Glenn Greenwald has argued that the showdown between Congress and President Bush over executive privilege is an example of one branch of government asserting extraordinary and unprecedented powers that properly belong to another branch. He says that the overreaching branch is mounting an “assault on prosecutorial independence.”
He’s right about that. But he’s wrong about which branch is out of control. It’s not the executive branch. It’s Congress.
We are witnessing an attempt by Congress to take over a core function of the executive branch: the duty to execute the laws, which includes the discretion over when to prosecute violations of criminal law. Despite what Big Media would have you believe, this controversy isn’t about President Bush exerting undue influence over United States Attorneys. It’s about Congress trying to usurp the executive’s constitutional powers, by trying to force the Department of Justice to bring a prosecution that DoJ believes should not be brought. And it’s about congressional attempts to destroy any notion of executive privilege, by summoning executive officials before various congressional committees to interrogate them about high-level executive deliberations.
President Bush’s arguments on these issues are consistent with similar assertions of privilege made by at least six presidential administrations — both Republican and Democrat — since the 1950s. His position is supported by case law, logic, and the structure of the Constitution.
The controversy has two aspects: whether executive privilege prevents Congress from questioning Harriet Miers about high-level executive deliberations, and whether Congress may mandate that the executive branch prosecute her for her failure to appear.
First, let’s get a quick refresher on executive privilege — and who better to give it than our old friend Pat Leahy, in a lecture delivered during the Clinton years, back when Leahy actually believed in executive privilege:
Executive privilege is used by the President and the executive branch to shield presidential communications, advice, and national security information from disclosure in judicial proceedings, congressional investigations and other arenas. While the proper scope of executive privilege is the subject of much debate, at a minimum, it covers presidential communications, and may also protect the decision-making, or deliberative process, of the executive branch in general.
Courts have recognized a “presumptive privilege” for presidential communications that is grounded in “a President’s generalized interest in confidentiality” and is viewed as important to preserving the candor of presidential advisors and protecting the freedom of the president and his advisors to “explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” U. S. v. Nixon, 418 U.S. 683, 708, 711 (1974); In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997). This privilege is “inextricably rooted in the separation of powers under the Constitution” and “flow[s] from the nature of enumerated powers” of the President. Id., 418 U.S. at 705; 121 F.3d at 743.
According to a recent D.C. Circuit case, “[t]he President can invoke the privilege when asked to produce documents or other materials that reflect Presidential decision making and deliberations and that the President believes should remain confidential.” Id., 121 F.3d at 744. As to the scope of this privilege, the court found, in the context of the criminal proceeding, it to cover “communications made by presidential advisers in the course of preparing advice for the President, . . . even when these communications are not made directly to the President.” Id. at 751-52.
I recognize that the presidential communications privilege is not absolute. For instance, in the context of a criminal case (one of the Watergate cases), the Supreme Court found that an assertion of executive privilege “based only on the generalized interest in confidentiality . . . must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 418 U.S. at 713. In the context of a congressional investigation, the privilege would be more difficult to overcome and require a showing that the information sought to be obtained is “demonstrably critical to the responsible fulfillment of the Committee’s functions.” Senate Select Committee v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974). This would be a difficult task in this matter given the peculiarly executive nature of the clemency process.
Similarly, dismissal of U.S. Attorneys is a core executive function.
The U.S. Attorney controversy is not Watergate. Congress is not conducting a criminal investigation. The absence of an ongoing criminal investigation is a critical fact which, as my friend William Dyer has cogently argued in this post and this comment, makes the current situation
much less like the Nixon Watergate tapes case, United States v. Nixon, 483 U.S. 683 (1974), in which the assertion of executive privilege was held to be outweighed and the qualified privilege overcome, than it is like the Cheney/national energy policy policy group case, Cheney v. United States District Court, 542 U.S. 367 (2004), in which an executive privilege claim was sustained.
Absent a criminal investigation, Congress simply can’t summon high-level officials to Capitol Hill and give them the third degree about their conversations with the President on matters squarely within his executive power, such as whether to retain or dismiss a U.S. Attorney. If Congress could do that, executive privilege would disappear.
And I know that would upset Pat Leahy very much — because he takes it very seriously.
But if there is anything worse than Congress trying to abolish executive privilege, it’s Congress trying to usurp the President’s core function of determining when to prosecute a criminal case. I had an e-mail exchange about this recently with Prof. Peter Shane of Ohio State University’s Moritz College of Law. Prof. Shane is a very genial and bright man who completely disagrees with me on these issues. I contacted him because he was quoted in an L.A. Times article as an expert on this issue.
The views of the L.A. Times‘s favored expert strike me as sweeping and quite radical. You can be sure that I will not distort his views and get away with it, for two reasons: 1) I have set forth our entire correspondence in a separate post, so that you can see our exchange for yourself, and 2) he has been popping up in the comments here, and I expect him to be monitoring this comment thread as well.
Prof. Shane believes a special counsel should be appointed to present Harriet Miers’s contempt citation to a grand jury, based on a statute that purports to require the U.S. Attorney for D.C. to present to a grand jury all citations for contempt of Congress. But what I find even more startling is his view that it might very well be proper for Congress to mandate a prosecution of an individual by the Department of Justice for contempt of Congress — even if DoJ believes that such a prosecution is not warranted because it believes the individual has properly invoked executive privilege.
I wrote Professor Shane to get his reaction to Eugene Volokh‘s views on the matter of forcing DoJ to prosecute an individual for contempt of Congress, when DoJ believes the person has properly invoked executive privilege. Volokh approvingly cited a Reagan-era memo on the matter, and concluded:
My tentative view, then, is that when the Justice Department takes the view that a witness is properly claiming executive privilege, it should not prosecute the witness for contempt of Congress, and any attempts by Congress to force it into such a prosecution are unconstitutional. Congress retains tools to vindicate its interests. It’s just that the tool of forcing the Justice Department to prosecute is not a permissible one.
Did Prof. Shane agree? I wanted to know, so I sent him a link to Prof. Volokh’s post and asked him if he agreed. Anyone who reads through the entirety of our correspondence will see that I pressed hard time and time again for an answer to the core questions: 1) when the Justice Department takes the view that a witness is properly claiming executive privilege, should the DoJ prosecute the witness for contempt of Congress? and 2) may Congress constitutionally force DoJ to prosecute under these circumstances?
Prof. Shane firmly opined that Congress may constitutionally require DoJ (or a special counsel) to present a contempt citation to a grand jury. In arguing this position, he advanced a startling claim that I had not heard before, namely, that criminal law enforcement is not an inherently executive function:
The statute does deprive the executive branch of some discretion it ordinarily enjoys — namely, whether to go to a grand jury. However, as in Morrison v. Olson, this strikes me as a limited incursion into ordinary executive discretion, limited to a context in which the executive’s conflict of interest is painfully obvious. This does not deprive the President of any policy making discretion that was deemed in the eighteenth century to be inherently executive, because there was no eighteenth century consensus that criminal law enforcement was an inherently executive function, much less that the “chief executive” was entitled to control all policy making with regard to criminal law enforcement.
(All emphasis is mine.) Prof. Shane reinforced this view in a later e-mail:
I do not believe the framers of the Constitution regarded policy discretion involved in pursuing criminal prosecution to be inherently executive in nature.
Now, Prof. Shane is regarded as a separation of powers expert and I am not, so I will avoid making any unequivocal pronouncements here. But I admit to being shocked by this statement. If he monitors this thread, I’d love to get him to elaborate on the evidence supporting this view of his. Because it seems quite at odds with everything I thought I knew about the executive function.
After all, Art. II, section 3 of the Constitution states that it is the President’s duty to “take Care that the Laws be faithfully executed.” In U.S. v. Nixon, Chief Justice Burger conceded that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . .” The Reagan-era memo cited by Volokh quotes the case of Springer v. Phillipine Islands, 277 U.S. 189 (1928) in which the Supreme Court said:
Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.
That memo also quotes James Madison to the effect that “appointing, overseeing, and controlling those who execute the laws” is a core executive function.
And Eugene Volokh’s post on the matter says that it is a “quintessentially executive decision whether a federal prosecutor would prosecute someone in federal court.”
I agree. I find it impossible to imagine a legislative body ordering me to prosecute someone. I would think that would be completely improper.
So Prof. Shane and I are coming from quite different places on the issue of whether prosecutorial discretion is an aspect of core executive power. But I’m always open to being educated.
Getting to the specifics, I pressed Prof. Shane on the question of whether Congress could make DoJ go forward with a prosecution. As he stated in the L.A. Times, he told me that he believes that the law has no exceptions; a U.S. Attorney or special counsel must refer Congress’s contempt citation to a grand jury.
As I explained yesterday, the view espoused by Prof. Shane — that the command of the statute is absolute and leaves no room for prosecutorial discretion, especially in the face of a colorable assertion of executive privilege — flies in the face of the interpretation given by six different administrations since the 1950s, including the JFK and Clinton administrations. The Reagan-era memo also cites numerous cases that assume (without squarely deciding) that DoJ would have the discretion to refuse to present a contempt citation to a grand jury.
Prof. Shane places great weight on the seemingly unambiguous language of the statute. But the Reagan-era memo notes that similarly unambiguous language — regarding the duty of the President of the Senate or Speaker of the House to refer a contempt citation — has been squarely held by a court not to impose a mandatory duty, as the language suggests. Also, the memo notes that cases have held other facially mandatory laws purporting to require prosecution in all situations are subject to prosecutorial discretion.
Concerned about the possible trampling of prosecutorial discretion, I pressed Prof. Shane on the issue of whether Congress could mandate prosecution. He cautioned that the statute requires only that it be presented to the grand jury:
The statute in question does not require prosecution, I believe, but presentation to a grand jury. To that extent, what Congress is demanding is not that a particular individual be tried, but that the question of indictment be put before a neutral adjudicator (the grand jury), which will decide whether the prosecution goes forward.
Wait a second. The trouble with this view is that a grand jury cannot require a prosecution to go forward. It can determine whether there is probable cause — but after an indictment issues, prosecutors still retain discretion to dismiss a case.
As the Fifth Circuit stated, in a case cited in the Reagan-era memo on executive privilege:
The role of the grand jury is restricted to a finding as to whether there is probable cause to believe that an offense has been committed. The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause. [Such as the application of executive privilege. — Ed.] Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case.
United States v. Cox, 342 F.2d 167 (5th Cir.) (en banc), cert. denied, 381 U.S. 935 (1965).
I kept pressing Prof. Shane for an answer: can Congress constitutionally mandate that the executive branch prosecute someone? We’re not talking here about merely presenting the case to a grand jury. Can Congress actually tell DoJ to prosecute someone — such as, for example, Harriet Miers — for contempt of Congress?
I felt that it was hard to get Prof. Shane to commit to an answer, but I read his ultimate answer as a cautious “yes.” He gave this caveat:
I do think there would be potential due process problems if Congress were to assert power to demand that a particular individual be brought to trial.
(I would characterize it as separation of powers problems, but forget the semantics.) But despite these potential problems, he said:
Whether a U.S. Attorney who successfully applies to a grand jury for an indictment, and thereafter fails to present the indictment, has violated the statute is clearly an open question. I think the answer is, yes — what else would be the point of the presentment? — but the obvious contrary answer is that the statute does not so explicitly.
That answer is carefully hedged, but cut through the qualifications, and here is your bottom line:
Prof. Shane thinks that Congress may (and has) by statute constitutionally mandated that a prosecutor pursue a prosecution.
This is the view that I find radical and sweeping.
As Eugene Volokh says in his post, stripping prosecutors of prosecutorial discretion “is indeed a violation of the separation of powers, because it is placing in Congress’s hands — rather than in the executive’s — the quintessentially executive decision whether a federal prosecutor would prosecute someone in federal court.”
Now, from our e-mail exchange, I can tell that Prof. Shane would rely heavily on the Morrison v. Olson case, which was decided after the Reagan-era memo was written. But I don’t read that case as supporting a Congressional mandate that DoJ (or a special counsel) prosecute a case — especially one that DoJ has concluded should not be prosecuted. Whatever you think of the case, Morrison v. Olson did not demolish the concept that prosecuting violations of criminal law is a core function of the executive branch. Indeed, Chief Justice Rehnquist’s opinion repeatedly notes the (albeit imperfect) controls that the executive had over the special prosecutor.
I once again find solace in the agreement of Eugene Volokh, who says:
Even Morrison v. Olson, which upheld a special statute authorizing a special prosecutor who would be outside the President’s authority, does not, it seems to me, go that far; among other things, it does not allow the legislature to mandate a prosecution.
I recognize that many will find my view frustrating. We don’t have a king! the cry goes. If a President or his subordinates get to decide who is prosecuted, then there is no check on their lawlessness! they will say.
I disagree. For one thing, the executive’s exclusive discretion over criminal prosecution is no more startling or unchecked than the pardon power. If the President can pardon anybody he likes, why would we howl at the fact that only the President’s branch of government may initiate a prosecution?
Second, there is a constitutional solution if such powers are abused. Congress retains the impeachment power. And as in Watergate, a criminal investigation may be pursued if there is sufficient cause. DoJ can still appoint a special counsel — and if it completely refuses, Congress can initiate an impeachment. If it has the evidence and the votes, it could succeed.
So enough with the talk about a king, Greenwaldians. Kings could not be impeached. Presidents can be. Which is not to suggest that this President should be, of course. I seek only to rebut the Greenwaldian hysterics who suggest that there is no check on executive power if Congress can’t drag officials before it for interrogation on high-level deliberations concerning core executive matters — and mandate prosecution of all who fail to comply.
That, and not Bush’s invocation of executive privilege, is the true overreaching — and the true assault on prosecutorial independence.
OK, I’ve said my piece. Now I want Bill Dyer (aka Beldar) and Prof. Shane to have at it in the comments.