the statutory limitations period--albeit near the end of that period--and delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.
Here's a quick overview of the case and developments from WaPo.
Friday, November 4, 2011
The White House responded today to subpoenas issued by the House Energy and Commerce Committee for documents related to Solyndra, saying that the subpoenas are too broad and fail to balance the interests of the executive branch with the legitimate oversight interests of the Committee. We posted most recently here.
All documents referring or relating in any way to the $535 million loan guarantee issued to Solyndra, Inc., by the Department of Energy . . . .
The White House wrote back that this is just too broad a request:
[T]he Committee's extremely broad request for documents--now a subpoena--is a significant intrusion on Executive Branch interests, particularly given that you have not made any effort to tailor the request to the legitimate interests of the Committee. As written, it encompasses all communications within the White House from the beginning of this Administration to the present that refer to or relate to Solyndra, and the subpoena purports to demand a complete response in less than a week. Thus, any document that references Solyndra, even in passing, is arguably responsive to the Committee's request, and you reaffirmed this week that you intend for the request to be that broad. There is no basis for such a broad request beyond a "vast fishing expedition," as Congressman Dingell noted yesterday. Moreover, responding to such an expansive request would require the devotion of substantial resources to gather and review many documents that are of no legitimate oversight interest--which is itself an unreasonable burden on the President's ability to meet his constitutional duties. For example, we do not understand how thousands of pages of news clips--all of which are responsive to the subpoena you issued--relate to the Committee's inquiry.
In past correspondence and again in our meeting this week, we suggested that the Committee focus first on communications between the White House and those agencies directly involved in the Solyndra loan guarantee. . . . The Committee has rejected that approach without any justification other than a general curiosity about internal White House communications. Such curiosity is not a sufficient justification for encroaching on longstanding and important Executive Branch confidentiality interests, particularly when none of the more than 85,000 pages of documents produced to date evidence any favoritism to political supporters or wrongdoing by the White House.
The ball's now back in the Committee's court.