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Thursday, March 22, 2007

Beldar's reply to Lederman's response re executive privilege

I'm genuinely gratified that Prof. Marty Lederman — whose Balkinization post on the executive privilege ramifications of the current fired U.S. Attorneys controversy I critiqued at length early today — emailed me with a gracious and articulate reply to my critique. I've already appended it in full as an update to my critique, and in this post I attempt to reply to his response. (Sur-replies and sur-rebuttals, however, from the host or otherwise, are strictly forbidden on this blog on grounds of excessive wonkitivity.)


Prof. Lederman is absolutely right that we agree on a great deal. We agree, of course, that the Supreme Court's existing precedent clearly holds that executive privilege is not absolute, but instead merely a qualified privilege that may be overcome by a sufficient showing under one of the Supreme Court's favorite tools, the venerable "balancing test." We likewise agree that a claim of privilege may sometimes be overcome even when the communications at issue are from the POTUS live and in person; the Nixon Watergate Tapes decision leaves no room for argument on that, either. And we also agree that a connection to an ongoing, specific criminal prosecution — like Leon Jaworski's subpoena of the Nixon Oval Office tapes during Watergate — has been given enormous weight by the Court in such balancing exercises. (We disagree, it seems, as to exactly how much weight.)

I'll also largely accept Prof. Lederman's characterization of his intent in his original post with respect to his reference to Secretary Rice's testimony to the 9/11 Commission. He's certainly right that in actual, practical history, Congress has been able to get a whole lot of substantive information about executive branch deliberations through negotiated agreements that have successfully avoided constitutional clashes. Indeed, I'd concede, and I suspect he'd agree, that such agreements — which inevitably include non-waiver/non-precedent clauses — serve a vital purpose. An effective system of checks and balances does not require that Congress and the President always fight to the death with broadswords on every executive privilege dispute, and these agreements have indeed served as useful lubricants to keep the wheels of government turning.


I'm still troubled, though, by what strikes me as a "wink-wink nudge-nudge say-no-more" attitude from Prof. Lederman about the non-waiver/non-precedent clauses. He argues that the many recent inquisitions negotiated by agreement and under such clauses — when considered in the light of other recent "tell-all" trends that consistently compromise executive confidentiality (Stephanopoulos/Woodward) — effectively undercut one of the key justifications for executive privilege in the first place, viz, the need for confidentiality to ensure that the President gets the best possible advice. He shifts into almost a Fourth Amendment sort of analysis: the Prez has no reasonable expectation of privacy, he seems to be arguing. But he doesn't quite come out and say that this is a factor that federal courts ought to rely on as undercutting the weight of executive privilege arguments. In other words, if I understand Prof. Lederman correctly, he's making this as a practical and political point, rather than a legal point regarding legal or factual precedents.

If so, then we may come close to agreement on this as well. I confess, however, that my own background as a trial lawyer inclines me toward pretty strict legal analysis on privilege issues. With the binary set of possible results I face, courts can balance all they want to get to a result, but in the end I either have to hand over the documents and permit the testimony that I've tried to withhold as privileged, or I don't. And I am very confident that, for example, the SCOTUS would emphatically refuse to weigh either Bob Woodward's series of books or frequent testimony and interviews made under non-waiver/non-precedent clauses as legal grounds to reject, or even undercut in the balancing test, a claim of executive privilege. I don't think you can get five Justices to wink-wink nudge-nudge at the same time, and you certainly can't get them to say-no-more.


Finally, Prof. Lederman is correct that I neglected to address in my critique his original post's arguments about one particular type of executive misconduct that might be implicated here. Specifically, in what he refers to by short-hand as the "take care" point, his original post asserted that

pressuring the U.S. Attorneys to make prosecution decisions based on the partisan affiliation of the possible defendants would still be unlawful, because it would violate the President's constitutional obligation to take care that the laws are faithfully executed.

In his response, he asserts this even more strongly:

[T]he 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.

Well, we certainly agree that such an argument wouldn't be determinative in overcoming an assertion of executive privilege. But we disagree as to whether it would even be persuasive.

I recall very vivid arguments from both sides in the House impeachment and Senate trial of President Clinton as to which, if any, of his alleged or admitted acts of misconduct qualified as "Treason, Bribery, or other high Crimes and Misdemeanors" for those purposes. I also certainly recall many references during those proceedings to the Presidential oath to "protect, preserve, and defend the Constitution of the United States," and to Article II, Section 3's injunction that the President "shall take Care that the Laws be faithfully executed." And I emphatically recall President Clinton's defenders' arguments that nothing he had done, even if criminal, rose to constitutional violations, and that instead President Clinton's attackers were trying to "criminalize politics as usual." I'm not suggesting that any of those arguments, and certainly not that any of those provisions in the Constitution, are trivial or unimportant.

I do suggest, however, that none of them are a sufficient, or even a proper, basis for permitting a Congressional subpoena to overcome an assertion of executive privilege. I'm reasonably confident that there is no existing precedent that would legitimize such arguments. And as with my earlier point about the extraordinary potential breadth and the vagueness of "corrupt influence" and obstruction of justice statutes, I'm pretty sure that damn near every political dispute between any President and any Congress, and certainly every personnel decision made by any President, could easily be recast into "He's not taking care that the laws be faithfully executed!" and "He's not protecting, preserving, and defending!"

Congress: "We want to know what Karl Rove said to Dubya last week in the Oval Office about their plans on Medicare reform!" Prez: "Are you kidding me?" Congress: "No, we're not kidding. We have a Medicare statute, and Dubya and Rove have been plotting to gut it, and we're convinced it's for political purposes. That's not taking care to execute the laws of the United States, so we're entitled to overcome Dubya's assertion of executive privilege."

My polestar for this is, again, the Nixon Watergate Tapes case. That wasn't just Congress probing and guessing. That was an independent prosecutor who'd already convicted the little fish, already indicted all of the bigger fish, and already included the biggest fish of all as an "unindicted co-conspirator." Yes, that subpoena was in support of a criminal prosecution under, among others, the broad and vague obstruction of justice statute. But Jaworski had exhausted his less intrusive means; he had specific names, dates, places, and acts tied to essential elements of the crimes indicted; and he had a compelling argument that the material being withheld on grounds of privilege would be directly material to all that. That's at the end of the spectrum where we know that a President's claim of executive privilege was outweighed by other factors.

By contrast, "he's not taking care!" without a whole, whole lot more — without all those hoops that Jaworski jumped through — seems to me to be at the far opposite end of the spectrum. And in the context of a Congressional subpoena, it's an argument being made not by an independent prosecutor, but by a competing branch of government that's supposed to be restrained by checks and balances and whose powers are supposed to be separated. That ultimately gets me, I think, not just to a disagreement with Prof. Lederman's "take care" argument, but at least to the brink of, and possibly all the way over to, arguing that a Congressional subpoena based on a "take care" argument ought to be summarily rejected as a nonjusticiable  political question. Jaworski's criminal prosecution propelled him through that hoop and then on to, and through, the executive privilege hoops. I don't think Waxman's and Leahy's desire for a media show-trial can.

Posted by Beldar at 11:47 PM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Beldar's reply to Lederman's response re executive privilege and sent a trackback ping are listed here:


(1) (A different)dyer made the following comment | Mar 23, 2007 9:52:07 AM | Permalink


If you'd care to, I'd like to ask you to set aside your advocate's hat for a minute, and put on your Judge/Prosecutor hat.

Consider, for example, that anyone who's payed any attention to, say, parking tickets at the Houston Intercontinental Airport and the way that the Mayor's office appears to be trading political favors, this type of gamesmanship is nothing new.

Here's my interested layman's take on what appears to have happened with at least a few of the US Attorney's Offices. While, in principle, the USA's are selected and serve at the President's request, we all know that the Senator(s) and Representatives whose districts the particular USA works in are the traditional source of who actually gets appointed, or at the least the true vettors for the particular position.

Given that, it appears that at least a couple of Congressmen and women decided, for whatever reason, to use their influence to get certain US Attorney's fired. At a minimum, it is suggested that they worked the phone with the AG's office to make sure that it happened.

Now, while this is politics as usual, and seems minor in the grand scheme of things, on ethical and moral grounds, it's also beyond the pale, no matter which party is running things.

Okay, that's where things appear to stand. I have 2 real questions, then.

First, as a practical matter, any prosecutor/grand jury will want to know just how far the calls went. Thus, how much "fishing" is practical, and, knowing that it's a judgement call, what would your personal parameters for the fishing expedition be?

Second, and I think that this is definitely more problematic, again, from the hypothetical prosecutor's point of view, does the preponderance of evidence to date indicate to you that a Conspiracy Probe is in order, to determine, given how many US Attorney's appear to have been involved here, whether or not there was a concerted effort on the part of some members of the administration's "elections team" to influence particular districts. I.e., do we have enough information yet to at least suggest that there was "concerted effort" or whatever the term of art is, to inappropriately influence election returns and thus abusing the powers and privileges of the office, etc?

I'm not suggesting here that anything particularly dangerous did actually occur, but, again, as the hypothetical prosecutor, does this "read" for you?

Sorry about the bandwidth...

(2) (A different)dyer made the following comment | Mar 23, 2007 11:57:12 AM | Permalink

Or, to put it another way, let's say that, 6 months from now, you get a telephone call from Mr. Bush that goes something like

"Mr. Dyer, I need you, a fine, crusty old Southern lawyer and gentleman, to come up here and empanel a grand jury to find out whether members of my party and my administration are just stupid, corrupt, or both".

Assuming only the info currently available, what would your plan be?

(3) antimedia made the following comment | Mar 23, 2007 5:10:17 PM | Permalink

I think your question has been asked and answered. Before you start issuing subpoenas to the White House staff, you'd better get that Congressperson and Senator under oath stating, "I pressured the WH to fire the USA and so and so promised me they would."

At this point all you have is innuendo. Hopefully you don't want that to be the standard for issuing subpoenas, since that would adversely affect you personally. (I just call up the DA and say, I heard that so and so said that 2nd so and so did such and such. Now issue subpoenas and get to the bottom of this."

This entire affair is nothing more than political grandstanding for the cameras, and Beldar, in his usual graciousness, has dignified it with an able discussion of the points of law regarding executive privilege.

Frankly, the Democrats don't even deserve that.

(4) (A different)dyer made the following comment | Mar 24, 2007 10:41:51 AM | Permalink

antimedia (and Beldar),

Please understand, I personally don't have any interest in this particular mess, other than, as I said in another post, sheer disgust with the inability of the AG and the rest of the administration to handle this situation.

That being said, I am interested in the general case.

First, to take your point, almost all investigations into misbehavior by any of the 3 branches of government must of necessity begin with innuendo. As with any white-collar crime, there's a vanishingly small chance that you're ever going to have a smoking gun or a crime scene, with flashing lights and CSI and the whole works, to tell you that "Yes, Watson, there's been a crime here, please get a US Attorney on the phone".

Given that, and given the executive privilege situation, I am wondering what and how, as a general case, Beldar or any other experienced, well-qualified attorney, would handle an investigation into something like this, especially if there is a hint that you might end up having to investigate 2 of the 3 coequal branches of government.

Again, I'm not carrying water for this particular nonsense, I'm seriously interested in how one would actually deal with this situation, including the executive privilege, if one were actually asked to investigate as a general example.

(5) (A different)dyer made the following comment | Mar 24, 2007 11:12:55 AM | Permalink


I'm sorry to keep taking up space with this, as I say above the general example of this case actually intrigues me quite a bit more than I realized.

I can add more detail to my questions, though. In particular, it appears that the Inspector General may be getting involved. That makes me wonder more specifically:

1. Is it correct that there can be no claim of executive privilege if the office investigating is an executive office?

2. Corollary: Can the legislative privilege extend to Congressional hearings?

In other words, there are 2 different subcases of the hypothetical: if you're the counself to a Congressional committee, and if you're the lead attorney for a DOJ investigation. Presumably, due to both legislative and executive privilege, 2 parrallel investigations by 2 different branches of government into supposed malfeasance by both branches would be best served by looking only into the "self" branch.

And, further, is there such a thing as "Judicial Privilege"? Would, for example, the Supreme Court be able to exert such a privilege against either the DOJ or Congressional committees?

(6) Beldar made the following comment | Mar 25, 2007 8:30:09 AM | Permalink

Mr. Different:

All three branches of the federal government already contain internal mechanisms for self-investigation and self-policing.

In the judicial branch, for example, there is the Judicial Conference, over which the Chief Justice presides; it, through what are in effect subcommittes whose decisions can then be referred upstream, investigates complaints of judicial impropriety, corruption, or other crimes. It can (and occasionally does) make recommendations to the Congress for action. (The House impeaches, the Senate tries and removes.) Either the Judicial Branch or Congress can also make referrals to the executive branch (DoJ) for criminal prosecution.

Both chambers of Congress likewise have standing committees to investigate members, each of them with staff that includes lawyers. They can, and occasionally do, make recommendations to the full House or Senate that can result in them expelling such members, and they can (and occasionally do) refer their findings to the executive branch (via the DoJ) for consideration of criminal prosecution.

The executive branch, through the DoJ, can investigate and prosecute allegations of corruption and crime against government officials within any of the three branches. Administratively, there are also internal remedies as well, comparable to those of the other two. And in general, the President can fire anyone in the executive branch, from cabinet members who preside over the various departments on down.

Except for individual rights under the Fifth Amendment to avoid self-incrimination for crimes (which in general only covers testimony and not physical or documentary evidence), within each branch during its own internal investigations, I don't believe there is, in general, any privilege through which the target of the investigation could prevent its superiors from access to documents or testimony. A judge who's alleged to have taken a bribe would not, for example, be entitled to refuse to make his chambers' internal paperwork or his law clerk's testimony unavailable to the Judicial Conference.

I haven't done any research to confirm my recollection, but I believe that congress and the courts have their own privileges that are analogous to executive privilege that they can assert against intrusions by the other. Thus the hoo-hah over the FBI's raid of Congressman Jefferson's House office, for example. But the privilege belongs to the branch, not the individual within it. Thus, the Judicial Conference could waive any privilege it might have with respect to its members' testimony or internal court documents for purposes of either congressional or executive branch proceedings (respectively, impeachment and criminal proceedings), notwithstanding an individual member's assertion. The draft judicial opinion allegedly influenced by corruption may be immune production under a grand jury subpoena, in other words, but only until the Executive Conference waived any judicial privilege (which it almost certainly would do in anything but an enormously outrageous instance of bad faith by the executive/DoJ). The assistant U.S. attorney accused of taking bribes can't tell the Attorney General, "No, you can't look at my file, it's a privileged on-going investigation!" But the AG and the President could conceivably assert executive privilege against Congressional or private-party attempts through the judicial branch to compel production of that same file.

There's not a lot of law on this, though. A large chunk of the executive privilege law on the books came from the Nixon administration, although Vice President Cheney has made his recent contribution (with better results).

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