The House Judiciary Committee sent out document requests to 81 parties associated with President Donald Trump in its wide-ranging investigation into “allegations of corruption, obstruction, and abuses of power.” The fusillade generated analysis of the magnitude, omissions, and advisability of the requests. It also prompted immediate backlash from the White House. President Donald Trump tweeted “Presidential Harassment by ‘crazed’ Democrats at the highest level in the history of our country.” And White House press secretary Sarah Huckabee Sanders rejected the entire enterprise as a “witch hunt.” The White House’s combative strategy to confront the widening investigations by multiple committees is consistent with President Trump’s declaration that he would adopt a “warlike posture” if House Democrats conducted investigative oversight.
Chairman Jerrold Nadler (D-N.Y.) asserts that these requests only seek material already provided to federal law enforcement agencies by witnesses, and therefore should not require much time or legal wrangling prior to being handed over. But that likely doesn’t fully capture all the requests either now or in the series that are expected to follow.
A sensational partisan rift and heated rhetoric has a dulling effect on the legal analysis. A subtext of the reaction to the Judiciary Committee requests, somewhat understandably, consigns this part-legal, part-political oversight process into a purely political one. Won’t the Trump White House and Justice Department just stonewall everything under various claims of privilege? Won’t it all be tied up in executive privilege fights for many months or years before anything comes of it?
It would be a huge mistake to end the analysis there. While there will be some aspects of the investigation that may follow that path, much of it will not. If journalists and commentators accept a total partisan warfare frame, they risk missing critical distinctions within the set of requests and the consequential legal significance of the process that these letters foretell.
Make no mistake, if the Judiciary Committee stays its course, it will obtain rafts of information, testimony, and documents about President Trump, his family, his businesses, his associates, and his financial entanglements.
Here are five variables that will affect the degrees of difficulty the House Judiciary Committee will have in obtaining this information.
Variable 1. Recipient — Executive Branch or No?
Distinctions between governmental and nongovernmental recipients define what legal and functional leverage are available to them if they seek to shield disclosure of information from Congress.
The most consequential legal distinction is whether the congressional request seeks government information from a federal executive branch agency or official. If so, two factors may complicate or delay congressional receipt of the requested information.
First, executive privilege arguments may be available. The Trump administration will surely seek to withhold information as deliberative processes, presidential communications, diplomatic and national security secrets, grand jury secrecy, and law enforcement sensitive information. An assertion by an agency or official that there are significant executive branch confidentiality interests — standard Office of Legal Counsel language for information it may deem worthy of a formal claim of executive privilege — is a signal that Congress will need to escalate its pressure and potentially entertain a negotiated compromise (this back-and-forth is known as the accommodations process) to obtain sufficient desired information.
Second, the executive branch has custody of the information. It is not as simple as “possession equals nine-tenths of the law” — but functional control over information matters in the oversight context because when Congress seeks to dislodge information from a recalcitrant official or agency, the executive branch either has to relent due to public and political pressure or it needs to be ordered to produce the information by a court. Judicial enforcement of congressional subpoenas is an arduous and drawn out process that may extend beyond this Congress’ and President Trump’s term.
Thus, even weak or meritless claims of executive branch confidentiality interests will tie up the accommodations process.
Information about government conduct sought from former government officials present the same executive privilege possibilities — but without the executive branch possession and functional control. Now a private citizen, the former government official does not face a choice between executive branch insubordination and congressional compliance. That could affect their choices about the extent of their cooperation (see the “Human Agency” discussion below).
Because of the drama associated with a White House showdown with Congress, much attention has been focused on coming executive privilege fights.
But that is far from the end of the story. Many of the congressional document requests will seek information from business organizations, nonprofit institutions, and private individuals. That is where congressional committees will likely obtain significant Trump-related information with relative ease.
Private organizations and individuals who have not worked in government have far fewer legal tools at their disposal to resist providing requested information from Congress.
The first significant hurdle of consequence to private parties is the process. Unlike in a civil or criminal court case, the recipient of a congressional subpoena cannot move to quash it. Rather, if that recipient wants to assert a legal defense to compliance — whether it be scope, committee authority, or constitutional right — the person has to refuse to comply, risk a finding of contempt of Congress, and raise those defenses in subsequent contempt enforcement litigation. Those reputational costs are too high for most companies and individuals.
Moreover, several categories of information traditionally afforded protection by courts are much more vulnerable to a congressional committee. For example, if Congress subpoenas information, it can reach information traditionally protected as trade secrets or attorney-client privileged by the courts.
Where they apply, the Constitution’s civil liberties regulate Congress. But for reasons I outline in a law review article, they tend not to afford the robust protection one might expect. By recent illustration, those associated with the website Backpage.com resisted a Senate subpoena in a sex trafficking investigation on First Amendment free expression and Fifth Amendment due process grounds. I wrote about the district court opinion upholding the Senate’s contempt finding and ordering subpoena compliance while the D.C. Circuit appeal was pending. Ultimately, the appeals court found the case moot due to intervening events, although it grounded its opinion in part on a ruling that the Speech or Debate Clause barred the Backpage insider’s remedy that would have required the Senate to “destroy or return” the documents he produced.
Individuals can successfully invoke the Fifth Amendment privilege against self-incrimination before Congress but — fair or not — that usually comes at incredible reputational cost. Congress can also overcome that invocation by granting a witness immunity and then compelling their testimony. And companies cannot assert a privilege against self-incrimination.
Make no mistake, there is plenty of good lawyering to be done on behalf of private companies and individuals facing a congressional probe. But quality legal representation before Congress is largely done as a matter of context-specific client advice, diligence, tone, credibility, establishment of trust, and reasonable accommodation rather than reliance on concrete enforceable legal safeguards of traditional adversarial litigation.
Variable 2. Recipient — Target or Third-Party Witness?
A second major variable in the level of cooperation and speed of document production is the recipient’s status in the relation to the investigation.
Is the person a partisan lightning rod (think Roger Stone or Christopher Steele)? Is the company receiving the document request under suspicion of having engaged in some sort of wrongdoing? Is the recipient more of a passive custodian of records of interest to the committee? Or does the recipient fall somewhere in between.
A target will naturally have greater reputational interests at stake, and could face a real threat of criminal or civil legal exposure based on what is revealed to Congress. These stakes render the Fifth Amendment a more viable option.
Being a target could motivate cooperation in a party that seeks to move from target status to something else. For example, Michael Cohen seeks to improve his situation by convincing the Democratic majority and public that he seeks redemption. He may benefit by increasing his value to prosecutors as a more credible witness. He may benefit from a reduction in his sentence down the line. And he may benefit, truth be told, in a future book deal worth millions.
Or, being a target could motivate a party with a different set of incentives to hunker down, resist cooperation, and seek to have Republican committee members act as additional defense counsel in the court of public opinion.
A document request recipient who is closer to being a neutral third-party witness is likely to want to cooperate to put this behind them. Let’s say a major bank received a records request from Congress related to depositor accounts or wire transactions in which the bank has not been accused of wrongdoing, but the parties to the transaction have. Of course the bank would prefer not to be involved at all. But if it must be involved, it will want to minimize its exposure and maintain its nonpartisan brand as a financial institution that is faithful to its customers and compliant with regulations. In that situation, the bank would likely be required not to volunteer client information, but also would likely readily comply with a legally effective subpoena for the same information.
Variable 3. Human Agency — From Whistleblowers to Trump Loyalists
These legal tools and incentive structures are only part of the puzzle. Human agency matters. People have a choice whether to comply with a congressional document request. A whole host of considerations and motivations will factor into that decision — ethical and moral codes, professional duty, the Constitution or other legal obligations, partisan or Trump loyalty, future career goals, reputational costs, and the psychology of decision-making to name a few. Eighty-one letters means many people and organizations are going through that process.
Many will toe their boss’s, organization’s or party’s line, but some may choose a different path — perhaps as whistleblower, perhaps as political martyr. Already, a White House source leaked security clearance process documents about Jared Kushner and Ivanka Trump to the House Committee on Oversight and Reform — documents the White House counsel had just refused to provide.
Variable 4. State Agencies — A New Cooperative Federalism?
The insurance regulator in New York has already commenced an inquiry into Trump’s representations about asset valuations in light of Cohen’s congressional testimony.
An unknown is the extent to which state and local authorities will cooperate with Congress. Several New York state law enforcement and regulatory bodies have embarked on Trump-related investigations. And regulators there will also have custody of records related to the Trump Organization and the president’s other financial interests. Will they produce records to Congress? Such records could create a lot of grist for the congressional investigation mill.
Variable 5. Information Sharing and Abrogated Privileges
One final wrinkle will affect the ability of parties to resist providing information to Congress. Information sharing between Trump administration officials and nongovernment persons can destroy confidentiality protections like executive or attorney-client privileges. That includes government information the president, Ivanka Trump, or Jared Kushner or official White House lawyers have disclosed to Donald Trump, Jr., Eric Trump, or Lara Trump. The same is true of information shared between White House lawyers and Donald Trump’s private attorneys.
The Trumps’ co-mingling of governmental affairs with family members who don’t hold a government job may be their undoing when it comes to waiving different confidentiality protections under the law. Reports have surfaced that Donald Trump, Jr. received a controversial memorandum created by a government official related to the National Security Council. Similarly, Lara Trump — who is not a government employee — indicated she read a transcript of one of President Trump’s calls to a bereaved service member’s widow. In addition, citing attorney-client privilege, Donald Trump, Jr. refused to describe a conference call involving numerous White House officials and lawyers to the House Permanent Select Committee on Intelligence when asked in 2017. That assertion of privilege was highly dubious, and Democrats in control of the committee will likely now press for answers. This is a fissure that Congress may exploit, both as a legal matter and in the court of public opinion.
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We are on course for the epic executive privilege fights people expect. But along the way the House Judiciary Committee is going to pick up a ton of information. The information the Committee collections will shape the political environment in which that ultimate separation of powers dispute plays out.
Image: House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and ranking member Rep. Doug Collins (R-Ga.) talk before a hearing on gun violence legislation in the Rayburn House Office Building on Capitol Hill February 06, 2019 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)