- I. Introduction
- II. Executive Resistance and the Power of Executive Branch Lawyering to Enable It
- III. Trump v. Mazars, or, Why It’s Good to Be President
- IV. The (Limited) Virtues of Impeachment for Obstruction of Congress
- A. Fighting Exclusively on Congressional Turf: Interbranch Versus Intrabranch Weapons Generally
- B. Impeachment for Obstruction as Authoritative Congressional Constitutional Judgment
- C. Impeachment for Obstruction as Congressional Self-Defense
- V. Conclusion
The first impeachment of President Donald Trump continued America’s years-long civic education on the separation of powers. Notably, the Second Article of impeachment alleged obstruction of Congress, a federal crime, but in this instance asserted specifically as an abuse of power after the President refused to comply with the impeachment inquiry. The Second Article thus pitted the House of Representatives not only against the President but also his Executive Branch lawyers in a dramatic exercise of both constitutional interpretation and institutional self-defense. Although the Second Article received comparatively little attention, it is worthy of greater examination than it has received. It implicates important questions about the reach of the federal criminal law into the presidency as well as the constitutional separation of powers in the context of a congressional investigation into presidential misconduct. And it is one way that the House has endeavored to address one of the most complex and underappreciated questions in American constitutional government: How does Congress effectively compel the Executive to comply with its demands for information?
The modern Congress has been minimized at the expense of the modern presidency, which too often barely resembles the presidency of the Constitution. Although many factors have influenced the presidency’s expansion over decades, Congress has often been complicit in the metastasis of executive power. And yet Congress—usually in times of divided government, when the majority of members in at least one chamber of the Congress are of a different political party than the President—still battles with the President. When it does so, opportunities arise for significant constitutional deliberation and judgments about each branch’s respective constitutional powers, outside of the context of litigation. Nowhere are those battles—sometimes, to be sure, characterized by partisanship—more pitched than in the arena of congressional investigations. This is especially true where the President is the subject of legislative inquiry into serious misconduct, abuses of power, or even crimes.
Congress has the power to investigate in aid of its legislative functions, and, as the Supreme Court recently acknowledged, that power extends to investigations of the President. And yet the President may use his own weapons—indeed, perhaps his mere constitutional status—to resist, or at least to make the congressional inquiry more cumbersome. While these conflicts with the Executive concerning access to information create a space in which each branch can articulate competing constitutional visions and make its own constitutional judgments, it also creates a unique opportunity for Congress to assert its institutional prerogatives and protect itself against further minimization in an era of presidential dominance. Separation‑of‑power conflicts can be good for the constitutional system.
Federal courts have historically played a muted role in resolving congressional–executive information disputes. Rather, those disputes have been typically resolved, even after initial acrimony, through negotiation and accommodation and the give‑and-take of the political process. Recent controversies, including those that led to the Second Article, have complicated that model.
In April 2019, Special Counsel Robert S. Mueller III released a report concerning his office’s investigation into claims that the 2016 Trump presidential campaign received assistance from Russia and that Trump subsequently obstructed justice in an effort to quash the investigation. This fueled demands for documents and testimony before the House, controlled by members from the Democratic Party after the 2018 elections. Investigating committees in the House also sought access to President Trump’s financial information, believing it could reveal further evidence of corruption, foreign influence, or abuse of office. And in September 2019, controversy erupted after it became public that President Trump was the subject of a complaint from a whistleblower in the Intelligence Community. The complaint alleged, among other things, that in a call between President Trump and the President of Ukraine on July 25, 2019, President Trump pressed Ukraine for assistance in investigating a Democratic political rival and his family (former Vice President—now President—Joseph R. Biden Jr. and his son, Hunter). The negative reaction to this revelation was swift: on September 24, 2019, House Speaker Nancy Pelosi announced that the House was engaged in a formal impeachment inquiry, with six House committees empowered to gather evidence that might support Articles of Impeachment. The President objected, and his Counsel announced that the White House would not comply with the inquiry. This resulted in numerous battles over testimony between the House and Administration officials—and a Second Article of Impeachment based on obstruction of Congress.
The many congressional investigations of President Trump and those in his orbit challenged traditional approaches to accommodation and even tested the role of the judiciary. Federal courts were asked to resolve questions about the scope of congressional power to obtain information with respect to the President, White House aides, and Administration officials. These investigations also tested the role of the Department of Justice and its Office of Legal Counsel (OLC), which has intervened in numerous congressional-demand controversies, typically to defend the interests of the President and provide a legal rationale for nondisclosure or noncompliance.
The resort to federal litigation seems sensible, at first glance. It involves an apolitical arbiter and one that, at least theoretically, sits beyond presidential domination or influence. But that first glance can be deceiving. Litigation can create the appearance that Congress is dependent upon the judiciary for enforcement of its constitutional prerogatives. This can have the effect of obscuring important institutional powers—those that are central to Congress’s functioning in the constitutional system—and of involving the judiciary in battles best fought between political forces. Federal litigation can also be slow and tedious, potentially resulting in the loss of opportunities to hold witnesses or officials accountable and obtain needed information. And federal judges might be sympathetic to claims of executive power and to limiting Congress’s authority to investigate a president.
Litigation, then, while sometimes seemingly desirable, is an imperfect remedy for Executive Branch refusals to cooperate with Congress. But so, too, are remedies that require the enforcement of federal criminal law—including criminal contempt, obstruction, false statements, tampering, or referrals for other criminal conduct—and thus the cooperation of the Executive Branch itself. Prosecution of crimes committed against Congress is important for safeguarding Congress’s constitutional identity and institutional functions. But Congress cannot always rely upon it, particularly when the alleged crimes are committed by members of the President’s administration, or perhaps by the President himself. Further, the Justice Department has appeared to take the position that a sitting President cannot be prosecuted or even indicted (though this position is more complicated than it seems).
If Congress believes that its institutional prerogatives and interests have been harmed by the Executive, how can Congress vindicate its interests if it cannot rely upon other branches to protect them? Congress has intrabranch remedies—such as inherent contempt and impeachment—that have the virtue of not requiring courts, prosecutors, or other Executive Branch officials. But these internal remedies can also be complicated and risky; they demand careful deliberation and judgment.
This is not a model, then, for a congressional investigation with teeth. And the Executive Branch must surely know it. The Executive will play the odds, and the odds do not favor Congress.
Impeachment, in particular, is a constitutional big deal: complex, politically fraught, reserved for the most gravely serious acts, and—thanks to political polarization and intense partisanship—difficult to do with identifiable success, especially when the subject of the impeachment is the President. For day‑to-day information access disputes with the Executive, impeachment is likely neither a proportionate response nor worthy of the resources and political capital that it requires. Some scholars expressed concern, indeed skepticism, about the Second Article of the first Trump impeachment, in part because, in their view, impeachment appeared to be a hasty response to a complicated conundrum involving assertions of presidential privileges and immunities grounded in the constitutional separation of powers, problems that the judiciary could resolve. The Trump legal team agreed. Understandably, some scholars—and the President’s defenders—found the House’s theory on the Second Article to be a potentially dangerous one. To the extent it is ever appropriate to impeach for contumacy, there is a compelling argument that it should be reserved for serious, ongoing obstruction for which there is no other apparent effective remedy in Congress’s toolbox.
Separation-of-powers concerns. Political risks. Partisan polarization in the Senate that makes conviction by a supermajority nearly impossible. Given the limits of impeachment, then, the Second Article appears to have been a wholly ineffectual, and even dangerous, overindulgence. At least, that is one lens through which to view the Trump impeachment for obstruction.
Why, then, impeachment for obstruction . . . ever? Because there is yet a different lens through which to view it.
If Congress wishes to fight on its own turf, then impeachment—though limited—remains Congress’s ultimate assertion of constitutional turf in holding the Executive accountable. Though ill-fated, the Second Article arguably represented a necessary and important constitutional judgment by Congress about institutional self-defense, the seriousness with which Congress ought to take its prerogatives, and the harm the President tried to do to it. Of course, the House’s move was risky and potentially dangerous, if used imprudently. That would be true of any remedy sought against a now-dominant Executive. But under the right circumstances, impeachment can connect the Congress’s “rival interests” with its constitutional fidelity. Viewed through this lens, particularly when the underlying offense is one against Congress, impeachment is a key feature of a robust separation of powers. The Second Article, whatever its shortcomings, tried to clarify that essential point.
The literature on congressional–executive conflicts would benefit from an exploration of impeachment in this specific context. This Article seeks to do that. It highlights the ways in which these interbranch disputes arising from serious congressional investigations reflect a dynamic of constitutional deliberation about the tools each branch has for its defenses, with special focus on impeachment as an ultimate form of congressional self-defense in a case of serious and damaging Executive obstruction. It examines the role of the OLC and White House lawyers, and the complicated constitutional judgments that arise when a congressional investigation triggers the Executive’s assertion of a constitutional privilege or immunity that would prevent cooperation with Congress. It then considers the Supreme Court’s recent opinion in Trump v. Mazars USA, LLP, which sets forth a new standard for courts to consider when litigation ensues over a congressional demand for presidential papers. That standard increases the burden on Congress. Given this combination of factors when Congress investigates the President, this Article finds that the deck is stacked against Congress. Nevertheless, the Article concludes that among its several imperfect options, impeachment is, and should remain, a meaningful weapon—though a constitutionally limited one. Indeed, such a weapon is especially important for Congress, which exists in a political world where it is otherwise diminished and weakened by an oversized modern presidency and by its own tendency to acquiesce. Although the law must also be prepared to identify and resist raw politics masquerading as constitutionalism, impeachment for obstructing Congress can reify the separation of powers.
II. Executive Resistance and the Power of Executive Branch Lawyering to Enable It
“Gathering information,” Josh Chafetz has written, “is not a peripheral part of Congress’s job; it is central to the legislature’s identity and function.” The need for information is particularly acute when Congress investigates wrongdoing by Executive Branch officials, yet it is precisely these kinds of inquiries that draw Executive resistance. That resistance may therefore safeguard the Executive and serve the Executive’s interests, but it also can prevent Congress from carrying out its own constitutional functions. Withholding information from Congress thus creates a constitutional dilemma for the Executive: while Executive Branch officials may be protecting their own institution, they may be simultaneously failing to safeguard the institution of the Congress. That is a critical dilemma to consider, for the President takes an oath to preserve, protect, and defend the Constitution (and his subordinates take a similar oath to the Constitution). To what extent does that obligation include accounting for Congress and its constitutional prerogatives?
A. Empowering the Presidency, Constraining the Congress
Perhaps no federal actor outside of the judiciary has had greater influence on the development of constitutional doctrine in the arena of executive power and congressional–executive relations than the OLC. It was an OLC opinion from the 1970s—arguing that a sitting President cannot be criminally prosecuted or indicted, a view reinforced in a 2000 OLC opinion—that led to the confounding conclusions in Volume II of the Mueller Report. The Report enumerated instances of potential obstruction of justice committed by President Trump but concluded that the Special Counsel was unable to make a traditional prosecutorial judgment as to the underlying conduct where it was committed by a sitting president. An OLC opinion has also asserted that a sitting Executive Branch official could not be subjected to a criminal contempt prosecution upon asserting a valid claim of executive privilege. More recently, it was OLC opinions on a range of congressional information requests that fueled concern that the Trump Administration was too liberal in its recalcitrance toward Congress. And in January 2021, OLC released an opinion arguing that congressional oversight of the White House is more constitutionally limited than oversight of Executive Branch departments and agencies. These judgments are not only debatable but may actually have the effect of making impeachment more appealing.
Legal scholars have long argued about the significance, and proper place, of OLC’s work on the legal landscape. And to be sure, OLC opinions (like those cited above and others) have courted controversy and raised questions about OLC’s credibility. Some have defended OLC as an office that can both empower and constrain the Executive through responsible lawyering. Others suggest that OLC is subject to formal and informal restraints on its role as a legal decider. Still others have lamented the extent to which OLC can be subject to troubling influence by the White House. Harold Hongju Koh, for example, said, “OLC must be protected from its own eagerness to please.” And Bruce Ackerman has made the case that the modern presidency is no longer meaningfully constrained by legalism. Rather than revisiting these interesting debates about OLC’s work, the focus here is on the role that OLC plays (along with counterparts in the White House Counsel’s Office) in constraining Congress by validating presidential nondisclosure.
Most recently, Emily Berman has effectively tackled the problems for Congress created by OLC’s influence. Her conclusions are not good news for Congress and persuasively demonstrate how OLC can effectively disrupt the congressional investigative function. This is because, as Berman argues, OLC stakes out “pro-executive” positions on separation‑of‑powers questions and then “makes its own legal reality” by crafting opinions designed to fit its pro-executive vision.
OLC’s recent opinion on testimonial immunity offers a useful example. One of the key figures in the Mueller Report was Donald McGahn, then-White House Counsel, who, according to the Report, was asked multiple times by the President to see to the firing of the Special Counsel. In May 2019, the House Judiciary Committee scheduled a hearing at which McGahn was to testify, pursuant to subpoena. Prior to the hearing, however, OLC issued an opinion in which it concluded that senior presidential advisors have absolute immunity from congressional investigative processes. The McGahn litigation endures, but the OLC’s position is especially noteworthy.
According to the OLC opinion, its advice is based on long‑standing Justice Department thinking about the separation of powers under presidents of both major political parties. This was based, the opinion said, on the fact that senior presidential advisors are not subject to Senate advice and consent, and possess an independence from Congress that “reflects that of the President.” Because the President cannot be compelled to appear before Congress, then, neither may his senior advisors. Moreover, forcing testimony from senior presidential advisors could produce inadvertent or coerced disclosure of confidential information; could chill communications with the president, particularly where advisors must give unpopular advice; and would not promote valid legislative interests. Although the district court in Committee on the Judiciary v. Miers explicitly rejected the claim of absolute testimonial immunity raised by President George W. Bush’s former White House Counsel, whom the House had voted to hold in contempt, OLC disputed the holding. Rather, it said that Miers “did not adequately consider the different and heightened separation of powers concerns bearing upon the testimony of the President’s immediate advisers before Congress.” Moreover, OLC concluded, the Miers opinion was never litigated at the appellate level.
This episode shows the power of the OLC regime within the Executive Branch. This kind of judgment has the potential to reinforce the perceptions of a legal advice regime in which the Executive Branch is the sole judge of its own authority (even when courts have disagreed on the point) and to shield the Executive by casting Congress as the lawbreaker.
The dispute over access to President Trump’s tax returns offers another useful example of OLC’s influence, albeit one that could not rely so easily on available internal precedent. In April 2019, the Chairman of the House Ways and Means Committee, Representative Richard Neal, relied upon a federal statute in requesting the President’s tax returns for tax years 2013 through 2018. The Treasury Department refused the request.
In a letter to Chairman Neal, Treasury Secretary Steven Mnuchin argued that the request lacked a valid legislative purpose. He did so, he said, in reliance on advice from the Justice Department. Consistent with Secretary Mnuchin’s letter, that advice was later memorialized in an OLC opinion, in which OLC concluded that the Chairman’s request was merely pretextual and lacked a legitimate legislative purpose. Its “true aim,” OLC concluded, “was to make the President’s tax returns public.” Consequently, OLC concluded, the Secretary properly refused to disclose the President’s returns. The Ways and Means Committee thereafter filed suit in federal court, seeking civil enforcement of its request for the returns.
Perhaps the most brazen of efforts to stymie congressional investigations during the Trump era came in connection with the 2019 impeachment inquiry. After Speaker Pelosi announced the start of the impeachment inquiry related to the Trump–Ukraine phone call and whistleblower complaint, White House Counsel Pat Cipollone sent a letter dated October 8, 2019, to House Democratic leaders stating that the White House would refuse cooperation in the inquiry. Cipollone’s letter described the House inquiry as “constitutionally invalid” because no resolution had yet authorized the inquiry and because it failed to provide the President with all of the process that he was due, violating the “rights of . . . the Executive Branch.” It also argued that the inquiry was simply designed “to overturn the results of the 2016 election.” Referring to the House’s “constitutionally illegitimate proceedings,” Cipollone concluded that he hoped the House would “abandon the current invalid efforts to pursue an impeachment inquiry and join the President in focusing on the many important goals that matter to the American people.” On October 31, 2019, the House adopted a resolution authorizing the impeachment inquiry.
The Cipollone letter was not taken seriously in many professional legal circles, notwithstanding its effect on Administration officials caught in the impeachment inquiry. And there was no contemporaneous evidence that OLC had accepted, or was complicit in establishing, Cipollone’s position. After the President had been impeached but before his trial commenced in the Senate, however, OLC issued an opinion essentially advancing the chief legal theory set forth in the Cipollone letter: that the House had not properly authorized the inquiry prior to passage of House Resolution 660. Therefore, OLC concluded, any subpoenas issued before that date were invalid because they “had no compulsory effect.” The opinion conceded that if the committees seeking information had other legitimate, nonimpeachment‑related bases for the subpoenas, then the Executive Branch could engage in negotiation and accommodation. But OLC concluded that was not the case: the subpoenas were based on as-yet-unauthorized impeachment inquiry and therefore could not be used to compel production.
Consequently, OLC’s position was narrower than that of the Cipollone letter. OLC did not explicitly defend Cipollone’s categorical language and in fact conceded that if the subpoenas had been properly authorized, the Executive Branch would evaluate them through the “constitutionally required accommodation process.” Nonetheless, the practical effect was to vindicate Cipollone’s blanket refusal to cooperate by concluding that the committees lacked authority to issue subpoenas based on the House’s impeachment power.
OLC’s opinions demonstrate the power, and risks, of authoritative constitutional deliberation in the political branches. They not only bind Executive Branch actors, but, as Berman’s research demonstrates, they often have the effect of dramatically strengthening the constitutional position of the President or Executive Branch in a given dispute. And though there is debate over the extent of continuity that OLC’s work demands from one Administration to the next, following OLC’s independent judgments can play a critical role in safeguarding the presidency. But it can also stymie Congress’s efforts to gather information about or hold accountable those who engage in wrongdoing or who fail to comply with congressional demands.
What is remarkable in comparing the OLC memo with the White House’s position is that OLC was not merely interpreting the constitutional prerogatives of the President; it was, as the House argued, defining the permissible scope of a congressional impeachment inquiry and doing so in a way that would, if accepted, bind the Legislative Branch, too. Such a move can have the effect of emboldening Congress in judging the scope of its own powers and likely did in Trump’s case.
B. Executive Privilege as Both Sword and Shield
United States v. Nixon holds that executive privilege—though not found in the constitutional text—is a doctrine of constitutional dimension, rooted in the separation of powers. But Nixon also holds that the privilege is qualified, not absolute, and must account for competing interests. Where there is a sufficient showing of need, the privilege must yield as it did in Nixon. Notably, Nixon was not impressed by only generalized “confidentiality” interests attenuated from the exercise of a president’s constitutional powers.
Since Nixon, many contentious information-access disputes between the President and Congress have involved the scope of executive privilege. Nixon, of course, involved a criminal investigation and not a congressional one, leaving some questions about how the privilege works in the context of Congress’s investigative and enforcement authority. Jonathan Shaub, for example, has recently articulated an understanding of executive privilege that rejects the existing justifications, instead viewing it as a form of presidential immunity, applicable only in the ordinary oversight context (and not in an impeachment). And though courts have generally been reluctant to police information-access disputes between the President and Congress more broadly, they have assisted in developing the executive privilege doctrine that could govern these disputes in litigation today. Indeed, the post‑Nixon caselaw from the District of Columbia Circuit clarifies the distinction between executive privilege writ large and the presidential communications privilege, a distinctive species of executive privilege and the one chiefly at issue when the umbrella term “executive privilege” is invoked.
Consistent with its approach to Executive Branch interests during congressional investigations more generally, OLC and the White House Counsel have often made broad and highly abstract assertions of presidential “confidentiality interests” when asserting executive privilege. The broader these assertions, the greater chance they will ignore, or at least downplay, the limited principles set forth in Nixon and the other relevant caselaw. Nixon and the lower courts have consistently said that the privilege is qualified and that generalized assertions of a need for confidentiality will not be enough to outweigh a sufficient showing of need. Nonetheless, these privilege assertions have the effect of serving both as a shield—to protect not merely the President’s institutional prerogatives but also efforts to uncover wrongdoing—as well as a sword, diminishing Congress’s investigative reach and gutting its institutional authority and significance.
The Trump presidency saw a continuation of the Executive’s robust understanding of the privilege. In some instances, Executive Branch lawyers during the Trump presidency simply purported to reiterate legal advice (and the elevation of “confidentiality interests”) that was consistent with prior presidencies, such as when OLC determined in 2019 that Congress could not demand that agency employees testify without agency counsel present. At other times, though, the Trump presidency extended this robust understanding of the privilege into new realms.
Consider, for example, the hearings involving the Mueller Report. Corey Lewandowski, former chairman of the Trump presidential campaign in 2016, testified under subpoena before the House Judiciary Committee. He was questioned about his conversations with the President, which, according to the Mueller Report, involved the President asking Lewandowski to speak with Attorney General Jeff Sessions about the Special Counsel’s investigation, in hopes of convincing the Special Counsel to limit the investigation to future election interference.
Lewandowski was not at the time, and had never been, a White House employee. Nonetheless, in a letter sent to the Committee in advance of Lewandowski’s appearance, Cipollone argued that Lewandowski could not reveal the content of his communications with the President. Rather, according to Cipollone’s letter, the executive privilege extends to presidential communications made even to those who do not have formal roles as Executive Branch employees. “[A] President,” Cipollone wrote, “must frequently consult with individuals outside of the Executive Branch, and it is well settled that those communications are also subject to protection.” In support of this position, Cipollone’s letter cites a 2007 opinion from OLC arising out of the U.S. Attorneys firing scandal during the George W. Bush Administration. That opinion also recognized the President’s “confidentiality interests” in conversations with those outside of the Executive Branch.
The White House’s (and OLC’s) position seems to exploit—for the President’s benefit, naturally—a tricky gap in the privilege doctrine. Nixon speaks only in terms of presidential communications with “advisors,” and “those who assist him,” and of “communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” The implication of these various passages is that the Court envisions the relevant communications as ones involving only those who assist the President in carrying out his constitutional functions as Executive Branch employees. Yet Presidents likely receive advice from all sorts of individuals, such as their spouses, close personal friends, personal private lawyers, or others who may be in a position to offer valuable assistance in presidential decision-making. The logic of the OLC and the White House Counsel’s Office (WHCO) appears to be that as long as the communication concerns a core presidential responsibility, it should not matter with whom the President is communicating. The communication is protected.
Given these competing points, there are good reasons to think that the OLC opinion, and the White House’s position on Lewandowski, may be wrong—or at least that the Cipollone letter overstates the “well settled” nature of the law on this question.
First, although there is no case directly addressing this issue, In re Sealed Case offers some guidance. There, the D.C. Circuit had to determine whether the privilege extended to documents neither authored by nor reviewed by the President himself. Rather, the communications involved presidential advisors. In resolving this problem, the court found that the privilege extends to private communications between close presidential advisors. “Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege,” the court wrote.
In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate. Only communications at that level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisors.
The Sealed Case court relied upon the holding in Ass’n of American Physicians & Surgeons v. Clinton (AAPS) to find that “operational proximity” is what matters. Of course, Sealed Case and AAPS used this language to describe the law that applies where the communication does not involve the President directly. The Lewandowski example, however, concerns direct presidential communications. Nonetheless, Sealed Case could be read to understand that the entirety of the privilege exists within the context of operational proximity to the President.
Moreover, courts have recognized that privileges, including the presidential communications privilege, should be narrowly construed. In the congressional investigative context, construing them broadly can diminish the limited nature of the privilege, show inadequate respect for the kinds of competing needs that Nixon acknowledged (consider, for example, whether anyone else could provide the same information that Lewandowski could provide), and invite a robust congressional response.
Another presidential communications privilege problem that has long existed but gained prominence during the Trump presidency is whether an Executive Branch official can preemptively assert the privilege (by refusing to answer questions about conversations with the President) as a way of reserving the President’s right to formally assert it later. Heidi Kitrosser has described this practice as part of the “shadow effect” of the executive privilege. Shaub has also alluded to this practice, regarding it as a part of the “prophylactic executive privilege” that results in nondisclosure of “any information potentially covered by the executive branch’s view of executive privilege.” Shaub further explains that this dominant view of executive privilege doctrine as prophylaxis is used “to vastly expand [executive] authority vis-à-vis Congress.”
The matter that gave rise to the Trump impeachment inquiry offers a helpful example. It further guides understanding of how gaps in the caselaw on the presidential communications privilege can be exploited by OLC and WHCO to amplify executive power through the issuance of a formal legal opinion or authoritative letter siding with the President against Congress.
On September 26, 2019, Acting Director of National Intelligence (Acting DNI) Joseph Maguire testified publicly before the House Permanent Select Committee on Intelligence (HPSCI) about his delay in disclosing the whistleblower complaint regarding President Trump. Although the whistleblower statute requires disclosure to Congress of any complaint that states an “urgent concern” (a statutory term of art, which the Inspector General for the Intelligence Community had found to exist), the Acting DNI withheld the complaint. OLC later determined that the complaint did not satisfy the statutory definition of “urgent concern” and thus did not require disclosure. When asked why he did not disclose the complaint anyway, the Acting DNI stated that he had concerns about whether the complaint contained information that would be protected from disclosure by executive privilege.
The White House never asserted the privilege. But when Representative Jim Himes of Connecticut asked whether he had spoken to the President about the whistleblower complaint, the Acting DNI refused to answer, stating that his conversations with the President were privileged. The Acting DNI gave the same answer when pressed by Representative Sean Patrick Maloney of New York and HPSCI Chairman Adam Schiff, even when told that he was not being asked for the contents of the conversation but only whether such a conversation occurred. Maguire’s assertion was thus consistent with the approach taken by others in the Administration—that even absent a formal invocation of executive privilege, and even during a legitimate congressional hearing, an agency head need not disclose to Congress conversations with the President.
Another well-documented example arose from a hearing conducted by the Senate Intelligence Committee on June 13, 2017. Attorney General Jeff Sessions had recused himself from the Justice Department’s internal deliberations concerning the Russian active measures campaign in 2016. Public reporting indicated that President Trump was deeply frustrated over Sessions’s recusal. In an exchange with Senator Martin Heinrich of New Mexico, Sessions refused to discuss his conversations with the President on the matter.
He emphatically denied that he was invoking executive privilege (and, in fact, conceded that only the President could do so). Nonetheless, Attorney General Sessions relied on “longstanding” Justice Department practice in refusing to answer, noting that doing so was designed to protect the President’s “constitutional right” to later invoke the privilege (he also noted the potential for invoking “other privileges”). Senator Heinrich eventually stated, “[y]ou’re impeding this investigation.” Later, Sessions offered the same explanations when refusing to answer similar questions posed by Senator Angus King of Maine. When Senator King asked Sessions for the legal basis for his refusal to answer, Sessions was unable to offer specifics other than vague references to Justice Department policy and the need to protect the President’s authority to later invoke the privilege.
Once again, no consequences followed Sessions’s refusals. As Kitrosser has explained in the context of Sessions’s case specifically, the practice of preemptively asserting executive privilege in this way can shield the Executive in helpful ways. But, Kitrosser argues, it also “stops rather than starts or enriches conversations” and can kill efforts to obtain information and accountability.
Of course, many other examples of executive privilege disputes abound. The point here is merely to highlight the kinds of novel disputes that provide an opening for Executive Branch lawyers to broaden presidential nondisclosure law and practice—and to do so not in the service of a core constitutional power but only to safeguard undifferentiated “confidentiality interests.”
C. The Risks of Executive Branch Lawyering in a Regime of Separated Powers
It is tempting to admire with envy the ability of Executive Branch lawyering to broadly safeguard the presidency through a robust understanding of the separation of powers. But what the separation of powers gives, it can also take away.
The more muscular that OLC makes the prerogatives of the Executive, the greater the perceived need to counterbalance OLC’s supersized vision of executive power. And the more that OLC endeavors to interpret Congress’s powers, and not just the Executive’s, the greater the incentive for Congress to challenge that interpretation with a defensive one of its own.
That need is even greater when an OLC opinion appears to be unusually (perhaps even oddly) protective of the President and has a dubious constitutional basis. Indeed, where an OLC opinion induces Congress to litigate its position in court, any resulting court decision that rejects OLC’s view could actually have the effect of weakening the presidency. Therefore, this kind of constitutional deliberation, while sometimes essential and often beneficial to the interests of the President, can create risks for the Executive Branch if OLC overstates the scope of executive power.
Moreover, on the one hand, the Executive’s increasingly capacious understanding of the presidential communications privilege certainly may redound to the benefit of the presidency. But this approach may also have the effect of perpetuating ever more expansive assertions of the privilege, growing with each year of each presidency over time. This could have the effect of diminishing Congress further and of creating the perception that this ever-broader protection of the President is really just politics couched as constitutionalism. Congress seems unable to effectively counter, but it is not. After all, both President Nixon and President Clinton faced potential impeachment for obstructing Congress after protracted executive privilege battles. Where presidential privileges and immunities become instruments not for protecting the core constitutional functions of the presidency but for shielding the President and his associates from reasonable inquiry into serious wrongdoing, this is an invitation for more muscular assertions of congressional authority, like impeachment.
III. Trump v. Mazars, or, Why It’s Good to Be President
Predictably, the Executive Branch often views Congress’s investigative powers with disfavor. But can courts be more neutral arbiters? If so, then Congress might well desire litigation to enforce its demands, notwithstanding the downsides. But the Supreme Court’s recent decision in Trump v. Mazars USA, LLP imposes additional limits on the reach of congressional investigative powers as applied to a sitting president. And although President Trump did not achieve the precise result he sought, the decision adds another layer of authority that gives an advantage to the Executive and minimizes congressional interests, perhaps incentivizing a more muscular congressional response.
A. The Mazars Holding
Three committees in the House—Oversight and Reform, Financial Services, and Intelligence—sought information, including tax returns, about President Trump’s financial background. The Committee on Oversight and Reform issued a subpoena to Mazars USA, Trump’s accounting firm and the custodian of the documents. Similar requests were also issued to Deutsche Bank and were the subject of separate but later consolidated litigation. Mazars and Deutsche Bank did not object to the subpoenas, but Trump did. The President therefore filed suit in federal district court, in his personal capacity, to prevent enforcement of the subpoenas. The House prevailed in the lower courts, which, finding that the dispute involved a private third party and not the Executive directly, did not give deference to the House but employed the ordinary standard for validating congressional investigative power: the legitimate legislative purpose.
President Trump argued to the U.S. Supreme Court that a congressional subpoena requesting the President’s private papers should be subject to the “demonstrated, specific need” standard from Nixon. The House, by contrast, argued again that as long as it had a legitimate legislative purpose for requesting the information, the President, like any citizen, had to comply with the subpoena. The House identified several pieces of legislation for which the requested information would be relevant: enhancing anti-money laundering laws with respect to the real estate industry; enhancing laws to ensure that the intelligence community has adequate resources to combat threats posed by foreign actors attempting to use leverage against the President; tracking illicit financial flows from foreign actors; regulating presidential transitions and inaugurations to protect against foreign influence; reforming foreign-agent-registration law; and enhancing federal ethics laws, among others. In an opinion by the Chief Justice, the Court rejected both arguments and remanded the case to the District of Columbia and Second Circuits.
Nixon, the Court found, was decided in the context of an executive privilege claim arising from a criminal investigation. But President Trump had not asserted executive privilege in this litigation. Nixon was therefore not an appropriate precedent to apply here and the Court refused to employ its “demonstrated, specific need” standard to the congressional request. Adopting the President’s contention could possibly leave Congress without the ability to conduct investigations of the President when it has real concerns about presidential misconduct or abuse of office.
In assessing the House’s arguments, the Chief Justice’s opinion reaffirmed that Congress has investigative powers it may use to aid in the exercise of its enumerated constitutional authority. To make this power meaningful, the Court has held that Congress must have a mechanism for obtaining the information it seeks; it must be able to compel compliance. The Mazars Court does not question this and reaffirms Congress’s subpoena power. Ordinarily, then, so long as Congress is legitimately seeking the information in aid of its legislative powers, a subpoena is enforceable. But when Congress uses its investigative powers to seek the private papers of a sitting President, the Mazars Court found, different and “special” considerations are at play in light of the separation of powers. Congress’s assertion of broad investigative powers anytime it has a legitimate legislative purpose fails to account for the separation‑of‑powers concerns that arise when the President is the object of the congressional inquiry. If Congress simply needed a legislative purpose, it could easily connect an information request to some conceivable piece of legislation and thereby use its investigative power to harass a sitting president. This is true even where the Congress demands private, but not official, presidential papers.
Consequently, because neither President Trump’s nor the House’s arguments suffice to capture the nuances of this situation, the Court adopted a four-factor test for lower courts to employ when Congress seeks the President’s personal papers.
First, courts must “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.” If the information that can aid Congress is otherwise available to it, then Congress’s interests in obtaining the information from the President are diminished. Second, courts “should insist” that the subpoena for a president’s personal papers be “no broader than reasonably necessary” to advance Congress’s legislative aim. The narrower the subpoena, the Court reasoned, the less likely Congress is to “intru[de]” on the Executive. “Third, courts should be attentive to the nature of the evidence” that Congress has proffered to demonstrate a legitimate legislative purpose. The “more detailed and substantial . . . the better,” the Court added. Finally, courts should “careful[ly]” assess the burdens on the President so as to ensure that Congress—a rival political branch—does not use the subpoena simply to marginalize the presidency.
These factors are not exhaustive: “[O]ne case every two centuries does not afford enough experience for an exhaustive list.” Rather than apply the factors, the Court remanded for lower courts to do so.
B. The Significance of Presidential Stature
The Court’s approach rests on a sensible premise: Congress already has limited investigative powers, and a congressional demand for information from a sitting President differs from an informational demand to any other person, thereby implicating separation-of-powers concerns that require a more exacting form of judicial scrutiny. The seemingly good sense of protection is derived from James Madison’s concerns about the “enterprising ambition[s]” of the Legislative Branch, against which “the people ought to indulge all their jealousy and exhaust all their precautions.” Yet, in its zeal to account for those concerns and to ensure that Congress’s investigative power is not unlimited nor employed in ways that may incapacitate or hinder the Executive, the Court has made congressional investigations of the Executive even more cumbersome and created even more space for executive recalcitrance toward Congress. By addressing one separation‑of‑powers problem, the Court created another.
The Court is not entirely unkind to Congress in Mazars. The Chief Justice’s opinion acknowledges the legitimacy of the congressional investigative power with compulsory process to support it. And by rejecting (on the surface, at least) President Trump’s effort to have courts employ Nixon’s “demonstrated, specific need” approach, the Court demonstrated a respect for the “significant congressional interests” that it identified. This includes interests in investigations that might relate to impeachable offenses. Although Justice Thomas argued in his dissent that Congress must use its impeachment powers—rather than ordinary investigative authority in aid of its legislative powers—when it seeks private, unofficial papers of a sitting President, at least seven Justices rejected that position. (Justice Alito dissented on separate grounds, though he agreed that Justice Thomas made a “valuable argument” about the House’s power to obtain the private papers of a sitting President.)
Mazars also reaffirms that the President is not immune from compulsory congressional process or subject to the standard of need that Congress might be required to show if the President claims executive privilege. Nixon, of course, was decided in the context of a grand jury investigation and not an interbranch dispute over information access. The Court has yet to rule on the scope of executive privilege in a congressional investigation, though there are reasons now to think that—when combining Nixon and Mazars—the Court would view the institutional protections for the presidency as more robust when resisting Congress in a legislative investigation that is not part of an impeachment inquiry. But at least where, as here, the President does not assert executive privilege, Congress can theoretically avoid Nixon-style need-balancing and obtain the information it seeks.
But even conceding to the congressional interests at stake, the Court was not content with validating the House’s assertion of a legitimate purpose. Instead, it held that neither the President, the House, nor the lower courts adequately accounted for the separation-of-powers concerns implicated by the confrontation between Congress and the sitting President. The “special considerations” standard thus superseded Congress’s legitimate legislative purpose. The good news for Congress is therefore mitigated by the Court’s four-factor “special considerations” framework, which is ultimately undeferential toward the Legislative Branch and adds an additional layer of cover for the President. The framework essentially functions as a heightened‑need standard, though facially different from Nixon.
The new framework places the burden on Congress. Even if Congress identifies legislation—indeed, even if, as here, Congress identifies several pieces of legislation—for which the presidential papers would be relevant, the burden remains on Congress to satisfy the “careful” assessments of courts. With this in mind, Presidents have every incentive to resist compliance and instead pursue, or willingly be subject to, litigation.
Moreover, the central (sensible) premise of the Mazars framework—that courts must employ an analysis accounting for the separation‑of‑powers concerns when Congress investigates a sitting President and not allow Congress to roam so free as to encroach upon the presidency—is applied in such a way as to elevate the status of the Executive at Congress’s expense, and with little justification.
The separation‑of‑powers “problem” at issue is simply this: a rival political institution acting within the scope of its constitutional authority asked the President for information that he did not want to provide. He did not (and likely could not) claim that the information was privileged, or that the information sought relate to any exercise of his constitutional functions or inhibit his ability to carry out his constitutional duties. Yet the Court, in crafting its four-factor framework, did not require him to assert any constitutional privilege or to identify any constitutional function of the Presidency upon which the congressional request was encroaching. The insulation the President receives in the four-factor analysis is solely a product of the President’s constitutional status: being the President is enough to heighten Congress’s burden, even if his interests in resisting disclosure are highly generalized and Congress’s interests in the disclosure are highly particularized.
In Nixon, notwithstanding the constitutional dimension of executive privilege, the Court was unwilling to validate a generalized interest in the confidentiality of presidential communications. Moreover, in considering conflicts between presidential and congressional powers, the Court commonly looks to specific constitutional functions of the presidency upon which Congress was encroaching or specific efforts by Congress to aggrandize its own power by seizing that which belongs to the President. For example, in Zivotofsky v. Kerry, the Court found that because the President enjoys the sole power to recognize foreign governments, Congress could not require the State Department to print passports stating that a person born in Jerusalem was born in Israel. The same is true in the appointment and removal cases. In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Court found good-cause removal restrictions that protected the CFPB Director were unconstitutional because they specifically interfered with the President’s power to remove principal officers. In Bowsher v. Synar, the Court held that Congress could not control the execution of the law—a power specifically granted to the President—through an officer under its control and for which it retained removal authority.
But here, Congress was not trying to exercise, or seize for itself, any executive power. The concern, rather, was that Congress could hinder or harass the President, and thereby inhibit the President’s ability to fulfill his constitutional role, if its investigatory powers were not limited in scope. Placed in proper context, this is the “impetuous vortex” about which Madison expressed legitimate concern in Federalist 48: if legislative authority is not carefully circumscribed, it will have a tendency to swallow up everything else. This concern requires additional defenses for the “more feeble” departments. But Congress’s investigative power—certainly subject to abuse—has always been limited. And today’s presidency is hardly enfeebled, hardly in need of additional security against an ambitious Congress. Mazars only serves to further diminish Congress in asserting itself against an already potent Executive. The Court, though, requires nothing of the President, not even so much as a specific assertion of Article II power that Congress has threatened. Moreover, although the case is seemingly limited to requests for personal papers—which, the Court says might pose a “heightened risk” of legislative overreach—the Court appears to acknowledge that its reasoning might extend to demands for official papers as well. The Court notes “congressional demands for the President’s papers can implicate the relationship between the branches regardless whether those papers are personal or official. Either way, a demand may aim to harass the President or render him ‘complaisan[t] to the humors of the Legislature.’”
Contrast this with the Court’s holding on the same day in Trump v. Vance, that the President does not enjoy absolute immunity from a New York state grand jury subpoena that sought essentially the same financial information as in Mazars. Nor, the Court held, does a state prosecutor have to make a heightened showing of need when the President is the recipient. Instead, if the President wishes to avoid compliance, he may challenge the subpoena on the grounds of overbreadth or bad faith, or perhaps some other factor unique to the presidency. But the burden is on the President.
How do we reconcile Vance’s understanding of presidential compliance duties with that in Mazars? One relatively simple explanation is that Mazars involves an interbranch dispute and thus implicates the separation of powers. Another explanation is that Vance involves a criminal inquiry rather than a legislative one. But each of those explanations only serves to further diminish the significance of Congress and its investigative function as an aid in carrying out its constitutional role. Indeed, it is curious that the Court gives greater advantages to a state grand jury than to the Congress in seeking to gather presidential information.
The Mazars Court, therefore, identifies a separation‑of‑powers problem in the mere fact of Congress seeking the personal papers of a sitting President because of the legitimate fear that a dangerously broad congressional investigative power could hamper the presidency. But the Court does little to wrestle with the separation‑of‑powers problem created by a President who willfully obstructs Congress in its effort to gain information that would assist in carrying out its constitutional functions.
C. The Practical Effect of Mazars
Mazars has consequences for using a theory of obstruction to hold the President accountable for deliberate failure to comply with congressional information demands. At first, this seems like an odd reading of Mazars. The case was not concerned with a charge of obstructing Congress or any specific claim of wrongdoing by the President; it did not involve a subpoena of the President himself or any administration official, but rather, a private third‑party custodian. And it involved the personal financial records of the President rather than official papers. But although Mazars certainly provides Congress with a mechanism for seeking and even obtaining this kind of information, a careful reading of Mazars also provides an inescapable roadmap for presidential defiance of congressional requests for information, though it ultimately (and erroneously) elevates the presidential office beyond what the separation of powers would require.
Mazars, therefore, has three practical consequences. First, it minimizes congressional investigative and oversight authority by placing the burden on Congress to justify itself when it seeks information from a sitting President, even when its investigative requests are reasonable and its legislative purpose sensible. Second, as it minimizes Congress’s interests, it elevates the presidency by requiring courts to carefully scrutinize Congress’s interests but imposing no such burden on the presidency merely because of the President’s constitutional status, even where the President makes no specific claim of congressional encroachment other than the burden of providing information. Third, it will inevitably produce more litigation over interbranch information disputes by enabling a president to use the courts as a shield or by forcing Congress to use the courts as a sword, and thereby become supplicants of the federal judiciary.
If Congress cannot rely on the Executive to comply and if litigation does not afford Congress satisfaction, then perhaps there is a fourth practical consequence of Mazars when Congress identifies wrongdoing in the presidency but meets it with recalcitrance: impeachment is now the ultimate game.
IV. The (Limited) Virtues of Impeachment for Obstruction of Congress
Admittedly, the power of an OLC opinion to persuasively describe the scope of the President’s authority—or simply to resist the Legislative Branch—is significant. So, too, is the Supreme Court’s word from Mazars. But OLC opinions do not bind and are entitled to no deference from Congress. And though Mazars makes Congress’s job harder, it does not contradict many years of constitutional law protecting Congress’s power to gather information, even from the Executive. Therefore, given the Executive’s likely recalcitrance, the weapons at the Executive’s disposal, and the uncertain nature of litigation that may now be inevitable after Mazars, Congress’s most promising battle plan is to subdue its adversary by fighting with its unique weapons on its own turf. But because intrabranch weapons raise complicated constitutional problems, they demand an added layer of careful intrabranch deliberation in Congress. And when the President is the relevant offender, the options narrow even further and the need for constitutional clarity is even greater. In light of the Second Article of the first Trump impeachment, this section focuses on impeachment as a still-meaningful remedy for Executive Branch obstruction of Congress, notwithstanding its limits and the virtues of other possible remedies. Impeachment for obstruction (1) allows Congress to fight the Executive on its own turf, without reliance on the other branches; (2) allows Congress an opportunity to authoritatively render its own constitutional judgments and challenge those of the Executive through an explicitly constitutionalized process committed exclusively to Congress without resort to the courts; and (3) represents a strong form of congressional self-defense that rectifies the separation of powers and mitigates the diminution of the modern Congress and the dominance of the modern presidency.
A. Fighting Exclusively on Congressional Turf: Interbranch Versus Intrabranch Weapons Generally
Congress has created a substantial body of criminal law to protect its institutional interests and its members. Federal criminal law allows for the punishment of contempt of Congress. It also provides punishment for making false statements to Congress, and for one who, with a corrupt state of mind or through threats or force, “influences, obstructs, or impedes or endeavors to influence, obstruct, or impede” a congressional inquiry. It further provides punishment for a range of conduct related to witness tampering in an official proceeding, which is defined to include proceedings before Congress. Assaulting a member of Congress or member-elect is a defined (and serious) offense, and it is a capital offense to kill a member or member‑elect. Safeguarding Congress as an institution requires enforcing these laws.
Yet Congress is not a criminal law enforcement entity. It does not indict, prosecute, or punish violations of the criminal law. So although federal criminal law offers substantial protection for Congress and its members, Congress must rely on the other branches to receive the protection of those laws through indictment, prosecution, and punishment of those who violate them. Criminal law enforcement is, therefore, a mechanism for protecting Congress but requires cooperation and participation along the spectrum of separated federal powers. Federal prosecutors in the Justice Department, grand jurors, and federal courts all must participate in the effective enforcement and administration of the criminal laws that safeguard Congress.
The problem, of course, is that Congress cannot always count on the cooperation of the other branches, notably the Executive, to protect it through criminal prosecution. This is most often true with respect to the laws that protect Congress’s information‑gathering powers. The Justice Department has generally refused to prosecute modern cases of contempt involving Administration officials. Although notably, the Special Counsel charged President Trump’s former personal lawyer, Michael Cohen, and political advisor, Roger Stone, for obstruction of Congress, both of whom were private citizens, not Administration officials. Special Counsels are a possibility, of course, and there is sensible scholarly argument for taking this route (albeit under prior law). But existing regulations leave the appointment in the hands of the Attorney General, not Congress, reinforcing the problem of bias in favor of the Executive Branch. And even if appointed, a Special Counsel is bound by the U.S. Attorneys Manual and limited on prosecutorial decisions that may be imposed by departmental policy (including OLC opinions).
Consequently, Congress must be prepared to rely to a greater extent on its internal weaponry. This is a kind of law enforcement, one that differs from traditional criminal law enforcement but nonetheless reflects the institutional needs and prerogatives of the Legislative Branch in the constitutional system. Although the primary focus here is on impeachment and the use of it for obstruction of Congress, this is not to say that impeachment is the only, or even best, enforcement mechanism.
Chafetz has spoken compellingly about the congressional power of the purse and its use in congressional–executive information access disputes. Congress, Chafetz suggests, should exercise this power by zeroing-out funding for particular agency offices or for the salaries of those held in contempt.
Meanwhile, inherent contempt—the power of Congress, wholly internally, to punish nonmembers for breach of the privileges of either house—has gained in popularity among commentators, though apparently not among members. Of course, the Justice Department, through OLC opinions, has taken the position that Executive Branch officials cannot be subjected to inherent contempt. That position is subject to serious dispute. Morton Rosenberg and William Murphy have also recently proposed a new method of approaching contempt. Rosenberg and Murphy argue that Congress should adopt a modified inherent contempt procedure that imposes graduated fines for noncompliance. If this fails, Rosenberg and Murphy argue, the Speaker of the House should be empowered to appoint a private lawyer to prosecute a criminal contempt.
All alternatives to impeachment have their virtues as well as their vices or limits. But in light of the first Trump impeachment and the events that led to it, and because of its character as a form of congressional constitutional deliberation and the likelihood of continued executive recalcitrance toward Congress, impeachment for obstructing Congress is especially worthy of further examination.
B. Impeachment for Obstruction as Authoritative Congressional Constitutional Judgment
The Supreme Court explicitly recognizes each branch’s power to interpret the Constitution when performing its constitutional functions. Impeachment as political branch constitutional deliberation has already been the subject of important scholarship. And the absence of—or, at least, extremely limited prospect of—judicial review of an impeachment reinforces the significance of the House’s constitutional decision-making. The Second Article exposes two consequential congressional judgments: Executive obstruction of Congress can be viewed as an abuse of power, and Congress can authoritatively recognize, but also reject, constitutional defenses asserted by the Executive.
1. Obstruction of Congress as High Crime and Misdemeanor.
The House has “the sole [p]ower of [i]mpeachment.” Not only does this mean that no other entity can impeach, but it also means that the House alone has a distinctive power. That power must permit some substantive judgment; it must mean not only that the House is the only one who may impeach but also the House is the only one who can determine when impeachment is appropriate—when to exercise the power. As is always true with the determination of whether an act constitutes treason, bribery, or high crime and misdemeanor, Representatives must first consider the applicable standard for making this determination. This represents the primary constitutional judgment the House must make during an impeachment inquiry.
Under limited conditions, contempt of Congress is a criminal offense, as is corruptly obstructing, influencing, or impeding a congressional inquiry. It was a popular refrain during the first impeachment that the articles did not allege a crime or violation of law. The President’s defenders even made this a focus of their criticisms. But federal criminal law shows that claim was not entirely accurate. The Second Article unequivocally alleged conduct that is proscribed by federal criminal law. It is true that the House did not specifically allege a violation of a criminal statute in the Second Article. But why would it? The Constitution requires that the impeachable offense be “[t]reason, [b]ribery, or other high [c]rimes and [m]isdemeanors.” The weight of scholarly commentary, as the House Report details, indicates that a formal violation of criminal law is not required, though, to be sure, treason and bribery are both federal crimes and a high crime and misdemeanor could also be a violation of criminal law. It therefore was not necessary that the House treat obstruction of Congress for purposes of impeachment in the same manner that it would be treated in a criminal indictment.
So, quite apart from the strict mandates of the criminal law, the Second Article reflects a judgment that obstruction of an (impeachment) inquiry by the President or another Executive Branch official is not only a crime but also constitutes an abuse of office that amounts to a high crime and misdemeanor. Although the first Trump impeachment was the first time that such an article was approved, it was not the first time that such an article was seriously considered: the articles against Richard Nixon and an early draft of the articles against Bill Clinton contained similar allegations, though they never received a House vote.
Abuse, then, was the underlying theory of the Second Article against Trump. As the House argued, “Even when the President strenuously disagrees with the impeachment inquiry—and even when he doubts its motives—he must obey the law and allow others to meet their legal obligations.” This means that a president, notwithstanding his objections, cannot “dictate the terms of impeachment inquiries,” as “[t]he danger of allowing Presidents to do so is manifest.” Consequently, obstructing an impeachment inquiry “is itself an impeachable abuse of power under the Constitution.” The House did not say that a president has no legal basis for refusing disclosure to Congress, nor that Congress would not consider those presidential interests. Indeed, the House acknowledged them. But when a president obstructs an impeachment inquiry, he disrupts constitutional processes, and if permitted to succeed, can himself make the House’s sole power of impeachment ineffectual. Therefore, the House concluded, obstruction “without lawful cause or excuse . . . may constitute an unconstitutional effort to seize and break the impeachment power vested solely in the House.”
Though this understanding of the impeachable offense does not deny the President’s institutional powers and interests, it says that they are limited. And when he exceeds those limits by obstructing an impeachment, the House concluded, he abuses his power in a manner that is itself impeachable.
2. Considering the Constitutional Defenses on Impeachment for Obstruction.
When failure to comply with an inquiry forms the basis for the impeachable offense, an additional consideration is necessary: Did the Constitution protect the President, or other official, with respect to the relevant act or omission? In other words, is there a constitutional “defense” that exists, such that the act or omission is neither criminally obstructive nor an abuse of power, and thus not impeachable in the first instance? These considerations reinforce the significance of, but ought not ineluctably validate, Executive Branch lawyering.
This was a major focus of President Trump’s response to the Second Article. His lawyers did not argue that obstruction of Congress could never be an impeachable offense. Instead, their chief arguments were that the House had not properly authorized the impeachment inquiry, and thus could not enforce its demands for information and compliance, and that a President cannot “obstruct” Congress if his noncompliance is based on lawful privileges or immunities that the House failed to successfully challenge in court. Several Senators who voted to acquit on the Second Article made similar arguments to those of the President’s lawyers, lamenting the lack of litigation.
The first argument is less a defense based on presidential power and is really an argument that the House had exceeded its authority; one cannot corruptly or unlawfully obstruct an inquiry that is itself invalid. The latter argument, however, is the more constitutionally interesting one, as it functions as a way of both negating culpability and justifying the contumacy.
It is in this latter contention where we see the OLC’s influence, on which the President specifically relied in the Senate trial. Indeed, the appendix to the President’s trial memorandum contains copies of the OLC documents justifying noncompliance. Notwithstanding the possibility that OLC will overstate the significance of its interpretations, the separation of powers requires that the House take the substance of these constitutional defenses seriously. If the President refuses to comply with a subpoena or other request for documents or testimony on the ground that OLC has advised him that the requested information is protected from disclosure by the presidential communications privilege, because Congress lacked relevant authority, or because the inquiry otherwise implicates the separation of powers, then the failure to comply is arguably not mere contumacy. It is, rather, constitutionally based and defensive, an exercise of legitimate power rather than an abuse of it. But the argument goes even further, as it bears on the President’s culpability, as well as whether his conduct was legally or constitutionally justified. In conventional criminal law terms, then, this particular defense operates as both failure of proof and an affirmative defense.
It is true that Congress is not bound to prove the elements of statutory criminal law on impeachment articles. But it is questionable that an act or omission done in good faith and based on a legitimate constitutional basis can constitute the kind of serious abuse of power that would justify impeachment for a high crime and misdemeanor. Absent such an abuse, the President’s recalcitrance lacks culpability that would warrant impeachment.
Culpability, then, is an overlooked element of the impeachment debate and ought to be a key aspect of it. Just as treason and bribery have identifiable culpability elements, so, too, should other high crimes and misdemeanors. Otherwise, the impeachable offense would be one of strict liability. This seems contrary to a coherent theory of the impeachable offense, particularly where the impeachable offense is both a crime that requires corrupt intent or willfulness and an abuse of power. In criminal law, the more serious the nature of the offense and the more severe the penalty, the more likely a court is to determine that the underlying offense requires proof of some mens rea. The same notion should inform impeachments as well. President Trump’s lawyers did not couch the defense in these precise terms. But if we view impeachment at least as a proceeding that is informed by principles of criminal law, the relevance of these terms becomes apparent.
That said, although the President was right to identify the separation of powers as a limit on the House’s power to impeach for obstruction, the President’s defensive theory suffered from several factual shortcomings—conflating ordinary legislative oversight and investigation with an impeachment inquiry, relying on executive privilege when the President had not claimed it, and stating that the President cannot be impeached for going to the courts, when the President had not attempted to litigate the House subpoenas. But it also suffers from three notable legal and constitutional shortcomings.
First, it elevates the separation of powers from the President’s perspective without giving sufficient weight to impeachment as a part of the separation of powers. As Jeffrey Tulis argues, when impeachment as a responsible political force is robust, this can enhance congressional power and reduce the likelihood of impeachment. That is, when the possibility of impeachment is robust, the Executive is more likely to take Congress seriously. Legislative acts, Tulis says, “gain in power and authority because executive opposition to them could itself become grounds for impeachment and conviction. Impeachment is thus a constitutive feature in the theory of the constitutional separation of powers.” Reading separation‑of‑powers doctrine to invariably protect the President’s interests is, therefore, not the only or best way to understand the separation of powers. This is at the heart of the House’s understanding of President Trump’s obstructive conduct as an abuse of power: if unchecked, it would nullify the House’s impeachment authority.
Second, President Trump simultaneously overstated the significance of Executive Branch lawyering and understated Congress’s authority to interpret the Constitution independently on a matter entirely within its jurisdiction. If the House determines that the invocation of a privilege or an immunity was disingenuous or unreasonable, or exceeded what is constitutionally cognizable, or not otherwise constitutionally authorized, its impeachment power should include the authority to conclude that the act or omission was an abuse of official power (subject, of course, to considerations of good faith that bear on culpability). And it is unlikely that such a judgment would be subject to judicial review, though certainly it would be reviewable in the Senate.
The President’s legal team anticipated this. As it stated in its trial memorandum, it would be “unprecedented and dangerous for our structure of government” to allow the House to be the judge of the law “in its own case.” The House could not be trusted to properly acknowledge limits on its powers, the President argued.
But, as stated before, the impeachment power is unique to the House and therefore must necessarily include the House’s authority to determine the nature and scope of the impeachable offense. Moreover, the House is not the ultimate “judge.” Without taking the criminal law analogy too far, Laurence Tribe and Joshua Matz liken the House’s role to that of a traditional criminal prosecutor: the House alleges conduct by using careful discretion and making substantive legal judgments within its jurisdiction, which judgments are then adjudicated by a constitutionally separate body (the Senate). A prosecutor’s ability to determine whether an offense was committed, as well as whether a defendant acted in lawful self-defense or under duress, is a key aspect of exercising prosecutorial discretion. The same kind of discretion is vested in Congress. The constitutional dynamic of exclusivity therefore does not mean that the President’s defenses cannot be credited, it simply means that they are not entitled to unqualified deference. The House’s position, again, was not that the President is subservient to Congress or that he lacks privileges and immunities; it was that although he possesses protective powers, he abused them in ways that were harmful to Congress and the Constitution. If the House can determine whether underlying conduct is an impeachable offense, it can determine whether there are applicable defenses that would negate or justify the offense and render it unworthy of an Article of Impeachment. Similarly, the Senate can decide that a constitutionally based defense requires an acquittal.
Third, President Trump overstated the significance of alternative congressional remedies. The President treated the Second Article as a frivolous and impetuous reaction to an assertion of a lawful privilege or immunity that should have been resolved through nonimpeachment mechanisms. The President’s argument appears to require the House to simply concede the Executive’s constitutional interpretation, or litigate it, unless the two sides can reach an accommodation. And if that fails, the President argued, Congress has other tools besides impeachment, including contempt. But this is a strange (if not disingenuous) argument. In the context of executive privilege, the Executive Branch has refused to prosecute contempt cases and determined that executive officials cannot be held in inherent contempt. And as the House managers argued, the Trump Administration argued against judicial review of congressional subpoena enforcement. As the House saw it, the President was relying on an argument that espoused theories that his Administration had rejected. Moreover, deferring to the Executive Branch’s interpretation of its own privileges and immunities would, in turn, require the House to surrender to the Executive Branch authority to essentially determine the scope of impeachable offenses. That would turn Article I, Section 2 on its head. This is not to say that the House should dispute the Executive’s interpretation of a privilege or immunity merely for the sake of disagreement. Rather, it is to say that the Executive is, again, entitled to no deference here.
The argument from the President’s defenders thus appears to be this: if Congress can litigate the legal dispute, then it must before it impeaches. If, as Raoul Berger argued, presidential impeachment is truly a last resort—or at least not the first one—then there is some appeal to this idea. If Congress wishes to be sure that the noncompliance is really a serious abuse of power, why not take the opportunity to have the basis for the noncompliance adjudicated? As Shaub argued, Congress might actually have missed some opportunities to vindicate its prerogatives in court and establish favorable precedents for future battles with a president. But Shaub also acknowledges that Congress had no obligation to do so and, in fact, left the Executive’s separation‑of‑powers arguments as to the inquiry and subpoenas largely intact. The President, Shaub notes, was never really forced to take account of congressional interests, which a claim of executive privilege would likely require.
But even if litigating the dispute could have benefitted Congress, because the Second Article was based on obstruction of the impeachment inquiry itself, litigation could have caused significant delays in the entire impeachment. Even more importantly, it would have placed Congress once again in the undesirable position of relying on another branch to vindicate its interests. This would send yet another signal that Congress’s institutional prerogatives are only meaningful when the Judicial Branch explicitly validates them.
Suppose the House has substantial evidence that a sitting President provided classified national defense information to Russia, intending to betray the United States. The House crafts an Article of Impeachment for treason on the ground that the President adhered to the enemy, giving Russia aid and comfort. The President objects, saying that Russia is not an “enemy” within the meaning of the Constitution because there is no declared war with Russia. The House responds by disagreeing with the President’s interpretation, saying that Russia is an enemy because it has engaged in active hostilities with the United States, notwithstanding the lack of a declared war. No modern American court has ruled on the definition of an “enemy” for purposes of treason. Must Congress demur on impeachment merely because there is a disputed legal question and no imminent judicial resolution? Must Congress await judicial review of the issue?
Ideally, of course, the House would impeach only in clear cases of serious wrongdoing, with no dispute about the offense. But the mere existence of a difference in interpreting a legal text should not foreclose impeachment, particularly when the Senate is available to adjudicate the legal dispute.
Once Congress determines that there is obstruction that is sufficiently serious, culpable, and harmful to constitute an abuse of the President’s office, then the remaining determination is whether it was serious enough to warrant impeachment and trial or whether reliance on the advice-giving entity would mitigate the President’s culpability. That is a question the House should take seriously. And even if the House draws a conclusion that is unfavorable to the President, the question is still subject to adjudication in the Senate. But the primary finding—disputing the position of OLC, White House Counsel, or any other legal advice-giving entity—represents a form of constitutional interpretation that can have grave consequences for the President or other subject officer, increasing the risk of refusing to cooperate. Moreover, using impeachment as a remedy to challenge the Executive’s position on the constitutional question of obstruction in the scheme of separated powers helps to elevate the House as an institution. It demonstrates that impeachment can rise above low politics and respond to higher order constitutional concerns about the importance of defending Congress’s own rights and privileges, as well as giving meaningful consideration to those of the President.
C. Impeachment for Obstruction as Congressional Self-Defense
Finally, impeachment can serve as a strong mechanism for both constitutional defense and congressional self-defense. That is particularly true and important where the impeachable offense is, like obstruction, an offense against Congress. In situations where Congress is the victim of the Executive’s behavior, the need for a robust mechanism of self-defense is especially acute.
Institutional self-defense is essential to safeguarding the Constitution’s formal arrangements for the distribution of authority. Madison’s explanation of the separation of powers in The Federalist recognizes that ambition is necessary to fend off encroachments. Categorizing powers is a necessary but insufficient condition for an effective separation because power, when exercised by ambitious people, ultimately encroaches. So, “[a]mbition must be made to counteract ambition.” As Harvey Mansfield observes, this means using the spirit of ambition affirmatively: “[A]mbition vying with ambition, not thwarting it.” President Trump effusively invoked the separation of powers, and claimed to have been using his own tools of self‑defense, but simultaneously derided Congress’s ability to use its own tools. He, and his Senate defenders, preferred to (counterintuitively) resort to the courts. Yet while the branches sometimes need one another for protection generally, institutional self-defense is not meaningful if it requires a third party. Had the House simply yielded to the President’s theory, or that of the OLC, it would have contributed to presidential encroachment (and ultimately dominance) by implicitly allowing him to determine the permissible scope of a congressional response. As Mansfield says, “[T]he spirit needed for defense is the same as the motive behind encroachment. Separation of powers by the self-defense of each, then, makes use of the ambitious in order to watch over the ambitious.”
Under the right circumstances, then, impeachment for obstructing Congress fits comfortably in a regime of separated powers characterized both by the need for rivalrous ambition and by the motive of constitutional fidelity. It can be both defensive and dutiful.
Still, such a move should reflect careful constitutional analysis, consideration of competing claims, and a sense of proportionality consistent with the gravity of impeachment. Not just any offending conduct will do. Consequently, synthesizing the constitutional text, the federal criminal law, the constitutional law on congressional investigations of the Executive, and the experiences and lessons of the first Trump impeachment, an Article of Impeachment for obstructing Congress can be legitimate. It should account for the following factors:
First, whether the official failed or refused to comply with a lawful demand for information from either house or a committee thereof, acting pursuant to either its impeachment powers or ordinary power of inquiry with a legitimate legislative purpose;
Second, whether the refusal to cooperate caused meaningful harm to the interests of the Congress, preventing Congress from fulfilling its constitutional responsibilities in a matter of substantial gravity before the body;
Third, whether the failure or refusal was complete, in the sense that the Congress made diligent efforts to obtain the official’s cooperation and the official either explicitly or implicitly resisted any negotiation, accommodation, or compromise with respect to cooperation with the inquiry;
Fourth, whether the official’s conduct was corrupt or willful, in the sense that the official knew that she had a duty to cooperate and intentionally refused; and
Fifth, whether the official’s failure or refusal to comply was properly based on a legal privilege or immunity that the Congress would be constitutionally obligated to respect.
These factors overlap with, but are also stricter than, the federal criminal law. They account for the seriousness that must attend an impeachable offense, focusing on the significance of the contumacy and its character as an abuse of power rather than a legitimate constitutional showdown between the branches. Impeachment is therefore not appropriate for run‑of‑the‑mill disputes over congressional demands for information, which are commonplace. Rather, the House must be persuaded that the obstruction is so extraordinary as to be an abuse of power that is sufficiently damaging to Congress that it requires self‑defense through the constitutionalized mechanism of impeachment. Indeed, as Shaub noted, one of the strategically important aspects of the Second Article—which enhanced its legitimacy—was that it was based on obstruction of the impeachment inquiry, not ordinary legislative oversight. These factors also leave room for constitutional defenses that the House should take seriously but also make clear that a mere assertion of a constitutional defense is not adequate to evade impeachment. Rather, in light of the likelihood that the official will self-servingly claim a constitutional basis for refusing to cooperate, Congress should be prepared to reject, but explain why it is rejecting, the constitutional defense.
Based on this framework, the Second Article was defensible but always imperiled. The Senate’s acquittal could, of course, be explained on grounds of raw political loyalty to the President and the sheer difficulty of obtaining a two-thirds majority in the current political climate. But it could also be explained on legitimate legal grounds: that the President was relying on his view of the separation of powers, and advice from Executive Branch lawyers, in directing noncompliance and thus lacked sufficient culpability to justify conviction.
Impeachment therefore is not just a tool of accountability for the primary wrongdoing. It is a key element of the separation of powers and of constitutional form, one that offers a strong mechanism for enforcing congressional prerogatives related to its investigative functions and remedying the harm done to the institution. It is the ultimate form of institutional self‑defense. But fulfilling the purposes of impeachment requires careful constitutional analysis, accounting for all relevant separation‑of‑powers interests in a manner divorced from the kind of low‑order politics that can negate impeachment’s constitutional credibility. Notwithstanding the possibility of impeachment for contumacy based on the considerations I have outlined here, the deck is still decidedly stacked against Congress. That problem existed before the first Trump impeachment, and legal developments during the Trump presidency only exacerbated the problem. If impeachment cannot be made effectual—and that is a truly tall order—then there is little left of congressional self‑defense against a contumacious Executive.
President Biden spent most of his political career as a U.S. Senator. One might expect from him a sensitivity to the prerogatives of the Congress and to adjust his presidency based on that sensitivity. Yet history affords every reason to believe that President Biden, and future presidents, will make full use of the powers that modern presidential development, and constitutional law, has afforded them. That includes following the advice of Executive Branch lawyers that have endeavored to justify presidential prerogatives at almost every turn in dealing with the Congress. If that holds true, then presidential battles with Congress over access to information will likely continue at a fever pitch, particularly if the majority in one house of Congress hails from a different political party. Of course, no matter the players or relevant parties, a minimized Congress seems no match for the contemporary presidential leviathan. But it can be. When Congress is willing to defend its institutional interests—setting aside low‑order politics and mere partisanship—by articulating a vision of its role in the constitutional system and using the constitutional tools at its disposal, Congress can revive its standing and protect its own prerogatives. Impeachment can reify the separation of powers. President Biden and his successors may ultimately prevail, but they are on notice: maybe the modern Congress is not as weak as it seems. Only Congress can decide that.
See H.R. Res. 755, 116th Cong. (2019). The Article provided that President Trump “abused the powers of his high office” by (1) “[d]irecting the White House to defy a lawful subpoena”; (2) directing others in the Executive Branch to do the same and withhold production of documents and records; and (3) directing current and former officials to defy subpoenas, resulting in defiance by Mick Mulvaney, Robert Blair, John Eisenberg, Michael Ellis, Preston Wells Griffith, Russel Vought, Michael Duffy, Brian McCormack, and Ulrich Brechbuhl. Id. “This abuse of office,” the Article stated, “served to cover up the President’s own repeated misconduct and to seize and control the power of impeachment—and thus to nullify a vital constitutional safeguard vested solely in the House of Representatives.” Id.
See 18 U.S.C. § 1505.
See William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B.U. L. Rev. 505, 518–19 (2008).
See Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 Marquette L. Rev. 881, 886–89 (2014) (explaining the character, often partisan, of congressional–executive conflicts over information access); see also Douglas L. Kriner & Eric Schickler, Investigating the President: Congressional Checks on Presidential Power 23–34 (2016) (explaining various incentives for investigating the Executive, including partisan ones); cf. Carl Levin & Elise J. Bean, Defining Congressional Oversight and Measuring Its Effectiveness, 64 Wayne L. Rev. 1, 20 (2018) (explaining virtues of bipartisan congressional oversight work).
See Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2036 (2020).
Id. at 2035–36.
See Louis Fisher, The Politics of Executive Privilege 4 (2004). The legal literature has devoted considerable space to the dilemmas created by extrajudicial constitutional interpretation and deliberation. See generally, e.g., Mark Tushnet, Taking the Constitution Away from the Courts (1999); Neal Devins & Louis Fisher, The Democratic Constitution (2004); Neomi Rao, The President’s Sphere of Action, 45 Willamette L. Rev. 527 (2009); Saikrishna Bangalore Prakash, The Executive’s Duty to Disregard Unconstitutional Laws, 96 Geo. L.J. 1613 (2008); Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 Mich. L. Rev. 676 (2005); Neal Kumar Katyal, Legislative Constitutional Interpretation, 50 Duke L.J. 1335 (2001); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); Joel Alicea, Note, Stare Decisis in an Originalist Congress, 35 Harv. J.L. & Pub. Pol’y 797 (2012).
Fisher, supra note 7, at 3–4, 258. Compare David A. O’Neil, The Political Safeguards of Executive Privilege, 60 Vand. L. Rev. 1079, 1137 (2007) (urging a substantive role for courts), with Wright, supra note 4, at 971 (arguing for a presumption against judicial resolution). The literature has covered well the broader territory of how to resolve information-access disputes between Congress and the President, with or without the courts. See generally, e.g., Todd David Peterson, Contempt of Congress v. Executive Privilege, 14 U. Pa. J. Const. L. 77 (2011); Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal—Do Nothing, 48 Admin. L. Rev. 109 (1996); Joel D. Bush, Note, Congressional-Executive Access Disputes: Legal Standards and Political Settlements, 9 J.L. & Pol. 719 (1993); Randall K. Miller, Congressional Inquests: Suffocating the Constitutional Prerogative of Executive Privilege, 81 Minn. L. Rev. 631 (1997); Stanley M. Brand & Sean Connelly, Constitutional Confrontations: Preserving a Prompt and Orderly Means by Which Congress May Enforce Investigative Demands Against Executive Branch Officials, 36 Cath. U. L. Rev. 71 (1986).
See Fisher, supra note 7, at 3–4, 258.
1 Robert S. Mueller, III, Report on the Investigation into Russian Interference in the 2016 Presidential Election 1 (2019); 2 Robert S. Mueller, III, Report on the Investigation into Russian Interference in the 2016 Presidential Election 1 (2019) [hereinafter 2 Mueller Report].
See Scott R. Anderson et al., Mueller’s Testimony: The Baton Passes to Congress, Lawfare (July 24, 2019, 9:34 PM), https://www.lawfareblog.com/muellers-testimony-baton-passes-congress [https://perma.cc/R74E-HN5S]; Nicholas Fandos et al., Mueller Testimony Deepens Democratic Divide on Impeachment, N.Y. Times (July 25, 2019), https://www.nytimes.com/2019/07/25/us/politics/impeach-trump-pelosi-nadler.html [https://perma.cc/BT2N-8ZPV].
See Complaint for Declaratory and Injunctive Relief ¶¶ 56–57, Comm. on Ways & Means v. U.S. Dep’t of the Treasury, (D.D.C. July 2, 2019) (No. 19-cv-1974); Complaint ¶¶ 2, 30–31, Trump v. Cummings, (D.D.C. April 22, 2019) (No.19-cv-01136); Jamie Raskin, Congress Isn’t Just a Co-Equal Branch. We’re First Among Equals., Wash. Post (May 10, 2019), https://www.washingtonpost.com/outlook/congress-isnt-just-a-co-equal-branch-were-first-among-equals/2019/05/09/e3caa552-7206-11e9-9eb4-0828f5389013_story.html [https://perma.cc/WB2F-NGYL].
See Unclassified Letter to the Hon. Richard Burr and the Hon. Adam Schiff 1 (Aug. 12, 2019), https://assets.documentcloud.org/documents/6430349/20190812-Whistleblower-Complaint-Unclass.pdf [https://perma.cc/E58G-C4ZV].
Id. at 2.
See Press Release, Nancy Pelosi, Speaker, House of Representatives, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), https://www.speaker.gov/newsroom/92419-0 [https://perma.cc/R3Q7-SJWA].
See Letter from Pat A. Cipollone, Counsel to the President, to the Hon. Nancy Pelosi, Speaker, House of Representatives et al. 2 (Oct. 8, 2019) [hereinafter Cipollone Letter of Oct. 8, 2019], https://assets.documentcloud.org/documents/6459967/PAC-Letter-10-08-2019.pdf [https://perma.cc/WH4A-6GFS].
See, e.g., Kupperman v. U.S. House of Representatives, 436 F. Supp. 3d 186, 190 (D.D.C. 2019); Ann E. Marimow, Lawyer for John Bolton Insists on Court Ruling Before Impeachment-Related Testimony, Wash. Post (Nov. 8, 2019), https://www.washingtonpost.com/local/legal-issues/lawyer-for-john-bolton-insists-on-court-ruling-before-impeachment-related-testimony/2019/11/08/c36f12c2-0250-11ea-8bab-0fc209e065a8_story.html [https://perma.cc/R7NK-CYHN]; see also Exclusion of Agency Couns. from Cong. Depositions in the Impeachment Context, 43 Op. O.L.C., slip op. at 2 (Nov. 1, 2019) (advising White House Counsel that, even in impeachment inquiry, House committees cannot compel testimony that may be covered by executive privilege, without agency counsel present).
H.R. Res. 755, 116th Cong. (2019).
See, e.g., Kupperman, 436 F. Supp. 3d at 188; Trump v. Mazars USA, LLP, 940 F.3d 710, 714 (D.C. Cir. 2019), vacated, 140 S. Ct. 2019 (2020).
See Emily Berman, Weaponizing the Office of Legal Counsel, 62 B.C. L. Rev. 515, 538–39, 544–59 (2021).
See Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 194–95 (2017) (“In going to the courts as supplicants in contempt cases, the houses of Congress thus simultaneously diminish their own standing in the public sphere and enhance the courts’ standing.”).
See Fisher, supra note 7, at 258.
See Chafetz, supra note 21, at 193.
See infra Section IV.A.
See J. Richard Broughton, Congressional Law Enforcement, 64 Wayne L. Rev. 95, 98 (2018).
See id. at 99. This problem is likely exacerbated when there is politically divided government. For a view of how unified- and divided-party government influences interbranch competition, see Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2329 (2006).
See A Sitting President’s Amenability to Indictment and Crim. Prosecution, 24 Op. O.L.C. 222, 223 (2000) [hereinafter A Sitting President’s Amenability]; cf. Walter Dellinger, Indicting a President Is Not Foreclosed: The Complex History, Lawfare (June 18, 2018, 7:00 AM), https://www.lawfareblog.com/indicting-president-not-foreclosed-complex-history [https://perma.cc/EE83-JZTV] (suggesting that the OLC opinions must be read in conjunction with other Justice Department positions that make the matter less clear).
See infra Section IV.A.
See Laurence Tribe & Joshua Matz, To End a Presidency: The Power of Impeachment 19–23 (2018); Chafetz, supra note 21, at 150.
See, e.g., The Impeachment Inquiry into President Donald J. Trump: Constitutional Grounds for Presidential Impeachment: Hearing Before the H. Comm. on the Judiciary, 116th Cong. 22 (2019) (statement of Jonathan Turley, Professor of Public Interest Law, George Washington University Law School). For a more nuanced view, see Jonathan Shaub, Should the House Have Gone to the Courts on Obstruction Before Impeaching?, Lawfare (Jan. 10, 2020, 2:56 PM), https://www.lawfareblog.com/should-house-have-gone-courts-obstruction-impeaching [https://perma.cc/8XYK-5C2C].
See Trial Memorandum of President Donald J. Trump, S. Doc. No. 116–12, pt. III, at 197 (2020).
See id. at 194; cf. Shaub, supra note 30. Shaub expressed concern about impeachment for obstruction when constitutional doctrines might protect the President from disclosure. Id. But Shaub also agrees that Congress has important institutional interests that might not have been vindicated any other way. Id.
See Tribe & Matz, supra note 29, at 112–13.
See The Federalist No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961).
See Jeffrey K. Tulis, Impeachment in the Constitutional Order, in The Constitutional Presidency 229, 241–46 (Joseph M. Bessette & Jeffrey K. Tulis eds., 2009).
See Chafetz, supra note 21, at 152.
See U.S. Const. art. II, § 1; 5 U.S.C. § 3331.
See Berman, supra note 20, at 532–33. For a view of OLC’s influence (and that of other Executive Branch lawyers), see generally Rebecca Roiphe, A Typology of Justice Department Lawyers’ Roles and Responsibilities, 98 N.C. L. Rev. 1077 (2020); Daphna Renan, The Law Presidents Make, 103 Va. L. Rev. 805 (2017); Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 Admin. L. Rev. 1303 (2000). For a view of the Executive Branch beyond OLC and White House Counsel, see David Fontana, Executive Branch Legalisms, 126 Harv. L. Rev. F. 21, 41–42 (2012), analyzing the influence of civil service lawyers in Executive Branch.
Memorandum from Robert G. Dixon, Jr., Assistant Att’y Gen., Off. of Legal Couns., at 29 (Sept. 24, 1973).
See A Sitting President’s Amenability, supra note 27, at 245.
2 Mueller Report, supra note 10, at 2, 182.
Prosecution for Contempt of Cong. of an Exec. Branch Off. Who Has Asserted a Claim of Exec. Privilege, 8 Op. O.L.C. 101, 102 (1984) [hereinafter Prosecution for Contempt of Cong.].
See, e.g., House Comms.’ Auth. to Investigate for Impeachment, 44 Op. O.L.C., slip op. at 38, 48 (Jan. 19, 2020); Exclusion of Agency Couns. from Cong. Depositions in the Impeachment Context, 43 Op. O.L.C., slip op. at 2 (Nov. 1, 2019); Attempted Exclusion of Agency Couns. from Cong. Deposition of Agency Emps., 43 Op. O.L.C., slip op. at 12 (May 23, 2019) [hereinafter Attempted Exclusion of Agency Couns.]; Auth. of Individual Members of Cong. to Conduct Oversight of the Exec. Branch, 41 Op. O.L.C., slip op. at 1 (May 1, 2017).
Cong. Oversight of the White House, 45 Op. O.L.C., slip op. at 2–4 (Jan. 8, 2021).
See, e.g., Moss, supra note 38, at 1318; Renan, supra note 38, at 815–16; Harold Hongju Koh, Protecting the Office of Legal Counsel from Itself, 15 Cardozo L. Rev. 513, 514–16 (1993); Sudha Setty, No More Secret Laws: How Transparency of Executive Branch Legal Policy Doesn’t Let the Terrorists Win, 57 U. Kan. L. Rev. 579, 582–84, 594–96, 598 (2009).
See Renan, supra note 38, at 859; see also Koh, supra note 45, at 513–14, 518–22 (criticizing OLC work in foreign affairs); Steven Giballa, Note, Saving the Law from the Office of Legal Counsel, 22 Geo. J. Legal Ethics 845, 848–49 (2009) (criticizing OLC work on enhanced interrogation techniques).
See Douglas W. Kmiec, OLC’s Opinion Writing Function: The Legal Adhesive for a Unitary Executive, 15 Cardozo L. Rev. 337, 373–74 (1993); Moss, supra note 38, at 1330.
See Renan, supra note 38, at 811–13.
See Developments in the Law—Presidential Authority, 125 Harv. L. Rev. 2057, 2091 (2012).
Koh, supra note 45, at 523.
See Bruce Ackerman, The Decline and Fall of the American Republic 9–10, 148 (2010). For a response to Ackerman’s thesis, see generally, for example, Trevor W. Morrison, Constitutional Alarmism, 124 Harv. L. Rev. 1688 (2011) (reviewing Ackerman, supra).
See Berman, supra note 20, at 536–38.
Id. at 519. For an empirical analysis of OLC’s tendency to favor presidential power, see generally Adoree Kim, The Partiality Norm: Systematic Deference in the Office of Legal Counsel, 103 Cornell L. Rev. 757 (2018).
See 2 Mueller Report, supra note 10, at 3, 77–78, 85–86.
See Oversight of the Report by Special Counsel Robert S. Mueller, III: Former White House Counsel Donald F. McGahn, II: Hearing Before the H. Comm. on the Judiciary, 116th Cong. (2019) (witness list); Ann E. Marimow, Biden Administration, House Democrats Reach Agreement in Donald McGahn Subpoena Lawsuit, Wash. Post (May 11, 2021, 8:05 PM), https://www.washingtonpost.com/local/legal-issues/donald-mcgahn-subpoena-lawsuit-settled/2021/05/11/8c445dfe-b2ab-11eb-ab43-bebddc5a0f65_story.html [https://perma.cc/2A74-N53E].
Testimonial Immunity Before Cong. of the Former Couns. to the President, 43 Op. O.L.C., slip op. at 1 (May 20, 2019) [hereinafter Testimonial Immunity].
Id. at 1–2.
Id. at 4.
Id. at 1.
See id. at 5–7.
See Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 63, 97, 100–03 (D.D.C. 2008).
See Testimonial Immunity, supra note 56, at 14.
Cf. Marshall, supra note 3, at 511 (noting that, where OLC issues opinions on matters that do not get resolved by the courts, “[t]his means, in effect, that the executive branch is the final judge of its own authority”).
See Berman, supra note 20, at 552.
See Complaint for Declaratory and Injunctive Relief, supra note 12, ¶ 57 & n.78.
Id. ¶ 71.
See Cong. Comm.'s Request for President’s Tax Returns Under 26 U.S.C. § 6103(f), 43 Op. O.L.C., slip op. at 3 (June 13, 2019).
Id. at 32–33.
Although that litigation had been stayed since March 2020, the OLC under President Biden and Attorney General Merrick Garland has now agreed that the IRS must provide President Trump’s tax returns. See Ways & Means Comm.'s Request for the Former President’s Tax Returns and Related Tax Info. Pursuant to 26 U.S.C. § 6103(f)(1), 45 Op. O.L.C., slip op. at 3–4 & n.1 (July 30, 2021).
See Cipollone Letter of Oct. 8, 2019, supra note 16, at 2.
Id. at 2, 4–5.
Id. at 1.
Id. at 8.
See H.R. Res. 660, 116th Cong. (2019).
See Erwin Chemerinsky et al., An Open Letter from Legal Scholars on Trump Impeachment Inquiry (Oct. 2019), https://www.law.berkeley.edu/wp-content/uploads/2019/10/Open-Letter-from-Legal-Scholars-re-Impeachment.pdf [https://perma.cc/Y4EF-J759]; Tess Bridgeman, Two Major Distortions in the White House’s Scorched Earth Letter to Congress, Just Sec. (Oct. 9, 2019), https://www.justsecurity.org/66525/two-major-distortions-in-the-white-houses-scorched-earth-letter-to-congress/ [https://perma.cc/SKW4-XNY8]; cf. Michael Stern, Why Officials Keep Testifying Despite White House Counsel’s Letter on Impeachment Inquiry, Just Sec. (Oct. 28, 2019), https://www.justsecurity.org/66742/why-officials-keep-testifying-despite-white-house-counsels-letter-on-impeachment-inquiry/ [https://perma.cc/3L6L-N4JT] (describing Cipollone’s position as “extreme” and explaining why it did not have its desired effect).
Others in the Trump Administration relied on the Cipollone letter in responding to congressional information requests during the inquiry. See, e.g., Letter from Melissa F. Burnison, Assistant Sec’y of Energy, Cong. and Intergovernmental Affs., to the Hon. Adam Schiff et al. 2 (Oct. 18, 2019) (refusing to comply with impeachment inquiry based on lack of legislative authorization and position set forth in Cipollone letter).
See House Comms.’ Authority to Investigate for Impeachment, supra note 43, at 1, 3–4.
Id. at 54.
Id. at 47–49.
Id. at 48–49.
Id. at 48.
See Berman, supra note 20, at 558.
See Samuel A. Alito, Jr., Change in Continuity at the Office of Legal Counsel, 15 Cardozo L. Rev. 507, 510–11 (1993) (urging caution about overemphasizing continuity of OLC judgments).
See Berman, supra note 20, at 558 & n.233.
See H.R. Res. 755, 116th Cong. (2019) (stating that President’s conduct was an effort to “nullify” the impeachment power).
United States v. Nixon, 418 U.S. 683, 705–08 (1974). But see Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 Iowa L. Rev. 489, 493, 506–10 (2007) (“[T]here is no such thing as a constitutionally based executive privilege . . . .”); Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 Minn. L. Rev. 1143, 1145–47 (1999) (disputing existence of a constitutionally based executive privilege).
See Nixon, 418 U.S. at 706.
Id. (recognizing that generalized interest in confidentiality is not enough to defeat duty of production absent the “need to protect military, diplomatic, or sensitive national security secrets”).
See Kimberly Breedon & A. Christopher Bryant, Executive Privilege in a Hyper‑Partisan Era, 64 Wayne L. Rev. 63, 65–91 (2018) (compiling a variety of disputes from Nixon to Obama).
See generally Peterson, supra note 8 (assessing privilege claims in light of various congressional enforcement powers). But cf. Kitrosser, supra note 89, at 503–04 (suggesting that applying Nixon in the congressional investigative context is problematic).
See Jonathan David Shaub, The Executive’s Privilege, 70 Duke L.J. 1, 73 (2020).
See In re Sealed Case, 121 F.3d 729, 742, 744 (D.C. Cir. 1997); Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir 1974); see also Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 4–5 (D.D.C. 2013) (declining to reach question about scope of privilege but holding that assertion of privilege in context of congressional investigation is judicially reviewable).
See In re Sealed Case, 121 F.3d at 743, 745.
See, e.g., Auth. of the Dep’t of Health & Hum. Servs. to Pay for Priv. Couns. to Represent an Emp. Before Cong. Comms., 41 Op. O.L.C., slip op. at 5 n.6 (Jan. 18, 2017); Assertion of Exec. Privilege Regarding White House Couns.'s Off. Documents, 20 Op. O.L.C. 2, 2–3 (1996); Cong. Requests for Info. from Inspectors Gen. Concerning Open Crim. Investigations, 13 Op. O.L.C. 77, 80 (1989); see also Gia B. Lee, The President’s Secrets, 76 Geo. Wash. L. Rev. 197, 230–42 (2008) (discussing candor-based justifications for asserting presidential confidentiality interests).
See In re Sealed Case, 121 F.3d at 743 & n.13.
See id. at 744–45 (summarizing Nixon and other cases).
See Ann M. Murphy, All the President’s Privileges, 27 J.L. & Pol’y 1, 24–25 (2018).
See Attempted Exclusion of Agency Couns., supra note 43, at 11.
See Presidential Obstruction of Justice and Abuse of Power: Hearing Before the H. Comm. on the Judiciary, 116th Cong. (2019), https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=2238 [https://perma.cc/WT7D-HF86].
Id.; see 2 Mueller Report, supra note 10, at 5.
See Ben Wilhelm, Cong. Rsch. Serv., IN11177, Executive Privilege and Individuals Outside the Executive Branch 2 (2019).
Letter from Pat Cipollone, Couns. to the President, to Hon. Jerrold Nadler, Chairman, Comm. on the Judiciary, U.S. House of Representatives 1–2 (Sept. 16, 2019), https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/nadler.126.96.36.1999 wh letter re corey lewandowski.pdf [https://perma.cc/2HCE-5WZS].
Id. at 1.
Id.; see Assertion of Exec. Privilege Concerning the Dismissal & Replacement of U.S. Att’ys, 31 Op. O.L.C. 1, 5 (2007).
Assertion of Exec. Privilege Concerning the Dismissal & Replacement of U.S. Att’ys, 31 Op. O.L.C. at 6.
See United States v. Nixon, 418 U.S. 683, 703, 705, 708 (1974).
See Caroline Kitchener et al., All the President’s Lawyers, Atlantic (May 7, 2018), https://www.theatlantic.com/membership/archive/2018/05/all-the-presidents-lawyers/559838/ [https://perma.cc/G34F-CNU6] (noting presidential advice givers from the private sector).
See In re Sealed Case, 121 F.3d 729, 734–36 (D.C. Cir. 1997).
See id. at 736.
Id. at 751–52.
Id. at 752.
Ass’n of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993).
In re Sealed Case, 121 F.3d at 752.
See United States v. Nixon, 418 U.S. 683, 710 (1974); In re Sealed Case, 121 F.3d at 749.
See Heidi Kitrosser, The Shadow of Executive Privilege, 15 Forum 547, 548 (2017).
Shaub, supra note 94, at 57.
See Whistleblower Disclosure: Hearing Before the H. Permanent Select Comm. on Intel., 116th Cong. 10 (2019) [hereinafter Whistleblower Disclosure Hearing] (statement of Joseph Maguire, Acting DNI, Office of the DNI).
See 50 U.S.C. § 3033(k)(5)(A)–(C), (G); Whistleblower Disclosure Hearing, supra note 123, at 18–20.
“Urgent Concern” Determination by the Inspector Gen. of the Intel. Cmty., 43 Op. O.L.C., slip op. at 2, 11 (Sept. 24, 2019).
See Whistleblower Disclosure Hearing, supra note 123, at 16.
Id. at 34–35.
Id. at 91–92.
See Off. of Pub. Affs., Dep’t of Just., Press Release No. 17-237, Attorney General Sessions Statement on Recusal (2017), https://www.justice.gov/opa/pr/attorney-general-sessions-statement-recusal [https://perma.cc/QU79-YHUX].
See, e.g., Alex Isenstadt et al., Trump Fumes over Sessions’ Recusal from Russia Probe, Politico (Mar. 4, 2017, 5:02 PM), https://www.politico.com/story/2017/03/trump-anger-jeff-sessions-russia-probe-235684 [https://perma.cc/8C5V-BE7M].
See Open Hearing with Att’y Gen. Jeff Sessions: Hearing Before the S. Select Comm. on Intel., 115th Cong. 29 (2017) (statement of Jeff Sessions, Att’y Gen. of the United States).
Id. at 29–30.
Id. at 29 (statement of Sen. Martin Heinrich, Member, S. Select Comm. on Intel.).
Id. at 33 (statement of Jeff Sessions, Att’y Gen. of the United States).
Id. at 32–34.
See Kitrosser, supra note 120, at 548–49.
Id. at 549.
See Berman, supra note 20, at 553 (noting some “novel” OLC opinions that have been met with “significant skepticism”).
See Shaub, supra note 94, at 57.
See H.R. Rep. No. 93-1305, at 4 (1974); H.R. Rep. No. 105-830, at 85 (1998). Nixon, of course, resigned and no impeachment followed, and in Clinton’s impeachment, this provision was removed. See Fisher, supra note 7, at 66–67.
Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2035–36 (2020).
Id. at 2027.
Id. at 2027–29.
Id. at 2028.
See Trump v. Mazars USA, LLP, 940 F.3d 710, 714, 726 (D.C. Cir. 2019), vacated, 140 S. Ct. 2019 (2020); Trump v. Deutsche Bank AG, 943 F.3d 627, 669 (2d Cir. 2019), vacated sub. nom. Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).
Mazars, 140 S. Ct. at 2032.
Id. at 2033.
See Brief for Respondent Committees of the U.S. House of Representatives at 19–33, Mazars, 140 S. Ct. 2019 (2020) (Nos. 19-715, 19-760).
Mazars, 140 S. Ct. at 2036.
Id. at 2032–34.
Id. at 2028.
Id. at 2032–33.
Id. at 2033.
Id. at 2031.
See McGrain v. Daugherty, 273 U.S. 135, 175 (1927).
Mazars, 140 S. Ct. at 2031.
Id. at 2035.
Id. at 2033–34.
Id. at 2034.
Id. at 2035.
Id. at 2035–36.
Id. at 2036.
See The Federalist No. 48, at 277 (James Madison) (Clinton Rossiter ed., 1961).
See Todd Ruger, Trump-Era Court Battles Weaken Congressional Power, Roll Call (Dec. 1, 2020, 10:00 AM), https://www.rollcall.com/2020/12/01/trump-era-court-battles-weaken-congressional-power/ [https://perma.cc/FSN8-FFMZ] (citing scholarly reactions to Mazars).
Mazars, 140 S. Ct. at 2031–32.
Id. at 2032–33.
Id. at 2032–33.
Id. at 2037 (Thomas, J., dissenting).
Id. at 2048 (Alito, J., dissenting).
See United States v. Nixon, 418 U.S. 683, 687–88 (1974).
See Todd Garvey, Cong. Rsch. Serv., R42670, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments 1, 16, 18 (2014).
Mazars, 140 S. Ct. at 2034–35.
Id. at 2035–36.
Because of the nature of the documents at issue, the President likely could not claim any military, diplomatic, or national security secrets, nor could he claim that the information would chill confidential communications with advisors about core presidential functions. See Nixon, 418 U.S. at 706.
See Mazars, 140 S. Ct. at 2035–36.
See Nixon, 418 U.S. at 705–06.
Zivotofsky v. Kerry, 576 U.S. 1, 31–32 (2015).
Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2192 (2020).
Bowsher v. Synar, 478 U.S. 714, 735–36 (1986).
See Mazars, 140 S. Ct. at 2034.
See The Federalist No. 48, supra note 173, at 277.
See Watkins v. United States, 354 U.S. 178, 187 (1957) (explaining that inquiries must be “related to, and in furtherance of, a legitimate task of the Congress”); Marshall v. Gordon, 243 U.S. 521, 532–33, 542 (1917) (limiting contempt power); Kilbourn v. Thompson, 103 U.S. 168, 189–90 (1880) (Congress can investigate “in aid of the legislative function”); see also William P. Marshall, The Limits on Congress’s Authority to Investigate the President, 2004 U. Ill. L. Rev. 781, 799–800, 827 (2004) (noting value of, and potential mischief in, investigating the President).
Mazars, 140 S. Ct. at 2034–35.
Id. at 2034 (alteration in original) (quoting The Federalist No. 71, at 483 (Alexander Hamilton) (J. Cooke ed., 1961)).
Trump v. Vance, 140 S. Ct. 2412, 2431 (2020).
Id. at 2429–30.
Id. at 2430.
See Jonathan H. Adler, All the President’s Papers, in 2019–2020 Cato Sup. Ct. Rev. 31, 56–57, 63–64 (Trevor Burrus ed., 2020) (discussing practical effects of Mazars).
See Chafetz, supra note 21, at 194–95 (“[I]n going to the courts as supplicants in contempt cases, the houses of Congress thus simultaneously diminish their own standing in the public sphere and enhance the courts’ standing.”).
See generally Berman, supra note 20, at 538–42, 544, 548–58.
See, e.g., id. at 532–33, 544–45 (noting that OLC opinions bind the Executive Branch).
See Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031, 2033 (2020).
See Broughton, supra note 25, at 106–11.
See Mazars, 140 S. Ct. at 2035.
2 U.S.C. § 192.
18 U.S.C. § 1001.
18 U.S.C. § 1505.
See generally 18 U.S.C. § 1512.
See 18 U.S.C. § 351.
See Watkins v. United States, 354 U.S. 178, 187 (1957).
Sometimes, Congress refers a case to the Justice Department for prosecution, toeing a complicated constitutional line. Congress, at a minimum, must be careful not to appear as though it is demanding investigation and prosecution or threatening the Executive Branch with some harm if its referral is not fully investigated or taken to a grand jury. See Broughton, supra note 25, at 104–06. Congress is likely on firmer ground in making criminal referrals when the underlying offense is one against Congress itself (such as obstruction or contempt) or when the evidence of criminality is obtained through the exercise of Congress’s investigative functions. Id. at 106.
See id. at 98–99.
See Whether the Dep’t of Just. May Prosecute White House Offs. for Contempt of Cong., 32 Op. O.L.C. 65, 66 (2008).
See Information, United States v. Cohen, (S.D.N.Y. Nov. 29, 2018) (No. 18-CRIM-850); Indictment, United States v. Stone, (D.D.C. Jan. 24, 2019) (No. 19-cr-00018). Cohen pleaded guilty to these charges and, earlier, to a separate information. See Letter from Robert S. Mueller, III to Guy Petrillo & Amy Lester (Nov. 29, 2018), https://www.justice.gov/file/1115566/download [https://perma.cc/279Q-6WDM]. Stone was convicted and later received a commutation and then a pardon from President Trump. See Pamela Brown et al., Trump Issues 26 New Pardons, Including for Stone, Manafort and Charles Kushner, CNN, https://www.cnn.com/2020/12/23/politics/trump-pardons-stone-manafort-kushner/index.html [https://perma.cc/JN75-WFUX] (Dec. 23, 2020, 8:53 PM).
See Brand & Connelly, supra note 8, at 89.
See 28 C.F.R. § 600.1. Congress, of course, can vest the appointment of an inferior officer in the President, the courts, or heads of departments, but cannot create such an appointment power for itself. See U.S. Const. art. II, § 2, cl. 2.
28 C.F.R. §§ 600.6–.7.
See Broughton, supra note 25, at 100.
See Protecting Congress’ Power of the Purse and the Rule of Law: Hearing Before the H. Comm. on the Budget, 116th Cong. 11–13 (2020) (statement of Josh Chafetz, Professor of Law, Cornell Law School); see also Chafetz, supra note 21, at 66–67 (discussing the use of spending power to achieve substantive goals such as zeroing-out budgets or cutting salaries).
See Chafetz, supra note 21, at 66–67.
See Morton Rosenberg, The Constitution Project 24–25 (2017).
See Response to Cong. Requests for Info. Regarding Decisions Made Under the Indep. Couns. Act, 10 Op. O.L.C. 68, 86 (1986) [hereinafter Response to Cong. Requests for Info.]; Prosecution for Contempt of Cong., supra note 42, at 139, 140 n.42.
For an excellent discussion of whether nonmembers can be subject to internal congressional punishment, see Michael Stern, Contempt and Charles Pinckney, Point of Ord. (Sept. 26, 2019) [hereinafter Stern, Contempt and Charles Pinckney], https://www.pointoforder.com/2019/09/26/contempt-and-charles-pinckney/ [https://perma.cc/HB8U-3B2U]. The overwhelming weight of authority—including, as Stern writes in subsequent posts, statements from influential members of early Congresses—appears to have accepted this as a legitimate exercise of congressional power, and Congress could certainly rely on that authority today. See Michael Stern, Representative Forsyth on Impeachment and the Contempt Power, Point of Ord. (Oct. 10, 2019), https://www.pointoforder.com/2019/10/10/representative-forsyth-on-impeachment-and-the-contempt-power/ [https://perma.cc/3RRD-S44J]. But even if its power to punish nonmembers is not explicitly provided for in the Constitution, Madison and others conceded that necessity might justify such punishment. See Stern, Contempt and Charles Pinckney, supra. Indeed, the Supreme Court has even alluded to the Necessary and Proper Clause in recognizing Congress’s powers with respect to punishing breaches of privilege. See Marshall v. Gordon, 243 U.S. 521, 537 (1917).
Morton Rosenberg & William J. Murphy, The Case for Direct Appointment by the House of Outside Counsel to Prosecute Citations of Criminal Contempt of Executive Branch Officials, Good Gov’t Now 45–48 (Dec. 5, 2019), https://goodgovernmentnow.org/wp-content/uploads/2020/02/The-Case-for-Direct-Appointment-by-the-House-of-Outside-Counsel-to-Prosecute-Citations-of-Contempt-v9.pdf [https://perma.cc/E7U2-9TZF].
Id. at 47–48.
Rosenberg and Murphy’s suggestion, in particular, would invite a constitutional challenge. Rosenberg and Murphy, however, anticipate that challenge and attempt to address it. See id. at 45.
See United States v. Nixon, 418 U.S. 683, 703 (1974).
See Neal Kumar Katyal, Impeachment as Congressional Constitutional Interpretation, 63 Law & Contemp. Probs. 169 (2000) (countering the “myth of interpretive symmetry” and explaining how congressional institutional interpretation may differ from that of other actors); Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 66–70 (1996) (viewing Congress as authoritative constitutional actor during impeachments); see also Rao, supra note 7, at 532 (describing impeachment as a “significant opportunity” for congressional constitutional interpretation). For a more provocative application of this notion, see Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 Mich. L. Rev. 2706, 2730 (2003), suggesting the House can impeach judges where it determines that judicial decisions violate the Constitution.
See Nixon v. United States, 506 U.S. 224, 234–35 (1993).
U.S. Const. art. I, § 2.
See Tribe & Matz, supra note 29, at 111–13.
See Charles L. Black, Jr., Impeachment: A Handbook 35, 37, 39–40 (1974); Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 82–88 (1989); Rao, supra note 7, at 532; see also Katyal, supra note 7, at 1382 (discussing the role of politics in congressional constitutional interpretation on impeachment).
See 2 U.S.C. § 192.
18 U.S.C. § 1505.
See Todd Ruger, House Democrats Abandon Crimes in Trump Impeachment Articles, Roll Call (Dec. 11, 2019, 6:00 AM), https://www.rollcall.com/2019/12/11/house-democrats-abandon-crimes-in-trump-impeachment-articles/ [https://perma.cc/2BDN-67WV] (noting Republican criticisms about the lack of criminal allegations).
See Daniel Uria, Dershowitz: Democrats’ Case Meritless Because No Crime Committed, UPI, Jan. 26, 2020, https://www.upi.com/Top_News/US/2020/01/26/Dershowitz-Democrats-case-meritless-because-no-crime-committed/2921580058954/ [https://perma.cc/E8Q5-HPV3].
See 18 U.S.C. § 1505.
U.S. Const. art. II, § 4.
H.R. Rep. No. 116-346, at 56 (2019).
See 18 U.S.C. §§ 2381, 201 (treason and bribery, respectively); H.R. Rep. No. 116‑346, at 57.
H.R. Rep. No. 116-346, at 145–48.
See H.R. Rep. No. 93-1305, at 4 (1974); H.R. Rep. No. 105-830, at 84–85 (1998); sources cited supra note 141. For an analysis of these episodes, and others, in the context of executive privilege disputes, see Fisher, supra note 7, at 49–67. Black’s work on impeachment recognizes that obstruction of justice (that is, “in connection with governmental matters”) is potentially impeachable; though he does not consider obstruction of Congress specifically, his rationale applies equally. See Black, supra note 236, at 45–46.
H.R. Rep. No. 116-346, at 145.
Id. The House Judiciary Committee adopted a similar theory of constitutional harm with respect to Article III against Nixon. See H.R. Rep. No. 93-1305, at 4.
See Trial Memorandum of President Donald J. Trump, S. Doc. No. 116–12, pt. III, at 35–54 (2020).
Id. at 36–54; see also 166 Cong. Rec. S784 (daily ed. Feb. 3, 2020) (statement of Jay Sekulow) (noting that the Judicial Branch is “the arbiter of interbranch disputes”).
See 166 Cong. Rec. S806–07 (daily ed. Feb. 3, 2020) (statement of Sen. Young); id. at S792 (statement of Sen. Grassley); id. at S815 (statement of Sen. Thune); id. at S834 (statement of Sen. Perdue).
See S. Doc. No. 116–12, at 190–97, 193 n.334, 195 n.349.
See id. at 263–309.
Shaub argues that the executive privilege would not apply in an impeachment inquiry. See Shaub, supra note 94, at 72. If Shaub is correct, then neither the House nor Senate would be obligated to respect an assertion of the privilege during the inquiry, and this would neither negate the President’s culpability nor otherwise serve as a defense.
Laurence Tribe has suggested that the drafting history of the Impeachment Clause of Article II does not rule out the possibility of impeaching for conduct with a culpable mental state less than willfulness or knowledge—possibly even for reckless, or even grossly negligent, conduct. See Laurence H. Tribe, Why Impeachment Must Remain a Priority, Take Care (May 23, 2017), https://takecareblog.com/blog/why-impeachment-must-remain-a-priority [https://perma.cc/7WVE-ZESN]; see also Tribe & Matz, supra note 29, at 39 (briefly alluding to intent as “often fatal to calls for impeachment”). This problem exceeds the scope of this Article but is worthy of greater attention.
Treason requires a specific intent to betray the country. Cramer v. United States, 325 U.S. 1, 29, 31 (1945). Bribery requires that the defendant have acted corruptly, and this appears to be the case both under the federal bribery statute, see 18 U.S.C. § 201(b)(1), and the common law version of bribery that would have informed the Impeachment Clause of Article II, see Ben Berwick et al., The Constitution Says ‘Bribery’ Is Impeachable. What Does That Mean?, Lawfare (Oct. 3, 2019, 8:00 AM), https://www.lawfareblog.com/constitution-says-bribery-impeachable-what-does-mean [https://perma.cc/68PD-X3AH].
See Staples v. United States, 511 U.S. 600, 607, 616 (1994).
See J. Richard Broughton, Conviction, Nullification, and the Limits of Impeachment as Politics, 68 Case W. Rsrv. L. Rev. 275, 289–90 (2017).
See Michael Stern, “Contempt of Congress,” in Federal Criminal Offenses and the Impeachment of Donald J. Trump, Just Sec. (Dec. 16, 2019), https://www.justsecurity.org/67738/federal-criminal-offenses-and-the-impeachment-of-donald-j-trump/ [https://perma.cc/N4UE-R9EE].
See Tulis, supra note 35, at 245.
See H.R. Rep. No. 116-346, at 145–46 (2019).
See Nixon v. United States, 506 U.S. 224, 236 (1993).
Trial Memorandum of President Donald J. Trump, S. Doc. No. 116–12, pt. III, at 194 (2020).
See supra Section IV.B.1.
See Tribe & Matz, supra note 29, at 79–80.
See id. at 79.
See H.R. Rep. No. 116-346, at 145–46 (2019).
See S. Doc. No. 116-12, at 195.
See id. at 192–93.
See Response to Cong. Requests for Info., supra note 225, at 86; Prosecution for Contempt of Cong., supra note 42, at 139, 140 n.42.
See Adam B. Schiff et al., Reply Memorandum of the United States House of Representatives in the Impeachment Trial of President Donald J. Trump, S. Doc. No. 116-12, pt. IV, at 335 (2020).
Raoul Berger, Impeachment: The Constitutional Problems 299 (1973).
See Shaub, supra note 30.
Id.; see also Shaub, supra note 94, at 72 (explaining that executive privilege does not even apply in impeachment inquiry).
See Chafetz, supra note 21, at 195.
See U.S. Const. art. III, § 3.
See Carlton F.W. Larson, The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem, 154 U. Pa. L. Rev. 863, 917 & n.270 (2006).
See Chafetz, supra note 21, at 150 (“[Impeachment’s] high structural bar . . . serves to ensure that it will be used only in such serious, and largely uncontroversial, cases of misconduct.”).
See Broughton, supra note 261, at 314 (cautioning against using low-order politics in impeachments).
See The Federalist No. 51, supra note 34, at 321–22.
Id. at 322.
See Harvey C. Mansfield, Jr., America’s Constitutional Soul 123 (1991).
See Trial Memorandum of President Donald J. Trump, S. Doc. No. 116–12, pt. III, at 188, 191–96 (2020).
See id. at 192–93; 166 Cong. Rec. S784, S792, S797, S807 (daily ed. Feb. 3, 2020); 166 Cong. Rec. S815 (daily ed. Feb. 4, 2020).
Mansfield, supra note 290, at 123.
There is ample literature on the gravity required for an impeachable offense. For a sampling, see Berger, supra note 278, at 91; Tribe & Matz, supra note 29, at 23; Black, supra note 236, at 48–49. And for a unique take, see Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347, 351 (2010), describing offenses worthy of impeachment as those akin to assassinable offenses, those worthy of a resulting in political death for the officeholder.
This factor tracks the language of 18 U.S.C. § 1505, which criminalizes corruptly influencing, obstructing, or impeding the “due and proper exercise” of congressional inquiry.
Cf. id. (requiring conduct that is “corrupt”).
Cf. id. (requiring corruptly influencing, obstructing, or impeding Congress but not requiring a particular degree of institutional harm or otherwise accounting for possible constitutional defenses).
See Jonathan Shaub, Obstruction of Congress, Impeachment and Constitutional Conflict, Lawfare (Jan. 10, 2020, 2:56 PM), https://www.lawfareblog.com/obstruction-congress-impeachment-and-constitutional-conflict [https://perma.cc/6T4R-Z7HF].
See supra Section IV.B.2.