- Fast and Furious in a Bleak House

I have written before about the general shape of the executive deliberative process and presidential communications privileges.  I suppose this is timely because the unctuous weasels now telling us what Fast and Furious is “really all about” will be congratulating each other this week about the historic coverage of the Watergate scandal. What I have written here will seem a lesson in useless picayune procedure.  Nevertheless, I hope this will show how the parties or the court may employ procedure to delay or even completely push an issue off to the side where it dies a death of neglect. 

The U.S. Court of Appeals upheld an order that President Nixon supply tapes of his conversations in response to a subpoena issued by grand jury investigating crimes in Nixon v. Sirica, 487 F.2d 700 (D.C.Cir. 1973). Special Prosecutor Archibald Cox convinced the grand jury to issue the subpoena, which the President resisted in a letter made public to then Chief Judge Sirica. Prosecutor Cox filed suit in the US District Court seeking to enforce the subpoena. In response, the President filed a Special Appearance, which formally asserted his executive privilege claim. The Court allowed the special prosecutor to submit a briefing, which was a "well-documented and imposing” exposition of evidence, including conflicting testimony of presidential aids before the Senate, which created an inference of perjury. 

The Court rejected the President’s argument that it was, “His responsibility, and his alone, to determine whether particular information falls beyond the scope of the privilege.” Rather, the Court accepted a “presumption” that certain presidential communications were privileged, based upon the public interest and separation of powers. However, it found the presumption yielded to the power of a grand jury to investigate crime, once prosecutor Cox demonstrated a particularized showing of need.  

The procedure the court set filtered out all material not responsive to the grand jury’s showing that the evidence it sought was directly relevant to its deliberations.  Only after Prosecutor Cox made such a showing, did the court require the President to submit the subpoenaed evidence to the court. At this point, the court alone would review the evidence “in camera,” while considering specific arguments of the President that information unrelated to the Watergate inquiry, covered by state secrets privilege or so intertwined with irrelevant issues, "may be excised so that only unprivileged matter goes before the grand jury." 

In the years following, the courts have pierced executive privilege in civil cases, as well as in to criminal probes. As the procedure has generally developed, the party seeking information must carry a burden of showing that it has a particularized need for certain information, which it cannot get from any other source. Only then will the executive be required to come forward with a formal invocation of privilege.

The power of Congress to pierce executive privilege in court is yet a different story. Congress has a limited but constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. As such, William Rehnquist opined, as the Assistant Attorney General to President Nixon, that executive branch witnesses whose sole responsibility is to advise the President should not be required to appear before Congress at all. While this may be so for some officials, others administer departments or agencies established by Congress, which as a result may require testimony, subject to claims of privilege. Notwithstanding, the U.S. Supreme Court has not squarely determined when the executive may use privilege to thwart a Congressional subpoena.   

The vindication of executive privilege must be tested following procedures to compel testimony. Upon being met with an executive failure to comply with a subpoena, Congress may invoke its inherent contempt authority, which involves a trial at the bar of the Senate or House. It also has a statutory remedy under 2 USC § 194 to refer a certified statement of facts under the seal to the United States attorney, whose duty it shall be to bring the matter before the grand jury for its action. 

There is yet a third and more likely alternative.  Congress referred such a contempt matter to the US Attorney, when on February 14, 2008 it found that Harriet Meyers and Josh Bolten declined to respond to a subpoena seeking information about the resignations of certain U.S. Attorneys. The day following the referral, however, the US Attorney declined to take up the case. The Committee then filed suit in the District Court on March 10, 2008 seeking declaratory relief. 

The District Court later ordered Ms. Miers and Mr. Bolten to produce all non-privileged documents, to provide privilege logs describing any documents not produced and that Ms. Meyers was to appear before Congress to testify about matters not subject to executive privilege. The DC Circuit granted an appeal, to decide whether the procedure ordered by the District Court required disclosure of privileged information. However, the court declined to address the matter on an expedited basis, noting that 110th Congress ended on January 3, 2009, the date its subpoenas will have expired. In this way the Court, which included Ruth Bader Ginsburg, expressly provided the “benefit of permitting the new President and the new House an opportunity to express their views on the merits of the lawsuit.” 

So there you have it. Justice delayed is justice granted.  What better way could there be than for Fast and Furious to disapear into a mind numbing array of procedural gobbledy gook:   

This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit.

-Charles Dickens, A Bleak House