Podcast: The Attorney General, the President, and Congressional Oversight

Jeffrey Rosen: [00:00:05] I'm Jeffrey Rosen president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. After the 2018 midterm elections Democrats took control of the House of Representatives and divided government has reemerged in Washington. That may bring a host of constitutional issues including “is the acting attorney general's appointment consistent with the Constitution with federal statutes?” If Congress thinks it isn't what can I do about it if Congress tries to subpoena the acting attorney general or special counsel and what is the Supreme Court said about Congress's investigatory powers? About Congress's power to oversee the executive branch? Joining us to discuss these pressing constitutional questions are two of America's leading constitutional scholars and historians. Stephen Vladeck is A. Dalton Cross Professor of Law at the University of Texas School of Law. He's co-editor in chief of Just Security, a senior contributor to Lawfare, co-host of The National Security Law podcast and a CNN legal analyst. He co-wrote the Constitution Center's interactive constitution explainers on the Constitution on the Commander-in-Chief clause of Article 2 and the declare war clause of Article 1 with Michael Ramsey and those might be good places to start your homework. Steve thank you so much for joining

Stephen Vladeck: [00:01:33] Thanks Jeff great to be with you.

Rosen: [00:01:35] Gregory Wiener is a political scientist and associate professor of political science at Assumption College. He is author of the spectacular book “Madison's Metronome: the Constitution majority rule and the tempo of American politics.” Dear We the People listeners I want you to read Greg's book because it changed the way I thought and understood Madison's understanding of the need for slow reasoned majority rule over time. And I knew you will learn as much from it as I did. Gregory is going to join us at the Constitution Center soon for our Madisonian Commission's exploration of what Madison would think of American democracy today. Greg I can't wait to meet you in person. And welcome to We The People podcast.

Gregory Wiener: [00:02:15] Thank you so much. I'm looking forward to it as well.

Rosen: [00:02:17] Great. Okay. Let's jump right in with the appointment of the assistant attorney general. Steve you wrote a piece in The New York Times recently. The headline was “Whitacre may be a bad choice but he's a legal one” and you were responding to arguments that the appointment may have violated the Appointments Clause of Article 2. And you noted among other things in 1898 decision United States versus Eden in which the Supreme Court rejected the argument that only a principal officer confirmed by the Senate can temporarily fill the shoes of another principal officer. Walk us back tell us what Article 2 says, why the case said that you don't need Senate confirmation to serve as acting attorney general, and why you believe the constitutional arguments against Whitaker's appointment are not convincing.

Vladeck: [00:03:05] Sure. I mean so Article 2 the Appointments Clause creates a distinction that the Supreme Court has basically relied upon for really the better part of a century now between three categories of people who work in the executive branch. At the bottom you just have ordinary employees and the Constitution has very little to say about how they're chosen and how they're supervised how they're fired. And then the Appointments Clause distinguishes between what we now call principal officers. So think about like the attorney general or other Cabinet heads heads of agencies and inferior officers. The rules are different with regard to how those individuals are both appointed and how they can be supervised and removed ever since Chief Justice Taft's opinion for the Supreme Court in Myers vs. United States, 1926, the Supreme Court has taken the position that if you are a principal officer you can only be chosen by presidential nomination and Senate confirmation and you must serve at the pleasure of the president. So the argument is that because the attorney general is a principal officer someone who temporarily exercises the functions of the attorney general must also be a principal officer, must also therefore have been Senate confirmed. As you mentioned Jeff the Supreme Court in the one case where it really even considered a similar question, the Eden case from the 1890s, reached a different conclusion. Now that was a very factually distinct case that was about a vacancy or temporary disability on the part of our counsel to Siam, modern day Thailand. But the court basically said there that someone who is an inferior officer to begin with and who is only temporarily exercising the duties of a principal officer while the principal office is vacant or the principal officer is disabled, is still an inferior officer and therefore doesn't have to be confirmed by the Senate. The Justice Department's Office of Legal Counsel reaffirmed this conclusion in a 2003 opinion. So my basic sort of reaction to all of this is not only that it's there but that it's right. That the alternative rule, where even a temporary holder of a principal office had to be Senate confirmed. Jeff it would give the Senate the power to strangle the executive branch because the Senate could simply refuse to confirm anyone to a Senate confirmed position in a relevant agency. And the president would be powerless to name anybody even on an acting basis to direct that agency. Of course that's not the situation we have here. There are other Justice Department officials who have been confirmed by the Senate starting with Deputy Attorney General Rosenstein, Solicitor General Francisco, but at least as a matter of constitutional law I don't think the appointments clause requires those people to go first. So the basic gist of my view is that as long as it's temporary, and I think there's a separate fight about what that means, the president has the power as long as Congress has authorized it to temporarily name someone who has not been confirmed by the Senate to nevertheless exercise the functions of a principal office on a temporary basis.

Rosen: [00:06:12] The leading argument on the other side was made by my brother-in-law Neal Katyal and George Conway in the New York Times, the headline of that piece was “Trump's appointment of the acting attorney general is unconstitutiona"l and Neil and George Conway relied in particular on a concurring opinion by Justice Clarence Thomas in a recent case where the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board was lawfully appointed to his job without Senate confirmation. And Justice Thomas said that the appointments clause would not have allowed the appointment because the officer was a principal officer and the Constitution's drafters recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in government. Are you persuaded by the argument of Neal and George Conway. Or do you agree with Steve?

Wiener: [00:07:02] Well I'm mostly persuaded by the argument that it is unconstitutional. And the reason for that is several fold. One is that we're talking about a much higher ranking officer than it's been tested before the courts and certainly than Steve mentioned it was was at stake in the Eden case. I certainly agree that that requiring a someone in this situation is serving temporarily to be Senate confirmed would give the Senate a great deal of power over the executive. But I think that was intended. So I think for example had Democrats taken over the Senate one of the great controls on President Trump firing the Attorney General Sessions or requesting his resignation would've been the difficulty of confirming a replacement. So I'm not terribly comfortable with taking that power taking that source of influence away. I think the Senate was intended at that that degree of influence over executive appointments. Remember that this is a joint power between the executive and the Senate. And there's there's no question in my mind that what we're talking about is a principal officer. Where I think Steve is certainly correct on his op ed is that Congress has delegated this this authority to the executive branch and designated certain officers as is inferior and in principle particularly in the law that was passed in if memory serves in 1998. I'm less sanguine about whether Congress was entitled to make that distinction to go into that degree of authority.

Rosen: [00:08:30] Many thanks for that. That raises the statutory question and Neal, who's been busy with his op eds, has another piece recently in the Washington Post saying the rules are clear Whittaker can't supervise Mueller's investigation and he argues that even if you think the Whitaker's appointment is not unconstitutional, although he believes it is, then it violates the special counsel rules which Neal says that he helped to draft because those rules presume that the special counsel will be supervised by a principal officer. So even if Whitaker is an inferior officer who doesn't need Senate confirmation to serve as acting A.G., Katyal argues the special counsel rules require that Mueller be supervised by a principal officer. Steve what you think of that argument.

Vladeck: [00:09:17] I mean I think I think with with all respect to my friend Neal I think it proves too much. I mean by that logic you could never have someone like the special counsel be supervised during any vacancy, no matter how justifiable, in a principal office because there'd be at least some moment where the principal office was vacant and where the acting office holder hadn't been confirmed by the Senate. I guess you know my reaction is to all of this is that I think it's a lot of legal maneuvering because there is widespread agreement, even among those who disagree on the constitutional analysis, that this is a very troubling appointment, that it's a dangerous appointment, that it shows a lot of disrespect for the rule of law. I guess the my problem with sort of the notion that even if his appointment is valid the attorney general can't supervise the council is you know that's a Justice Department regulation that doesn't anywhere distinguish between the attorney general and the acting attorney general. And Jeff as you know, special counsel Muller up until last week had been supervised by Deputy Attorney General Rosenstein in his capacity as acting attorney general. I don't see anything in the text of the regulation that suggests that one acting attorney general would be OK but a different acting attorney general not be. It seems to me the acting attorney general is either the acting attorney general or he isn't. You know you've already heard the constitutional arguments for and against that conclusion. I think there's also the statutory question that Neal and others have raised about whether the Vacancies Reform Act, the 1998 statute that authorized the president, at least purportedly, to choose Mr. Whitaker overrides the DOJ succession statute. Jeff it's possible that the courts you know which may get this question sooner rather than later are going to just engage in constitutional avoidance and read the relevant statutes to not even have to reach this, by all accounts messy, appointments clause question by holding that the relevant statutes didn't authorize President Trump to name Mr. Whitaker In the first place. I think that would make a lot of these messier arguments go away and I would kick the can really back to Congress and at least for the moment that the deputy attorney general Rosenstein.

Rosen: [00:11:22] Gregory your thoughts on the statutory question of whether Mueller has to be supervised by a principal officer as well as whether the Vacancy Reform Act itself might raise constitutional difficulties.

Wiener: [00:11:33] I tend to agree with Steve on this. I think if he's there he's there. I think there are reasonable questions. We've already heard as to whether he's whether he needed to be confirmed. But keep in mind that those are DOJ regulations and they can be changed by the administration. We don't have any statutory authority. It seems to me that what we need to avoid is a flight from constitutional politics to constitutional law. If Congress wants to assert itself institutionally here there's plenty of room for it to do so. But I don't think the way to do that is is to try to force things into the realm of law that are really questions of politics. The other thing that I would add there is that we don't want a situation where a prosecutor of any stripe, whether they're prosecuting someone who's powerful or powerless, is exempt functionally from supervision. There's a reason for political supervision of those people that ultimately redounds to the benefit of individual liberty.

Rosen: [00:12:34] Thank you so much for that. All right well let us now turn to the question of Congress's power to subpoena executive branch officials including possibly former Attorney General Sessions, acting attorney general Whitacre, or even the special counsel himself. Steve give us a sense of what the Supreme Court has said about limits on the congressional legislative power and if you could maybe I'll just throw out a case that our great constitutional prep team found called McGrane v. Doughtery from 1927. It was the Teapot Dome scandal Dougherty was the brother of the former attorney general who refused to prosecute wrongdoing during the Teapot Dome scandal. Congress subpoenaed the brother. And the question was whether Congress had the power to do it since the investigation had nothing to do with the committee's legislative purpose. And the court upheld the contempt conviction in establishing a presumption that congressional subpoenas are okay as long as they do have a legislative purpose. Maybe we could start there and then take us off and running.

Vladeck: [00:13:34] Yeah I would. Jeff if you don't mind I would actually frame the question in the other direction. You asked what are the limits, I would start with where are the sources of Congress's power and I think McGrane versus Dougherty is an increasingly important case in our con-law cannon and I've been teaching it for the last three or four years and I think you know that more and more people will be rediscovering it in the coming weeks and months because it's the closest the Supreme Court has come to saying expressly what it's practice throughout its history has been which is to recognize that Congress doesn't just have legislative power under the Constitution, but that Congress also has oversight power under the Constitution and that the so-called power of inquiry that the Supreme Court discussed at some length in McGrane vs. Dougherty is not limited to those matters on which Congress is either actively considering legislation or even Jeff, could constitutionally consider legislation, that really the power of inquiry extends to the full sort of sweep of Congress's permissible constitutional function. A function that for our purposes includes oversight of the executive branch, a nd you know although we're a long way away from it, includes the potential impeachment, not just of the president but of other executive branch officials. And so McGrane stands for the proposition that as a threshold matter as long as Congress can show some relevance to its oversight authority or its regulatory authority, Congress is allowed through appropriate process within each House and as the houses choose within each committee of each House to engage in that kind of coercive process even toward executive branch officials. Now Jeff the harder question I'm sure to get into it is what kinds of defenses or immunities, what kinds of privileges or immunities executive branch officials and other recipients of this kind of process, whether it's a subpoena for papers or a request to testify, that those folks might be entitled to. I think the key point for now is that's really where most of the focus is in this case is not whether Congress has the authority ab initio to engage in these kinds of investigations and to demand testimony and relevant documents.

Rosen: [00:15:51] Thank you so much for that. Yes we will turn to the limits in a moment but framing the question in terms of the powers. Greg you wrote a superb op ed in The New York Times called “Nancy Pelosi's first order of business should be to reclaim the power of the house.” This is about much more than Trump and you note quoting Federalist 55 that the Constitution made Congress the subject of Article 1 for a reason that the most substantial powers of national government delineated there, restoring congressional power ultimately through legislation which would both transcend and serve Democrats partisan interests. Tell us about that argument. You know what you think of the Dougherty case and broadly how Congress can reclaim the powers of the Constitution?

Wiener: [00:16:32] Well the the argument in the op ed was really a prudential argument that the House needs to behave institutionally rather than in a partisan way. So that in addition to behaving, I should say part of behaving institutionally is not seeing itself as it is operating in orbit around the presidency. So not not trying to fix every issue in relation to what does it mean for this president or the next presidential election. So it certainly has the authority, and one can argue the responsibility to investigate the administration, but if that's all it does it's not going to do much to restore Congress to what it was intended to be which is the center of the constitutional regime. So that is a a prudential argument, although I tell you it's also a constitutional one, that the Congress's foremost job is to legislate the origins of the oversight power are I suppose somewhat constitutionally murky and so far is not delineated specifically anywhere in the Constitution. But but again the Dougherty cases you mention it does interpret it quite broadly. I do think it is significant that that case does say it has to have some relation to Congress's constitutional function so that it can't just be a free wheeling power of investigation. One can argue that it interpreted the case interprets the oversight power broadly enough that those are functionally equivalent but I think the idea that it's got to be tied to some other constitutional function of Congress is quite important.

Rosen: [00:18:13] Steve you wrote a piece in The Washington Post on November 7th called “What would happen if Trump resists an investigation by the Democratic House.” There could be a major conflict and even a slow motion constitutional crisis recognizing that we writers don't always write our headlines why don't you walk us through the arguments of that piece which begin with the fact that the court in 1927 gave the House a power of inquiry over the executive branch, including the power to compel evidence, that's the Dougherty report. And then you run through a bunch of subpoenas that the House might argue and a bunch of responses that the president might make including claims of executive privilege. Why don't you walk us through that piece and begin with the possibility that the Trump administration could defy a subpoena from Congress at some point if it did. So what do you think that's subpoena would be and what would the administration's response be and how would the courts resolve it.

Vladeck: [00:19:06] Sure, I mean so let's start the beginning. I mean so right the subpoena would be necessary presumably once the executive branch refused a voluntary request that someone testify or that particular documents be turned over or if at the particular hearing a witness that potentially refused to answer questions. Jeff it's not hard to imagine a whole range of topics that we might see subpoenas on Everything from the sort of background to some of the president's more controversial policies, the family separation policy at the border, the move to add a question about the census about citizenship to the census, even the appointment of Mr. Whitaker as the acting attorney general, and perhaps even matters more personal to President Trump. Maybe a subpoena seeking disclosure of his tax returns and then of course I think the fight would be whether the recipient of the subpoena had a valid basis for refusing to comply with it. That could of course be litigated. The House unlike the Senate does not have expressed authority to litigate in this context but federal courts during both the Bush and Obama administrations recognized that it was appropriate for House committees that had issued duly issued subpoenas to litigate whether the whether a defensive response the subpoenas was valid. So Jeff let's assume that a subpoena is issued that it's valid on its face and that the question is then whether the requested material is protected by executive privilege. Presumably that could then be litigated and a federal court could decide whether the privilege claim was valid or invalid. And in a world in which the federal court says the privilege claim is invalid the question would that be would the president authorize the individual to comply or would he order them to defy the subpoena. If he orders them to defy the subpoena Congress's remedy at that point is to hold the individual, the recipient of the subpoena, in contempt for refusing to comply with the subpoena. That's where things get tricky because Congress has mechanisms for enforcing a contempt citation. One of them is the sort of old school lock lock the recipient up in their old capital jail, doesn't exist anymore, until they comply or until the end of that session of Congress whichever comes first. Jeff the other more modern version, the statute has been on the books since 1857, to refer the contempnor, the individual who's been held in contempt to the Justice Department for criminal prosecution. And that's what we can see a real problem because it's not hard to imagine that the Justice Department would be in no hurry to prosecute a member of the executive branch for contempt for refusing to comply with a subpoena from Congress if the president himself was the reason why the individual in question didn't comply. So that's that's to me where we could reach this kind of messy slow motion constitutional crisis where Congress' only mechanisms to refer the contempt citation to the executive branch or to try to find some way to resuscitate the long dormant practice of what's called inherent contempt where the Capitol Police would literally arrest the contemptnor I'm not sure that's healthy even if it's been there for good editorial copy.

Rosen: [00:22:22] Wow thanks for those great thoughts. Greg, maybe you know some history of Congress trying to enforce its contempt powers. I'd love to hear more about capital jail as well as the inherent contempt power over that wonderful word, the contemptnor, and in the course of that maybe some more words about executive privilege in the U.S. v. Nixon case where the court rejected an executive privilege claim when the president was trying to resist a subpoena issued by a court rather than Congress.

Wiener: [00:22:51] Sure. Executive privilege goes back to the the is again one of those constitutional constructions that's not written into the Constitution but it goes all the way back to the beginning. That's understood to be sort of part of the nature of the office that the president has some need for, we'll get to this in a minute in the U.S. v Nixon case, for confidential advice from his or her staff. The classical case is in 1796 the House demanded documents from the Washington administration on the treaty that John Jay and just concluded with Great Britain. President Washington concluded that the House had no authority over the treaty.He provided the documents to the Senate but not to the, but not to the House. The Supreme Court the closest the Supreme Court has has gotten to this issue again as you indicated is the I think is the US v. Nixon case in which it read explicitly recognized that executive privilege existed but said that a general claim of executive privilege, and I'm paraphrasing here, couldn't overcome a specific need for evidence in a criminal case. I think we're on, I think assertions of executive privilege in my view and I'm speaking to my view as a political theorist or scholar of the founding not as a constitutional not in terms of what the constitutional law says, I think we're on very dicey ground here. I tend much more toward the view of the great constitutional scholar Raul Burger who said that executive privilege was was a myth. And that it just has to be read into the nature of the of the office in much much the same way we would read in attorney client privilege or a, or some other sort of privilege. And I think again it's very hard to get out of there in any in any meaningful originalist way to me. Let me make one other point with respect to this which is that I think Steve is right that this would get over to the to the courts and in a sense that's appropriate. It might in fact lead to a crisis of the Justice Department declining to to prosecute a case that's been referred to it. But we ought not forget the political weapons particularly the House has. So let me just quote you Federalist 58. Madison says there in Federalist 58 that the power over the purse is the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people for obtaining a redress of every grievance, he says, for carrying into effect every just and salutary measure. So what he means there is that the power of the purse which is the which is derived from the fact that the power of taxation originates in the house. Is that the control of the unique control the House has over the finances of the national government, great leverage over every other facet of policy.If the House is willing to behave institutionally rather than in a partisan way to use it. So I think the House has ample weapons with which to make its will felt short of a prosecution for contempt and that that's what the New York Times op ed that you referenced before, that that's what I was hoping the House would be willing to use.

Rosen: [00:26:25] Steve, Greg's mention of the power of the purse of course comes to mind acting attorney general Whitaker's suggestion that the Justice Department could starve the Mueller investigation by defunding it. Could Congress respond by restoring funding to the investigation. Talk more about the power of the purse and then take us into more recent contempt battles between the executive branch and Congress in particular the conflict in the summer of 2012 when Attorney General Holder refused to testify in conjunction with the so-called Fast and Furious operation and the DOJ refused to pursue a contempt prosecution against an executive branch official when the president invoked executive privilege.

Vladeck: [00:27:07] Sure. I mean so. So it started with, I mean I think it's exactly right that the House will have political weapons available to it to try to make it painful for the president or those who are supporting him and the executive branch, to resist a duly issued subpoena, on the far side of the judicial rule in that there was no valid privilege or immunity to assert from compliance. Jeff I think where things get tricky is where you run into the separation of parties instead of the separation of powers where the house is limited in what it can do by itself as opposed to what it would need the Senate's help for. And it's not hard to imagine, whatever happens in Florida, that the Republican controlled Senate is going to be nowhere near in as much of a hurry as the House is going to be, to take the kind of you know bicammeral actions, of whether it comes to stripping funding, whether it comes to other kinds of legislation. I think the better question is whether there are must-pass bills where the House, as opposed to needing the Senate's consent, could effectively use its veto power as a political lever against the president for example spending bills. I think there's a bill coming up that with regard to raising the debt ceiling that's where I think you could see those political pressures being brought to bear. So with regard to Holder I think we've had two major examples of subpoena fights really in the last decade. The first one actually involved former White House counsel Josh Bolten and Harriet Miers, Deputy White House counsel during the Bush administration over the allegedly politically motivated firing of U.S. attorneys where both Mr. Bolton and Ms Miers were held in contempt by the House Judiciary Committee. There was litigation over whether they had about executive privilege claim, the court said no. That case actually sort of fell apart on appeal because it was right at the end of the Bush administration and basically a deal was made during the transition to the Obama administration that effectively booted the dispute. The D.C. Circuit ultimately dismissed the appeal. The Holder example is the more recent one after after basically a widespread view that that Attorney General Holder had been insufficiently forthcoming in turning over documents to the House of Representative. He was held in contempt by the House of Representatives, both civil and criminal contempt, there was a referral to the Justice Department, there was a civil contempt vote that basically allowed the House Committee on Oversight and Government Reform to go to court. And that litigation believe it or not, is also still pending. So I guess you know one reaction to all of this is that the litigation in these cases tends to go pretty slowly and that you know even though I have faith that the courts would eventually sort out the privilege claims, all the while you would have noncompliance as the status quo and you'd have really you know it be a much more a debate over the political levers that the House or its committees could use to compel some degree of cooperation from the executive branch far more than the legal levers because as both the 2008 case and the Holder case suggest the legal levers can really be slow and that may be the biggest obstacle to those being effective. We may have an intervening presidential and congressional election, right, before those are ever ultimately decided by the Supreme Court.

Rosen: [00:30:42] Thanks for that. Greg, your response to those interesting points: first that the legal levers are slow as both the 2008 Goldman Myers, and the 2012 Holder cases show, and then more broadly; do you have faith that there is a bipartisan ability for both parties to exercise the congressional oversight powers that both you and some scholars on the other side think are necessary or in a partisan and polarized age, is the House simply unable to exercise its constitutional oversight functions?

Wiener: [00:31:18] I think it's exactly right that the legal levers are slow and I think it's meant to be that way and it's also meant to be the case that the political levers are more available and perhaps more potent. So I think we have a tendency as I indicated before to flee from politics to law because law seems to provide more emphasis, it seems, to provide more precise definitive answers whereas politics requires more judgment which we tend to, I think to needlessly to fear. The point about the intervening election that Steve made is particularly important because ultimately the political levers are superintended by public opinion which in a republic of course is the final final authority over these thing. In terms of whether I have faith in the; I take your question to mean is there a bipartisan capacity to act institutionally rather than in a partisan way. The answer is I do not have that faith now but I do have; Let me say as as Lincoln said the ultimate confidence or patient confidence in the ultimate justice for the people. I mean I do have confidence in the in the basic workings of the regime and you know, one of the, I mentioned in the op ed that one of the great ironies of American political development is that Madison was both the great theorist of the separation of powers and of the American party system. So in a sense we've never had pure institutional loyalty. Pure institutional as opposed to partisan loyalty. On the other hand as late as 1887 you have Woodrow Wilson complaining of what he in the title of his famous book “Congressional Government in the United States”. So we do have examples of this and all that is required for Congress to behave institutionally is for its members to care about their own power, as they're first and foremost interest. And that to me is the interesting question—is at what point did members of Congress start seeking office for other reasons whatever one may believe they are. I tend personally not to believe the crush motive as much as it is as if it's popularly believed. But clearly members of Congress if in fact it's the case that they're unwilling to defend their own power seeking office for motives other than power which is in Madisonian terms is unthinkable.

Rosen: [00:33:47] Steve what might an example of institutional action look like. There are proposals by Senators Chris Coons and others to pass legislation protecting the special counsel from being fired but members on the other side argued that that would be unconstitutional because Morrison versus Olson a Supreme Court case upholding the independent counsel was wrongly decided and the president's power to fire shouldn't be constrained. Might Congress assert itself, if Mueller wanted to issue a report, the acting attorney general tried to suppress it, and Congress tried to subpoena the report? Or what do you think is the most likely example of institutional action and how would it be resolved?

Vladeck: [00:34:31] Well I mean I think Jeff you know we can hope for legislation and the bills to protect special counsel Mueller are a good example. You know back in April the Senate Judiciary Committee actually passed that bill out of committee on a bipartisan 14 to 7 vote. So there are some Republicans who objected to legislation on constitutional grounds but I think there are actually enough in both chambers to pass it. I think the problem is that Senator Senate Majority Leader McConnell has said he won't bring it to the floor because he thinks it's unnecessary. And so we're back to the point where you know the real leverage with regard to legislation is only with respect to those bills that are so-called must pass bills where presumably you could try to tack on things like the Mueller protection legislation as an amendment. I think the bigger point, and I think this is why the midterms are potentially so important, is that you know even if the president even if Congress, here I think more specifically the House, is hamstrung by you know yearlong debates over executive privilege, Congress is free of course to subpoena people who wouldn't invoke privilege who want to testify. So imagine a scenario where the special counsel is fired with or without this legislation in place to protect him. I think the very first subpoena we would see from the 116th House would be subpoenaed the special counsel Muller to testify. I think he would happily accept and respond. So I think what what we're looking for is exactly as as we've been discussing, it's really about how the political pieces are going to fit together with the legal pieces. It's going to be about sort of the order in which things happen and Congress I think is going to have, you know not just the subpoena power, but Congress is going to have the ability to sort of not pass you know must pass legislation not fund the federal government if it really gets that extreme to compel some modicum of compliance with the Trump administration. Jeff I think where the rubber will hit the road is you know to what extent the new Democratic majority in the House is unified on these issues and whether there are going to be some substantive topics where the Republicans are able to peel away enough votes from the House Democrats to get legislation through even without perhaps some of these amendments or to resist some of these leveraging mechanisms.

Rosen: [00:36:49] Greg, if you were designing bipartisan institutionalist legislation that would allow Congress to assert its constitutional prerogatives and you can imagine being co-sponsored by Ben Sasse and Chris Coons in the Senate and Justin Amash, and Lofgren in the house. What would the legislation look like.

Wiener: [00:37:08] Sure do you mean with respect to oversight.

Rosen: [00:37:10] Yes with respect to oversight yes.

Wiener: [00:37:14] Well I think, I'm not sure we would take necessarily legislative form but it but it's certainly might in contempt referral or an authorization for a contempt referral or something like that. I'm actually not terribly comfortable with the idea of protecting Mueller legislatively. And the reason for that is that as I indicated before there there's a reason we have political sort of civilian supervision of prosecutors which I think ultimately benefits the powerless along with the powerful. So I think it might be taking less a legislative form than committees, majorities minorities on committees, working together to, in reaction to claims of executive privilege and so forth which by the way there's some record of doing. Senator Grassley is is is certainly, on the Senate side, has been known for working in a bipartisan fashion on oversight. And there are other examples on the Democratic side as well. So there there are any number of other issues where where you would expect Congress's first instinct to be, not president of my party did or didn't say this. but rather this was my authority not yours.

Rosen: [00:38:29] Steve your thoughts about what institutionalist action might look like and then let's get into the drama of kind of constitutional crises land that might materialize as you suggested in your Washington Post piece. What action or what subpoena or what firing do you think could precipitate a really serious conflict and lead us through how it might be resolved.

Vladeck: [00:38:55] Well I think Greg laid it out nicely. I mean I I'm I'm a little surprised Jeff that we're not already there with regard to sort of crossing the Rubicon. I mean I have thought all along that removing Attorney General Sessions would be understood as, as I think I understood it, as a direct move against the special counsel investigation. I would've thought that would be the point, even if you hadn't thought until then, that passed on the special counsel legislation was necessary became so. Clearly we're not there yet. Jeff in addition to subpoenas in addition to oversight of funding, I mean the other potential possibility here is that we see some of the moderate Republicans in the Senate start using their ability to block, for example nominations, as a way to try to exact yet further leverage over the president if we get to a point where they think he's crossed various lines. So you know right now we're looking at maybe a 52 48 Senate depending upon how the Florida recount turns out. You know in that scenario take three Republican senators to hold up judicial nominations, to hold up executive branch nominations, really to bring the president's entire agenda to a halt. And so I think you know if we're really heading for, as I wrote in The Washington Post, the slow motion constitutional crisis I think the folks who are going to be the most important to try to assert the institutional role of Congress in such a case aren't going to be the Democrats in the House. It's going to be you know what's left of moderate Republicans in the Senate who, whether on a case by case basis or perhaps even by declaring their independence and potentially caucusing with the Democrats, could radically shift the balance of power in a means that would give Congress much more leverage over the president. It hasn't happened yet. Jeff I don't think it's going to happen tomorrow but I think that to me would be the last you know sort of safety valve before I'd really start to be worried about the power the president would be able to exercise.

Rosen: [00:40:59] Greg, what kind of action of the president do you think it would take to impel moderate Republicans to caucus with Democrats over nominations to check him on the firing of the special counsel, the refusal to issue a report? You know what would it take and then take us back to history and give us examples of congressional executive clashes in the past of similar magnitude and tell us how they've been resolved.

Wiener: [00:41:23] I do think firing the special counsel. . . I'm reluctant to say would do it. I'm willing to say that if that wouldn't do it I don't know what it would. I mean that is, as Steve said, would be the Rubicon. I think that might trigger—the only thing I would add there is that to the extent there is a role for the House to play here, it won't simply be Republicans peeling off. The question will be whether the whether House Democrats have been sufficiently co-operative on legislative matters that they get some cooperation and turn on on oversight so there's some some complicated incentives there. I suppose the greatest example here would be the would be Nixon; U.S. v. Nixon, although that's a that's a prosecutor requesting information rather than rather than Congress. The Supreme Court has not really tested the extent of congressional oversight powers, its mostly been in the lower courts. But I think there is an instructive lesson there which is that the system worked, so we tend to think I think Steve is exactly right that we could be headed for a slow motion constitutional crisis, but it's only a crisis if the levers that we have available to us don't work. And the reason they wouldn't work is if, again, there's there's the partisan instinct is so strong that people are unwilling to behave institutionally and constitutionally. And that again would be ultimately a question of public opinion. I think if they if the country is so, I don't think it is, I think the election showed that, but if the country is so bitterly divided it can't sort of can't compute these sorts of these sorts of conflicts, then I think we've got bigger constitutional bigger constitutional problems.

Rosen: [00:43:16] Steve what would be an example of the scenario Greg describes where there's a breaking of norms or laws and yet Congress refuses to react institutionally because of partisan divisions.

Vladeck: [00:43:29] Well imagine a scenario where for example the special counsel were to indict, let's just go all the way there and say Donald Trump Junior, and the president were to turn around the next day and pardon his son. That to me I think would be a pretty dramatic moment. And whatever folks might think about the pardon, I mean I think another, Jeff, old Supreme Court case that doesn't get read enough these days is 1926 decision called, 1925 I'm sorry, called Ex Parte Grossman, where Chief Justice and former President William Howard Taft wrote about concerns with regard to potential presidential abuse of the pardon power. And Taft was quite explicit that the pardon power could surely be abused but that it's not the court, it won't be the court's job in that circumstance to supervise the abuses by reviewing the validity of the pardons, it would be that Congress's job at that point to constrain abusive pardons through impeachment. You know it's just it's very hard for me to imagine in our current political environment even if a lot more comes out about the president than is currently known or even if he engages in far more I think rule of law threatening actions than he has to date, I don't see a scenario where there are going to be two thirds of the Senate, even if the House is going to impeach, that would remove the president. And I think that's you know that that's the crisis that we are potentially heading for if things really do get out of hand. Now I don't want to be a sort of a Cassandra here. I think it's possible that you know this is all just people fearing for the worst and that we're not going to get there. But that's you know that's where I think you could see the political division of the country getting in the way of the structural mechanisms that the founders intended to operate and protect us in such a case.

Rosen: [00:45:21] Thanks so much for that. And thank you Steve for saying the magic word which is William Howard Taft. It's so much fun on these podcasts to find out that there are hidden Taft opinions waiting to inform us on a recent podcast with Richard Epstein Adam Liptak, we learn that Taft wrote a crucial case about libel law and now we are going to read the Grossman case, dear We the People listeners about the pardon power. Greg what is your scenario of the sort of constitutional crisis scenarios Steve just gave u—the president pardoning his son. Do you have another one which might trigger a crisis?

Wiener: [00:45:53] I was actually going to go to the same place which was an abuse of the pardon power but I think the key here is the the the political supervision. I mean I suppose if we're going to go sort of if we're going to go the other way scenario we could we could imagine the power of the pardoning himself, which is, sort of raises separate constitutional legal questions. But again I think we just can't avoid the political, the fundamental political issue, which is the public opinion is incapable of superintending doing that kind of abuse, the president pardoning his son the day after indictment, then we simply have much bigger constitutional problems than the pardoning himself.

Rosen: [00:46:44] One more round of these hypotheticals which may soon not be hypotheticals take us to another possible trigger for a constitutional crisis.

Vladeck: [00:46:53] Well I mean you know separate from I mean I think the pardon power is one possibility. I think a scenario where you know the president orders the acting attorney general to fire the special counsel like a repeat of the Saturday Night Massacre where various DOJ officials resigned before firing him and then he's fired. You know we've seen, Jeff, obviously some troubling moves I think against the press from this White House. You know in the last couple weeks I think CNN filed a lawsuit today about the revocation of Jim Acosta's hard pass. I guess you know the, it's hard to imagine, but like if the president were to deploy the military domestically in response to political protest. If the president were to you know try to stir up doubt about you know what, otherwise him to be clearly legitimate election results. I mean I think it's unfortunately increasingly easy to dream up what really should have been fantastical hypotheticals about threats to the rule of law. I think Greg is right. I think the key point has always been that the way the Constitution is designed, the principal mechanism for constraining a president who is jeopardizing the rule of law is not the public and it's not the courts, it's the Congress of the United States. And you know I just I, as Greg said, I don't know what is going to be the moment at which the Republican senators who have to date largely enabled the president to do whatever he wants, by not using their leverage with regard to nominations and other legislation, I don't know what the trigger for them would be where they would you know say enough is enough, you know this far but no further. And I think it's you know I hope we never find out because it's scary to think about what would what it would mean when we got to that point.

Rosen: [00:48:42] Greg do you agree with the kind of examples Steve has just given such as firing the special counsel, deploying the military, or attacking the press might require a bipartisan institutional response from Congress and if any of those came to pass, Do you believe that Congress might in fact respond institutionally on a bipartisan basis.

Wiener: [00:49:03] There's no question that it would require a bipartisan and institutional response. As to whether it would, I think unfortunately we're we're back to that sort of first principle of congressional scholarship which is re-election that the re-election motive is a pretty good predictor of congressional behavior. Until the president's behavior starts to undermine both his own popularity and their own, I don't think we're going to see that many peeling off. I think that's what we, I'm not a historian, but I think in the Nixon era I think the congressional support began to crumble when they began to pay a price themselves.

Rosen: [00:49:45] Well it is time for closing arguments and this was an absolutely fascinating debate. Steve, the first one is to you. What do you want to tell We the People listeners and also members of Congress about what their institutional responsibilities to check the president under the Constitution are.

Vladeck: [00:50:00] Well I think I mean, the last thing I'll say Jeff as we saw the president as early as the morning after Election Day threatening House Democrats and inventing this term, presidential harassment, to describe what to me looks like a perfectly ordinary exercise of the House's oversight power. I think we ought to all be able to differentiate between investigations by the new House that look like they're simply meant to cause personal agita for the president, and investigations that are actually consistent with the House's constitutional function to identify waste, fraud, or abuse in the executive branch, to supervise policy decisions by the executive branch, and to ensure that executive branch officers are actually complying with their responsibilities to federal law and the Constitution. And I just have to say, you know I fear that folks are going to have a very partisan reaction to these investigations and I hope they don't because I think we have increasingly run into trouble in our constitutional system across a range of topics from everything we've talked about on this episode, to the war powers, to other contexts where power has drifted to the executive branch whenever the same party has controlled Congress and the White House. I for one think that our country will function much better wholly apart from which party is in charge of each branch, when we're back to a system that is more about the separation of powers and separation of parties. To me that's the best thing that happened on Election Day. You know divided government may seem inefficient but I actually think it's the best way at least for the moment to achieve that that founding ideal.

Rosen: [00:51:45] Thank you so much for that. And Greg the last word is to you. What would you say to We the People listeners and members of Congress about what their constitutional responsibilities to check the president are?

Wiener: [00:51:57] Well I'm glad you mentioned We the People listeners because I think ultimately that what we've got to do is educate public opinion about the importance of Congress and the importance of the separation of powers. When I talk about this I tend to hear a lot of people saying I don't care how things get done I just want things to get done. And that is a very constitutionally problematic view. I think what members of Congress need to do is respond as members of Congress not as members of a party. That would include by the way not being intimidated when President Trump threatens what he called a warlike posture toward investigations. But it would also include not being baited by a threat like that. They should simply go about their business. But but part of going about their business simply has to be educating the public about why it matters that things go through Congress and not through the presidency, particularly in a as you were kind enough to mention my book about Madison before, particularly in a time period when time is so accelerated we want things done so immediately that we're tempted to turn toward executive power and away from the slow natural deliberative process of the legislature.

Rosen: [00:53:03] Thank you so much Greg Wiener and Steve Vladeck for an illuminating, deep, and unexpectedly bipartisan discussion about Congress's institutional responsibilities under the Constitution to check the president. You have both illuminated our we the people listeners in the highest traditions of this podcast. Greg, Steve thank you so much for joining.

Wiener: [00:53:25] Thank you.

Vladeck: [00:53:28] Thank you Jeff.

Rosen: [00:53:28] Today's show was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please remember to read review and subscribe to We the People on Apple podcast or wherever you listen recommend the show to your friends and colleagues and check out our podcast live at America's town hall. That's the audio feed of our town hall programs from Philadelphia and around the country which unite thought leaders and scholars to discuss the constitutional issues of the day. Remember always, dear We the People listeners the National Constitution Center is a private, nonprofit. We rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. It is urgently important to engage as many Americans in supporting the mission of the National Constitution Center as possible. Please, you must go to our website, check out the content and become a member at any level. Go to constitution center dot org slash membership to learn more. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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