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Thursday, June 13, 2024

Observations and conclusions regarding the House's referral of criminal contempt of Congress charges against Attorney General Merrick Garland

(1) Our starting point is that criminal investigations, state and federal — broadly defined to include communications, deliberations, and gathering of witnesses' testimony and evidence of all sorts — are universally treated as confidential by law enforcement authorities including prosecutors. The law recognizes and promotes that confidentiality by treating information and materials relating to the investigation as being privileged from compelled disclosure through, for instance, a subpoena. If the investigation results in charges, especially if it eventually results in a public trial, then some considerable portion of that information and those materials may end up becoming public as part of the prosecution's proof of its case, or if it's exculpatory, in response to defense motions to produce. A public trial may not reveal inculpatory materials from the investigation that were too hinky for an ethical prosecutor to rely upon. And when the investigation never results in charges — which is true in the very large majority of investigations — law enforcement authorities and prosecutors uniformly refuse to comment, typically not even confirming (or denying) whether there is (or was) indeed an investigation, and likewise refusing to confirm or deny that it's been closed without charges. These materials remain confidential forever (unless perchance an investigation is re-opened).

(2) The investigation of President Biden's retention of classified documents from his vice presidency, though, obliged the Attorney General and the executive department he heads to investigate the AG's boss — an ethical conflict of interest. There's no perfect solution to such conflicts of interest, but the way they're currently handled is through the appointment of a special counsel — someone who still reports to the Attorney General (and through him, ultimately, to the POTUS). Unlike the 92 U.S. Attorneys for the various federal districts and other DoJ prosecutors, the special counsel, under the current regulations (codified at 28 CFR part 600), can in theory (and in practice so far) only be fired for cause (although it's still the AG making that often subjective determination on "good cause"). Special counsel also have some national geographic jurisdiction that regular U.S. Attorneys have to get special permission to exercise, and there are additional financial and staffing resources made available to help ensure as much independence as can be effectively simulated.

Ultimately the POTUS can still fire an AG who refuses to fire a special counsel, though, as happened in the Saturday Night Massacre during the Watergate investigation — and that chain of authority is probably required for special counsel to have authority to prosecute in court on behalf of the United States. To compensate in part, the regulation prescribes limited sunlight: The AG must advise Congress when a special counsel is appointed, and if the AG has overridden or reversed a prosecution decision or other major decision, and if the special counsel has been fired or replaced, and if the special counsel has closed his or her investigation without public result. This is only a barebones notification, though. By contrast, each special counsel is obliged under the regulation to write a full report to the AG at the conclusion of his or her duties; by default, those reports, and the materials (including witness interviews and grand jury transcripts) upon which the reports are based, remain confidential within the DoJ — just like all other criminal investigational materials than haven't been made public through indictment and trial. The regulation gives the AG discretion to release all or part of a special counsel's report to Congress or the public. But it also gives the AG discretion to refuse to release, or to delay releasing, a special counsel's report — especially parts whose release might compromise other ongoing investigations or otherwise harm the public interest.

(3) In practice, notwithstanding the regulation's confidentiality protections, Congress and the public have come to expect AGs to release all or most of such special counsel reports, at or near the same time the AG advises Congress that a special counsel's investigation has been concluded. President Trump's second AG, Bill Barr, as per a strong (but not ironclad) assurance he'd made during his confirmation hearings, thus released most of the Mueller report, albeit with extensive redactions, shortly after he and Deputy/Acting AG Rod Rosenstein advised Congress that Mueller's investigation had been completed in a report of their own about Mueller’s report. (Garland has since released a less-redacted version of the Mueller report in response to FOIA suits.) And during AG Garland's confirmation hearings, when he was quizzed by senators about then-ongoing work of special counsel John Durham, Garland likewise gave strong (but not ironclad) assurances that he'd release Durham's report. Since then he's extended that public near-promise — an unwise one in my own judgment — in writing for all special counsels appointed during his tenure.

Thus did politics effectively gut the discretion the regulation gave to just say, "Nope, the AG has determined that releasing the report on this investigation that didn't produce an indictment actually doesn't serve the public interest." And thus was Garland so hoist on his own petard that with Hur's report and its declination-of-prosecution decision, Garland didn't even repeat Barr's gambit (with the Mueller report) of first releasing his own statement about the report, then delaying the report itself for a couple of weeks to do redactions. But Garland has surely pleased the White House by resisting the release of the audio.

(4) Political motivations and consequences aside, however, as a legal proposition, by voluntarily releasing the Biden interview transcript along with Hur's report, not just in private to the chairs and ranking members of the House and Senate Judiciary Committees, but also to the public at large, AG Garland thereby waived — conclusively (because you can't un-ring the bell) and knowingly and deliberately — the investigative privilege that would otherwise have protected the written transcript against attempts by either Congress or private parties to force the transcript's public disclosure through a subpoena.

(5) The nature of a privilege against compelled disclosure that's being waived doesn't depend on the method of recording that which has been gathered in the investigation. The privilege attaches to the substance of what's been recorded, regardless of the means. (The means might become important if there is a dispute about the accuracy of the transcript; here there has been no basis even alleged, much less shown, to believe that, and their accuracy is certified by licensed professionals.) As with other waiver cases in other contexts, once the substance has been deliberately revealed — once the horse is out of the barn, indeed slapped on the rump by the farmer on his way out the barn door — the privilege is gone as a basis to resist an otherwise lawful subpoena. So: Is the House subpoena otherwise lawful?

(6) Congress has oversight responsibilities for the actions of the Executive Branch, including the Department of Justice. But those responsibilities do not extend to the details of individual investigations and prosecutions: While it can re-write the laws for the Department to use in dealing with all persons, it may not re-write laws, or consider re-writing laws, to deal with the criminal responsibility of a single particular target or defendant. (If it did so, it would run afoul of the Constitution's prohibition against bills of attainder, i.e., laws directed at particular persons rather than at the public generally). Ordinarily a Congressional subpoena demanding materials relating to one specific investigation would therefore fail when Congress tries to enforce it in court (assuming it can get a lawyer with authority and standing to so argue on behalf of Congress in court, that role normally belonging to, you guessed it, the AG). The House Judiciary Committee's subpoena of AG Garland attempting to compel him to produce the recorded audio version of the transcript is therefore invalid, as being beyond any proper legislative purpose. Of course Garland cannot be prosecuted for contempt of Congress after timely and properly objecting to the subpoena's validity (which the DoJ has done, in contrast to, say, Steve Bannon or Peter Navarro, who just ignored their subpoenas altogether).

(7) Whether a news organization might now be able to get the audio version under, e.g., the Freedom of Information Act, is a different question legally. I don't know the answer to that, but it might depend on whether DoJ's voluntary release of the substance of the interview, in the form of the written transcripts, waive objections that the DoJ would otherwise have — not only per its usual practice and tradition of confidentiality, but by specific statutory exemptions to FoIA. It would surprise me to see that litigation play out before Election Day, however.

(8) The assertion by AG Garland that disclosure of the audio will hamper future law enforcement is silly and disingenuous, unworthy of a man who sat as chief judge of the D.C. Circuit bench: Any potential future deterrent effect on witnesses voluntarily giving information if they fear their recorded voices will be disclosed (absent extraordinary circumstances, e.g., transcripts of confidential informants whose very identities are secret; Joe Biden's isn't) could only possibly apply in the tiny fraction of cases that result in special counsel appointments, and further, in which the AG has independently exercised his discretion to release the special counsel's report (and supporting materials including written transcripts of the recorded audio). The FBI isn't generally luring witnesses into cooperation with promises to keep secret only the audio version of what the witnesses say, while reserving the right to broadcast the transcription of the same interview. That would be nonsense, without some particularized reason that the audio had legal significance distinct from the transcript. (Political significance is no part of this equation — or at least, shouldn't be.)

(9) Likewise, the assertion by AG Garland that for purposes of privilege determination (investigative or, as discussed below, executive privilege), one can preserve privilege as to an audio recording of an interview, the transcript and therefore the entire legally relevant substance of which has already been released, is frivolous: substance having been waived, form doesn't matter. (Note that when AG Garland released the transcript of Hur's interview to Congress and the press, he didn't even attempt to carve out and preserve an exception to the broad substantive waiver for the audio version. This is all a post hoc rationale, contrived just to oppose the subpoena.)

(10) Finally, the argument that President Biden and the Office of the Presidency can invoke executive privilege — as opposed to the DoJ invoking its already deliberately waived investigative privilege — is again an offensively stupid argument. Yes, technically Hur was in the Executive Branch's chain of command. But he was as far independent of it as Neal Katyal's clever regulation-drafting could manage. And Hur was not aligned with, but formally adversarial to, Biden's interests in these interviews. That's why Biden had his own personal lawyers present, plus White House counsel to represent him in his official capacity. Hur was not a close advisor of a POTUS whom we expect the POTUS to be able to trust for confidential advice, but someone who potentially might be indicting him, and who certainly wasn't there to give Biden forever-confidential advice and counsel. Shame on anyone who even pretends for an instant that this qualifies for executive privilege; that is a wild overreach that reeks of Trump's absolute immunity argument, or Nixon's excuse to David Frost that "It's not illegal when the President does it."

CONCLUSIONS: The House referral of AG Garland for prosecution for contempt of Congress is invalid because the underlying subpoena is invalid — but the Biden DoJ and its AG are being extremely disingenuous in resisting it anyway. Their resistance is transparently, exclusively political and legally laughable. If this referral somehow makes it to court, the judge should declare a pox on both of their houses (i.e., on the House’s subpoena and the DoJ’s claims of privilege), and therefore dismiss Congress' attempts to enforce the subpoena as a nonjusticiable political question that the federal courts must abstain from answering.

(Congress as an institution is not left without other means of pushback, including structural reorganizations and the power of the purse; but they’re all likely to require both chambers’ approval, and that is unlikely.)

Congressional Republicans won’t get their audio. But they are still free to argue to their hearts' content — in the court of public opinion, and in connection with the upcoming election — that there must be something politically awful that's unique to the audio and that is the true motivation for refusing to release it. They may justly ridicule the DoJ’s audio-only privilege claims and purported rationale for refusing to produce the audio.

But the subpoena is invalid not because of any privilege (waived or otherwise), but simply because it went beyond a legitimate legislative purpose of the present Congress. House Republicans can certainly try to politically shame Biden and Garland for their very shameless stonewall of the audio without any proper legal ground for doing so; but the House nevertheless has no legal or practical tool (short of impeachment, and good luck with that, yet again) to compel Biden or Garland to dismantle that stonewall.

And you, members of the public, friends and neighbors, once again should realize that neither side of this dispute has been telling you anything remotely approaching the truth about these issues and their respective disingenuous positions on them. Your continuing skepticism of all concerned is well justified.

Alas, even without having heard the audio, no one can fault the obvious political calculation shared by both sides in this shoddy affair:

In all likelihood, there's absolutely nothing the audio would show that the transcript doesn't. I've read the transcript; it does not make Biden look good, but rather thoroughly justifies Hur's report’s characterization of Biden's mental acuity and its limitations. But almost no one will read so much as ten pages, or ten lines, of the transcript — whereas a sound bite in Joe Biden’s voice, endlessly replayed, could swing a close presidential election.

Posted by Beldar at 04:07 PM in Law (2024) | Permalink

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