Dm B1 Arnold-porter Fdr- Entire Contents- Correspondence And Memos Re Potential Subpoena Of Pdbs- Nsc Documents- White House Officials

Dan Marcus From: Sent: To:

Cc: Subject:

GaryM Stern [[email protected]] Thursday, August 19, 2004 4:17 PM Steve Dunne Dan Marcus; Jason Baron; John Constance; Richard Hunt Re: current drafts

** High Priority ** Steve and Dan, NARA remains concerned that the Chair/Vice Chair letter, on its face, would allow immediate access to Commissioners and staff, even during the "initial period of at least several months," but would seemingly deny such access to current Government officials. Since, as you know, that would not be NARA's practice, we strongly urge you to urge the Vice Chair to include the following language, or something like it, at the end of the first full paragraph on page 2: "We understand that NARA's practices and procedures allow for review of these records by U.S. Government officials for official governmental purposes as necessary and appropriate." Thanks. GARY M. STERN General Counsel National Archives and Records Administration 8601 Adelphi Road, Suite 3110 College Park, MD 20740-6001 301-837-1750 (main) 301-837-3026 (direct) 301-837-0293 (fax) [email protected]

.

___

>» "Steve Dunne" <sdunne@9-llcommission. gov> 8/19/04 4:07:30 PM >» Gary -- We are still waiting for the sign off from our Chair/Vice Chair, but since you won't be around tomorrow, here are the current drafts as we think they will end up being sent. Please let us know if you have any questions. Thanks. Steve

DRAFT January 23, 2004 To:

Daniel Marcus, Esq.

From:

Robert N. Weiner Matthew Eisenstein

Re:

Potential Subpoena for Presidential Daily Briefings and Related Notes You have asked whether a court would likely enforce a subpoena issued by the

National Commission on Terrorist Attacks Upon the United States seeking articles from President's Daily Briefs ("PDBs") to President Bush and former President Clinton, regarding terrorist threats to the United States. You have also asked whether the analysis would change if the subpoena instead sought notes taken by Commission representatives, reflecting the contents of the PDBs. The PDBs are compilations of national security intelligence reports that the Central Intelligence Agency generates daily and presents to the President. In November 2003, the Commission and White House reached an agreement on the Commission's request to examine several hundred PDB articles from the Clinton and Bush Administrations relevant to the Commission's work. Under the agreement, four representatives from the Commission - the Chair, the Vice-Chair, Commissioner Gorelick, and the Executive Director - may review and take notes from a "core group" of PDB articles "plainly critical" to the Commission's investigation.1 The White House

The terms of the agreement are discussed in a statement issued by the Commission on November 20, 2003, available at http://www.9-l lcommission.gov/press/pr_2003-l 120.pdf.

retains the notes, but the four representatives may review them at any time. The representatives may also prepare a summary for the full Commission, which is subject to "limited review" by the White House. The representatives have "wide latitude" in preparing the summary and briefing the Commission. With respect to the several hundred responsive PDBs not included in the "core group," the agreement permits two representatives - Commissioner Gorelick and the Executive Director - to review them to determine whether any should be transferred to the "core group." The criteria for adding to the core group are that the articles are "material, important to the Commission's mandate, and provide significant knowledge not otherwise available to the Commission." The two representatives may take limited notes to determine whether the articles satisfy these criteria (which the White House keeps) and consult with the Chair and Vice-Chair on their analysis. Any transfer of articles to the core group requires White House approval. Recently, the Commission requested the transfer of about 40 PDBs to the "core group." The White House has preliminarily indicated that it will deny the request, at least in part. This memorandum addresses potential responses to that position.

I.

Legal Considerations As discussed in our prior memoranda, the Commission has the authority to

subpoena the PBD articles and corresponding notes.2 In response to such a subpoena, President Bush could assert Executive Privilege and refuse to produce the documents,

See Intelligence Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306, § 605(a)(l), 116 Stat. 2383 (2002).

2

including those from the Clinton Administration. If the Commission sought to enforce the subpoena in federal court,3 the legal considerations would be similar to those we outlined in our December 30,2003 memo concerning a potential subpoena for NSC memoranda to the President. As in that context, there is a risk that a court would reflexively quash the Commission's subpoena, given language in some opinions exalting as nearly absolute the President's right to withhold secret national security information.4 However, the Commission's mandate and hybrid structure - with both Legislative and Executive Branch attributes - ought to persuade a court to undertake a more thoughtful analysis, balancing the needs of the Commission and the Presidency. The potential factors that a court could consider in deciding whether to enforce a subpoena are similar to those discussed in our prior memo, with the following possible variations. First, unlike the NSC memoranda, which were written by close Presidential advisers, the PDB articles are written by staff at the CIA, an independent executive branch agency outside the White House. This distinction raises a threshold question

See id. § 605(a)(2)(B)(i). 4 See, e.g., United States v. Nixon, 418 U.S. 683, 710 (1974) ("[C]ourts have traditionally shown the utmost deference to Presidential responsibilities" for foreign policy and military affairs, and claims of privilege in this area would receive a higher degree of deference than invocations of "a President's generalized interest in confidentiality"); In re Sealed Case, 121 F.3d 729, 743 n.12 (under Nixon, "particularized claims of privilege for military and state secrets would be close to absolute"); see also Memorandum from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Confidentiality of the Attorney General's Communications in Counseling the President, at 2 (Aug. 2,1982) (the President may assert an "arguably absolute executive privilege" against Congress or in the courts to protect disclosure of national security secrets); cf. Webster v. Doe, 486 U.S. 592, 605-06 (1988) (O'Connor, J., concurring in part, dissenting in part) ("Functions performed by the Central Intelligence Agency and the Director of Central Intelligence lie at the core of the very delicate, plenary and exclusive of power of the President as the sole organ of the federal government in the field of international relations.") (quotation omitted). 3

whether the Executive Privilege for "Presidential communications," if invoked, would extend to the PDBs. In In re Sealed Case, the D.C. Circuit cautioned that "[n]ot 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. In particular, the privilege should not extend to staff outside the White House in executive branch agencies."5 In that case, however, the Court was concerned that the privilege would extend to conversations between and among "a large swath of the executive branch." The Court stated that only communications in the White House were "close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers."6 As the D.C. Circuit indicated in another case, the "operational proximity" to the President determines whether the President's confidentiality interest is implicated.7 Here, though, the issue does not relate to conversations among officials outside the White House. The CIA staffers are briefing the President directly. A court is therefore likely to find that they satisfy a "proximity" threshold. Communications to the President need not come from Cabinet members or White House aides to reveal the President's deliberations, and thus to warrant constitutional protection.8 That said, the CIA briefers do not have a policy-making or advisory function. They merely gather and report facts. To be sure, as noted in our prior memorandum, it is often difficult to separate fact from policy. But that assessment related to reports from an 5

6

121 F.3d at 752. Id.

Association of American Physicians and Surgeons, Inc. v. Clinton (AAPS), 997 F.2d 898, 910 (D.C. Cir. 1993).

adviser in a policy-making job. This is not the case with the CIA briefers. Thus, the rationale for the Presidential communications privilege, to preserve the President's access to candid advice, does not extend comfortably to the communications at issue here. Indeed, as a practical matter, it is unclear whether disclosure of the PDBs would have any chill on candid advice to the President. A court might take a somewhat different tack, and find that disclosure of PDBs could infringe on the confidentiality of Presidential decision-making by revealing the "nature and substance of the issues before the President."9 But revealing the nature and substance of the issues before the President would not necessarily impede the flow of candid advice to him, so long as the disclosure does not encompass that advice.10 Ultimately, a court is likely to recognize the Presidential communications privilege, but weigh the briefers' non-advisory role heavily in a balancing analysis. For many of the reasons noted in our prior memorandum, a waiver of confidentiality from President Clinton could influence a court in assessing the President's

Footnote continued from previous page 8 See id. ("A statute interfering with a President's ability to seek advice directly from private citizens as a group, intermixed, or not, with government officials . . . raises Article II concerns."). 9 In re Sealed Case, 121 F.3d at 751; Memorandum from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Confidentiality of the Attorney General's Communications in Counseling the President, at 5 (Aug. 2, 1982) ("The Supreme Court and lower federal courts have made clear that the presumption of confidentiality afforded presidential communications is intended to protect not only the substance of sensitive communications between the President and his advisers but the integrity of the decisionmaking process within the Executive branch as well."). 10 Cf. In re Sealed Case, 121 F.3d at 751 (the "ultimate" question concerning the scope of the Privilege is whether restriction would "impede the President's ability to perform his constitutional duty"); see also AAPS, 997 F.2d at 910 (in the context of a Task Force reporting to the President, the President may protect an "information-gathering" process if disclosure would "inevitably... compromisef]" the "confidentiality of the advicegiving function");

interest in confidentiality. There are two distinctions between the PDBs and the NSC memoranda that could affect the waiver analysis. First, in the context of the NSC memoranda to Clinton, we noted that President Clinton's waiver would dispel any potential chilling effect of disclosing the documents. Insofar as the PDBs do not reflect advice, they may receive less protection in the first place. But an argument predicated on dispelling the chill on candid advice to the President may have less legal force. Second, unlike White House aides, the CIA briefers do not necessarily change with the Administration. Nevertheless, as a practical matter, a court would likely accord significant weight to a statement by President Clinton supporting the production of these records. Also unlike the NSC memoranda, many of the PDB articles reveal uncorroborated "raw" intelligence, as well as CIA sources. In reaction to the Commission's request for PDB articles and prior to the current agreement, President Bush explained that PDB writers must "feel comfortable that the documents will never be politicized and/or unnecessarily exposed for public purview."1' A court might well be concerned about this point. But the Commissioners and their staff have essentially the same classified clearances as the individuals in the White House who have access to the PDBs. That ought to moot, or at least ameliorate, any concern that the PDBs will be unnecessarily exposed to the public, hi addition, the Commission's authorizing statute, which provides that the Commission may only subpoena information with bipartisan support, and the

11 See The White House, Press Conference by President Bush (Oct. 28,2003), available at http://www.whitehouse.gov/news/releases/2003/! 0/20031028-2.html.

quasi-Executive status of the Commission, undercut the notion that the documents will be "politicized." One could argue that a subpoena for the notes of the Commission representatives would infringe less on Presidential prerogatives than a subpoena for the PDBs, because the notes are not themselves Presidential documents. But the better analysis, in our view, focuses not on prerogatives but functionality. On that analysis, the issue is whether disclosure of the notes would be less likely to interfere with Presidential decision-making than disclosure of the PDBs.12 Without having seen the notes, we cannot answer this question with any certainty. But insofar as the PDBs reflect protected Presidential communications, and insofar as the notes reflect the substance of the PDBs, there might be little difference in any chilling effect. On the other hand, if the notes do reflect less substance than the PDBs themselves, if they are more focused and less wide-ranging than the original documents, then arguably there could be a difference. Resolution of this issue could well require in camera review of materials, with a particularized, documentby-document analysis. Even if the Commission convinced a court that disclosure of the notes would be less likely to interfere with Presidential decision-making than disclosure of the PDBs, the court might nonetheless hesitate to afford the notes less protection. The notes are arguably a product of the White House's efforts to accommodate the needs of the Commission.13 A court might well be concerned that ordering production of the notes, 10

In re Sealed Case, 121 F.3d at 751 (the "ultimate" question concerning the scope of the Privilege is whether restriction would "impede the President's ability to perform his constitutional duty"). 13 Cf. United States v. AT&T, 567 F.2d 121,127 (D.C. Cir. 1977) (suggesting that, even when a claim of executive privilege in response to a congressional request for Footnote continued on next page

7

where the PDBs themselves would have been immune from subpoena, could discourage the White House from making similar accommodations in the future. The Commission might dispel or lessen such concerns if it could show that the White House breached the agreement by unreasonably refusing to transfer articles to the core group. Finally, the White House might argue that the agreement affording the Commission access to PDBs undermines the Commission's claim that it needs the PDBs or the notes.14 An important element of a showing of need is that the information sought is not available from other sources.15 According to the President's Press Secretary, the White House believes that the agreement provides the information the Commission requested.16 The Commission could respond to this argument by explaining that the White House's refusal to transfer the 40 PDB articles to the core group effectively denies

Footnote continued from previous page information rests on national security grounds, the Executive Branch and Legislative Branches must attempt to accommodate the legitimate needs of the other); Memorandum from William P. Barr, Assistant Attorney General, Office of Legal Counsel, Re: Congressional Requests for Confidential Executive Branch Information (June 19, 1989) (the "tradition of accommodation" should be "the primary means of resolving conflicts between the Branches"). 1 See Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en bane) (to justify a demand for confidential information protected by Executive Privilege, a congressional committee is required to show that the information sought is "demonstrably critical to the responsible fulfillment of the Committee's functions"). 15 See In re Sealed Case, 121 F.3d at 755 ("Efforts should first be made to determine whether sufficient evidence can be obtained elsewhere, and the subpoena's proponent should be prepared to detail these efforts and explain why the evidence covered by the Presidential privilege is still needed."); Senate Select Committee, 498 F.2d at 731-33 (the Senate Select committee did not make a sufficient showing of need for copies of the presidential tape recordings in part because the President had already released transcripts of the recordings). 16 The White House, Press Briefing by Scott McClellan, (Nov. 14, 2003), available at http://www.whitehouse.gOv/news/releases/2003/l 1/20031114-7.html ("w[e] have been working with [the Commission] to make sure that they have the information they need to do their job, and we have resolved the remaining issues that they have put before us, and we are giving them the information that they requested").

the Commission access to the information. Although Commissioner Gorelick and the Executive Director have reviewed the articles, the full Commission cannot receive even a summary of the articles or use the information in its report. And it is, after all, the full Commission that must ultimately make findings and report to Congress and the President. The Commission might well have the same argument the White House could make regarding the accommodation process. That is, the Commission could contend that using concessions made as part of the accommodation procedure, to deny access to materials could discourage future accommodations by the Commission and other entities. II.

Procedural Issues The procedural issues with respect to enforcement of a subpoena for the PDB

articles or for the corresponding notes are essentially as set forth in our prior memos. As noted in our earlier memorandum, the White House could run out the clock on the Commission by litigating this issue. III.

Political Aspects The accommodation process here may cloud the issue sufficiently that the White

House might not pay as high a political price in resisting a subpoena as it would with regard to the issues addressed in our prior memoranda. The Office of Legal Counsel, in advising the White House, might be concerned about setting a precedent that these kinds of materials are not absolutely protected from subpoena. But a number of aspects of this case - the origin of the reports at a staff level in the CIA rather than the White House, the absence of policy-making input, the factual nature of the documents, and the unique structure of the Commission - might lead OLC to conclude that any precedent would be of limited scope.

Based on these factors, the White House might be more likely to resist this subpoena than the other potential subpoenas discussed in our earlier memoranda.

10

x ARNOLD & PORTER

'

'' "

December 31,2003

To:

Daniel Marcus, Esq.

From:

Robert N. Weiner Matthew Eisenstein

Re:

Potential Subpoena of Certain NSC Documents Introduction and Summary You have asked whether a court would likely enforce a subpoena issued by the

National Commission on Terrorist Attacks Upon the United States seeking memoranda to President Bush and to former President Clinton from high-ranking members of the National Security Council ("NSC"), regarding terrorist threats to the United States. The memoranda may reflect advice to the President, reports of factual developments, or both. The Commission's subpoena would cover proposed memoranda to former President Clinton from Samuel Berger, then-National Security Advisor to the President, but authored by Richard Clarke, then-Special Assistant to the President and National Coordinator for Security, Infrastructure Protection and Counter-Terrorism. Clarke sent each proposed memoranda to Berger with a cover memo. Berger then forwarded the attached proposed memoranda to the President, typically without revision. The White House has produced the cover memos to Berger, but has withheld the proposed memoranda because they went to the President. The subpoena would also encompass other memoranda to President Clinton, as well as memoranda to President Bush, from the NSC.

The Commission has authority to subpoena these materials from the Bush and Clinton Administrations (including the proposed reports that Clarke drafted). In response to such a subpoena, President Bush could assert Executive Privilege and refuse to produce the documents. Should the Commission seek to enforce its subpoena in federal court, it would have some prospect of overriding this claim of privilege. One potential obstacle to enforcing the subpoenas is language in some opinions suggesting that the President's right to withhold sensitive information regarding foreign policy and national security is nearly absolute. There is thus a risk that a court would reflexively reject any attempted breach of the confidentiality of Presidential decisionmaking in these areas. On the other hand, the statements in the cases suggesting a categorical rule are largely dicta, and the situation here is distinguishable. Among other things, the Commission is fact-finding for and reporting to both the Legislative and Executive Branches of government. If the Commission, then, can persuade the court to undertake a more thoughtful balancing of its interests against those of the President, it would be more likely to prevail. Under such a balancing test, the Commission would need to demonstrate that the information sought is critical to its mission. And the President himself has recognized the importance of that mission. With respect to NSC memoranda to President Clinton, the chances of enforcing the subpoena would improve substantially if Clinton waived his interest in confidentiality vis-a-vis the Commission. Such a waiver could also put political pressure on President Bush to produce NSC memoranda he received, although it may not affect the legal bases of his claim of Executive Privilege regarding those documents.

-2-

The procedures for enforcing the subpoena are essentially the same as outlined in our previous memo. There remains a risk, if the issue is litigated, that the Commission might not be able to obtain the materials before its charter expires. I.

Legal Standards A.

Purpose and Authority of the Commission

The Commission has a hybrid structure. The statute creating the Commission designates it as an entity within the Legislative Branch.1 However, the President appoints the Chair of the Commission, without confirmation by the Senate. The Commission's statutory mandate is to investigate the facts relating to, and the causes of, the attacks of September 11, 2001, and to report its findings and recommendations to both the President and Congress.3 The President, in signing the statute creating the Commission, underscored how important these functions were for the Executive Branch: "This Commission will help me and future Presidents to understand the methods of America's enemies and the nature of the threats we face."4 To carry out its investigative mandate, the Commission is empowered to receive information directly from any executive department, agency or office, which must provide the information to the extent authorized by law.5 The statute also authorizes the

Intelligence Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306, § 601, 116Stat.2383(2002). 2 Id. § 603(a)(l). 3 Id. §§ 602, 604. 4 The White House, Office of the Press Secretary, Remarks by the President at Signing of the Intelligence Authorization Act (Nov. 27, 2002), available at http://usinfo.state.gov/topical/pol/terror/02112702.htm. 5 Pub. L. No. 107-306, § 605(c)(l) ("Each department, bureau, agency, board, commission, office, independent establishment, or instrumentality shall, to the extent authorized by law, furnish such information, suggestions, estimates, and statistics directly to the Commission, upon request made by the chairman, the chairman of any 1

-3-

r

Commission to issue subpoenas requiring testimony and production of documents.6 The Commission, however, may issue such subpoenas only with the concurrence of the Chair and Vice Chair, or by a majority vote of at least six Commissioners. Because the statute specifies that the Chair and Vice Chair must be from different political parties, and that not more than five of the Commissioners may be from the same political party, the procedural prerequisites for issuing a subpoena ensure bipartisan support.8 The statute further provides that a federal district court may enforce subpoenas issued by the Commission.9 Under these provisions, the Commission has the power to subpoena the NSC memoranda to President Bush and former President Clinton. If the White House withheld the documents as privileged, the Commission could move to enforce the subpoena in U.S. District Court.10 This memorandum assesses the likelihood that the Commission would succeed in that effort. B.

Power of the Incumbent President to Assert Executive Privilege as to Records of a Former President

In evaluating whether a court would enforce the Commission's subpoena, one threshold issue is whether President Bush could properly assert Executive Privilege over NSC memoranda to President Clinton. subcommittee created by a majority of the Commission, or any member designated by a majority of the Commission"). 6 Id. § 605(a)(l). 7 Id. § 605(a)(2)(A). 8 Id. § 603(a), (b). 9 Id. § 605(a)(2)(B)(i). 10 Id.; see also S. Rep. 107-150, at 20 (the statute "allows the Commission to bring a civil action applying to a United States district court for an order requiring a person who has refused to obey a duly issued subpoena to appear at any designated place to testify or to produce documentary or other evidence"). -4-

Under the Presidential Records Act, a President, before leaving office, may restrict access to certain records for up to 12 years.11 The former President may also waive the restriction on disclosure of such records.

10

In November 2001, President Bush issued Executive Order 13233, claiming authority to assert privilege over records of a previous Administration within 12 years after his predecessor's term. The Order directs the Archivist in that circumstance not to grant access to "any such privileged records" until "the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order."13 When the President issued this Order, some criticized it as inconsistent with the Presidential Records Act. The Act appears to contemplate that Reformer President will make decisions regarding the availability of his records. The Act does not explicitly accord an incumbent President the right to assert Executive Privilege on behalf of a former President. But the statute does state that nothing in it "shall be construed to confirm, limit or expand any constitutionally-based privilege which may be available to an incumbent or former President."14 The question is thus whether the incumbent President has authority under the Constitution to assert Executive Privilege with respect to a former President's materials.

11 44 U.S.C. § 2204(a). "Presidential records" include materials created by the President's immediate staff, or an individual of the Executive Office of the President whose function is to advise and assist the President. Id. § 2201(2). Although the PRA excludes official records of an "agency" as defined in FOIA, the D.C. Circuit has held that the NSC is not an agency under that definition. Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996). 12 44 U.S.C. § 2204(b). 13 Exec. Order No. 13233 § 8. 14 44 U.S.C. § 2204(c)(2).

-5-

The Court of Appeals for the District of Columbia Circuit has held that Presidential privilege "does not disappear merely because the president who made or received the communication dies, resigns, or has completed his term."15 Moreover, the Supreme Court has recognized that "the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly."16 This makes sense. An incumbent President could properly determine that disclosure of a predecessor's records would chill the advice of current Presidential advisers. Therefore, a court would likely find that President Bush retains authority to assert Executive Privilege as to documents from the Clinton Administration. We understand that President Clinton has not objected to production of any materials that the Commission has requested. Whether President Bush could assert Executive Privilege in the face of an affirmative waiver by President Clinton is a more difficult question. If, as suggested above, an incumbent President legitimately determined that disclosure of a predecessor's records would chill the candid advice of current advisers, then he would likely have constitutional authority to assert Executive Privilege, whatever the previous President's views. The Privilege flows from the sitting President's right to safeguard his Administration's decision-making process.17 That said, President Clinton's views would likely weigh significantly in the balancing test discussed below.

15 16 17

Dettums v. Powell, 561 F.2d 242, 248 (D.C. Cir. 1977). Nixon v. Administrator of General Services, 433 U.S. 425, 449 (1977). See United States v. Nixon, 418 U.S. 683 (1974). -6-

C.

Analysis of Potential Executive Privilege Claim

If the Commission sued to enforce a subpoena for the NSC memoranda, the President would most likely defend on the basis of what the D.C. Circuit has labeled the "Presidential communications" privilege. The Presidential communications privilege is the principal and generally the most robust category of Executive Privilege, deriving from the President's powers and responsibilities under Article II.18 The purpose of the privilege is to allow Presidential aides, without fear of public disclosure, to provide the President their candid advice so that he can perform his constitutional duties.19 A preliminary issue for a court would be whether the Presidential communications privilege extends to Dick Clarke's NSC memoranda from the Clinton Administration. After all, Clarke's proposed memoranda to President Clinton were sent from Clarke to Berger for review and revision, and not from Clarke to the President. One could argue that Berger's decision to send them to the President without revision should not retroactively confer some greater protection on what was sent to Berger. On the other hand, to the extent that the proposed memoranda reflected advice Clarke believed the President should receive, they arguably reflected his intended counsel for the President. And since Berger forwarded them, they also may have reflected Berger's advice.

Id. at 705 ("Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties."). 19 Nixon v. Administrator of General Services, 433 U.S. at 448-49 ("Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends."); United States v. Nixon, 418 U.S. at 708 ("A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in any way many would be unwilling to express except privately.").

-7-

The case law does not necessitate untangling this issue. The Court of Appeals for the D.C. Circuit has ruled that the privilege includes communications among the President's chief advisers, even if they did not share the communications with the fjf\.

In the court's words, the privilege covers "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."

Although this ruling was in the context of a grand jury subpoena for records,

the privilege would likely extend at least as far in the context of a congressional subpoena. Indeed, the Office of Legal Counsel in the Justice Department ("OLC") has opined that Executive Privilege has "at least as much force when it is Congress, instead of a court, that is seeking information" because the "possibility that deliberations will be disclosed to Congress is, if anything, more likely to chill internal debate among executive branch advisers."22 Given the hybrid structure of the Commission, this reasoning as to Congress may not apply fully here. But it is nevertheless likely that a court would find that the privilege encompasses the proposed NSC memoranda, whether or not the President received them.

In re Sealed Case, 121 F.3d at 747-52. Id. at 752 (communications satisfying the privilege are at a level "close enough to the President to be revelatory of his deliberations or pose a risk to the candor of his advisers"); see Judicial Watch, Inc. v. United States Department of Justice, 259 F. Supp. 2d 86, 91 (D.D.C. 2003) (Presidential communications privilege covered documents concerning former Clinton's pardon decisions even though "they did not involve direct communication with him or his White House staff'). 22 Memorandum from William P. Barr, Assistant Attorney General, Office of Legal Counsel, Re: Congressional Requests for Confidential Executive Branch Information (June 19,1989). 20

-8-

Another initial question would be whether the privilege covers NSC memoranda - or portions of them - that merely report facts. As noted, some of the documents are merely compendiums of intelligence on terrorist threats to the United States. According to the D.C. Circuit's decision in In re Sealed Case, the Presidential communications privilege applies to documents in their entirety, including factual material, and covers post-decisional documents as well as pre-deliberative ones.

^>3

Such material, the court

explained, "often will be revelatory of the President's deliberations - as, for example, when the President decides a particular course of action, but asks his advisers to submit follow-up reports so that he can monitor whether this course of action is likely to be successful."24 If the President invoked Executive Privilege for the NSC documents, a court thus would likely find that the privilege applied. The court would then likely balance the President's interests in confidentiality against the Commission's interests in receiving the information. As discussed below, whether the information is factual or advisory may affect this balancing process. 1.

Limits on the President's Power of Confidentiality vis-a-vis Congress

Executive Privilege provides qualified protection to Presidential documents. In general, the party seeking the materials may overcome the privilege by demonstrating a sufficient need for disclosure. As the D.C. Circuit stated in Senate Select Committee on Presidential Campaign Activities v. Nixon, to justify a demand for confidential

In re Sealed Case, 121 F.3d at 745 ("Even though the presidential privilege is based on the need to preserve the President's access to candid advice, none of the cases suggest that it encompasses only the deliberative or advice portions of documents."). 24 Id. at 745-46.

-9-

information protected by Executive Privilege, a congressional committee had to show that the information sought was "demonstrably critical to the responsible fulfillment of the Committee's functions."25 In the areas of foreign relations and national security, however, the breadth of Executive Branch prerogatives and the limited legislative role diminish Congress's ability to challenge a President's claim of confidentiality. The Supreme Court has suggested that Executive Privilege is nearly absolute on such issues, hi United States v. Reynolds, for example, the Supreme Court held that the United States military could classify an investigative report of a military crash as a "military secret" without having the document reviewed in camera by a lower court in a civil suit.26 The Court reasoned there that "even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake."27 Likewise, in United States v. Nixon, where the Court considered whether Presidential communications were protected from a grand jury subpoena, the Supreme Court contrasted the President's assertion of Executive Privilege based on the President's general interest in confidentiality with a claim based on his responsibility for national security.28 The Court stated that "[The President] does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities."29 The Court of Appeals for the D.C. Circuit in In re Sealed Case interpreted this language as implying that 25 26

27 28

498 F.2d 725, 731 (D.C. Cir. 1974). 345 U.S. 1 (1953).

Id. at 11 (footnote omitted). 418 U.S. at 710.

-10-

"particularized claims of privilege for military and state secrets would be close to absolute."30 None of these cases, however, squarely held that Presidential records relating to national security and foreign policy were absolutely immune from congressional subpoena. Reynolds was a civil case. The statements in Nixon and In re Sealed Case were dicta. In a 1977 case that addressed the question directly, United States v. AT&T, the Court of Appeals for the D.C. Circuit was less deferential, although the documents at issue did not involve Presidential communications. In that case, the Justice Department sought to enjoin a telephone company from complying with a congressional subpoena issued during an investigation into warrantless "national security" wiretaps.31 The subpoena demanded letters from the FBI to the telephone company pertaining to foreign intelligence surveillance. The Justice Department asserted that the "Constitution confers on the executive absolute discretion in the area of national security."32 The D.C. Circuit rejected the argument, noting that "the Constitution is largely silent on the question of allocation of powers associated with foreign affairs and national security."33 The court explained that the "degree to which the executive may exercise its discretion in implementing [its responsibility for national security] is unclear when it conflicts with an

29

Id.

121 F.3d 729, 743 n.12. The case law is somewhat unclear whether the "military and states secrets" privilege is a separate Presidential privilege arising from the separation of powers, or simply a signpost denoting the high end in the range of Presidential interests. Analytically, the latter is more defensible, except perhaps for conversations between the President and foreign officials, where the usual rationales for Executive Privilege do not apply. Moreover, neither the Court of Appeals nor the Supreme Court made clear whether "military and state secrets" encompass all confidential Presidential communications on foreign policy and national security. 31 551 F.2d 384 (D.C. Cir. 1976), appeal after remand, 567 F.2d 121 (D.C. Cir. 1977). 32 567 F.2d at 128.

-11-

equally legitimate assertion of authority by Congress to conduct investigations relevant to its legislative functions."

To resolve the issue, the court directed an accommodation

procedure, involving limited access by the committee to documents, with in camera judicial review to resolve disputes. Some OLC opinions also suggest that the Executive Branch has near absolute immunity from congressional demands for information relating to national security. As then-Assistant Attorney General William Rehnquist stated in 1969, "the President has the power to withhold from [Congress] information in the field of foreign relations or national security if in his judgment disclosure would be incompatible with the public interest."35 And, in 1982, Assistant Attorney General Theodore Olson wrote that the President may assert an "arguably absolute executive privilege" against Congress or in the courts to protect disclosure of national security secrets.36 Although Attorney General Reno reiterated that position in 1996 with respect to "diplomatic secrets" - there, "diplomatic communications with the leaders of Haiti" - she also applied what appears to be a more flexible balancing test in concluding that the President could properly assert Executive Privilege against a congressional subpoena.37 Weighing the respective interests of the President and Congress, the Attorney General

Id. 34 Id. Memorandum from John R. Stevenson, Legal Adviser, Department of State, and William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President's Executive Privilege to Withhold Foreign Policy and National Security Information, at 7 (Dec. 8,1969). 36 Memorandum from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Confidentiality of the Attorney General's Communications in Counseling the President, at 2 (Aug. 2,1982). 33

-12-

identified the conduct of foreign affairs as "an exclusive prerogative of the executive branch," and noted that Congress had no authority to legislate in the area. She found further that while "Congress's oversight authority [over the Executive Branch] in this context must be viewed as unresolved as a matter of law," such oversight was a less substantial interest than "a specific need" by Congress for purposes of legislation. The information sought thus was not, in the Attorney General's view, "demonstrably critical to the responsible fulfillment of the Committee's functions."38 Though advanced as an alternative ground for her opinion, this analysis suggests that Executive Privilege may not be absolute in the area of foreign relations. That is, if Congress could demonstrate a critical need, it could gain access. 2.

The President's Need for Confidentiality as Against the Commission

In determining whether to enforce the subpoena for NSC memoranda, a court could well rule reflexively that communications among the President's top advisers regarding foreign policy and national security are absolutely immune from subpoena. As noted, although there is no definitive ruling on this point, the case law provides some ammunition for such a position. Indeed, applying a flat rule based on the passages quoted above is in some ways the easiest path - requiring the least analysis - a court could take. Nevertheless, the distinctions between the Commission and a congressional committee, and between the interests at stake in this case and those at stake in prior decisions, ought to forestall such a knee-jerk approach. The Commission, in seeking to

Memorandum from Janet Reno, Attorney General, Re: Assertion of Executive Privilege for Documents Concerning Conduct of Foreign Affairs with Respect to Haiti (Sept. 20, 1996). 38

Id. at 2 (quoting Senate Select Committee, 498 F.2d at 731). -13-

enforce the subpoena, would need to convince the court to adopt a more thoughtful analysis that considers the unique role and structure of the Commission, and in that light, balances the needs of the Commission against those of the Presidency. a.

Needs of the Commission

The Commission has broad investigative powers, conferred by legislation that Congress passed and the President signed. The statute creating the Commission directs the Commission to investigate the facts relating to, and the causes of, the attacks on September 11,2001. It specifically contemplates that the investigation will encompass the activities of intelligence agencies.39 President Bush endorsed this role in a written statement issued when he signed the legislation.40 The President also emphasized the farreaching scope of the investigation in remarks he made during the signing ceremony: "[The] investigation should carefully examine all the evidence and follow all the fact[s], wherever they lead. We must uncover every detail and learn every lesson from September the llth."41 These statements could assist in showing that the NSC memoranda are "demonstrably critical to the responsible fulfillment" of the Commission's functions. Moreover, those functions are themselves critically important to the Nation.42 hi signing

Pub. L. No. 107-306, §§ 602, 604(a)(l)(B). 40 The White House, Office of the Press Secretary, Statement by the President (Nov. 27, 2002), available at http://usinfo.state.gov/topical/pol/terror/02112702.htm. 41 The White House, Office of the Press Secretary, Remarks by the President at Signing of the Intelligence Authorization Act (Nov. 27, 2002), available at http://usinfo.state.gov/topical/pol/terror/02112702.htm. 42 Pub. L. No. 107-306, §§ 602, 604; S. Rep. 107-150, at 13 (the statute responds to "questions that require further investigation and analysis so that the nation would be better able to defend itself against terrorism in the future"). 39

-14-

the bill into law, the President underscored the importance of the Commission's task.43 In addition, the President stated that the Commission's investigation was necessary to fulfill fact-finding needs not merely of Congress, but also of the Executive Branch.44 Given those pronouncements, whether the Executive Branch has an exclusive role in foreign policy and national security may be partly if not entirely moot, and the interests of the Commission should weigh significantly in the balance. One important element of a showing of need, however, is that the information sought is not available from other sources.45 The White House could well argue that the Commission already has received sufficient information to fulfill its mission, and that it therefore does not have to intrude on Presidential prerogatives. The White House could also contend that the Commission does not need documents, because it can interview NSC staff from the Clinton and Bush Administrations. Moreover, the Administration could argue that the knowledge and actions of the individuals closer to the front lines are more important to the Commission's task than the highly distilled information that ultimately reaches the President. In response, the Commission might stress its statutory

The White House, Office of the Press Secretary, Remarks by the President at Signing of the Intelligence Authorization Act (Nov. 27,2002), available at http://usinfo.state.gov/topical/pol/terror/02112702.htm ("As a nation, we're working every day to build a future that is peaceful and secure. To reach this goal we must learn all about the past that we can. So with this commission we have formed today, America will learn more about the evil that was done to us. And the understanding we will gain will serve us for years to come."). 44 Id. ("The commission will help me and future Presidents to understand the methods of America's enemies and the nature of the threats we face.... This commission is not only important for this administration, this commission will be important for future administrations, until the world is secure from the evildoers that hate what we stand for."). 45 See, e.g., In re Sealed Case, 121 F.3d at 755 ("Efforts should first be made to determine whether sufficient evidence can be obtained elsewhere, and the subpoena's proponent should be prepared to detail these efforts and explain why the evidence covered by the Presidential privilege is still needed."). 43

-15-

obligation to recommend corrective measures, and thus its need to review the information and advice the President received regarding terrorist threats, as well as the policy decisions he made as a result.46 That decision-making process could be the subject of recommendations by the Commission. The Commission might also find it impossible to question witnesses effectively about NSC decisions, and about the subjects covered in the NSC memoranda, without knowing the contents of those documents. Moreover, the witnesses could need to see the memoranda to refresh their recollections. Depending on the approach of the judge who hears the case, the Commission may well have to establish these points with great specificity. b.

The President's Interest in Confidentiality

Even if the President does not have an absolute right to withhold confidential records relating to foreign policy and national security, a court would likely pay substantial deference to his invocation of privilege, and would accord the interests of the Presidency great weight. Moreover, a court might well view the strength of the President's interest as directly related to "proximity." For instance, Clarke's proposed memoranda to President Clinton would likely receive greater protection if sent to the President than if circulated only among aides.47 This would likely be true even if Clarke did not intend that the documents reach the President without revision, because they nonetheless reflect the advice Clarke - as an aide arguably within the inner circle of advisers on this issue - believed the President should receive. Moreover, in forwarding

46

Pub. L. 107-306, §§ 602, 604.

See id., 121 F.3d at 752 ("[T]he presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President's decisionmaking process is adequately protected. 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."). -16-

the documents to President Clinton, Berger was effectively conveying his own advice, at least to the extent that the documents conveyed advice. On the other hand, there are good arguments why the President's interests have less force in this case than in a dispute with a congressional committee. First, as noted, the Commission is gathering facts and reporting not merely to Congress, but also to the Executive Branch. Second, the White House cannot point to instances in which the Commission has disclosed classified information. Indeed, the Commissioners and Commission staff are cleared for access to classified information and are bound under penalty of law not to disclose it. This should weaken any argument against disclosure of the NSC memoranda to the Commission based on a hypothetical risk to national security. Third, the principal argument against production of the NSC memoranda would likely focus on the potential chilling effect on candid advice by the President's advisers. The risk of chill caused by production to the Commission, however, would be less than in a typical congressional investigation. OLC, for instance, has identified the frequency of congressional requests for Executive Branch information as a factor that increases the potential chill.48 OLC also has stated that when Congress is investigating, "it is by is own account often in an adversarial position to the executive branch."49 Finally, OLC has suggested that the "sweeping" nature of congressional investigations also chills candid advice.50 Here, by contrast, the Commission's investigation is unique in terms of scope,

Memorandum from William P. Barr, Assistant Attorney General, Office of Legal Counsel, Re: Congressional Requests for Confidential Executive Branch Information (June 19,1989). 49 50

Id. Id. -17-

duration, Presidential support, and procedural safeguards.51 The hybrid nature of the Commission, with both legislative and executive attributes, as well as its institutional mortality and its enforced bipartisanship - particularly with regard to subpoenas - should ameliorate the concerns OLC has previously expressed. With respect to NSC documents from the Clinton Administration, any risk of chill would be significantly diminished if President Clinton waived the privilege. Presidential advisers know during their tenure that the decision regarding confidentiality is the President's. President Clinton could have waived privilege during his term, just as he can waive it now (subject to the incumbent President's rights). In any event, the issue of chill for the former aides is moot - they are no longer advising a sitting President. As to the impact on advisers to the incumbent President, there is no reason for them to assume that President Bush would make the same decision as to his records. As noted, although the President can assert Executive Privilege for purely factual reports, the expositive nature of the documents could also figure in the balancing process. The rationale for Executive Privilege, to encourage the President's advisers to provide candid advice, does not extend comfortably to purely factual recitations. That said, few documents are "purely factual." The selection and organization of facts in a report can reveal an aide's thought processes, suggest a predisposition, or raise concern about potential accusations regarding "spin" or artifice. Moreover, facts are often embedded in advice, and advice is often embedded in facts. Unraveling the factual and advisory

Cf. United States v. Nixon, 418 U.S. at 710 (possibility that Presidential communication would be disclosed in criminal prosecution would not temper candor of adviser).

-18-

aspects of NSC memoranda thus might be difficult.52 If feasible at all, it would likely require a particularized, document-by-document analysis. At the very least, that would make it hard to offer blanket predictions regarding the outcome of the litigation. 3.

Conclusion

If the Commission can convince a court to balance the Commission's interests against those of the White House, there is a moderate chance of prevailing in an effort to enforce a subpoena. The prospects for success are markedly better regarding the NSC memoranda that went to President Clinton if he supports their production. Depending on the predilections of the court, the results might vary from document to document. II.

Procedural Issues The procedural issues with regard to enforcement of a subpoena for documents

are essentially as set forth in our prior memorandum. It is possible in this litigation that the court would review documents in camera. III.

Political Aspects As noted in our prior memorandum, the decision to assert Executive Privilege has

both legal and political components. The political concerns are similar to those discussed previously, with several possible exceptions.

Cf. In re Sealed Case, 121 F.3d at 737 (the deliberative process privilege does not cover "purely factual [material], unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations"); Ryan v. Department of Justice, 617 F.2d 781, 790 (1980) ("factual segments [of advisory documents] are protected from disclosure [under FOIA] as not being purely factual if the manner of selecting or presenting those facts would reveal the deliberate process, or if the facts are 'inextricably intertwined' with the policymaking process"). 52

-19-

First, the President is likely to pay a lower political price for withholding national security documents than he would pay for refusing to make his aides available to testify. The President would be better able to characterize his position as one focused solely on preserving the prerogatives of the Presidency. Second, the political price for the President would be higher if President Clinton supported enforcement of the subpoena, particularly as to documents from the Clinton Administration. It could appear that the President is impeding the Commission's inquiry as the clock winds down. Moreover, if the President refuses to produce documents from his Administration even though President Clinton waives privilege as to his materials, it could appear that President Bush has something to hide that President Clinton does not. Third, the Administration, in particular OLC, has less cause for concern about a precedent in this case. Breaching the dam on compelled testimony of White House officials would likely have greater long-term impact than production of specific records. As opposed to a ruling up or down on the categorical assertion that White House officials can never be compelled to testify, the decision here would likely be more particularized, focusing on the individual documents and the role of the Commission. The ruling in this case thus might be more easily distinguishable in future cases. Nonetheless, the White House and OLC would still have to consider the risk of a definitive judicial ruling that the President does not have an absolute right to withhold communications directly to him relating to the most confidential and sensitive issues of national security. Depending on how such a ruling were framed, it could open the door to production of- or encourage subpoenas for - records that are less sacrosanct.

-20-

Therefore, the White House may well engage in an accommodation process with regard to these materials, making some or all of them available in some manner. As with potential subpoenas for testimony, the Commission therefore should proceed slowly, step by step, to allow an opportunity for that process to unfold.

-21-

y ARNOLD & PORTER December 7, 2003 TO:

Daniel Marcus

FROM:

Robert N. Weiner

RE:

Potential Subpoenas to White House Officials You have asked whether the National Commission on Terrorist Attacks Upon the

United States can subpoena White House officials to testify before the Commission. You have also asked whether the subpoenas can require testimony under oath, and in a public setting. The Commission has statutory authority to issue and to seek enforcement of such subpoenas. No judicial decision addresses - indeed, no court has considered - whether the Constitution bars enforcement of Congressional subpoenas for the testimony of White House officials. Although current Presidential aides, and even the President himself, have testified before Congress regarding their official duties, so far as we can tell the testimony in their official capacity was not compelled.1 The Department of Justice has repeatedly opined that the separation of powers precludes Congress from compelling the President's closest assistants to testify. That

For example, the White House Counsel, Chuck Ruff, and Assistant Counsels, Lanny Breuer and Cheryl Mills, among others, testified before the House Committee on Government Reform, but they appeared voluntarily. John Poindexter, Robert McFarlane, and Oliver North were compelled to testify before the Senate Committee investigating the Iran-Contra matter. But that testimony occurred when those individuals no longer worked at the National Security Council.

position is debatable, though it is stronger for some officials - particularly advisers on foreign policy and national security - than for others. Ultimately, in our view, a court is more likely to balance the interests of the Commission and the White House than to bar any and all compelled testimony by Presidential aides. The hybrid structure of the Commission would likely weigh in that balance, and may provide a basis to distinguish the Justice Department opinions. But, given that authorizing statute places the Commission in the Legislative Branch, this structure will not obviate any separation of powers inquiry. In practical terms, it would be difficult, though possible, to issue subpoenas for testimony and obtain an order enforcing them before the Commission sunsets. Both the prospects for success and the timeliness of judicial action could vary significantly depending on the judge to whom the case is randomly assigned. Even if the Commission obtained an order requiring testimony, there is a significant risk that the White House could run out the clock through appeals. Issues regarding Presidential privileges and prerogatives have a political as well as a legal component. In assessing potential litigation to enforce or quash subpoenas to Presidential aides, the White House would likely consider both the challenge of justifying its position to the public and Congress, and the possibility of an adverse precedent. The Office of Legal Counsel in the Justice Department ("OLC") would likely recognize that the position the Department has espoused would be at risk in any litigation. OLC thus might well advise the White House to reach some accommodation if possible - perhaps voluntary testimony by the Presidential aides - though the White House may not take that advice. The White House would also likely consider the political ramifications of

running out the clock on the Commission, which might dimmish the likelihood of that scenario. I.

Legal Standards A.

Statutory Authority of the Commission

The statute creating the Commission empowers it to issue subpoenas requiring attendance of witnesses and production of documents.2 The statute imposes safeguards to ensure that subpoenas will issue only with bipartisan support from Commission members - with the concurrence of both the Chair and the Vice-Chair, or by a majority vote of at least six Commissioners.3 The statute further provides that a Federal District Court may enforce subpoenas issued by the Commission, and can coerce compliance through the contempt power.4 The Commission also has authority to make a criminal referral to the U.S. Attorney in the event of a failure to comply with a subpoena.5 These provisions on their face empower the Commission to subpoena White House officials to testify, and to seek enforcement of such subpoenas in U.S. District Court. B.

Constitutional Limits on Commission Subpoenas

In evaluating whether the Commission, as an entity that has both executive and legislative aspects, can subpoena Presidential aides, we first consider the limits on the Intelligence Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306, § 605(a)(l), 116 Stat. 2383 (2002). 3 Id. § 605(a)(2)(A). 4 Id. § 605(a)(2)(B)(i). 5 Id. § 605(a)(2)(B)(ii). Use of this sanction is highly unlikely if the Justice Department has agreed that the refusal is a valid exercise of Presidential authority. See Memorandum from Theodore B. Olson, Assistant Attorney General, Office of Legal Footnote continued on next page 2

subpoena power of Congress, and then analyze whether and how those limits constrain the Commission. 1.

The Position of the Department of Justice Regarding Congressional Subpoenas

In 1999, Attorney General Reno formally advised the President that it "is the longstanding position of the executive branch that 'the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee.'"6 That opinion, which related to a Congressional effort to compel the White House Counsel to testify regarding decisions on clemency, echoed a 1996 OLC opinion concluding that the White House Counsel could not be subpoenaed.7 Given the absence of judicial precedent, OLC's support for this view was selfreferential. The opinion cited a 1971 memorandum by then-Assistant Attorney General William Rehnquist staking out an unqualified position: "The President and his immediate advisers - that is, those who customarily meet with the President on a regular and 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

Footnote continued from previous page Counsel, Re: Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege (May 30,1984). 6 Memorandum from Janet Reno, Attorney General, Re: Assertion of Executive Privilege with Respect to Clemency Decision, at 4 (Sept. 16,1999), quoting Memorandum for all Heads of Offices, Divisions, Bureaus and Boards of the Department of Justice, from John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel, Re: Executive Privilege, at 5 (May 23,1977). 7 Memorandum from Christopher H. Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, Re: Immunity of the Council to the President from Compelled Congressional Testimony, at 1-2 (Sept. 3,1996).

official duties, but they may not even be compelled to appear before a congressional committee."8 Theodore Olson picked up this mantle when he headed the Office of Legal Counsel in 1982. His articulation of the position was, in a word, peremptory. He stated: "The President is a separate branch of government. He may not compel congressmen to appear before him. As a matter of separation of powers, Congress may not compel him to appear before it. The President's close advisors are an extension of the President."9 While following this line of Justice Department precedent, Attorney General Reno provided more explanation in 1999 as to why Presidential immunity from testimony should extend to advisers, but she did not elaborate on the justification for the immunity itself: Given the close working relationship that the President must have with his immediate advisors as he discharges his constitutionally assigned duties, I believe that a court would recognize that the immunity such advisers enjoy from testimonial compulsion by a congressional committee is absolute and may not be overborne by competing congressional interests. For, in many respects, a senior advisor to the President functions as the President's alter ego, assisting him on a daily basis in the formulation of executive policy and resolution of matters affecting the military, foreign affairs, and national security and other aspects of his discharge of his constitutional responsibilities. Subjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his Memorandum for the Honorable John D. Erlichman, Assistant to the President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Power of Congressional Committee to Compel Appearance or Testimony of 'White House Staff,' at 7 (Feb. 5,1971). 9 Memorandum for Edward C. Schmultz, Deputy Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, at 2 (Jul. 29,1982).

constitutionally assigned executive functions. Because such a result would, in my view, violate the constitutionally mandated separation of powers principles, it would seem to follow that compelling one of the President's immediate advisers to testify on a matter of executive decision-making would also raise serious constitutional problems, no matter what the assertion of congressional need.10 2.

Vulnerabilities of the Justice Department Position

Close analysis of these opinions suggests that the absolutist position of the Justice Department may not fully comport with current jurisprudence. First, the Justice Department opinions do not treat the issue of Presidential immunity from Congressional testimony as one involving Executive Privilege. The origins of the asserted immunity are the same as for Executive Privilege - separation of powers - but the Justice Department opinions analyze it as a distinct branch of the same tree. By adopting this approach, OLC avoided the nuanced balancing of interests, the document-by-document analysis, undertaken in cases involving Executive Privilege. Such balancing would not likely have yielded blanket protection against testifying. Indeed, privileges generally protect communications. They do not provide absolution from appearing as a witness.11 Second, the Justice Department opinions appear to rest on the notion that Congress simply lacks power to compel the President to testify. However, nothing in the

10 Memorandum from Janet Reno, Attorney General, Re: Assertion of Executive Privilege with Respect to Clemency Decision, at 7-8 (Sept. 16,1999). 11 See, e.g., United States v. Finley, 434 F.2d 596, 597 (5th Cir. 1970) ("In the instant case, appellant has sought to invoke the attorney-client privilege by means of a blanket refusal to testify. That utilization of such a vehicle for assertion of privileged matter is unacceptable and improper is clear beyond question and a claim to the contrary borders on the cavalier."); 2 J. Strong, McCormick on Evidence § 124 (5th ed. 1999) (the Fifth Amendment privilege protects only against compulsion to engage in testimonial selfincrimination; the "defendant can, of course, be compelled to be in the courtroom").

Constitution expressly confers such immunity on the President. By contrast, Article I includes a provision barring arrest of legislators while Congress is in session,

17

hi

addition, developments subsequent to the 1971 memorandum by Assistant Attorney General Rehnquist cast doubt on the conclusory assertion that the President cannot be compelled to testify. In Clinton v. Jones, the Supreme Court held that the President could be compelled to testify in a civil lawsuit brought by a private citizen.13 There is no convincing reason why Congress would enjoy lesser rights than a civil litigant. To be sure, an important distinction is that the civil suit hi Clinton v. Jones did not pertain to the President's official duties. Indeed, the President is absolutely immune from civil lawsuits predicated on his official acts.14 But to suggest that the power to compel the President to testify ends when the subject approaches his official duties accords the private litigant greater authority than Congress. That is because Congress can most appropriately inquire into those areas where it can legislate, and as regards the President, those will generally pertain to his official duties. The point here is not - and the Commission need not argue - that Congress could subpoena the President to testify. Rather, the point is that the apparent erosion of the protections covering the President himself strengthens the argument that Presidential aides are not immune from subpoena.

10

U.S. Const., Art. I, § 6, cl. 1 ("Senators and Representatives shall... in all cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any place."). That Article I has such a provision while Article II does not arguably undercuts the tit-for-tat reasoning in the Olson opinion. 13 14

520 U.S. 681 (1997). See Nixon v. Fitzgerald, 457 U.S. 731 (1982).

Third, the OLC opinions do not explicitly rest on a concern that allowing Congress to subpoena Presidential aides would impede the Executive Branch in carrying out its responsibilities. Nonetheless, this concern is likely to be the principal basis of the argument the White House would make against any subpoenas. If so, it, too, is weaker now than at the genesis of the OLC precedents. Again, Clinton v. Jones is instructive. The President there argued that requiring him to submit to a deposition would unconstitutionally interfere with his constitutional duties.15 The Court rejected this argument, stating that "interactions between the Judicial Branch and the Executive, even quite burdensome interactions," do not necessarily "rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions."16 The Court further found that "[although scheduling problems may arise, there is no reason to assume that the District Courts will be either unable to accommodate the President's needs or unfaithful to the tradition - especially in matters involving national security - of giving 'the utmost deference to Presidential responsibilities.'"17 That the case involved alleged acts prior to the President's ascendancy to office is irrelevant to the issue whether the suit, including compelled testimony, might interfere with the President's duties. The case supports an a fortiori argument here: if the Republic can survive the President testifying as a deponent in private civil litigation, it should be able to weather his aides' testimony before the Commission on matters important to the public welfare.

15 16 17

520 U.S. at 702. Id. Id. at 709 (quoting United States v. Nixon, 418 U.S. 683, 710-11 (1974)).

Fourth, decisions which post-date the Rehnquist opinion, and which the later Justice Department opinions do not address, undermine the argument that Presidential aides are extensions of the President, alter egos entitled to the full measure of immunity that the President might enjoy. To begin with, although the Supreme Court held in Nixon v. Fitzgerald that the President himself was absolutely immune from civil lawsuits predicated on his official acts,18 the Court in the companion case, Harlow v. Fitzgerald, refused to extend such absolute immunity to Presidential aides.19 The defendant Presidential aides argued in Harlow that, like Congressional aides protected under the Speech and Debate Clause in Gravel v. United States, 408 U.S. 606 (1972), Presidential aides had "derivative immunity" because the President could not perform his job without their assistance.20 The Court rejected this argument. It reasoned that Cabinet officials have only qualified immunity, and that there is no basis to afford White House aides greater protection.21 That said, the Court in Harlow left open the possibility that, "For aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy, absolute immunity might well be justified to protect the unhesitating performance of functions vital to the national interest."22 Still, the Court noted, this rationale did not "warrant blanket recognition of absolute immunity for all Presidential aides in the performance of all their duties."23

18 19 20 21 22 23

457 U.S. at 749. 457 U.S. 800, 808-13 (1982). Id. at 809-10. Id. at 810. Mat 812. Id.

Fifth, OLC opined in October 2000 that a sitting President was immune from indictment because such a prosecution would interfere with the discharge of his constitutional duties.24 One of the issues the opinion dealt with was the position the Solicitor General took regarding the prosecution of Vice President Spiro Agnew in 1973. The Solicitor General stated then that immunity from indictment did not extend to the Vice President because, "Although the office of the Vice Presidency is of course a high one, it is not indispensable to the orderly operation of government."25 Unless the White House can make the case that Presidential aides are more critical to the orderly operation of government than the Vice President, it follows that immunity from indictment likewise does not extend to sitting Presidential aides. And if the President's need for their advice does not insulate these officials from indictment, it likewise should not make them absolutely immune from the far lesser intrusion occasioned by a subpoena. 3.

A Likely Judicial Approach

Ultimately, we believe that a court probably would not adopt an absolute rule banning subpoenas to White House aides, but rather would undertake a balancing test. As suggested earlier, with regard to Executive Privilege, which derives from the separation of powers, the Court in Nixon v. United States employed a balancing test to determine whether Presidential communications were protected from a grand jury subpoena.26 As the Court framed the analysis, "[W]e must weigh the importance of the general privilege of confidentiality of Presidential communications in the performance of Memorandum from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, Re: A Sitting President's Amenability to Indictment and Criminal Prosecution (Oct. 16, 2000). 25 Id. at 12-16.

10

the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice."27 Although case law outside the area of Executive Privilege is not as well developed, it clearly looks in the same direction. The Supreme Court in Nixon v. Fitzgerald, for example, addressing Presidential immunity from civil suits, held that "the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States. But our cases have also established that a Court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of the intrusion on the authority and functions of the Executive Branch."28 Likewise, in Nixon v. Administrator of General Services, in which the Supreme Court considered the Executive Branch's power to control the disposition of Presidential materials, the Court said that "the proper inquiry focuses on the extent to which [a challenged act] prevents the Executive Branch from accomplishing its constitutionally assigned functions."29 There the Court determined that the statute was invalid only if its impact on the President's constitutional functions could not be "justified by an overriding need to promote objectives within the constitutional authority of Congress."30 How a court would strike a balance in this case could depend on a number of factors:

Footnote continued from previous page 26 418 U.S. at 711-12. 27 Id. 28 457 U.S. at 753-54 (citations omitted). 29 433 U.S. 425, 443 (1977). 30 Id.

11

a.

Intrusion on the authority and functions of the Executive Branch.

A court would likely be concerned about setting a precedent that would expose White House officials to Congressional subpoenas designed to interfere with the performance of their official duties. The hybrid nature of the Commission should ameliorate this concern. Although designated in the statute as a legislative entity, the Commission has a Chair appointed by the President. And absent a majority vote of at least six Commissioners - which necessarily imposes a requirement of bipartisanship — the Chair has to agree to any subpoena. The Commission thus could argue to a court that its decision to require testimony sets no precedent with regard to subpoenas by Congressional committees or other entities that lack such institutional safeguards. Beyond this institutional concern, the court will likely consider the nature and demands of the subpoenaed official's job, the timing of the testimony, and the extent to which the exercise will interfere with the ability of the official to assist the President. b.

The interests of the Commission, and the public interest.

The President, in signing the legislation creating the Commission, emphasized the critical importance of the Commission's task. The President said: This commission will help me and future Presidents to understand the methods of America's enemies and the nature of the threats we face.... [The] investigation should carefully examine all the evidence and follow all the fact[s], wherever they lead. We must uncover every detail and learn every lesson of September the 11th. My administration will continue to act on the lessons we've learned so far to better protect the people of this country. It is our most solemn duty. * **

[A]s a people, Americans are always looking forward. As a nation, we're working every day to build a future that is

12

peaceful and secure. To reach this goal we must learn all about the past that we can. So with this commission we have formed today, America will learn more about the evil that was done to us. And the understanding we will gain will serve us for years to come. This commission is not only important for this administration, this commission will be important for future administrations, until the world is secure from the evildoers that hate what we stand for.31 This statement, while useful in establishing the importance of the Commission's interests, does not necessarily end the inquiry. The Commission could well have to show in each case why it needs the witness, and why the information sought is not available by other means.32 c.

The President's role on national security and foreign policy.

Courts pay special deference to the President in the area of foreign policy and national security. Indeed, some cases suggest that Executive Privilege may be nearly absolute on such issues, because of the criticality of the subject, the breadth of Executive Branch prerogatives, and the concomitant limitations on the legislative role.33 OLC has

The White House, Office of the Press Secretary, Remarks by the President at Signing of the Intelligence Authorization Act (Nov. 27,2002), available at http://usinfo.state.gov/topical/pol/terror/02112702.htm. 32 See In re Sealed Case, 121 F.3d 729, 755 (D.C. Cir. 1997) ("Efforts should first be made to determine whether sufficient evidence can be obtained elsewhere, and the subpoena's proponent should be prepared to detail these efforts and explain why the evidence covered by the presidential privilege is still needed"); see also Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en bane) (to justify a demand for information protected by executive privilege, a congressional committee is required to show that the information sought is "demonstrably critical to the responsible fulfillment of the Committee's functions"). 33 See United States v. Nixon, 418 U.S. at 710-11 ("[C]ourts have traditionally shown the utmost deference to Presidential responsibilities" for foreign policy and military affairs, and claims of privilege in this area would receive a higher degree of deference than invocations of "a President's generalized interest in confidentiality"); In re Sealed Case, 121 F.3d at 736 ("Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets"); see also Dep 't of Navy v. Egan, Footnote continued on next page 31

13

opined that the limited ability of Congress to legislate on foreign policy is an important factor justifying the assertion of Executive Privilege regarding such issues.34 In this case, however, the President signed a statute creating the Commission. In so doing, he stated, as the statute provides, that the Commission is engaged in factfinding for both the Legislative and the Executive Branches of government. In other words, even if Congress has a limited role in foreign affairs, the same is not necessarily true of this Commission, which is a hybrid entity with both executive and legislative functions. Nonetheless, given the language in some of the Supreme Court cases like Harlow and United States v. Nixon, it is entirely possible that a District Court would reflexively hold that the Commission cannot compel the testimony of officials engaged in foreign policy and national security. That would be the easiest, most mechanical way to rule against the Commission. The Commission's goal, should it seek to enforce a subpoena, would be to encourage the District Court to undertake a more thoughtful approach. d.

The circumstances surrounding the subpoena.

In analyzing whether Presidential aides can be compelled to testify, OLC has not argued that having to appear before Congress could have a chilling effect on their candid

Footnote continued from previous page 484 U.S. 518, 529-30 (1988) ("unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs"). See, e.g., Memorandum from Janet Reno, Attorney General, Re: Assertion of Executive Privilege for Documents Concerning Conduct of Foreign Affairs with Respect to Haiti (Sept. 20,1996); Memorandum from William P. Barr, Assistant Attorney General, Office of Legal Counsel, Re: Common Legislative Encroachments on Executive Branch Authority (July 27, 1989) ("Since the 1970s, Congress has increasingly attempted to assert itself in the area of foreign affairs at the expense of the authority traditionally exercised by the President."). 34

14

advice to the President. Skirting that argument makes sense given the Department's absolutist approach. An analysis of "chill" would most aptly focus - or at least has focused - on particular communications, on disclosure of the advice rather than on the event of testifying itself, because even if the adviser testifies, he or she could still refuse to disclose what was said to the President. Nonetheless, one could envision situations where the prospect of testimony could possibly deter an adviser from offering the President candid views. For example, if an adviser knew that involvement in a controversial issue could trigger a Congressional subpoena, the aide might avoid the issue, even though the substance of particular conversations with the President was protected. Given this hypothetical chill, and given that the case law on Presidential privileges - even if not directly applicable - focuses on chilling effects, a court might well gravitate to that analysis. The Commission thus might consider, in structuring its subpoenas, how they relate to potential arguments regarding chilling effects: (i)

Testimony under oath.

The Commission's authorizing statute empowers it to swear witnesses.35 There is no obvious reason why Executive Branch officials should not have to swear to tell the truth if other witnesses have to do so. In general, witnesses are obligated to tell the truth to government investigators, whether or not they are placed under oath. See 18 U.S.C. § 1001. Given that obligation, the Commission arguably does not have a strong interest in insisting that testimony proceed under oath.

35

Pub. L. No. 107-306, § 605(a)(l)(A).

15

On the other hand, the White House case against requiring sworn testimony is not compelling. It is not an attractive argument that imposing a legal obligation to tell the truth creates an unwarranted chilling effect. Indeed, the arguments that the Commission cannot require sworn testimony drift largely toward symbolism - that requiring an oath highlights the Commission's coercive power over Executive Branch officials, or increases the intimidating effect of the proceedings, or signifies that particular officials cannot otherwise be trusted to be truthful. A court, where all witnesses - including the President - must testify under oath or affirmation, may find these arguments too ethereal. (ii)

Public Hearings.

Having to testify in public, subject to cross-examination by Commission members, arguably could increase the potential chill for Executive Branch officials. A court could find that the public nature of the testimony is not essential to the Commission's investigatory goals. It may be important for other ends, such as informing and reassuring the citizenry, but those are not explicitly listed among the purposes set forth in the statute. The statute does contemplate that the Commission will "examine and report upon the facts and causes relating to the terrorist attacks of September 11,2001,"36 and "make a full and complete accounting of the circumstances surrounding the attacks" and U.S. preparedness for them.37 But other than a third purpose directing the 352

Commission to report to the President and Congress, the statute does not indicate to whom the reports are to be made. In particular, it never states that the reports are for public consumption. On the other hand, the legislative history arguably suggests an 36 37

Id. § 602(1). Id. § 602(4).

16

intent that the Commission's findings and recommendations be made (at least in part) to the public.39 Indeed, the Senate Committee on Governmental Affairs' Report on an earlier version of the legislation states that the Commission would address "the public's desire for more information" about the attacks.40 To be sure, the Commission has a strong argument that openness and transparency, to the extent feasible, enhance the legitimacy of its investigation and conclusions, and improve the prospects of its recommendations being adopted. But the question then would arise whether those goals have the same weight as the President's interests. Different judges might strike the balance differently, but before some of them, requiring that the testimony be public might adversely affect the Commission's prospects of success. (iii)

Scope of Testimony.

The Commission could decrease any potential chilling effect, and modulate any intrusion on Presidential prerogatives, by imposing ground rules regarding the timing, length, scope, and nature of the testimony sought. This could affect any balance a court might strike. It could also improve the Commission's position on whether it has employed the means least intrusive on Presidential prerogatives in seeking information.

Footnote continued from previous page 38 Id. §§ 602(5); 610. See, e.g. 39 e.g., S. Rep. 107-150, at 4-5,14 (May 14, 2002). 40 M a t 4.

17

3.

Conclusion

The consistent determinations by the Department of Justice, in both Republican and Democratic Administrations, that White House officials cannot be compelled to testify before Congress would be a substantial obstacle in seeking to enforce a subpoena. A court might well accord those views substantial deference. The Commission, however, could marshal a number of good arguments why a court should not follow those opinions. In particular, judicial decisions after the early OLC opinions (but before the later ones) undermine the Department's absolutist approach. Moreover, the Commission, though established in the Legislative Branch, is not a Congressional committee. It is, rather, a hybrid, created by legislation that the President signed, embarked on a mission that the President has embraced as serving the interest of Executive Branch, and charged with the responsibility of reporting to the President, as well as to Congress. There is, therefore, a good prospect that a court would adopt a balancing test to determine whether White House officials must testify. The results of that balancing may vary from witness to witness, and is unlikely to bar the testimony of all Presidential aides. But the White House will be on the strongest ground as to officials with responsibility for foreign policy and national security. Those officials, however, are the ones most likely to have information important to the Commission's inquiry. Ultimately, the result in the District Court may depend on which judge decides the question. That and other procedural issues are discussed below.

18

II.

Procedural Issues. The Commission has authority to issue a subpoena with the concurrence of the

Chair and the Vice-Chair, or by a majority vote of at least six commissioners.41 Any such subpoena must afford a reasonable time for compliance, particularly if it is seeking to compel the presence of current Presidential advisers. We cannot say across the board what would constitute reasonable notice other than to note that the shorter the period, the greater the risk that a court would find the notice unreasonable. Once the Commission has issued a subpoena, the recipient can move to quash or simply refuse to comply. In the latter event, the Commission has statutory authority to move to enforce the subpoena in the District Court where the recipient resides or works.42

Pub. L. No. 107-306, § 605(a)(2)(A). 42 Id. § 605(a)(2)(B)(i). In general, the Attorney General controls the conduct of litigation on behalf of the United States. 28 U.S.C. §§ 516, 519. However, this exclusive authority does not apply where the power to litigate for the United States is "otherwise authorized by law." Id. § 516; see Federal Election Comm 'n v. NRA Political Victory Fund, 513 U.S. 88, 92 n.l (1994) (FEC's statutory authority to litigate falls within the "otherwise authorized by law" exception). The implementing statute here, by providing that the District Court can issue an order requiring a witness to appear, suggests that the Commission may seek such an order. The Senate Report does more than suggest. It states directly that the statute "allows the Commission to bring a civil action applying to a United States district court for an order requiring a person who has refused to obey a duly issued subpoena to appear at any designated place to testify or to produce documentary or other evidence." S. Rep. 107-150, at 20. Moreover, the Commission's broad investigatory mandate shows that Congress did not intend the Commission to "be beholden to the Attorney General for permission to seek the information it needs." In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d 1261, 1266 (11th Cir. 1984) (Judicial investigating committee could independently petition for access to grand jury records where Congress conferred "full subpoena powers" and a mandate to "conduct an investigation as extensive as it considers necessary"). The Commission could also cite Judge Sirica's statement in Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51, 56 (D.D.C. 1973), that § 516 "does not require a congressional litigant to be represented by the Justice Department...." The Court's analysis in that case, however, was somewhat spotty. 41

19

The issue in all likelihood would be litigated in the U.S. District Court for the District of Columbia. Under the D.C. Court's local rules, the motion to quash or to enforce the subpoena would receive a miscellaneous number and would be assigned randomly to a judge. Some judges would more likely be receptive to the Commission's arguments than others would be. At this stage, however, assessments of individual judges would be largely impressionistic. If the recipient moved to quash the subpoena, the Commission would normally have 11 days to respond.43 The Commission could respond more quickly, and might well want to have its brief ready when it issues the subpoena. The recipient would have five days to file a reply brief,44 though the Commission could move to shorten that time. If the Commission moved to enforce the subpoena, it could also seek to expedite the proceedings and shorten the time for the recipient's response. Although the Commission could ask the District Court to decide the issue quickly, the District Court has considerable discretion in determining how long to take. Given the importance of the issues, most judges would not likely decide the issue from the bench. Nor, given the impending sunset of the Commission, would most judges ponder the issue for weeks. But either outcome could occur. Under the circumstances here, the District Court's order would probably be appealable without the need for any official to stand in contempt.45 Normally, the losing

43 44

D.D.C. R. Civ. P. 7.1(b). Id. 7.1(d).

See United States v. Nixon, 418 U.S. at 691-92 (traditional contempt prerequisite to immediate appeal inappropriate in Presidential setting); see also Univ. of Medicine and Footnote continued on next page

45

20

party would have 60 days to file a notice of appeal.46 The Commission could file more quickly if it lost. If it won, it could ask that any stay of the court's order be conditioned upon expediting the appeal. Under Rule 27(f) of the D.C. Circuit local rules, the Commission could move for expedited consideration by the Court of Appeals. Again, whether to grant expedited review, and how long to take, is within the discretion of the court, hi cases involving urgent and important public issues, the D.C. Circuit has granted motions for expedited review in the past, and, in at least one case, it issued a decision in a matter of days. 7 On the other hand, absent an expedited schedule, the average time from filing of a case to disposition in the D.C. Circuit was nearly 300 days in 2001. With regard to the prospect of Supreme Court review, there is a threshold question whether the Commission would have authority to petition for certiorari without the consent of the Solicitor General. Under 28 U.S.C. § 518(a) and its implementing regulation, the Solicitor General must authorize the filing of cases in the Supreme Court "in which the United States is interested."48 The Supreme Court in United States v. Providence Journal Company49 held that this provision deprived a federal special prosecutor of standing to litigate a contempt case without approval by the Solicitor

Footnote continued from previous page Dentistry ofN.J. v. Corrigan, 347 F.3d 57, 63 (3d Cir. 2003) (order denying motion to quash was final where there was no ongoing proceeding that would be delayed by appeal).

Fed. R. App. P. 4(a)(l)(B). 47 See Perot v. Federal Election Comm 'n, 97 F.3d 553 (D.C. Cir. 1996) (in case where Presidential candidates sought to enjoin impending debates, the District Court ruled on October 1,1996, the Court of Appeals heard argument on October 3, and decided the case on October 4). 48 See also 28 C.F.R. § 0.20.

46

21

General. The Court reasoned that the prosecutor was seeking to further the government's interest in vindicating the authority of the Judicial Branch, and therefore the United States was "interested" in the case.50 The Commission could argue that the case is distinguishable because the appeal there was by a special prosecutor, who was an employee, or at least an agent, of the Department of Justice. Here, the Commission, though a hybrid, is lodged in the Legislative Branch. In Providence Journal, however, the Court rejected the prosecutor's argument that § 518(a) refers solely to those cases in which the interests of the Executive Branch are at issue. The Court stated that such an interpretation improperly "presumes that there is more than one 'United States' that may appear before this Court."51 And, the Court said, "Congress is familiar enough with the language of separation of powers that we shall not assume it intended, without saying so, to exclude the Judicial Branch when it referred to the 'interest of the United States.'"52 The Commission could also argue that the statute was not intended to preclude the Legislative Branch from vindicating its rights in a dispute with the Executive Branch, or, to put it another way, that the Solicitor General has a conflict of interest. Nonetheless, it is possible that a court could extend the rationale of Providence Journal to the Legislative Branch, and to the Commission. It is also possible that a court could find § 518(a)

Footnote continued from previous page 485 U.S. 693 (1988). 50 M a t 700-701. 51 M a t 701. 52 Id.

49

22

controlling because the Commission's statute does not explicitly grant the Commission the power to appeal.53 If the Commission has authority to appeal, or obtains the permission of the Solicitor General, it could seek direct Supreme Court review of the District Court's order, bypassing the D.C. Circuit.54 The White House could do the same if it lost in the District Court. Even if the Supreme Court granted review and expedited consideration, that process could be lengthy. Granted, the Supreme Court in Bush v. Gore accepted review, heard argument and decided the case in four days.55 But that case, as the Court emphasized at the time, was unique. In United States v. Nixon, the entire process, though expedited, took three months from issuance of the subpoenas to decision by the Supreme Court. If the Commission sunsets in May, it is thus entirely possible that the White House could run out the clock through the appellate process, or even block the Commission from appealing an adverse ruling by the District Court. III.

The Political Aspects of Separation of Powers Issues The Executive Branch, in considering whether to assert Executive Privilege or to

invoke other immunities purportedly available as a matter of separation of powers, must make both a political and a legal judgment. The White House often considers the impact of the decision on its political standing. It must confront concerns about appearing to Pub. L. No. 107-306, § 605(a)(2)(B); see Providence Journal, 485 U.S. at 705 n.9 (Congress may supersede § 518(a) by statute); see also Federal Election Comm 'n v. NRA Political Victory Fund, 513 U.S. at 96-98 (the Federal Election Commission does not have statutory authority independently to file a petition for certiorari in the Supreme Court). 53

54 55

28 U.S.C. §§ 1254(1), 2101(e). 531 U.S. 98(2000).

23

"stonewall," to obstruct investigators, or to suggest implicitly that the information at issue is adverse. The White House also must consider the dangers of setting a precedent that could undermine the prerogatives of the Presidency. In this case, if the Commission were to issue subpoenas, the White House could pay a significant political price were it to litigate the issue, and an ever greater price if it pursued an appeal and sought to run out the clock. It would also risk setting an adverse legal precedent. OLC can assess as well as anyone the precariousness of its absolutist position on the amenability of Presidential aides to subpoena. If past practice is a guide, OLC may well counsel the White House to avoid litigating the issue if at all possible, and to reach an accommodation that avoids the risk of a broad adverse ruling, the first ever on the subject. Although the White House may not follow any such advice, the most likely accommodation would involve voluntary appearances, with ground rules. The Commission thus may want to play out the issue further, step by step. First, the Commission might suggest to the White House that subpoenas are under consideration. Then, it might give the White House notice of its decision to issue subpoenas. Then, the Commission might issue the subpoenas with sufficient lead time to allow for negotiation. Finally, and only if necessary, would the Commission litigate.

24

12/03/03

18:15 FAX 202 942 5999

A & P FAX CTR DC #9

ARNOLD & POUTER

/-\IX1 NWLL^

OC

1 W1VI L1V

0002

[email protected] 202.942.5855 202.942.5999 Fax 301.318,5622 Cell 555 Twelfth Street, NW Washington, DC 20004-1205

December 3, 2003

Daniel Marcus, Esq. General Counsel National Commission on Terrorist Attacks Upon the United States 301 - 7lh Street, S.W., Room 5125 Washington, DC 20407

Dear Mr. Marcus: At your request, Arnold & Porter will be pleased to provide legal services to the National Commission on Terrorist Attacks Upon the United States (the "Commission") in connection with advice on potential subpoenas the Commission may issue. Our representation of die Commission will be limited to this matter only. While we would be pleased to consider representing the Commission on additional matters as they may arise from time to time, we must consider and approve each such matter separately. Our legal services will be provided on a pro bono basis, and Arnold & Porter will not charge the Commission for attorney time in connection with its representation. However, the Commission agrees to reimburse Arnold &. Porter for the firm's out-ofpocket expenses over $2,500.00, such as duplicating, telephone charges, postage, travel, filing fees, deposition costs, and the like. We will not bill for the cost of computer research. We will, of course, consult the Commission before incurring any extraordinary expenses. In certain instances it may be possible for Arnold &. Porter to obtain payment of attorneys fees and expenses from the adverse party in a pro bono matter. Our agreement to provide legal services to the Commission without charge does not constitute a waiver of any such rights, and we may, if appropriate, seek full payment of all fees and expenses from the opposing party. Of course, if we were successful in such a recovery, we would return to the Commission any recoveries of expenses already reimbursed by you. Arnold & Porter is a large firm, with offices in four United States cities and in foreign countries. Our practice is broadly based and covers many areas of both domestic

Washington, DC

New York

Los Angeles

Century City

Denver

London

Northern Virginia

18:15 FAX 202 942 5999

A & P FAX CTR DC #9

[g]003

ARNOLD &. PORTER Daniel Marcus, Esq. General Counsel National Commission on Terrorist Attacks Upon the United Stales December 3, 2003 Page 2 and international law. The very size of the firm has created situations where work for one client in a narrow aiea has barred other lawyers from pursuing major matters, unrelated to the first matter. In order to avoid the potential for this kind of restriction on our practice, we request an advance agreement that Arnold & Porter will not be disqualified from representing interests adverse to the Commission in matters that are not substantially related to the matters on which Arnold &. Porter has been retained by the Commission. This waiver is not intended to, and would not, permit Arnold 8c Porter to represent interests directly adverse to the Commission in matters that are substantially related to the work done for the Commission. Nor is it intended that there be, and there would not be, any waiver of your right not to have confidences or secrets that you transmit to Arnold & Porter disclosed to any third party or used against you. We would, of course, hold such information that you provide to us in strict confidence. Accordingly, we request the Commission's agreement that it will not raise any objection to Arnold & Porter's representation of other clients on the basis of the Commission's retention of Arnold & Porter with respect to matters on which our advice has been or will be sought, and the Commission consents to and waives any objection to Arnold & Porter's representation of other clients, unless the other representation involved Arnold & Porter in representing an interest directly adverse to that of the Commission on matters that are substantially related to those on which Arnold &. Porter represents the Commission. This will also confirm that we represent the Commission itself, and not the individual members. If you have any questions about the terms of the engagement, as described above, I hope you will feel free to raise them with me. If the terms of the engagement are acceptable to you, I would appreciate it if you would sign and return to me the enclosed copy of this letter, evidencing the Commission's agreement to these terms.

18:15 FAX 202 942 5999

A & P FAX CTR DC #9

ARNOLD & PORTER Daniel Marcus, Esq. General Counsel National Commission on Terrorist Attacks Upon the United States December 3, 2003 Page 3 Once again, let me say how pleased we are that you have engaged Arnold & Porter in this matter. Sincerely yours, IOLD & PORTER

Robert N. Werner

ACCEPTED AND AGREED TO: NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES

Daniel Marcus, General Counsel

i]004