Wednesday, March 31, 2021
U.S. Capitol Police Officers James Blassingame and Sidney Hemby sued former President Trump on Tuesday for inciting the January 6 insurrection. The complaint alleges a variety of torts and seeks compensatory and punitive damages.
Representative Bennie Thompson and Representative Eric Swalwell previously filed their own separate complaints against Trump and others, alleging civil-rights violations, a variety of torts, and interference with Congress's count of the electoral college votes.
Whatever other defenses Trump and other defendants may seek to assert, the president's official immunity is unlikely to work. Under Nixon v. Fitzgerald, a president is absolutely immune for civil damages for acts within the "outer perimeter" of the president's official responsibility. But allegations in all three complaints--not to mention the public record--put Trump's actions well outside this "outer perimeter." And the Thompson and Swalwell complaints specifically allege that Trump was acting in his personal capacity (not his official capacity) and for his personal benefit (and not in aid of the president's "constitutional office and functions").
Wednesday, October 7, 2020
The Second Circuit today flatly rejected President Trump's case challenging the NY grand jury subpoena for his financial records. The ruling follows a summer Supreme Court decision saying that the grand jury was not categorically (and constitutionally) barred from seeking the President's financial records.
The ruling in Trump v. Vance deals a serious blow to President Trump and his efforts to keep his financial records under wraps. (The subpoena goes to far more than President Trump's taxes.) But the President will surely seek to appeal.
The ruling says that President Trump failed even to plausibly plead (under the Iqbal and Twombly pleading standard) that the grand jury subpoena was overbroad or issued in bad faith. At the same time, it noted that going forward the President might need some accommodations in state criminal proceedings in order to avoid intruding on the President's Article II responsibilities. (The President didn't raise categorical constitutional claims in this round--the Supreme Court already rejected those claims in its ruling this summer--and did not specifically claim that complying with this subpoena would interfere with his Article II responsibilities.)
The court's decision was issued per curiam (without naming the judges involved), suggesting that the case was easy and that the ruling was perfunctory.
Thursday, July 9, 2020
Court Says Congress Can Subpoena Trump Financial Records, but Must Account for Separation of Powers Concerns
The Supreme Court ruled today that while Congress has authority to issue subpoenas for the President's personal financial records, courts that judge those subpoenas must take more careful account of the separation-of-powers considerations at play.
The ruling in Trump v. Mazars vacates the lower courts' rulings and remands the case for reconsideration in light of the balancing test that the Court sets out.
The ruling means that the congressional committees won't get President Trump's financial records yet, and maybe never. It all depends on whether Congress can meet the test set out in the Court's opinion. Either way, it almost certainly won't happen before the 2020 election.
The ruling, like Vance, is a short-term victory for President Trump, in that his records probably won't come out soon. But on the other hand, it's a decisive long-term defeat for the presidency (and victory for Congress), as the Court affirmed Congress's power to subpoena the President's personal records, even with a somewhat higher-than-normal requirement.
Chief Justice Roberts wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Thomas dissented, and Justice Alito dissented. (If you're keeping count, that's the same line-up as in Vance.)
The Court first rejected the President's sweeping claim that tried to shoe-horn executive privilege into the case: "We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations."
The Court then acknowledged that Congress has very broad, but still defined, powers of investigation and subpoena, even against the President, and even for the President's personal papers. But the Court said that because these subpoenas sought personal information of the President (as the single head of the Executive Branch), they raised especial separation-of-powers concerns that the lower courts failed sufficiently to account for:
The House's approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President's information. . . .
Without limits on its subpoena powers, Congress could "exert an imperious controul" over the Executive Branch and aggrandize itself at the President's expense, just as the Framers feared.
The Court set out a non-exhaustive list of things that courts should look for in judging congressional subpoenas for a President's personal information:
First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. Congress may not rely on the President's information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. . . .
Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective. . . .
Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress's legislative purpose, the better. . . .
Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. . . .
Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.
The Court vacated the lower courts' opinions and remanded for reconsideration under these factors.
Justice Thomas argued that "Congress has no power to issue a legislative subpoena for private, nonofficial documents--whether they belong to the President or not," unless Congress is investigating an impeachment.
Justice Alito dissented, too, arguing that the bar for Congress should be set higher than the Court's setting, and that "the considerations outlined by the Court can[not] be properly satisfied [on remand] unless the House is required to show more than it has put forward to date."
Thursday, May 14, 2020
The Fourth Circuit, sitting en banc, denied President Trump's interlocutory appeal of the district court's failure to rule on his motion to dismiss in the Emoluments Clause case brought by Maryland and D.C.
The ruling is a victory for Maryland and D.C., in that it keeps the case going. But it says nothing on the merits, or on the several other barriers that the plaintiffs may face in bringing this suit. It merely sends the case back to the district court for a ruling on President Trump's motion and other proceedings.
After Maryland and D.C. sued President Trump for Emoluments Clause violations, the President moved to dismiss, arguing that he enjoyed absolute immunity. The district court didn't rule on the motion for seven months, so President Trump filed an interlocutory appeal with the Fourth Circuit, arguing that the district court effectively denied his motion.
A three-judge panel agreed and held that Maryland and D.C. lacked standing. (We posted on the Fourth Circuit's standing ruling here.) The court vacated that ruling and granted en banc review.
Today's ruling says that the Fourth Circuit didn't have jurisdiction to hear the case.
The court said that
the district court neither expressly nor implicitly refused to rule on immunity. It did not make any rulings with respect to the President in his individual capacity. To the contrary, the district court stated in writing that it intended to rule on the President's individual capacity motion. Despite the President's suggestion, the district court's deferral did not result in a delay 'beyond all reasonable limits.'
The dissent disagreed, and wrote that "[t]he district court's treatment of the President's invocation of absolute immunity is best characterized as deliberately dilatory and, more probably, manipulative."
Tuesday, May 12, 2020
The Supreme Court heard oral arguments today in Trump v. Mazars and Trump v. Vance, the cases testing congressional authority and a local D.A.'s authority, respectively, to subpoena President Trump's financial records from his accounting firm and bank.
As usual, it's hard to say where the Court is going to land based on oral arguments. (It might be even harder than usual, given the teleconference format.) But based on questioning, it seems likely that the Court in Mazars could issue a split decision, upholding one or two subpoenas while overturning the other(s). In both cases, the Court'll seriously balance the interference (or not) of the subpoenas with the President's ability to do the job. Look for that balance to split along conventional ideological lines, with Chief Justice Roberts right in the center.
Another possibility: the Court could set a new standard for these subpoenas and remand for reconsideration.
Whatever the Court does, two things seem very likely. First, the rulings will have a dramatic effect on the separation of powers and checks and balances, likely shifting power and immunities (to some degree, more or less) to the President. Second, likely the only way we see President Trump's financial records and taxes before the 2020 election is if the Court outright upholds one of the House Committee's subpoenas. (Even if the Court rules against the President in Vance, grand jury secrecy rules mean that we probably may not see those records until after the election.)
The two cases raise very different questions. Mazars is all about the separation of powers--congressional authority to issue subpoenas to third parties for the President's personal information--while Vance is about federalism and presidential immunities--a local prosecutor's authority, through a grand jury, to subpoena that same material, and the President's claim of absolute immunity from any criminal process.
Despite the differences, though, much of the arguments in both cases focused on how the subpoenas, wherever they came from, would, or would not, "interfere" with the President's execution of the Article II powers. The President's attorneys argued repeatedly that allowing subpoenas in this case could open the door to free-flowing subpoenas from every congressional committee and every local prosecutor, and would thus impede the President's ability to do the job. On the other hand, attorneys for the Committees and the D.A. noted that these particular subpoenas are directed at a third party and don't require the President to do anything.
Look for the Court to incorporate this into its reasoning--the extent to which the subpoenas interfere with the President's job, either in fact (where there's no real evidence that President Trump has actually been distracted by these subpoenas) or in theory (where we can imagine that a future President might be distracted by a flurry of future subpoenas).
Questions in Mazars also focused on the three committees' precise authorities and reasons for their subpoenas. Did they have authority under the House's standing rules? Did the House's subsequent "ratification" of them suffice to demonstrate that the whole House supported them? Were the reasons within a "legitimate legislative purpose"?
These questions suggest that the Court may examine each subpoena separately, and could well uphold one or two, while overturning the other(s).
We also heard some pretty breathtaking claims by the President's attorneys about the scope of presidential powers and immunities. In Mazars we heard that Congress can't regulate the President at all (even if it can regulate other offices in the Executive Branch), and therefore can't investigate (and subpoena) material to help enact law that would regulate the President. In Vance, we heard that the President is absolutely immune from all criminal processes.
The government, weighing in as amicus in both cases in support of the President, dialed back the President's most extreme and categorical positions, and argued instead for a more stringent test for subpoenas directed at the President's personal information. This could give the Court an attractive "middle" position. (This isn't really a middle position. But the President's extreme claims make the government's position look like a middle position.)
On the other side, Congress's attorney in Mazars struggled to identify a limit to Congress's power to subpoena--an issue that several Justices thumped on. The lack of a limiting principle could come back to bite the House Committees, even if these particular subpoenas might've come well within a reasonable limiting principle. That's because if the Court rules for the Committees, it'll have to say why--knowing that the reason will apply to all future congressional subpoenas. If the Committees can't give the Court a limiting principle, the Court could conclude that they see no limit on their authority. And that may be reason enough for at least some of the Justices to rule against them.
Monday, May 11, 2020
The Supreme Court will hear oral argument tomorrow in Trump v. Vance, the case testing whether the President is immune from a state grand jury subpoena for his records that have nothing to do with his official duties. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:
In the summer of 2018, the New York County District Attorney’s Office (the Office) opened an investigation into possible criminal misconduct in activities connected to the Trump Organization. The Office obtained information about transactions and tax strategies by individuals and organizations that raised the prospect that a continuing pattern of criminal activity might have occurred within the Office’s jurisdiction and within the statute of limitations. Importantly, the Office has not eliminated President Trump himself as a potential target.
These transactions include the now-familiar “hush money” payments during the 2016 presidential campaign that President Trump’s attorney, Michael Cohen, paid to two women with whom President Trump had extra-marital affairs. Cohen admitted that he violated campaign finance laws in coordination with, and at the direction of, a person later identified as President Trump. Cohen pleaded guilty to the charges and is now serving a prison sentence.
Around the time of Cohen’s guilty plea, at the request of federal prosecutors and in order to avoid disruption of the ongoing federal investigation, the Office deferred its own investigation. After the Office learned in July 2019 that the federal investigation had concluded without any further charges, the Office then resumed its investigation.
On August 1, 2019, the Office served the Trump Organization with a grand jury subpoena for records and communications concerning certain financial transactions. The Office later informed the Trump Organization’s attorney that the subpoena also required production of certain tax returns. Over the next several months, the Trump Organization produced responsive documents, but not the tax returns.
On August 29, 2019, the Office served a grand jury subpoena on Mazars USA, LLP, President Trump’s accounting firm, for financial and tax records from January 1, 2011, to the date of the subpoena, including records for President Trump himself and entities he owned before becoming President. The Office largely patterned the Mazars subpoena on a similar subpoena to Mazars issued by the House Committee on Oversight and Reform. The Office’s Mazars subpoena does not seek any official government communications or involve any official presidential conduct.
Soon after the Office issued the Mazars subpoena, the Trump Organization informed the Office that they believed that the request for tax records implicated constitutional considerations. The Office agreed to temporarily suspend the tax portion of the subpoena to allow the Trump Organziation to challenge it.
President Trump then sued the Office and Mazars, seeking preliminary injunctive relief to stop Mazars from complying with the subpoena. (The “Vance” in the case name refers to Cyrus R. Vance, Jr., District Attorney of the County of New York.) President Trump argued that as sitting President he enjoyed absolute immunity from any form of “criminal process” or “investigation,” including a subpoena issued to a third party like Mazars.
The district court dismissed the case, ruling that it belonged in state court, not federal court. Alternatively, the district court denied injunctive relief, holding that the President’s claim of absolute immunity from criminal process “finds no support in the Constitution’s text or history” or in the Court’s precedents. The Second Circuit vacated the district court’s ruling that the case belonged in state court, but affirmed its alternative ruling on the merits. This appeal followed.
The Supreme Court has ruled in a series of cases that the President enjoys certain privileges and immunities from various judicial processes. For example, the Court held in United States v. Nixon, 418 U.S. 683 (1974), that the President had an “executive privilege” against disclosure of confidential presidential communications. At the same time, however, the Court ruled that a sufficiently important countervailing need for the information (like a federal court’s need for evidence in a criminal trial, as in that case) could outweigh the President’s interest in confidential communications.
As to immunities, the Court held in Nixon v. Fitzgerald, 457 U.S. 731 (1982), that the President is absolutely immune from civil liability for official acts taken while in office. But the Court held in Clinton v. Jones, 520 U.S. 681 (1997), that the President is not immune from civil suits for unofficial actions taken before he came to office.
The Department of Justice has long held the position that the President is immune from criminal prosecution while in office. But the Supreme Court has never addressed that question, or the related question whether the President is immune from any criminal process that might lead up to a prosecution. That last question is what this case is all about.
President Trump argues that as sitting President he is absolutely immune from any criminal process that targets him, including the Office’s subpoena to a third party like Mazars. President Trump claims that subjecting him to any criminal process at all would interfere with the President’s “unparalleled responsibilities to defend the nation, manage foreign and domestic affairs, and execute federal law.” Moreover, he contends that subjecting the President to any criminal process would “stigmatize the President in ways that will frustrate his ability to effectively represent the United States in both domestic and foreign affairs.” President Trump says that Congress can hold the President to account through impeachment, and that state and federal prosecutors can hold the President to account through criminal processes after he leaves office, but that the President is absolutely immune from criminal process while in office. President Trump asserts that this is consistent with the text, structure, and history of the Constitution and with the longstanding position of the Justice Department.
President Trump argues that the need for absolute immunity from criminal processes is particularly acute when it comes to state and local prosecutors. He says that these processes (unlike federal criminal processes, from which the President also claims absolute immunity) threaten federal supremacy under the Constitution’s Supremacy Clause. In particular, President Trump contends that without absolute immunity, state and local prosecutors, motivated only by their own parochial and political interests, could impede the work of the President and the President’s duties to the entire, undivided nation.
President Trump argues that the Mazars subpoena violates all of these principles. He says that there is “no dispute” that the Mazars subpoena targets him, given that it specifically seeks his records. And he says that it doesn’t matter that his compliance with this subpoena would not burden his official duties (because it is directed as Mazars, not him); instead, he claims that the President’s absolute immunity is based on the mere threat of a like subpoena (or other criminal process) by every state and local prosecutor.
President Trump argues that the Court’s precedents support his position. He points to Nixon v. Fitzgerald, where the Court held that a former President was immune from a suit for civil damages based on the President’s official acts. He says that subjecting the President to criminal processes would be even more burdensome. President Trump distinguishes Clinton and United States v. Nixon, arguing that both cases arose from federal, not state, proceedings, and that they involved different kinds of behavior or processes. Finally, President Trump argues that at the very least United States v. Nixon requires that a prosecutor show a “demonstrated, specific need” for material sought in a subpoena directed at the President, and that the Office failed to show this.
The government weighs in to support President Trump and echoes many of these themes. The government, however, stops short of arguing for absolute immunity from all criminal processes and instead argues only that President Trump is immune from “any process that would risk impairing the independence of his office or interfering with the performance of its functions.” In evaluating any particular process, the government contends that the Court should apply, at a minimum, the “heightened standard of need” in United States v. Nixon. It says that the Mazars subpoena does not meet this standard.
The Office argues in response that the President has no absolute immunity from a state grand jury subpoena for documents unrelated to the President’s official duties. The Office claims that the Court’s precedents extend immunity only to official acts (not private acts), and that the “mere risk of interference” with the President’s official functions cannot support immunity from this kind of subpoena. The Office contends that the Mazars subpoena only seeks information related to President Trump’s private acts, and only raises, at most, a “risk of interference” with the President’s official functions (because it’s directed at Mazars, not President Trump), and so the President is not immune from it.
The Office argues that this result is not altered by the President’s arguments in support of absolute immunity from all criminal processes. It says that responding to a subpoena is far less burdensome than facing indictment or prosecution, and does not stigmatize the President the way an official accusation of wrongdoing might. By way of comparison, it claims that the burdens on the President in United States v. Nixon were far greater, yet the Court still ruled against the President’s claim of privilege.
As to President Trump’s federalism claims, the Office argues that these lack merit. It says that state and local prosecutors are on the front lines of criminal law enforcement in the country, and that they are “cloaked with a presumption of regularity that makes federal interference particularly inappropriate.” Moreover, it asserts that there are other procedural safeguards—including a prohibition on state investigation of official presidential conduct—that protect the President from abusive state and local criminal processes. In any event, the Office contends that the Court already considered and dismissed President Trump’s worry that state and local prosecutors could hassle the President for political reasons when it rejected a similar argument for immunity from a private civil suit against the President in Clinton.
The Office argues further that there are good policy reasons not to provide absolute immunity to the President. For one, such immunity could effectively immunize the President from any post-office indictment and prosecution, because evidence may go stale and statutes of limitations may run. For another, immunity may impede other, related criminal investigations and prosecutions.
In short, the Office argues that there is no basis for absolute presidential immunity from all criminal processes, that there are good reasons not to provide such sweeping immunity, and that in any event the President has plenty of opportunities to claim immunities on a case-specific (and not absolute, categorical) basis.
The Office argues that the alternative test for immunity, the government’s “heightened standard of need,” derives from the Court’s test in evaluating claims of executive privilege, and has no application here. According to the Office, that’s because the subpoena here does not seek privileged material or material related to official conduct. Moreover, it says that the mere risk of the subpoena’s burden on the President is insufficient to justify a heightened standard. And it claims that such a standard would impede state and local law enforcement.
Finally, the Office argues that President Trump has failed to demonstrate that the Mazars subpoena suffers from any of the problems that may immunize the President from it. In particular, the Office says that President Trump has failed to show that it was issued in bad faith, or that it would be overly burdensome. (The Office notes that the district court already ruled on this last point, and that President Trump hasn’t produced any new evidence.)
This case has obvious and much-rehearsed (maybe too much rehearsed) political significance. In short, President Trump’s refusal to release his tax returns has been a central issue of political debate since at least the 2016 primaries. A ruling for President Trump would close this particular channel that could eventually lead to public release. A ruling against him, on the other hand, would require Mazars to turn over President Trump’s taxes to the Office, and thus leave open this channel which could lead to public release. It’s not entirely clear how much this matters, however, given that so many voters are stuck in their support of or opposition to President Trump, whatever his taxes might reveal. In any event, the ruling (which will likely come down this summer) will fast become political fodder for both sides and will certainly play some role in the presidential election.
The case and its companions, Trump v. Mazars USA, LLP, and Trump v. Deutsche Bank AG, raise the specter of a secondary political effect, which is likely far more significant. That is: these cases, as much as any other this Term (given the high-profile role that President Trump’s taxes and finances continue to play in our politics), will put the Court front and center in the ongoing political debates and the 2020 presidential election. Whatever the Court says, polls on one side or the other will claim that our Supreme Court justices are really only politicians masquerading in robes. That inevitable claim could have extra resonance here, in this explosive political environment and on this uniquely red-hot political issue, and could do serious and lasting damage to our collective faith in the judiciary and to the separation of powers.
And speaking of the separation of powers, this case could fundamentally reshape our structural constitution. The Court has never come close to endorsing the President’s claimed sweeping and absolute privilege against all criminal processes. If it creates such a privilege here, the ruling will mark a dramatic shift of power away from Congress, the judiciary, and even the states—and to the Executive Branch. This is big enough that we’ll almost feel the shift in our constitutional tectonic plates.
One final point. This case, of course, is linked with Trump v. Mazars and Trump v. Deutsche Bank AG, the two cases testing congressional authority to get President Trump’s taxes. While those cases raise the same practical bottom-line question—Can anybody get at President Trump’s taxes and financial records?—they involve very different constitutional issues, and therefore have their own (also quite weighty) constitutional significance.
Sunday, March 1, 2020
Judge Randolph D. Moss (D.D.C.) ruled today that Ken Cuccinelli's appointment as Acting Director of U.S. Citizenship and Immigration Services violated the Federal Vacancies Reform Act of 1998 and struck two of his orders restricting certain asylum processes.
The ruling is a significant blow to the administration, USCIS, and Cuccinelli. It also puts the brakes on the then-Acting Secretary of Homeland Security's effort to side-step the FVRA and get Cuccinelli into office under the radar. (If affirmed, the ruling also forecloses any similar efforts to work around the FVRA in Homeland Security or other agencies.)
Moreover, the ruling could also affect other asylum claimants and other Cuccinelli decisions, if other cases follow. (Judge Moss was careful to limit relief to only the plaintiffs in this case, which was not a class action. But the reasoning extends to other asylum applicants and other Cuccinelli decisions in his role as acting Director.)
The case arose when certain asylum claimants challenged Cuccinelli's orders to limit the time allotted for asylum seekers to consult with others prior to their credible-fear interviews from 72 or 48 hours to "one full calendar day from the date of arrival at a detention facility," and prohibited asylum officers from granting extensions to prepare for credible-fear interviews "except in the most extraordinary of circumstances." They argued, among other things, that Cuccinelli lacked authority to issue the orders, because his appointment as Acting Director was invalid under the FVRA.
The court agreed. The court noted that after the Senate-confirmed Director of the USCIS resigned, and after the Deputy Director (the Director's "first assistant") took over pursuant to the FVRA, the Secretary of Homeland Security simultaneously appointed Cuccinelli as a newly created Principal Deputy Director and revised the USCIS order of succession to designate the new Principal Deputy Director as the new "first assistant" to the Director.
The moves were designed to put Cuccinelli in the Acting Director's spot over the Deputy Director. (The FVRA specifies that when there's a vacancy in a Senate-confirmed job, the "first assistant" assumes the acting role, unless the President appoints a person under other provisions in the FVRA, not relevant here.)
But in addition to the bald effort to work around the FVRA, there was this weirdness, underscoring the fact that the Acting Secretary was trying to side-step the FVRA: the Acting Secretary specified that the order designating the Principal Deputy Director as "first assistant" "will terminate automatically, without further action, upon the appointment of a new Director of USCIS by the President."
The court held that the attempted work-around of the FVRA didn't work. In short, Cuccinelli "never did and never will serve in a subordinate role--that is, as an "assistant"--to any other USCIS official," because his appointment as Principal Deputy automatically elevated him to the Acting Director job. "For this reason alone, Defendants' contention that his appointment satisfies the FVRA cannot be squared with the text, structure, or purpose of the FVRA."
The court thus ruled that Cuccinelli's two orders were issued without authorization and set them aside. It went on to limit relief to the plaintiffs in the case, however, and noted that the case wasn't a class action. As a result, the court vacated the plaintiffs' negative credible-fear determinations and remanded their cases to USCIS for further proceedings under the pre-order rules.
Friday, February 28, 2020
The D.C. Circuit dismissed the House Judiciary Committee's lawsuit seeking to compel the testimony of former White House Counsel Don McGahn. The court held that the Committee failed to assert a judicially cognizable injury, and that the case was therefore not justiciable under Article III.
The ruling deals a sharp blow to Congress's authority to compel testimony of, and to obtain information from, Executive Branch officials. It means that congressional lawsuits against Executive Branch officials to compel testimony are nonjusticiable, and that Congress will have to use its own powers (appropriations, appointments, contempt, impeachment) to obtain that testimony and information. As we've seen, however, those tools often don't do the job.
In short, the ruling invites presidential noncooperation with congressional oversight and investigations and, as a practical matter, with a noncooperative president, could all but mark the end of effective congressional oversight of the administration. Having said that, this'll surely be appealed.
The court, in an opinion penned by Judge Griffith, ruled that the Committee lacked a judicially cognizable injury, and therefore lacked standing under Article III. It said that the courts have no business refereeing a pure dispute between Congress and the Executive Branch. It distinguished cases where the courts have ruled in inter-branch disputes, saying that those cases always involved a direct, cognizable harm to an individual, not a branch of government.
In this case, the Committee's dispute with the Executive Branch is unfit for judicial resolution because it has no bearing on the "rights of individuals" or some entity beyond the federal government. The Committee is not a private entity seeking vindication of its "constitutional rights and liberties . . . against oppressive or discriminatory government action." Nor does the Committee seek the "production or nonproduction of specified evidence . . . in a pending criminal case"--the "kind of controversy" threatening individual liberty that "courts traditionally resolve."
Instead, the Committee claims that the Executive Branch's assertion of a constitutional privilege is "obstructing the Committee's investigation." That obstruction may seriously and even unlawfully hinder the Committee's efforts to probe presidential wrongdoing, but it is not a "judicially cognizable" injury.
Judge Henderson concurred, but added that McGahn's arguments on both justiciability and the merits went too far:
First, McGahn urges us to foreclose Article III standing when the Congress, or a House thereof, asserts any institutional injury in any interbranch dispute; I do not believe, however, Supreme Court precedent supports a holding of that scope. Second, McGahn's assertion of absolute testimonial immunity against compelled congressional process is, in my opinion, a step too far, again, under Supreme Court precedent.
Judge Rogers dissented:
The House comes to the court in light of the President's blanket and unprecedented order that no member of the Executive Branch shall comply with the subpoena duly issued by an authorized House Committee. Exercising jurisdiction over the Committee's case is not an instant of judicial encroachment on the prerogatives of another Branch, because subpoena enforcement is a traditional and commonplace function of the federal courts. The court removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House's ability to perform its constitutional duties.
February 28, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1)
Wednesday, January 1, 2020
Judge Richard Leon (D.D.C.) this week tossed former Deputy National Security Advisor and Acting National Security Advisor Charles Kupperman's lawsuit asking the court to determine which prevailed: a congressional subpoena, or the White House's instruction not to testify under an absolute privilege theory.
The ruling ends the case. It also means that we don't get another district court say-so on the White House theory of absolute privilege for senior presidential advisors. That means that we now have (1) a district court ruling from late November rejecting absolute privilege with respect to former White House Counsel Don McGahn's compelled testimony and (2) a 2008 district court ruling rejecting absolute privilege with respect to White House Counsel Harriet Mier's compelled testimony. No circuit court has yet to weigh in. We also have a series of Office of Legal Counsel memos, starting with the 1971 memo through the most recent McGahn memo. The district courts have flatly rejected the reasoning in these memos.
Just a wee little bit of background (more on our earlier posted, link above): Kupperman, a former White House official, received a subpoena to testify in the impeachment inquiry from the House Permanent Select Committee on Intelligence; but the White House instructed him not to testify, claiming an absolute privilege against compelled congressional testimony. Kupperman sued, asking the court to resolve his dilemma. But the House moved forward with impeachment without his testimony, and the Committee argued that his case was moot.
Judge Leon agreed. The court said that there's no longer a case or controversy over the matter, that the matter isn't "capable or repetition but evading review" (because the House has said unequivocally that it won't re-issue a subpoena, ever), and that there's no chance of enforcement against Kupperman.
Tuesday, November 26, 2019
Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday that former White House Counsel Don McGahn must comply with a subpoena issued by the House Judiciary Committee and testify before the Committee. The ruling rejects the sweeping claim that high-level presidential advisors enjoy categorical testimonial immunity.
At the same time, the court held that McGahn could assert appropriate privileges (like executive privilege) to specific questions from the Committee.
The ruling deals a sharp blow to the Trump Administration and its attempts to categorically shield certain White House officials from testifying before Congress. It applies directly to McGahn, of course; but the reasoning applies equally, or even with greater force, to House testimony by senior presidential advisors in the impeachment inquiry. (Why "or even with greater force"? Because the House may be on even firmer ground in issuing any subpoenas in the course of an impeachment inquiry.)
The administration will surely appeal. (DOJ is representing McGahn and presented arguments on behalf of the executive branch.) As a result, we're unlikely to see McGahn testify anytime soon. If the parties continue to press the issue, it'll surely go to the Supreme Court. (The 2008 Miers case, which the court said was "on all fours" with this one, didn't go up on appeal, because the parties settled. That could happen here, too.)
The case arose when the Committee sued McGahn to enforce its subpoena against him to testify in its investigation into whether President Trump and his associates engaged in misconduct in the run-up to the 2016 presidential election. DOJ, representing McGahn, argued that McGahn was a high-level presidential advisor who enjoyed absolute testimonial immunity before Congress.
The court ruled that it had jurisdiction over the case and then rejected DOJ's sweeping claim of immunity. In short, the court held that the issue was already decided by Judge Bates in 2008, in Committee on Judiciary v. Miers. Here's a nice summary (pp. 41-42 of the opinion):
Unfortunately for DOJ, and as explained fully below, these contentions about the relative power of the federal courts [as to lack of jurisdiction], congressional committee, and the President distort established separation-of-powers principles beyond all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial immunity for senior-level presidential aides transgress core constitutional truths (notwithstanding OLC's persistent heralding of these and similar propositions). By contrast, textbook constitutional law readily reveals that, precisely because the Constitution bestows upon the Judiciary the power to demarcate the boundaries of lawful conduct by government officials, the federal courts have subject-matter jurisdiction to entertain subpoena-enforcement disputes concerning legislative subpoenas that have been issued to Executive branch officials. It is similarly well established that, because the Constitution vests the Legislature with the power to investigate potential abuses of official authority--when necessary to hold government officials (up to, and including, the President) accountable, as representatives of the People of the United States--then House committees have both Article III standing and a cause of action to pursue judicial enforcement of their duly authorized and legally enforceable requests for information. What is missing from the Constitution's framework as the Framers envisioned it is the President's purported power to kneecap House investigations that Executive branch operations by demanding that his senior-level aides breach their legal duty to respond to compelled congressional process.
Luckily for this Court, an existing precedent that is on all fours with the instant matter (Miers) already systematically dismantles the edifice that DOJ appears to have erected over the years to enshrine the proposition that a President's senior-level aides have absolute immunity with respect to legislative subpoenas that Congress issues in the course of its investigations . . . .
November 26, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Monday, November 4, 2019
In a 28 page complaint filed in New York state courts opening the case Carroll v. Trump, E. Jean Carroll has sued the president for one count of defamation.
The argument is that the president is "sued here only in his personal capacity" and implicitly that there is no presidential immunity, noting cases in which President Trump has been a plaintiff in his personal capacity, and further citing "a related case" of Zervos v. Trump in which Trump is a defendant. Recall that a New York appellate court considering Zervos earlier this year held that Trump was not immunized from defending a lawsuit in state court.
Interestingly, this paragraph avers that Trump is a "resident" of New York; Trump announced a few days ago that he had filed a "declaration of domicile" in Florida. There are other aspects of personal jurisdiction and there is no amount in the complaint that might satisfy the threshold for removal to federal court for diversity purposes.
The complaint provides a compelling explanation of E. Jean Carroll's silence about the 1995 or 1996 event in which she alleges Trump raped her in a department store dressing room as well as the rationales for changing her mind, including the death of her mother and the burgeoning #MeToo movement response to Harvey Weinstein.
As to the substantive allegations, Carroll highlights three statements — made on June 21, 22, and 24 — that were widely disseminated and accused Carroll of lying about the incident, of inventing the incident for book sales, of inventing the incident for a "political agenda," of lying about incidents with other men, and stating that Trump did not know her, had never met her, and that she was "not his type." On reputational damages, the complaint avers that since the defamation she lost the "support and goodwill" of many of the readers of her advice column, resulting in "roughly 50% fewer letters" to which she could respond, noting that as an advice columnist she requires a "steady flood of compelling letters" seeking her advice.
Expect Trump's answer — or more probably motion to dismiss — to raise the same immunity defense as in Zervos despite the appellate court decision and perhaps a jurisdictional argument.
Second Circuit Rejects President Trump's Effort to Protect Taxes, Establish Categorical Immunity from Criminal Investigation
The Second Circuit today flatly rejected President Trump's attempt to halt a grand jury subpoena for the President's financial records directed at his accounting firm, Mazars, based on a claim of absolute presidential immunity from all criminal processes (including investigations).
The ruling deals a sharp blow to the President and his extraordinary efforts to conceal his taxes. Still, the President is sure to appeal. (Just last month, the President lost in the D.C. Circuit on a similar case, dealing with a House subpoena directed at Mazars.)
Recall that the President filed this federal case to stop a state criminal process, in particular, a state grand jury's subpoena to Mazars for the President's financial records, including his taxes. The district court ruled that the President's suit was barred by Younger abstention and, in the alternative, that the President was not likely to succeed on the merits of his immunity claim.
The Second Circuit reversed on the abstention question, but affirmed on the immunity question. The court noted that the subpoena was directed at Mazars, not President Trump, and therefore did not require the President to do anything that might interfere with his ability to faithfully execute the law. It noted moreover that the subpoena seeks information that has nothing to do with the President's official responsibilities, and is therefore not subject to any claim of executive privilege.
As to the President's claim of absolute privilege against any criminal process (including even an investigation), the court wrote that the scant authority on this question goes only against the President. In particular, it noted that the Court in United States v. Nixon held that executive privilege and separation-of-powers concerns did not preclude the enforcement of a subpoena for presidential records. (As to the separation of powers, the court noted, "That the Court [in Nixon] felt it unnecessary to devote extended discussion to the latter argument strongly suggests that the President may not resist compliance with an otherwise valid subpoena for private and non-privileged materials simply because he is the President.") Moreover, the court noted that even the two OLC memos that the President cited--the 1973 Dixon memo, and the 2000 Moss memo, only go so far as immunity from indictment, not mere investigation.
Although the ruling doesn't mean that we'll see the President's taxes soon--again, the President is sure to appeal, and that'll take some time--it is a sharp blow against his claim of absolute privilege from all criminal process.
Wednesday, October 9, 2019
The practice and the announcement of the White House that it will not cooperate with the House of Representatives Impeachment Inquiry as we discussed here, raises the question of the resources available to Congress to enforce its subpoenas. And as in so many cases about Congressional matters, there is a Congressional Research Service Report for that: Congressional Subpoenas: Enforcing Executive Branch Compliance, updated March 27, 2019.
The Report includes this overview:
Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas. The two predominant methods rely on the authority and participation of another branch of government. First, the criminal contempt statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena. Once the contempt citation is received, any later prosecution lies within the control of the executive branch. Second, Congress may try to enforce a subpoena by seeking a civil judgment declaring that the recipient is legally obligated to comply. This process of civil enforcement relies on the help of the courts to enforce congressional demands.
Congress has only rarely resorted to either criminal contempt or civil enforcement to combat non- compliance with subpoenas . . . .
Of special note later in the Report is a discussion of "detention" of executive branch officials:
Although rare, the inherent contempt power has been used to detain executive branch officials, including for non-compliance with a congressional subpoena. During an 1879 investigation into allegations of maladministration by George F. Seward while a consul general in Shanghai, a House committee issued a subpoena to Seward for relevant documents and testimony.254 When Seward—then an ambassador to China—refused to comply, the House passed a resolution holding him in contempt and directing the Sergeant-at-Arms to take him into custody and bring him before the House. Seward was taken into custody and brought before the House, where he was ultimately released while the House considered impeachment articles.
In another example which gave rise to Marshall v. Gordon , the House adopted a contempt resolution directing the Sergeant-at-Arms to arrest U.S. Attorney Snowden Marshall for an insulting letter sent to a committee chair. The arrest was then made and quickly challenged in federal court, where ultimately the Supreme Court ordered Marshall released. In doing so, the Court reaffirmed the contempt power generally, but concluded that in Marshall’s case the contempt was invalid as “not intrinsic to the right of the House to preserve the means of discharging its legislative duties.” Notably, the Court was silent on whether Marshall’s status as an executive branch official had any impact on the House’s exercise of the power.
Given these examples, and the Supreme Court’s general statements on the reach of the inherent contempt power, it would appear to be within Congress’s power to use inherent contempt to compel executive branch compliance with congressional subpoenas, at least in certain circumstances. But neither the Seward nor Marshall example involved an assertion of executive privilege, meaning that the Court did not need to consider what, if any, constraints that privilege may impose upon Congress’s exercise of its inherent contempt authority.
Moreover, an attempt by Congress to arrest or detain an executive official may carry other risks. There would appear to be a possibility that, if the Sergeant-at-Arms attempted to arrest an executive official, a standoff might occur with executive branch law enforcement tasked with protecting that official. This concern is also applicable in the event that a judicial marshal enforces a judicial order of contempt against an executive official, and perhaps will always be “attendant in high-stakes separation-of-powers controversies.”
There's a great deal more worth reading in this 45 page Report as what some are calling a "constitutional crisis" unfolds.
Friday, September 27, 2019
The subpoena is significant because the committees twice previously requested the exact same information citing the commitees' oversight authority. The administration ignored those requests. The new impeachment subpoena takes away the administration's arguments for stonewalling congressional inquiries under its oversight authority and may test whether Congress has more power when it engages in an impeachment than when it engages in regular oversight.
The subpoena, issued by the chairs of the House Foreign Affairs, Permanent Select Committee on Intelligence, and Oversight and Reform, is directed at Secretary of State Mike Pompeo. It seeks information related to President Trump's efforts to urge Ukraine to interfere with the 2020 election.
The subpoena letter begins, "Pursuant to the House of Representatives' impeachment inquiry . . . ."
The administration has now made a habit of ignoring congressional oversight requests, arguing that they (1) lack a legitimate legislative purpose, (2) violate its new and sweeping version of executive privilege, and (3) constitute law enforcement (not lawmaking) in violation of the separation of powers.
But by invoking the House's impeachment authority, the committee undermine those arguments (to the extent that they had any force in the first place). In an impeachment, there is no legislative purpose. Impeachment, as a significant constitutional check on the President, weighs stronger against a President's claim of executive privilege. And Congress is engaged in an impeachment inquiry, not law enforcement.
The administration will undoubtedly come up with constitutional arguments to ignore this latest subpoena, too. But the impeachment power seems to take away these three.
So: Does Congress have more authority when seeking information under its impeachment power? We don't know for sure. But Molly Reynolds and Margaret Taylor survey the arguments in this May 2019 piece over at Lawfare.
Wednesday, September 25, 2019
With the news that the House of Representatives has launched an impeachment inquiry, many of us could use some explainers or refreshers on the rarely-used constitutional process of impeachment.
First, the Constitutional text. The United States Constitution provides for impeachment and removal of office for the President and other Executive officers in Article II §4:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
The Constitution divides the power to impeach and the power to adjudicate impeachment between the chambers of Congress, with the House of Representatives having the power to impeach and the Senate having the power to adjudicate the impeachment and effect removal from office.
Article I §2 provides:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Article I §3 provides:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
The Constitution does not further detail the processes, but there is the precedent of previous impeachment processes, including those against Presidents Andrew Johnson, Richard Nixon, and William Clinton which were resolved at various stages and none of which led to conviction and removal. There is also the more frequent experience with judicial impeachments.
The Congressional Research Service has two excellent explainers on impeachment. First and of immediate interest is the report entitled The Impeachment Process in the House of Representatives. It was updated August 2019, and although it is only 15 pages, it is an excellent and substantive discussion of the process and requirements. A somewhat longer report from 2015 entitled Impeachment and Removal provides an overview including grounds for impeachment and trial in the Senate. As this report also notes, the question of impeachment has been held to be a nonjusticiable political question by the United States Supreme Court in Nixon v. United States, 506 U.S. 224 (1993), a case involving the impeachment of federal Judge Walter Nixon (not President Nixon, who resigned in 1974).
There have also been several good explainers in the media; here are a few:
Jennifer Haberkorn, Impeachment 101: How could Congress remove President Trump from office?, Los Angeles Times (May 30, 2019);
Ed Kilgore, The Impeachment Process Explained: What Happens to Trump Now?, New York Magazine (September 25, 2019);
Amber Phillips, What you need to know about the impeachment inquiry into Trump, Washington Post (September 25, 2019);
Charlie Savage, How the Impeachment Process Works, New York Times (September 24, 2019).
Monday, September 23, 2019
In her Order in Galicia v. Trump, Judge Doris Gonzalez has ordered that President Trump appear for a videotaped deposition prior to trial to provide testimony for use at trial in this tort case.
The plaintiffs brought an action against Donald Trump, Donald Trump for President, the Trump Organization, and Keith Schiller for events in September 2015 when plaintiffs were protesting Trump's views as he was beginning his campaign for President. Plaintiffs allege that "several of Defendant Trump's bodyguards, including his confidant and chief security officer Keith Schiller, stormed Plaintiffs, pushed some of them down the sidewalk, using excessive force grabbed the signs from Plaintiffs and converted them to their own use." The case is proceeding to trial on claims of assault and battery, and against Donald Trump on a theory of respondeat superior. In 2016, a state judge granted a protective order against a motion to compel Trump's deposition before trial. When the case became ready for trial, plaintiffs issued a subpoena ad testificandum to compel Trump's testimony; Trump moved to quash, arguing that under Clinton v. Jones (1997), a president can only be deposed before trial and at the White House.
Judge Gonzalez began her discussion with a resort to the framers and Marbury v. Madison:
More than 200 years ago our founders sought to escape an oppressive, tyrannical governance in which absolute power vested with a monarch. A fear of the recurrence of tyranny birthed our three-branch government adorned with checks and balances. Chief Justice John Marshall famously stated, [t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to be deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 1 Cranch 137 (1803). Put more plainly, no government official, including the Executive, is above the law.
Yet as Judge Gonzalez notes, the Court resolved the question of whether the President is absolved from legal responsibility for unofficial conduct in Clinton v. Jones. Further, the New York courts resolved the issue of whether the state courts could exercise jurisdiction over the President in Zervos v. Trump.
However, President Trump argued that his testimony could not be compelled for trial, but only at pretrial as some dicta in Clinton v. Jones indicated, and that in any event, the plaintiffs had waived the President's testimony by not appealing the earlier order finding a motion to compel premature. Further, Judge Gonzalez distinguished a Second Circuit case relied upon by Trump that depositions of "high-ranking officials" should only occur in exceptional circumstances by noting that this was the rule in litigation involving official action rather than the unofficial pre-Presidential action at issue in this case.
Judge Gonzalez ruled that "questions of fact exist" regarding Trump's "exercise of dominion and control over his employee defendants" and ordered President Trump to "appear for a videotaped deposition prior to the trial of this matter and provide testimony for the use at trial."
Tuesday, July 9, 2019
In its opinion in Knight First Amendment v. Trump, the Second Circuit ruled that the "First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open dialogue because they expressed views with which the official disagrees." The case arose from challenges to the President, Donald J. Trump, blocking users on Twitter. Recall that United States District Judge for the Southern District of New York, Naomi Reice Buchwald, issued a 75 page opinion based on the parties motions for summary judgment (and stipulated facts) concluding that found that the President's Twitter account, @realdonaldtrump, is in violation of the First Amendment when it blocks other Twitter users based on their political views. A unanimous panel of the Second Circuit affirms that decision.
The Second Circuit opinion, authored by Judge Barrington Parker, first considered the state action threshold. The government attorneys interestingly represented the President to argue that his account is nongovernmental. The court rejected the government attorneys' position that while the @realdonaldtrump Twitter account is not independent of Trump's presidency, that the specific act of blocking should not be considered state action. Further, the Second Circuit rejected the argument that because the person of Donald Trump established the account before becoming President and will retain control after he leaves the presidency, the @realdonaldtrump account must be considered "private" and not subject to the First Amendment: "the fact that government control over property is temporary, or that the government does not 'own' the property in the sense that it holds title to the property, is not determinative." The court stated:
The government’s contention that the President’s use of the Account during his presidency is private founders in the face of the uncontested evidence in the record of substantial and pervasive government involvement with, and control over, the Account. First, the Account is presented by the President and the White House staff as belonging to, and operated by, the President. The Account is registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.’” The President has described his use of the Account as “MODERN DAY PRESIDENTIAL.” The White House social media director has described the Account as a channel through which “President Donald J. Trump . . . [c]ommunicat[es] directly with you, the American people!” The @WhiteHouse account, an undoubtedly official Twitter account run by the government, “directs Twitter users to ‘Follow for the latest from @POTUS @realDonaldTrump and his Administration.” Further, the @POTUS account frequently republishes tweets from the Account. As discussed earlier, according to the National Archives and Records Administration, the President’s tweets from the Account “are official records that must be preserved under the Presidential Records Act.”
Second, since becoming President he has used the Account on almost a daily basis “as a channel for communicating and interacting with the public about his administration.” The President utilizes White House staff to post tweets and to maintain the Account. He uses the Account to announce “matters related to official government business,” including high‐level White House and cabinet‐level staff changes as well as changes to major national policies. He uses the Account to engage with foreign leaders and to announce foreign policy decisions and initiatives. Finally, he uses the “like,” “retweet,” “reply,” and other functions of the Account to understand and to evaluate the public’s reaction to what he says and does. In sum, since he took office, the President has consistently used the Account as an important tool of governance and executive outreach. For these reasons, we conclude that the factors pointing to the public, non‐private nature of the Account and its interactive features are overwhelming.
The court then proceeded to the merits of the First Amendment claim, finding that viewpoint discrimination violates the First Amendment. Interestingly, it is for this proposition and only this one that the court cites the United States Supreme Court's closely divided case from last month, Manhattan Community Access Corp. v. Halleck. The Second Circuit easily finds the account creates a public forum. The Second Circuit noted that the government did not contest the district judge's conclusion that the plaintiffs were engaged in protected speech, but the government argued that the plaintiffs' speech was not burdened by being blocked. While the court stated that the government was correct that the plaintiffs did not have a First Amendment right to have the president listen to them,
the speech restrictions at issue burden the Individual Plaintiffs’ ability to converse on Twitter with others who may be speaking to or about the President. President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.
The court also rejected the government's position that the plaintiffs should employ "workarounds" such as creating new accounts, in large part because the government itself conceded that such workarounds burdened speech.
Finally, the Second Circuit rejected the argument that the Twitter account is government speech and thus not subject to the First Amendment. The court stated that while the president's initial tweets are government speech, the interactive features are decidedly not:
Considering the interactive features, the speech in question is that of multiple individuals, not just the President or that of the government. When a Twitter user posts a reply to one of the President’s tweets, the message is identified as coming from that user, not from the President. There is no record evidence, and the government does not argue, that the President has attempted to exercise any control over the messages of others, except to the extent he has blocked some persons expressing viewpoints he finds distasteful. The contents of retweets, replies, likes, and mentions are controlled by the user who generates them and not by the President, except to the extent he attempts to do so by blocking. Accordingly, while the President’s tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation.
The Second Circuit ends with what might be considered a chastisement:
The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide‐open, robust debate. This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen. This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing. In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.
Friday, June 21, 2019
House Judiciary Chair Jerry Nadler is preparing to sue former White House Counsel Don McGahn over McGahn's refusal to testify based on a White House invocation of absolute executive privilege, according to Politico.
According to Politico's story, Nadler says that Hope Hicks's "blanket refusal to tell lawmakers about her tenure in the West Wing is the real-life illustration Democrats needed to show a judge just how extreme the White House's blockade on witness testimony has become."
Cipollone asserted the same "absolute executive privilege" over Hicks's testimony this week. Cipollone wrote to Nadler in advance of Hicks's scheduled testimony:
Ms. Hicks is absolutely immune from compelled congressional testimony with respect to matters occurring during her service as senior adviser to the President. . . . That immunity arises from the President's position as head of the Executive Branch and from Ms. Hicks's former position as a senior adviser to the President. "Subjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned functions."
As the Department has recognized, "[w]hile a senior presidential adviser, like other executive officials, could rely on executive privilege to decline to answer specific questions at a hearing, the privilege is insufficient to ameliorate several threats that compelled testimony poses to the independence and candor of executive councils." . . .
Because of this constitutional immunity, and in order to protect the prerogatives of the Office of President, the President has directed Ms. Hicks not to answer questions before the Committee relating to the time of her service as a senior adviser to the President. . . .
Hicks nevertheless testified in a closed hearing this week. (The full transcript is here.) But White House attorneys repeatedly asserted absolute executive privilege in support of Hicks's refusal to answer a host of questions. Here's the first exchange between Nadler and a White House attorney:
Nadler: It's a matter of public record. Why would you object?
Purpura: Mr. Chairman, as we explained in Mr. Cipllone's letter yesterday, as a matter of longstanding executive branch precedent in the Department of Justice practice and advice, as a former senior adviser to the President, Ms. Hicks may not be compelled to speak about events that occurred during her service as a senior adviser to the President. That question touched upon that area.
Nadler: With all due respect, that is absolute nonsense as a matter of law. . . .
According to Politico, Nadler thinks that Hicks's refusal to answer such basic and silly questions as whether an Israel-Egypt war broke out while she worked in government vividly illustrates how extreme the White House's "absolute executive privilege" is--and provides good fodder for the House's lawsuit against McGahn.
Meanwhile, Republicans on the House Oversight Committee issued a Minority Report on the Committee's resolution recommending that the House find AG William Barr and Commerce Secretary Wilbur Ross in contempt for failing to comply with a Committee subpoena for documents related to the addition of the citizenship question on the census. Among other points, the Report argues that the Committee wrongly inferred that the White House waived executive privilege:
As a "fundamental" privilege rooted in constitutional separation of powers, executive privilege ought to be afforded serious consideration. In addition, because an executive privilege waiver should not be lightly inferred, the Committee should be careful in imputing a waiver for failure to comply with Committee Rule 16(c). The Committee's contempt citation errs in concluding unilaterally that executive privilege can be waived when the President does not invoke executive privilege in accordance with Committee rules.
Wednesday, June 12, 2019
President Trump today formally asserted executive privilege over documents related to the Commerce Department's addition of a citizenship question on the 2020 Census. The assertion, communicated by the Commerce Department, comes after the Justice Department informed House Oversight Committee Chair Elijah Cummings late yesterday that it would ask the President to assert executive privilege if the Committee proceeded with a contempt vote against AG William Bar and Commerce Secretary Wilbur Ross.
In yesterday's letter, Assistant AG Stephen Boyd wrote,
a limited subset of the documents is protected from disclosure by the deliberative process, attorney-client communications, or attorney work product components of executive privilege. These are the kind of materials that the Executive Branch regularly and appropriately withholds in connection with oversight matters, because the disclosure of such information would have a significant chilling effect on future deliberations among senior executive branch officials, and would compromise the confidentiality on which the Executive Branch's attorney-client relationships depend. . . .
The Committee has failed to abide by the constitutionally mandated accommodation process by declining to negotiate over the scope of the subpoenaed materials or to recognize legitimate executive branch interests, as well as by its premature decision to schedule a contempt vote. In the face of this threatened contempt vote, the Attorney General is now compelled to request that the President invoke executive privilege with respect to the materials . . . .
Accordingly, I hereby advise you that the President has asserted executive privilege over the specific subset of the documents identified by the Committee in its June 3, 2019 letter--documents that are clearly protected from disclosure by the deliberative process, attorney-client communications, or attorney work product components of executive privilege. In addition, I advise you that the President has asserted executive privilege over the balance of the Department's documents responsive to the Committee's April 2, 2019 subpoena. As the Attorney General indicated in his letter to you yesterday, this protective assertion of executive privilege ensures the President's ability to make a final decision whether to assert privilege following a full review of these materials.
Tuesday, June 4, 2019
White House Counsel Pat Cipollone wrote to House Judiciary Committee Chair Jerrold Nadler today that the White House had instructed former staffers Hope Hicks and Annie Donaldson not to comply with Committee subpoenas for documents related to their time in the White House. The instruction is categorical.
The reasons are all too familiar, even if ill defined. Cipollone wrote,
Th[e subpoenaed documents] include White House records that remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege.
It's not at all clear which documents Cipollone is referring to (all? some? which?), and it's not clear how "confidentiality interests" and executive privilege apply. Cipollone writes that this spaghetti-on-the-wall approach has DOJ's concurrence. He also writes that the White House and the Committee might be able to work something out.
Absent from this latest White House effort at frustrating congressional oversight is another familiar claim: that the Committee has no "legitimate legislative purpose" in the material. Perhaps that'll come out if and when this goes to litigation.