Beldar on Lederman on executive privilege

Marty Lederman, currently a visiting professor of law at Georgetown University Law Center, has a post on the Balkinization blog specifically discussing the Bush administration's likely arguments regarding the applicability of executive privilege in the current U.S. Attorneys firing kerfuffle. (Hat-tip: Orin Kerr at the Volokh Conspiracy.)

I don't know Prof. Lederman. His post is indeed interesting, and I credit him for conceding that at least a few of the Bush administration's arguments may have merit. But with due respect, I still believe that his post is often wrong and sometimes profoundly misleading, if (I presume) unintentionally so.

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[Note re update below: Even if you quit reading at some point during my over-long post, you will probably want to skip down to Prof. Lederman's gracious and thoughtful email reply, as reprinted in full below. — Beldar]

In Prof. Lederman's first point, in which he argues that Congress should be able to breach executive privilege to compel disclosure of even White House communications to and from the President himself, Prof. Lederman writes (link in original) that

it's not uncommon for such close aides to testify about matters in the Executive Office of the President — it happened frequently in the Clinton Administration, for instance. In this case, if any wrongdoing occurred, it almost certainly occurred in the White House itself, which is where any incriminating evidence would be. Thus, if Congress is entitled to actually learn about the reasons for the U.S. Attorneys' dismissals, and possible pressure brought to bear on their prosecutorial practices, then it will necessarily need to receive information about what transpired in the White House. (After all, it was the President who dismissed the officers.)

I've got two serious problems with that.

First: Prof. Lederman gives as an example Secretary of State (then National Security Adviser) Condoleezza Rice's testimony before the 9/11 Commission, and he includes a parenthetical noting that "Rice testified on certain conditions," without explaining what those conditions were. Well, exactly what the conditions were is awfully danged important if you're going to cite this example as a precedent. The very first condition set by the Bush Administration, and agreed to by the 9/11 Commission, on this particular appearance was this one:

First, the Commission must agree in writing that Dr. Rice's testimony before die Commission does not set any precedent for future Commission requests, or requests in any other context, for testimony by a National Security Advisor or any other White House official.

I know Prof. Lederman at least had access to that information, because I'm quoting from a letter from Alberto Gonzales, writing to the 9/11 Commission in his then-role as Counsel for the President, that Prof. Lederman quite properly linked from his post. To nevertheless cite the Rice appearance as a specific example that cuts in favor of finding no privilege in the dispute over the fired U.S. Attorneys is, I think, badly wrong. That appearance was stipulated and agreed to have no precedential value for future privilege arguments! And I suspect that Prof. Lederman knows — at least, he certainly should well know, given his own work history and areas of specialization — that reservations of this sort are not only typical, but nearly universal whenever there is a concern on the part of the Administration, be it Democratic or Republican,  that Congressional questioning will get into the decision-making process within the top levels of the Administration.

Second: Although this is an argument couched to appear as a narrow one, in fact it would swallow the executive privilege whole. Prof. Lederman concedes, as he (or any serious debater) must, that in any judicial showdown over executive privilege, "the [Supreme] Court [and presumably the lower federal courts predicting what the Supreme Court might say] would be most reluctant to intrude on Executive communications the closer those communications get to the President himself." He then seeks to distinguish the fired U.S. Attorneys' situation by claiming (italics in original) that "if Congress is entitled to actually learn about the reasons for the U.S. Attorneys' dismissals, and possible pressure brought to bear on their prosecutorial practices, then it will necessarily need to receive information about what transpired in the White House."

But tell me, sir, what situation there might ever possibly be an executive privilege dispute in which there indeed has been communication with the President himself, but in which the President had no responsibility, not even imputed responsibility, for a decision about which (the then-majority party in) Congress wants to inquire? If that's the standard, then there is no executive privilege, ever, except on the most trivial matters. In every important case, where will the "information about what transpired in the White House" pretty much have to come from? Unsurprising answer: the White House! I think this dog not only won't hunt, but it's actually already caught and swallowed its own tail.

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I'm also disturbed by Prof. Lederman's arguments in his second major point to the considerable extent that they appear to be based on, and quote from, Nixon v. Administrator of General Services, 433 U.S. 425 (1977):

Congress also has the power to investigate the workings of the Executive branch simply to determine whether legislative amendments are necessary in order prevent or deter undesirable government practices, and perhaps even for the basic function of facilitating "the American people's ability to reconstruct and come to terms with their history," Nixon v. Administrator, 433 U.S. at 452-453 (although for that purpose the need might not be as urgent).

When I first glanced at the reference to that case in Prof. Lederman's post, I was entirely unsurprised. I assumed that he was citing and quoting directly from the very famous Supreme Court case over the production of Oval Office tapes that led directly to Nixon's resignation — United States v. Nixon, 483 U.S. 683 (1974) — to which he'd made a passing reference already. "That's the Watergate tapes case," I immediately thought to myself — quite arguably the most important Supreme Court decision ever, on any subject. Now, I'll grant that if I'd looked closely, the case style referenced by Prof. Lederman, with its short-hand reference to "Administrator," ought to have tipped me off. And if Prof. Lederman had also included the date parenthetical that formal citation form requires, that would have also probably have clued me in that he wasn't citing or quoting from the tapes case, but from some later (and necessarily more obscure) decision.

But I hope no one else made the same mistake I did, because in the passage I've set out above, Prof. Lederman was not citing to, quoting from, or relying on the Watergate tapes case. Instead, the case Prof. Lederman cites by name and quotes from was about whether Nixon was entitled to override a specific statute directed to the question of public access to his entire body of presidential papers and tapes after Nixon had left office. That 1977 case didn't involve a Congressional subpoena, nor a Congressional attempt to itself access presidential papers, nor any kind of subpoena at all. Indeed, it was Nixon himself who brought the case to challenge that statute — a statute which had not only the backing of Congress but which his own hand-picked successor, President Gerald Ford, had signed into law.

As part of its decision, the Supreme Court did review its (admittedly thin) prior caselaw on executive privilege, including of course its 1974 decision involving the Watergate tapes. But in overruling Nixon's attempt to assert privilege as to his entire collection of official papers and tapes, the Court first stressed in 1977 that

to the extent that [executive] privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, a former President is in less need of it than an incumbent.

443 U.S. at 448 (citing United States v. Nixon, 418 U.S. at 714; additional citations omitted).

The Court also found it very significant that neither the Ford nor the Carter Administrations supported Nixon's claim in the 1977 case, id. at 449. That's against a background in which every Administration has the constitutional duty, under the separation of powers and checks and balances doctrines, to jealously guard their own prerogatives.

Of the "estimated 42 million pages of documents and 880 tape recordings whose custody [was] at stake, the District Court concluded that the appellant's claim of Presidential privilege could apply at most to the 200,000 items with which the appellant was personally familiar" — note the recognition here that proximity to the President is indeed important. But the sweeping breadth of Nixon's claims, which embraced essentially everything he or anyone in the Office of the President had said, written, or done during his (almost) two terms in office, also cut strongly against his executive privilege assertion in 1977, id.

Finally, the Court stressed in 1977 that the statute itself contemplated regulations from the Administrator that would "protect any party's opportunity to assert any ... constitutionally based right or privilege," meaning that "there [was] no reason to believe that the restriction on public access ultimately established by regulation will not be adequate to preserve executive confidentiality," id. at 450 (ellipsis in original).

Thus, in the very case cited and quoted from by Prof. Lederman, the Supreme Court left open the very real possibility that Nixon, even after his departure from office, might still successfully raise a more focused executive privilege challenge to the disclosure of particular documents and communications. And thus, to the limited extent that the 1977 case applies at all (given its wildly different circumstances), it actually cuts in favor of a focused executive privilege claim of the sort the Bush Administration could make with respect to communications regarding the firing of the eight U.S. Attorneys. Perhaps Prof. Lederman only intended to yank the quoted phrase from Nixon v. Administrator of General Services out of context to support a more general point about Congressional oversight. (Actually, that case doesn't quite do that either, as evidenced by the fact that the word "oversight" isn't in the opinion, and "oversee" is used exactly once, with reference not to Congress but to the President "oversee[ing]" executive branch offices, id. at 438.) But did he just fail to read the rest of the case?

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Prof. Lederman also slams Michael Carvin, a deputy assistant attorney general in the Office of Legal Counsel during the Reagan administration, for saying on the PBS News Hour that

the Supreme Court has made it clear: You need a very clear showing of a reasonable suspicion of criminal wrongdoing to overcome the president's inherent power to get unfettered advice from his advisers."

Mind you, Mr. Carvin made this statement in response to examples listed by former Solicitor General Walter Dellinger (who in other contexts has vigorously argued in favor of executive privilege) in which officials of the Clinton Administration agreed to testify when there were specific criminal violations alleged as the basis for their being called to testify. But nevertheless, says Prof. Lederman's post flatly, "That's wrong. The Court has never even suggested such a rule, let alone 'made it clear.'"

Well, how about this language from the Nixon case that is at least more arguably on point to the fired U.S. Attorneys situation — once again, the 1974 case of United States v. Nixon:

In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

418 U.S. at 711-13 (italics and boldface mine). What part of that is not clear? I count ten uses of the word "criminal" in just three paragraphs — do you need an even dozen for it to be clear? In the single biggest decision rejecting a claim of executive privilege in the history of our nation, a strong preliminary showing of the communications at issue being closely associated with very specific and already-indicted criminal conduct was a key factor, and indeed probably the key factor, in the Court's balancing test.

Even in the 1974 Nixon case, the Supreme Court remanded to the federal district judge with emphatic instructions to conduct a document by document, communication by communication, balancing test, showing extreme sensitivity to maintaining confidentiality to the maximum extent practicable consistent with the prosecution's demonstrated needs:

It is therefore necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. We have no doubt that the District Judge will at all times accord to Presidential records [a] high degree of deference ..., and will discharge his responsibility to see to that until released to the Special Prosecutor no in camera material is revealed to anyone. This burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status and should be returned under seal to its lawful custodian.

Id. at 715-16 (citations omitted). Contrast that to the current situation: Why do the Democrats in Congress want this to proceed by subpoena-and-oath testimony instead of by the agreement (including a standard non-waiver, non-precedent clause) offered by White House Counsel Fred Fielding? So they can have a mass-media show trial — and that for purposes which, at a minimum, at least include political ones, notwithstanding whatever thin gruel they can dredge up as evidence that there might possibly have been some unspecified crime committed by someone.

At least the 1974 Nixon case did come out against a President's assertion of an absolute executive privilege; Prof. Lederman, or opponents of executive privilege in the current dispute, could indeed to that degree rely on its outcome to some extent. But among the suspected criminals in the 1974 case was Nixon himself as the famous "unindicted co-conspirator." Can anyone doubt that that weighed heavily in the Supreme Court's balancing test?

And keep in mind, too, as the Court emphasized in 1974, that Nixon was only relying on a generalized claim of privilege; had he been able to show an association between the communications sought by the criminal case subpoena and "military or diplomatic secrets," id. at 710, for example, then the Court might have come out the other way even in the 1974 case. Our U.S. Attorneys are charged with such things as border enforcement and other law enforcement designed to protect national security in a time of war. Indeed, that the decisions in question were matters of executive branch hiring and firing — by itself and without reference to their specific duties and job performance or the Administration's enforcement priorities — gives the Bush Administration a far better claim than Nixon could come up with. The 1974 case is all about a balancing test. And no one can dispute that the Bush Administration at least has better arguments than Nixon had that the balance today ought swing in the opposite direction.

Later, Prof. Lederman allows how there is a "grain of truth" in Mr. Carvin's argument, citing Cheney v. United States District Court, 542 U.S. 367 (2004). In upholding a claim of executive privilege, however, Cheney reached the opposite result from the 1973 Nixon case precisely because Cheney didn't involve any criminal allegations, as the Court made abundantly clear:

First, unlike this case, which concerns respondents' requests for information for use in a civil suit, Nixon involves the proper balance between the Executive's interest in the confidentiality of its communications and the "constitutional need for production of relevant evidence in a criminal proceeding." The Court's decision was explicit that it was "not ... concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation .... We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials."

The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism. As the Court explained, the need for information in the criminal context is much weightier because "our historic[al] commitment to the rule of law ... is nowhere more profoundly manifest than in our view that 'the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer.'" In light of the "fundamental" and "comprehensive" need for "every man's evidence" in the criminal justice system, not only must the Executive Branch first assert privilege to resist disclosure, but privilege claims that shield information from a grand jury proceeding or a criminal trial are not to be "expansively construed, for they are in derogation of the search for truth." The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to production of relevant evidence in civil proceedings does not have the same "constitutional dimensions."

Id. at 383-84 (many citations to Nixon omitted; otherwise, quotes, bracketed portions, and ellipses in original).

Friends and neighbors, that's not just a "grain of truth" — that's a whole silo. "Never even suggested such a rule"? Pish-posh. Whether we call it a "rule" (which Mr. Carvin didn't), or whether we merely call it "overwhelmingly important and (in the most significant cases) virtually outcome determinative," the Supreme Court has certainly done more than "suggest" the importance of criminal connections in overcoming claims of executive privilege. Prof. Lederman, I believe that you owe Mr. Carvin an apology; and you may want to do more homework before you make such categorical assertions that someone else hasn't done his.

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Prof. Lederman ends with an extended discussion of what kind of crimes might have been committed in relation to the current controversy. With due respect, again, he's long on guesswork and completely missing any actual facts. The statute on "corrupt influence" that he cites is, as he at least admits, awfully vague. There will rarely be any political dispute that cannot be re-cast in some way as "corrupt influence" or "obstruction of justice." (That's especially true if it's Senators Leahy or Schumer who are doing the re-casting; their fishing rods are long, wild, and hyperactive, and they sure do like to do their fishing in front of the cameras.)

Bring me a single Assistant U.S. Attorney who can give names, dates, places, and an explicit statutory reference to support the nebulous assertion that some crime was committed in connection with the firing of any of the U.S. Attorneys, and then I'll begin to take such arguments seriously. I find completely unbelievable, and frankly insulting to them, the notion that hundreds of career federal prosecutors would stand by and say nothing in the face of even one chargeable criminal offense affecting the integrity of our national law enforcement system. If any such crimes happened, they had to have happened literally right in front of their eyes. And yet you have career attorneys in fired U.S. Attorney David Iglesias' office, for example, circulating and signing a letter attesting to his incompetence instead. ("Abdicated his responsibility," "lack of leadership," "risk averse," and "absentee boss," sez they. "Disgrunted!" sez he. "[Crickets sounds]," replied the mainstream media to this part of the story told by the people who actually worked for the man.)

"Well," the proponents of the subpoenas might huff and puff, "We first have to gather evidence before we can get an indictment or prove a crime!" Fine, then. Bring me a grand jury subpoena, instead of a Congressional one that's been rammed down the throats of the minority party's committee members on national TV. If you can't find the proverbial ham sandwich that a federal prosecutor and grand jury are willing to at least investigate, then that old dog not only won't hunt, he's just barking, and he's not barking up the wrong tree because you don't even have a tree.

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With all due respect, I'm just not very impressed by Prof. Lederman's post. I'll certainly give him the benefit of the doubt that he didn't intend to mislead by omission or otherwise. But he's missed too many important points, and misstated too many others, for me to take this particular post seriously. Nor can I agree with Prof. Kerr that Prof. Lederman's post "offer[s] a strong starting point on these issues." In my view, he's got to backtrack considerably to get to the starting point because he's been running hard in the wrong direction.

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UPDATE (Thu Mar 22 @ 12:40pm): I'm not going to block-quote it simply because of its length, but what follows (in a sans serif font) is — verbatim, in full, and by permission — an extremely gracious, thoughtful, articulate email that I just received from Prof. Lederman (emphasis his throughout):

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Bill:  Thanks so much for taking such efforts to thoughtfully respond to my post -- I really appreciate it.

 

You are right in many of your particulars regarding the doctrine -- indeed, I wouldn't (and didn't) argue with the majority of them.  The problem, if there is one, is that I think you're overreading my post.  I am not making a case that the executive privilege claim here is, or is not, a winner.  As I wrote at the outset, I think that because of the vagaries of the doctrine, and the fact that resolution is almost always the result of inter-branch bargaining, it is a close and largely indeterminate question, at least if one is to "follow" the few judicial precedents that are out there.  (I'll put aside here what, in my view, the proper legal framework ought to be, which is really beside the point and which my post does not address.)

 

My two basic points were simple ones, namely, (i) to reject the two categorical statements that I've been hearing a lot of (Carvin being the obvious example); and, more importantly, (ii) to focus on why there might have been wrongdoing here if the removals were effected because of the U.S. Attorneys' refusal to make partisan prosecutorial decisions.

 

You don't really take issue with those things, as far as I can tell.  So I suspect our disagreements on the law are really fairly marginal.

 

As for the particulars:

 

1.  I cite the Rice example only because I was, after all, quoting from the Gonzales letter and to show that despite the government's hard-line legal position, in fact it's not uncommon for close presidential advisers to testify about what went on in the White House.  Of course the Executive branch always asserts that the cases don't set a precedent.  And by the same token, of course they do not demonstrate that there can be no legitimate privilege claim in such cases.  I didn't say otherwise.  But the dozens of examples, especially when taken together and with the U.S. v. Nixon cases themselves, do demonstrate that there is no absolute bar on revelation of such close-to-the-President communications, not one that has any teeth or historical backing, anyway.  Also -- and I didn't stress this in my post, but I think it's important -- these examples do seriously undermine the predicate for executive privilege, which is that the President's advisors will only speak candidly if they are assured their communications will remain confidential; the fact that they often will be revealed -- not only through testimony of close advisors, but also through tell-all memoirs (e.g., Stephanopoulos) and "leaks" (e.g., the Bush Administration revealing slews of oval office conversations to Bob Woodward) -- means that such expectations are no longer reasonable, which makes it difficult to argue that the privilege is critical to preserving full and uncompromised communications in the oval office.

 

As you say, I agree -- and wrote! -- that the privilege claim is stronger (at least as a predictive matter of what courts would do) the closer one gets to the President himself.  I was merely endeavoring to show that there is not a category of officials whose communications are absolutely inviolate -- even though the Executive branch often says that there is.  I don't think you disagree with this point.  As you properly note, I did not argue that Congress is entitled to learn the actual reasons for the dismissals -- only that if the courts were to recognize such an interest, it could only be vindicated if communications of the President's close advisors were disclosed, and that there is no absolute or categorical constitutional bar to such disclosure.

 

2.  You are right about the details of Nixon v. Administrator, the details of which I know quite well (it's one of my favorite cases to teach).  I did not and would not cite it as authority for denying the privilege in this case, or as a strong precedent one way or the other for a congressional-subpoena question, etc., or otherwise to suggest that it's directly on point here in the ways you insinuate.  I cited it only for the quite modest but important proposition that Congress's legitimate interests include not only inquiring into possible criminal and other wrongdoing (as Carvin indicated), but also, among other things, facilitating "the American people's ability to reconstruct and come to terms with their history."

 

3.  I disagree that evidence of possible criminal wrongdoing is "virtually determinative" of whether the privilege claim would or should be sustained.  But be that as it may, I conceded that the question of wrongdoing is very important, at least as a practical matter if the case reaches the Court; and the principal purpose of my post was to show that there may well have been criminal wrongdoing here -- and, more importantly, that there is very strong evidence now that the President and his advisors acted unconstitutionally to the extent the removals had anything to do with the desire to have prosecutorial decisions influenced by partisan considerations.  That should, and would, in my view, strongly support the congressional claim here -- but I don't argue that it's determinative.  You don't really address this constitutional "take care" point, the centerpiece (and most important aspect) of my post.

 

Anyway, thanks again for giving it such serious and close thought.  Feel free to post this or not, as you see fit.  (Perhaps I'll post it to the balkinization comments if I have time.)  Unfortunately, I'll be tied up most of the next two days, so I won't be able to closely follow where, if anywhere, this blog-debate goes.  I hope, however, that it does prompt a fruitful discussion.

 

Best,

 

Marty Lederman

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That's certainly food for more thought, and if I have anything further by way of response, I'll put it in a new and separate post.