Perhaps one of the most consequential revelations in Tuesday’s New York Times bombshell was that former FBI Director James Comey made detailed contemporaneous accounts of “every phone call and meeting he had with the president” because, as the Times reports, he was concerned about “what he perceived as the president’s improper efforts to influence an ongoing investigation.”
Comey keeping detailed records on every interaction with the President doesn’t seem far-fetched, either. As the Times notes, it was a practice known to Comey’s associates and one practiced by former FBI Director (now special counsel in the Russia investigation) Robert Mueller, whose own notes famously bolstered Comey’s account of a 2004 showdown with the Bush administration over the warrantless wiretapping program.
It seems clear that there are, in fact, “Comey memos” (on which there is already a rather robust Wikipedia entry). It is also apparent that the memos are likely detailed and significant. The question now is who can get them and how.
For a variety of reasons, criminal prosecution of the President is out of the question (at least in advance of removal from office through the political impeachment process), and in any event Mueller will have easy access to the memos copies of which reportedly are in the custody of FBI officials. So the most immediately pressing questions are (1) how may Congress obtain the memos and (2) can Trump do anything to stop them?
How May Congress Obtain the Comey Memos?
Back in March, Susan Hennessey and I explained congressional investigatory powers, including the power to issue subpoenas:
Inherent in Congress’s oversight and investigative powers is the power to issue enforceable subpoenas to compel testimony and production of documents. This authority must be specifically delegated to committees. Both houses currently delegate that authority to all standing and subcommittees, but any newly created select committee would need to be delegated that authority by resolution. Committees, including select committees, are typically empowered to create their own procedural rules for issuing subpoenas—most often by majority vote, but sometimes the authority is granted to a single chairperson. A subpoena issued by a committee delegated with congressional subpoena power has the same legal force as if it were issued by the whole house of Congress. So failure to appear can lead to contempt.
There are few limitations on congressional subpoena power. Broadly speaking, the committee must have congressionally authorized subject matter jurisdiction, the investigation must have a “valid legislative purpose” (though Congress need not specify what it plans to do as a result of the investigation), and it may inquire only about information generally relevant to its jurisdiction. Again, this is all largely a question of delegation by resolution: as long as the resolution establishing the committee authorizes sufficiently broad jurisdiction, the committee’s subpoena power will be likewise broad.
Because each congressional committee makes its own procedural rules for issuing subpoenas, it’s important to look at those specific rules. The Senate Select Committee on Intelligence’s Rules of Procedure, for instance, provide that “decisions of the Committee shall be by a majority vote of the members present and voting,” so long as there is a quorum of at least one third of the committee members. That applies to authorizing subpoenas.
Under the House Rules, “a subpoena may be authorized and issued by a committee . . . only when authorized by the committee . . . , a majority being present.” However, the subpoena power “may be delegated to the chair of the committee under such rules and under such limitations as the committee may prescribe.” The rules of the House Committee on Oversight and Government Reform, for instance, delegate that authority to the chairman, mandating that the “chairman of the full committee shall . . . authorize and issue subpoenas.” When Jason Chaffetz says he has his “subpoena pen ready,” there’s power behind that threat: he actually does have the authority to issue a subpoena himself, without the vote of his committee or of the House.
Substantively, How Strong Would an Assertion of Executive Privilege Be?
The second issue is whether there is anything Trump can do to prevent Congress from obtaining the memos once it has issued a subpoena. He could try to do so through a claim of executive privilege over the documents, arguing that the underlying communications they memorialize were privileged. In March, Quinta Jurecic and I reviewed the basics of executive privilege:
In congressional investigations, the executive branch can assert constitutionally based executive privilege, which encompasses two basic types of privilege: deliberative process privilege and presidential communications privilege. Both are intended to protect the separation of powers and prevent congressional interference in executive decision-making.
The deliberative process privilege may be asserted by the executive branch more generally, not just the President. But it applies to a relatively narrow set of information relating specifically to decisionmaking. If there is underlying factual information, the executive branch may be required to disclose that information, separating it from the privileged information. And for information that isn’t covered by the deliberative process privilege, the President may attempt to assert the presidential communications privilege. That privilege applies to a narrower set of actors—the President and his close advisors—but a broader set of information. Neither privilege, however, is absolute as both may be overcome by a sufficient showing of need for the information.
The relevant privilege here is the presidential communications privilege. The more limited deliberative process privilege can be asserted by a broader range of executive branch actors over pre-decisional decisionmaking documents. (And as the D.C. Circuit has noted, that limited privilege “disappears altogether when there is any reason to believe government misconduct occurred” because “shielding internal government deliberations in this context does not serve ‘the public’s interest in honest, effective government.’”)
Here, since the material relates to conversations directly with the President (and perhaps with his close advisers), the broader presidential communications privilege is what is substantively at issue. That privilege is broad, but not absolute. As Quinta and I explained:
Under United States v. Nixon, the President is entitled to assert privilege over presidential communications—that is, communications relating to certain sensitive presidential decisionmaking. But the privilege is not absolute. In Nixon, the Supreme Court held that if the presidential assertion of privilege was based on general confidentiality rather than a claim about specific military or diplomatic sensitivity of the materials, a subpoena in a criminal prosecution could defeat the privilege.
In 1997, the D.C. Circuit Court of Appeals broadened the scope of the presidential communications privilege to include documents prepared by presidential advisors in the course of offering advice to the President. The case in question arose in the prosecution of President Bill Clinton’s Secretary of Agriculture, Michael Espy.
The Espy court noted that for both privileges, “courts must balance the public interests at stake in determining whether the privilege should yield in a particular case, and must specifically consider the need of the party seeking privileged evidence.” However, unlike the deliberative process privilege, the presidential communications privilege does not automatically cede where there is reason to believe government misconduct occurred, but rather only where the actor seeking the document can make a more stringent showing of need. The court wrote:
[T]his balancing is more ad hoc in the context of the deliberative process privilege, and includes consideration of additional factors such as whether the government is a party to the litigation. Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred. On the other hand, a party seeking to overcome the presidential privilege seemingly must always provide a focused demonstration of need, even when there are allegations of misconduct by high-level officials. In holding that the Watergate Special Prosecutor had provided a sufficient showing of evidentiary need to obtain tapes of President Nixon's conversations, the Supreme Court made no mention of the fact that the tapes were sought for use in a trial of former presidential assistants charged with engaging in a criminal conspiracy while in office. (emphasis added)
Finding a Senate subpoena of the Nixon White House tapes insufficient to overcome the privilege, the D.C. Circuit wrote that “the sufficiency of [the Senate Select Committee on Presidential Campaign Activities] showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee’s functions.” There, the committee had transcripts, but argued that the tapes may contain additional evidence. The court found the argument insufficient because the select committee had “shown no more than that the materials deleted from the transcripts may possibly have some arguable relevance to the subjects it has investigated and to the areas in which it may propose legislation,” and that it “point[ed] to no specific legislative decisions that cannot responsibly be made without access to materials uniquely contained in the tapes.”
The standard is fairly exactly. Does the requesting congressional entity need the material in order to perform its duties? Can it get the information some other way? Does it already substantially have the information and additional materials would be of limited marginal value?
This is a highly fact-dependent question and it’s hard to predict how a court would rule on it. Perhaps a court would say that James Comey may testify because that seems necessary to determine whether there was criminal conduct on the part of the President. But perhaps then the memos themselves would not be sufficiently necessary. Hard to say.
It is also possible to imagine that the new special counsel Robert Mueller would urge Comey not to testify. If Congress decides not to subpoena Comey directly for testimony, it’s hard to imagine a court would see the memos as sufficiently necessary to overcome a claim of privilege if Congress hasn’t taken the step of subpoenaing testimony directly.
Has President Trump Waived Executive Privilege?
A related issue is whether President Trump has waived the privilege by discussing (or tweeting about) the conversations. In the context of attorney-client privilege, disclosure of a communication to a third party typically waives the privilege. But the Espy court explained that waiver of executive privileges is more stringent. In that case, the court found that release by the White House of a final report did not waive the privilege “in regard to the documents the White House generated in producing the ultimate version.” According to the court, a “limited approach to waiver in the executive privilege context is designed to ensure that agencies do not forego voluntarily disclosing some privileged material out of the fear that by doing so they are exposing other, more sensitive documents.”
Courts have confronted waiver of executive privileges in a once-removed manner by analyzing waiver of FOIA exemptions. FOIA’s Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” According to the courts, this protects only documents that would be privileged in civil litigation (such as a civil contempt enforcement action brought by a congressional committee). The issue of waiver of Exemption 5 came up in the New York Times’s FOIA litigation to obtain the Office of Legal Counsel memorandum on the targeting of Al-Awlaki. There, the Second Circuit Court of Appeals found that the government had waived Exemption 5—in other words, waived executive privilege—over the legal analysis in the OLC memo in part because of public statements made by government officials:
In considering waiver of the legal analysis in the OLC-DOD Memorandum, we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as "an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killing of al-Awlaki] are correct."
The court then recounted public statements over a course of years made by senior Obama administration officials as to the legality of the targeting practices. These statements and a later white paper produced on the subject by the administration led the court to conclude that a waiver of Exemption 5 had indeed occurred.
So the key question is how to distinguish between Espy and the NYT FOIA facts. Is it a pattern of statements that will constitute a waiver? Is it an “extensive public relations campaign to convince the public” of certain facts?
On one hand, the fact that President Trump talks about some communications on a topic might not mean he waives executive privilege as to all communications on that topic. Perhaps, as in Espy, we want the President to share information publicly and will take a more limited approach to waiver. The explicitness of the statements alone also won’t suffice to waive privilege. Indeed, President Nixon had said, “Executive privilege will not be invoked as to any testimony concerning possible criminal conduct or discussions of possible criminal conduct, in the matters presently under investigation, including the Watergate affair and the alleged cover-up.” The court considered that statement a factor in weighing the interests in the case involving the dispute between the special prosecutor and Nixon, noting that it “support[ed the court’s] estimation of the great public interest that attache[d] to the effective functioning of” the Watergate investigation, but did not hold that statement to be a waiver of the privilege.
On the other hand, President Trump made very specific (and repeated) claims about some of the interactions in question: he described in detail asking Comey whether he was under investigation and he claimed Comey told him on three separate occasions that he was not under investigation. It borders on absurd to say the President could then assert the privilege, premised on confidentiality, preventing Comey from answering a question such as, “Did you ever tell the President he was not under investigation?” In the Nixon tapes case, the D.C. Circuit noted:
The simple fact is that the conversations are no longer confidential. Where it is proper to testify about oral conversations, taped recordings of those conversations are admissible as probative and corroborative of the truth concerning the testimony. There is no “constitutional right to rely on possible flaws in the [witness’s] memory. . . . [N]o other argument can justify excluding an accurate version of a conversation that the [witness] could testify to from memory. In short, we see no justification, on confidentiality grounds, for depriving the grand jury of the best evidence of the conversations available.
As there, here the conversations are in large measure no longer confidential. President Trump has confirmed various versions of them. Perhaps there is no confidentiality reason—and thus no presidential communications privilege reason—to deny Congress the best possible evidence of conversations we know from the President took place. Or perhaps the President has waived privilege only as to those specific conversations in which he asked if he was under investigation.
Procedural, Rather Than Substantive, Issues
The key issues relating to executive privilege are likely to be procedural, rather than substantive. If Comey has custody of the memos (at least the ones that are not classified), he could be subpoenaed directly. If the President requests that Comey not turn over the memos based on executive privilege but Comey decides to turn the memos over anyway—because he determines that he doesn’t believe executive privilege applies—the President would have to seek injunctive or declaratory relief in court to restrain Comey from handing them over. As the party seeking judicial relief, the White House would face an uphill battle.
Alternatively, if the memos are in the custody of officials at the FBI and the President asserts a privilege, preventing someone at the FBI from turning over the memos, Congress could use its authority to attempt to cite the particular FBI official for contempt. The problem for Congress is that its inherent contempt authority is exercised by either the House or Senate calling the witness and trying her before the entire chamber. That hasn’t happened in over 75 years. And, as Susan and I explained, the criminal contempt mechanism requires participation by the Department of Justice.
That leaves Congress with the option to file suit in federal court to force the executive to turn over the documents. But as the D.C. Circuit noted in Espy, “given the restrictions on congressional standing and the courts’ reluctance to interfere in political battles, few executive-congressional disputes over access to information have ended up in the courts.”
Indeed, Congress hadn’t filed such a suit since Watergate when, in 2008, the House Committee on the Judiciary filed suit to enforce a subpoena for testimony by former White House Counsel Harriet Miers related to the George W. Bush Administration’s firing of nine U.S. Attorneys. The federal district court refused a motion to dismiss the suit. The court found that the congressional committee unequivocally had standing to enforce its subpoenas in a civil action in federal court, and that “the Supreme Court [has] made abundantly clear” that “it is the judiciary (and not the executive branch itself) that is the ultimate arbiter of executive privilege.” After the court denied the motion to dismiss, the suit was voluntarily dropped on appeal when the new Obama Administration withdrew the assertion of privilege and agreed that Miers could testify.
In one recent case, a congressional committee prevailed over an assertion of executive privilege by the White House. In 2012, the House Committee on Oversight and Government Reform filed a suit against Attorney General Eric Holder seeking release of documents—over an assertion of executive privilege—relating to Operation Fast and Furious. The courts sided with the Committee and by 2014, the Justice Department was ordered to turn over 65,000 pages worth of documents. In 2016, a federal district court determined that the Administration’s public statements about its handling of the scandal undercut claims to executive privilege.
It seems likely that congressional committees would have standing to sue if the executive asserted privilege and refused to produce the memos. It also seems likely that courts may not be so sympathetic to President Trump’s assertion of privilege, focusing on Trump’s public statements about the conversations and his conduct. But we just don’t have many examples of what courts would do if faced with a protracted interbranch conflict.
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In the Nixon tapes example, the D.C. Circuit was reluctant to interfere with the privilege, though it found the privilege overcome in the special prosecutor’s subpoena dispute with Nixon that ultimately reached the Supreme Court. With Watergate as a predictive model, newly appointed Special Counsel Robert Mueller will be in a much stronger position than Congress to enforcement subpoenas through the courts, even over claims of executive privilege.