//  7/17/18  //  In-Depth Analysis

Judge Brett Kavanaugh’s nomination to the Supreme Court has drawn timely attention to the “unitary executive” theory of Article II. The theory is not associated with Kavanaugh alone, and his views might not alter the balance of power on the Court. Indeed, it is important to point out that some of Justice Kennedy’s votes on presidential authority are at least congruent with the unitary executive theory. Nonetheless, Kavanaugh’s nomination is a chance to evaluate the theory’s implications for the problem of high-level criminality. For Kavanaugh’s academic writing on the topic, intentionally or not, casts light on some deep questions about the theory’s compatibility with the rule of law.    

The “unitary executive” theory of Article II is centrally associated with the idea of vertical presidential control of personnel within the executive branch. In two law reviews, Judge Kavanaugh touches on another of its implication: How are errant chief executives and their coteries to be held to account?

Judge Kavanaugh gives a clear, and constitutionally grounded, answer to this question—an answer that I think logically follows from some versions of unitary executive theory. Here is Kavanaugh in the 1998 Georgetown Law Journal:

“[A] serious question exists as to whether the Constitution permits the indictment of a sitting president …. The Constitution itself seems to dictate … that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office.”  (pp.2157-58).

Indeed, says Judge Kavanaugh, we can “expect that the President would be quickly impeached, tried, and removed” if he or she does a “dastardly deed.” (p.2161).

This (only notionally tentative) argument raises many interesting issues. For example, it marks a striking departure from the Constitution’s text. Presidential immunity from indictment or information is not to be found in the body of that text. In fact, Kavanaugh’s inference from silence is in tension with the Framers’ decision to specifically provide for legislators’ immunity in the Speech and Debate Clause of Article I. (After all, if the Framers could create immunity in Article I, why did they fail to do so in Article II?)

But rather than focus on methodological wrinkles, I want to emphasize the weight that this argument places upon Congress as the regulator of high-level misconduct. I want to consider, in particular, the assumption that that Congress has sufficient constitutional authority and adequate incentives to ensure presidential compliance with the criminal laws. In brief, I think these assumptions are unfounded.

First, the historical record does not suggest that Congress presently has the effective legal power to extract necessary information from the executive branch in a timely fashion. Nowadays, Congress often relies on the courts (rather than its own formal authorities) to wrestle information on high-level wrongdoing from the executive. And Congress’s judicial remedies have already shown themselves to be far from up to the task.

The most telling recent historical precedent is the litigation commenced by the House of Representatives Judiciary Committee over information concerning the firing of several U.S. Attorneys. Specifically, the Committee sought testimony from President Bush’s White House Counsel Harriet Miers and documents held by Chief of Staff Josh Bolton.

In the Miers/Bolton case, the Committee’s resort to judicial relief exemplifies Congress’s unwillingness to use its inherent contempt authority to force disclosures—say by directing its sergeant at arms to make arrests. The path of the Miers/Bolton litigation further shows that courts are a highly imperfect tool for an investigating Congress: Despite prevailing against the White House’s constitutional objections before Judge Bates of the D.C. District Court, the House all but lost its case when the D.C. Circuit stayed its appeal until after the 2008 election. In effect, the Bush White House won by running the clock until the political incentives for investigation had expired. 

Moreover, where potential criminality touches on “national security,” even a judge as cognizant of Congress’s constitutional needs as Judge Bates might balk (as footnote 12 of his important opinion suggests). The current special counsel investigation, which seems likely to touch on post-inauguration contacts between the White House and Russian authorities, might well fall into a vast “national security” exception—as might any congressional inquiry into related obstruction of justice and comparable wrongdoing.

In short, the Miers/Bolton litigation suggests that when Congress wants information about high-level executive wrong-doing, it must resort to the courts. This litigation also shows that the judicial process is sufficiently slow, and sufficiently vulnerable to delay, that a recalcitrant executive can slow-walk disclosure until electoral turnover undermines Congress’s political will. Realistically, it is very hard to imagine Congress effectively using its inherent coercion power to make up for this deficient. 

Second, even if Congress had the constitutional tools to conduct an effective investigation, it is far from clear that it has the incentives to do so. As scholars have been at pains to point out, partisan motives often eclipse institutional or legal concerns in separation of powers fights. To be sure, there are ways to mitigate partisan effect in the judiciary and the executive branches. But the very design of the federal government undermines that possibility when it comes to Congress.

For instance, the Constitution directs that presidential and legislative elections coincide every four years. This creates a powerful “coat tails” effect that noticeably changes who is elected to Congress in on- and off-cycle elections.  Moreover, the Constitution has been interpreted to permit the executive broad influence over the distribution of federal spending (both before and after spending bills are passed). This provides another instrument for presidents to influence copartisan legislators. Indeed, districts and countries represented by the president’s party predictably receive more federal resources. It is thus hardly surprising that aligned legislators will experience scant pressure to investigate a president even when there is some evidence of serious wrong-doing.

Even aside from constitutional structure, our present moment of intense, almost tribal, partisanship seems to be eviscerating what remains of legislators’ incentives to look closely at the behavior of copartisans. For evidence of this, just reflect on current efforts by legislators to defend Representative Jim Jordan from accusations by six athletes at Ohio State that he ignored and tolerated their sexual abuse—a defense offered on the extraordinary ground that the athletes “weren’t children.”

In a footnote (n.40) to his Georgetown Law Journal article, Kavanaugh describes congressional investigations as “the primary manner in which the public learns whether executive branch officials have committed malfeasance in office.”  He provides no support for this proposition. To be sure, there is some evidence that congressional investigations have aired some wrongdoing in the past. But the rate of such investigations has been steadily falling over the last few decades (as polarization has increased). And none of those investigations has in fact resulted in either removal or punishment—only some temporary diminution of presidential popularity.

By now, as I have stressed, it is instead clear that Congress has neither sufficient legal authority nor sufficient will to investigate presidential malfeasance. A sole recourse to Congress as a source of accountability for presidential wrongdoing would thus leave the nation with no effective way to ascertain if the president has violated the law. Readers of Take Care need no prompting to understand the implications of this fact today. Given our Constitution’s structure and predictable functioning, criminal investigations run by professional prosecutors will always be central to the discovery of high-level executive wrongdoing.

With this in mind, consider one additional implication of Judge Kavanaugh’s scholarly writing.  Go back and look at the way he describes the scope of presidential immunity. It is not just an indictment but any “criminal investigation” of the president that seems to be prohibited.  What does this mean?  When a D.C. grand jury named then-President Nixon as an indicted coconspirator in a conspiracy indictment, did it act unconstitutionally? 

A version of the unitary executive theory that extinguished criminal investigations as soon as they touched the president in some manner would be a serious blow to the idea that federal officials are under the same rule of law as citizens.  It would expand the zone of immunity far beyond the Oval Office to some inchoate domain stretching over the White House and far into the federal buildings of Washington, D.C.

On this important point, there is conflicting evidence as to Kavanaugh’s views.  On the one hand, his Georgetown piece points to existing precedent that limits the president’s ability to refuse information in criminal cases (p.2162) and seemed to endorse Judge Silberman’s conclusion that “no special showing other than relevance is necessary even when executive privilege is claimed.”  (p.2170).  This seems to envisage the possibility that presidents can generally be investigated by prosecutors, even if they cannot be indicted. On the other hand, in a subsequent Minnesota Law Review piece, Kavanaugh contended that the “burdens of criminal investigation” on a president “are time consuming and burdensome.” (p.1461). Given sufficient willingness to salt the unitary executive theory with a dose of ad hoc functionalism—as the Court routinely does—it is possible to gloss this as a constitutional condemnation of even the peripheral reach of a criminal investigation into the behavior of high-level federal officials.

How one resolves this ambiguity about investigations that involve the president, even if they do not yield his indictment, is not an abstract question. The answer bears directly on the trajectory of a probe that President Trump—while standing by the Russian president’s side and decrying his own FBI—recently calleda disaster for our country."

In short, the Kavanaugh confirmation hearings provide an important platform for legislators to draw attention to—and solicit the nominee’s views on—a vital question of law and political morality.  Regardless of one’s beliefs about whether Kavanaugh should be confirmed, this is not an opportunity that anyone reasonably committed to a constitutional system under the rule of law should pass up.  


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