This past June, the House and Senate Judiciary Committees issued five congressional subpoenas directing the production of various White House documents as well as the testimony of former presidential counsel Harriet Miers and former political director Sara Taylor regarding the firing of certain U.S. Attorneys earlier this year.  In response the President invoked executive privilege.

Continuing a discussion initiated at the end of last month, David Rivkin, a partner in Baker & Hostetler LLP,  and Moritz College of Law Professor Peter Shane debate the executive privilege invocation and related matters below.    

Participants in the earlier portion of the discussion include, in addition to Professor Shane, former Attorney Advisor in the Department of Justice's Office of Legal Counsel & Georgetown Law professor Marty Lederman, Columbia Law professor Michael Dorf,  Chuck Cooper of Cooper & Kirk, PLLC, Yale Law professor  Jack Balkin, and University of Chicago Law professor Richard Epstein.  The earlier portion of the discussion, which was posted originally in this space on July 27, may be accessed HERE.

Questions and Answers:

David Rivkin: Having come into this debate quite late in the game, I want both to make an affirmative case about the proposition which I have not seen discussed yet, as well as comment on several points made in the previous posts.  I certainly agree with Michael, Peter, and Chuck that properly balancing the congressional interest in obtaining documents relating to the firing of U.S. Attorneys and the Executive Branch’s interest in sustaining its invocation of privilege is the key.  While there has been quite a bit of a discussion about whether the United States v. Nixon-style balancing is appropriate in this instance, there is an important additional factor that critically bears upon the vigor of the congressional interest in issue.

I hope we can all agree that congressional oversight and investigatory functions necessarily track its legislative functions.  Congress’ oversight and investigatory powers are not specifically mentioned in the Constitution and are therefore implied powers; as is, of course, Executive privilege.  Stated differently, in instances where the congressional ability to legislate on a particular matter either does not exist, or, at least, is seriously constitutionally suspect, the congressional ability to compel the Executive Branch to disgorge documents, allegedly capable of shedding light on this matter, cannot be particularly robust.  This notion is supported by case law.  See Barenblatt v. United States, 360 U.S. 109, 111-12 (1959) (stating that “since Congress may only investigate into those areas into which it may potentially legislative or appropriate, it may not inquire into matters which are within the exclusive province of one or the other branches of government”).

The Department of Justice has consistently held the same view.  In this regard, as Attorney General Janet Reno advised President Bill Clinton in 1999, Congress has no right to investigate matters that are within the “exclusive province of the Executive Branch.”  On that occasion, a Republican Congress was seeking information on Clinton’s exercise of his pardon power, offering clemency to sixteen convicted members of a violent Puerto Rican separatist group.  Reno noted correctly that: “[s]ubjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned executive functions,” and is a violation of “constitutionally mandated separation of powers.”  In my view, Congress cannot constitutionally pass legislation constraining the President’s ability to remove political appointees like U.S. Attorneys, who exercise the President’s authority and serve at his pleasure, any more than it can constitutionally delimit the President’s pardon powers.  Indeed, given the unique context in which the congressional request for documents has arisen, I would venture a prediction that, if the matter is actually litigated, Congress would lose. 

However, quite aside from the issue of balancing, I am troubled by the almost casual nature with which Jack and Marty are discussing the contempt aspect of this controversy.  I realize, of course, that the notion of Congress holding Executive Branch officials in contempt is not particularly new.  Yet, in my view, the very idea that Congress can hold Executive officials, who pursuant to the President’s decision refuse to testify or produce documents, in contempt is highly troubling.  Let’s assume that both political branches are acting in good faith and both have properly invoked their implied powers.  This means that, in the President’s case, he concluded that the Executive privilege must be asserted and in Congress’ case, that a subpoena for certain documents must be issued.  Both positions are of equal constitutional and institutional dignity and neither political branch is in a good position to assess objectively the merits of the position advanced by the other branch.  Indeed, to the extent that the balancing of the two competing interests is required, this balancing can be performed only by the Judiciary, which is capable of looking at the matter dispassionately and objectively.  (Apropos of the point made by Chuck about the non-political nature of the Judicial Branch, I believe that the Judiciary is even better equipped to balance the competing congressional and Executive equities than it would be able to handle such a balancing in a criminal justice context, in which the courts themselves are necessarily the primary players.)  Until this balancing has occurred, there is absolutely no legitimate basis for Congress to hold anybody in the Executive Branch in contempt.  Doing so here is nothing more than an effort to stigmatize the individuals involved, and, ultimately, the President.  Under these circumstances, it is no more legitimate than would be the President’s declaration that House or Senate Democrat leaders are in contempt for impeding his ability to discharge his constitutional responsibilities. 

I also take issue in particular with Marty's rather idiosyncratic interpretation of Morrison v. Olson.  First of all, the Morrison court in a decision that I believe was wrongly decided, strained mightily to emphasize that an independent counsel remained subject, in many ways, to the President's control.  This was done, I suspect, because even the Morrison majority felt uncomfortable, deep-down, with balkanizing the Executive and removing law enforcement -- Executive's core constitutional function -- from the President's control.  Hence, the majority opinion took pains to emphasize that the Constitutional scheme upheld in Morrison ensured that she and other independent counsels were bound by DOJ's policies and precedent  except to the extent they directly conflicted with the Ethics in Government Act.  For instance, the Court stated that "[a]n independent counsel's role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes.  Admittedly, the Act delegates to appellant 'full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice,' but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary to operate her office.  The Act specifically provides that in policy matters appellant is to comply to the extent possible with the policies of the Department."  About the only thing with regard to which an independent counsel was ever really independent is an exercise of prosecutorial discretion, i.e., which aspects of an investigation assigned to him to pursue, whom to indict, what plea to cut, etc. 

The decision to invoke the executive privilege is by its very nature a policy decision, which lies at the very heart of the President's constitutional responsibilities.  The invocation of privilege is always done not only to protect a particular set of internal Executive Branch deliberations or communications, but to protect the future Presidencies.  As such, it is always institutional in nature; Marty may do well to recall how the Bush Administration continued to support the Executive privilege assertions, advanced originally by the Clinton Administration.  (In this regard, I disagree most emphatically with Jack's assertion that the next President, especially if she is a Democrat, will abandon this Administration's position on not letting Karl Rove or Harriet Miers testify before Congress.  Call me naive, but I would expect any occupant of the White House to respect the Executive privilege assertions made by previous Administrations.) 

The notion that an independent counsel has a right to make independent decisions on Executive privilege matters would make that person the true President.  The fact that he may feel that the privilege assertion may be used to hide some wrongdoing is irrelevant, unless you think that the independent counsel must be free to remove any obstacles to what he perceives to be the successful conclusion of his inquiry.  There is actually an excellent colloquy about the dangers presented by this sort of "rules be damned, I am on a quest to slay the devil" approach between Thomas More and Roper in the Man for all Seasons.  I wonder whether Marty appreciates these dangers, both as a matter of policy and constitutional law -- does he think that an independent counsel can violate diplomatic immunity, in contravention of the U.S. government's policies and international law, if he thinks that the President has secreted some damning papers in a foreign embassy? 

Indeed, under Marty's view of what independent counsels can do, nothing prevents Congress from creating a whole host of independent counsels -- one can draft the language, mandating their appointment, so tightly that the Attorney General's decision to appoint one would become largely ministerial in nature -- and allowing them to direct prosecutions of certain vast categories of offenses, real or alleged.  In the process, Congress would effectively wrestle away from the President the power to prosecute, and, hence, to carry out key Executive Branch policies, while aggrandizing its own power in the process.  This separation of power angle was never seriously considered in Morrison, because as pernicious as the then-existing type of independent counsel might have been, it could not have been put to the use that Marty seems to have in mind. 

In my view, the congressional power aggrandizing-independent counsel would be struck down as unconstitutional, even if presented to the Morrison-era court.  This would be even more certain to be the case if one considers the disrepute into which the independent counsel activities have fallen over the years, combined with the fact that the composition of the Supreme Court has changed dramatically -- Justices Stevens and Scalia are the only Members of the current Court who participated in the Morrison case. 

Peter Shane: I want to make four points and offer two postscripts.

First, David’s insistence that Congress’s investigative powers go no further than its legislative prerogatives does not really help with the current problem.  As his citation to Barenblatt confirms, these legislative powers include the powers of appropriation.  And, there is, of course, the authority conferred by Article I, Section 8 “to make all laws which shall be necessary and proper for carrying into execution . . . all . . . powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”  So, the fact that something is presidential does not necessarily take it off Congress’s table.  Presumably, all that Congress may not second-guess is the President’s exercise of discretionary judgment with regard to matters about which the Constitution confers unreviewable discretion on the President.  Congress may not, that is, inquire whether a President had good and sufficient reasoning for pardoning Jane Doe for a crime.  But, if there be evidence that Jane Doe bribed the President to secure a pardon that is surely a matter susceptible to legislative investigation.

At this point, David’s apparent response is that the Constitution does give the President unreviewable discretion to decide whether to fire U.S. Attorneys.  (“Congress cannot constitutionally pass legislation constraining the President's ability to remove political appointees like U.S. Attorneys, who exercise the President's authority and serve at his pleasure, any more than it can constitutionally delimit the President's pardon powers.”)  But, unitary executive issues aside - I’ll get to that myth in a second - this is not quite true.  Even if there is some realm of constitutionally protected discretion to fire U.S. attorneys, the President would still be subject to the obstruction of justice laws.  If he accepted a bribe to fire a U.S. attorney, he would be guilty of a felony.  If he were firing U.S. attorneys for failing to discriminate intentionally on partisan grounds between identically situated potential criminal defendants, he might well be violating the First Amendment.  In other words, the fact that the President does not need a good reason to fire a U.S. attorney does not mean there are no unlawful reasons subject to congressional inquiry. (Of course, I am not saying that any of these conditions pertains here; I don’t know.)

Now to my third point.  I think it a fair guess that, were a suitable case to present itself, the current Supreme Court might well overrule or stringently narrow Morrison v. Olson.  Scalia, Thomas, Roberts and Alito have all quaffed generously of the unitary executive Kool-Aid; a few even helped concoct the brew.  His cautionary stances regarding the war on terror aside, Kennedy, in other contexts, has likewise signaled receptivity to this mode of argument.  (See Public Citizen v. DOJ.)  I assume Kennedy recused himself in Morrison because of personal friendship with Ted O.; otherwise, the case might well have been 7-2, or 7-1-1 with a narrow concurrence by Kennedy.  So, if law really is nothing other than political prediction, David’s view of the law might actually be law.

But - and here’s my final major point - the idea that the constitution gives the president illimitable policy control over U.S. attorneys is just false.  There is no generally held 18th century view of executive power that would attach such a conclusion to the vesting clause.  The history of the take care clause (or, as I prefer to call it, the faithful execution clause) confirms no such power.  Such a reading is not necessary to preserve what Paul Verkuil once called the due process component of the separation of powers.  It would have been entirely consistent with the constitutional text and its history for the first Congress to have conferred the appointment of U.S. attorneys on the courts.  (If there is a problem with this, it would be with regard to the USA’s “inferiority,” not the nature of their functions.)  If Congress were to determine that U.S. Attorneys could be discharged only for good cause, not including a policy disagreement with the President, it would be entirely within its powers.  This goes beyond the executive privilege debate, except it may help explain why I think the current balancing favors Congress.

Two postscripts: First, I would guess that most Presidents following Andrew Jackson would assert that policy control over criminal prosecution is constitutionally vested in the office of the chief executive.  I would also guess that, if you asked a convention of unicorn photographers whether unicorns exist, you would get a unanimous and affirmative answer. It proves nothing.

Second, I agree with David’s sense of the appropriateness of judicial balancing, but don’t see why the contempt path is an inappropriate way to get the matter before a court.  I do think it’s ultimately a bad strategy - Bush would pardon anyone indicted - but, unless Bush plans to sue his former aides to enjoin them from breaching his view of executive privilege, it is not otherwise obvious how to get the matter into a judicial forum.

David Rivkin: Here is my rejoinder.  First, Peter seems to think that the existence of admittedly broadly worded Article I powers, e.g., the appropriations power and the “necessary and proper clause,” gives Congress an unlimited ambit of legislative authority.  If that were the case, there would be no area of Presidential authority that Congress could not invade, making the President a mere cipher for Congressional action, rather than the head of an independent and coordinate branch of government.  Making the President Congress’ agent is emphatically not what the Framers had in mind.  Incidentally, Peter’s bribery example does not support his position at all.  It may well be that Presidential bribe taking for the discharge of his pardon power constitutes a prosecutable crime (although the President could likely pardon himself in that situation and escape criminal liability, if not impeachment).  This does not mean, however, that Congress can legislate in this area.  Absent the ability to legislate, it has no right to inquire into this matter unless in the context of impeachment proceedings.  Congress is not an all-purposes investigatory body or a prosecutor; just because a crime may have been committed, does not mean that Congress can inquire into who did what to whom and how.

Now, even more fundamentally, the unitary Executive is not a myth and was not invented by this Administration.  The Framers clearly chose to vest all of the Executive power of the United States in the single person, the President.  Just as the President cannot define for Congress what is “necessary and proper”; so Congress does not have the power either to define what “Executive powers” the President may exercise, or to vest executive functions in officers who are not suspect to the President’s ultimate control.  The exceptions are just that—exceptions.  As to the question of whether law enforcement is inherently an Executive power within our constitutional scheme, the answer is unambiguously yes.  There are some British precedents whereby private persons could bring what today would be considered a criminal enforcement proceeding, but this is not the practice reflected in the constitutional text.  If Peter is aware of any authority to the contrary, he should bring it to our attention. 

To be sure, there are 18th Century precedents, reflecting the scarcity of federal officials and the relatively light federal footprint—both of which are not bad things, all considered—whereby acting Executive Branch officials were appointed by federal judges and operated for long periods of time.  Even today, federal judges can appoint interim U.S. Attorneys.  This is not constitutionally problematic, since Congress has the right to vest the appointment of “inferior” Executive officers in the heads of departments or the courts.  However, the President has always had the authority to direct the exercise of authority by these officials; however they were appointed, and fire them for failing to carry out these orders.  To emphasize, even “career civil service” professionals can be discharged for failing to carry out their superiors’ lawful orders, and Peter’s notion that Congress can redefine “the cause” in the U.S. Attorneys context to allow them to keep their jobs despite policy disagreements with the President is utterly at odds with the Framers’ constitutional design.  U.S. Attorneys have always been, are, and will remain the President’s agents.  Thus, the President does not obstruct justice if he fires a U.S. Attorney because he does not like the way that attorney exercises his prosecutorial discretion; the prosecutorial discretion is always the President’s to exercise. 

Two postscripts:  First, unicorn-related fun notwithstanding, as Peter well knows, courts analyzing separation of powers issues have almost always looked at the historical practice and the legal positions, consistently espoused by Congress and the Executive.  Second, Congress is not bereft of the opportunities to challenge the President’s invocation of Executive privilege.  All it has to do is seek to enforce in a district court its subpoena.  The contempt citation, in addition to being stigmatizing, is inherently beyond Congress’ power in these circumstances, because it cannot unilaterally determine that its document request trumps the privilege invocation.  It is as simple as that. 

Peter Shane: To David's challenge, I make these responses.

Yes, the Court looks to the history of congressional and executive understanding.  If Congress has ever articulated a legislative branch position that the President is constitutionally entitled to supervise all policy making attendant on federal criminal prosecution, I'd be grateful for a citation.  (This is a sincere request!)

I don't understand David's response to my bribery example.  Congress *HAS* legislated in the area; it has criminalized bribery.  The question whether a President may pardon himself is certainly an open question, on which learned authorities have divided.  I think a strong argument could be made the answer is negative.  In any event, accepting bribes for pardons would be impeachable and so plainly within at least the House's authority to investigate.

As for my "authority" on what the founders meant when they said "executive power":  The founding generation was well acquainted with criminal prosecution, and did not regard the function as “inherently executive.” The following history is taken from a law review article I wrote in 1989, which may be found (complete with footnotes) at 57 Geo. Wash. L. Rev. 596.  See also Jerry Mashaw's wonderful survey of early federalist administrative practice in the Yale Law Journal.

The Judiciary Act of 1789 originally provided for the judicial appointment of district attorneys, which would strongly belie the argument from original understanding that criminal prosecution was inherently executive. Yes, the provision was changed by Congress, which authorized the President instead to appoint United States attorneys. Such a change would support the originalist case against independent counsels, except that there is no evidence that the change was perceived as a matter of constitutional compulsion, rather than of policy choice. Indeed, the early functioning of United States attorneys fails to substantiate any expectation that the President would provide some unifying supervision. As summarized by another scholar:

“Prosecution was decentralized during the federalist period, and it was conducted by district attorneys who were private practitioners employed by the United States on a fee-for-services basis.”

If federal evidence alone is deemed inconclusive, however, other evidence regarding the founding generation’s likely perceptions regarding criminal prosecution and its constitutional status is both consistent and telling. States had prosecutors, and state practice in the late eighteenth century most strongly suggests that there was no late eighteenth century expectation that criminal prosecution was an inherently executive function, to be conducted solely by gubernatorial appointees and under exclusive executive supervision. Indeed, there appear at least five states in which clear evidence belies any such understanding.

In 1787, Virginia was operating under its Constitution of 1776, under which ‘the executive powers of government’ were vested in a governor. That Constitution provided, however, that the Attorney General would be appointed by the ‘two Houses of Assembly . . . by joint ballot.’ The North Carolina Constitution of 1776 and the South Carolina Constitution of 1778, also operational in 1787, likewise provided for their respective legislatures to appoint each state’s Attorney General, although each Constitution vested the ‘executive power’ in the governor. Moreover, a North Carolina statute of 1777 empowered county courts to appoint additional prosecuting attorneys.

In 1784, Connecticut provided by statute for the appointment of state’s attorneys by the county courts. This practice persisted until at least 1854, notwithstanding the adoption of a new Constitution in 1818 to replace the Charter of 1662 as the state’s fundamental law. The Constitution of 1818 not only vested the executive power in the governor, but required the governor to take care that the laws be faithfully executed–in a charge identical to the President’s. Moreover, there is no provision in the article on the judiciary independently authorizing the judicial appointment of prosecutors. Thus, Connecticut’s practice o judicial appointments for criminal prosecutors persisted in the face of a separation of powers system worded identically in relevant respects to the federal Constitution.

Finally, under the Delaware Constitution of 1776, the Attorney General was appointed by the Governor together with a privy council consisting of four members of the legislature. Moreover, courts had statutory authority to appoint prosecutors in any case in which the Attorney General or a designated deputy failed to appear.

If criminal prosecution were conventionally thought to fall inherently under executive authority, the links just recounted between prosecuting authorities and state courts or legislatures would be anomalous.  (Furthermore, even if criminal prosecution is deemed executive, the idea that it is inherently to be governed by the policy choices of the chief executive is contradicted by the practice of numerous states with independently elected attorneys general.)

The one other piece of contemporary evidence as to common understanding, however, bolsters the conclusion that prosecution need not be an executive function, and that the state practices just recounted were consistent with conventional understanding. In England, criminal prosecution was still largely a private function. There was a degree, now enlarged, to which the English Attorney-General could supervise criminal prosecutions. In making prosecutorial decisions, however, the Attorney-General was regarded as an independent officer, personally accountable to Parliament, whose judgments were not controlled by the Crown or by the Prime Minister.

From the foregoing, I think it clear that any limit on prosecutorial discretion cannot be regarded as a limit on something the founders intended to be treated as inherently, and inviolably, executive.

The provision of the Constitution that requires the President to take care that the laws be faithfully executed is actually a ban on the executive suspension of statutes, handed down from the English Bill of Rights. It actually would support, in this context, a limit on the executive’s prerogative not to prosecute on the basis of self-proclaimed constitutional privileges.

David Rivkin: Peter makes the best case for his side, but, in my view, it is still unpersuasive.  First, I am not surprised that Congress has not espoused a robust view of Executive power.  The fact that the Executive has taken a consistent view that criminal prosecutions are a core aspect of the President's power is still probative and would be considered by any courts looking at this issue. 

Second, on the bribery matter, my point is that Congress cannot limit by legislation the President's ability to supervise or discharge U.S. Attorneys.  (This view, by the way, has venerable historical pedigree.  As described by Chicago-Kent College of Law's Harold J. Krent in April 16,2007 Legal Times, Grover Cleveland, a Democrat President, resolutely refused to provide the Senate with any documents relating to his firing of one George Duskin, the District Attorney for the Southern District of Alabama, noting by way of justification that the Senate could not "sit in judgment upon the exercise of my exclusive discretion and executive function," both of which were implicated in Duskin's dismissal.)  This being the case, it cannot legitimately investigate the circumstances surrounding the firing of this particular batch of U.S. Attorneys or any other U.S. Attorneys. 

Both Peter and I agree that the House could investigate corruption surrounding the exercise of even the most plenary of President's authorities, be it pardon power or firing of U.S. Attorneys, in the context of impeachment.  However, in order to bring this investigative authority into play, the House must indicate publicly and explicitly that it is seized of a possible impeachment proceeding, a step with major political and institutional ramifications.  Given the utter absence of any evidence of corruption here, this is an approach the Democrat-controlled House will never take.  To emphasize, it is profoundly illegitimate for the House or Senate committees to issue subpoenas for U.S. Attorney firing-related information, allegedly in aid of their non-existing legislative authority, which could have been supported only by the House-initiated impeachment proceedings. 

This situation evidences what I consider to be the most fundamental problems with how Congress these days is trying to micromanage the Executive; it does so in subterranean ways, primarily designed to avoid political accountability.  For example, if Congress wants to stop the U.S. involvement in Iraq, it should cut off all of the funds for the war against al Qaeda, instead of trying to rewrite the authorization to use force, or come up with unconstitutional bills micromanaging how the President should exercise his Commander-in-Chief powers in various theaters of ongoing military operations.  The bottom line is that Congress can almost always bring the President to his knees, provided it is willing to pay the political price. 

Third, Peter's points regarding the state practice is the most interesting evidence available to support his case.  However, upon careful examination, it does not really support his case.  In this regard, we know that the Framers did not just take what Blackstone or Montesquieu would have considered a full panoply of Executive powers and assigned them to the President.  To borrow Harvey Mansfield's famous expression (from Taming the Prince), they "republicanized" the Executive, by assigning some of the traditional Executive powers to the legislature.  This, however, was done crisply and explicitly in the constitutional text.  Unfortunately for Peter's case, the federal Constitution, unlike the constitutions of at least four of the five States he cites - Virginia, North Carolina, South Carolina, and Delaware, does not contain any provisions expressly vesting in the legislature or the courts the power to appoint prosecutors.  In this regard, the fact that the States made different constitutional choices - a point apparent not only from the examples cited by Peter but also from the fact that many States chose to elect their Attorney Generals, making them potentially not only independent, but politically and institutionally the foes of their Governors - only reinforces the conclusion that the Framers of the federal Constitution did not make the same choices.

Peter Shane: I will let my colloquy with David rest after making one final point.  David argues that the early state evidence is not compelling because -- on his assumption that criminal prosecution was generally understood to be executive power -- the decisions of various states to vest appointment authority over prosecutors in other branches demonstrates that they consciously made the decision to make an exemption from what otherwise would have been the each governor's executive power.  But this argument is circular; it assumes his conclusion.  A more faithful view of history, given the legacy of criminal prosecution in Britain, would be this: Criminal prosecution was not perceived in the late eighteenth century as inherently executive.  The framers of the federal Constitution left an infinite array of structural choices below the top-of-each-branch level to the discretion of Congress, limited only by the enumeration of the four specific modes of appointment that would be permissible (and, in the case of the judiciary, the provision of tenure during good behavior) and some very narrow consensus understandings of what executive and judicial power entailed.  The authority vested in Congress thus included substantial discretion to determine how prosecutors would be appointed and their discretion supervised.  The fact that five states expressly allocated the power of prosecutorial appointment to the legislative or judicial branches does not show that the prosecutorial power would otherwise have been treated as executive; it affirms that contemporaneous understanding of the "nature" of prosecutorial power did not place it inherently within any one branch.  In these states, the drafters had a firm conviction as to which branch of government ought to hold this power, and did not want to leave it to the legislatures in those states to determine otherwise.  The federal drafters left this discretion to Congress.