Friday, May 25, 2012

Eric Holder's Losing Hand

Here’s the process for how the fight will unfold, if Issa continues to move forward:

Issa’s committee will vote to hold Eric Holder in contempt of Congress. Then the contempt citation goes to the House floor for a vote, because only the full House or Senate can hold someone in contempt. It then goes to the U.S. attorney for the District of Columbia to launch a criminal prosecution in federal court. 

The problem, of course, is that federal prosecutors are part of DOJ. So all 93 U.S. attorneys work for--that’s right--Attorney General Holder. It’s a foregone conclusion that Ronald Machen--the U.S. attorney for D.C.--is not going to try to send his boss to prison. This is especially true given that Machen is a rising star among Democrats in the legal community with a perfect résumé, making him competitive for a top position at DOJ or perhaps a federal judgeship. 

So then the House must bring a lawsuit of its own. The Supreme Court held in the 1997 case Raines v. Byrd that only the full House can initiate such a suit. So there would be another House vote, this time authorizing Issa to file a civil suit in D.C.’s federal district court on behalf of the House, seeking a court order to compel Holder to provide all the testimony and documents Issa has subpoenaed. 

The only defense Holder can assert is to say that these documents are protected by executive privilege. That’s the doctrine that the president and his subordinates are independent of Congress, and that certain information can be kept secret to enable each president and his administration to do their jobs effectively. Though often asserted when information is sought regarding the president’s confidential conversations or for decisions involving military decisions or foreign diplomacy, executive privilege can be attempted whenever someone in an administration does not want to comply with a congressional subpoena. 

But Holder will lose that legal fight if Issa and House Republicans persist in pursuing this investigation, as they should. This is in part because there are two types of executive privilege, as I explain in an academic publication. The first is the presidential communications privilege, which shields conversations a president has with his advisors. It’s rooted in the Constitution’s separation of powers, and allows every president to receive candid advice on how to discharge his duties. 

That privilege only extends to communications directly involving the president, however, so instead Holder can only assert the second type of executive privilege, called the deliberative process privilege.
It’s a common-law doctrine that is not found in the Constitution, and as such is a much weaker defense. Two centuries of legal precedent strongly suggest that if Holder tries claiming that this weaker form of executive privilege empowers him to refuse to answer Congress, the courts will smack Holder down--hard.


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