The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, Douglas Letter argued Trump v. Mazars on behalf of the House of Representatives. I have previously criticized his advocacy in cases concerning the CFPB and the Affordable Care Act. His performance today was no better. Letter was unprepared for several questions, did not seem to catch the gist of other questions, and at a few points seemed to contradict himself. The House should really, really ask Don Verrilli to argue the Obamacare case in the fall. Letter has failed to prove his mettle on far too many occasions.
But I disagree with co-blogger Jon Adler on one crticism of Letter. Jon writes:
In today's oral argument in Trump v. Mazars, the attorney for the House of Representatives was asked (repeatedly) to identify a limit on Congress' subpoena power, and he came up empty. He was unable to identify any information about the President that Congress could not demand.
Mike Dorf offers a similar pointed criticism of Letter:
Arguing for the House of Representatives, Doug Letter had what we might call a "Drew Days in Lopez" moment that could sink his case. Letter contends that a congressional committee has subpoena power, subject only to particularized objections, so long as its request relates to a legitimate legislative purpose–a term drawn from the case law. Asked by Chief Justice Roberts to name a single example of a subpoena that could not satisfy that standard, Letter whiffed.
Both Jon and Mike referenced the infamous exchange from United States v. Lopez. Solicitor General Drew Days did not provide a limiting principle to the scope of Congress's commerce powers. Randy and I described the colloquy in An Introduction to Constitutional Law:
During oral arguments the Solicitor General was unable to articulate what limits existed on the scope of Congress's powers. Justice Ginsburg asked the Solicitor General, "What are the limits, then?" and "What would be a case that would fall outside" the scope of federal powers? After an uncomfortable pause, he replied, " — I don't have — ." Justice Scalia then interjected, "Don't give away anything here." There was audible laughter in the Court. The Solicitor General was unable to identify a limiting principle for the scope of congressional powers. His inability to answer the question proved fatal to the government's case.
You can listen to part of that exchange in our video:
Was Letter "unable" to answer the questions in Mazars? Or was he "unwilling" to provide a limiting principle? I lean towards the latter. It is very likely that his client, the House, refused to concede any additional limits on its own powers. If the Court wanted to impose such limits, so be it; but the House would not acquiesce. Here, the House may have not wanted to risk further cabining their subpoena authority for future cases that do not involve the President. After all, the House conceded that Article II and executive privilege provides some limits. But the questions from the Justices went further. Moreover, when pressed on a limiting principle, Letter had answers at the ready. The answers were largely non-responsive, but he didn't stumble like he did at other times. I think Letter's responses were deliberate.
Here, I see parallels to Don Verrilli's arguments in NFIB v. Sebelius. He was widely criticized for not being able to articulate a limiting principle. But I wrote in Unprecedented that this choice was quite deliberate.
Here are some excerpts from my seven-year-old-but-still-relevant book (Used copies are only $5!).
First, the Obama DOJ refused to articulate a limiting principle on federal power at the D.C. Circuit (pp. 151-152):
Like Silberman, Kavanaugh was also concerned about the limiting principle. "Another major concern I have . . . is in 220 years, with a whole lot of laws and a lot of crises, Congress has never once mandated a purchase." But even when Silberman asked Brinkmann again, "Give me an example of something that would be unconstitutional," she didn't answer the question. Brinkmann wasn't unprepared—she simply did not have the authority to answer that query. Brinkmann's evasiveness was a preview of what her new boss, Solicitor General Verrilli, would do at the Supreme Court. Her circuitous answers were not sloppy—rather, they were part of a concerted effort not to identify the limiting principle. The arguments at the D.C. Circuit were a walk- through—a moot court, if you will—for the Supreme Court….
Verrilli's strategy not to provide a limiting principle had proved successful. Silberman wrote, "We acknowledge some discomfort with the Government's failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce." But he was not discomforted enough to strike down the law. Instead, Silberman stressed that Congress should receive the benefi t of the doubt. "We are obliged— and this might well be our most important consideration—to presume that acts of Congress are constitutional." This strategy would prove decisive to Chief Justice Roberts. Judge Kavanaugh did not join Silberman's opinion.
And SG Verrilli planned to use the same strategy for the Supreme Court (pp. 161-162):
Verrilli's second big decision was to depart from the limiting principle that Katyal had advanced in the lower courts—but not for the expected reasons. The attorneys in the Solicitor General's office were "under no illusion from the outset that the Commerce Clause argument was not going to be challenging." Internally, the government conceded that there "wasn't anything quite like the individual mandate." Even they knew it was unprecedented. After "careful consideration," Verrilli thought Katyal's argument "ultimately was not going to be helpful as a limiting principle." The "rock- solid" limits that Katyal located in Lopez and Morrison "wouldn't seem robust enough [as] a limiting principle under these circumstances." More importantly, Katyal's position could not answer the hard hypotheticals—including, of course, the broccoli horrible example. Deeming the principles in Lopez and Morrison too "capacious," the Solicitor General's office came to the conclusion that those cases "were not going to be enough, and they needed to give a narrower answer."
Verrilli's answer at the Court was painful to listen to, but he stuck to his gameplan:
Chief Justice Roberts tried to pin down the solicitor general on a limiting principle. "But what I'm concerned about is, once we accept the principle that everybody is in this market, I don't see why Congress's power is limited. . . . Once you're in the interstate commerce and [Congress] can regulate it, pretty much all bets are off . . . . The question is, is there a limit to the authority that we're advocating here under the commerce power?" The justices were growing very frustrated by Verrilli's evasiveness, but remaining evasive was part of his plan.
Justice Alito gave the solicitor general a clear opportunity to state his limiting principle. "Could you express your limiting principle as succinctly as you possibly can? …
Verrilli's response was winding, circuitous, and unsatisfactory to nearly everyone in the Court. It was definitely not "succinct," but that was no accident. Alito had tossed Verrilli a softball a question that any first- year law student should have been able to knock out of the ballpark. But after realizing that the Court was not buying his leading Commerce Clause argument, Verrilli laid down a sacrifice bunt to advance his other arguments. The government's litigation strategy was to not provide what would have been an unsatisfactory limiting principle.
Leading advocates recognized that Verrilli was on to something.
Lisa Blatt, a veteran Supreme Court litigator, remarked at the time that "it may be that there was a strategic decision not to give a crisp and clear answer." Paul Smith, Verrilli's former partner at Jenner Block, told me, "I don't think anything happened accidentally in that process." It was not in the government's interest to state whether laws other than the mandate were constitutional. It was enough to distinguish the mandate from the broccoli horrible.
I compared the SG's strategy to Muhamamad Ali's rope-a-dope move:
Verrilli was prepared to rope-a-dope, like Muhammad Ali, taking punch after punch, so that he could avoid giving a limiting principle that would not limit enough. Although Verrilli swung and missed with his effort at providing a satisfactory limiting principle, he would land a knockout punch with his fallback argument that the mandate should be saved as a tax. Verrilli's response was based on his understanding that there was no satisfying answer to Alito's question. That was the trap—Alito posed a question that could not be answered. Any incomplete answer would give the Court a reason to strike down the law.
At the time, Verrilli was savaged in the press and by law professors–some things never change–but he stuck to his plan. And, it worked (p. 162)
After the case was decided, a government lawyer told me that this section in the joint opinion validated the decision not to continue with Katyal's argument. It did not persuade a single conservative justice, let alone result in five votes.
Even if Letter had answered questions from the Justices, he likely would not have gained a single vote; he would have only wounded his client. So why bother giving any answer?
Let's consider several exchanges from Mazars. First, Chief Justice Roberts asked for examples of subpoenas that would not be covered by the legislative authority.
CHIEF JUSTICE ROBERTS: Mr. Letter, the –let's talk about the standard you propose. The –the –the quotes in your -your brief is that concern is subject on which legislation could be had. Could you give me a plausible example of a subject that you think is beyond any legislation that Congress could write?
Letter discussed legislation concerning "bankruptcy proceedings." Roberts pushed further.
CHIEF JUSTICE ROBERTS: Well, that's what I'm suggesting, that your –your —your test is really not much of a test. It's not a limitation. And it doesn't seem in any way to take account of the fact they were talking about a coordinate branch of government, the executive branch. Do you have any alternative to that limitless test that would take account of –of the fact that you're dealing with a coordinate branch of government?
Letter quickly responded with a case he could not avoid, Nixon v. GSA:
Your Honor, it's –it's what this Court said in Nixon versus GSA and –and a number of other cases. Congress –there would be a limit if Congress is interfering with the President's ability to carry out his Article II functions. No such claim has been made here, nor obviously can it be made given
Letter would only concede limits imposed by the Constitution itself that the Court already discussed.
Next, Justice Alito pushed Letter to explain the contours of his theory:
JUSTICE ALITO: So, I mean, I –I don't want to cut you off, but I have very limited time. So your answer is that the protection against the use of a subpoena for harassment is simply the assessment whether the subpoena is conceivably –is relevant to some conceivable legislative purpose?
MR. LETTER: Correct. That's what the Court has said. But also again Clinton versus Jones and Nixon versus GSA, it –
Again, Letter cited Nixon v. GSA, as well as Clinton v. Jones, a case he would repeatedly return to. Alito did not think those precedents provided "much protection."
JUSTICE ALITO: Well, that's not much protection. In fact, that's no protection, isn't it?
MR. LETTER: It is protection, Your Honor, if what –what Congress is doing is interfering with the President's ability to do his job. These subpoenas are to private parties. The President does not need to do anything.
Alito later returned to the Chief's hypo:
JUSTICE ALITO: But you were not able to give the Chief Justice even one example of a subpoena that would be –that would not be pertinent to some conceivable legislative purpose, were you?
MR. LETTER: As –as I said, Your Honor, the –that –that's correct, because this Court itself has said Congress's power is –to legislate is extremely broad, especially when you take into account appropriations.
I don't think this statement was an unforced error. I think his client approved of him extolling the "extremely broad" power. If the Court wants to cut down the House's power, let the Court do it; but the House should not serve up its own authority on a platter.
Alito continued that Letter's limit would provide no protection at all.
JUSTICE ALITO: Well, so the end result is that there is no protection whatsoever in your view, and maybe this is –this is the correct answer, but, in your view, there is really no protection against the use of congressional subpoenas for the purpose of preventing the harassment of a president because the only requirement is that the subpoena be relevant to a conceivable legislative purpose, and you can't think of a single example of a subpoena that wouldn't meet that test?
MR. LETTER: No, Your Honor, because, remember, there may be constitutionally based privileges or things like executive privilege -you know, executive privilege –
Once again, Letter pivoted back to constitutional limit. He would not offer any voluntary, prudential limits. Alito (who was well past his three-minutes) pushed further:
JUSTICE ALITO: What are they? Would you name one?
MR. LETTER: Well, it seems to me executive privilege could enter in. State secrets privilege could enter in depending upon the specific circumstances, Your Honor.
Again, Letter stuck with constitutional limits.
Alito pressed further.
JUSTICE ALITO: Let me ask you one more thing if I –if I can and there's time.
There's always extra time for Justice Alito. The Chief is not fair with his distribution of time. He consistently lets Justice Alito run past his allotted times. He had nearly seven minutes in Little Sisters. But Roberts cuts off other Justices mid-sentence. I agree with Lyle Denniston: allowing the Chief to keep time "gives at least the impression that he is more than first among equals." I have come to sour on this entire enterprise.
JUSTICE ALITO: Are there any limits on the use –on using a president's records as a case study relating to the need for legislation?…
MR. LETTER: It –it certainly could be, Your Honor. So, here –that's a very good question. Here, remember, the Financial Services Committee is doing an extremely broad investigation of a financial services sector, and there's massive public reporting that President –that before he became President, President Trump's personal records and his businesses and his family have been heavily involved in those very activities. And we're investigating numerous other banks and individuals having nothing whatsoever to do with the President.
Later, Justice Gorsuch returned to the same theme.
JUSTICE GORSUCH: Good morning, Mr. Letter. Normally, we use law enforcement investigative tools like subpoenas to investigate known crimes, not to pursue individuals' defined crimes. That's a principle you're well familiar with from your time at the Department of Justice.
And I'm wondering what limiting principle you offer us here that can prevent that danger.
Gorusch then summarized three principles that Letter offered:
The first one was it has to be pertinent to a legislative purpose, but I think, as we've explored, that's very, very broad and --and maybe limitless, some would suggest on the other side at least. [Second] Constitutional privileges, if you're investigating someone in their private capacity, there are going to be few, maybe attorney-client privilege, things like that. And it can't be burdensome, I heard, was your third, but in an age where everything is online and can be handed over on a disk or a thumb drive, that --that --that much pretty much disappears too. So what --what --what is left to protect that important value that I know you share?
Letter had given those three limiting principles. And he would not give more.
MR. LETTER: I do share that, Your Honor. And, by the way, burden here, none of the subpoena recipients have claimed burden. Your Honor, I --I answer it this way because, again, it has to be --I'm going to stick with the pertinent to legislative purpose because, for example, Congress did a massive investigation of what happened at 9/11. Obviously, a lot of that had -
JUSTICE GORSUCH: Well, let me --let me stop --let me stop you there if that's where you're going to go. And I thought that might be, Mr. Letter, and I apologize for interrupting.
Gorsuch recognized that Letter would not budge.
Later, Justice Kavanaugh tried his hand again:
JUSTICE KAVANAUGH: I don't think you could answer the Chief Justice's question about something that wasn't. And the question then boils down to, how can we both protect the House's interest in obtaining information it needs to legislate but also protect the presidency? How can the Court balance those interests? I guess the thing I would say is why not employ the demonstrably critical standard or something like that --this is what the other side would say --as something that's borrowed from a different context but that might serve to balance the strong competing concerns here?
Letter would not go further.
MR. LETTER: Your Honor, that's a very good question. I have --I have several responses.
Never, ever says "that's a very good question." All questions from Supreme Court justices are "very good questions." Even if they aren't.
But next, Letter lifted the curtain, and provided a hint of why he was being so stubborn. He mentioned a recent chat with "congressional leaders"–that is, his bosses. And they told him how to litigate the case.
The first one goes to the last thing you said about why not employ a demonstrably critical test. I --I don't know how the Court would --the courts would do that without violating the separation of powers. I was reminded recently by --by the congressional leaders that often, they're doing investigations, they don't know where the legislation might go at that point. So I don't know how you would force Congress to do --to show some sort of demonstrably critical reason
Next, Kavanaugh asked a question about medical records:
JUSTICE KAVANAUGH: Can I interrupt right there? What about medical records?
Letter was obviously ready for that question, and quickly turned to the 25th Amendment. I hadn't considered that answer, but it is decent:
MR. LETTER: Your Honor, medical records of the President would, I think, almost always be not pertinent to valid legislative purpose. On the other hand, if you look at -
JUSTICE KAVANAUGH: Why not? Can you just -
MR. LETTER: --the Twenty-Fifth amendment, they would --they certainly would be pertinent.
Letter tried to shake off the outlandish hypos:
MR. LETTER: So I'm sure we can come up with some odd hypotheticals where presidential health would clearly be relevant, maybe changing the --the statutes that involve the succession of when a president becomes incapacitated, something like that, I --I suppose. But, in general, Congress --there would be no valid reason for Congress to be asking for the President's personal medical records that I can think of.
Later, during Letter's second round of questioning, Kavanaugh returned to the limiting principle:
JUSTICE KAVANAUGH: Yes. Thank you, Chief Justice. And, Mr. Letter, I want to follow up on Justice Alito's question. And this really goes to the fact, I think, that there is concern about what the limiting principle is here, I think, pertinent to a legislative purpose is almost no limiting principle at all, at least I think that's what some of the questions have explored, and his hypothetical about a committee would start subpoenaing members of Congress of the other House or of the other party, and you said, well, that hasn't happened. But isn't the whole point that once you start down this road and this Court articulates too low a standard, that something like that will start happening? That's the concern that I heard identified or that I took away from that hypothetical. So I want to give you a chance to respond to that hypothetical of why it wouldn't spiral….
Did letter give anything new? No. He returned to Clinton v. Jones.
MR. LETTER: I --I think that's right. But, again, this --I --I come back to Clinton versus Jones. You --you --this Court issued a very clear decision saying we're going to allow this one, but obviously the courts are going to monitor this. So if, contrary to what has happened in the past over our --our lengthy history, if there are situations when there --the President's ability to do his job is being undermined, thank goodness the courts still exist and they are there to take care of it.
During his rebuttal, Patrick Strawbridge slammed this point home:
MR. STRAWBRIDGE: Thank you, Mr. Chief Justice.
You know, my friend from the other side struggled with every hypothetical that he was given about his ability to set some sort of limiting principle or some category of information or documents about the President
that would not be obtainable under his theory. And I think that's very telling because there are no limits to their theories.
And, in particular, let's just consider the example that was given regarding medical records. There is no reason under his theory why the President and his family and his grandchildren could not be declared useful case studies and, therefore, Congress could send out a subpoena for their medical records.
For that matter, the President eats and drinks like everybody else and Congress naturally has the ability to regulate food safety.
But that does not mean that Congress can subpoena medical records or even the President's DNA. My friend refused to even rule out that hypothetical categorically below, and I think it's telling that --that he can't provide any meaningful limit today.
Letter held the line. I don't think he lost any votes. He did what he planned to do. The House should still ask Verrilli to argue the Obamacare case. In that case, votes are actually in play.