Académique Documents
Professionnel Documents
Culture Documents
** High Priority **
Steve and Dan, NARA remains concerned that the Chair/Vice Chair letter, on its face, would
allow immediate access to Commissioners and staff, even during the "initial period of at
least several months," but would seemingly deny such access to current Government
officials. Since, as you know, that would not be NARA's practice, we strongly urge you to
urge the Vice Chair to include the following language, or something like it, at the end of
the first full paragraph on page 2:
"We understand that NARA's practices and procedures allow for review of these records by
U.S. Government officials for official governmental purposes as necessary and
appropriate."
Thanks.
GARY M. STERN
General Counsel
National Archives and Records Administration
8601 Adelphi Road, Suite 3110
College Park, MD 20740-6001
301-837-1750 (main)
301-837-3026 (direct) . ___
301-837-0293 (fax)
garym.stern@nara.gov
Re: Potential Subpoena for Presidential Daily Briefings and Related Notes
You have asked whether a court would likely enforce a subpoena issued by the
National Commission on Terrorist Attacks Upon the United States seeking articles from
President's Daily Briefs ("PDBs") to President Bush and former President Clinton,
regarding terrorist threats to the United States. You have also asked whether the analysis
would change if the subpoena instead sought notes taken by Commission representatives,
The PDBs are compilations of national security intelligence reports that the
Central Intelligence Agency generates daily and presents to the President. In November
2003, the Commission and White House reached an agreement on the Commission's
request to examine several hundred PDB articles from the Clinton and Bush
Gorelick, and the Executive Director - may review and take notes from a "core group" of
PDB articles "plainly critical" to the Commission's investigation.1 The White House
The terms of the agreement are discussed in a statement issued by the Commission
on November 20, 2003, available at http://www.9-l lcommission.gov/press/pr_2003-l 1-
20.pdf.
retains the notes, but the four representatives may review them at any time. The
representatives may also prepare a summary for the full Commission, which is subject to
"limited review" by the White House. The representatives have "wide latitude" in
With respect to the several hundred responsive PDBs not included in the "core
group," the agreement permits two representatives - Commissioner Gorelick and the
the "core group." The criteria for adding to the core group are that the articles are
not otherwise available to the Commission." The two representatives may take limited
notes to determine whether the articles satisfy these criteria (which the White House
keeps) and consult with the Chair and Vice-Chair on their analysis. Any transfer of
Recently, the Commission requested the transfer of about 40 PDBs to the "core
group." The White House has preliminarily indicated that it will deny the request, at
I. Legal Considerations
subpoena the PBD articles and corresponding notes.2 In response to such a subpoena,
President Bush could assert Executive Privilege and refuse to produce the documents,
2 See Intelligence Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306, §
605(a)(l), 116 Stat. 2383 (2002).
including those from the Clinton Administration. If the Commission sought to enforce
the subpoena in federal court,3 the legal considerations would be similar to those we
outlined in our December 30,2003 memo concerning a potential subpoena for NSC
memoranda to the President. As in that context, there is a risk that a court would
reflexively quash the Commission's subpoena, given language in some opinions exalting
as nearly absolute the President's right to withhold secret national security information.4
However, the Commission's mandate and hybrid structure - with both Legislative and
The potential factors that a court could consider in deciding whether to enforce a
subpoena are similar to those discussed in our prior memo, with the following possible
variations.
First, unlike the NSC memoranda, which were written by close Presidential
advisers, the PDB articles are written by staff at the CIA, an independent executive
branch agency outside the White House. This distinction raises a threshold question
extend to the PDBs. In In re Sealed Case, the D.C. Circuit cautioned that "[n]ot every
person who plays a role in the development of presidential advice, no matter how remote
and removed from the President, can qualify for the privilege. In particular, the privilege
should not extend to staff outside the White House in executive branch agencies."5 In
that case, however, the Court was concerned that the privilege would extend to
conversations between and among "a large swath of the executive branch." The Court
stated that only communications in the White House were "close enough to the President
the D.C. Circuit indicated in another case, the "operational proximity" to the President
Here, though, the issue does not relate to conversations among officials outside
the White House. The CIA staffers are briefing the President directly. A court is
therefore likely to find that they satisfy a "proximity" threshold. Communications to the
President need not come from Cabinet members or White House aides to reveal the
That said, the CIA briefers do not have a policy-making or advisory function.
They merely gather and report facts. To be sure, as noted in our prior memorandum, it is
often difficult to separate fact from policy. But that assessment related to reports from an
5
121 F.3d at 752.
6 Id.
Association of American Physicians and Surgeons, Inc. v. Clinton (AAPS), 997 F.2d
898, 910 (D.C. Cir. 1993).
adviser in a policy-making job. This is not the case with the CIA briefers. Thus, the
rationale for the Presidential communications privilege, to preserve the President's access
to candid advice, does not extend comfortably to the communications at issue here.
Indeed, as a practical matter, it is unclear whether disclosure of the PDBs would have any
A court might take a somewhat different tack, and find that disclosure of PDBs
"nature and substance of the issues before the President."9 But revealing the nature and
substance of the issues before the President would not necessarily impede the flow of
candid advice to him, so long as the disclosure does not encompass that advice.10
confidentiality from President Clinton could influence a court in assessing the President's
memoranda that could affect the waiver analysis. First, in the context of the NSC
memoranda to Clinton, we noted that President Clinton's waiver would dispel any
potential chilling effect of disclosing the documents. Insofar as the PDBs do not reflect
advice, they may receive less protection in the first place. But an argument predicated on
dispelling the chill on candid advice to the President may have less legal force. Second,
unlike White House aides, the CIA briefers do not necessarily change with the
records.
Also unlike the NSC memoranda, many of the PDB articles reveal uncorroborated
"raw" intelligence, as well as CIA sources. In reaction to the Commission's request for
PDB articles and prior to the current agreement, President Bush explained that PDB
writers must "feel comfortable that the documents will never be politicized and/or
unnecessarily exposed for public purview."1' A court might well be concerned about this
point. But the Commissioners and their staff have essentially the same classified
clearances as the individuals in the White House who have access to the PDBs. That
ought to moot, or at least ameliorate, any concern that the PDBs will be unnecessarily
exposed to the public, hi addition, the Commission's authorizing statute, which provides
that the Commission may only subpoena information with bipartisan support, and the
11 See The White House, Press Conference by President Bush (Oct. 28,2003),
available at http://www.whitehouse.gov/news/releases/2003/! 0/20031028-2.html.
quasi-Executive status of the Commission, undercut the notion that the documents will be
"politicized."
One could argue that a subpoena for the notes of the Commission representatives
would infringe less on Presidential prerogatives than a subpoena for the PDBs, because
the notes are not themselves Presidential documents. But the better analysis, in our view,
focuses not on prerogatives but functionality. On that analysis, the issue is whether
disclosure of the notes would be less likely to interfere with Presidential decision-making
than disclosure of the PDBs.12 Without having seen the notes, we cannot answer this
question with any certainty. But insofar as the PDBs reflect protected Presidential
communications, and insofar as the notes reflect the substance of the PDBs, there might
be little difference in any chilling effect. On the other hand, if the notes do reflect less
substance than the PDBs themselves, if they are more focused and less wide-ranging than
the original documents, then arguably there could be a difference. Resolution of this
issue could well require in camera review of materials, with a particularized, document-
by-document analysis.
Even if the Commission convinced a court that disclosure of the notes would be
less likely to interfere with Presidential decision-making than disclosure of the PDBs, the
court might nonetheless hesitate to afford the notes less protection. The notes are
arguably a product of the White House's efforts to accommodate the needs of the
Commission.13 A court might well be concerned that ordering production of the notes,
10
In re Sealed Case, 121 F.3d at 751 (the "ultimate" question concerning the scope of
the Privilege is whether restriction would "impede the President's ability to perform his
constitutional duty").
13 Cf. United States v. AT&T, 567 F.2d 121,127 (D.C. Cir. 1977) (suggesting that, even
when a claim of executive privilege in response to a congressional request for
Footnote continued on next page
7
where the PDBs themselves would have been immune from subpoena, could discourage
the White House from making similar accommodations in the future. The Commission
might dispel or lessen such concerns if it could show that the White House breached the
Finally, the White House might argue that the agreement affording the
Commission access to PDBs undermines the Commission's claim that it needs the PDBs
or the notes.14 An important element of a showing of need is that the information sought
is not available from other sources.15 According to the President's Press Secretary, the
White House believes that the agreement provides the information the Commission
requested.16 The Commission could respond to this argument by explaining that the
White House's refusal to transfer the 40 PDB articles to the core group effectively denies
Executive Director have reviewed the articles, the full Commission cannot receive even a
summary of the articles or use the information in its report. And it is, after all, the full
Commission that must ultimately make findings and report to Congress and the President.
The Commission might well have the same argument the White House could
make regarding the accommodation process. That is, the Commission could contend that
materials could discourage future accommodations by the Commission and other entities.
The procedural issues with respect to enforcement of a subpoena for the PDB
articles or for the corresponding notes are essentially as set forth in our prior memos. As
noted in our earlier memorandum, the White House could run out the clock on the
The accommodation process here may cloud the issue sufficiently that the White
House might not pay as high a political price in resisting a subpoena as it would with
The Office of Legal Counsel, in advising the White House, might be concerned
about setting a precedent that these kinds of materials are not absolutely protected from
subpoena. But a number of aspects of this case - the origin of the reports at a staff level
in the CIA rather than the White House, the absence of policy-making input, the factual
nature of the documents, and the unique structure of the Commission - might lead OLC
subpoena than the other potential subpoenas discussed in our earlier memoranda.
10
x
ARNOLD & PORTER ' '' "
December 31,2003
You have asked whether a court would likely enforce a subpoena issued by the
National Commission on Terrorist Attacks Upon the United States seeking memoranda to
President Bush and to former President Clinton from high-ranking members of the
National Security Council ("NSC"), regarding terrorist threats to the United States. The
memoranda may reflect advice to the President, reports of factual developments, or both.
Clinton from Samuel Berger, then-National Security Advisor to the President, but
each proposed memoranda to Berger with a cover memo. Berger then forwarded the
attached proposed memoranda to the President, typically without revision. The White
House has produced the cover memos to Berger, but has withheld the proposed
memoranda because they went to the President. The subpoena would also encompass
other memoranda to President Clinton, as well as memoranda to President Bush, from the
NSC.
The Commission has authority to subpoena these materials from the Bush and
Clinton Administrations (including the proposed reports that Clarke drafted). In response
to such a subpoena, President Bush could assert Executive Privilege and refuse to
produce the documents. Should the Commission seek to enforce its subpoena in federal
suggesting that the President's right to withhold sensitive information regarding foreign
policy and national security is nearly absolute. There is thus a risk that a court would
making in these areas. On the other hand, the statements in the cases suggesting a
categorical rule are largely dicta, and the situation here is distinguishable. Among other
things, the Commission is fact-finding for and reporting to both the Legislative and
Executive Branches of government. If the Commission, then, can persuade the court to
undertake a more thoughtful balancing of its interests against those of the President, it
would be more likely to prevail. Under such a balancing test, the Commission would
need to demonstrate that the information sought is critical to its mission. And the
the subpoena would improve substantially if Clinton waived his interest in confidentiality
vis-a-vis the Commission. Such a waiver could also put political pressure on President
Bush to produce NSC memoranda he received, although it may not affect the legal bases
-2-
The procedures for enforcing the subpoena are essentially the same as outlined in
our previous memo. There remains a risk, if the issue is litigated, that the Commission
might not be able to obtain the materials before its charter expires.
I. Legal Standards
The Commission has a hybrid structure. The statute creating the Commission
designates it as an entity within the Legislative Branch.1 However, the President appoints
The Commission's statutory mandate is to investigate the facts relating to, and the
causes of, the attacks of September 11, 2001, and to report its findings and
recommendations to both the President and Congress.3 The President, in signing the
statute creating the Commission, underscored how important these functions were for the
Executive Branch: "This Commission will help me and future Presidents to understand
the methods of America's enemies and the nature of the threats we face."4
information directly from any executive department, agency or office, which must
provide the information to the extent authorized by law.5 The statute also authorizes the
1 Intelligence Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306, § 601,
116Stat.2383(2002).
2 Id. § 603(a)(l).
3 Id. §§ 602, 604.
4 The White House, Office of the Press Secretary, Remarks by the President at Signing
of the Intelligence Authorization Act (Nov. 27, 2002), available at
http://usinfo.state.gov/topical/pol/terror/02112702.htm.
5 Pub. L. No. 107-306, § 605(c)(l) ("Each department, bureau, agency, board,
commission, office, independent establishment, or instrumentality shall, to the extent
authorized by law, furnish such information, suggestions, estimates, and statistics directly
to the Commission, upon request made by the chairman, the chairman of any
-3-
r
Commission to issue subpoenas requiring testimony and production of documents.6 The
Commission, however, may issue such subpoenas only with the concurrence of the Chair
and Vice Chair, or by a majority vote of at least six Commissioners. Because the statute
specifies that the Chair and Vice Chair must be from different political parties, and that
not more than five of the Commissioners may be from the same political party, the
procedural prerequisites for issuing a subpoena ensure bipartisan support.8 The statute
further provides that a federal district court may enforce subpoenas issued by the
Commission.9
Under these provisions, the Commission has the power to subpoena the NSC
memoranda to President Bush and former President Clinton. If the White House
withheld the documents as privileged, the Commission could move to enforce the
subpoena in U.S. District Court.10 This memorandum assesses the likelihood that the
threshold issue is whether President Bush could properly assert Executive Privilege over
-4-
Under the Presidential Records Act, a President, before leaving office, may
restrict access to certain records for up to 12 years.11 The former President may also
10
waive the restriction on disclosure of such records.
after his predecessor's term. The Order directs the Archivist in that circumstance not to
grant access to "any such privileged records" until "the incumbent President advises the
Archivist that the former President and the incumbent President agree to authorize access
When the President issued this Order, some criticized it as inconsistent with the
Presidential Records Act. The Act appears to contemplate that Reformer President will
make decisions regarding the availability of his records. The Act does not explicitly
former President. But the statute does state that nothing in it "shall be construed to
President has authority under the Constitution to assert Executive Privilege with respect
-5-
The Court of Appeals for the District of Columbia Circuit has held that
Presidential privilege "does not disappear merely because the president who made or
received the communication dies, resigns, or has completed his term."15 Moreover, the
Supreme Court has recognized that "the incumbent President is vitally concerned with
and in the best position to assess the present and future needs of the Executive Branch,
would chill the advice of current Presidential advisers. Therefore, a court would likely
find that President Bush retains authority to assert Executive Privilege as to documents
materials that the Commission has requested. Whether President Bush could assert
determined that disclosure of a predecessor's records would chill the candid advice of
current advisers, then he would likely have constitutional authority to assert Executive
Privilege, whatever the previous President's views. The Privilege flows from the sitting
President Clinton's views would likely weigh significantly in the balancing test discussed
below.
-6-
C. Analysis of Potential Executive Privilege Claim
If the Commission sued to enforce a subpoena for the NSC memoranda, the
President would most likely defend on the basis of what the D.C. Circuit has labeled the
the principal and generally the most robust category of Executive Privilege, deriving
from the President's powers and responsibilities under Article II.18 The purpose of the
privilege is to allow Presidential aides, without fear of public disclosure, to provide the
President their candid advice so that he can perform his constitutional duties.19
communications privilege extends to Dick Clarke's NSC memoranda from the Clinton
Administration. After all, Clarke's proposed memoranda to President Clinton were sent
from Clarke to Berger for review and revision, and not from Clarke to the President. One
could argue that Berger's decision to send them to the President without revision should
not retroactively confer some greater protection on what was sent to Berger. On the other
hand, to the extent that the proposed memoranda reflected advice Clarke believed the
President should receive, they arguably reflected his intended counsel for the President.
And since Berger forwarded them, they also may have reflected Berger's advice.
-7-
The case law does not necessitate untangling this issue. The Court of Appeals for
the D.C. Circuit has ruled that the privilege includes communications among the
President's chief advisers, even if they did not share the communications with the
fjf\. In the court's words, the privilege covers "communications authored or
solicited and received by those members of an immediate White House adviser's staff
who have broad and significant responsibility for investigating and formulating the
advice to be given the President on the particular matter to which the communications
relate." Although this ruling was in the context of a grand jury subpoena for records,
the privilege would likely extend at least as far in the context of a congressional
subpoena. Indeed, the Office of Legal Counsel in the Justice Department ("OLC") has
opined that Executive Privilege has "at least as much force when it is Congress, instead
of a court, that is seeking information" because the "possibility that deliberations will be
disclosed to Congress is, if anything, more likely to chill internal debate among executive
branch advisers."22 Given the hybrid structure of the Commission, this reasoning as to
Congress may not apply fully here. But it is nevertheless likely that a court would find
that the privilege encompasses the proposed NSC memoranda, whether or not the
-8-
Another initial question would be whether the privilege covers NSC memoranda
- or portions of them - that merely report facts. As noted, some of the documents are
privilege applies to documents in their entirety, including factual material, and covers
^>3
explained, "often will be revelatory of the President's deliberations - as, for example,
when the President decides a particular course of action, but asks his advisers to submit
follow-up reports so that he can monitor whether this course of action is likely to be
successful."24
If the President invoked Executive Privilege for the NSC documents, a court thus
would likely find that the privilege applied. The court would then likely balance the
general, the party seeking the materials may overcome the privilege by demonstrating a
sufficient need for disclosure. As the D.C. Circuit stated in Senate Select Committee on
In re Sealed Case, 121 F.3d at 745 ("Even though the presidential privilege is based
on the need to preserve the President's access to candid advice, none of the cases suggest
that it encompasses only the deliberative or advice portions of documents.").
24 Id. at 745-46.
-9-
information protected by Executive Privilege, a congressional committee had to show
that the information sought was "demonstrably critical to the responsible fulfillment of
In the areas of foreign relations and national security, however, the breadth of
Executive Branch prerogatives and the limited legislative role diminish Congress's ability
that Executive Privilege is nearly absolute on such issues, hi United States v. Reynolds,
for example, the Supreme Court held that the United States military could classify an
investigative report of a military crash as a "military secret" without having the document
reviewed in camera by a lower court in a civil suit.26 The Court reasoned there that
"even the most compelling necessity cannot overcome the claim of privilege if the court
is ultimately satisfied that military secrets are at stake."27 Likewise, in United States v.
Nixon, where the Court considered whether Presidential communications were protected
from a grand jury subpoena, the Supreme Court contrasted the President's assertion of
claim based on his responsibility for national security.28 The Court stated that "[The
President] does not place his claim of privilege on the ground they are military or
diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown
the utmost deference to Presidential responsibilities."29 The Court of Appeals for the
-10-
"particularized claims of privilege for military and state secrets would be close to
absolute."30
None of these cases, however, squarely held that Presidential records relating to
national security and foreign policy were absolutely immune from congressional
subpoena. Reynolds was a civil case. The statements in Nixon and In re Sealed Case
were dicta. In a 1977 case that addressed the question directly, United States v. AT&T,
the Court of Appeals for the D.C. Circuit was less deferential, although the documents at
issue did not involve Presidential communications. In that case, the Justice Department
subpoena demanded letters from the FBI to the telephone company pertaining to foreign
intelligence surveillance. The Justice Department asserted that the "Constitution confers
on the executive absolute discretion in the area of national security."32 The D.C. Circuit
rejected the argument, noting that "the Constitution is largely silent on the question of
allocation of powers associated with foreign affairs and national security."33 The court
explained that the "degree to which the executive may exercise its discretion in
implementing [its responsibility for national security] is unclear when it conflicts with an
29 Id.
121 F.3d 729, 743 n.12. The case law is somewhat unclear whether the "military
and states secrets" privilege is a separate Presidential privilege arising from the
separation of powers, or simply a signpost denoting the high end in the range of
Presidential interests. Analytically, the latter is more defensible, except perhaps for
conversations between the President and foreign officials, where the usual rationales for
Executive Privilege do not apply. Moreover, neither the Court of Appeals nor the
Supreme Court made clear whether "military and state secrets" encompass all
confidential Presidential communications on foreign policy and national security.
31
551 F.2d 384 (D.C. Cir. 1976), appeal after remand, 567 F.2d 121 (D.C. Cir. 1977).
32 567 F.2d at 128.
-11-
equally legitimate assertion of authority by Congress to conduct investigations relevant to
its legislative functions." To resolve the issue, the court directed an accommodation
Some OLC opinions also suggest that the Executive Branch has near absolute
then-Assistant Attorney General William Rehnquist stated in 1969, "the President has the
national security if in his judgment disclosure would be incompatible with the public
interest."35 And, in 1982, Assistant Attorney General Theodore Olson wrote that the
Although Attorney General Reno reiterated that position in 1996 with respect to
"diplomatic secrets" - there, "diplomatic communications with the leaders of Haiti" - she
also applied what appears to be a more flexible balancing test in concluding that the
Weighing the respective interests of the President and Congress, the Attorney General
33 Id.
34 Id.
Memorandum from John R. Stevenson, Legal Adviser, Department of State, and
William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The
President's Executive Privilege to Withhold Foreign Policy and National Security
Information, at 7 (Dec. 8,1969).
36 Memorandum from Theodore B. Olson, Assistant Attorney General, Office of Legal
Counsel, Re: Confidentiality of the Attorney General's Communications in Counseling
the President, at 2 (Aug. 2,1982).
-12-
identified the conduct of foreign affairs as "an exclusive prerogative of the executive
branch," and noted that Congress had no authority to legislate in the area. She found
further that while "Congress's oversight authority [over the Executive Branch] in this
context must be viewed as unresolved as a matter of law," such oversight was a less
substantial interest than "a specific need" by Congress for purposes of legislation. The
information sought thus was not, in the Attorney General's view, "demonstrably critical
alternative ground for her opinion, this analysis suggests that Executive Privilege may not
be absolute in the area of foreign relations. That is, if Congress could demonstrate a
could well rule reflexively that communications among the President's top advisers
regarding foreign policy and national security are absolutely immune from subpoena. As
noted, although there is no definitive ruling on this point, the case law provides some
ammunition for such a position. Indeed, applying a flat rule based on the passages
quoted above is in some ways the easiest path - requiring the least analysis - a court
could take. Nevertheless, the distinctions between the Commission and a congressional
committee, and between the interests at stake in this case and those at stake in prior
-13-
enforce the subpoena, would need to convince the court to adopt a more thoughtful
analysis that considers the unique role and structure of the Commission, and in that light,
Congress passed and the President signed. The statute creating the Commission directs
the Commission to investigate the facts relating to, and the causes of, the attacks on
the activities of intelligence agencies.39 President Bush endorsed this role in a written
statement issued when he signed the legislation.40 The President also emphasized the far-
reaching scope of the investigation in remarks he made during the signing ceremony:
"[The] investigation should carefully examine all the evidence and follow all the fact[s],
wherever they lead. We must uncover every detail and learn every lesson from
These statements could assist in showing that the NSC memoranda are
Moreover, those functions are themselves critically important to the Nation.42 hi signing
-14-
the bill into law, the President underscored the importance of the Commission's task.43
In addition, the President stated that the Commission's investigation was necessary to
fulfill fact-finding needs not merely of Congress, but also of the Executive Branch.44
Given those pronouncements, whether the Executive Branch has an exclusive role in
foreign policy and national security may be partly if not entirely moot, and the interests
sought is not available from other sources.45 The White House could well argue that the
Commission already has received sufficient information to fulfill its mission, and that it
therefore does not have to intrude on Presidential prerogatives. The White House could
also contend that the Commission does not need documents, because it can interview
NSC staff from the Clinton and Bush Administrations. Moreover, the Administration
could argue that the knowledge and actions of the individuals closer to the front lines are
more important to the Commission's task than the highly distilled information that
ultimately reaches the President. In response, the Commission might stress its statutory
43 The White House, Office of the Press Secretary, Remarks by the President at Signing
of the Intelligence Authorization Act (Nov. 27,2002), available at
http://usinfo.state.gov/topical/pol/terror/02112702.htm ("As a nation, we're working
every day to build a future that is peaceful and secure. To reach this goal we must learn
all about the past that we can. So with this commission we have formed today, America
will learn more about the evil that was done to us. And the understanding we will gain
will serve us for years to come.").
44 Id. ("The commission will help me and future Presidents to understand the methods
of America's enemies and the nature of the threats we face.... This commission is not
only important for this administration, this commission will be important for future
administrations, until the world is secure from the evildoers that hate what we stand
for.").
45 See, e.g., In re Sealed Case, 121 F.3d at 755 ("Efforts should first be made to
determine whether sufficient evidence can be obtained elsewhere, and the subpoena's
proponent should be prepared to detail these efforts and explain why the evidence
covered by the Presidential privilege is still needed.").
-15-
obligation to recommend corrective measures, and thus its need to review the information
and advice the President received regarding terrorist threats, as well as the policy
question witnesses effectively about NSC decisions, and about the subjects covered in the
NSC memoranda, without knowing the contents of those documents. Moreover, the
witnesses could need to see the memoranda to refresh their recollections. Depending on
the approach of the judge who hears the case, the Commission may well have to establish
Even if the President does not have an absolute right to withhold confidential
records relating to foreign policy and national security, a court would likely pay
substantial deference to his invocation of privilege, and would accord the interests of the
Presidency great weight. Moreover, a court might well view the strength of the
memoranda to President Clinton would likely receive greater protection if sent to the
President than if circulated only among aides.47 This would likely be true even if Clarke
did not intend that the documents reach the President without revision, because they
nonetheless reflect the advice Clarke - as an aide arguably within the inner circle of
advisers on this issue - believed the President should receive. Moreover, in forwarding
-16-
the documents to President Clinton, Berger was effectively conveying his own advice, at
On the other hand, there are good arguments why the President's interests have
less force in this case than in a dispute with a congressional committee. First, as noted,
the Commission is gathering facts and reporting not merely to Congress, but also to the
Executive Branch.
Second, the White House cannot point to instances in which the Commission has
disclosed classified information. Indeed, the Commissioners and Commission staff are
cleared for access to classified information and are bound under penalty of law not to
disclose it. This should weaken any argument against disclosure of the NSC memoranda
Third, the principal argument against production of the NSC memoranda would
likely focus on the potential chilling effect on candid advice by the President's advisers.
The risk of chill caused by production to the Commission, however, would be less than in
a typical congressional investigation. OLC, for instance, has identified the frequency of
congressional requests for Executive Branch information as a factor that increases the
potential chill.48 OLC also has stated that when Congress is investigating, "it is by is own
account often in an adversarial position to the executive branch."49 Finally, OLC has
suggested that the "sweeping" nature of congressional investigations also chills candid
-17-
duration, Presidential support, and procedural safeguards.51 The hybrid nature of the
Commission, with both legislative and executive attributes, as well as its institutional
mortality and its enforced bipartisanship - particularly with regard to subpoenas - should
With respect to NSC documents from the Clinton Administration, any risk of chill
advisers know during their tenure that the decision regarding confidentiality is the
President's. President Clinton could have waived privilege during his term, just as he can
waive it now (subject to the incumbent President's rights). In any event, the issue of chill
for the former aides is moot - they are no longer advising a sitting President. As to the
impact on advisers to the incumbent President, there is no reason for them to assume that
As noted, although the President can assert Executive Privilege for purely factual
reports, the expositive nature of the documents could also figure in the balancing process.
The rationale for Executive Privilege, to encourage the President's advisers to provide
candid advice, does not extend comfortably to purely factual recitations. That said, few
documents are "purely factual." The selection and organization of facts in a report can
potential accusations regarding "spin" or artifice. Moreover, facts are often embedded in
advice, and advice is often embedded in facts. Unraveling the factual and advisory
Cf. United States v. Nixon, 418 U.S. at 710 (possibility that Presidential
communication would be disclosed in criminal prosecution would not temper candor of
adviser).
-18-
aspects of NSC memoranda thus might be difficult.52 If feasible at all, it would likely
make it hard to offer blanket predictions regarding the outcome of the litigation.
3. Conclusion
against those of the White House, there is a moderate chance of prevailing in an effort to
enforce a subpoena. The prospects for success are markedly better regarding the NSC
the predilections of the court, the results might vary from document to document.
are essentially as set forth in our prior memorandum. It is possible in this litigation that
As noted in our prior memorandum, the decision to assert Executive Privilege has
both legal and political components. The political concerns are similar to those discussed
52 Cf. In re Sealed Case, 121 F.3d at 737 (the deliberative process privilege does not
cover "purely factual [material], unless the material is so inextricably intertwined with
the deliberative sections of documents that its disclosure would inevitably reveal the
government's deliberations"); Ryan v. Department of Justice, 617 F.2d 781, 790 (1980)
("factual segments [of advisory documents] are protected from disclosure [under FOIA]
as not being purely factual if the manner of selecting or presenting those facts would
reveal the deliberate process, or if the facts are 'inextricably intertwined' with the policy-
making process").
-19-
First, the President is likely to pay a lower political price for withholding national
security documents than he would pay for refusing to make his aides available to testify.
The President would be better able to characterize his position as one focused solely on
Second, the political price for the President would be higher if President Clinton
Administration. It could appear that the President is impeding the Commission's inquiry
as the clock winds down. Moreover, if the President refuses to produce documents from
his Administration even though President Clinton waives privilege as to his materials, it
could appear that President Bush has something to hide that President Clinton does not.
Third, the Administration, in particular OLC, has less cause for concern about a
precedent in this case. Breaching the dam on compelled testimony of White House
officials would likely have greater long-term impact than production of specific records.
As opposed to a ruling up or down on the categorical assertion that White House officials
can never be compelled to testify, the decision here would likely be more particularized,
focusing on the individual documents and the role of the Commission. The ruling in this
case thus might be more easily distinguishable in future cases. Nonetheless, the White
House and OLC would still have to consider the risk of a definitive judicial ruling that the
President does not have an absolute right to withhold communications directly to him
relating to the most confidential and sensitive issues of national security. Depending on
how such a ruling were framed, it could open the door to production of- or encourage
-20-
Therefore, the White House may well engage in an accommodation process with
regard to these materials, making some or all of them available in some manner. As with
potential subpoenas for testimony, the Commission therefore should proceed slowly, step
-21-
y
ARNOLD & PORTER
December 7, 2003
You have asked whether the National Commission on Terrorist Attacks Upon the
United States can subpoena White House officials to testify before the Commission. You
have also asked whether the subpoenas can require testimony under oath, and in a public
setting.
The Commission has statutory authority to issue and to seek enforcement of such
the Constitution bars enforcement of Congressional subpoenas for the testimony of White
House officials. Although current Presidential aides, and even the President himself,
have testified before Congress regarding their official duties, so far as we can tell the
The Department of Justice has repeatedly opined that the separation of powers
precludes Congress from compelling the President's closest assistants to testify. That
For example, the White House Counsel, Chuck Ruff, and Assistant Counsels, Lanny
Breuer and Cheryl Mills, among others, testified before the House Committee on
Government Reform, but they appeared voluntarily. John Poindexter, Robert McFarlane,
and Oliver North were compelled to testify before the Senate Committee investigating the
Iran-Contra matter. But that testimony occurred when those individuals no longer
worked at the National Security Council.
position is debatable, though it is stronger for some officials - particularly advisers on
foreign policy and national security - than for others. Ultimately, in our view, a court is
more likely to balance the interests of the Commission and the White House than to bar
any and all compelled testimony by Presidential aides. The hybrid structure of the
Commission would likely weigh in that balance, and may provide a basis to distinguish
the Justice Department opinions. But, given that authorizing statute places the
Commission in the Legislative Branch, this structure will not obviate any separation of
powers inquiry.
testimony and obtain an order enforcing them before the Commission sunsets. Both the
prospects for success and the timeliness of judicial action could vary significantly
depending on the judge to whom the case is randomly assigned. Even if the Commission
obtained an order requiring testimony, there is a significant risk that the White House
Presidential aides, the White House would likely consider both the challenge of justifying
its position to the public and Congress, and the possibility of an adverse precedent. The
Office of Legal Counsel in the Justice Department ("OLC") would likely recognize that
the position the Department has espoused would be at risk in any litigation. OLC thus
might well advise the White House to reach some accommodation if possible - perhaps
voluntary testimony by the Presidential aides - though the White House may not take that
advice. The White House would also likely consider the political ramifications of
running out the clock on the Commission, which might dimmish the likelihood of that
scenario.
I. Legal Standards
ensure that subpoenas will issue only with bipartisan support from Commission members
- with the concurrence of both the Chair and the Vice-Chair, or by a majority vote of at
least six Commissioners.3 The statute further provides that a Federal District Court may
enforce subpoenas issued by the Commission, and can coerce compliance through the
contempt power.4 The Commission also has authority to make a criminal referral to the
House officials to testify, and to seek enforcement of such subpoenas in U.S. District
Court.
In evaluating whether the Commission, as an entity that has both executive and
legislative aspects, can subpoena Presidential aides, we first consider the limits on the
2 Intelligence Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306, §
605(a)(l), 116 Stat. 2383 (2002).
3 Id. § 605(a)(2)(A).
4 Id. § 605(a)(2)(B)(i).
5 Id. § 605(a)(2)(B)(ii). Use of this sanction is highly unlikely if the Justice
Department has agreed that the refusal is a valid exercise of Presidential authority. See
Memorandum from Theodore B. Olson, Assistant Attorney General, Office of Legal
Footnote continued on next page
subpoena power of Congress, and then analyze whether and how those limits constrain
the Commission.
In 1999, Attorney General Reno formally advised the President that it "is the
longstanding position of the executive branch that 'the President and his immediate
committee.'"6 That opinion, which related to a Congressional effort to compel the White
House Counsel to testify regarding decisions on clemency, echoed a 1996 OLC opinion
Given the absence of judicial precedent, OLC's support for this view was self-
William Rehnquist staking out an unqualified position: "The President and his
immediate advisers - that is, those who customarily meet with the President on a regular
and frequent basis - should be deemed absolutely immune from testimonial compulsion
by a congressional committee. They not only may not be examined with respect to their
committee."8
Theodore Olson picked up this mantle when he headed the Office of Legal
Counsel in 1982. His articulation of the position was, in a word, peremptory. He stated:
appear before him. As a matter of separation of powers, Congress may not compel him
to appear before it. The President's close advisors are an extension of the President."9
Reno provided more explanation in 1999 as to why Presidential immunity from testimony
should extend to advisers, but she did not elaborate on the justification for the immunity
itself:
Memorandum for the Honorable John D. Erlichman, Assistant to the President for
Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office of
Legal Counsel, Re: Power of Congressional Committee to Compel Appearance or
Testimony of 'White House Staff,' at 7 (Feb. 5,1971).
9 Memorandum for Edward C. Schmultz, Deputy Attorney General, from Theodore B.
Olson, Assistant Attorney General, Office of Legal Counsel, at 2 (Jul. 29,1982).
constitutionally assigned executive functions. Because
such a result would, in my view, violate the constitutionally
mandated separation of powers principles, it would seem to
follow that compelling one of the President's immediate
advisers to testify on a matter of executive decision-making
would also raise serious constitutional problems, no matter
what the assertion of congressional need.10
Close analysis of these opinions suggests that the absolutist position of the Justice
First, the Justice Department opinions do not treat the issue of Presidential
origins of the asserted immunity are the same as for Executive Privilege - separation of
powers - but the Justice Department opinions analyze it as a distinct branch of the same
tree. By adopting this approach, OLC avoided the nuanced balancing of interests, the
Such balancing would not likely have yielded blanket protection against testifying.
Second, the Justice Department opinions appear to rest on the notion that
Congress simply lacks power to compel the President to testify. However, nothing in the
General Rehnquist cast doubt on the conclusory assertion that the President cannot be
compelled to testify. In Clinton v. Jones, the Supreme Court held that the President could
convincing reason why Congress would enjoy lesser rights than a civil litigant. To be
sure, an important distinction is that the civil suit hi Clinton v. Jones did not pertain to the
President's official duties. Indeed, the President is absolutely immune from civil lawsuits
predicated on his official acts.14 But to suggest that the power to compel the President to
testify ends when the subject approaches his official duties accords the private litigant
greater authority than Congress. That is because Congress can most appropriately inquire
into those areas where it can legislate, and as regards the President, those will generally
pertain to his official duties. The point here is not - and the Commission need not argue
- that Congress could subpoena the President to testify. Rather, the point is that the
apparent erosion of the protections covering the President himself strengthens the
10
U.S. Const., Art. I, § 6, cl. 1 ("Senators and Representatives shall... in all cases,
except Treason, Felony and Breach of the Peace, be privileged from Arrest during their
Attendance at the Session of their respective Houses, and in going to and returning from
the same; and for any speech or debate in either House, they shall not be questioned in
any place."). That Article I has such a provision while Article II does not arguably
undercuts the tit-for-tat reasoning in the Olson opinion.
13
520 U.S. 681 (1997).
14
See Nixon v. Fitzgerald, 457 U.S. 731 (1982).
Third, the OLC opinions do not explicitly rest on a concern that allowing
Congress to subpoena Presidential aides would impede the Executive Branch in carrying
out its responsibilities. Nonetheless, this concern is likely to be the principal basis of the
argument the White House would make against any subpoenas. If so, it, too, is weaker
now than at the genesis of the OLC precedents. Again, Clinton v. Jones is instructive.
The President there argued that requiring him to submit to a deposition would
unconstitutionally interfere with his constitutional duties.15 The Court rejected this
argument, stating that "interactions between the Judicial Branch and the Executive, even
functions."16 The Court further found that "[although scheduling problems may arise,
there is no reason to assume that the District Courts will be either unable to accommodate
That the case involved alleged acts prior to the President's ascendancy to office is
irrelevant to the issue whether the suit, including compelled testimony, might interfere
with the President's duties. The case supports an a fortiori argument here: if the
Republic can survive the President testifying as a deponent in private civil litigation, it
should be able to weather his aides' testimony before the Commission on matters
15
520 U.S. at 702.
16
Id.
17
Id. at 709 (quoting United States v. Nixon, 418 U.S. 683, 710-11 (1974)).
Fourth, decisions which post-date the Rehnquist opinion, and which the later
Justice Department opinions do not address, undermine the argument that Presidential
aides are extensions of the President, alter egos entitled to the full measure of immunity
that the President might enjoy. To begin with, although the Supreme Court held in Nixon
v. Fitzgerald that the President himself was absolutely immune from civil lawsuits
predicated on his official acts,18 the Court in the companion case, Harlow v. Fitzgerald,
Presidential aides argued in Harlow that, like Congressional aides protected under the
Speech and Debate Clause in Gravel v. United States, 408 U.S. 606 (1972), Presidential
aides had "derivative immunity" because the President could not perform his job without
their assistance.20 The Court rejected this argument. It reasoned that Cabinet officials
have only qualified immunity, and that there is no basis to afford White House aides
greater protection.21 That said, the Court in Harlow left open the possibility that, "For
aides entrusted with discretionary authority in such sensitive areas as national security or
foreign policy, absolute immunity might well be justified to protect the unhesitating
performance of functions vital to the national interest."22 Still, the Court noted, this
rationale did not "warrant blanket recognition of absolute immunity for all Presidential
indictment because such a prosecution would interfere with the discharge of his
constitutional duties.24 One of the issues the opinion dealt with was the position the
Solicitor General took regarding the prosecution of Vice President Spiro Agnew in 1973.
The Solicitor General stated then that immunity from indictment did not extend to the
Vice President because, "Although the office of the Vice Presidency is of course a high
one, it is not indispensable to the orderly operation of government."25 Unless the White
House can make the case that Presidential aides are more critical to the orderly operation
of government than the Vice President, it follows that immunity from indictment likewise
does not extend to sitting Presidential aides. And if the President's need for their advice
does not insulate these officials from indictment, it likewise should not make them
Ultimately, we believe that a court probably would not adopt an absolute rule
banning subpoenas to White House aides, but rather would undertake a balancing test.
As suggested earlier, with regard to Executive Privilege, which derives from the
separation of powers, the Court in Nixon v. United States employed a balancing test to
subpoena.26 As the Court framed the analysis, "[W]e must weigh the importance of the
10
the President's responsibilities against the inroads of such a privilege on the fair
administration of criminal justice."27 Although case law outside the area of Executive
Privilege is not as well developed, it clearly looks in the same direction. The Supreme
Court in Nixon v. Fitzgerald, for example, addressing Presidential immunity from civil
suits, held that "the separation-of-powers doctrine does not bar every exercise of
jurisdiction over the President of the United States. But our cases have also established
that a Court, before exercising jurisdiction, must balance the constitutional weight of the
interest to be served against the dangers of the intrusion on the authority and functions of
which the Supreme Court considered the Executive Branch's power to control the
disposition of Presidential materials, the Court said that "the proper inquiry focuses on
the extent to which [a challenged act] prevents the Executive Branch from accomplishing
its constitutionally assigned functions."29 There the Court determined that the statute was
invalid only if its impact on the President's constitutional functions could not be
of Congress."30
How a court would strike a balance in this case could depend on a number of
factors:
11
a. Intrusion on the authority and functions of the Executive
Branch.
A court would likely be concerned about setting a precedent that would expose
performance of their official duties. The hybrid nature of the Commission should
ameliorate this concern. Although designated in the statute as a legislative entity, the
Commission has a Chair appointed by the President. And absent a majority vote of at
the Chair has to agree to any subpoena. The Commission thus could argue to a court that
Beyond this institutional concern, the court will likely consider the nature and
demands of the subpoenaed official's job, the timing of the testimony, and the extent to
which the exercise will interfere with the ability of the official to assist the President.
The President, in signing the legislation creating the Commission, emphasized the
* **
[A]s a people, Americans are always looking forward. As a
nation, we're working every day to build a future that is
12
peaceful and secure. To reach this goal we must learn all
about the past that we can. So with this commission we
have formed today, America will learn more about the evil
that was done to us. And the understanding we will gain
will serve us for years to come.
interests, does not necessarily end the inquiry. The Commission could well have to show
in each case why it needs the witness, and why the information sought is not available by
other means.32
Courts pay special deference to the President in the area of foreign policy and
national security. Indeed, some cases suggest that Executive Privilege may be nearly
absolute on such issues, because of the criticality of the subject, the breadth of Executive
Branch prerogatives, and the concomitant limitations on the legislative role.33 OLC has
31 The White House, Office of the Press Secretary, Remarks by the President at Signing
of the Intelligence Authorization Act (Nov. 27,2002), available at
http://usinfo.state.gov/topical/pol/terror/02112702.htm.
32 See In re Sealed Case, 121 F.3d 729, 755 (D.C. Cir. 1997) ("Efforts should first be
made to determine whether sufficient evidence can be obtained elsewhere, and the
subpoena's proponent should be prepared to detail these efforts and explain why the
evidence covered by the presidential privilege is still needed"); see also Senate Select
Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir.
1974) (en bane) (to justify a demand for information protected by executive privilege, a
congressional committee is required to show that the information sought is
"demonstrably critical to the responsible fulfillment of the Committee's functions").
33 See United States v. Nixon, 418 U.S. at 710-11 ("[C]ourts have traditionally shown
the utmost deference to Presidential responsibilities" for foreign policy and military
affairs, and claims of privilege in this area would receive a higher degree of deference
than invocations of "a President's generalized interest in confidentiality"); In re Sealed
Case, 121 F.3d at 736 ("Courts ruled early that the executive had a right to withhold
documents that might reveal military or state secrets"); see also Dep 't of Navy v. Egan,
Footnote continued on next page
13
opined that the limited ability of Congress to legislate on foreign policy is an important
In this case, however, the President signed a statute creating the Commission. In
so doing, he stated, as the statute provides, that the Commission is engaged in fact-
finding for both the Legislative and the Executive Branches of government. In other
words, even if Congress has a limited role in foreign affairs, the same is not necessarily
true of this Commission, which is a hybrid entity with both executive and legislative
functions.
Nonetheless, given the language in some of the Supreme Court cases like Harlow
and United States v. Nixon, it is entirely possible that a District Court would reflexively
hold that the Commission cannot compel the testimony of officials engaged in foreign
policy and national security. That would be the easiest, most mechanical way to rule
against the Commission. The Commission's goal, should it seek to enforce a subpoena,
In analyzing whether Presidential aides can be compelled to testify, OLC has not
argued that having to appear before Congress could have a chilling effect on their candid
14
advice to the President. Skirting that argument makes sense given the Department's
absolutist approach. An analysis of "chill" would most aptly focus - or at least has
event of testifying itself, because even if the adviser testifies, he or she could still refuse
to disclose what was said to the President. Nonetheless, one could envision situations
where the prospect of testimony could possibly deter an adviser from offering the
controversial issue could trigger a Congressional subpoena, the aide might avoid the
issue, even though the substance of particular conversations with the President was
protected. Given this hypothetical chill, and given that the case law on Presidential
privileges - even if not directly applicable - focuses on chilling effects, a court might
The Commission thus might consider, in structuring its subpoenas, how they
no obvious reason why Executive Branch officials should not have to swear to tell the
whether or not they are placed under oath. See 18 U.S.C. § 1001. Given that obligation,
the Commission arguably does not have a strong interest in insisting that testimony
15
On the other hand, the White House case against requiring sworn testimony is not
compelling. It is not an attractive argument that imposing a legal obligation to tell the
truth creates an unwarranted chilling effect. Indeed, the arguments that the Commission
cannot require sworn testimony drift largely toward symbolism - that requiring an oath
increases the intimidating effect of the proceedings, or signifies that particular officials
cannot otherwise be trusted to be truthful. A court, where all witnesses - including the
President - must testify under oath or affirmation, may find these arguments too ethereal.
members, arguably could increase the potential chill for Executive Branch officials. A
court could find that the public nature of the testimony is not essential to the
Commission's investigatory goals. It may be important for other ends, such as informing
and reassuring the citizenry, but those are not explicitly listed among the purposes set
forth in the statute. The statute does contemplate that the Commission will "examine and
report upon the facts and causes relating to the terrorist attacks of September 11,2001,"36
and "make a full and complete accounting of the circumstances surrounding the attacks"
and U.S. preparedness for them.37 But other than a third purpose directing the
352
Commission to report to the President and Congress, the statute does not indicate to
whom the reports are to be made. In particular, it never states that the reports are for
public consumption. On the other hand, the legislative history arguably suggests an
36 Id. § 602(1).
37 Id. § 602(4).
16
intent that the Commission's findings and recommendations be made (at least in part) to
earlier version of the legislation states that the Commission would address "the public's
transparency, to the extent feasible, enhance the legitimacy of its investigation and
conclusions, and improve the prospects of its recommendations being adopted. But the
question then would arise whether those goals have the same weight as the President's
interests. Different judges might strike the balance differently, but before some of them,
requiring that the testimony be public might adversely affect the Commission's prospects
of success.
The Commission could decrease any potential chilling effect, and modulate any
length, scope, and nature of the testimony sought. This could affect any balance a court
might strike. It could also improve the Commission's position on whether it has
17
3. Conclusion
A court might well accord those views substantial deference. The Commission, however,
could marshal a number of good arguments why a court should not follow those opinions.
In particular, judicial decisions after the early OLC opinions (but before the later ones)
hybrid, created by legislation that the President signed, embarked on a mission that the
President has embraced as serving the interest of Executive Branch, and charged with the
There is, therefore, a good prospect that a court would adopt a balancing test to
determine whether White House officials must testify. The results of that balancing may
vary from witness to witness, and is unlikely to bar the testimony of all Presidential aides.
But the White House will be on the strongest ground as to officials with responsibility for
foreign policy and national security. Those officials, however, are the ones most likely to
Ultimately, the result in the District Court may depend on which judge decides the
18
II. Procedural Issues.
The Commission has authority to issue a subpoena with the concurrence of the
Chair and the Vice-Chair, or by a majority vote of at least six commissioners.41 Any such
compel the presence of current Presidential advisers. We cannot say across the board
what would constitute reasonable notice other than to note that the shorter the period, the
greater the risk that a court would find the notice unreasonable.
Once the Commission has issued a subpoena, the recipient can move to quash or
simply refuse to comply. In the latter event, the Commission has statutory authority to
move to enforce the subpoena in the District Court where the recipient resides or works.42
19
The issue in all likelihood would be litigated in the U.S. District Court for the District of
Columbia.
Under the D.C. Court's local rules, the motion to quash or to enforce the
judge. Some judges would more likely be receptive to the Commission's arguments than
others would be. At this stage, however, assessments of individual judges would be
largely impressionistic.
If the recipient moved to quash the subpoena, the Commission would normally
have 11 days to respond.43 The Commission could respond more quickly, and might well
want to have its brief ready when it issues the subpoena. The recipient would have five
days to file a reply brief,44 though the Commission could move to shorten that time. If
the Commission moved to enforce the subpoena, it could also seek to expedite the
Although the Commission could ask the District Court to decide the issue quickly,
the District Court has considerable discretion in determining how long to take. Given the
importance of the issues, most judges would not likely decide the issue from the bench.
Nor, given the impending sunset of the Commission, would most judges ponder the issue
Under the circumstances here, the District Court's order would probably be
appealable without the need for any official to stand in contempt.45 Normally, the losing
20
party would have 60 days to file a notice of appeal.46 The Commission could file more
quickly if it lost. If it won, it could ask that any stay of the court's order be conditioned
Under Rule 27(f) of the D.C. Circuit local rules, the Commission could move for
review, and how long to take, is within the discretion of the court, hi cases involving
urgent and important public issues, the D.C. Circuit has granted motions for expedited
review in the past, and, in at least one case, it issued a decision in a matter of days. 7 On
the other hand, absent an expedited schedule, the average time from filing of a case to
question whether the Commission would have authority to petition for certiorari without
the consent of the Solicitor General. Under 28 U.S.C. § 518(a) and its implementing
regulation, the Solicitor General must authorize the filing of cases in the Supreme Court
"in which the United States is interested."48 The Supreme Court in United States v.
Providence Journal Company49 held that this provision deprived a federal special
21
General. The Court reasoned that the prosecutor was seeking to further the government's
interest in vindicating the authority of the Judicial Branch, and therefore the United States
The Commission could argue that the case is distinguishable because the appeal
there was by a special prosecutor, who was an employee, or at least an agent, of the
Legislative Branch. In Providence Journal, however, the Court rejected the prosecutor's
argument that § 518(a) refers solely to those cases in which the interests of the Executive
Branch are at issue. The Court stated that such an interpretation improperly "presumes
that there is more than one 'United States' that may appear before this Court."51 And, the
Court said, "Congress is familiar enough with the language of separation of powers that
we shall not assume it intended, without saying so, to exclude the Judicial Branch when it
The Commission could also argue that the statute was not intended to preclude the
Legislative Branch from vindicating its rights in a dispute with the Executive Branch, or,
to put it another way, that the Solicitor General has a conflict of interest. Nonetheless, it
is possible that a court could extend the rationale of Providence Journal to the Legislative
Branch, and to the Commission. It is also possible that a court could find § 518(a)
22
controlling because the Commission's statute does not explicitly grant the Commission
Solicitor General, it could seek direct Supreme Court review of the District Court's order,
bypassing the D.C. Circuit.54 The White House could do the same if it lost in the District
Court. Even if the Supreme Court granted review and expedited consideration, that
process could be lengthy. Granted, the Supreme Court in Bush v. Gore accepted review,
heard argument and decided the case in four days.55 But that case, as the Court
emphasized at the time, was unique. In United States v. Nixon, the entire process, though
expedited, took three months from issuance of the subpoenas to decision by the Supreme
Court.
If the Commission sunsets in May, it is thus entirely possible that the White
House could run out the clock through the appellate process, or even block the
make both a political and a legal judgment. The White House often considers the impact
of the decision on its political standing. It must confront concerns about appearing to
53 Pub. L. No. 107-306, § 605(a)(2)(B); see Providence Journal, 485 U.S. at 705 n.9
(Congress may supersede § 518(a) by statute); see also Federal Election Comm 'n v. NRA
Political Victory Fund, 513 U.S. at 96-98 (the Federal Election Commission does not
have statutory authority independently to file a petition for certiorari in the Supreme
Court).
54 28 U.S.C. §§ 1254(1), 2101(e).
55 531 U.S. 98(2000).
23
"stonewall," to obstruct investigators, or to suggest implicitly that the information at issue
is adverse. The White House also must consider the dangers of setting a precedent that
In this case, if the Commission were to issue subpoenas, the White House could
pay a significant political price were it to litigate the issue, and an ever greater price if it
pursued an appeal and sought to run out the clock. It would also risk setting an adverse
legal precedent. OLC can assess as well as anyone the precariousness of its absolutist
OLC may well counsel the White House to avoid litigating the issue if at all possible, and
to reach an accommodation that avoids the risk of a broad adverse ruling, the first ever on
the subject. Although the White House may not follow any such advice, the most likely
The Commission thus may want to play out the issue further, step by step. First,
the Commission might suggest to the White House that subpoenas are under
consideration. Then, it might give the White House notice of its decision to issue
subpoenas. Then, the Commission might issue the subpoenas with sufficient lead time to
allow for negotiation. Finally, and only if necessary, would the Commission litigate.
24
12/03/03 18:15 FAX 202 942 5999 A & P FAX CTR DC #9 0002
202.942.5855
202.942.5999 Fax
301.318,5622 Cell
555 Twelfth Street, NW
Washington, DC 20004-1205
December 3, 2003
Our legal services will be provided on a pro bono basis, and Arnold & Porter will
not charge the Commission for attorney time in connection with its representation.
However, the Commission agrees to reimburse Arnold &. Porter for the firm's out-of-
pocket expenses over $2,500.00, such as duplicating, telephone charges, postage, travel,
filing fees, deposition costs, and the like. We will not bill for the cost of computer
research. We will, of course, consult the Commission before incurring any extraordinary
expenses.
In certain instances it may be possible for Arnold &. Porter to obtain payment of
attorneys fees and expenses from the adverse party in a pro bono matter. Our agreement
to provide legal services to the Commission without charge does not constitute a waiver
of any such rights, and we may, if appropriate, seek full payment of all fees and expenses
from the opposing party. Of course, if we were successful in such a recovery, we would
return to the Commission any recoveries of expenses already reimbursed by you.
Arnold & Porter is a large firm, with offices in four United States cities and in
foreign countries. Our practice is broadly based and covers many areas of both domestic
Washington, DC New York Los Angeles Century City Denver London Northern Virginia
18:15 FAX 202 942 5999 A & P FAX CTR DC #9 [g]003
and international law. The very size of the firm has created situations where work for
one client in a narrow aiea has barred other lawyers from pursuing major matters,
unrelated to the first matter.
In order to avoid the potential for this kind of restriction on our practice, we
request an advance agreement that Arnold & Porter will not be disqualified from
representing interests adverse to the Commission in matters that are not substantially
related to the matters on which Arnold &. Porter has been retained by the Commission.
This waiver is not intended to, and would not, permit Arnold 8c Porter to represent
interests directly adverse to the Commission in matters that are substantially related to the
work done for the Commission. Nor is it intended that there be, and there would not be,
any waiver of your right not to have confidences or secrets that you transmit to Arnold &
Porter disclosed to any third party or used against you. We would, of course, hold such
information that you provide to us in strict confidence.
Accordingly, we request the Commission's agreement that it will not raise any
objection to Arnold & Porter's representation of other clients on the basis of the
Commission's retention of Arnold & Porter with respect to matters on which our advice
has been or will be sought, and the Commission consents to and waives any objection to
Arnold & Porter's representation of other clients, unless the other representation involved
Arnold & Porter in representing an interest directly adverse to that of the Commission on
matters that are substantially related to those on which Arnold &. Porter represents the
Commission.
This will also confirm that we represent the Commission itself, and not the
individual members.
If you have any questions about the terms of the engagement, as described above,
I hope you will feel free to raise them with me. If the terms of the engagement are
acceptable to you, I would appreciate it if you would sign and return to me the enclosed
copy of this letter, evidencing the Commission's agreement to these terms.
18:15 FAX 202 942 5999 A & P FAX CTR DC #9 i]004
Once again, let me say how pleased we are that you have engaged Arnold &
Porter in this matter.
Sincerely yours,
Robert N. Werner