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Smart guys hash out the U.S. attorney/subpoena issue, and Bong Hits 4 Jesus.

Thursday, March 22, 2007
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HH: There are a couple of issues in the headlines, so I’ve gone to my Smart Guys, John Eastman and Erwin Chemerinsky, John, a professor of law at Chapman University Law School, Erwin a professor of law at Duke University Law School, and asked them, and they have kindly agreed to spend an extra segment with us today to go over them. John and Erwin, welcome, always a pleasure to have you on.

JE: Thank you.

EC: Good to be with you.

HH: Erwin, I’d like you to set up, if you could, the doctrine of executive privilege before we move into the confrontation now looming between the House and the Senate and the presidency, sort of setting the stage for where we find ourselves in 2007.

EC: Sure, executive privilege is nowhere mentioned in the Constitution, but presidents have claimed that almost all the way back to the time of George Washington. It’s the ability of a president to keep secret conversations with, or memoranda from advisors. It’s about ensuring that a president and receive candid advice, sometimes it can have national security ramifications as the president is certainly learning information from advisors that are needed to protect the country. There’s only one major Supreme Court case about executive privilege. It’s United States vs. Nixon in 1974. The Watergate special prosecutor subpoenaed tapes, the White House tapes, to use of those who were involved in the Watergate cover-up. President Nixon claimed executive privilege. The Supreme Court unanimously, it was 8-0, ruled against President Nixon. The Supreme Court said presidents have executive privilege, but it’s not absolute. Executive privilege has to yield when there’s an overriding need for the information. And the Court there said that the need for evidence in a criminal trial outweighed executive privilege.

HH: And John Eastman, is Erwin’s assessment complete, do you think?

JE: Well, I don’t think entirely. I mean, he is right that it’s not specifically spelled out in the Constitution, but there are a couple of clauses in the Constitution that strongly suggest something like executive privilege. Plus the overall structure of the Constitution strongly suggests it as well. One of the clauses, for example, in Article II, the president has the authority to obtain opinions in writing from the chief department heads, from his chief advisors. And they conveys that there’s some deliberative process that’s going to go on between those chief advisors, that they work for the president, that they don’t work for Congress, that what we’ve set up is an executive branch that’s independent of Congress. It’s not a parliamentary system with a prime minister that owes its authority to Congress. And the overall structure of the Constitution, with the three branches broken out into the first three articles, each branch has certain areas that are a bit, a bit off limits from the others, there are checks built into system, but that they each operate within their own sphere. And the notion that the president has to answer to every request from Congress is no more solidly grounded in the Constitution than the notion that the president can demand certain outcomes from cases from the judiciary.

HH: Now Erwin, during the Clinton years, in the investigations that raged around his infidelity and lying under oath, the Clintons advanced a number of claims of privilege, not all of them connected to executive privilege, but they ended up in the D.C. Circuit. And in a case called In Re: Lindsey, the circuit adopted, in essence, the U.S. V. Nixon standard, that in fact, executive privilege exists. Do you doubt for a moment that that’s the relevant beginning point for the consideration of the current stalemate that’s coming about?

EC: I not only completely agree with that, I agree with everything that John said in terms of further elaboration of what I was pointing to, and I think you’ve pointed to the exact right precedent. I think the hard question is, is the Congressional need for this investigation enough to override executive privilege. And the three of us can give our opinions on it, but I think if we’re honest, we all have to say we just don’t know. There just isn’t an analogous case to give us guidance on this.

HH: Now before we go to that, to the guessing game, let me ask you, John, and I’ll come back to you, Erwin, is it likely that the courts will take a political question approach to this, and John, would you explain what that doctrine is?

JE: Well, the doctrine of political question is basically a way the court throws in the towel. This is a fight between the political branches. It’s…normally, it arises when the matter is specifically assigned to one of the other political branches. For example, do you have to have impeachment trials before the full Senate, or can they be before a subcommittee of the Senate? That’s…how that impeachment trial is conducted is entirely left to the Senate, it’s a political question assigned to another branch. But there’s another area where they do political question, and that’s when there’s no kind of judicially manageable line that would allow the courts to weigh in with a clear answer, and that there really are just kind of political disputes, and they tend to leave those to the political branches to work it out.

HH: And Erwin, when…what do you think about the possibility that either the D.C. Circuit, or the Supremes would adopt a political question analysis here?

EC: I think it’s possible. On the other hand, in the United States V. Nixon, he raised the political question doctrine, and it was rejected there. It’s also the case when you have two branches directly at odds here, there is a special role for the judiciary playing an umpire. The executive says we don’t have to have our officials testify before you, Congress says we have the subpoena power. And there’s many Supreme Court cases upholding that. Who’s going to resolve that, if not the judiciary?

HH: All right, now let’s get to predictions. Erwin Chemerinsky, the House and the Senate will vote subpoenas, the House already has, I’m not sure if the Senate got around to it today, to both Harriet Miers, Counsel to the President, and Karl Rove, his senior most advisor. What do you expect will happen?

EC: I expect a political compromise will be reached before the courts need to come to a decision. My honest assessment is what usually happens is there’s going to be a great deal of posturing on both sides. The President was posturing, Senator Leahy was posturing, but if you ask me my prediction, I think they’ll work it out before it needing to come to the courts.

HH: I have a procedural question. If they don’t, does the White House have to move to quash the subpoena? Or does the Senate and the House have to move to enforce it?

EC: It could go either way. I don’t think there’s any required procedure. In the United States V. Nixon, Nixon moved to quash the subpoena. My guess is what would be most likely here is if Harriet Miers, if Karl Rove are subpoenaed, they will move to quash the subpoena. Otherwise, what happens is if they ignore the subpoena or disobey it, Congress would hold them in contempt of Congress, and then you get to they’re challenging whatever punishment Congress would impose on them for contempt of Congress. I don’t see any reason why they’d want to take it that far. I assume they would just move to quash the subpoena.

HH: John Eastman, do you agree with that procedural likelihood?

JE: I do, but there’s one other case I want to talk about here, and sorry for my coughing. Just two years ago, Cheney V. United States, this involved the Vice President’s energy task force, and the Court pretty strongly there reaffirmed the notion, that internal deliberations, internal communications of the executive are not subject to disclosure. And there’s a very good reason for that, and that case was decided 7-2. So I think if this does get into the courts, I think you’re going to find the court pretty predisposed to weigh in on the side of the executive, and protect these internal communications.

HH: Now John, wasn’t that, though, subject to disclosure by a third party seeking documents under the Freedom Of Information Act?

JE: It was, and it was not Congress. But the notion of executive power, and the unitary executive, we’ve got an independent branch of government here, and that has to function internally. And what’s odd about this whole discussion is what we’re talking about in the backdrop is the firing of some U.S. attorneys who are political appointees, answerable and serving at the pleasure of the president. And the president can remove them if he doesn’t think that they’re following the policies he’s setting out. It’s pretty common place that in fact, every change of administration, you remove political appointees. But it’s not rare that you remove them mid-stream either, if you don’t think they’re doing the job you want them to do.

HH: Erwin Chemerinsky, let me argue with a little bit about…

EC: Yeah, I want to respond to that point, John’s point if I can.

HH: Go ahead.

EC: I mean, I think John, you’re minimizing what this is about. If this was just about his saying well, I’m going to remove a few U.S. attorneys, and that’s it, this wouldn’t be a story that goes on the way it does. The concern is that he was removing U.S. attorneys so as to stop prosecutions just for partisan political reasons, or he was removing U.S. attorneys because they weren’t willing to launch prosecutions for partisan reasons. If that’s what’s going on, and I think there’s strong evidence there was, then you’re talking about a real abuse of power, and maybe even a felony of obstruction of justice.

HH: All right, now let’s stay away from the substance of the argument, because we could end up going down that rabbit hole. I want to stay on the Constitutional issue for a couple more minutes. Erwin, if in fact George Bush stands his ground, as I expect he will for political reasons, as well as reasons related to the powers of the presidency, and this does get litigated, I want to go to what I think is the best argument in favor of the executive here, which is this is the flimsiest of situations on which for Congress to demand, because John has pointed to the fact that these are executive branch officials subject to removal at the whim of the president, and that all the other executive privilege exceptions, the Nixon case, et cetera, have to do with criminal proceedings. This is just a political dispute. And doesn’t, if the Court were to side with the Congress, doesn’t the Court unbalance the relation between the two branches?

EC: Not at all. And the reason I think you minimize this is there is so many cases that talk about how essential Congress’ investigative power is, and how Congress has the authority to subpoena witnesses. A lot of these cases came in the McCarthy era. Now what I think you’re doing is saying well, this is just a political matter. I think what Congress is saying is we’re investigating an abuse of power, and possible felonies. If the president could do this, could the president have kept everyone from testifying at the select Watergate hearings in the summer of 1973? And I think this is very close to that in the claim of it’s a serious abuse of power, and maybe felonious conduct.

– – – –

HH: John, when I went to break, I was saying that if a court or courts were to uphold the Senate or the House subpoenas in this situation, in essence it would undo executive privilege, because there would be no bar that could get lower than a trumped up political scandal, pronounced as much by a thin majority.

JE: Well, I think that’s right, and you know, what we’re getting close to here is the very potent predictions that Justice Scalia made back in the independent prosecutor case, Morrison V. Olson, about the danger that every political difference will all of a sudden become the subject of subpoenas, and forced testimony, and the failure to provide full candid information on things that you think ought to be kept quiet, because it was within executive privilege, will then lead to criminal prosecutions, and this criminalizing of policy differences, of political differences, will become the norm, and make the government impossible to function. And I think that’s what we saw, why people finally backed away from the independent prosecutor statute, and I think why we need to be very careful about the precipice we’re approaching here.

HH: Erwin?

EC: I disagree with your characterization of what this is about. I mean, there was an allegation on Monday that Carol Lam, the U.S. attorney in San Diego, was removed so she wouldn’t begin a criminal investigation, and perhaps prosecution, of the number three person in the CIA. It was reported that she was removed because of the way in which she’d gone after Duke Cunningham. It’s reported that as U.S. attorney in New Mexico, Iglesias, was removed because he wouldn’t launch prosecutions for partisan reasons. To me, if this is what’s happening, you’re dealing with an enormously serious abuse of power, and I think even a potentially obstruction of justice. So I think Republicans may want to dismiss this as something minor, but the reason that it’s not going to go away is it seems really serious.

HH: But Erwin, as of this moment, there is no criminal investigation, and given that fact, it is simply a series of assertions made in a partisan atmosphere that is hothouse, therefore, that any series of allegations made by anyone concerning anything that finds voice in the Senate, and a majority to put a subpoena out, could not be differentiated from that which we have right here, other than you’re saying oh, no, this one’s really bad. In fact, absent a criminal investigation, opened by Justice, it’s just another political complaint.

EC: That’s not right, and I think the analogy here is think back to the spring of 1973, when the Senate created the select committee on Watergate. At that point, we didn’t know that the corruption reached the top levels of the Nixon administration. One could have said in the summer of 1973 none of the Nixon administration top officials should go testify before the Ervin committee, because after all, it’s just all a partisan investigation. I think what you’re ignoring in both of your description is how this unfolded over the last few weeks. A story was told by the White House that they then had to recant. They then told another story that they then had to recount. And yet another story, and we keep getting more information that shows it wasn’t at all the way they told us in the first place. I don’t know that this is a serious abuse of power. I do know that it’s potentially a serious abuse of power, and that’s why Congress has to investigate.

HH: John Eastman, I like going back to the summer of ’73, because Nixon agreed to send those people. He did not assert executive privilege here. Here, Bush has fundamentally said no partisan witch hunt, no fishing expeditions, and I think going forward, unless there’s a criminal probe opened somewhere, it seems to me that the clear weight of precedent favors a court declining to enforce these subpoenas. Your final comments?

JE: Well, and there’s another way that the House and the Senate have more directly available to them. Let’s take Carol Lam, the accusations that Carol Lam was terminated because she wouldn’t prosecute additional members of Congress caught up in the Duke Cunningham scandal. Of course, Section 5 of the Constitution gives each house the ability to expel members for disorderly behavior. That would include criminal conduct or taking bribes. They have it within their power to do this on their own. The fact is that even if that’s true, if she was terminated because she was more aggressively going after white collar crime, her office was, as a result, shifting resources out of border crimes that had traditionally been part of that office. It is a policy judgment of the president to decide where those resources are to go. There’s nothing criminal about that, or obstructing of justice about that. The second thing is, you know, you look at the counterpoint here, the White House is also getting blasted for having investigated Representative Jefferson for getting caught with $200,000 dollars in cold cash in his freezer, and raiding his office. So I think proof that this is raw politics going on, is that in one hand, they’re being accused of not prosecuting members of Congress, and another hand, they’re being accused of prosecuting members of Congress. And isn’t this all evidence that they are just playing politics? It reminds me of Louie over Casablanca. I’m shocked to discover that there’s politics that…

HH: Patronage going on.

JE: …politics that goes on in the political branches of Washington.

HH: Yeah, that’s what I said. I’m shocked, shocked that there’s patronage going on here. Erwin, we’ll give you the last word on this, and we’ve got to move on to Bong Hits 4 Jesus.

EC: I wrote an op-ed in the National Law Journal last year saying that the executive was justified in being to search Representative Jefferson’s office, though there should be some kind of a special …to make sure that it wasn’t material that was unrelated to the investigation. I think this is truly what’s good for the goose is good for the gander. I think the executive can investigate members of Congress for violating the law, but members of Congress can investigate the executive for potentially violating the law. It goes both ways.

HH: John Eastman, Bong Hits 4 Jesus argued today before the United States Supreme Court. Tell us about it.

EC: Monday.

JE: Argued on Monday, I believe.

HH: Okay, Monday.

JE: This is a case, students were on a school-sponsored trip. They were lining the road across the street from the school while the Olympic torch came through, and one of the students unfurled a poster that said Bong Hits 4 Jesus. It kind of created a ruckus at the school, and the students, if I recall correctly, were suspended. So we’ve got a real, real issue about whether the 1st Amendment protected these students’ speech, or whether this falls within various exceptions to the free speech principles that operate on students in school, and part of the curriculum, and what have you.

HH: And Erwin, who’s going to win here?

EC: I think the Supreme Court is going to say that the students’ speech was protected by the 1st Amendment, but that they can’t recover damages from the principal, because there wasn’t sufficiently clearly established law that the reasonable officer would know. So I think it’s going to be a mixed verdict.

HH: And do you expect it’s going to rewrite the law? This is…this could cross over into a lot of different silos. I’ve been telling my Con Law students, I’m teaching them in a contingent fashion. Always we do, but this one is really contingent now.

EC: Well, in 1969, in Tinker V. Board of Education, the Supreme Court said students don’t leave their 1st Amendment rights at the schoolhouse gate. Schools can punish students only if the speech is disruptive. But then, in the last two Supreme Court speech cases, and that was 20 years ago, the Supreme Court deferred to schools, one was a student speech at a school assembly, another was an article in a student newspaper. I think what makes this different is this is a student standing on a public sidewalk unfurling a message that at best seems incoherent, and I don’t think the Court wants to say that schools can punish students for the views that they express on public sidewalks.

HH: John Eastman, the last 30 seconds to you.

JE: Yeah, you know, I’m not so sure the Court’s going to go that way. You’ve got the Court’s pressing a hypothetical here. What if the student has said smoke pot, it’s fun, Justice Scalia posed. How about rape is fun, offered Kennedy. How about extortion is profitable, Scalia rejoined. I think they’re trying to find the line here, and the fact of the matter is that even though it was a public sidewalk, it was part of a school curricular event. And I think the Tinker rules are going to apply to across the street sidewalk when it’s under the supervision of the school.

HH: John Eastman, Erwin Chemerinsky, thanks for the extra time with the Smart Guys, always a pleasure, Eastman from Chapman, Chemerinsky from Duke, and together the Smart Guys.

End of interview.

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