Monday, December 02, 2019

The Problem With Litigating Executive Privilege in Congressional Testimony

by Michael C. Dorf

Last week was a mixed bag in litigation over the conflict between the Democratic-led House of Representatives and the Trump White House. In the course of ordering former White House Counsel Don McGahn that he must testify before Congress about remaining questions involving Russian interference in the 2016 election and the firing of James Comey, Judge Ketanji Brown Jackson stirringly rejected Trump's claim of blanket immunity for his aides. Surveying key statements and events from the Founding through the present in a scholarly 118-page opinion, she concluded that "the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings."

And yet, in a reminder of an all-too-familiar pattern over the last three years, Trump's loss in a lower federal court was overshadowed by his victory in the Supreme Court. The very same day that Judge Jackson ruled against Trump's assertion of royal prerogative in the McGahn case, the justices granted a stay of the mandate in the DC Circuit case that ordered Trump's accounting firm to deliver his financial records to the House Committee on Oversight and Reform.

To be sure, the SCOTUS stay order is temporary. It will expire on Friday at noon if Trump doesn't file a certiorari petition by then, but he surely will, the Court will very likely grant the petition, the case will be docketed and argued, and a decision probably will not be handed down until June. At that point a loss for the president could have explosive political consequences. The lengths to which Trump has gone to avoid disclosing his personal finances suggest that they contain some skeletons: failure to pay much in taxes; a substantially lower net worth than Trump claims; etc. However, given the public reaction to so many of Trump's outrages, it is also possible that the financial records could reveal that various Trump buildings were constructed from the bones of murdered children without any impact on the views of the relevant voters in Michigan, Pennsylvania, and Wisconsin. And of course, Trump might win in the SCOTUS.

Back in the district court, even Judge Jackson's opinion is less a cause for celebration than one might assume. For one thing, it could be reversed on appeal by the DC Circuit or, more likely, the Supreme Court. It shouldn't be reversed, of course. Judge Jackson's opinion is a straightforward application of United States v. Nixon, which rejected a president's assertion of an absolute executive privilege. True, Nixon involved the president's obligation to provide evidence to a court, not to Congress, but as I explained in a Verdict column in October, DC Circuit precedent finds that distinction irrelevant--and properly so. However, that does not guarantee that a majority of the current Supreme Court will not discover grounds for distinguishing the president's obligations with respect to the judiciary from his obligations with respect to Congress or narrow or even overrule Nixon across the board.

Meanwhile, don't expect Don McGahn (or Rudy Giuliani, Mick Mulvaney, John Bolton et al) to appear before Congress in the very near future. Judge Jackson's ruling will be appealed, first to the DC Circuit and then to the Supreme Court. That Court might find that, as Alan Dershowitz recently opined for an audience that apparently believes he is still a legal expert of some sort, a president is more than a king.

Let's assume the best, however. Assume that Judge Jackson's ruling is ultimately upheld in the Supreme Court. Even so, testimony by McGahn and similarly situated others would be delayed until the summer, far too late for the current impeachment inquiry. That's why the House leadership has been willing to proceed without the testimony of recalcitrant witnesses.

One might think that these difficulties are a one-time problem. Suppose that a sensible Supreme Court were to write an opinion like Judge Jackson's, clarifying once and for all that the Nixon precedent limits the scope of executive privilege in response to subpoenas by Congress at least to the same extent as it  limits the scope of executive privilege in response to a subpoenas by a court. Even then, the resulting proceedings would provide the President and other executive officials many opportunities for delay.

Judge Jackson found that presidential aides lack an absolute immunity from testifying before Congress. Yet she also acknowledged that "there may well be circumstances in which certain aides of the President possess confidential, classified, or privileged information that cannot be divulged in the national interest and that such aides may be bound by statute or executive order to protect." Accordingly, she found that McGahn must appear before Congress but could assert executive (or other) privilege on a "question-by-question basis."

Let's suppose that Judge Jackson's ruling stands up on appeal and McGahn or some other former or current high-ranking presidential aide appears before Congress. Suppose the witness objects to one or more questions and refuses to answer. What then?

Presumably, Congress (or a house or committee of Congress) would need to go to court to compel an answer. There, the judge would consider the grounds for the privilege and the grounds offered by Congress why it needs an answer. The judge would then issue a ruling; an appeal to the DC Circuit would ensue; and finally the case could go to the Supreme Court. Presumably to save time the process could be consolidated: members of Congress and their staff could submit questions and document requests in advance; the witness and the White House would identity which questions they find objectionable; and the courts would then adjudicate those objections in one proceeding. Even so, the process would take months or even years. That might be acceptable for some purposes, but for others, Congress delayed is Congress denied.

The foregoing analysis underscores the patriotism of Marie Yovanovitch, George Kent, Fiona Hill, Bill Taylor, Lt. Colonel Alexander Vindman, and everyone else who disregarded White House Counsel Pat Cipollone's assertion to Congress that Trump would not "permit his Administration to participate in" the House impeachment inquiry. By defying the would-be clown-prince in the White House, these patriots have given the inquiry more than enough evidence to persuade all but the President's cheerleaders that he committed high crimes and misdemeanors.

That is to the good, but it is precarious. Imagine a future in which Trump or the next Trumpist president has purged the "deep state" of all but flunkies. At that point, Congress would not be able to conduct meaningful oversight at least for the period of time it would take for every bogus claim of privilege to be litigated all the way through the Supreme Court. So yes, Judge Jackson's ruling is a cup half-full, but it's also half-empty.

Finally, although I have referred twice in the foregoing to the impeachment inquiry, McGahn's case and many of the others I'm contemplating arise outside the context of impeachment. There is good reason to believe--as Prof. Marty Lederman observed last night in a Twitter thread that quotes an 1846 statement by President James K. Polk--that there is no valid executive privilege that can be asserted in an impeachment proceeding. Of course, that hasn't stopped this White House from asserting such a privilege in impeachment proceedings, nor do I expect it to stop Trump and his enablers from pressing the issue as far as they can in the courts. Like I said, glass half-empty.


  1. Well, if we cannot trust President Polk ... (I joke, but that's a bit silly)

    Yes, there is a problem here regarding running out the clock and finding ways to do so. I don't want SCOTUS to take the case involving financial records in part since I don't think the time delay will be too beneficial. With this Court, even a good ruling will be limited in scope like the census case that provided a limited check on abusive executive actions. Same with the recent district case probably. I think there's a good chance it will be upheld by the D.C. Circuit (the personnel alone is in our favor).

    The correct rule would be to require testimony and there probably will be some sort of exceptions (going back to Washington, everything didn't go there). And, political checks would be used to check/balance. But, did requires Congress (even each house) to play hardball to the executive's hardball. That's tough to do though impeachment is a start. Like with Nixon, interference with Congress here should be an article of impeachment.

  2. Given that this impeachment is about a 'domestic political errand' does the analysis of a Lawfare posting of October 3, 2019- "Three Lessons from the First Time a Head of State Was Impeached", by Michael Paradis shed some light on the claim of Executive Privilege, and President Polk's observation? Is the contention that acting in the capacity of an ordinary citizen or as executive one that would require a determination of fact, as precedent, to recognizing privilege? We do already require a political campaign to pay for the use of Air Force One when a trip is taken to singularly attend a political rally on behalf of the "ordinary citizen" candidate. So, should the expenses of those on the errand of the "2016 Ukraine server" be charged to the campaign, e.g. the Sec. of State going to Italy to look for information?


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