This post is a supplement to this morning’s post on executive privilege.

I recently corresponded with Prof. Peter Shane on issues of executive privilege. I am setting forth the entire exchange here, below the fold. I think only a fraction of you might actually be interested in reading the whole lengthy exchange, but I’m posting it for a couple of reasons. First, having the source e-mails available for you to inspect helps ensure that I cannot take any quotes out of context. Second, if you’re really, really into this topic, there are no doubt some subtleties below that I didn’t cover in my brief summary post here. Also, you get a flavor for where Prof. Shane is coming from. Since he’s an expert quoted by the L.A. Times, that’s a useful thing.

If you’re interested in executive privilege, you should probably bypass this post and read this one instead. If you’re still interested in the issue after reading that lengthy screed, come back to this one. It will still be here.

My first e-mail:

Prof. Shane,

My name is Patrick Frey. I am the proprietor of a blog at patterico.com that often deals with legal issues. It is regularly cited by blogs that deal with such issues.

I wonder if you might be able to answer a question for me.

You were quoted today in the Los Angeles Times as suggesting that persons who cite executive privilege as a defense against obeying a Congressional subpoena may not be exempt from prosecution on separation of powers grounds. You were quoted as saying that the statute providing that “the appropriate U.S. attorney, whose duty it shall be to bring the matter before the grand jury for its action” is “unambiguous.”

However, your solution does not appear to suggest that the proper resolution is for a local U.S. attorney under the umbrella of the DoJ to be ordered by Congress to prosecute a contempt citation. Rather, the article says you believe a special counsel should be involved:

Shane suggested that the Justice Department appoint a special counsel to evaluate the merits of the case and the legal arguments. “The administration could file legal briefs on behalf of the defense,” he said, “and it would give the defendant an opportunity to raise executive privilege in defense of nonappearance.”

I wonder what you think of the analysis of Prof. Eugene Volokh, expressed in this post:

http://volokh.com/archives/archive_2007_07_22-2007_07_28.shtml#1185084836

And the Reagan Justice Department memo cited therein:

http://gulcfac.typepad.com/georgetown_university_law/files/olson.1984.opinion.pdf

Citing the Reagan-era memo, Prof. Volokh concludes:

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.

Do you agree or disagree?

From what I read in the L.A. Times, it seems to me that there is a possible conflict between your view and that of Prof. Volokh (and the Reagan-era Justice Department memo). But perhaps there is not. If there is, I would like to know the reasons you believe they are wrong. If there is no conflict, I would be interested to know that as well.

I would be pleased if you would be willing to submit a quote for my blog on this issue, to help me enlighten my readers. I know you’re busy, but my readers (I get about 200,000 page views per month) would be very interested to understand why you disagree with Prof. Volokh, if you do.

I thank you in advance for your time.

Yours truly,

Patrick Frey
Patterico’s Pontifications
https://patterico.com

Prof. Shane responded:

I don’t disagree with Prof. Volokh that Congress has unilateral options. My suggestion, however, was that, in order to comply with the scheme envisioned in Title 2, U.S.C., all Congress needs the Justice Department to do is initiate the prosecution. In the current case, it is quite likely the U.S. Attorney would have to recuse himself because of his prior professional positions in the Justice Department. My idea contemplates that DoJ would appoint a special counsel to conduct the grand jury, technically under the auspices of the executive branch, but functionally representing the views of Congress. It’s analogous to what happened in a case called INS v. Chadha, in which the Supreme Court held legislative vetoes unconstitutional. The Supreme Court would have been unable to get the case unless the Justice Department filed an appearance on behalf of the INS. The Justice Department agreed, however, with Mr. Chadha’s position. So, they took the case to the Supreme Court, “c
onfessed error,” and didn’t object when the Court asked congressional lawyers to prepare the case in favor of legislative vetoes. The Justice Department took the necessary steps to get the case before the Court, but allowed the legislative branch effectively to represent its position in a judicial forum.

I wrote:

Prof. Shane,

Thanks for your quick and interesting response.

What interests me is the situation where, as here, the Justice Department takes a position that any prosecution would be legally unwarranted because of the separation of powers doctrine, and because of a belief that executive privilege applies.

Isn’t Prof. Volokh saying that, when DoJ thinks a prosecution is unwarranted, they should not even initiate one? Do you agree or disagree with that?

And if DoJ refuses to initiate a prosecution because it believes it is unwarranted, do you agree that it would violate the separation of powers doctrine for Congress to somehow attempt to force DoJ to initiate a prosecution?

Thanks again.

Yours truly,

Patrick

Prof. Shane wrote back:

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. 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.

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.

These are difficult questions, which makes all the more irresponsible the White House stance that it will either stonewall or allow only untranscribed testimony, not under oath. This offer gives the lie to the supposed concern of the White House for confidentiality; what they want is deniability. The obvious way to go is transcribed testimony under oath in executive session, with a post-testimony opportunity to claim executive privilege for portions of the transcript that the executive regards as both privileged and irrelevant to Congress’s inquiry.

I replied:

Professor,

I have just a couple more follow-up questions, if I can test your patience just a touch further.

In my hypothetical, the DoJ thinks that there is no case — no probable cause to bring the case, and no proof beyond a reasonable doubt.

1) Is there no separation of powers problem for Congress to order DoJ to take a case to a grand jury if DoJ believes there is no probable cause?

2) Is the answer different if a special counsel is appointed?

3) Assuming for the sake of argument that USA Jeff Taylor had no conflict of interest (I understand you think he does, so assume this as a counterfactual hypothetical), would it be wrong for him to follow DoJ orders not to prosecute the contempt or bring it to a grand jury — again assuming that DoJ thinks there is no probable cause?

Thanks once again for your time. I plan to publish tomorrow but wanted to clarify these questions.

The professor replied:

Dear Patrick,

These are difficult questions, and I will try once again to give my view clearly:

1. Whether or not to bring a case to a grand jury is a matter of policy discretion in executing the criminal law. If the Constitution forbade Congress to direct the executive branch AT ALL in the exercise of its policy discretion in executing the law, then there would be a separation of powers problem. But I do not believe the framers of the Constitution regarded policy discretion involved in pursuing criminal prosecution to be inherently executive in nature. Therefore, under the necessary and proper clause, Congress may regulate how the executive branch exercises its discretion as long as (a) that “regulation” is necessary to carrying into effect the powers of Congress, and (b) Congress does not arrogate to itself both the power of legislating and the power of prosecuting. Requiring the U.S. Attorney to go to the grand jury does not amount to congressional prosecution in violation of due process because the grand jury functions as a neutral arbiter.

2. The appointment of a special counsel is not relevant to the analysis I just gave on question 1.

3. Should the AG order the US Attorney not to go to the grand jury, then the AG and the U.S. Attorney would be violating the obligation of the executive “to take care that the laws be faithfully executed.” Arguably, both officials would be committing an impeachable offense. Of course, this sounds like “fightin’ words,” constitutionally speaking, and the elected branches, in the implementation of our constitutional checks and balances, should seek to avoid confrontations of this magnitude. By throwing down the gauntlet, however, the White House is inviting just this sort of response — and, down this avenue, the White House cannot win if Congress has the votes. So far, 2/3 of the Senate is unreachable. But, if Senate Republicans think the White House is taking the party down, they could revolt, just as Barry Goldwater brought Richard Nixon the bad news in 1974.

I hope this helps.

I replied:

Prof. Shane,

The only remaining question I have, I believe, is what happens when the case is presented to a grand jury, the grand jury indicts — but DoJ believes the case should not go to trial? Can Congress force the case to trial, over DoJ’s objection, as long as there is an indictment?

I am a local prosecutor and I can tell you that not every case that survives a probable cause hearing is appropriate to try to a jury. New facts may emerge, or a closer analysis of available facts may reveal that there is no proof beyond a reasonable doubt.

If the DoJ were to reach such a conclusion (that there is no triable case), and Congress disagreed, I understand that Congress would have the option of impeachment — and that strikes me as the appropriate check on executive power.

But I keep coming back to this question: can Congress force DoJ to prosecute someone that DoJ believes is not guilty? Even assuming that Congress may force DoJ to take the case to the grand jury, can Congress force DoJ to take it to *trial* if there is an indictment? Indeed, *should* DoJ take a case to trial if its lawyers believe the defendant is not guilty?

Imagine that the parties are reversed, and a Republican Congress seeks to force a Democratic president to have his Department of Justice prosecute an executive official (for contempt or any other crime) when the DoJ thinks there’s no case there. Isn’t there a point when this violates separation of powers — even if a grand jury indicts?

I’ll really try to make this my last question. I greatly appreciate your patience and willingness to answer questions.

Yours truly,

Patrick

He replied:

I don’t understand the question. The statute requires that the matter be brought to a grand jury. Are you asking, hypothetically, whether Congress could constitutionally enact a statute that says the U.S. Attorney must bring the matter to the grand jury and, if the grand jury indicts, it must go to trial? You also ask, could the DOJ be forced to try someone it believes to be not guilty? But DOJ does not think that these folks would not be guilty. It thinks that they cannot be constitutionally charged with the offense because of executive privilege. That is a question I think a court should answer, not the White House.

Impeachment is a hugely cumbersome process of constitutional last resort that ought not be regarded as a preferred tool for recalibrating separation of powers doctrine (or chastising presidents who lie about noncriminal sexual affairs). The fact that the White House is pushing Congress this far is, in my view, an exercise of very bad judgment, just as it was a huge waste of time and taxpayer money to fight public disclosure of who met with the National Energy Policy Development Group — all of which has now been leaked. I would think no differently if Democrats were making irresponsible claims of executive privilege. One cannot help but wonder how this White House would have handled Watergate or the Iran-Contra affair.

I had to send one more e-mail:

Professor,

Since you didn’t understand the question as I phrased it, let me recast it. Since you say the statute requires only that the U.S. Attorney present the case to a grand jury, what if the U.S. Attorney does that, gets an indictment — and thereafter lets the case drop, because he believes that executive privilege excuses the noncompliance with the subpoena? He has complied with the statute by presenting the case to the grand jury — but has also complied with his ethical duties as a lawyer by refusing to present a case that he believes should not be brought, and refusing to make legal arguments he disagrees with.

In following this procedure, do you believe the U.S. Attorney would be acting illegally? Would he open himself up to impeachment proceedings?

I’m really just trying a different way of asking my original question: when the Justice Department takes the view that a witness is properly claiming executive privilege, 1) should the DoJ prosecute the witness for contempt of Congress? and 2) may Congress constitutionally force DoJ to prosecute?

I think you have answered yes to #1, but I don’t feel I have gotten a firm answer to #2. I know you believe that Congress may force DoJ to take such a case to a grand jury — which puts lawyers in an untenable ethical position, by the way, forcing them to argue points of law they disagree with — but can Congress force (by statute or by threatening impeachment) a prosecution that DoJ does not believe in?

The bottom line here is simple: assume a prosecutor has a case he doesn’t believe in, because he believes a legal privilege applies. Can a legislative body mandate that he prosecute that case beyond grand jury proceedings? Can a legislative body mandate that he make arguments that he doesn’t believe in?

If I’m still unsatisfied with your answer, I won’t bother you again. I’ll simply publish our exchange and see if my readers can find an answer where I haven’t. Fair enough?

In any event, I thank you again for your time.

Yours truly,

Patrick Frey

Prof. Shane replied:

OK, Patrick, I think I get you now.

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.

In either event, I think that the answer to what you say is your bottom line question, “Can a legislative body mandate that [the U.S. Attorney] make arguments that he doesn’t believe in?” is probably no, but irrelevant. The U.S. Attorney need not violate his ethical obligations by bringing a case in which he does not believe. He can, to repeat what I said in the LA Times, ask for the appointment of a special counsel by the Justice Department. If you are asking, may Congress mandate the appointment of a special counsel to serve in the U.S. Attorney’s role pro hac vice, in any case in which the U.S. Attorney does not think he or she can conscientiously pursue the prosecution, the answer to that, I am quite confident, is yes – at least if Morrison v. Olson is still good law. Believe me, the White House would be happy to get THAT question back to the Court with its current, extraordinarily pro-executive membership. (Kennedy did not participate in Morrison v. Olson, so his s
wing vote status is secure.)

I have a hard time to imagine Congress spending time on impeaching a U.S. Attorney who complies with the statute literally.

Again, I thank Prof. Shane for his time.