Executive Privilege and Congressional Oversight

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What is the proper balance between Congressional oversight and Executive privilege? As it becomes clear that Congress is not satisfied with the Mueller Report on its face, and it will seek to conduct follow-up inquiries on its own, it has requested an unredacted copy of the Mueller Report, and its supporting documentation, and several witnesses who were interviewed during the investigation, including the former White House Counsel. Historically, Congress and the Executive have resolved their differences on disclosure requirements and moved forward, without significant resort to the Judiciary. What will and should be the role of the courts in any upcoming litigation? Could a final court ruling enhance rather than limit the power of the Executive? These and other questions will be discussed by our experts.


Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation



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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Federalism & Separation of Powers Practice Group, was recorded on Wednesday, May 15, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     


Wesley Hodges:  Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is on Executive Privilege and Congressional Oversight. My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at The Federalist Society.


As always, please note that all expressions of opinion are those of the experts on today’s call.


Today, we are very fortunate to have with us Professor John C. Yoo, who is Professor of Law at the University of California at Berkeley School of Law and Visiting Fellow at the Hoover Institute, as well as a Visiting Scholar at AEI.


With us today, also, is John G. Malcolm, who is Vice President at the Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies, and Senior Legal Fellow at the Heritage Foundation. He is also the chairman of our Criminal Law practice group. After our speakers give their remarks, we’ll move to an audience Q&A, so please keep in mind what questions you have for this topic today. Thank you very much for sharing with us. John Yoo, I believe the floor is yours to begin.


Prof. John C. Yoo:  Great. Thank you very much. I’d like to thank The Federalist Society for having John and I back after our podcast on -- I’m sorry, teleforum/podcast on the implications of the Mueller report. And this is, I hope, a natural follow up. And it’s great, also, to be on with my friend and sparring partner, John Malcolm, from the Heritage Foundation. John, say hello to everybody.


John G. Malcolm:  Good to be with you.


Prof. John C. Yoo:  That’s it for you for the rest of the call. So we’re going to start. I’m just going to describe a little bit about the factual background and then turn it over to John Malcolm, and we’ll have kind of a discussion for a few minutes and then end with plenty of time for questions, in about 25 minutes. So the call’s prompted, I think, initially by the decision of the House Judiciary Committee to vote contempt of Congress against the Attorney General, Bill Barr, for refusing to hand over the full, unredacted version of the Mueller report. If you recall, the Mueller report was released. That found that the President had not engaged in any collusion with the Russians to try to influence the 2016 elections.


But then, more controversially and what was much of our discussion in the last teleforum, I think it made some strange judgements about whether the President had engaged in obstruction of justice. In response, the House Judiciary Committee, under the chairmanship of Congressman Jerry Nadler, demanded that the full Mueller report be handed over. If you’ve been following the story, you’ve seen that the Justice Department has made more than 90 percent of the report available but that it withheld information on three categories: one, grand jury information, which the Justice Department said would just be illegal to hand over under the Federal Rules of Criminal Procedure, classified information, and information that would either harm ongoing investigations or damage the reputations of people who are peripheral to the investigation.


The Justice Department made the latter two categories available -- of information available for members of Congress to read. But I think as of last reported, only a few Senators, all Republicans, had chosen to take advantage of the opportunity to review the Mueller report. But in no cases was grand jury information revealed. In addition, and, I think, more importantly, the House Judiciary Committee subpoena also extends to all of the investigatory files that the Special Counsel’s investigation pulled together. So we’re talking about millions of pages of documents, transcripts of interviews, particularly with the President’s closest advisors, and any other kind of evidence made from third parties that the Special Counsel was able to accumulate.


The Justice Department has, so far, pretty much said that they will make very little, if any, of that available. The Justice Department invoked what it called a sort of protective Executive privilege, saying that they may well choose to make some of it available. But they’re claiming Executive privilege over all of it in order to review the documents and the transcripts to make -- to determine which ones would be protected by Executive privilege and which ones would not be. Of course, the House Judiciary Committee has been making noises not just about referral of criminal contempt, which would be difficult to enforce since the Justice Department is in charge of enforcing those. And it seems unlikely -- not just unlikely. I think zero percent probability that the Justice Department is going to prosecute its Attorney General for refusing to comply with a contempt sanction seeking to get Executive privilege on secret documents.


But the House has also been making sounds about other interesting ideas like triggering inherent contempt, where they would send out the House Sergeant of Arms to try to arrest, I suppose, the Attorney General and bring him back to the Capitol. Good luck getting past the Attorney General’s security detail or even laying hands on the Attorney General, who, by all appearances, seems to be a burly fellow. He might be difficult for the House Sergeant of Arms to wrestle around with.


The only time I’ve ever seen the House Sergeant of Arms is when somebody opens the door at the State of the Union address. So that would be probably unlikely to happen. And the third would be a civil contempt lawsuit to try to get a judge to order the Justice Department to hand over those documents. There are other kind of privilege questions floating around, which we may get to also. For example, a House committee has also demanded that the IRS hand over President Trump’s tax returns. To which President Trump and the Secretary of the Treasury have said they would refuse. There are also efforts by other House committees to subpoena documents from third parties, such as banks and people who did business with President Trump in the private sector before he was President.


And the President’s personal lawyers, I believe -- not his government lawyers, his personal lawyers have gone to court to try to block that, as well. Those all sort of -- looming over all is President Trump made a declaration that he intends not to cooperate at all with any of these investigations and to refuse to hand over documents or make witnesses available for any of them. So that’s where matters stand now. And I turn it over to John Malcolm for his thoughts. John?


John G. Malcolm:  Thanks, John. Let me add a few thoughts. Everything, of course, you said was entirely accurate. Just to take you a step back even further, Bill Barr was under no obligation to produce any of the confidential report that he received from Bob Mueller. So back when we had an independent counsel, the Independent Counsel Act specifically said that the independent counsel shall prepare a report and shall produce that report to Congress, who no longer have an Independent Counsel Act. And the rules that govern special counsels say that a confidential report is prepared for the Attorney General. The Attorney General would have been well within his rights to say, “I’m hereby informing Congress that the Special Counsel has completed his investigation. There will be no further indictments. Have a nice day.”


Instead, Bill Barr chose to release this report to Congress and to the public. As John said, he initially produced a public report that contained -- about 10 percent of the report was redacted for the categories that John mentioned. He has now gone further and produced a report that is available to a select group of senators and congressmen that, I believe, only contains -- 1.5 percent of the report is redacted. And it’s only Rule 6(e) material. On the day that Bill Barr released the more redacted -- the 90 percent redacted report, Jerry Nadler issued this subpoena that was, as John mentioned, incredibly broad. The complete and unredacted version of the report, all documents referenced in the report, and all documents -- this is a quote, “all documents obtained and investigative materials created by the Special Counsel’s office.”


So not only every document, grand jury transcript, FBI 302 memorandum of interview, but presumably any notes that any of the attorneys or investigators -- their own deliberative process work product has also been subpoenaed. On May the 8th, which was the day the House Judiciary Committee was going to vote on whether to hold Barr in contempt, the Attorney General wrote a letter to the President and asked him to make a protective assertion of Executive privilege over all of these materials, which he did. And that same day, the House voted along party lines to hold Bill Barr in contempt. And Jerry Nadler announced that we are now in the midst of a constitutional crisis. The full House has not taken up the matter yet about whether to vote to hold General Barr in contempt.


So I think it’s important to note that a protective assertion of the privilege is not an actual assertion of Executive privilege. It’s really more of a place holder to say, “Woah. You’ve asked for millions of pages of documents, which by the way are not in the President’s possession. We’ve got to gather those documents and look at them and then decide what we’re going to give you and what we are going to have -- assert an actual Executive privilege over.” There is some significance to this protective assertion of a privilege. John correctly pointed out that there was no way that the Department of Justice was ever going to attempt to hold Bill Barr in criminal contempt.


There’s actually an OLC opinion, I believe, that says that, if a President asserts Executive privilege, which arguably extends to this protective privilege, and a lower level official complies with that by not producing the subpoenaed documents, that he can’t be held in criminal contempt. So it doesn’t really matter. He was never going to be held in criminal contempt anyway. But as John said, it is highly likely that the House is going to vote, probably again along party lines, to file a civil lawsuit. And we will be off to the races at a district court in the District of Columbia, at which point the President and his team will have to review all of these documents and determine whether he is going to assert the privilege, which documents will be covered by that assertion, and what the basis of that assertion will be.


Usually, an invocation of Executive privilege covers state secrets, diplomatic matters, stuff related to national security, law enforcement, sensitive information. There is an OLC opinion that says that the privilege -- it’s not a Court opinion. It’s an OLC opinion -- that the privilege covers open investigations. And some of these matters are still pending. There’re cases still pending that the Special Counsel indicted that have now been handed off to other offices -- and also would cover sensitive law enforcement techniques. There’s also protections related to the deliberative process in terms of how the President makes decisions. And of course, there is an assertion for direct presidential communications.


There’s never been a court ruling about whether an assertion can be made over grand jury material. A lot of the material that’s being sought here is grand jury material. But, of course, there’s the statute that governs Federal Rule of Criminal Procedure 6(e) that says -- and Rule 6(e) lays out very particular exceptions to the prohibition against the disclosure of grand jury material. And congressional inquiries are not one of the exceptions it laid out in Rule 6(e). Significantly, just last month, the D.C. Circuit issued an opinion in a totally unrelated case, McKeever v. Barr. It involved a reporter who wanted to get grand jury material from a decade or two ago for a book that he is writing.


And there had been some case law in the D.C. Circuit suggesting that district courts had some general supervisory authority over such matters and could great prudential exceptions to grand jury secrecy rules and release information. And the D.C. Circuit, last month, in a divided opinion, said, “Nope. There is no general supervisory authority over grand jury material for district court judges,” and that the only time grand jury material can be released is when it strictly complies with one of the exceptions laid out in Rule 6(e). Any privilege invocation would have to involve official government matters. You can easily see how some of this material -- the President’s decision about whether to keep Jeff Sessions or fire Jim Comey or whether to argue that there were conflicts that precluded Bob Mueller from proceeding -- that could fall within the matter of official government matters since these were Executive Branch officials.


Other matters such as ruminations about how to react to press inquiries about the infamous Trump Tower meeting that involved Don Jr., Paul Manafort, Jared Kushner -- a little harder to see how it fits in that category. There will be questions about whether the privilege has been waived by the President by allowing these people to appear before the Special Counsel and be interviewed and by allowing the full report to be issued to the public. I think if a court finally gets this they’re going to take a very dim view of the fact that this was an overwhelmingly broad subpoena and that there was no real attempt to negotiate with the Department of Justice or to compromise on the breadth of that subpoena.


You could compare that, if you will, the congressional subpoena that was issued to Eric Holder in response to the Fast and Furious investigation. Over the course of like 15 months, they negotiated. The subpoena got narrowed, and so there really was, clearly, good faith attempt to negotiate the scope of that subpoena. None of that happened here. I think a court may also inquire whether the entire inquiry by the House Judiciary Committee is a legitimate inquiry. This is not an impeachment inquiry, at least not yet. Courts have held that Congress’ oversight authority is pretty broad, but that, nonetheless, it has to pertain to some potential legislation or to an appropriations issue. A little hard to see how some of these issues -- it would fit neatly into an impeachment inquiry.


But in terms of potential legislation or appropriations, hard to see that. The same thing, by the way, with respect to the President’s tax returns. And I guess the two other final points that I would make would be, one, I wonder whether Jerry Nadler cares about any of this or whether his real goal is not so much to get these document as it is to just pick a fight with the President to try to score political points so that he can keep this issue alive and kicking throughout the entire presidential campaign. I suspect that that’s a lot of what’s going on. And then the last thing is are events going to kick all of this into the background? So Michael Horowitz -- one, Bob Mueller may still testify before the House. That will be a very interesting hearing.


Two, sometime later this month or early next month, Michael Horowitz, the Department of Justice’s Inspector General, is going to come out with his report about potential FISA abuses. That’s going to, in all likelihood, be a bombshell report. There’s just been this referral by General Barr to the U.S. Attorney in Connecticut, John Durham, who has a reputation of being a dogged and completely impartial prosecutor. He’s been appointed to look into special matters in the past by three Attorneys General, both Republican and Democratic Attorneys General. And he’s now going to look into alleged spying into the Trump campaign -- whether there was an adequate predicate for that.


And then, lurking in the background—not really sure exactly what he’s doing—but 16 months ago, Jeff Sessions, when he was Attorney General, also designated John Huber, the U.S. Attorney in Utah, to look into how the FBI has handled sensitive investigations in general, including, presumably, both the investigation into the Trump campaign and also into Hilary Clinton and the email server. He’s still -- whatever it is he’s doing, he’s still doing it. And I presume we will hear something about that inquiry in the near future. And my guess is that that wave of stuff still to happen may end up washing all over this entire contempt proceeding that’s happening in the House Judiciary Committee. Back to you, John.


Prof. John C. Yoo:  I’m glad you covered even more the issues having to do with what might happen in the lower courts and the grand jury information and the D.C. Circuit opinion that had just come out in McKeever. Let me take my points in a different direction, which is what this means for separation of powers and for case law and the presidency, in general. So it’s very interesting what John said about the accommodation process and negotiations and then how the lower courts treat it. One thing that we don’t really have is a Supreme Court opinion about this civil contempt process and using it for the resolution of essentially separation of powers disputes between the President and Congress.


I think there are two competing -- conflicting interests that are both legitimate here. Congress has the power of oversight. It’s a power that the Supreme Court has recognized -- the case is McGrain v. Daugherty from, I think, the 1920s. And the Court said Congress has the power to compel individuals to appear and to give testimony and to get documents, as long as it’s -- and the phrase is “to exercise a legislative function.” Here, I think Congress could make a claim that they want to see how the money was spent for the Special Counsel investigation. They want to make sure that the Justice Department is enforcing the laws and whether they want to change any of the laws.


On the other hand, as everybody knows, there’s United States v. Nixon, which identified the President’s interest in confidentiality in communications between the President and his or her close aids and advisors, and as John mentioned, particularly in the areas of sort of core Article II competence – law enforcement, national security, foreign affairs, diplomacy. The thing is that we haven’t really had a Supreme Court case since Nixon. You remember Nixon basically subjected all these disputes to a balancing test.


And in the Nixon case itself, the interests of the President, what the Court called kind of a generalized claim of confidentiality, was overcome by what the Court found. Not surprisingly, because it was the courts who were on the other side, the Court’s interest in getting information that it thought would be necessary for the fair prosecution and trial of the Watergate burglars, essentially, the Bill of Rights. That may not apply here. We don’t know if the Court would even apply this balancing test, although I suspect it would. But we don’t know. There’s been no [Inaudible 00:20:33] test as to a dispute between Congress and the President. The Supreme Court really hasn’t grappled with that.


The second thing is Nixon doesn’t address the things that are at issue here. What about information that falls within the core competencies of the Executive Branch—here, obviously, law enforcement—but don’t involve the direct communications between the President and his advisors? So clearly, some of the stuff already in those underlying files has got to be Executive privilege. For example, a lot of the maybe most scandalous or damaging information comes from the accounts of conversations between President Trump and Attorney General Sessions and President Trump and White House Counsel Don McGahn. Even under Nixon, you would think those would get Executive privilege.


Those fall right in the direct communications between the President and his advisors. It’s not a generalized claim. It is specifically about the carrying out of the President’s Article II “take care laws are faithfully executed” function. So that’s an area that you could see a Court going in. A third area is the Court -- and this is sort of more my personal editorializing here -- the Court could also say, “What are we doing getting in between the President and Congress in a fight over producing information?” You could see the Court in Nixon saying, “Look. The President isn’t going to tell us, the courts, whether and when we need to get information to make sure a fair trial goes on.”


But this is not that. There’s no judicial interest at stake here. This is a straight on conflict between the President and the Congress. And essentially, what the Congress has done is surpassed a law, giving it the right to drag the Courts into the middle of it. I don’t see why the Court couldn’t just well say, “This is really a political question. There’s no real individualized harm here. The House doesn’t really have injury, in fact. They’ve got their own constitutional tools that they can use.” And look, as a member of the staff the Senate Judiciary Committee back in the ‘90s when we had a lot of these conflicts, the Senate and the House -- they know how to get -- this goes to John’s point do they really want to win.


The House and the Senate have plenty of tools they can use to pry this information loose if they want to, from funding to more oversight hearings to legislation. Congress usually always gets this information. In the end, it’s just a matter of what the conditions of access are and how long it takes. So maybe the courts could say this is one of those cases where, as James Madison said, ambition has to counteract ambition, where the presidency and the Congress should use their own powers against each other to resolve this separation of powers dispute. But it’s not one that the courts should be adjudicating because there’s no sort of Bill of Rights or individual constitutional right at issue.


So I agree with John. I think Nadler is clearly rushing things by months -- many, many months to try maybe to provoke something that goes to court, in addition to creating all this sort of political controversy. On the other hand, it looks like, to me, that President Trump doesn’t mind having this fight either. If you were going to try to expand Executive privilege, this might be some of the best facts that you could go to court with, even though the lower courts might here these civil contempt cases and might try to apply this Nixon balancing test. If it gets to the Supreme Court, as I expect some kind of dispute would, I just, in closing note, that the five conservative justices on the Supreme Court -- two of them worked in the White House Counsel’s Office, John Roberts and Brett Kavanaugh. And their jobs were exactly to fight for the President’s right to have confidentiality.


I think both of them in their confirmation hearings -- there were questions about it because they had done work exactly on expanding the President’s privilege. I think Justice Gorsuch was in the Justice Department at the time that it was defending the Bush administration from congressional inquiries. And of course, Justice Alito was a U.S. Attorney, and Justice Thomas had been a member of the Executive Branch, as well, and has a particularly broad theory of Executive power -- perhaps broader than anyone since Chief Justice Rehnquist. So I could see the calculus being, on the Executive Branch, why not? If there’s going to be a fight and we’re going to have to go to Court and maybe we can expand Nixon, let’s have it here.


It may not actually be the result that the House has in mind. So let me turn it back to John Malcolm, if you have any concluding thoughts, and then let’s open up to questions. John?


John G. Malcolm:  Sure. I agree with everything you just said. You also had Elena Kagan who was in the SG’s Office and then worked in the White House Counsel’s Office for a while, too. She was in the White House Counsel’s Office under Clinton and the SG’s Office under Obama. So she may have views on this. You’re right. Given how often Executive privileges are sort of asserted, there’s not a lot of case law out there. And Nixon was in a very different context. It had to do with judicial proceedings and ongoing Special Counsel investigation and then an actual trial of the Watergate burglars and whether or not that material was going to be produced for that trial. There is a decent amount—but not a huge amount—of case law within the D.C. Circuit.


And most of that are district court opinions. A couple of them have involved -- at least a couple have involved tussles between Congress and the Executive Branch. So there was the fight with the Bush White House about the U.S. Attorney firings. And then there was Eric Holder in Fast and Furious. But there are a lot of unanswered questions. And you’re also correct that while courts did make ruling in some of those cases, ultimately, they were never really pushed to the circuit court level. And they certainly weren’t pushed to the Supreme Court level. And compromises ended up getting worked out, usually with Congress getting most of the material that it wanted. And here, yeah, the President may want to push that.


There has been, as I said, no negotiation. And the scope of the subpoena is unbelievably broad, not only to documents, but presumably to get investigative material, again, created by the Special Counsel’s Office -- so clear work product by the lawyers who were working on that under Bob Mueller. So if you’re going to pick this kind of a fight, this may be a good one to pick. But again, I suspect that this is being done largely for political purposes. And after a while, a lot of this will go away. And some of this will be defanged, particularly if Bob Mueller does appear and answer a lot of these questions himself. So with that, maybe we should open it up to questions.


Wesley Hodges:  Well, very good. Thank you both for your remarks. Here is our first audience caller.


Michael Rossman:  This is Michael Rossman, Center for Individual Rights. Thank you again, John and John, for another outstanding teleforum. Very informative, very interesting. I was wondering, John Malcolm mentioned in passing the issue of waiver. And I’m wondering if the two of you could lend your expertise to that issue. To what degree, if in fact things were disclosed to the Special Prosecutor, can the President or the Executive Department still claim that they have not yet waived any kind of Executive privilege?


Prof. John C. Yoo:  How about I just start and then John Malcolm follow up? So I think this is a really interesting issue. And one of the things about Executive privilege is there’s no real handbook or doctrine about Executive privilege and how it works. So I think what, basically, Executive Branch lawyers have done is sort of compared it or borrowed a lot of the principles of attorney-client privilege and tried to sort of develop a kind of law there. But when it comes to the Supreme Court, we have very few cases, actually, about what actually is privilege, what does the privilege extend to, as you point out in your point of question, how do you waive it, and so on.


So if we compared it to attorney-client privilege, what I think Executive Branch lawyers would say is that you haven’t waived the privilege as to things that are not made public in the report because the privilege, here, was not -- first of all, let me step back. The President of course said all his staff should cooperate and interview with the Special Counsel and that documents that the Special Counsel handed over would be handed over without any claim of Executive privilege against the Special Counsel. But you’re still talking about two entities -- say the White House or the staff and someone else who works in the Executive Branch.


So it’s not clear to me that the privilege has been waived as to the huge mass of information in the investigatory files. It’d be sort of like if information or a case is transferred between lawyers in the same law firm. You don’t lose attorney-client privilege. Of course, I think there’s no privilege, and I think President Trump when he says, “I’m claiming Executive privilege over the whole thing” -- he can’t claim Executive privilege over the report itself. The report itself is public. But I don’t think that making the report itself public waives everything in the attorney-client privilege -- Executive privilege.


Just like with attorney-client privilege, your attorney makes some document public or hands over something in discovery. That doesn’t mean all attorney-client privilege is waived. But again, I think it’s important to realize that there isn’t really, I would say, settled law at the Supreme Court level that tells us -- gives us much guidance about this.


John G. Malcolm:  Yeah, Michael, it’s an excellent question, and I agree with what John said. You have to look at privilege waivers in the context in which they arise. For instance, if this were in the middle of a criminal trial or a civil trial and somebody had testified on direct examination and told their side of the story and, all of a sudden, they get asked cross-examination questions that challenge that tale, you can’t use the privilege as a sword but not a shield. So you can’t sit there -- and maybe I got that wrong. You can’t sort of tell your side of the story and say, “Now, I’m going to clam up.”


If you have talked about a particular issue, you have waived the privilege with respect to that issue in that context so that your account of the facts can be challenged. This isn’t that. I think that John is absolutely right that, if, say, Don McGahn went and talked about his conversations with the President on a particular matter pertaining to, say, potentially firing Bob Mueller or whether to get Sessions to try to un-recuse himself, maybe the privilege applies with respect to that but not any other conversations that he had with the President about any other topic. Interesting things that are, I think, unresolved -- so John’s right. The report is the report.


The report’s been disclosed. Can’t put that genie back in the bottle once it is out. But with respect to all the information obtained and investigative materials obtained by the Special Counsel’s Office -- so all of these references to conversations with George Papadopoulos and conversations with Don McGahn and conversations with Corey Lewandowski or whoever -- there are statements in the report. But behind all of those statements are going to be reams of notes of the interviews conducted by FBI agents and the investigators. So Don McGahn supposedly went and spoke with the Special Counsel’s Office for 30 hours, and there are going to be notes of those 30 hours of conversation.


So it is unclear. Well, okay, the President allowed him to testify as summary of what Bob Mueller and his team viewed to be germane for purposes of this confidential report contained in the report. But has he waived it with respect to all the other statements that are contained in these FBI 302s? Another issue that may come up is not so much a waiver issue, but John referenced that there’s very little to go by here. So a court might analogize this a little bit to the attorney-client privilege in other contexts. And of course, there is a crime fraud exception to the normal attorney-client privilege. And I suppose Congress might make the argument that that crime fraud exception is applicable here.


And then, what might end up becoming important was this whole dispute that took place, and that appears to still be ongoing, between Bill Barr and Bob Mueller about what is an appropriate legal theory for obstruction of justice. So you’ll remember that Bill Barr, when he was just out there in practice at Kirkland & Ellis, wrote a letter to Deputy Attorney General at the time, Rod Rosenstein and Steve Engel, who’s the head of the Office of Legal Counsel, that says, “Look. I think with respect to core Article II prerogatives -- and that includes whether to retain or fire Executive Branch officials and whether to take actions that might curtail the application of laws under the Take Care Clause -- that you just plain and simple can’t indict a President for engaging in those sorts of actions.”


And Mueller, in his report, says that he respectfully disagrees with this and thinks that, depending on the President’s intent when he takes those actions, somebody could be indicted, at least theoretically, for obstruction of justice for this. And when Bill Barr had his press conference, he made an allusion to the fact that he didn’t agree with Mueller on all of these theories. But for the sake of argument, he was going to assume that a President could be indicted, ignoring the OLC opinion, and that just taking Mueller’s report at face value after consulting with career attorneys -- that he didn’t think a prosecutable case was there.


Well, those theories may end up becoming very important. If you think that a President’s determination about whether to keep or fire an Executive Branch official is completely immune from inquiry, you get one result. If you end up coming to the conclusion that, no, depending on the President’s intent, those actions could constitute the actus reus of an actual criminal act, then potentially the prime exception is implicated. This is all virgin territory.


Wesley Hodges:  Very good. Thank you, caller. About four more questions in the queue. Let’s steadily make our way through. Here’s our next audience caller.


Caller 2:  Yeah.  I wanted to direct this, I guess, to John Yoo first. First of all, on the political question doctrine, if I’m correct and you’re correct that this is a political question, that goes to the justiciability and to the jurisdiction of the district court. So if they find it is a political question, then they never reach the question of Executive privilege. Is that your understanding?


Prof. John C. Yoo:  I agree with that. If they find it’s a political question, then essentially what the Court is saying -- and this is following from Nixon v. U.S., and it’s a different Nixon. Nixon always loses, but it’s Judge Nixon, not President Nixon. So I think the Court says, “This is actually not an Article III case or controversy,” much like the Supreme Court has never decided cases about war powers, for example, between the President and Congress. The Court has also -- there was a case involving -- in the Clinton administration, about the line item veto, where the Court tried to avoid the question of whether Congress -- certain members of Congress could sue over the line item vetoes unconstitutional -- but it could hear the case if it was an individual or a state, in that case, was suing.


I have a hard time thinking that this is what the framers would have expected -- to see the President and Congress fighting about something like this. This is really about their powers against each other and for Congress to sort of be able to just sort create a cause of action to try to draw the courts in.


Caller 2:  So even if a court decides it’s justiciable, then we need to go to the next question which isn’t it really Chevron? We have the Attorney General interpreting a rule -- a regulation that is entrusted to him -- or it’s actually Auer deference. And he’s exercising his discretion not to release stuff, which the rule says he doesn’t have to release. And then, again, we don’t get to the question of Executive privilege if this gets knocked out on a Chevron or Auer deference basis. Am I correct?


Prof. John C. Yoo:  If the Court says that it is justiciable -- put aside my political question argument. I’m not sure about whether this is an Auer/Chevron issue in this respect. Of course, the Attorney General didn’t have to release the Mueller report at all. And I think you’re right that he will get quite a bit of deference under existing case law. Some people think Auer might get overruled this term. But I think, still, you just look at the plain text of the regulation. And as John mentioned, it doesn’t say anything requiring the Justice Department to turn over the full report. So Attorney General Barr has already gone past that.


But the Congress can still just say -- regardless of what the regulations say, Congress can just still demand to see the investigatory files. They’re not claiming that they have a right to them under the regulations. They’re just saying “We have a right to them under our constitutional oversight authority,” regardless of what the regulations say, regardless of Auer or Chevron. Just like they could say, “Look. We have the right to conduct oversight and investigate any prosecution, any kind of administrative action, as part of our right to see how money is spent and our right to see how laws are being enforced and whether they need to be amended.”


So I don’t think Chevron and Auer -- they might answer the question about how much of the report is to be released and if any investigatory files ought to be released, in terms of the regulations themselves. But they don’t, I don’t think, go to this bigger constitutional fight between oversight power and executive privilege.


John G. Malcolm:  If I could just add, I think that’s right. It would be too cute by half. So the Supreme Court, in the one Executive privilege case that they’ve decided—the Richard Nixon case—Richard Nixon asserted an absolute privilege, in that he could decide what gets produced or not. And the Supreme Court unanimously said, “No, it’s a qualified privilege, and you don’t get to decide that.” So if, all of a sudden, the Court did decide that this was a justiciable issue but the Attorney General said, “Well, it’s a regulation. We decided under our interpretation of this regulation that it is, in fact, an absolute privilege,” I don’t think a court would go along with that for a moment.


Wesley Hodges:  Thank you, caller. We do appreciate your questions. We do have three more questions in the queue. Next caller, you are up.


David Burge:  This is David Burge in Atlanta. I should note I was a sparring partner with John Malcolm when we were both law clerks at the 11th Circuit, more than a few years ago.


John G. Malcolm:  Yeah. It was. Good to talk to you, Dave.


David Burge:  As a good federalist, I am interested in what the text of the Constitution says and doesn’t say about the whole concept of oversight. I understand it’s an implied power. It’s not enumerated, but it just strikes me that a lot of what is called oversight by both parties is really just flagging policy differences between a House that was elected from one party and other branch that was elected by the other party. And that was a decision the voters made. Or as John said, kind of gathering ammunition for the 2020 election that’s coming up.


And it has very little to do with what legislation might be enacted or how efficient the Executive Branch is. Perhaps this is a little naïve to try to be that narrow, but it gets a little frustrating to hear congressmen yell, “Oversight. Oversight.” And they’re really not reviewing the administration of government. They’re just flagging political issues. And I’ll let y’all address it on that basis.


John G. Malcolm:  You’re right. It’s very easy to just yell oversight, and I have -- in my opening remarks, I said it’s hard to see how this could really deal with potential legislation or an appropriations issue. It’s not an impeachment inquiry, at least not yet. So you can shout oversight and have it be protectoral, I suppose, in the same way the President could say, “It’s privileged,” and have that be protectoral, too. The constitutional basis is just rooted in separation of powers and Congress’ Article I power to create laws or to engage in the appropriation process.


So their oversight responsibilities would include how are laws being implemented that have been enacted and whether or not changes -- whether not amendments to existing laws need to be made and how is the government’s money that was appropriated by Congress being spent. Is it being spent appropriately, or should it be spent elsewhere? Now, sometimes, that kind of an invocation sounds incredibly protectoral. So one thing that was alluded to by John in his opening remarks is the ongoing fight about Congress’ attempt to get the President’s tax returns.


And the hook that they are using is that the IRS has, as one of its functions, to perform audits of the President’s tax returns. And we want to see how that’s operating. Like please. That is, at least to me, about as protectoral sounding as one could get. So it’s at the extreme edges of Congress’ legitimate oversight prerogative. But the constitutional basis for Congress making these sorts of inquiries is rooted in separation of powers and their legitimate ability to pass laws and to control the purse strings.


Prof. John C. Yoo:  John did such a good job. I have nothing to add. Plus, I don’t want to gang up and invite other alumni of the 11th Circuit to come pile on John, however much fun that would be to watch. So I’ve got nothing to add.


Wesley Hodges:  Very good. Here comes our next caller.


Gary Wheaton:  Hi, guys. This is Gary Wheaton up in New Hampshire, again. That last question segues right into mine perfectly, unfortunately or fortunately -- that 1924 law giving the House Ways and Means Committee tax review -- that type of thing. I think it’s related to this question because -- and tell me if I’m wrong, I guess, is my question. Let’s say this does get to the courts, circuit or above. Would the Court decide that Congress needs some type of legislative purpose or separation of powers issues or, like the last caller was asking about, to get tax returns from any private individual, before they’re in office. So trying to get Donald Trump’s tax returns from 2013 before he was in office would be the same as getting any private -- potentially the same as any private individual.


So can Congress use this 1924 law to get my tax returns with no legislative purpose involved or no oversight ability -- just arbitrarily say, “We can get anybody’s tax returns just by asking for it”? Some of the courts might find that this 1924 law is too broad and non-constitutional is what I’m thinking. But tell me if I’m wrong.


John G. Malcolm:  Well, I don’t know the parameters of this 1924 law, so I can’t really comment on that. But I do have a few things to say, which is, of course, one of the imposed articles of impeachment against Richard Nixon was his abuse of the IRS by demanding tax returns of his political enemies be produced to him and also that audits be conducted of these people. As we saw with the whole scandal involving the Tea Party groups having their tax-exempt status either denied or slow walked, weaponizing the IRS is an incredibly dangerous thing. I do think that one of the arguments that’s going to be made by the President’s personal attorneys is that this is not part of a legitimate oversight function. It implicates his privacy interests.


I would note that the New York legislature is about to do something incredibly dangerous, in my opinion, and clearly politically motivated. Which is they are on the verge of passing a law that says that when they get -- the New York authorities get a congressional subpoena for somebody’s tax returns, that they can comply with that, despite the existence of previous privacy laws. I don’t think there’s really any question that this is all directed at producing the President’s tax returns that he filed with the state. And of course, up until the time that the occupied the White House, he was a New York resident.


So there are some people who are itching to get the President’s tax returns, for whatever purposes they might have in mind. And it’s a dangerous road to go down. I think that the basis for the Congressional inquiry, in terms of oversight of how the IRS conducts these audits, is pretty flimsy. But this is now just starting to get argued in court.


Prof. John C. Yoo:  One thing just to add about tax documents and everything -- that’s interesting and also was something we just don’t know about because of the few cases we have about Executive privileges. Can a President claim any kind of privacy rights or privilege rights that go beyond what a private citizen could claim for the things that President did before they took office? You would generally think not. But what John is raising the question of is what if these kinds of requests and so on are deliberately being done to interfere with the President’s ability to perform his constitutional office? What if they’re being done purely for political harassment with no real legitimate legislative function involved?


This was an argument that President Clinton made during the Clinton v. Jones case. If you recall, this was a case -- Paula Jones claimed that President Clinton had sexually harassed her as governor, not as President but as governor, and filed the lawsuit that went all the way to the Supreme Court. And one thing the Court said is that you don’t have this kind of immunity while you’re President from things that you did before you were President. You’re still a person. But then the Court said rejecting this idea that these kind of civil lawsuits could interfere so much with the job -- that they expected courts to try to use their ability to schedule and control the proceedings to prevent any kind of interference. But what if -- this goes beyond that, certainly in terms of scale and maybe in terms of the intent, as well, of the people behind the request.


On the other hand, it seems to me the request for the taxes seems facially legitimate. I’m trying to think -- I can’t think cases in the separation of powers area where the courts have said, “Okay. Congress has a facially legitimate ground on which to request information from the Executive Branch, but we’re going to treat it as pretextual because we know that the real reason is not oversight. The real reason is partisan political motive.”


I just don’t think those cases -- I’m trying to think. If there are, they would be in the McCarthy-era cases. But I always think that in those days—the McCarthy cases—the Court always found a kind of procedural or technical issue, like saying “Oh, this sub-committee or this committee didn’t have the proper legislative delegation from the House or the Senate” to try to scale back the request, rather than to look at the sort of ulterior legislative motive. Mind you, this is not a good argument for the Trump administration to make, given that in Hawaii v. Trump and the other cases about Executive privilege -- I’m sorry, Executive power, the Court’s making -- the Executive Branch is making a similar claim that you have to accept the facial legality of what we’re doing. And you can’t sort of peer into trying to figure out the President’s state of mind as a way to color what he’s doing and to trigger some kind of enhanced review.


John G. Malcolm:  I agree with that, except for that was at least in the context of national security where presidents have been given additional solicitude. But I think you’re right that courts are going to be very, very reluctant to declare that Congress or some congressional committee -- if they can put forward a facially legitimate reason, they’re going to be very reluctant to say, “Oh, come on. We really know what you’re doing here.” That’s pretextual.


Wesley Hodges:  Well, caller, thank you so much for the question. Looking at the time, I believe it is about time to wrap up the call today. John Malcolm, John Yoo, do you have any additional comments before we end the call?


John G. Malcolm:  No, it’s been great being with you and always a pleasure being on a teleforum with John.


Prof. John C. Yoo:  I agree, and I’m glad -- I hope this is the first of many because Trump and the Mueller report are just great for business.


Wesley Hodges:  Well, we certainly do appreciate you joining us and hope to have you again in the future. So on behalf of The Federalist Society, I’d like to thank you for the benefit of your very valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining us today. This call is now adjourned.


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