Read the 1986 Justice Department Report for Ed Meese “Separation of Powers: Legislative-Executive Relations”

A few days ago, I wrote a piece analyzing Attorney General Bill Barr’s Federalist Society speech on his maximalist view of executive power, which I, argued, had more to do with Ronald Reagan’s 1980s than George Washington’s 1780s. I included a cautionary quotation from an internal 1986 Justice Department manifesto on separation of powers issues commissioned by Barr’s predecessor, Ed Meese, which I had unearthed in the National Archives when I was a Boston Globe reporter and doing research for my first book, Takeover.

Several people asked me if I could share that report. I told them that while it’s possible I have a photocopy buried somewhere, I wasn’t sure how to easily put my hands on it. But in a coincidence, I needed to go up to the National Archives in College Park Wednesday to pickup some documents I had FOIA’d out on an unrelated matter. So while I was up there, I also took the time to ask the archivists to pull that box out of Meese’s files for me again, and I scanned the report. I am posting it here (and adding it to the short list of rare primary documents from Takeover or my other book, Power Wars) in case it may be of interest or use to specialists.

In cracking open the box — from Meese’s correspondence files with his Office of Legal Policy — I noted a marking saying that it had been reviewed and opened for public viewing in November 2006. I.e., I had been the first person to request access to that box. I wondered if anyone else had touched those pages in the intervening 13 years.

Upon re-reading the report, I also decided that when my younger self discussed it in Takeover, I had been imprecise in two respects:

  1. LENGTH: My book calls it an eighty page memo. The main report and first two appendices, which contain original material with analytical value (e.g., a detailed summary of separation-of-powers fights during the Reagan years), comprise 81 pages. But there were additional appendices of diminishing interest (e.g., photocopies of several Federalist Papers). The PDF I scanned and posted (click here for downloadable version on DocumentCloud) is the whole thing.
  2. SCOPE OF ITS DISCUSSION OF THE UNITARY EXECUTIVE THEORY: By using this memo as a narrative jumping off point to explicate the Reaganites’ executive power theories, my book may create the impression that this particular report lays out a detailed defense of one of them, the Unitary Executive. While the report dove deep into their related theory of how the Framers wanted the separation of powers to work, its engagement with Unitary Executive issues is briefer because, it says, the status of independent agencies was “already under thorough consideration” elsewhere within the department.

Congress is Litigating at a Historically Unprecedented Rate, as the Aberrational Trump Era Accelerates a Polarization-Driven Trend

It was once rare for Congress to go to court. But the number of cases House Democrats are now litigating is historically unprecedented — a Trump-era aberration that is accelerating a larger shift in governance whose seeds predate Trump. w/ @npfandos

The House v. Trump: Stymied Lawmakers Increasingly Battle in the Courts

It’s routine, of course, for the executive branch, via the Justice Department, to make arguments to the judicial branch. But it was once all but unheard of for the legislative branch. Congress had to pass a special law for a Senate committee to seek the Watergate tapes, for ex.

Then, in 2008, Congress broke new ground w/ a lawsuit to enforce subpoena re US attorney firings. It filed another in 2012, re Fast and Furious. Now, a deluge: 5 cases already (Mazars, Deutschebank, Mueller report, Trump taxes, McGahn) & more coming. (Twist: Trump filed 1st 2.)

Similarly, it was once weird for Congress to go into court to defend a law that DOJ abandoned. It happened in the 70s w/ legislative vetos, but that was a special topic: presidents saw them as unconstitutional intrusions on exec power (SCt agreed in 1983). This is changing too.

In 2011, the Obama administration abandoned the Defense of Marriage Act, not a separation-of-powers law but a matter of general governance. The House stepped in to defend it against constitutional challenges, until the SCt struck it down in 2013.

This year, that has happened twice already: the DOJ has abandoned the Affordable Care Act and a law against female genital mutilation, and the House has sought to intervene and provide lawyers to go to court to keep defending both laws against challenges.

Another category: the legitimacy of executive branch spending decisions. In 2014, the House GOP filed a lawsuit challenging Obamacare subsidies to insurers. This year, the House filed another, challenging Trump’s invocation of emergency powers to spend DOD money on a border wall.

The House is also increasingly filing amicus (friend of the court) briefs, and sometimes making arguments, in other cases to which it is not a party. 4 this year so far: the Census case, other border wall and ACA cases, & a lawsuit seeking voting rights for District of Columbia.

And of course Trump sued the House Ways and Means Committee to prevent it from asking the state of New York to provide his state tax returns. That’s another example where part of the spike in the numbers are is driven by the present abnormal moment.

But the surge in numbers is making clearer in hindsight that things were already starting to change in recent years before Trump, kind of like how Bush's unprecedented signing statement #s, and Obama's unprecedented leak case #s, had seeds in the actions of predecessors.

This deeper trend is likely a symptom of partisan polarization. As political negotiation and compromise becomes harder, litigation replaces it. Thus even if the #s drop some under Trump’s successor, it seems likely that this new practice will continue as part of our governance.

One thing that will be interesting to watch is how trans-branch partisan teams fuel it. In 2011, when House GOP decided to intervene and defend DOMA, it paid a couple million dollars to Paul Clement, a former Bush administration solicitor general, and his firm for the legal work.

Obama legal team veterans are similarly helping House Dems this year — but they & their firms/NGO are working for free. They include 2 former SGs, Don Verrilli & Neal Katyal, a former OLC head, Virginia Seitz, & two former senior nat-sec lawyers, Mary McCord & Josh Geltzer.

Originally tweeted by Charlie Savage (@charlie_savage) on August 13, 2019.

The Gotcha Takes on Barr’s Census Question Comments Are Off, But Something Else Is Dubious

I think some gotcha takes are missing the mark re Barr’s comments about the “hysterical” media insinuating that the Trump admin was thinking about adding the citizenship question to the Census by executive fiat. There is something here worth scrutinizing, but it’s different. /1

People are citing Barr saying Monday, after being asked about an executive order, that “it does provide a pathway for getting the question on the Census” — but then saying Thursday that there was no truth to reports that the admin was weighing adding the q by executive fiat. /2

The 1st problem with this is that on Monday, his fuller quote shows that the antecedent to “it” was a soon-to-be-revealed “approach we’re taking,” which is vague and doesn’t necessarily mean an executive order. /3

The 2nd problem is that on Thursday, his fuller quote shows that Barr's point was that the admin was never thinking about putting the question on the Census *without going through judicial review,* i.e. just defying the injunction. He wasn't saying no exec action, period. /4

So the take that these 2 statements amount to Barr saying they were thinking about using an executive action and then brazenly criticizing the media for saying they might use an executive action, is doubly off. But there is something else questionable here. /5

Barr explained on Thursday that there is simply not enough time left to litigate a new rationale for putting the question on the Census. But that was just as true back on Monday when he nevertheless claimed there was a pathway for doing that. /6

Therefore, if what Barr said on Thursday is true, what he said on Monday was false at the time he said it: there was never a pathway. One potential explanation is on Monday, he was saying what Trump wanted to hear and what was politically expedient–not being an honest broker. /7

Originally tweeted by Charlie Savage (@charlie_savage) on July 12, 2019.

A Victory Against Secret Law: Appeals Court De-Censors Its Ruling in Doe v. Mattis (the U.S. citizen enemy combatant case)

Today, in a victory against secret law, the Court of Appeals for the District of Columbia has unsealed and re-issued a significant ruling it issued in May 2018 in the case of Doe v. Mattis, regarding an American citizen who was held without trial in American military custody for over a year as a suspected Islamic State member. This result is due to the vision and hard work of the Media Freedom and Information Access Clinic at Yale Law School, which had the idea and asked me to be the plaintiff. Congratulations to the clinic’s David Schulz, Charles Crain, Paulina Perlin, and Sarah Lamsifer.

The ruling in question was that the U.S. government could not forcibly transfer an American to another country over his objections without first proving that he was indeed an enemy combatant being legitimately detained under the laws of war, which he contested. The government considered it a secret which countries it was negotiating with to take the man, and so portions of the ruling that discussed those countries and legal issues raised by them were blacked out on pages 36, 37, and 44 in the majority opinion by Judge Sri Srinivasen, and pages 1, 4, 5, 8, 17-19, and 31-33 in the dissenting opinion by Judge Karen LeCraft Henderson, making them difficult to parse.

In fact those countries were Iraq, where he was being held at an American base, and Saudi Arabia, where he was a dual citizen despite having been born in the United States. The New York Times had already reported those facts — and eventually other ones that still remain officially secret, like that his real name is Abdulrahman Ahmad Alsheikh and that he was ultimately freed in Bahrain — based on sources. But making these passages in the ruling visible is an important accomplishment for making this legal precedent understandable, both for scholars to study and for potential litigants if a similar dispute arises again in the future.

“I think the most important takeaway is that the public now knows that the government was arguing that dual citizens possessed lesser Fifth Amendment rights against transfer than sole-U.S. citizens,” said Brett Max Kaufman, a lawyer for the American Civil Liberties Union, which represented Doe/Alsheikh. “That may have been implied by what was public before, but now those arguments are out in the open (and the specific holding can be relied upon in future cases).”

Kaufman added that while the identity of Saudi was something of an open secret, there was real value in official confirmation, as the complaint “compellingly argued” and as is evidenced by the revelation of the government’s specific legal theory.

I would also like to applaud the Justice Department for not trying to fight the unsealing, other than by making a small request that we did not object to: keeping the name of a State Department official who filed an affidavit blacked out.

Here is the order and unredacted ruling:

The NYT Is Surveying 2020 Presidential Primary Candidates About Their Views on Executive Power

On Friday, I emailed numerous presidential primary campaigns an invitation to participate in a New York Times survey project on executive power. Our intent is to publish the full answers of each participating candidate, alongside notations indicating which others were unwilling or unable to answer the questions. We gave the campaigns a one-month deadline of July 19. You can read the questionnaire below.

The idea is to ask would-be presidents to talk about their understanding of the scope and limits of the powers they would wield if elected – before voters decide whom to entrust with the presidency. One section also asks the candidates to reflect on how they would handle issues raised by what may turn out to be a reform era, in which Congress may pass bills seeking to curb executive power in response to Donald Trump’s serial violations of previous norms of presidential self-restraint, and the next president will have to decide whether to sign them into law even though that would mean constraining his or her own authority.

This is the fourth iteration of this project. It traces back to late 2007, when I was a Boston Globe reporter and had just written my first book, Takeover, about the Bush-Cheney administration’s efforts to expand executive power. Some of the most important controversies of that period had made clear that in the post-9/11 era, the constitutional views of a president and his or her legal team can be crucial – and yet nobody was asking the candidates about them in televised debates. After listening to me complain about that one too many times, my wife Luiza suggested I ask such questions myself, so I did so, leveraging the Globe’s window of outsized influence ahead of the New Hampshire primary. After moving to The New York Times, I repeated the project in late 2011 and in early 2016, each time updating the survey to cull some questions and add others addressing more recent disputes.

We got responses from nearly all the significant 2008 and 2012 primary candidates, including each of the eventual party nominees — then-Senators Barack Obama and John McCain (as well as then-Senators Joe Biden and Hillary Clinton), and then-Governor Mitt Romney and most of his 2012 GOP rivals. Four years ago, the results revealed a rare commonality between the two nominees, Hillary Clinton and Donald Trump: neither wanted to talk about what limits on their powers they would respect if elected. My hope is that the dynamics of the 2020 cycle will mean that serious primary candidates will see engaging with these types of questions as valuable and important to American democracy — and that voters will judge them accordingly.

Remembering Robert Pear

My colleague Robert Pear died last night following a stroke. I would like to share a few memories and anecdotes about what it was like to work near and with him for the past 11 years. /1

Robert Pear, Authoritative Times Reporter on Health Care, Dies at 69

Robert had a very unusual personality. Despite being invariably gentle and genial, he was extremely private and incapable of the sort of chit chat and sharing details about one’s life that human bonds are normally forged from. Nevertheless, he made connections in his own way. /2

When I first came to the NYT from the Boston Globe in May 2008, the first story I pitched – about a Bush White House directive to get regulations done by a certain deadline so they’d be harder for the next administration to overturn – turned out to overlap with Robert’s turf. /3

I was afraid I’d gotten off on the wrong foot, because I’d heard the bureau could be viciously turf-protective. Happily, that image was obsolete, as I started to realize when he turned out to be gracious and just happy someone else cared about a nerdy regs legal policy issue. /4

So we ended up joining forces: I shared my first NYT staff-story byline with Robert. /5

From September 2015, when we moved back into the bureau after a renovation, until last August, when I moved desks, my cubicle adjoined Robert’s and we shared a bookcase. I often got in earlier than most reporters due to my family’s schedule, but Robert almost always beat me. /6

And he was almost always there when I went home, even if I worked late. So for a long time my work days typically began with “Good morning Robert” and ended with “Good night Robert.” To which he would smile broadly and nod vigorously, and very quietly return the greeting. /7

But Robert was “sphinxlike,” as his obituary aptly says. Despite sitting next to him for years, I learned only from his obituary that in college he had been on the staff of Harvard Advocate, the undergraduate literary magazine, a quarter century before I did the same. /8

(This place is lousy with alumni of the Harvard Crimson or some equivalent student newspaper at other colleges, as you might expect, so having instead built our extracurricular lives around the lit mag is unusual. With anyone else we would have discussed and bonded over it.) /9

Robert also wasn’t one for nerding out in conversation about issues either. But every few weeks he would hand me a printout of an article he thought would interest me about Gitmo or executive power, or that cited my work. These gifts were his way of forging a connection. /10

Here's a story: Before the renovation, the DC bureau was filled with government reports & binders of official documents dating back years, lining the top of every filing cabinet – a vast govdocs library spilling everywhere. Robert had assembled it over the decades. /11

(We all had to clear out all our stuff for the renovation. I wonder what he did with all that stuff. Was his house overflowing with it? None of us ever saw the inside of it.) /12

Anyway, at first I didn’t understand this all belonged to Robert, and thought it was just a jumble of discarded bureau stuff. I found among it an original copy of the congressional Iran-Contra report which I was interested in because of Cheney’s minority views on exec power. /13

So not understanding that it wasn’t generally available stuff, I moved it to my own shelf and forgot about it. Years later, after the renovation when we were seated next to each other, it ended up on my shelves of the bookcase we shared. /14

At some point it occurred to me that this actually came from his collection, even though he never mentioned it. I was embarrassed and moved it to one of his shelves and apologized. He just smiled – seeming, if anything, just pleased that I had appreciated a doc he preserved. /15

Our reporting did not often overlap but sometimes I would ask him a question when his health care policy expertise overlapped with my exec power stuff e.g. Obamacare enforcement issues, and he would respond with a lengthy, lucid email — essentially an article just for me. /16

Last August, I moved across the bureau to join the cluster of other colleagues who also write regularly about national-security and law-enforcement beats, so we could talk about stuff we were working on together without having to walk across the building. /17

On my last day sitting in my old cubicle next to him, Robert surprised me with a “going away” present – a bundle of large and fancy cookies from Teaism, tied up with a bow – and told me I’d be missed. /18

Our last co-bylined story was in February, over a three-day weekend, when we teamed up to write about a group of states suing Trump over his border wall “emergency” plan. /19

While I didn’t see him as much after moving desks, I made it a point to say hello to him at our Monday morning all-bureau staff meetings. On the morning of his stroke, he walked up to me at that meeting and we greeted each other and stood quietly side by side. /20

After he was taken to the hospital, I was among many NYT reporters and editors who went over to the ICU in shifts to sit with him. He was not in good shape and it was not clear how aware he was, but he seemed to squeeze my hand gently when I greeted him.

Goodbye, Robert. /21

Originally tweeted by Charlie Savage (@charlie_savage) on May 8, 2019.

Privacy and Civil Liberties Oversight Board releases PPD-28 surveillance report in response to my FOIA

In response to a Freedom of Information Act request I submitted in the spring of 2017, the Privacy and Civil Liberties Oversight Board (PCLOB) has declassified and made public a partly redacted version of its December 2016 (ish) Top Secret report on the implementation of President Obama’s PPD-28, the presidential policy directive he issued in January 2014 to impose various surveillance reforms in response to the Snowden disclosures.

I reported on the insider history and substantive content of this directive in Power Wars’ Chapter 11 (Institutionalized: Surveillance 2009-2017), Section 12 (Obama Under Pressure – Freedom Act II). Among other things, I parsed how many of the reforms, especially viz limits on handling foreigners’ data, codified existing practices.

The PCLOB report confirms that assessment. It is riddled with sentences about how the NSA, FBI, and CIA were largely already doing what Obama instructed them to do in such respects. One exception is that the CIA apparently applied its limits (like a requirement to delete raw data after five years) to mixed-source collections — those that contained information gathered both through electronic surveillance and human-source intelligence — even though the directive on its face applied only to signals intelligence, not humint. The two Republican PCLOB board members at the time, Rachel Brand and Elisebeth Collins, didn’t like that.

Here is the report:

“Vice” – A Cheney Biopic [updated 4/7/19]

Check out Christian Bale as Dick Cheney in this trailer for “Vice” that dropped today. This movie looks fantastic.

Chapters two and three of my first book, Takeover, were essentially an intellectual history of Cheney – why he had the views on executive power that he did, based on his previous life experiences – leading up to his ascent to power as the most influential vice president ever in Bush’s first term. You can read chapter two for free on this website, which gets you to the end of the Ford administration, when he was the youngest White House chief of staff in American history during the fallout from the Vietnam War, Watergate, and the Church Committee investigation.

 

UPDATE APRIL 7, 2019: I finally got around to watching this movie last night and had a mixed reaction. It was well acted and stylistically excellent in that Adam McKay way, but various inaccuracies bothered me.

It was probably inevitable that any movie would get the Unitary Executive Theory wrong (it used that phrase as a synecdoche for Bush-Cheney executive- power legal theories). But there were also omissions and distortions — particularly about Cheney’s intellectual history and beliefs (it portrays him as having none) — that I thought were unjustified by the sacrifices necessary to dramatize/simplify real-life events into a two-hour movie: they just made Cheney’s story less interesting than the reality had been, without any such silver-lining virtues.

(A friend had warned me I would have that reaction, which is why I didn’t rush to see it in the theater but waited for it to be available by streaming.)

After watching the movie, I was reading this article in Esquire,  “Vice Tries to Examine Dick Cheney’s Heart, but Conveniently Overlooks His Brain,” by Zeeshan Aleem, and thinking to myself yeah exactly, and then clicked on a link the writer was citing to make one such point, to discover …yep, I guess I would think that, wouldn’t I.

Issue to watch: What are the limits on “collective self-defense” of partner forces?

Senator Tim Kaine, Democrat of Virginia, has sent a letter to the Pentagon continuing a dialogue about the executive branch’s expansive view of “collective self defense.” The letter contains an excerpt from a letter the military had sent him earlier this year, which is not public, in which it says that the US military has legal authority to defend partner forces with airstrikes even when their adversary is not a congressionally authorized wartime enemy of the United States.

We basically knew that already from last year’s strikes against Assad forces in Syria who were menacing U.S.-backed rebels who are also fighting the Islamic State. But Kaine wants to know more about who decides who counts as a defensible partner force, and what limits there are. What he is getting at is the question of whether the executive branch is using this theory to essentially seize unilateral mutual-defense treaty making powers for itself.

It will be interesting to see what the Pentagon replies.

Kaine Presses Trump Adminis… by on Scribd

On Kavanaugh-Pickering and a bad-faith critique by David French (& the Trump White House Press Office)

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