Judge Jackson’s Cramped View of the Separation of Powers

President Biden has nominated Judge Ketanji Brown Jackson of the D.C. Circuit to replace Justice Stephen Breyer on the Supreme Court. This is the second post on her nomination. It examines and critiques her opinion in Committee on the Judiciary v. McGahn (D.D.C. 2019) where she held the House Judiciary Committee’s subpoena of former White House Counsel Don McGahn was enforceable in federal court. The first post examining who Judge Jackson is and what President Biden wants in a Supreme Court nominee can be found here.

Summary

After the Mueller Report was released, the House Judiciary Committee (the Committee) subpoenaed former White House Counsel Don McGahn to learn what he told Special Counsel Robert Mueller. Because President Trump instructed McGahn not to comply, the Committee sued to enforce its subpoena. Judge Jackson heard the case.

  • In Committee on the Judiciary v. McGahn (D.D.C. 2019), Jackson held the subpoena was enforceable, McGahn had to comply, and could assert executive privilege during his testimony.
  • In an attempt to characterize the case as a normal subpoena dispute that courts decide all the time, Jackson completely misses the separation of powers argument, devalues the constitutional tools Congress has available against the Executive branch, and argues that Congress should be treated in court in the same way as a private individual who has no other recourse.
  • While agreeing with the Department of Justice (DOJ) that for 200 years after the Founding, lawsuits between Congress and the Executive branch did not exist because they negotiated these disputes, Jackson completely disregards this fact and misconstrues Supreme Court precedent to hold that Congress subpoenaing the Executive branch is no different than it subpoenaing private individuals.
  • Throughout the opinion, Jackson argues without evidence that the Executive branch has always complied with congressional requests because it understood the potency of Congress’ investigatory power; these types of lawsuits are of recent vintage because the Executive branch is not complying with longstanding precedent; and regardless of whether courts have resolved these disputes before, they have a role to play now because the Executive branch is rejecting standard applications of congressional power.
  • In taking issue with the Office of Legal Counsel’s (OLC) opinions, Jackson suggests Congress could constitutionally subpoena the president and compel him to testify via court order, Congress subpoenas Executive branch officials only to get necessary information for legislative decisions, not as punishment against the opposition political party; and the key takeaway from the past two centuries of American history is “Presidents are not kings.”

In holding the subpoena was enforceable, Jackson also held the Committee had standing to sue, and a cause of action to bring suit. While it is debatable whether these holdings were correct, this post will focus on the threshold issue of whether she should have exercised jurisdiction (whether the court should have dismissed the case) because of the serious separation of powers fight it entailed.

Background

While disputes between the executive branch (the Executive) and legislative branch (Congress) are not new, what is new is Congress enlisting the judiciary to decide these questions. The Executive’s fight to prevent the president’s closest advisers from testifying before Congress has a long history. Before McGahn, there was one court that had analyzed this exact issue.

In 2006, DOJ requested and received the resignation of several U.S. Attorneys. Because of the political nature of the resignations, the Committee, controlled by Democrats, commenced an investigation. It asked to speak with former White House Counsel Harriet Miers. Instead, the Bush Administration provided the testimony of several high-ranking DOJ officials along with many documents. When negotiations fell through, the Committee voted to subpoena Miers. In response, President Bush asserted executive privilege over the substance of Miers’ testimony and invoked testimonial immunity to prevent Miers from testifying. OLC issued an opinion outlining the reasons why Miers was immunized from the subpoena.

After Miers failed to appear before a subcommittee, the Committee voted to reject Miers’ privilege and immunity claims. Later, the full House voted to hold her in contempt and authorized the Committee chairman to bring a lawsuit to enforce the subpoena. In Committee on the Judiciary v. Miers (D.D.C. 2007) the district court held the subpoena was enforceable, and Miers had to comply and could invoke executive privilege in response to the Committee’s questions. In response, DOJ appealed to the D.C. Circuit that stayed (stopped) enforcement of the subpoena. The court’s main reason was that the case was an issue of great significance that the Supreme Court might want to hear, but that could only happen after the current House session had ended because of the upcoming election, less than a month away. The court thought it was unfair to have an expedited briefing, argument, and issue a decision that did not allow the parties a chance to appeal.

Before McGahn, the Miers court was the only court in the history of the country to hold a Congressional subpoena of a close adviser to the president enforceable–until the Committee subpoenaed former White House Counsel Don McGahn. After the Mueller Report was released, there were several months of negotiations between Chairman Jerry Nadler, McGahn, and the White House. After the Committee subpoenaed McGahn, the White House instructed him not to produce any documents and instructed him not to show up for the hearing–invoking principles of testimonial immunity that hold Congress cannot constitutionally compel the president’s closest advisers to testify about their official duties.

After McGahn did not show up for the hearing (did not comply with the subpoena), the White House and the Committee had serious negotiations that went on for weeks about limiting the scope of McGahn’s testimony. While there was an agreement reached over documents McGahn would produce, there was no agreement over McGahn’s testimony. As a result, the Committee sued to enforce its subpoena.

The Position of the Office of Legal Counsel

Within DOJ is the OLC whose primary responsibility is to provide legal advice for the Executive. Since the 1940’s, administrations of both parties have recognized that close advisers to the president are immune (do not need to show up) from congressional testimony on matters related to their official duties. This doctrine is known as testimonial immunity. OLC embraced this in a 1971 memorandum from then-OLC head William Rehnquist when he noted, “[t]he President and his immediate advisers—that is, those who customarily meet with the President on a regular or frequent basis— should be deemed absolutely immune from testimonial compulsion by a congressional committee. They not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee.”

While testimonial immunity and executive privilege are different but related legal doctrines, they come from the same foundation—the Constitution vests all executive power in the president. See U.S. Const. art. II, § 1, cl. 1. In other words, the president is the sole head of the executive branch, and he shares that power with no one. Moreover, Congress did not create the Executive Office of the President; the Constitution did. If Congress were able to compel the president to testify, the branches would not be co-equal, and it would promote the view that the president serves at the pleasure of Congress. In addition, because of the large number of congressional committees and subcommittees, the president could logically face hundreds of subpoenas a year to testify over every subject that Congress might legislate on. The conclusion from this (and several Supreme Court cases listed below) is the president cannot be compelled to testify before Congress, nor can the president compel members of Congress to testify before him.

After establishing that the president cannot be compelled to testify before Congress, the next question concerns the president’s closest advisers. While the Executive has millions of employees, the president deals only with a few of them on a daily basis. These aides know what the president thinks, understand his thought process, have his confidence, and serve to give him the best advice they can. Importantly, these aides do not exist to enforce federal law; they exist to give the president advice. While not an exhaustive list, these positions often include the Chief of Staff, White House Counsel, National Security Adviser, Staff Secretary, Political Director, and other senior advisers like the Counselor. The president makes decisions sometimes entirely on the opinion of these advisers, and as a result, they serve as the president’s alter ego. If the president is immune from congressional testimony, these advisers enjoy derivative immunity.

If Congress could subpoena these advisers, it would in large part destroy the president’s ability to do his job. First, these advisers would be asked the same questions that the president would have been asked. And if it is improper for Congress to ask those questions of the president, it is improper for the president’s advisers–whom he relied on to make those decisions–to have those questions asked of them. Second, the amount of time these advisers would spend preparing for hearings would take up an inordinate part of their day, thereby depriving the president of his advisers. Third, while Congress harassing the president’s advisers is different than harassing the president, the same message is sent that the Executive serves at the pleasure of Congress. Moreover, the threat of congressional testimony could lead some not to want to serve as advisers to the president, or if they do, to be very careful in the advice they give him under threat that it might become a major story. That is neither fair to the president nor the country.

One of the most important issues regarding the testimony of these advisers involves claims of executive privilege. When testifying before Congress, these advisers must make split-second decisions over whether to invoke executive privilege if the answer they give might disclose confidential information. In United States v. Nixon (see below), the Supreme Court recognized executive privilege, said it was a qualified privilege and not absolute, but it served an important purpose for confidential discussions and internal deliberations within the Executive. Fear of disclosing executive privilege is one of the many reasons testimonial immunity exists. By preventing advisers from showing up, the threat that confidential information might be disclosed dissipates.

While some argue the adviser should show up and assert executive privilege very broadly (refusing to answer most questions), this misses the point. First, executive privilege does not cover every discussion the adviser has with the president. Second, with explicit or implied threats of being held in contempt of Congress for refusing to answer questions, the adviser might answer a question and negligently disclose confidential information. Moreover, even without the threat of being held in contempt, the adviser might be concerned about hostile media coverage, or being forced to come back and testify again. As a result, the adviser might take a safer path, seek to give the committee some information that might give away confidential information in the hopes that the committee will be pleased, and that there won’t be negative press coverage. That result is completely unfair to the president and chills the confidential communications the president should enjoy with his advisers.

OLC’s position is testimonial immunity applies to the president’s closest advisers; its position does not apply to cabinet secretaries (heads of federal agencies), or those who work under them. Congress has a much stronger claim to information from cabinet secretaries. Importantly, unlike the Executive Office of the President, Article II of the Constitution does not create federal agencies. Every federal agency that exists was created by Congress. In addition, these agencies are responsible for promulgating regulations and enforcing laws Congress passed. Conversely, the president’s closest advisers do not enforce federal law, nor do their positions exist because Congress created them. Therefore, Congress has a much stronger claim to oversight over these agencies than it does over the president’s close advisers.

While Judge Bates in Miers rejected OLC’s position on testimonial immunity, the Obama Administration’s OLC and the Trump Administration’s OLC wrote opinions that directly responded to the opinion, and reinforced OLC’s longstanding view. In short, under the doctrine of testimonial immunity, close advisers to the president are immune from congressional testimony when the subject of the testimony focuses on their official duties. This position has been reaffirmed by every OLC under both political parties since 1971.

Relevant Precedents Judge Jackson Relies On

Judge Jackson relied on a series of cases to reach her holding. For the reader’s benefit, below are those cases with the relevant holdings. Not a single case entails Congress suing the Executive in order to enforce a subpoena.

Marbury v. Madison (1803): Weeks before Thomas Jefferson was sworn in as president, the out-going Federalist Congress created several judicial positions. John Marbury was confirmed by the Senate to one of these seats. However, Marbury did not receive his commission before Jefferson was sworn in. President Jefferson instructed Secretary of State James Madison to not deliver Marbury’s commission, thereby denying him the seat. Marbury sued in the Supreme Court under a statute that gave the Court original jurisdiction (allowed the Court to hear the case first). The Court held the statute unconstitutionally expanded the original jurisdiction of the Court because Article III § 2 set a fixed limit on the Court’s original jurisdiction that Congress could not expand. The focus of Marbury details a court’s role to “decide on the rights of individuals.” Marbury was not a fight between two branches of government, it was a fight between a private individual and the Executive.

Youngstown Sheet & Tube Company v. Sawyer (1952): During the Korean War, there was a nationwide strike of steel workers. In response, President Truman issued an executive order instructing the Secretary of Commerce to seize and operate most of the steel mills. In a split and fractured series of opinions, the Court held that Truman’s order was unconstitutional because Congress had recently passed a statute providing for a resolution of labor disputes like this one, and the option of the president seizing steel mills was explicitly rejected. Therefore, Congress had denied Truman this power, and no other statute nor the Constitution provided a basis for Truman’s order. Like Marbury, this case did not entail a fight between two branches of government. It dealt with a corporation’s action against the Executive.

Gravel v. United States (1972): Senator Gravel held a subcommittee hearing, read extensively from the Pentagon Papers, which at that time were classified, and placed them into the public record. Gravel also entered a contract for the papers to be published. While the U.S. was investigating Gravel for several crimes, it subpoenaed one of his aides that helped him with the hearing. The Court held that aides of members of Congress are protected under the Speech and Debate Privilege, Article I, § 6, just as the members are because aides serve as the members’ alter egos. The privilege provides immunity and prevents questioning of the members’ speech, voting, or other legislative acts in their capacity as lawmakers. Therefore, the conduct of an aide is also protected, if it would have been protected had the member done so himself.

United States v. Nixon (1974): After a grand jury returned indictments of several of President Nixon’s aides associated with the Watergate break-in, both the special prosecutor and the defendants subpoenaed Nixon’s White House tapes. President Nixon challenged the subpoena arguing the tapes were protected by an absolute and unqualified executive privilege. In a unanimous decision, the Court held the case was justiciable, the doctrine of executive privilege exists, it rejected Nixon’s broad claim of executive privilege, and instructed the district court to engage in a careful in-camera (within the court’s chambers) review of Nixon’s tapes.

Like Marbury and Youngstown Sheet & Tube Company, Nixon did not entail a fight between Congress and the Executive. While the Court held the claim was justiciable, there are several limits to the case. First, the case involved an intra-branch dispute between the president who wanted the tapes blocked in his official capacity, and the special prosecutor, who was acting under the authority of the attorney general. Moreover, much of the language in the decision emphasizes the type of case where the subpoena was sought: a criminal prosecution. And it wasn’t just the special prosecutor who sought the tapes; the criminal defendants wanted them, too. The Court recognized that opining on the lawfulness of a subpoena in a criminal prosecution was a traditional judicial function, and important to the American commitment to the rule of law.

On executive privilege, while the Court rejected Nixon’s absolute privilege claim, it accepted a presumptive privilege, and recognized the importance of and deference owed to the president for confidential communications needed for decision-making within the executive branch. Moreover, the Court rejected Nixon’s privilege claim because it was absolute and unqualified, and the criminal defendants also had a need for the information. The Court noted the importance of the privilege when it came to the “need to protect military, diplomatic, or sensitive national security secrets.”

Nixon v. Fitzgerald (1982): A former Air Force management specialist sued President Nixon (among others) arguing that his firing was the result of illegal retaliation because of his congressional testimony that embarrassed high-ranking officials in the Department of Defense. The Court held the president has absolute immunity from any action that seeks to hold him responsible when acting in his official capacity (acting as president). This immunity is rooted in the Constitution’s separation of powers and the country’s history. The Court noted that this absolute immunity is also enjoyed by judges and prosecutors when they act in their official capacity.

Harlow v. Fitzgerald (1982): This case was decided on the same day as Fitzgerald (see above) and involves the same plaintiff (Fitzgerald). Fitzgerald sued several close presidential advisers (not cabinet officials) in addition to President Nixon. Instead of holding that close presidential advisers enjoy absolute immunity when they act in their official capacity like the president, the Court held they have qualified immunity. Therefore, senior officials are immune when they act in their official capacity if they establish “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Here, the Court refused to extend the same standard of immunity of close advisers to the president that it gave to aides of members of Congress. In part, this was because in Butz v. Economou (1978), the Court provided qualified immunity to cabinet officials, and it did not think there was an important distinction between the two roles. However, in footnote 19, the Court noted that some aides do act as an alter ego to the president, especially in “central presidential domains” like foreign policy and national security.

Clinton v. Jones (1997): During the first term of Bill Clinton’s presidency, he was sued by Paula Jones for actions he allegedly took when he was Governor of Arkansas. President Clinton argued he was immune from the lawsuit until he left office under the separation of powers. In a unanimous decision, the Court rejected that argument and held the president could be subject to the lawsuit because a private lawsuit would not substantially burden the president in his official duties. Moreover, presidents have been subject to these actions and subpoena actions before; and if the judiciary can review the legality of a president’s official action, it follows that it can review the legality of a president’s unofficial action.

Like Marbury, Youngstown Sheet & Tube Company, Nixon, and Fitzgerald, the dispute was not between Congress and the Executive. Moreover, the case dealt with the rights of an individual, not a question regarding the powers of the Executive vis-à-vis Congress.

Judge Jackson’s Arguments

#1 This is a Typical Subpoena Case

One of Jackson’s key arguments throughout the opinion is that the Committee’s subpoena to McGahn is no different than any other subpoena in the judicial context. (See pages 27-37.) The reason is obvious: if she can convince the reader of this, the case is largely over because if courts are the bodies that decide whether subpoenas are lawful, it follows that courts decide in every instance whether a subpoena is lawful, no matter who the parties are, or what the dispute is over. In other words, her point is the judiciary always has the final say on subpoenas, and this case is no different.

DOJ’s main contort to this framing was that this case is actually a normal dispute between the political branches of government. In other words, the political branches can work these issues out like they have for the entire history of the country, and courts should not be involved. Without recognizing the importance of the political dispute, Jackson argued this case is a typical subpoena case, regardless of the parties, regardless of the dispute, regardless of the fact that there is no history of the courts getting involved in these questions. Incredibly, Judge Jackson agreed with DOJ that “for two hundred years after the Founding lawsuits between the Congress and the Executive branch did not exist…” (See page 51.)

Instead of understanding the importance of historical significance that courts have not gotten involved in these disputes, Jackson relies on several previous Supreme Court cases that deal with legislative subpoenas for private individuals. In her view, there is no distinction between Congress using the subpoena process on a private citizen versus a co-equal branch of government. But of course, there is a distinction. There is no history of it occurring. Bizarrely, Judge Jackson then suggests that the reason Congress has never sought the courts to enforce subpoenas is because it rarely, if ever, used its investigatory power. (See page 55.) Regardless of whether Congress did use its investigatory power, Jackson’s position presupposes that Congress would have used the courts had the Executive denied it information it wanted. She provides no evidence for this argument.

To make matters worse, Jackson agrees with DOJ that in the late nineteenth century, there were very few cases that deal with the congressional investigatory power, none of which entail Congress suing the Executive. Miraculously, her response to this argument is perhaps the Executive understood from prior case law that it would be forced to comply if Congress went to court to get information. But that argument presupposes that in every negotiation with the Executive, Congress always got exactly what it wanted or else it would have sued with the understanding in mind that it would get the information. Moreover, if this was the case, why would Congress ever negotiate over anything in the first place? Finally, her argument presupposes that the Executive believed they were at the mercy of Congress whenever it wanted testimony or documents and had no arguments to the contrary. She provides no evidence for these positions.

Another argument advanced by Jackson is that DOJ’s position on the justiciability of congressional subpoenas is inconsistent with respect to close advisers to the president and private individuals. Jackson relies on several lawsuits President Trump filed in his personal capacity to quash Congressional subpoenas and the fact that DOJ did not argue those subpoenas are not justiciable. (See pages 56-57.) This argument also misses the point. DOJ’s position is not that private individuals cannot invoke the judicial process to quash subpoenas. They would have no recourse otherwise. They are not protected by being a co-equal branch of government that can negotiate with the other branch. DOJ’s position on testimonial immunity is rooted in the separation of powers, that the branches have resolved these disputes on their own throughout the history of the country, and if they fail to reach a decision, they have constitutional tools at their disposal to get what they want. None of these things exist with respect to private individuals.

The only way for Judge Jackson’s position to be logically consistent is to argue that Congress’ status as a co-equal branch of government is irrelevant, and their constitutional tools are meaningless. She does exactly this. (See pages 80-84.) First, she takes issue that DOJ is “undisturbed by the manifest inequity of treating a committee of Congress less favorably than a litigating private citizen,” which is a remarkable assertion considering Congress is a co-equal branch of government, and not a private citizen. Moreover, she calls Congress’ appropriation power “a practical nullity” because it cannot be implemented quickly nor without the full compliance of Congress and the president. While Jackson relies only on the appropriation power, and not the many other tools the Constitution gives Congress, her position completely devalues the centuries of negotiations between Congress and the Executive. Under her argument, one wonders why the Executive has ever negotiated with Congress over questions like this if the president would just veto whatever came to his desk.

#2 Precedent Commands this Result

A common theme throughout the opinion is Jackson’s strong belief that stare decisis plays an invaluable role in our judicial system. (See first at pages 26-27.) Stare decisis, Latin for “to stand by things decided,” is the legal doctrine that courts should apply precedents (previous decisions) when issues come before them that are the same or similar to a case that a court has already decided. Of course, much of Jackson’s opinion relies on Miers (see page 40), which is only a district court opinion. But opinions from the district court are not binding precedent in the federal system. Other district court judges are free to disagree with or disregard them. So, reliance on Miers cloaked in the importance of stare decisis is not entirely accurate.

Jackson’s main precedential argument is largely a misdirect, arguing that Supreme Court precedent holds that the judiciary decides separation of powers cases all the time. (See pages 60-65.) Among many cases, she relies on Marbury and Youngstown Sheet & Tube Company for this position. But those cases are not cases where Congress sued the Executive to enforce a subpoena. And how could she rely on cases where that situation happened? She already agreed with DOJ’s argument that there is no history of it happening. In fact, all the cases she cites deal with cases where private individuals sued the Executive because of the Executive’s unconstitutional action. This makes perfect sense considering Marbury instructs that the role of the courts is to “decide the rights of individuals.”

To strengthen this misdirect, Jackson argues the Supreme Court has never distinguished between a congressional subpoena for private individuals and the Executive, nor has it said that courts cannot resolve these disputes. (See page 61.) This is a strange argument. Instead of affirmatively arguing there is Supreme Court precedent (she can’t because there isn’t), she argues that silence acts as precedent. Because of the importance of history in major constitutional questions like this, silence cannot act as precedent when the Supreme Court has never settled the question, there is no history of judicial involvement, and it’s solely a dispute between the political branches of government that have their own constitutional tools to rectify these problems, unlike private individuals. Jackson also enlists the Federalist Papers for the proposition that each branch must play a role in checking the abuse of the others. While this sounds nice, it does not refute the affirmative argument that there is no history of Congress enlisting the judiciary to ensure the Executive complied with its requests during the founding era.

Later, Jackson affirmatively agrees with DOJ that the historical record shows these disputes are typically resolved through negotiation. From this, she pivots and argues that the fact that there is no history of judicial involvement does not indicate whether the judiciary can resolve these questions today. (See pages 87-88.) However, it is inaccurate to displace history for major constitutional questions like this. And to buttress her argument, Jackson claims the judicial system should play a role because “the Executive branch appears to be categorically rejecting once-accepted and standard applications of Legislative branch authority…” But how can that be? Jackson has already accepted DOJ’s argument that courts have not settled this question, but instead the branches have negotiated with each other. So how can DOJ be “rejecting” the “standard application of “Legislative branch authority”?

Jackson also adds her own two cents that the fact these disputes are now in court “says more about the unprecedented nature of the challenged actions and legal positions of the Executive branch than it does about the nature of the Judiciary Committee’s claim…” In other words, the reason for the case is because the Executive is not complying with longstanding precedent. But, as stated above, no precedent exists on this question. So, how can the Executive be disregarding it? And why is the Executive wrong for advancing strong legal arguments?

#3 The Office of Legal Counsel’s Position is Wrong

Jackson’s first move in rejecting OLC’s longstanding position is to fully embrace Judge Bates’ analysis in Miers. (See page 89.) As she does throughout the opinion, she agrees with DOJ that Congress and the Executive have normally resolved these disputes on their own, and litigation has been “infrequent.” She attributes the dearth of litigation to the fact that “Congress’ clear constitutional prerogative to compel information in furtherance of its legislative and oversight functions has been historically recognized and is typically widely respected.” (See page 91.) Again, she offers no evidence for this argument in the realm of congressional-executive relations. If anything, it is likely true that centuries of negotiation defeats this position because otherwise, Congress would just go to court whenever the Executive chose not to hand over everything Congress wanted.

Next, Jackson reiterates the arguments offered in Miers for rejecting testimonial immunity. They go like this: while it is true that Fitzgerald provided immunity for the president when he acts in his official capacity, Harlow rejected that claim for the president’s advisers. Therefore, the president’s aides are in a weaker position than congressional aides, who enjoy immunity under the Speech and Debate Clause just like the member of Congress they work for, see Gravel. Miers also argues testimonial immunity for the president is on shaky ground because in Nixon, the Supreme Court rejected an absolute right of executive privilege, and in Jones, it held that a sitting president could face civil litigation in his personal capacity. From Jones, Judge Bates argued if the president could find time to face a civil lawsuit, his aides could find time to testify before Congress. Jackson accepts this analysis in full. (See pages 92-94.)

On OLC’s position that the president is immune from congressional testimony, Jackson says that argument “stands on shaky footing” after Nixon, Jones, and Harlow. In rejecting OLC’s numerous separation of power distinctions from those cases, she argues “it seems unlikely that a president would be declared absolutely immune from compelled congressional process.” (See pages 102-103 and footnote 30.) This position is remarkable. Jackson all but says Congress can compel the president to testify over his official duties. To her, it is irrelevant that Nixon entailed compliance with a subpoena in a criminal case for the defendant’s benefit, or that Jones entailed a lawsuit against the president over conduct before he came into office. Those cases did not entail a fight between Congress and the Executive, which is the actual separation of powers dispute here. In other words, all the cases she relies on are inapposite to the current dispute.

If Congress were to subpoena the president for testimony or documents regarding his official duties, the Executive would obviously not comply. In practice, that means Congress would go to court, seeking an injunction to enforce the subpoena. In other words, under Jackson’s theory, a court would enforce the subpoena against the president. But, enforcing a subpoena against the president in his official capacity was strongly rejected in a concurring opinion by Justice Scalia in Franklin v. Massachusetts (1992). Scalia noted there has been one case in the history of the Supreme Court where this was attempted and the Court forcefully disclaimed the ability to do so, holding that “this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.” See Mississippi v. Johnson (1867). In the history of the U.S., no court has ever issued an injunction against or held the president in contempt, but to Jackson, that history is meaningless because she misses the separation of powers point. How can it be that a court has never enjoined the president, but if Congress sought an injunction against the president, the court would grant it?

In rejecting testimonial immunity for the president’s advisers, Jackson’s strongest argument comes from Miers—presidential aides get only qualified immunity under Harlow, unlike congressional aides that get full immunity under Gravel, or the president who receives full immunity under Fitzgerald. But as OLC persuasively explains, civil damages lawsuits do not raise the same separation of powers problems that congressional testimony does. First, civil damages lawsuits are brought by private individuals, not Congress. Second, the courts act as a neutral arbiter in these disputes. With a congressional subpoena, Congress is issuing the subpoena, so a separation of powers problem exists immediately. In addition, Congress is the lawmaker and judge because it makes its own rules and enforces them during the hearing. Put another way, congressional testimony is nothing like a civil damages suit. Congress intentionally does not act as a neutral arbiter.

While Jackson recognizes that advisers to the president might be asked sensitive questions that touch on executive privilege, she thinks the adviser should show up and assert it. (See pages 107-108.) Her argument does not respond to OLC’s concerns about aides being constantly harassed, being held in contempt for failure to answer questions, or Congress rejecting executive privilege during the hearing. Although Jackson does not state this in the opinion, the Committee and the Executive would end up back in court over these executive privilege concerns. This would entail an even further drawn-out legal battle, requiring the courts to determine each privilege claim. Naturally, there is no history of courts ever getting involved in these disputes because the role of the judicial system is not to police how Congress runs its hearings.

Finally, Jackson takes a rose-colored glasses view of congressional-executive relations that does not conform with reality. Jackson argues that Congress does not call people to testify “as punishment, but to provide the Legislature with the information that it needs to perform its critical legislative and oversight functions.” (See page 109.) Moreover, these advisers should have nothing to fear if they are truly working on behalf of the American people, and if they are afraid, she argues that it is all the more reason for them to testify. (See pages 109-110.) Working off this point, Jackson stresses that employees of the Executive work for the “People of the United States” and that “the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.” (See page 114.) The “Presidents are not kings” line is certainly over the top, did not need to be stated, and it was likely used to gain media attention for the opinion. It also does not accurately state OLC’s opinion, which has been accepted by administrations of both parties since the early 1970’s. To make matters worse, Jackson’s view of how Congress treats the Executive is entirely inaccurate, especially considering the goal of an opposite political party in control of Congress is to embarrass the president to defeat him in the next election.

Conclusion

Judge Jackson was wrong in concluding the Committee could enlist the judiciary to enforce its subpoena against the Executive. First, this is nothing like a typical subpoena dispute. A traditional subpoena dispute does not entail one branch of government suing the other because of an impasse in negotiations, and a failure to use all the constitutional tools it has at its disposal. Rather, this is a serious separation of powers dispute. Second, while agreeing that the Supreme Court has not settled this question, and there is no history of judicial involvement, she misconstrues Supreme Court precedent to hold a congressional subpoena for an individual is no different than as applied to the Executive. To strengthen this argument, Jackson argues it is not fair for the Executive to treat Congress worse than a private individual attempting to quash a subpoena, thereby completely missing the fact that two co-equal branches of government in court is nothing like a private individual going to court. While each of these positions on their own might be defensible, they are not defensible with the backdrop that Congress and the Executive have settled these questions on their own without judicial intervention for the entire history of our country, an argument Jackson accepts as true.

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