POLSC232: American Government

In early 2007, the House Judiciary Committee and its Subcommittee on Commercial and Administrative Law commenced an inquiry into the propriety of the termination and replacement of a number of United States Attorneys. Six hearings and numerous interviews were held by the committees between March and June 2007, essentially focusing on testimony with respect to actions of present and former Department of Justice (DOJ) officials and employees as well as DOJ documents relating to the matter. On March 21, 2007, the House Subcommittee authorized Chairman John Conyers, Jr. to issue subpoenas to a number of present and former White House Officials for documents and testimony.

On June 13, 2007, Chairman Conyers issued subpoenas to White House Chief of Staff Joshua Bolten, as custodian of White House documents, returnable on June 28, 2007, and to former White House Counsel Harriet Miers, returnable on July 12, 2007.

On June 27, 2007, White House Counsel Fred F. Fielding, at the direction of President Bush, advised the Chairmen of the House and Senate Judiciary Committees that document subpoenas issued to the White House custodian of documents and to two former White House officials, Sara M. Taylor, subpoenaed by the Senate Judiciary Committee, and Harriet Miers, relating to those Committees investigations of the dismissal and replacement of nine U.S. attorneys in 2006, had been deemed by the President subject to executive privilege and that the subpoena recipients have been directed not to produce any documents. The Fielding letter also noted that the testimony sought from Ms. Miers and Ms. Taylor was also subject to a "valid claim of Executive Privilege" and would be asserted if the matter could not be resolved before the dates scheduled for their appearances.

Accompanying the Fielding letter was a legal memorandum prepared by Acting Attorney General Paul D. Clement for the President detailing the legal basis for a claim of executive privilege.

The memo identifies three categories of documents being sought: (1) internal White House Communications; (2) communications by White House Officials with individuals outside the Executive Branch, including individuals in the Legislative Branch; and (3) communications between White House and Justice Department officials.

With respect to internal White House communications, which are said to consist of discussions of "the wisdom" of removal and replacement proposals, which U.S. Attorneys should be removed, and possible responses to Congressional and media inquiries, such discussions are claimed to be the "types of internal deliberations among White House officials [that] fall squarely within the scope of executive privilege" since their non-disclosure "promote[s] sound decisionmaking by ensuring that senior Government officials and their advisors may speak frankly and candidly during the decisionmaking process," citing United States v. Nixon. Since it is argued what is involved in the exercise of the presidential power to appoint and remove officers of the United States, a "quintessential and non-delegable Presidential power" (citing Espy), the President's protected confidentiality interests "are particularly" strong in this instance.

As a consequence, an inquiring congressional committee would have to meet the standard established by the Senate Select Committee decision requiring a showing that the documents and information are "demonstrably critical to the responsible fulfillment of the Committee's function." Thus, it is claimed there is doubt whether the Committees have oversight authority over deliberations essential to the exercise of this core presidential power or that "their interests justify overriding a claim of executive privilege as to the matters at issue."

With respect to category two matters involving communications by White House officials with individuals outside the White House, the Clement memo asserts that confidentiality interests undergirding the privilege are not diminished if the President or his close advisors have to go outside the White House to obtain information to make an "informed decision," particularly about a core presidential power. Again, Espy and Senate Select Committee are referred to as supporting authorities.

As to the final category, respecting communications between the Justice Department and the White House concerning proposals to dismiss and replace U.S. Attorneys, it is claimed that such communications "are deliberative and clearly fall within the scope of executive privilege ... [T]he President's need to protect deliberations about the selection of U.S. Attorneys is compelling, particularly given Congress' lack of legislative authority over the nomination or replacement of U.S. Attorneys," citing Espy and Senate Select Committee. The privilege is asserted to extend to White House – DOJ communications "that have been previously disclosed to the Committees by the Department."

An argument that a waiver may have occurred is contrary to "relevant legal principles [that] should and do encourage, rather than punish, such accommodation[s] by recognizing that Congress' need for such documents is reduced to the extent similar materials have been provided voluntarily as part of the accommodation process." Since the Committees have these documents, seeking the relevant communications would be cumulative under Senate Select Committee. This rationale is argued to support the lack of any need for the testimony of the former White House officials subpoenaed:

On June 29, 2007, Chairman Conyers and Senate Judiciary Committee Chairman Patrick Leahy jointly responded to the Fielding letter and Clement memorandum. Characterizing the White House stance as "based on blanket executive privilege claims," which makes it difficult for the Committees "to determine where privilege truly does and does not apply," the Committees demanded that they be provided with a detailed privilege log that includes for each document withheld a description of the nature, source, subject matter, and date of the document; the name and address of each recipient of an original or copy of the document and the date received; the name and address of each additional person to whom any of the contents of the document was disclosed, along with the date and manner of the disclosure; and the specific basis for the assertion of privilege. A deadline for receipt of the privilege log was set for July 9, 2007.

On July 9, 2007, the White House Counsel refused to comply. On that same date, counsel to Ms. Miers informed Chairman Conyers that pursuant to letters received from the White House Counsel, Miers would not testify or produce documents, and the next day, July 10, announced that Miers would not appear at all. That same day the DOJ Office of Legal Counsel (OLC) issued an opinion that "Ms. Miers is [absolutely] immune from the compulsion to testify before the Committee on this matter and therefore is not required to appear to testify about the subject."

Citing previous OLC opinions, the opinion asserts that since the President is the head of one of the independent branches of the federal government, "If a congressional committee could force the President's appearance, fundamental separation of powers principles – including the President's independence and autonomy from Congress – would be threatened."

As a consequence, "[t]he same separation of powers principles that protect a President from compelled congressional testimony also apply to senior presidential advisors" because such appearances would be tantamount to the President himself appearing. The fact that Ms. Miers is a former counsel to the President does not alter the analysis since "a presidential advisor's immunity is derivative of the President's." Neither Ms. Miers nor Mr. Bolten complied with the return dates of their subpoenas.

On July 12, 2007, the House Subcommittee met, and Chairman Sánchez issued a ruling rejecting Ms. Miers' privilege claims with respect to failing to appear, produce documents, and testify, which was upheld by a 7-5 vote. On July 19, the Subcommittee Chair ruled against Mr. Bolten's privilege claims with respect to his failure to produce documents, which was upheld by a 7-5 vote. On July 25, the full Judiciary Committee voted 21-17 to issue a report to the House recommending that a resolution of contempt of Congress against Miers and Bolten be approved. Thereafter, the White House announced that it would order the United States Attorney for the District of Columbia not to present the contempt of Congress citation for grand jury consideration.

The Judiciary Committee filed its Report formally reporting a contempt violation to the House in November 2007. After further attempts at accommodation failed, the matter was brought to the floor of the House on February 14, 2008, which voted 223 to 32 to hold Ms. Miers and Mr. Bolten in contempt of Congress for their willful failure to comply with the Committee's subpoenas. At the same time, the House passed three resolutions. H.Res. 979 directed the Speaker to certify the report of the Judiciary Committee, detailing the refusals of Ms. Miers to appear before, to testify before, and to produce documents to the Committee and Mr. Bolten's refusal to produce documents, as required by subpoenas, to the United States Attorney for the District of Columbia for presentation to a grand jury pursuant to 2 U.S.C. 192 and 194.

H.Res. 980, in apparent anticipation that the criminal contempt citation would not be presented to the grand jury by the U.S. Attorney, authorized the Chairman of the Judiciary Committee to initiate civil judicial proceedings in federal court to seek a declaratory judgment affirming the duty of any individual to comply with any subpoena that is the subject of H.Res. 979 and to issue appropriate injunctions to achieve compliance. The resolution also authorized the House General Counsel to represent the Committee in any such litigation. H.Res. 982 adopted both H.Res. 979 and H.Res. 980.

On February 28, 2008, the Speaker certified the Committee's Report to the U.S. Attorney. On February 29, 2008, Attorney General Mukasey advised the Speaker that "the Department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers."

On March 10, 2008, the House General Counsel filed a civil action for declaratory judgment and injunctive relief against Ms. Miers and Mr. Bolten. The suit sought a declaration by the court that (1) Ms. Miers is not immune from the obligation to appear before the Committee in response to a duly authorized, issued, and served Committee subpoena; (2) Ms. Miers and Mr. Bolten produce privilege logs identifying all documents withheld on grounds of executive privilege; and (3) Ms. Miers and Mr. Bolten's claims are improper in the context of communications not involving the President or undertaken directly in preparation for advising the President and that Ms. Miers and Mr. Bolten's claims of executive privilege are, in any event, overcome by the Committee's demonstrated, specific need for the subpoenaed testimony and comments. In addition, the Committee sought an order directing Ms. Miers to appear before the Committee to respond to questions and to invoke executive privilege if and when appropriate; to have Ms. Miers and Mr. Bolten provide detailed privilege logs with respect to documents claimed to be privileged and for both to produce all non-privileged documents subject to the subpoenas.

On April 10, 2008, the House General Counsel filed a Motion for Partial Summary Judgment seeking a declaration that (1) Ms. Miers's failure to appear at all in response to the Committee's subpoena was without legal justification; (2) that she must appear before the Committee and assert privilege claims in response to questions, as appropriate, but must testify about subjects not covered by privilege; (3) that the failure of both Ms. Miers and Mr. Bolten to supply privilege logs with respect to withheld documents is legally unjustified; and (4) that both be ordered to provide detailed privilege logs with respect to documents claimed to be privileged and to produce all relevant non-privileged documents.

On July 31, 2008, the district court essentially granted the Committee's motion for partial summary judgment in its entirety. The court's lengthy opinion principally dealt with the Executive's claims that the suit should be dismissed because the Committee: (1) lacked standing, (2) had not stated a cause of action authorizing the suit, and (3) was inappropriately involving the court in a dispute between the political branches of a type of that traditionally has been resolved by negotiation and accommodation by the parties.

The court rejected the Executive's justiciability claims, finding both standing and an implied cause of action in the Constitution's institutional commitment to the Congress in Article I of "the power of inquiry," observing that the Supreme Court has consistently recognized that the power carries with it the "process to enforce it" which is "an essential and appropriate auxiliary to the legislative function," and that "issuance of a subpoena pursuant to an authorized investigation is ... an indispensable ingredient of law-making." In rejecting the suggestion that the court exercises its equitable discretion not to involve itself in a political dispute between the branches, the court observed that numerous courts since the initial Watergate rulings had found it appropriate to attempt to resolve subpoena disputes raising privilege and immunity questions in both civil and criminal contexts involving the political branches in circumstances where it appeared only judicial intervention could prevent "a stalemate that could result in a paralysis of government." The court noted that both parties conceded that an impasse had been reached and observed:

Turning to the sole merits issue raised by the Committee's motion for partial summary judgment – the Executive's claim that present and past senior advisers to the President are absolutely immune from compelled congressional process – the court's conclusion was an unequivocal rejection of the government's position:

At the outset, the court noted that a 1950 Supreme Court ruling in United States v. Bryan established that if compliance with a congressional subpoena requirement is ignored, "the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity."

In attempting to explain why compliance is to be excused in this instance, the Executive argued that since the President himself is absolutely immune to compelled congressional testimony, close advisers to the President himself must be regarded as his "alter ego" and be entitled to the same absolute immunity. Forcing such close advisors to testify before Congress would be tantamount to compelling the President to do so. The court responded that the same line of argument had been rejected by the Supreme Court in Harlow v. Fitzgerald, a suit for damages against senior White House aides arising out of the defendants' official actions. The aides claimed they were "entitled to a blanket protection of absolute immunity as an incident of their offices as Presidential aides."

Recognizing that absolute immunity had been extended to legislators, judges, prosecutors, and the President himself, the Supreme Court rejected extending such immunity further, emphasizing that "[f]or executive officials in general, however, our cases make plain that qualified immunity represents the norm." The High Court rejected the argument that it had accorded derivative immunity to legislative aides in Speech or Debate cases as "sweep[ing] too far," noting that even cabinet members "are not entitled to absolute immunity."

The Harlow Court made the concession that a presidential aide could be accorded absolute immunity if it was shown that the responsibilities of his office embraced a sensitive function such as foreign policy or national security and that he was discharging the protected functions when performing the act for which liability is asserted. The Miers district court concluded that in this matter, since there was no involvement of national security or foreign policy concerns, neither Ms. Miers' nor Mr. Bolten's close proximity to the President is sufficient under Harlow to provide either absolute or qualified immunity.

In response to the Executive's claim that without absolute immunity, there would be a "chilling effect" on the candid and frank advice advisers would provide a Chief Executive, the court stated:

Next, the district court rejected the claim that Nixon v. United States established that a president's immunity is qualified, and not absolute, only when the judicial resolution of a criminal justice matter concerned. Here, the court emphasized, the Executive argued that what was involved was a "peripheral" exercise of Congress's power, not a core function of another branch. The court responded:

The court recognized that the effect of a claim of absolute privilege for close advisors was to make the President the judge of the parameters of his own qualified privilege. "Permitting the Executive to determine the limits of its own privilege would impermissibly transform the presumptive privilege into an absolute one, yet that is what the Executive seeks through its assertion of Ms. Miers's absolute immunity from the compulsory process. That proposition is untenable and cannot be justified by appeals to Presidential autonomy."

Finally, the district court rejected the government's fall-back position: that even if Ms. Miers is not entitled to absolute immunity, she should be accorded qualified immunity. The court dismissed the argument, relying on the requirements established by Harlow:

The court concluded that its rejection of a claim of absolute immunity rested on two premises: Such a claim would transform the President's qualified immunity into an absolute one, and if such a claim were to prevail, it would cover even non-privileged executive information:

On August 7, 2008, the Justice Department noted its intent to appeal the ruling and requested that the court stay its order directing compliance with the subpoena until its appeal is resolved. The district court's response to the stay request is pending.

The Miers/Bolten claim of executive privilege was the third of six such invocations by the Bush Administration. The first was asserted by President Bush on December 12, 2001, directing Attorney General Ashcroft to refuse to comply with document subpoenas issued by the House Government Reform Committee as part of the investigation of alleged law enforcement corruption in the FBI's Boston Field Office over a period of almost 30 years.

Following two hearings in which the validity of the privilege claim was the central issue, testimony presenting overwhelming evidence that similar DOJ documents and testimony had been provided in the face of investigative demands by jurisdictional committees for over 85 years, despite claims of interference with prosecutorial deliberations, and with a credible threat of a successful contempt vote on the floor of the House, the documents were relinquished.

The second claim of privilege, apparently asserted on behalf of the President by White House Counsel Alberto Gonzales, occurred during the Judicial Watch litigation over the release of some 4,300 pardon documents that were in the custody of the Pardon Attorney in the Justice Department and that had never been requested by White House officials or the President. The panel majority held that in light of the Espy ruling, the presidential communications privilege was inapplicable and ordered the documents to be released to the requesters.

The President has made three additional claims of executive privilege that are still unresolved. One involves a continuation of the House Judiciary Committee's investigation of the removal and replacement of nine U.S. Attorneys. On July 10, 2008, Karl Rove, a former White House Deputy Chief of Staff, refused to comply with a subpoena requiring his appearance for testimony before its Subcommittee on Commercial and Administrative Law, claiming absolute immunity based on opinions and directions from the White House and the Department of Justice. His claims of privilege were rejected by the Subcommittee. On July 30, 2008, the full Committee, by a vote of 20-14, approved a report recommending that Mr. Rove be cited for contempt by the House. The recommendation has not yet been forwarded for floor action.

Privilege claims have been made by the President with respect to three subpoenas issued by the House Oversight and Government Reform Committee in April and May 2008 to the Administrator of the Environmental Protection Agency (EPA) and the Office of Information and Regulatory Affairs of the Office of Management and Budget (OIRA). The subpoena to OIRA and one of the subpoenas to the Administrator of EPA seek documents related to the EPA's promulgation of a regulation revising national ambient air quality standards for ozone on March 12, 2008.

The other subpoena directed to the EPA Administrator seeks documents reflecting communications between EPA and OIRA concerning the agency's decision to deny a petition by California for a waiver from federal preemption to enable it to regulate greenhouse gas emissions from motor vehicles. The Attorney General, on June 19, 2008, advised the President that some 25 of the documents covered by the subpoena would be properly covered by an assertion of executive privilege. On June 20, 2008, the EPA Administrator advised the chairman of the Committee that he had been directed by the President to assert executive privilege with respect to the withheld documents. No action has yet been taken by the Committee.

The most recent presidential privilege claim, asserted on July 16, 2008, at the behest of the Attorney General, involves a House Oversight and Government Reform Committee subpoena to the Department of Justice (DOJ) for documents concerning the DOJ's investigation by a Special Counsel concerning the disclosure of Valerie Plame Wilson's identity as an employee of the Central Intelligence Agency.

The documents sought and withheld include the FBI reports of the Special Counsel's interviews with the Vice President and senior White House staff; handwritten notes taken by the Deputy National Security Advisor during conversations with the Vice President and senior White House officials; and other documents provided by the White House during the course of the investigation. The Attorney General's request to the President for a formal claim of privilege was spurred by the Committee's scheduling of a full Committee meeting to consider a resolution citing him for contempt of Congress.