Judicial outcome for the current dispute isn’t sure for either side

The partisan hyperbole continues between Congress and the executive branch surrounding the report of Special Prosecutor Robert Mueller. President Donald Trump has invoked executive privilege to prevent disclosure of the redacted portions of the report and underlying evidence, and the House Judiciary Committee has recommended that Attorney General William Barr be held in contempt of Congress for failing to turn over the unredacted report.

Those of us "of an age" remember Watergate, and U.S. District Judge John Sirica's order to President Richard Nixon to turn his tape recordings of conversations in the Oval Office over to Special Prosecutor Leon Jaworski. The U.S. Supreme Court's affirming of that order ultimately led to impeachment proceedings in the House, and Nixon's resignation. United States v. Nixon, 418 U.S. 683 (1974).

Maybe House Judiciary Committee Chair Jerrold Nadler (D-N.Y.) hopes that his committee's recent vote is the beginning of the end for President Trump. However, there are different facts surrounding the Mueller report than those in Nixon, which suggest that the outcome of the current dispute, if left to the courts, may be different from that in Nixon.

There are different facts surrounding the Mueller report than those in United States v. Nixon, which suggest that the outcome of the current dispute, if left to the courts, may be different from that in Nixon. (New York Times News Service)

The claim of privilege in Nixon was made to address "subpoenaed materials sought for use in a criminal trial" and was "based only on the generalized interest in confidentiality." The court concluded that such a claim of executive privilege "cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial." 418 U.S. at 713.

In remanding the matter to the district court for a determination of how its opinion was to be applied to the specific matters subject to subpoena, the Supreme Court in Nixon went on to cite Chief Justice John Marshall's opinion (sitting as the trial judge) in United States v. Burr, 25 F. Cas. 187 (No. 14,694) (CC Va. 1807) (Burr II), quoting the chief justice: "[in] no case of this kind would a court be required to proceed against the president as against an ordinary individual" (25 F. Cas. at 192), and directed that: "Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised." 418 U.S. at 714.

In Burr, former Vice President Aaron Burr was being tried for treason, and his defense counsel wanted some papers in President Thomas Jefferson's possession. Marshall sent a subpoena to Jefferson, to which Jefferson replied that he would be "the sole judge" of what government documents to make public. However, he sent a limited set of papers to the U.S. attorney, ordering him to release portions needed in the interest of justice. John Yoo, "Symposium: The Role of the President in the Twenty-First Century: Article: Jefferson and Executive Power," 88 B.U.L. Rev. 421, 430 (2008). Ultimately, Marshall's narrow rulings on what evidence was relevant and admissible to prove the treason alleged in the indictment excluded much of what the prosecution had offered, and led to a verdict of "not guilty."

In light of his opinion for the Supreme Court in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice Marshall did not defer in Burr to President Jefferson's view of the judicial branch's power to determine the extent of its own subpoena power. See generally Laurence Tribe, "American Constitutional Law" 769-781 (3d ed. 2000).

In Marbury, Marshall stated: "It is emphatically the province and duty of the judicial department to say what the law is" (5 U.S. at p. 177-180), but then denied Jefferson cause to challenge the court's ruling by holding unconstitutional the section of the Judiciary Act of 1789 that would have authorized the court to issue a writ of mandate to the secretary of state compelling him to deliver the sought-after commission to Mr. Marbury. In United States v. Burr, 25 F. Cas. 30, (No. 14,692d) (1807) (Burr I), Marshall ruled that the sought-after subpoena would issue to President Jefferson. Id. at 34, see H.W. Brands, "The Heartbreak of Aaron Burr" (Anchor Books 2012) at pp. 106-107 ("The president is not above the law, Marshall says. ... Members of the prosecution are disappointed at Marshall's decision; they soon learn that Jefferson is livid. ... But Jefferson has no answer to Marshall, and he grumblingly turns over the documents Burr has demanded."). But then, along with counsel, Marshall acquiesced in the limited submission made by Jefferson.

In the current kerfuffle, the Mueller report has been made public, except for some limited redactions, which the Justice Department says are required by law. If true, that would seem to be in line with Nixon and Burr; a president's exceptions to production will be upheld if they are reasonable. (New York Times News Service)

In the current kerfuffle, the Mueller report has been made public, except for some limited redactions, which the Justice Department says are required by law. If true, that would seem to be in line with Nixon and Burr; a president's exceptions to production will be upheld if they are reasonable. And the courts are even more solicitous of the executive branch in disputes involving testimony and documents if the contempt threat is coming from Congress. See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51, 57 (D.D.C. 1973) (In a civil action seeking declaratory relief, an injunction and/or mandamus to enforce subpoenas duces tecum directed to the president, the court determined that it did not have jurisdiction to decide the issue; "There is nothing in the Constitution, for example, that makes it an official duty of Presidents to comply with Congressional subpoenas.").

But Congress has its own means of prosecuting contempt, and in at least two instances, George F. Seward (1879) and H. Snowden Marshall (1916), the House of Representatives sent its Sergeant at Arms to take physical custody of executive branch officers who had been held in contempt. Josh Chafetz, "Executive Branch Contempt of Congress," 76 U. Chi. L. Rev. 1083, 1135-1140 (2009). In the first case, impeachment proceedings were later commended against Seward, the Judiciary Committee reported that he could not be compelled to incriminate himself while impeachment proceedings were ongoing, that report was not voted on because the congressional session ended, and the subpoena expired. The second case resulted in a U.S. Supreme Court decision (Marshall v. Gordon, 234 U.S. 521 (1917)), in which the court ordered Marshall's release from custody because the contempt stemmed from the writing of a letter, not from the obstruction of the performance any of the House's legislative duties.

That mode of enforcement has apparently fallen out of favor; more recent opinions of the executive branch's Office of Legal Counsel argue: "[I]t seems most unlikely that Congress could dispatch the Sergeant-at-Arms to arrest and imprison an Executive Branch official who claimed Executive Privilege," and that: "Only judicial intervention can prevent a stalemate between the other two branches that could result in a particular paralysis of government operations." Committee of the Judiciary v. Miers, 558 F. Supp 2d 53, 76-77 (DDC 2008). See Senate Select Committee, 366 F. Supp. at 54 ("[Plaintiffs] deliberately chose not to attempt an adjudication of the matter ... via Congressional common-law powers which permit the Sergeant at Arms to forcibly secure attendance of the offending party. [That] method, plaintiffs state, would here be inappropriate and unseemly.").

Nevertheless, the Judicial Branch itself has means to discourage the president and Congress from rejecting compromise and punting these disputes to the courts, in part because congressional subpoenas expire with the end of each two year congress; if the litigation is not resolved by then, it becomes moot. See Committee of the Judiciary v. Miers, 542 F.3d 909 (D.C. Cir 2008) (court granted a stay of the district court order requiring an appearance, and did not expedite the appeal.)

In Miers, former White House counsel for President George W. Bush (and briefly his U.S. Supreme Court nominee) Harriet Miers, and then-White House Chief of Staff Joshua Bolten were subpoenaed by the House Judiciary Committee to testify and provide documents concerning the forced resignations of nine United States attorneys in late 2006. President Bush asserted executive privilege, Miers and Bolten were held in contempt, and Speaker of the House Nancy Pelosi (D-Cal.) certified the House Contempt Report to the U.S. attorney for the District of Columbia, directing the U.S. attorney to present the contempt charges to a grand jury. However, the Justice Department declined to bring the congressional contempt citations before a grand jury, so the House Judiciary Committee filed a civil action seeking declaratory and other injunctive relief. 558 F. Supp 2d at 63-64. The district court ordered that: Ms. Miers appear and produce requested "non-privileged" documents; Mr. Bolten produce requested "non-privileged" documents; Ms. Miers could "invoke executive privilege in response to specific questions if appropriate"; and they both provide "a specific description of any documents withheld from production on the basis of executive privilege." 558 F. Supp 2d at p. 108. The executive branch appealed, the court of appeals granted a stay but did not expedite the appeal, so after the Obama administration took over an agreement was reached which included testimony under oath in closed proceedings and selected documents being turned over to the committee. 76 U. Chi. L. Rev. at pp. 1092-1093; see also Cheney v. United States District Court, 542 U.S. 367, 388 (2004) ("Given the breadth of the discovery requests in this [civil] case compared to the narrow subpoena orders in United States v. Nixon, our precedent provides no support for the proposition that the Executive Branch 'shall bear the burden' of invoking executive privilege with sufficient specificity and of making particularized objections.").

A judicial outcome of the current dispute is not a sure thing for either side. If Congress and the president want a resolution that restores balance and allows the country to move in a positive direction, they would do well to work hard at reaching a mutually agreeable, if perhaps somewhat distasteful, resolution. That's the way it's supposed to work. See generally Clinton v. Jones, 520 U.S. 681, 704 (1997) ("Sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty."). But if they prefer to continue the standoff to, say, possibly gain advantage in the 2020 elections, the courts can probably run out the clock so we voters can send in new players to resolve it in 2021.