Thursday, April 4, 2019

UPDATED: Nadler's Subpoena

There's been a fair bit of commentary regarding House Judiciary Chairman's Jerrold Nadler's subpoena for the full, unredacted Mueller Report. Nevertheless it may be helpful to go over the issue a bit more.

To begin with, the Special Counsel as we currently know it follows from provisions in the Ethics in Government Act. Those provisions were allowed to expire in 1999, but were replaced by the current DoJ Special Counsel regulations (28 CFR 600). While the previous Independent Counsel provision under the Ethics Government Act had been upheld by the Supreme Court (with only Justice Scalia dissenting), it had come under fire by both Democrats and Republicans

Justice Antonin Scalia provided critiques of the Act, based on both Constitutional law and the potential for harm in practice, in his dissenting opinion in the case Morrison v. Olson. Justice Scalia, a judicial conservative, noted that the U.S. Constitution granted consolidated power to enforce the law exclusively to the Executive Branch. The Act extended the power to initiate criminal investigation to the United States House of Representatives and the Senate, which Scalia viewed as a violation of the separation of powers. He believed that the House of Representatives' investigation through the use of a special prosecutor "[arose] out of a bitter power dispute between the President and the Legislative Branch".
Even some Congressmen who had voted for the Act criticized it privately, leading to speculation that "if it had been an anonymous vote, it would have been voted down two-to-one". ...
Specific provisions of the Act have faced criticism as either too weak or too strong. The Special Prosecutor created by Title VI was empowered to pursue investigations with minimal evidence, and was required to pursue any accusation that the District Attorney could not disprove. It allowed for legal harassment of political opponents, even in cases that prosecutors stated they would have dropped in any other federal court. ...

I think it's fair to say that the regulations promulgated by Janet Reno were intended to remedy some of those criticisms--both Constitutional and practical--by bringing the Special Counsel under more direct supervision of the Attorney General and requiring specific delimitations of the Special Counsel's jurisdiction and powers. (It's more complicated than that--28 USC 510 can come into play--but for purposes of the Mueller Special Counsel operation this summary will suffice.) Importantly, the regulations stipulate that

(a) A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures.
(c) The Special Counsel and staff shall be subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice. Inquiries into such matters shall be handled through the appropriate office of the Department upon the approval of the Attorney General.

Professor Alan Dershowitz's recent comments regarding Nadler's subpoena should be understood in the light of this history and the regulations:

"There’s nothing in the regulations that require [Barr] to reveal anything," Dershowitz said, "and the best test is the shoe on the other foot test. When we go back to [former FBI Director James] Comey’s statement, if Comey had said ‘We’re just not going to indict Hillary Clinton on the emails,’ and the Republicans said, ‘Wait a minute. We heard you have a report that said she was extremely careless. We want you to release that,’ the Democrats would have jumped up and down and said, ‘No, no, no. Prosecutors don’t say anything negative about people they haven’t indicted.' All they’re supposed to do is announce ‘no indictment.’
"Well, suddenly everything has changed," Dershowitz continued. "And it’s the Democrats who want to know why there wasn’t charges. They want to know what the split was between those who wanted to charge and not charge an obstruction of justice. The law does not authorize that to be released.”

By bringing up the Hillary email investigation, Dershowitz is referring directly to the requirement that "A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice." What he's saying is that, as required by the Special Counsel regulations, the same DoJ "rules, regulations, procedures, practices and policies" that should have applied to Hillary Clinton should apply to President Trump. Recall that James Comey was fired, at Rod Rosenstein's recommendation, for violating those DoJ rules, practices, and policies. Two wrongs don't make a right, so Barr should be applauded for following DoJ policies. The fault in the Hillary Clinton case lies with Obama and his DoJ.

At the same time, Dershowitz is referencing the reporting requirements in the regulations, which do not provide for the type of release that Nadler and the Dems are demanding. Again, these regulations were adopted by the Clinton DoJ with the intent to prevent a revival of an inquisitorial Special Counsel. A significant part of that intent is embodied in the minimalist reporting requirements (here and here)--which essentially codify for purposes of the Special Counsel what has always been DoJ policy. To repeat Dershowitz's gist of it:

Prosecutors don’t say anything negative about people they haven’t indicted.' All they’re supposed to do is announce ‘no indictment.’

The WSJ, in an editorial today (subscription wall), Trolling the Mueller Report: Democrats lost on collusion. Now they’re inventing a coverup, flesh some of this out a bit more.

The editorial begins by noting how preposterous the Dem slander is, that Barr is somehow lying about the conclusions of the Mueller Report. After all, if Barr did so, surely Mueller would speak up. Further, Barr issued his summary with the full knowledge that he would be called to testify before Congress. The slander is absurd and typically deceitful. It's of a piece with Adam Schiff's latest mantra--that Barr is Trump's "hand picked Attorney General." Will some reporter ever ask Schiff who he thinks is supposed to "pick", i.e., nominate, Cabinet officers if not the President?

Beyond that,

Under Justice rules relating to special counsels, Mr. Barr has no obligation to provide anything beyond notifying Congress when an investigation has started or concluded, and whether the AG overruled a special counsel’s decisions. Mr. Barr’s notice to Congress that Mr. Mueller had completed his investigation said Mr. Mueller was not overruled.
Congress has no automatic right to more. The final subparagraph of DOJ’s rule governing special counsels reads: “The regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal or administrative.”

Most of this we've seen before but, in the closing paragraphs of the editorial, the WSJ makes another important point. First they refer to a Schiff tweet:

“Barr should seek court approval (just like in Watergate) to allow the release of grand jury material. Redactions are unacceptable.”

As the editorial points out, Schiff is here backhandedly acknowledging that Barr has no authority to release Grand Jury material simply because Jerry Nadler has sent him a subpoena that, in effect, demands that Barr violate the law. The purpose of this requirement for judicial approval is "to protect the innocent and encourage candor in grand-jury testimony"--things that, as Rudy Giuliani has elequently stated, the Dems care not a whit about. But then the WSJ goes on to distinguish the Watergate case from the present one, which I haven't seen elsewhere:

It’s true that in 1974 the D.C. Circuit Court of Appeals affirmed a federal judge’s decision to release a grand jury report to the House Judiciary Committee that was investigating Watergate. Such a sealed report—which juries can choose to produce—is different from raw grand-jury testimony, which is what Democrats are demanding now. The Supreme Court has never ruled on such a disclosure, so Democrats could be facing a long legal battle if Mr. Barr resists their subpoenas.

And count on it--Barr will resist the Dem subpoenas. Mightily.

UPDATE 1: Paul Mirengoff points out, Ineffective Democrat subpoenas, that the House has two methods for enforcing their subpoenas against the Executive Branch.

First, they can ask DoJ to enforce the subpoena--which DoJ is, um, unlikely to do when the Attorney General is himself the subject of the subpoena.

Secondly, the House can sue in federal court to compel compliance--a slow process.

So, all this is likely for show, and the show is IMO being put on for a dwindling audience.

UPDATE 2: Byron York has part two of his interview of John Dowd available. He has a summary article that explains about the cooperation agreement between Trump's lawyers and Team Mueller:

Dowd explained that fellow Trump lawyer Ty Cobb came up with an idea for the White House to turn over the documents under the terms of an informal understanding with Mueller. The idea was this: Mueller was in the executive branch. The White House was in the executive branch. The White House would hand over the material, one executive branch entity to another, without claiming any privilege, provided Mueller would agree that, if he intended to use the material in any public way, he would first consult the White House.
"It was the idea of Ty Cobb to fashion this so that we could expedite the production of documents and testimony," Dowd said. "You can imagine what a nightmare it would be to take document by document and assert the privilege, because most of it was within [executive] privilege, and indeed the White House communications privilege.

We've known for a long time that Trump cooperated extensively. But this also explains exactly why Barr is being so careful about redacting--so as not to violate the agreement re privileged material. Of course the Dems know this, and that's why they're so eager to get their hands on everything.

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