Wednesday, January 20, 2016

A Split Decision On Executive Privilege in Fast-and-Furious Investigation

Steven D. Schwinn, John Marshall Law School

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.

We posted most recently here, with links to earlier posts, rulings, and documents.

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.)

January 20, 2016 in Cases and Case Materials, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, March 25, 2015

Court Dismisses Defamation Case on Government State Secret Assertion

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

Obama Administration Challenges Congressional Subpoena

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

July 17, 2014 in Congressional Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

Court Allows "Fast and Furious" Subpoena Case to Move Forward

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

DOJ Moves to Dismiss Fast and Furious Suit

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

House Committee Sues AG Holder for Fast and Furious Docs

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.

We covered the Committee's vote to holder AG Holder in contempt here; we covered the administration's assertion of executive privilege here; and we covered the House authorization to file suit here.

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

Congress Holds Holder in Contempt, Authorizes Suit

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.

We posted on the Committee's vote here (with links to helpful sources); we posted on the administration's subsequent assertion of executive privilege here.

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.


June 28, 2012 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 20, 2012

President Asserts Executive Privilege in Fast and Furious Investigation

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.


June 20, 2012 in Congressional Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 15, 2012

House Republicans Poised to Subpoena Administration Officials

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.


February 15, 2012 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 25, 2012

House Republicans Seek White House Health Care Reform Memos

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).


January 25, 2012 in Congressional Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, November 10, 2011

Speaking of United States v. Nixon . . . . More Watergate Material Just Made Available

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.


November 10, 2011 in Executive Authority, Executive Privilege, History | Permalink | Comments (0) | TrackBack (0)

Justice Stevens on Clinton v. Jones

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.

_407332_paula_bill300The 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 [1997]) 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. 

 (emphasis added). 

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.

[image via]

November 10, 2011 in Books, Executive Authority, Executive Privilege, Gender, History, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Friday, November 4, 2011

White House Responds to Committee Subpoenas for Solyndra Docs

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.

The Committee, on a party-line vote, approved the subpoenas on Thursday; it then delivered separate subpoenas to Bill Daley and to Bruce Reed.  The subpoenas seek identical information:

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.


November 4, 2011 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 2, 2011

House Republicans to Subpoena White House Solyndra Docs

The House Energy and Commerce Committee is poised to seek a subpoena for White House documents related to Solyndra.  The Republican-controlled Committee will meet Thursday morning at 9:00 a.m., when it is expected to approve a resolution authorizing the subpoena to White House Chief of Staff Bill Daley and VP Chief of Staff Bruce Reed.  The meeting will be webcast live here.

The last time we covered congressional subpoenas to the White House, a Democrat-controlled House Judiciary Committee issued a subpoena to former White House Counsel Harriet Miers and Chief of Staff Josh Bolton in the Bush administration--and then sued to enforce them.  The district court ruled in Committee on the Judiciary v. Miers and Bolton that Miers and Bolton did not enjoy absolute immunity, but that they may assert executive privilege to specific questions, "where appropriate." 

The Committee's action on Thursday will raise some of the same issues, although there's no indication that the White House will claim a sweeping absolute privilege.  Counsel to the President Kathryn H. Ruemmler said it this way, in her first response to the Committee's request for the documents:

Your most recent request for internal White House communications from the first day of the current Administration to the present implicates longstanding and significant institutional Executive Branch confidentiality interests.  Encroaching upon these important interests is not necessary, however, because the agency documents the Committee has request, which include communications with the White House, should satisfy the Committee's stated objective--to "understand the involvement of the White House in the Review of the Solyndra loan guarnatee and the Administration's support of this guarantee."

She elaborated in her second response:

[I]t has been well established for decades that the President has a strong, constitutionally-rooted interest in preserving the confidentiality of Executive Branch deliberative communications.  This is especially true for White House communications because it has long been recognized that the President's advisors must be able to engage in candidate deliberations in advising and assisting the President in the discharge of his constitutional duties.  Republican and Democratic administrations have sought to avoid the chilling effect that disclosure of such internal communications to Congress would have on the free and open exchange of ideas within the White House by accommodating Congressional interests in a manner that minimizes these concerns.  . . .

This accommodation process, of course, requires that both branches work to accommodate each other's needs and interests.

The administration's position on executive privilege isn't nearly as strong as the absolutist position of the Bush administration in the Miers and Bolton case.  Moreover, the adminstration has already turned over scores of thousands of pages of documents, including communications with the White House.  And, indeed, Ruemmler's letters seem to suggest that the administration may be open to yet more accommodation. 


November 2, 2011 in Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, August 11, 2011

OLC Says Some Notifications in Security Appeals May Violate Separation of Powers

The Office of Legal Counsel issued an opinion in early June (but released late last month) that the government's obligation to notify an employee who appeals a denial of a security clearance of evidence obtained through electronic surveillance may violate separation-of-powers principles and executive privilege.

The Foreign Intelligence Surveillance Act requires the government to notify an "aggreived person," a target800px-Classified_document_on_Resolute_desk  of electronic surveillance, whenever the government intends to use information obtained through electronic surveillance against that person.  The OLC ruled that this requirement also applies to proceedings before the Access Review Committee--the tribunal that reviews employee appeals of denial of security clearances.

But the OLC also said that this requirement will sometimes (but rarely) violate separation-of-powers principles and require disclosure of information covered by executive privilege.  If so, the requirement yields to the Constitution.

The OLC said that Congress has some "authority to legislate in a manner that touches upon disclosure of classified information."  Op. at 7.  "For example, we believe Congress's authority to regulate foreign intelligence surveillance under FISA, and to regulate the terms of federal employment, does, as a general matter, permit Congress to impose the notification requirement . . . even when that requirement reaches proceedings concerning security clearance revocations."  Op. at 7-8.

But that authority ends when it runs up against "the President's ability to perform his constitutional duty."  Op. at 8 (quoting Morrison v. Olson).  "Congress may not, for example, provide Executive Branch employees with independent authority to countermand or evade the President's determinations as to when it is lawful and appropriate to disclose classified information."  Op. at 8 (citing Whistleblower Protections for Classified Disclosures, 22 Op. OLC at 100).  "And, as noted above, Congress's authority is 'subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.'"  Op. at 8 (quoting EPA v. Mink).  Thus the notice requirement could violate separation-of-powers or require disclosure of information protected by executive privilege; if so--and this should be rare, OLC says--the requirement gives.


[Image: Official White House photo, President Barack Obama's desk, Oct. 5, 2009, Wikimedia Commons]

August 11, 2011 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, August 9, 2010

"Our Constitution works"

"My fellow Americans, our long national nightmare is over. Our Constitution works; our great Republic is a government of laws and not of men. Here the people rule."

So said Gerald Ford, on assuming the office of President of the United States, thirty six years ago today.  Full speech is here.


[image: Gerald Ford being sworn in by CJ Warren Burger, Betty Ford observing, 1974, via].


August 9, 2010 in Appointment and Removal Powers, Executive Authority, Executive Privilege, History | Permalink | Comments (0) | TrackBack (0)

Friday, February 26, 2010

Gormley on Starr and Clinton

ConLawProf (and Interim Dean) Ken Gormley (pictured right) of Duquesne University Law School has just published THE DEATH OF AMERICAN VIRTUE: Clinton vs. Starr.Gormley2

The review in the NYT notes that "unlike some other commentators, Gormley allows for the possibility that even the most rabid-seeming players might have acted out of honorable considerations."  Based on an interview with the federal district judge hearing the original sexual harassment lawsuit, Gormley also reveals that she contemplated finding Clinton in criminal contempt, which would have ended Clinton's political career in a "nanosecond."  Yet the tenor of the 800 page book, at least according to the NYT review, is that the Clinton impeachment was all so unnecessary (quoting Starr) and diversionary.

The political relevance of Gormley's book is obvious.  But it also seems an essential sequel to Clinton v. Jones, in which the Court unanimously rejected Clinton's constitutional arguments to stay the trial until after his presidency had ended.


February 26, 2010 in Books, Cases and Case Materials, Executive Privilege, History, Profiles in Con Law Teaching, Scholarship, Separation of Powers, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Friday, September 4, 2009

White House Agrees to Release Visitor Logs

The White House announced today that it would publicly release records of White House visitors each month.  The announcement reflects the administration's settlement agreement in four Freedom of Information Act (FOIA) cases brought by the Citizens for Responsibility and Ethics in Washington (CREW), a legal advocacy organization that promotes ethics and accountability in government. CREW's press release is here; the NYT Caucus blog reports here.

CREW brought the cases after the Bush and Obama administrations declined to turn over White House visitor records in response to CREW's FOIA requests.  The administrations claimed that the records were presidential records covered by the Presidential Records Act, not agency records covered by FOIA, and therefore remain under the legal custody and control of the White House and the Office of the Vice President.

In addition, the administrations claimed that disclosing some or all of the records could reveal information protected by the presidential communications privilege.  (See United States v. Nixon and Nixon v. Administrator of General Services.)

In settling the suits, the administration did not back off these legal claims, characterizing the reports' release as "voluntary" and "discretionary."

Both the White House and CREW touted the agreement as an historic increase in government transparency.


September 4, 2009 in Executive Privilege, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, June 28, 2009

"Preventative Detention Model Act": Framework for Obama?

The likelihood of an Executive Order on "indefinite detention" is being widely discussed.  For example, the Washington Post reported yesterday:

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Pow-image Glenn Greenwald at here has extensive coverage with lots of links and discussion, especially focusing on criticisms of Obama's failure to keep his campaign pledges to be different from Bush.

NPR, however, has reported on a proposal "from two experts outside of government"  that "is already being discussed in the Obama administration."  The proposal is from the Brookings Institution, heralded with this opening salvo: "A consensus is beginning to emerge in the public and political spheres concerning the non-criminal detention of terrorist suspects."  The NPR story, however, has one of the two authors of the report acknowledging that " it will be controversial."

The proposal is definitely worth a look.  Entitled "Designing Detention: A Model Law for Terrorist Incapacitation," and authored by Benjamin Wittes and Colleen A. Peppard, download here, the first 27 pages is an analysis and discussion.  For scholars and policy analysists, this discussion provides an excellent overview of the controversies.

The last 10 pages - - - the Appendix - - -  is actually a model statute (or perhaps Executive Order?).  It provides from some judicial oversight, although a suspension of the rules of evidence during those hearings, and numerous other specifics.  For those teaching this summer, whether in the US or elsewhere, this proposal would make an excellent exam question


June 28, 2009 in Executive Authority, Executive Privilege, Fundamental Rights, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Saturday, June 13, 2009

Padilla v. Yoo - Judge denies motion to dismiss "torture memos" case

Federal Judge Jeffery White in San Francisco has substantially denied the motion to dismiss the civil complaint filed by Jose Padilla against John Yoo, formerly of the DOJ, now on leave from UC-Berkeley (Boalt Hall).

In a 42 page opinion (download here), Judge White begins rather grandly:

[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.
The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).
The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect.

However, the judge soon provides a detailed recitation of the allegations of the complaint and then engages in a closely reasoned opinion relying on United States Supreme Court precedent as well as numerous Ninth Circuit cases.  Judge White acknowledges the separation of powers issues in this Bivens complaint, and interestingly has this comment about Yoo's argument for absention:

Yoo also advocates that this Court should abstain from adjudication because the Court should leave review of his legal memoranda and the conduct which followed to the coordinate branches of government based on substantive areas of law raised by the memoranda. The Court notes the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review. Padilla’s allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power. Thus, the question posed by the present motion is whether an alternative branch of government, under the circumstances, should be tasked with prescribing the scope of relief available to Padilla.

Order at 22. 

Padilla Judge White also denies Yoo's claim of qualified immunity,  including the claim that there is insufficient causation (linking the memos to the actions against Padilla).

 The Judge's Order denies the motion to dismiss "as to all claims with the exception of the claim for violation of Padilla’s rights under the Fifth Amendment against compelled self-incrimination."  The Judge granted Yoo's motion because "there is no allegation in the complaint before this Court that Padilla was ever made to be a witness against himself or that his statements were admitted as testimony against him in his criminal case," and thus  "he has not stated a claim for violation of the Self-Incrimination Clause of the Fifth Amendment." Order at 37.  Padilla has leave to amend this allegation by July 10.  Yoo has twenty days to file his responsive pleading.

This is an opinion worth reading, just as this case will be worth watching as it proceeds.


June 13, 2009 in Cases and Case Materials, Due Process (Substantive), Executive Privilege, Fourteenth Amendment, News, Separation of Powers, State Secrets, War Powers | Permalink | Comments (4) | TrackBack (0)