Balkinization: So Much for the <span style="font-style:italic;">Unitary</span> Executive

So Much for the Unitary Executive

Marty Lederman

I finally got a chance to read the President's address the other night, and I'm sure I wasn't the only one struck by a particular odd turn-of-phrase: "I'm sorry this, frankly, has bubbled to the surface the way it has, for the U.S. attorneys involved. I really am. These are -- I put them in there in the first place; they're decent people. They serve at our pleasure."

"Our" pleasure? I can imagine all the raised eyebrows over at the Federalist Society when they heard that one. What happened to Article II, Section 1, anyway? ("The executive Power shall be vested in a President of the United States of America.")

Of course, the U.S. Attorneys serve at the President's pleasure, not because the Constitution necessarily requires it, but because that's what the relevant statute (28 U.S.C. 541(c)) provides: "Each United States attorney is subject to removal by the President."

So why did the President refer to "our pleasure"? Just a simple slip o' the tongue?

Perhaps not. The next day, Tony Snow curiously suggested that the removal decision was made, not by the President, but by the Department of Justice: "This is a decision that was made at the U.S. Department of Justice."

Indeed, Snow claimed that DOJ made the removals (i.e., asked for "resignations") without even telling the President!:

"MR. SNOW: The President has no recollection of this ever being raised with him. . . .

Q Just to follow, did you say, again for the record, that the President has no recollection of ever being asked about any of this?

MR. SNOW: Yes, the removal -- yes, that is correct.

That's fairly remarkable and troubling, if it were true -- that the Attorney General fired eight U.S. Attorneys who are, by statute, removable by the President, and did so without even getting the President's approval for such a serious decision!

That's why it's almost certainly not true. It's virtually inconceivable that the President did not sign off on the removals (even if he was not intimately involved in the discussions that led up to the final choices). The President, in his briefing, undermined Snow's subsequent claim:

"These U.S. attorneys serve at the pleasure of the President. I named them all. And the Justice Department made recommendations, which the White House accepted, that eight of the 93 would no longer serve."

I suspect the reason Tony Snow was trying to suggest that this decision was made entirely within DOJ is that the Administration is trying desperately (and understandably) to withhold communications that occurred within the White House itself (e.g., among Karl Rove, Harriet Miers, and/or the President). If the White House had nothing at all to do with the decisions, then of course any Rove/Miers communications are simply irrelevant to the possible wrongdoing that Congress wishes to investigate.

But as the President acknowledged, the decision was ultimately his, just as the statute instructs. And undoubtedly that decision was preceded by communications among and with Rove, Miers, et al. That's why those communications are highly relevant to the congressional inquiry (which is a question distinct from whether executive privilege outweighs the legislative need here).

One final observation: If the internal White House communications truly had been immaterial to any presidential decisionmaking -- say, because they were made by the AG without White House guidance or direction -- then Congress's need for them would be diminished; but, in like fashion, the claim for privileging them would be significantly weakened, too, which is what one reporter stressed at the Snow briefing yesterday:

Q Just to follow up on one point earlier, yesterday the President said, and you've repeated, that the principle at stake here with executive privilege is that the President needs to get candid advice from his advisors, right?

MR. SNOW: What the President has talked about is privileged communications with close staff members, that is correct.

Q But earlier you were saying that, when I asked about, well, was the President informed of this decision, did the President sign off on U.S. attorneys being fired, you said the President has no recollection of being informed of all this.

MR. SNOW: Correct.

Q So were his advisors really advising him on this? Is this really privileged communication involving the President and his advisors, if the President wasn't looped in, you're saying, on this decision? So it was other people --

MR. SNOW: Well, that also falls into the intriguing question category.

Q But, I mean --

MR. SNOW: No, you're asking -- you're asking me to -- look, Ed, there are a number of complex legal considerations in here, and I'm not going to try to play junior lawyer. These are the sort of things that people are going to have an opportunity to talk about.

Q But aren't you having it both ways? If you're saying the President wasn't in the loop, but we need to cite executive privilege for the President's communications --

MR. SNOW: No, what you're -- what you are saying is, are conversations that didn't take place privileged? Well, no -- they didn't take place.

Q So what are you protecting, if they didn't take place?

Posted 3:38 PM by Marty Lederman [link]

Comments:

The more likely explanation is that Bush was using the royal "we."

# posted by

Duffy Pratt : 4:35 PM

"Our" pleasure? I can imagine all the raised eyebrows over at the Federalist Society when they heard that one. What happened to Article II, Section 1, anyway? ("The executive Power shall be vested in a President of the United States of America.")

It is rather obvious that the President was putting himself in the context of any and all Presidents. His point was they serve at the pleasure of anyone who happens to be President, including himself.

As for DOJ making the decision, there is nothing illegal about the President delegating his power to subordinates or to an executive agency. If you're going to argue that the President can't delegate decision-making authority to subordinate executive branch officials located outside of the White House, then the entire system of federal agencies should be stricken down as unconstitutional under the nondelegation doctrine. There goes your EPA and your FDA and your FCC and all the rest. There goes the whole of your regulatory state. Is that what you're arguing, Marty? Or is your argument that the Necessary and Proper Clause permits Congress to violate the Constitution?

# posted by

Mortimer Brezny : 4:45 PM

Today, Tony Snow has been repeating a new talking point - that Congress has no power of oversight with respect to the White House.

On ABC:

The executive branch is under no compulsion to testify to Congress, because Congress in fact doesn't have oversight ability.

and at today's press briefing:

MR. SNOW: There are -- in this particular case, the Department of Justice -- the Congress does have legitimate oversight responsibility for the Department of Justice. It created the Department of Justice. It does not have constitutional oversight responsibility over the White House, which is why by our reaching out, we're doing something that we're not compelled to do by the Constitution, but we think common sense suggests that we ought to get the whole story out, which is what we're doing.

I'd be very interested in your opinion of this.

# posted by

x-y-no : 4:59 PM

It is rather obvious that the President was putting himself in the context of any and all Presidents...

Interesting spin, but I think not. Here's his statement, which doesn't suggest any grand vision of his place in history vis-a-vis other Presidents; it's clear he's talking about himself and the Department of Justice:

"Listen, first of all, these U.S. attorneys serve at the pleasure of the President. I named them all. And the Justice Department made recommendations, which the White House accepted, that eight of the 93 would no longer serve. And they will go up and make the explanations as to why -- I'm sorry this, frankly, has bubbled to the surface the way it has, for the U.S. attorneys involved. I really am. These are -- I put them in there in the first place; they're decent people. They serve at our pleasure. And yet, now they're being held up into the scrutiny of all this, and it's just -- what I said in my comments, I meant about them. I appreciated their service, and I'm sorry that the situation has gotten to where it's got. But that's Washington, D.C. for you. You know, there's a lot of politics in this town." (emphasis supplied.)

# posted by

Constitutional Crisis : 5:08 PM

Tony Snow forgot to check with the State Department. They're telling the world that Congressional oversight includes the President.

# posted by

Mark Field : 6:36 PM

Time and again, the oversight power of Congress has proven to be an essential check in monitoring the presidency and controlling public policy.

Nice link, Mark!

# posted by

PMS_Chicago : 6:57 PM

Again, I am outsider here.

But just a second. I’m a foreigner and basically uninformed. But to a foreigner, this is really confusing. Is there no possibility of waiver here? The authorities suggest that the privilege may never be absolute, particularly in the face of evidence of criminal wrongdoing.

True, the documents that are produced are documents resident, in practical terms in the Department of Justice. But Counsel Fielding’s letter transmitting the emails says, “...These documents do not reflect that the U.S. Attorney was replaced to interfere with a pending or future criminal investigation or for any other improper reason.” He goes on to say, “...Congress, in short, is receiving a virtually unprecedented window into personnel decision-making within the Executive Branch...”

Is it the law that an executive branch can cherry pick, with impunity, the documents they look to release and the information they choose to let out. Thousands of pages of emails have been turned over to the House of Representatives and the Congress. The emails include exchanges of communications with Presidential advisors, the President’s then own, two successive lawyers, Gonzales, then Harriet Myers. They were turned over voluntarily. There were temporizations in how they were transmitted, but they were selected and provided and said by Counsel to illustrate a state of events which Counsel wanted the Representatives to whom he was providing the material to accept.

And if not, how does the law operate to continue to insulate disclosure?

# posted by

Tantallon : 7:02 PM

Surprisingly, it is possible that this decision was taken by AG and Miers independently:
Gap in Justice, White House e-mails raises questions
On November 15 -- the last day before the e-mail gap -- Kyle Sampson, who was then chief of staff to Gonzales, e-mailed Miers and her deputy an outline of the plan to fire the prosecutors and wrote, "The plan, by its terms, would commence this week."

Sampson resigned last week amid outcry about the firings.

Later in the same e-mail Gonzalez said, "I am concerned that to execute this plan properly we must all be on the same page and be steeled to withstand any political upheaval that might result."

Miers responded that same morning, saying, "Not sure whether this will be determined to require the boss's attention" and noted that President Bush had left town the night before. Sampson then asked, "Who will determine whether this requires the president's attention?"

So at least initially, it was done independently, and even though they knew it was a political hot-potato, they weren't sure whether they should tell "The Boss".

I'm not sure what's more troubling: that the president was in on the deal, or that 8 USAs are fired with clear forewarning of political trouble without the president being in the loop at all. Sounds like the inmates are running the asylum.

# posted by

RandomSequence : 8:04 PM

Is there no possibility of waiver here?

Presidents are always careful to say that if they produce documents or witnesses, that is not to be considered a waiver of Presidential privilege. Without seeing the whole correspondence, I assume that standard disclaimer was included when the White House turned over the emails.

I should add that this is a common practice in the legal system generally. It regularly happens that a party will allow a client to answer a question which might otherwise be privileged, upon the agreement from the other side not to treat the answer as a waiver.

Is it the law that an executive branch can cherry pick, with impunity, the documents they look to release and the information they choose to let out.

That is, in colloquial terms, the $64,000 question. We know the Supreme Court has held that documents must be released in a criminal prosecution. A lower court has held no basis for release in the ordinary case. This situtation is in-between: there is suspicion of criminality and a legitimate Congressional investigation. Depends on how the Court weighs the interests of Congress and the President. That's assuming it takes the case -- it sometimes refuses to get in the middle of political disputes.

# posted by

Mark Field : 8:27 PM

"They serve at our pleasure."

I'm kidding - really - but my first thought was he slipped into royal speak.

# posted by

DRJ : 4:07 AM

Mark Field: Presidents are always careful to say that if they produce documents or witnesses, that is not to be considered a waiver of Presidential privilege.

I may be wrong, but I thought the term "waive" is used to mean the opposite: That when a president voluntarily allows testimony, etc., he does waive the privilege in a particular circumstance, while at the same time asserting that the general privilege still exists.

# posted by

JaO : 10:02 AM

I may be wrong, but I thought the term "waive" is used to mean the opposite: That when a president voluntarily allows testimony, etc., he does waive the privilege in a particular circumstance, while at the same time asserting that the general privilege still exists.

I agree. I understood the original question to ask whether the production of some "privileged" documents constituted a waiver as to others not yet produced. My response was intended to say that it does not, that Presidents reserve the right to assert privilege for those yet-undisclosed documents, and therefore the production of some does not waive the right as to others. Obviously, it does waive any right as to the documents actually produced.

# posted by

Mark Field : 11:09 AM

"our pleasure" - given the number of brain cells involved, its as likely a slip of the tongue as anything, seriously.

However, I'm surprised nobody is holding his feet to the "I'm the decider" statement.

It looks as though gwb may be a another chronic flip-flopper.

# posted by

bitswapper : 1:48 PM

These are -- I put them in there in the first place; they're decent people. They serve at our pleasure.

No, not spin. It's Marty's view that makes no sense. The President clearly says "I put them in there" -- and I assume you are not arguing the President is unaware that he is the President.

# posted by

Mortimer Brezny : 7:54 PM

No, not spin. It's Marty's view that makes no sense. The President clearly says "I put them in there" -- and I assume you are not arguing the President is unaware that he is the President.

I think con-cri (and Marty) was saying that the "our" doesn't refer to "me and all the other Presidents" but actually "me and the DOJ." That's not inconsistent with the President admitting he put them into office. I know plenty of people that think they put the President in office, but feel he's working for someone else. :P

Myself, I'd put money down that Mr. Bush meant "me and the American people, who support my decisions."

Note the comma placement.

# posted by

PMS_Chicago : 8:10 PM

"A lower court has held no basis for release in the ordinary case."

Is this the case referenced in another post, in which things were not really 'clean' in that it in part noted that the material could possibly be obtained in another fashion?

I also wonder if MCGRAIN v. DAUGHERTY is relevant here. It also involved the Dept. of Justice. To the degree it does not deal with executive officials directly as witnesses, I would read it along with U.S. v. Nixon, which focuses on "judicial" ends. Congress is an equal branch, and the ruling underlines the importance of "legislative" investigations as well.

One thing that seems clear to me in this case is the basic lack of courage by this administration. They wish to do big things, some quite risky, but aren't willing to be truly open about it.

The Iraq situation is an obvious case -- the case for war was tricky, but possibily defensible, but they cooked the books. Same here. See, e.g., Charles Krauthammer's column supporting firing Alberto Gonzalez for allowing Congress to be misled etc., though CK thinks the President's decision to fire ws totally proper.

CK is rather naive in that -- one thinks hiding something on some level suggests guilt, and evidence is being brought out underlining the fact. But taking it on face value, the column underlines the President's fear in truly and openly making his case.

I would still think many of his decisions were poor ones, but I would have a bit more respect for him if he did not take this path repeatedly.

# posted by

Joe : 10:44 AM

George W. Bush has only two choices:

1. "I was in charge and responsible, and therefore the firings were made legally according to Title 28, Chapter 35, Section 541."

2. "I was NOT in charge and NOT responsible, and therefore the firings were NOT made legally according to Title 28, Chapter 35, Section 541."

He can't have it both ways.

# posted by

doug : 11:55 PM

"Our pleasure," while a grating reminder of Bush's seemingly royalist concept of his office, seems to me more likely a reference to himself with his team. It is a common usage by many contemporary leaders who attempt to shuffle exclusive responsibility away from themselves.

# posted by

Larry Koenigsberg : 2:57 PM

As for DOJ making the decision, there is nothing illegal about the President delegating his power to subordinates or to an executive agency. If you're going to argue that the President can't delegate decision-making authority to subordinate executive branch officials located outside of the White House, then the entire system of federal agencies should be stricken down as unconstitutional under the nondelegation doctrine. There goes your EPA and your FDA and your FCC and all the rest.

Huh? Those agencies are creations of Congress, just like the rule saying that the president appoints US attorneys. Moreover, Art. II Sec. 2 of the US constititution says He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

How much clearer than "in the president alone" do you need?

# posted by

Ginger Yellow : 4:35 PM

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# posted by

Mortimer Brezny : 12:00 PM

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# posted by

Mortimer Brezny : 12:01 PM

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# posted by

Mortimer Brezny : 12:04 PM

Those agencies are creations of Congress, just like the rule saying that the president appoints US attorneys.

Yes, and Art. 1, sec. 1 says that the legislative power shall be vested in the legislature. Yet federal agencies created by Congress exercise legislative power. Delegation is permitted, despite the text of the Constitution suggesting otherwise.

# posted by

Mortimer Brezny : 12:06 PM

Mortimer Brezny:

Yes, and Art. 1, sec. 1 says that the legislative power shall be vested in the legislature. Yet federal agencies created by Congress exercise legislative power. Delegation is permitted, despite the text of the Constitution suggesting otherwise.

And if you'll recall, the regulatory apparatus is enabled by the APA legislation, and regulation is looked at askance if it does not conform to the purpose of the enabling legislation, or if it exceeds the permissible boundaries of such. Regulation is allowed through the fiction that it's just the implementation of legislation (as opposed to the "delegation" of such), even if the courts have honoured this distinction sometimes mostly in the breach. The nomination and appointment of "officers" is either done or not done. Dubya can't "delegate" such tasks to someone else, saying he's just provided "guidelines". Nor would such be accepted.

Cheers,

# posted by

Arne Langsetmo : 7:05 PM

Arne,

Your comment makes no sense. The APA is what guarantees due process in the delegation. The existence of the APA is not proof there is no delegation.

# posted by

Mortimer Brezny : 4:42 AM

It is rather obvious that the President was putting himself in the context of any and all Presidents. His point was they serve at the pleasure of anyone who happens to be President, including himself.

Yeah, sure, he was just talking about all the presidents that came before him . . . just keep telling yourself that Morty, don't hurt your brain.

# posted by

Tony : 12:38 AM