Thursday, May 09, 2019

William Barr is Trump's Roy Cohn, But Are Neil Gorsuch and Brett Kavanaugh His Warren Burger, Harry Blackmun, and Lewis Powell?

by Michael C. Dorf

Frustrated by then-Attorney General Jeff Sessions's display of integrity in recusing himself from the Russia investigation, Donald Trump famously asked "Where's my Roy Cohn?". The question would be shocking if the public had any capacity left to be shocked. After all, thirty years before Trump's expression of longing for Cohn, the infamous red-baiter was disbarred for "dishonesty, fraud, deceit and misrepresentation." The notion that such a character ought to be the country's chief law enforcement official is extraordinary.

As House Intelligence Committee Chair Adam Schiff observed, in William Barr, Trump finally may have his Roy Cohn. I do not wish to suggest that Barr's massive spinning of the Mueller Report or his parroting of Trump's accusations of "spying" rises to the level of Cohn-esque sins, but I would hardly be alone in noting that in the sense that Trump cares about most, he appears to have found his Roy Cohn in Barr: a lawyer who draws a paycheck from the US Treasury but, to the maximum extent possible, operates as a mouthpiece for Trump the man rather than the institutional interests of the US or even the presidency.

There may be wisdom even in scoundrels. Roy Cohn was a crass version of what we academics would call a "legal realist." He used to say: "Don’t tell me about the law, just tell me who the judge is." Well, when it comes to the looming legal battle over executive privilege, we know who the judges are: the nine justices of the Supreme Court.

In this column, I consider how the Supreme Court might handle a dispute involving executive privilege. I note as an aside that not every clash between Congress and those resisting its inquiries will involve executive privilege. For example, as I discussed last week, we could also see litigation over what counts as a legitimate congressional inquiry. But for now, let's focus on executive privilege.

In United States v. Nixon, a unanimous Supreme Court rejected President Nixon's blanket assertion of executive privilege, thus affirming a lower court order that Nixon hand over tapes subpoeanaed by a district court judge on an application by Watergate special prosecutor Leon Jaworski. The Court's opinion was written by Nixon appointee Warren Burger and joined in full by seven other Justices, including Nixon appointees Harry Blackmun and Lewis Powell, Jr. (Nixon's fourth appointee, William Rehnquist, did not participate). Less than three weeks later, Nixon resigned. Should a current conflict between the president and Congress reach the Supreme Court, will Trump's appointees likewise turn their back on the man who put them where they are now?

Some readers might be wondering whether that's the right question. After all, to win in the SCOTUS, the Trump administration needs to get to five, not just two. Even assuming that Justices Thomas, Alito, Gorsuch, and Kavanaugh side with Trump, wouldn't Chief Justice Roberts -- who values the Court's image as at least somewhat outside of partisan politics -- be reluctant to cast the fifth and decisive vote in a 5-4 case with such high partisan stakes?

Reluctant? Sure. Unwilling? Don't hold your breath. Yes, CJ Roberts sided with the liberals (twice) in refusing to destroy the Affordable Care Act, but much more often he has gone the other way. From campaign finance to same-sex marriage to the Muslim Travel Ban and more, the Chief has repeatedly shown that in a contest between his ideological druthers and his concerns about the Court as an institution, the former wins. Accordingly, one should not take for granted that the Roberts Court will follow the bite-the-hand-that-appointed-it approach of the Burger Court.

But wait. Isn't the law clearly against Trump? Yes and no.

As I explained in a 2002 column, claims of executive privilege date back to the George Washington
administration (although presidents only began to assert that the privilege derives from the Constitution in recent decades). Yet it was not until the Nixon case that the Supreme Court formally recognized the privilege. Since then, most SCOTUS cases involving executive privilege have actually been about the scope of a statute: the provision of the Freedom of Information Act that permits the government to withhold certain information sought by members of the public. Although lower courts have assumed that Nixon’s basic rubric applies in the case of a direct conflict between Congress and the president, the Supreme Court has not actually faced such a case.  (In Nixon itself the Court took care to note that "[w]e are not here concerned with the balance between the President's generalized interest in confidentiality . . . and congressional demands for information.")

Accordingly, one could imagine a SCOTUS opinion that distinguished the Nixon precedent—or at the very least an opinion that gave far less weight to Congress’s interests in the balancing test than the Court gave to the interests of the criminal justice system in Nixon. A conservative justice might cite Cheney v. US District Court. There, Justice Kennedy wrote for the majority that even without a formal assertion of executive privilege, separation of powers entitled the vice president (treated as part of the executive branch for these purposes) to resist an overly broad discovery request. En route to that decision, the opinion distinguished the criminal trial at issue in Nixon from the civil suit against VP Cheney. A criminal trial is more important, and the burden of civil discovery is usually greater, the majority said. Because litigation between Congress and the Trump administration would be civil, one or more conservative justices might say it falls on the Cheney side of the Cheney/Nixon divide.

Would that be a persuasive distinction? In a word, no. Criminal proceedings may be more important (other things being equal) than civil ones, but a clash between Congress and the president would merely take the form of a civil trial. In substance, it would be more like Nixon: a clash between the president and a co-equal branch of the government in the performance of its vital functions. Yes, even in such a clash, the president should be able to shield some highly sensitive information, but only, as in Nixon, based on an individualized showing -- not on a blanket basis.

However, the fact that the Nixon case shouldn't be distinguishable in favor of Trump doesn't mean that justices who are motivated to defend the president won't purport to distinguish it. Given that, Congress ought to be taking every possible measure to undercut claims of executive privilege. Unfortunately, it has not so far done so.

As Jonathan Schaub explained yesterday on Lawfare, the extreme breadth of the House request for Mueller Report materials opened the door for the Justice Dep't to make a "protective" assertion of executive privilege -- essentially a reservation of the right to make particularized objections while claiming the need for more time to conduct the extensive review of the sought materials to determine what might be subject to the privilege and what might be shared with members of Congress but not the general public. Should Democratic committee chairs rush to court too soon, they could unintentionally give the conservative justices -- and maybe even the liberals -- a basis for siding with the president that does not depend on a disingenuous distinction of the Nixon case.

Accordingly, I agree with Schaub that Congress would do better to make narrower, targeted requests. Doing so will not guarantee a victory for Congress in the Supreme Court. If five justices want to be Roy Cohn rather than Warren Burger, they can ultimately get away with doing so. But Congress shouldn't make it easy for them.

5 comments:

Joe said...

There was some ridicule about the open-ended nature of one opening gambit for request for information by the oversight committee and so forth. But, other subpoenas have been more limited. It has been noted, e.g., that the request for Trump's taxes has been carefully handled, the chairman in question a cautious type.

There also was some suggestion (e.g., Greg Sargent at Washington Post) the impeachment proceedings might help here. The conclusion appears to be that it might help somewhat, but think it is something of an open-ended question that relies on events and judges.

Anyway, Roberts is today's Warren Burger, and he is both more forceful in leading the Court and more conservative (Burger joined Roe v. Wade etc.). Kavanaugh might be a latter day Powell, but shifting to the right, so his "moderate" approach will leave a lot to be desired. Powell did write Nixon v. Fitzgerald that broadly applied executive immunity. Gorsuch is more of a Rehnquist on this issue as far as I can tell.

See also, Linda Greenhouse's column on the census case. The Burger Court actually showed concern about restraining the executive, including over wiretapping.

Shag from Brookline said...

Before the 2016 election Trump claimed that if Hillary won, the could not effectively govern as she would be tied up with congressional investigations.. How effectively can Trump govern? Might trump rely upon foreign policy steps as distractions, in particular with Iran, or with North Korea via US seizure of a North Korean coal boat allegedly violating sanctions? And for the 2020 election might Trump require further Russia election interference? Listen to what Revoltin' John Bolton and Mike Pompeosity have been saying, not to mention the China trade war. Add to this Trump's displeasure with the Senate Intel Committee's recent subpoena of Don, Jr., on its Russia investigation.. I assume SOCTUS justices have some awareness of these if and when they may assess Trump's hardball with House Committees and that the justices accept that no one is above the law, including the president.

Trump is now leaving claims of executive privilege regarding in the hands of AG Billy Barr, perhaps in an attempt to soften Trump's broad hardball defiance of the House. Will Trump threaten 2020 primary opposition for Republican Senators on the Intel Committee up for reelection?

Shag from Brookline said...

Apparently the GOP controlled Senate Intel Committee is a burr under the saddle of not only Sen. Majority Leader Mitch "Case Closed" McConnell but also under the saddle of the Trump/Barr the Mueller Report.

Shag from Brookline said...

Regarding revoltin' John Bolton, here's what Trump recently said at an impromptu press conference:

"John’s very good. He has strong views on things which is OK. I’m the one who tempers him, which is OK. I have John Bolton and I have people who are a little more dovish than him,” said Trump. Temper, temper!

CARL D. BIRMAN said...

Prof. Dorf:

Another shining and brilliant analysis of what is, at the end of the day, an incredibly gloomy and pathetic topic, which I continue to fear signals the end of America as we know it.

Not much hope in that thought, I know.

Carl D. Birman, Esq.