The next debate — some preliminary thoughts

I’ve read the Federalist Society debate (as it has progressed so far) on the administration’s executive privilege claim regarding the dismissal of U.S. attorneys, and I’ve kicked the issues around a bit. Here are some preliminary observations.
First, any attempt by the House to obtain the testimony of Harriet Miers or others through a criminal contempt citation looks like a non-starter. The President has made it clear he will forbid the U.S. Attorney from acting to enforce a congressional contempt citation. It’s difficult to see how a lawyer in the executive branch can move to hold Miers in contempt once the head of the executive branch determines that it would be unconstitutional, given the executive privilege, to compel her testimony. And it’s difficult to imagine the U.S. attorney doing so.
So the best hope for Congress to obtain the testimony and documents it’s seeking would seem to be through a civil proceeding brought by the House or the Senate in U.S. district court. I take it there are questions as to federal court jurisdiction to hear such claims, but assuming the case could be heard, what would be the legal standard for resolving it?
A court would probably attempt to balance the interest of the executive branch (in this context) in maintaining the candid exchange of views among its members against the congressional interest (in this context) in obtaining the information. As with all balancing tests of this nature, this one is a de facto invitation to enter judgment in favor of the party the court sympathizes with politically and/or ideologically. So we’d probably be looking at “party line” decisions from whichever judges decide the case.
If this is true of judges, it’s almost certain to be true of bloggers. That having been confessed, I submit that the interest of Congress in obtaining the information in question on better terms than what the White House has already offered does not strike me as very strong. The power to select and remove U.S. attorneys rests solely with the president. While Congress must confirm U.S. attorneys, there’s no reason to believe the information it seeks here is needed to decide whether to confirm any pending nominee for one of these jobs.
The president, of course, cannot use his power to appoint and remove U.S. attorneys to obstruct justice or engage in wrongful prosecution, and Congress has the right to investigate whether the president has abused his power in these ways. However, where Congress is merely conducting a fishing expedition, its interest in such an investigation is not very strong, and probably does not outweigh the executive’s interest in candid, unrestrained deliberation. In this case, even after taking the testimony of everyone in the Justice Department with relevant knowledge and even after reviewing mountains of documents, there doesn’t appear to be any solid basis for believing that the removal decisions at issue constituted obstruction of justice or any other crime. Thus, I think a claim by Congress that it needs the information to investigate criminal activity would not be very weighty.
Though it’s easy these days to forget this, Congress’s main function is to legislate. At one point, in response to 9/11, Congress had given the president authority to install U.S. attorneys without having them confirmed. At that time, Congress had a substantial interest in monitoring how the executive branch used this new and unusual authority. However, Congress has stripped the president of that authority, and thus no longer has this interest. It’s not clear what legislative interest remains in obtaining the disputed evidence. Congress might want to strip the president of his authority to remove U.S. attorneys, but I doubt it has the constitutional authority to do this.
In any case, it may well be that what the president has already offered Congress is sufficient to meet any legislative purpose. Congress’s main complaint is that the president not only won’t agree to have executive branch members and former members testify under oath, he won’t permit a transcript to be taken. However, it’s doubtful that sworn testimony and a transcript are necessary if the purpose is to obtain information for use in figuring whether to legislate.
There are other angles and arguments to consider, including the strength (or relative lack thereof) of the executive’s legitimate interest in asserting the executive privilege under the present circumstances. But we’ll leave these matters for later.
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