After subpoenaing former White House counsel Don
McGahn, the House Democrats became heady with
visions of former White House counsel John
Dean’s congressional testimony damning President
Nixon dancing in their heads. But House
Judiciary Chairman Jerry Nadler (D-N.Y.) should
read some case law.
The committee’s subpoena requires McGahn’s
testimony on May 21, and documents and
communications “referring or relating to” 36
specified incidents produced by May 7. All 36
describe executive privilege information, such
as the “resignation or termination of Michael
Flynn,” “reversing … Jeff Session’s recusal,”
“Presidential pardons” and the “termination of
James Comey.”
Executive privilege is not specified in the
Constitution, yet courts have consistently ruled
that presidents have the right to withhold
certain documents and information from the other
branches. Two of those categories are the
“deliberative process” — materials that reveal
how government decisions are made — and the
“confidentiality of presidential
communications.”
In an interview last month discussing the House
subpoena for an unredacted Mueller report,
Nadler claimed that President Trump cannot use
“executive privilege” to hide behind anything in
the report, citing the Supreme Court’s 9-0
decision in the Nixon tapes case. If Nadler
reads that case, he will learn that the Court
ruled the White House had to produce evidence
(tapes, not testimony) subpoenaed for a criminal
trial, not for a congressional hearing. Even
then, the Court ruled that executive privilege
had to be given deference, such that the tapes
be provided in camera so the trial court
would provide only material that was relevant.
House Democrats have argued that because
Attorney General William Barr publicly released
a redacted Mueller report, the White House
waived any claim of executive privilege to the
full report and all its underlying documents.
There is another case Nadler should read: The
D.C. Circuit decided the seminal post-Nixon
tapes case, which set a high standard for
compelling evidence from the White House.
The facts involve President Clinton’s
agricultural secretary, Michael Espy, who was
criminally charged by the independent counsel
with taking things of value for favorable
business decisions. The White House counsel had
carried out its own investigation of Espy’s
conduct and issued a report. The independent
counsel, a la Nadler, subpoenaed all the
underlying documents and notes of any meetings
regarding the released Espy report. Clinton
claimed executive privilege.
The Court refused the independent counsel’s
request. Because the deliberative process exists
to aid decision-making, it would not infer
waiver for anything but the already released
report (and one document given to defense
counsel), ruling: “[R]elease of a document only
waives … privileges for the document or
information released.”
Significantly, the DC Circuit also held that an
entity subpoenaing executive privilege
information also must demonstrate that the
evidence “is important to the ongoing grand jury
investigation and why [it] is not available from
another source.” No grand jury here. Only a
House committee hearing.
If Nadler read relevant case law, he would
understand that courts have set a standard for
Congress to question witnesses. Over six decades
ago, the Supreme Court overturned a misdemeanor
conviction for a witness who refused to answer
questions before the Committee on Un-American
Activities about whether specific people he knew
were communists. The witness was not a member of
the executive branch — but the judicial standard
applies to Nadler’s subpoena of McGahn.
The Court faulted the House for having vague
authorizing language, which stated that the
committee may investigate the “extent,
character, and objects of un-American activities
in the United States” and such activity
“instigated from foreign countries … .” Thus,
the Court observed, the witness could not
ascertain what questions were pertinent to the
congressional investigation in order to
determine which ones he could refuse to answer.
“Protected freedoms should not be placed in
danger in the absence of a clear determination
by the House or Senate that a particular inquiry
is justified by a specific legislative need.”
If Nadler had read this case he might not have
framed the subpoena’s purpose as “touching
matters of inquiry committed to said committee …
.” What is the legislative purpose?
Nadler should know that courts view
congressional investigations differently than
criminal investigations. The D.C. Circuit
refused to direct the White House to turn over
to a Senate committee the same Nixon tapes that
the Supreme Court had ordered be produced to the
Watergate special prosecutor as evidence in the
criminal case. After transcripts of the Nixon
tapes had been released, the Senate Select
Committee on Presidential Campaign Activities
pursued the release of the entire tapes, sans
redactions and in audio, claiming the committee
needed to discern any conflicts in testimony and
to hear inflections in tone. The Court found a
“clear difference between Congressional
legislative tasks and a Grand Jury … .” It held
that the committee needed to show that the
“subpoenaed evidence is demonstrably critical to
the responsible fulfillment of the Committee’s
functions.” Reforming the electoral system did
not pass the test.
In an unprecedented decision, President Trump
did not assert executive privilege for any
document or testimony throughout the special
counsel’s investigation. Thus, McGahn was
allowed to be interviewed for more than 30
hours, exposing all the rants and frustrations
of a man falsely accused of a crime he did not
commit. One has to wonder what rantings
President Clinton, who asserted executive
privilege a record 14 times, expressed during
the Monica Lewinsky investigation. Unlike Trump,
Clinton did not release any of his lawyers to be
interviewed.
A member of Nadler’s Judiciary Committee, David
Cicilline (D-R.I.), has claimed Congress has an
“inherent right” to enforce subpoenas by
whatever means at its disposal. That must mean
going to court. If the Democrats read the case
law, they will learn they will lose.
Victoria Toensing is a former deputy assistant
attorney general in the Department of Justice
and former chief counsel to the Senate Select
Committee on Intelligence. Joseph diGenova is a
former U.S. Attorney for the District of
Columbia and a former independent counsel for
the Justice Department. They are married and
founding partners in the Washington law firm of
diGenova & Toensing.