Tornado Alley (PROG)

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Presidential Norms and the Special Counsel Investigation: Disclosures to Congress

"mr40, What We Know, and Don’t Know, About the Firing of Andrew McCabe"

By David Kris
Thursday, May 3, 2018, 4:50 PM

[...]

The Linder Letter also argued, in terms only slightly less explicit, that Congress leaks like a sieve:

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In addition to the problem of Congressional pressure and the appearance of such pressure, disclosure of documents from our open files could also provide a ‘road map’ of the Department’s ongoing investigations. The documents, or information that they contain, could come into the possession of the targets of the investigation through inadvertence or a deliberate act on the part of someone having access to them.
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This anticipates the concerns of Justice Department and FBI leadership, expressed in yesterday’s Times article, that “some lawmakers [are] using their oversight authority to gain intelligence about [the Mueller] investigation so that it could be shared with the White House.”

[...to the end...]

The difficulty, however, is that while norms may counsel or compel presidential inaction, with respect to the assertion of executive privilege there may be a need for presidential action. Is there a norm affirmatively requiring the president to follow the advice of his acting attorney general and assert executive privilege against his personal preference when he suffers from a conflict? That seems unlikely—the best one could hope for is probably presidential silence (or perhaps if there were a formal recusal, the vice president’s decision on the matter). Could the acting attorney general successfully assert executive privilege against a congressional subpoena in the face of presidential silence? What would happen (in court or otherwise) in such a case? What would happen if the president, despite any applicable norms, filed a brief or statement (or tweet) expressly disclaiming executive privilege with respect to the documents in question?

These and other questions may provide many hours of amusement for OLC and the legal academy. But here and now they show why Rod Rosenstein is in a very tough position, and why he may feel compelled to lean in favor of disclosure to Congress, even if he will not provide every document the House has demanded. Historically, an appeal to House leadership might have helped, because leadership has historically been somewhat more respectful of tradition, but Rosenstein has apparently already tried that and failed .. https://www.cnn.com/2018/01/04/politics/paul-ryan-nunes-justice-department/index.html . To properly resist a full-powered congressional onslaught, a federal agency needs active support from the White House, not grudging inaction with periodic threats to pull the rug. One of the features of a system of separated powers is that the president can accomplish a great deal with the support of Congress, or even an energetic minority of Congress (and the passivity of the remainder). Where the president is disabled by a conflict of interest and uses members of Congress to fight a proxy war against his own subordinates, however, the feature might be seen by some as a bug.

The more that Rosenstein accedes to congressional demands for investigative information, the more he erodes the norms expressed in the Linder Letter. This will have consequences in the long run unless it is reversed. If the Trump era is seen in hindsight as a brief but severe fever, perhaps its precedents will have little impact in the ongoing struggle between the political branches. But in the near term, every disclosure of classified information will also resonate through the Freedom of Information Act. In court, the Justice Department has tried at times to reduce the impact of particularly fevered presidential tweets, but generally without much luck .. http://www.abajournal.com/news/article/government_says_trumps_tweets_are_official_presidential_statements . So it will be interesting to see how today’s disclosures to Congress are dealt with in the future.

https://lawfareblog.com/presidential-norms-and-special-counsel-investigation-disclosures-congress