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Sunday, May 06, 2018

Judicial departmentalism and U.S. v. Nixon

The potential controversy over the special counsel issuing a grand-jury subpoena for President Trump offers a nice illustration of judicial departmentalism, outside my usual focus of constitutional litigation. The theory of judicial departmentalism is that Supreme Court precedent is binding within the judiciary but not on other branches and other actors, who remain free to engage in their own, independent legal and constitutional analysis, even if it diverges from controlling judicial authority and sets non-judicial actors on a contrary course of action. A corollary  is that the executive is not bound to follow precedent with which he disagrees, but must obey a judgment entered against him in a specific matter.

So how does this stand-off play out?

Step One: The President, his lawyers, and the executive-branch lawyers can decide, in their own best constitutional judgment, that a President is not subject to a testimonial subpoena (which is not precisely covered by United States v. Nixon) or even that Nixon was wrong. They also can give controlling weight to non-judicial sources of advice, such as OLC opinions. And they can act on their constitutional understanding by refusing to comply with the subpoena, without being said to be "disobeying" or "ignoring" the courts or acting contrary to law or to their oaths.

Step Two: Faced with that response, the special counsel will move in federal court to enforce the subpoena. All federal courts will be bound to follow Nixon and other judicial precedent and will order the President to testify. All levels of the federal judicial hierarchy are similarly bound, unless SCOTUS wants to overrule Nixon, which I doubt, or the document subpoena/testimonial subpoena distinction is a meaningful one. Now Trump is compelled to obey. And his refusal constitutes disregard for the courts and to his oath.

A wise lawyer at Step One will be aware and will advise his client as to what will happen at Step Two, perhaps prompting different behavior at Step One. A wise political adviser might do the same. The point of judicial departmentalism is that compliance with precedent is a matter of prudence, choice, and political incentives, not legal compulsion. Legal compulsion comes only from Step Two.

Posted by Howard Wasserman on May 6, 2018 at 09:52 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Yes. And Lincoln was required to enforce that judgment with respect to Scot, so that Scot was not free. But Lincoln could continue to enforce the Missouri Compromise, to the extent the opportunity arose.

As to why, Gary Lawson has the best (although less-absolute than mine) take on why this is, enumerating a few reasons: 1) Courts are empowered to render final judgments in discrete disputes, which the executive cannot interfere with; 2) judgments are not "laws" for Take Care purposes, so the same executive discretion is absent.

Framing this in terms of what the "Constitution means" is the problem. What the court said in Case I is the court's interpretation or understanding of the Constitution's meaning. But it is not the only way. The court probably will resolve Case II the same way (precedent suggests it must). The point is the necessity of that second case.

Posted by: Howard Wasserman | May 7, 2018 4:25:34 PM

But if a court rules incorrectly (from the executive's point of view) not obeying the court *is* supporting and defending the Constitution and taking care that the laws be faithfully executed. What is the difference between the particular case in which the court made its ruling and a different case, as far as the Constitution and "the laws" are concerned? Are you saying that the Constitution means one thing in one case and another in another case?

To take the Dred Scot case, for example, Douglas challenged Lincoln that he, if elected, would have to accept Taney's ruling that territories couldn't ban slavery because otherwise he would be violating the Constitution. Lincoln answered that he is required to support the constitution, not Taney's interpretation of it. According to you, did the Constitution prohibit Congress from banning slavery in territories as far as Dred Scot was concerned, but allow the same ban as regards other slaves? Isn't it more accurate that Lincoln believed the Constitution did not ban slavery bans at all, although as a party to a case, he was bound by the court's resolution of it, even if it was incorrectly decided?

Posted by: Biff | May 7, 2018 3:54:28 PM

Biff: "Support and defend the Constitution," "take care that the laws be faithfully executed."

Asher: There are many ways that judicial departmentalism bleeds into judicial supremacy, because the courts do get the last word once a specific concrete dispute reaches court. This includes Rule 11 and the limits on the arguments that can be made in court, among others. I will explore that and other pushes in the broader article on the subject, which I hope to write (or at least begin writing) this summer.

Posted by: Howard Wasserman | May 7, 2018 2:31:04 PM

I agree that a president is bound by a judgment against him, just as any individual is bound by a judgment against him. I do not know what you mean, though, that he would be violating his oath. What part of the oath is he violating?

Posted by: Biff | May 6, 2018 7:18:06 PM

Once you're in the courts, isn't there a kind of legal compulsion to not make frivolous arguments? And won't defending a policy made under the auspices of departmentalism sometimes require you to make frivolous arguments? Suppose, for example, that Nixon were indistinguihsable here (which I happen to doubt, but suppose). Now, I think there are probably non-frivolous arguments for overruling Nixon. But suppose that they're unanimously rejected. Then suppose that the President, or his successor, is subpoenaed again, shortly after Nixon is reaffirmed, and suppose that no intervening events have happened that call its reaffirming into question. Well, the same non-frivolous arguments could be made for overruling Nixon that were made before, but those arguments were just rejected by a Supreme Court of the same composition as the one the President's lawyers are now before; the Court would never grant cert and the filing of the petition would only prolong the inevitable. Perhaps this doesn't literally violate Rule 11, but it feels like there's something wrong about refusing to do what one knows with virtual certainty the courts will say one must do.

Posted by: Asher Steinberg | May 6, 2018 7:18:00 PM

Yes, that is how precedent works *in court* and what attorneys must argue *in court.* The point of judicial departmentalism is that the executive is free to ignore precedent with which he disagrees outside of court, if that is his best constitutional judgment in the public interest.

Whether Nixon is right or wrong, or what I think about Nixon, is irrelevant to the point of this post. Whatever the reason for his capitulation, had he not capitulated, then he would have been acting in violation of his oath (again, regardless of the platonic "correctness" of the Court's decision) because the executive cannot disregard judgments entered against him in particular cases.

Posted by: Howard Wasserman | May 6, 2018 3:43:59 PM

"SCOTUS can compel the Executive to do anything at all, under any circumstances."

U.S. v. Nixon and its progeny (especially in light of its progeny) doesn't require the executive to be treated like any person. But, the executive isn't a king. They can be "compelled" in some circumstance. If Trump witnesses a murder on Fifth Avenue, he should be able to be forced to testify pursuant to immunity if necessary.

Posted by: Joe | May 6, 2018 1:40:55 PM

I think that both Maybury and Nixon are wrong. Nixon did not fight against the Supreme Court judgment because he thought it was legally correct, he chose to follow its dictates because he believed that failing to "come clean" would have only hastened his impeachment...the only chance he had to survive was to capitulate. As a matter of political judgment he may have been right though history records capitulating failed to achieve his objectives. The problem is that not only did his capitulation not save his grip on power, it left a bad historical precedent which people like Howard can point to to buttress the case that SCOTUS can compel the Executive to do anything at all, under any circumstances.

Posted by: James | May 6, 2018 12:58:35 PM

Yes, to exercise , when there is a vacuum or a need in good faith , and for the public interest . Not when there is substantial similarity.

Just to illustrate it ( the relationship between the law or constitution , and the precedent ) here I quote the supreme court in Nixon , while interpreting rule 17(c) to the federal rules of criminal procedure , here is the rule :

(c) Producing Documents and Objects.

(1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

End of quotation :

Yet , what about the president and his communications and his " executive privilege " , here the court now :

Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function, United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice .

End of quotation :

So , the rule itself , doesn't tell us really , the extent , or how to apply it to the president , and his privilege as such. That is how a precedent is formed . later , if an attorney is aware of the similarity , then , he is bound by the supreme court precedent. If he claims something different ,only in good faith of course.

Here one may read the ruling :



Posted by: El roam | May 6, 2018 12:51:03 PM

And the reason for requiring two steps is that there is no reason that the court's constitutional judgments should prevail over the executive's constitutional judgments. Nothing in the Constitution requires it. Nothing in Marbury requires it. So it is not wasting time or resources; it is giving coequal actors the opportunity to exercise their constitutional authority.

Posted by: Howard Wasserman | May 6, 2018 12:40:51 PM

They are not the same thing. A judgment is an order from the court that resolves the dispute between the parties, declaring who wins and loses and what any party must do or refrain from doing viz a viz the other parties. Precedent is the reasoning underlying the judgment, which other courts will look to and rely upon to resolve future disputes involving different parties. The judgment in Nixon is that Richard Nixon had to turn the tapes over to the office of Leon Jaworski. The precedent of Nixon is that the president enjoys some executive privilege, but that it may be overcome in certain circumstances.

Posted by: Howard Wasserman | May 6, 2018 12:24:44 PM

There is in that offer of those two steps mentioned , contradiction in terms . Because first you claim that the executive branch can ignore precedents , then you claim that :

" ….but must obey a judgment entered against him in a specific matter "

But with all due respect , this is the core of the meaning of " precedent ". The law provides general standard , while the court , through a precedent , apply it to a specific case , binding as such , from here and on. So , why to waste resources ? why to hurt public trust ? and delaying everything …..

If in the case of Nixon for example , the court held that absent a claim of need to protect military , diplomatic , or sensitive national security secrets , the presidential communications can't take over criminal procedure , fair trial and so forth….Then :

In the next case , and similar one , one attorney , would act in breach of trust , if he is fully aware to the precedent , and the similarity with his current case. One should not forget , one attorney , is mainly , in service of the rule of law , and serves the executive branch , only to such extent .

As Comey replied to Trump ( would he stay loyal to him , in that famous dinner at the White house ) :

Yes , he replied , but " honest loyalty ….." not illicit one of course !!


Posted by: El roam | May 6, 2018 11:21:28 AM

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