Posts Tagged ‘Hearings’

Testimonial Immunity for White House Aides?

February 20, 2009

The House Judiciary Committee has been trying to get to the bottom of whether the White House improperly influenced the firing of six US Attorneys during the Bush Administration.  When former White House Counsel Harriet Miers and then-chief of staff Josh Bolten were subpoenaed by the Committee, they and the White House claimed that close White House advisers were absolutely immune from having to testify.  In a well-reasoned opinion, Judge John Bates rejected the claim of absolute immunity.  Bates had it right:  whatever the justification for an assertion of absolute immunity for the President himself, the claim for his key aides is quite thin — and, something he did not stress in his opinion, it gets thinner once they become former aides or aides of a former president, as Miers was at the time of the decision and as Bolten has since become.  At the time of the original decision, Marty Lederman blogged on the topic, and I will not repeat his judicious remarks here.  

Now, the case is in the news again, because the Court of Appeals for the District of Columbia, which is hearing the appeal, has declined an administration request for a two week delay in the government filing its brief.  That brief is now due February 25. 

The Obama administration would be wise to leave the battlefield on this one.  Bates’ opinion only says that when subpoenaed Miers and Bolten must show up at the Committee hearing.  At that time, they will still be able to assert executive privilege over answers to specific questions that are appropriately covered by that privilege.  That is quite enough protection to advance any President’s interests in ensuring confidential discussions.  That is going to take some nimble negotiations with the attorneys for Miers and Bolten as well as with the House of Representatives, all of whom will have to be on board.  But stonewalling the entire hearing through the use of an absolute immunity claim that was rejected in the court below is hardly striking a blow for greater transparency.  If the immunity claim had strong support in precedent, that would be one thing, but the claim with respect to former aides is quite weak.

Confirmation Hearings Set for Two Key Justice Department Officials

February 18, 2009

On Tuesday, February 25 at 2 p.m., the Senate Judiciary Committee is schedule to convene confirmation hearings for Dawn Johnsen slated as head of the Office of Legal Counsel and for David Kris to be head of the National Security Division. OLC is the epicenter for legal interpretations regarding surveillance, interrogation and detention, while NSD is operations central for law enforcement efforts to defeat terrorism within the United States. Both the legal interpretations and the operational policies of the Bush Administration came under enormous criticism, and a central theme of the hearings is certain to be trying to pin down each nominee on how much the Obama administration will differ from the approaches taken under President Bush. Copies of Professor Johnsen’s and Mr. Kris’ responses to the Committees questionnaire have been posted on the Committee website, here and here along with letters the Committee has received in support of each nominee.

Secret Law

February 13, 2009

As we have noted, in the final weeks of the Bush Administration the Office of Legal Counsel released a number of opinions, both memoranda and letters, that had not previously been publicly disclosed, although some had been shared with the Congress.  Propublica and the ACLU are both monitoring a rather long list of as-yet-undisclosed memos.

The recent disclosures have not entirely satisfied some members of Congress.  Representative Brad Miller (D-NC) has introduced H. 278, “The OLC Reporting Act of 2009.”  The bill, which is substantively the same as S3501 introduced by Senator Feingold in the 110th Congress, would require the Attorney General to notify Congress anytime DOJ issued an “authoritative interpretation” of a statute that concluded it was unconstitutional in any particular application; that employed the canon of interpreting statutes to avoid constitutional concerns for reasons of separation of powers or intruding into the President’s powers; that relied upon a legal presumption against applying it to any actors in or actions of the executive branch; or that concluded part of the statute had been superseded by implication by a later enacted statute.

Each of these techniques of legal interpretation figured prominently in the legal analysis of significant opinions issued by the Office of Legal Counsel during the Bush Administration.  They each have the result of changing the effective coverage of a piece of legislation enacted by the Congress.  A dramatic example:  in the White Paper the Department of Justice released to explain why the Foreign Intelligence Surveillance Act did not prevent the President from authorizing warrantless surveillance, the Justice Department relied in part on the argument that the FISA had been impliedly repealed by the Authorization on the Use of Military Force.  This was a particularly weak argument – it stretched the doctrine of implied repeal quite far – but the relevant point here is that had Congress known about this interpretation and thought it wrong, it could have enacted language making clear that it intended no implied repeal when it enacted the AUMF.  But it did not know, and may never have known except that the New York Times story exposed the NSA program, and that compelled the administration to issue the White Paper defending it.  Congress cannot exercise its governance responsibilities in regards to a problem if they don’t know the problem exists.  The Reporting Act is aimed at surfacing similar legal interpretations in the future.

In one of the recently released OLC opinions, the Office of Legal Counsel concludes that the 2008 version of the OLC Reporting Act is unconstitutional.  Stay tuned for more discussion of this – and watch for questioning about it at Dawn Johnsen’s confirmation hearings as incoming head of OLC.  She helped write the Reporting Act.



Holder Hearings - Part II

February 11, 2009

An earlier post observed that pinning down the views of any lawyer in the Executive Branch on the scope of the president’s authority to override or disregard statutes can be extremely difficult.  Individuals being questioned about the limits of the president’s constitutional authority quite often respond with a statement of policy.  Even when the answer does speak to constitutional authority it often contains weasel words:  it is hard for any president’s lawyer voluntarily to take the idea that actions taken contrary to law could be lawful in extreme circumstances entirely off the table.  But then the effective limitation of the president’s powers depends on who is defining “extreme.” The earlier post provided examples from Eric Holder’s confirmation hearings of answers that might have soothed the worries of questioning Senators but actually failed to limit the President’s authority very much.  There were two exchanges, however, one with Senator Leahy and the other with Senator Hatch, in which Mr. Holder went beyond policy statements and avoided weasel words — one regarding authorization of torture and the other the use of warrantless intelligence surveillance.  Here they are:  (more…)