Constitutional Perfect Storm (almost)

Marty Lederman marty.lederman at
Wed Jul 11 15:15:08 PDT 2007

It is not at all unusual in recent Administrations for the White House to assert that discussions with and among some officials close to the President are categorically privileged.  As Lou points out in various places, however, there are a lot of historical examples cutting against this notion -- not to mention the leading two Supreme Court cases, both of which happen to deal with actual oval office communications (U.S. v. Nixon and Nixon v. Administrator).  

What I find oddest about this week's developments is that the President has purported to "direct" private citizens to refuse to comply with subpoenas and thereby to violate a federal criminal statute, and those witnesses -- who have no independent view of the constitutional question -- have actually chosen to violate the law in compliance with the President's "direction," rather than (as had been the precedent) to agree to comply and then have the Administration itself file a lawsuit to enjoin the testimony.  Here's my post about this; comments welcome, as always:
What Is a Private Citizen to Do (When Caught in the Middle of an Interbranch Dispute)? 

Marty Lederman 

According to at least some Bush loyalists, the answer to that question appears to be: "Break the law, because I'm grateful to the President for all he's done for me."

Sara Taylor, until recently a federal official but now a private citizen, is appearing before the Senate Judiciary Committee this morning, pursuant to a subpoena. She claims to be a "willing and cooperative private citizen." Except that she is not cooperative, nor willing to answer the Committee's questions about how and why the Administration decided to remove the U.S. Attorneys. Why not? Because on Monday, her attorney Neil Egleston received a letter from the White House Counsel notifying Taylor that "the President has directed her not to provide [the] testimony" responsive to the subpoena.

Taylor writes that she "intend[s] to follow the President's determination." Why? Not because she has concluded that the President is correct about the executive privilege question -- indeed, in the very next sentence, she writes that "I do not have ability independently to assess or question the President's determination." No, it appears that she is following the President's "direction," rather than Congress's determination that the assertion of privilege is unjustified, simply because she is loyal - "grateful" -- to the President.

Presumably, the same kabuki dance will occur tomorrow in the House Judiciary Committee, where we can assume Harriet Miers will likewise follow the President's "directive." (I assume her lawyer, George Manning of Jones, Day, has received a virtually identical letter from Fred Fielding.)

[UPDATE: Yes, there were similar White House letters to Manning "directing" Miers not to produce documents or to testify, and she is refusing to appear altogether at tomorrow's hearing. In his letter to the House Judiciary Committee, Miers's attorney states that Miers thus is "subject to conflicting commands" -- indeed, that Miers "has no choice othen than to comply with direction given her by Counsel to the President." For the reasons expressed below, this is flat wrong. She is subject to only one legal command -- to testify.  And she has a choice -- and she's choosing to violate the law.]

Now, this is odd, to say the least. Let's look more carefully at what's happening here. Taylor and Miers actually are faced with legal "directives" -- subpoenas from congressional committees. And their failure to give testimony responsive to the subpoenas is a crime, by virtue of a duly enacted statute (2 U.S.C. 192). The President, of course, believes that the application of that statute is unconstitutional in this case, because of privilege -- but neither Taylor nor Miers has personally concluded that the statute is unconstitutional as applied here (in which case noncompliance would, perhaps, be an example of civil disobedience). And, notwithstanding any rhetoric from Fred Fielding, the President does not have any legal power to "direct" Taylor and Miers (both private citizens) to violate the statutory obligation -- to commit a crime -- whatever his view of the constitutional question might be. Most importantly, the President has taken exactly no legal steps (i.e., seeking an injunction) to prevent the application of the statute here.

All of which is to say that Taylor and Miers have chosen to commit a federal crime, and to disregard the only legal directives (the subpoena, the federal statute) to which they are in fact subject.

This is decidedly not the way things have ordinarily operated when a private citizen is caught in the middle of a constitutional struggle between the two political departments. There is, in fact, a very prominent precedent, and it points in a very different direction.

The precedent in question will sound familiar. In 1976, "the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce . . . was interested in determining the nature and extent of warrantless wiretapping in the United States for asserted national security purposes. It was concerned with the possible abuse of that power and its effect on privacy and other interests of U.S. citizens, and with the possible need for limiting legislation." 551 F.3d at 385. The warrantless wiretaps in question used facilities that AT&T provided to the government. The Committee therefore issued a subpoena requiring the president of AT&T to turn over to the Subcommittee copies of all national security request letters the FBI had sent to AT&T and its subsidiaries, as well as records of earlier wiretaps. And, "[a]fter the subpoena was issued, AT&T stood ready to comply." Id. at 385-386.

At this point, the White House, which took the view that the AT&T documents were privileged, approached the Subcommittee Chairman in an attempt to accommodate the dispute. The interbranch negotiations almost succeeded, but broke down at the last minute, on July 22d, at which point "President Ford instructed AT&T, 'as an agent of the United States, to respectfully decline to comply with the Committee subpoena.'" Id. at 387 (quoting Ford letter). "It appeared, however, that AT&T felt obligated to disregard these instructions and to comply with the subpoena the following day." Id. At which point DOJ initiated a lawsuit in the name of the United States, and obtained a temporary restraining order prohibiting AT&T from complying with the Subcommittee subpoena. The Subcommittee Chair intervened in teh case on behalf of the House, the real defendant in interest, "since AT&T, while prepared to comply with the subpoena in the absence of a protective court order, ha[d] no stake in the controversy beyond knowing whether its legal obligation is to comply with the subpoena or not." Id.

And that's the way the system should work, especially where, as here, the private party does not have a view about the constitutionality of the statute and the subpoena. That private party should comply with the law, and the burden should then be on the party asserting that the law is unconstitutional -- the President -- to seek an injunction preventing operation of the law. 

Taylor has told the Committee that she is agnostic on who should win the constitutional dispute, that she will "commit to abide by a judicial determination that may flow from a subpoena enforcement action against the White House" and "will answer [the Committee's] questions if the courts rule that this Committee's need for the information outweighs the President's assertion of executive privilege."

That is all very proper -- and of course the congressional committees will not put Miers or Taylor in custody if and when the question is teed up to the courts for resolution.

But in the meantime, Taylor (and, I presume, Miers) has decided simply to violate federal law, and to disregard the only legal "directives" to which she is subject (including a federal statutroy obligation) -- not because she has concluded that such statute and directive are unconstitutional (which would raise a slightly different question -- it would probably mean that she herself should be obliged to seek judicial relief), but merely out of loyalty to the President . . . a consideration that apparently is more important than compliance with actual legal obligations.

Posted 10:40 AM by Marty Lederman [link] (26) comments 

----- Original Message ----- 
From: "Lou Fisher" <lfisher at>
To: <gsilver at>; <conlawprof at>; <lawcourts-l at>
Sent: Wednesday, July 11, 2007 3:47 PM
Subject: Re: Constitutional Perfect Storm (almost)

> Fielding's position that Harriet Miers has "absolute immunity" from appearing before a congressional committee is supposedly buttressed by a Justice Department opinion that states: "[t]he President and his immediate advisors are absolutely immune from testimonial compulsion by a Congressional committee."
> That is precisely the position taken by President Nixon in 1973 regarding testimony by White House Counsel John Dean.  Nixon quickly reversed course and let Dean testify.  See pages 58-60 of the attached.
> Lou
>>>> Gordon Silverstein <gsilver at> 07/11/07 4:28 PM >>>
> Bush has now "ordered" Harriet Miers to refuse to appear before
> Congressional Committee and to ignore the subpeona, arguing she has
> unqualified and total immunity from congressional investigations.
> That's a constitutional confrontation of the first order, to be sure. But
> ... imagine if Miers had been confirmed to the Supreme Court?
> Congress would be issuing a subpeona to a sitting Supreme Court Justice who
> would be under "orders" from the President to refuse to testify, generating
> a sure-fire Supreme Court test of the powers of congressional committees to
> compel testimony ... the perfect storm of separation of powers
> confrontations ..... 
> July 11, 2007
> Miers Will Not Appear Before Committee, Lawyer Says 
> Filed at 4:05 p.m. ET
> WASHINGTON (AP) -- President Bush ordered his former White House counsel,
> Harriet Miers, to defy a congressional subpoena and refuse to testify
> Thursday before a House panel investigating U.S. attorney firings.
> ''Ms. Miers has absolute immunity from compelled congressional testimony as
> to matters occurring while she was a senior adviser to the president,''
> White House Counsel Fred Fielding wrote in a letter to Miers' lawyer, George
> T. Manning.
> Manning, in turn, notified committee chairman John Conyers, D-Mich., that
> Miers would not show up Thursday to answer questions about the White House
> role in the firings of eight federal prosecutors over the winter.
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