Over the last several months, as the leadership of the House of Representatives and its committees has changed, the conversation in Washington has revolved around Congressional demands for information from the Executive Branch and the potential avenues for enforcing those demands should the White House balk. The discussion reached a fever pitch when Special Counsel Robert Mueller submitted his long–awaited report to Attorney General Bill Barr. Jerry Nadler, the Chairman of the House Judiciary Committee, said that he will subpoena the report and that “Congress will ‘absolutely’ will take the demands to get the full Mueller report to the Supreme Court if necessary.” Chairman Nadler argued that the report needs to be released in order to satisfy Congress’s “responsibility of protecting the rule of law.” Law professors predicted that courts will be asked to resolve the disputes, but have opined that it is entirely proper that they should do so. However appealing this solution might seem on the surface (after all, who could object to thorny issues being resolved, following a dispassionate and learned argument, by people not fearful of being fired or voted out of office?), it betrays a belief that rule of law is the same thing as rule by judges and lawyers. Yet, this approach fetishizes the role of the courts and betrays a belief in a constitutional system where judges reign supreme. This is not the system that our Founders envisioned.
Let me preface my critique of Chairman Nadler’s “rule of law” argument by saying upfront that I have no opinion on whether the Mueller report or any other documents requested by Congressional committees should or should not be released as a matter of policy or good governance. Nor do I have an opinion as to how Congress or the public should weigh the information that is released. Instead, I wish to critique Chairman Nadler’s understanding of “rule of law” and the pundits’ view of the role that the judiciary plays in our tri–partite system of government.
I wholly agree with Chairman Nadler that if “rule of law” means anything, it means that every person, no matter how powerful or weak, is held to the same legal obligations and must suffer the same legal consequences. But, under that view, public disclosure of the Mueller report would be a curious incident indeed. Every day around this country, federal and state prosecutors investigate thousands of crimes, and grand juries hear hundreds of witnesses. Yet, absent an indictment, neither the grand jury information nor attorney notes and impressions are ever released to the public — and for good reason. Grand jury proceedings are secret because in those proceedings prosecutors are not bound by rules of evidence, defense attorneys are not given an opportunity to cross examine witnesses, and reputations of perfectly innocent individuals may be sullied without an opportunity to rebut the suspicions. There is no reason to believe that the Special Counsel’s investigation was any different. Whatever one’s view of President Trump and his behavior, it is highly likely that in the course of Mr. Mueller’s investigation he obtained derogatory information on other individuals with various levels of connection to President Trump. It would be entirely unfair to those individuals to have that information released to the public, much like it would be unfair to any of us to have our lives be aired out for public view when we haven’t done anything criminal. Thus, if anything, the “rule of law” requires that the Mueller report, or at least those parts of it that speak of people who have not been charged with any crimes, be kept from the public.
As for the President himself, there may well be a legitimate argument that, because the Department of Justice concluded that he cannot be indicted while in office, the rule of law must account for this. In light of that view, the conclusion that a release of grand jury information is appropriate may well be defensible because, absent a trial, that may be the only way to hold a sitting President to account. But the same cannot be said about other individuals whose activities came into the grand jury’s orbit. There is no justification for treating them differently from any other member of the public, simply because they chose to become public servants and work in an Administration that some may find unpalatable. The only way to ensure that we treat the individuals investigated by the Special Counsel in the same way that we treat individuals investigated by any other prosecutor is to treat the Mueller report in the same way we treat other grand jury minutes, i.e., keep it secret in order to protect the reputation of those the government does not see fit to prosecute.
The demand to release the full Mueller report without regard for the reputation of people investigated but not prosecuted by the Special Counsel is misguided, and the argument that resolving the dispute over such a release is properly the function of federal courts is equally misguided. The argument for resolution by the courts fundamentally misunderstands our tri–partite system of government.
Chief Justice Marshall wrote in Marbury v. Madison, that it is “the province and the duty of the judiciary to say what the law is.” But that does not mean that the courts are superior to the other two branches of government. On the contrary, the system set up by the Framers envisioned three independent, coordinate, and co–equal branches of government; each exercising a check and serving as a balance for the other two. Lest there be any doubt, I believe that courts are fundamentally important and their ability to resolve cases without political pressure is a bedrock feature of a free society. But the importance (and power) of the courts should not obscure the importance and power of the other two branches of the government. Instead, the public should insist that each branch jealously guard its own powers and prerogatives. As James Madison wrote in Federalist 51, liberty will be protected by “giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others… Ambition must be made to counteract ambition.”
The courts are charged with saying “what the law is,” but they are called on to do so only in two instances — when one of parties is unable to protect itself and when the alternative to judicial intervention is violence. It is for that reasons we expect courts to resolve disputes between private parties as well as between the government and private parties. In the latter case we do so because no individual can expect to withstand the full force of the government, and therefore needs judges to restrain the application of that force where the law does not permit it. In the former situation, absent a dispassionate resolution of disputes by a neutral arbitrator, private disputes are likely to be resolved through brute force. But neither of these concerns exists when the dispute is within the government itself. First, it is not likely that disputes between the branches would degenerate into violence. After all, whenever different parties control the Congress and the Presidency such disputes arise all the time as the two branches clash over government funding, nominations, treaties, and other matters. Yet, since the English Civil War, the Anglo–American system has managed to avoid violent confrontation between the Executive and the Legislature. Second, none of the branches are powerless to protect itself against other branches.
If Congress truly believes that it must have the information requested from the Executive Branch and that it is being stymied, Congress has plenty of tools at its disposal to force compliance. For example, although the Constitution forbids Congress from cutting the President’s salary, nothing requires it to fund the operations of the sprawling bureaucracy that has grown around the Oval Office. Congress would be fully within its rights to refuse to pay salaries to anyone employed in the Executive Office of the President until it received what it deemed to be satisfactory answers to its information requests. Congress can even go so far as to cut off utilities to the White House by refusing to appropriate any money for such expenditures. Congress also has the power to arrest and imprison any person who contumaciously refuses to comply with a Congressional subpoena. And of course, impeachment is always within the power of Congress. It is true that some of these measures may be politically difficult and not palatable to members running for reelection. However, such difficulties are not a reason to pass the buck for difficult decisions to another branch of the government.
At the end of the day, courts are not parents who must resolve disputes between squabbling children. Instead, they are equal partners with the other two branches in creating a functioning government in our country. That means the courts are not meant to resolve the squabbles between the other two branches, especially when each of those branches has enough arrows in its own quivers to defend its own prerogatives. Instead of ceding more power to the judiciary we, as citizens, should insist that Congress forcefully reassert itself in the arena of governance. We should demand that not based on our views of President Trump or our belief that he is or isn’t guilty of engaging in nefarious activities, but because as James Madison wrote, “that each department should have a will of its own” is “essential to the preservation of liberty.”
As a final note, what makes the current debate particularly unsettling is the fact that people on both political sides, i.e., those who believe that Congress has a right to see the requested documents (including the Mueller report) and those that take the position that President Trump has a better legal argument in resisting such a request seem to accept the proposition that it is the courts that ought to render the final judgment. Many of these people are teaching the next generation of attorneys (and I am sure are rightly beloved by their students). But they are doing a great disservice to both the students and our system of government. When these students enter the profession they will enter it with the erroneous belief that courts are meant and empowered to fill in the gaps when the political branches fail to stand on principle. As these students become law clerks, congressional staffers, attorneys in the executive branch, and eventually Congressmen, judges, and heads of departments themselves, they will take these ideas with them. In putting these ideas into practice, they will continue to enfeeble Congress while aggrandizing the judiciary. And while I agree with Chief Justice Roberts that “[w]e do not have Obama judges or Trump judges, Bush judges or Clinton judges,” but rather “dedicated judges doing their level best to do equal right to those appearing before them,” and therefore am convinced that when matters come to courts, all judges strive to reach the right result based on their own understanding of the law and not their private politics, I also agree with Lord Acton’s famous cautionary note that “power tends to corrupt.” This “gradual concentration of the several powers in the same department” is a threat to our liberty and the very foundations of our Republic. Even if one takes the view that courts are needed to reign in this President more so than any other one, that is an insufficient justification for abandoning the very structure of our government.
These are contentious times and, thanks to the technological advancements, we expect information to be freely available and instantaneous. But it is precisely because these are contentious times that we should rely on the principles that have served us so well for over 200 years. No transitory political considerations or problems are worth abandoning these principles.