The Major Separation of Powers Problems with J.E.B. v. Trump

Judge Boasberg is about to unleash a truly independent counsel on the Trump Administration, and the President himself, subject to none of the strictures that Alexia Morrison faced.

On Wednesday, I briefly wrote about Judge Boasberg's proposed criminal prosecution briefly. Here, I would like to highlight several of the significant separation of powers problems, many of which were raised in DOJ's latest mandamus petition to the D.C. Circuit. Specifically, this special prosecutor would truly be untethered, and would be burdened by none of the modest restrictions that Alexia Morrison confronted.

Let's recap how the Ethics in Government Act (EIGA) operated. First, the Attorney General had to determine if there was "reasonable grounds to believe that further investigation or prosecution is warranted." Second, when such a finding is made, the EIGA called for a special three-judge panel of the Court of Appeals for the D.C. Circuit to "appoint an appropriate independent counsel" and "define that independent counsel's 'prosecutorial jurisdiction.'" Third, the special division was authorized to expand the independent counsel's "prosecutorial jurisdiction." Fourth, the independent counsel could be removed by the Attorney General for "good cause." That removal would be subject to review by the Special Division.

After Congress let the Independent Counsel statute lapse, Attorney General Reno issued a series of regulations that created the new "special counsel" regime. This was the authority that Robert Mueller and Jack Smith invoked to investigate and prosecute President Trump. I've argued at some length why I think those regulations are unconstitutional, but I'll table those issues for now. At least under those regulations, the special counsel was subject to some supervision by the Attorney General, and could be removed for cause. Moreover, Mueller adhered to DOJ policy, and did not indict the President.

Now, let's consider the path that Judge Boasberg is going down.

First, it is not the Attorney General, or some politically accountable figure, deciding whether the investigation and prosecution of the executive branch should begin. It is an inferior court judge. Now, you might reply that Attorney General Bondi is in fact a possible party to the case, since she signed pleadings in Judge Boasberg's court. I think that argument presumes that there was a crime committed, but I take the point. The bigger problem is that Judge Boasberg is also a party to the case. His oral and written orders are the basis of the contempt proceedings. Is he a disinterested party to determine how others should have construed his orders? I think not. When I tell my kids to do something, and they  largely ignore me, I am not a neutral party to decide whether my instructions were clear enough. I continue to think that all judges who initiate contempt proceedings should immediately ask to have the case reassigned to avoid any possible conflict of interest. Really, Judge Boasberg should be a witness in such a proceeding, rather than the deciding authority.

Second, under the EIGA, the three-judge panel decided who the independent counsel should be. And under the special counsel regulations, the Attorney General made that decision. The decision of who to appoint is foundational. Why did Merrick Garland appoint a war crimes prosecutor like Jack Smith to go after Trump, but appointed a mild-mannered former U.S. Attorney like Robert Hur to investigate Biden? Both cases involved alleged purloining of government documents. Why didn't Garland appoint the same official to investigate Biden and Trump? I think the question answers itself.

And in any event, it doesn't much matter who is appointed. Many men of integrity have been sullied by serving as independent counsels or special counsels. Justice Scalia was right in Morrison: when a prosecutor has only a single target, with no restrictions or accountability, he will stop at nothing to get his guy. Remember, Ken Starr, a well-regarded former federal judge, embarked on a modest investigation into President Clinton's business dealings. That case exploded to an inquisition about President Clinton's sex life, ultimately leading to an impeachment and a near-indictment. Robert Mueller, a well regarded former FBI director, started to investigate Trump's removal of Comey, but the investigation spiraled into a never-ending drip-drip-drip about obstruction and corruption. Trump was nearly impeached and indicted over Muellergate.

We all know how these sorts of special prosecutions wind up. Does anyone doubt that the special prosecutor will want to interview President Trump himself? If Trump refuses, would the District Court hold him in criminal contempt? Even if there is no violation found of Judge Boasberg's order, there will be a never-ending series of allegations based on "obstruction," the most malleable crime in federal law. I doubt all of these proceedings will uncover much useful information that we don't already know. But the collateral costs will be massive.

Third, there is a benefit to having judges unconnected with the controversy decide who the special prosecutor ought to be. The three-judge panel, appointed by the Chief Justice, were neutral, and had no role in adjudicating the actual matter. By contrast, Judge Boasberg cannot separate himself from this conflict. Yet, he can still decide who will be the next Inspector Javert.  Relatedly,  there is some value in having a three-judge panel make these decisions, rather than a unilateral judge. As Judge Ho's concurrence from yesterday explains, there is a big difference between a single-member court and a multi-member court.

Every level of the judiciary risks losing its credibility if judges fail to live up to these principles. But appellate courts have at least one built-in check: No appellate judge can act alone. Appellate courts act only through multi-member panels. So appellate judges must convince their colleagues before they can exercise the judicial power of the United States. District court decisions, by contrast, are (with rare exception) made by just one judge. District judges are the only members of the judiciary who can exercise the judicial power of the United States without anyone's consent but their own. With unilateral power, there's unique danger that some district courts may get off track. So it's vital that district judges exercise their powers carefully and with integrity—and critical that appellate judges be ready to intervene when district courts refuse to stay in their lane.

District Court judges have almost unlimited authority over their docket. Circuit judges have to persuade their colleagues.

Fourth, the EIGA and Reno regulations at least provided some mechanism for removal. Chief Justice Rehnquist cited the possibility of removal as a basis to uphold the EIGA. But is there any way to remove Judge Boasberg's special prosecutor? I don't think so. Short of mandamus by the D.C. Circuit or the Supreme Court, the special prosecutor can follow Trump to the ends of the earth.

Fifth, Judge Boasberg would sub silentio resurrect the EIGA. The history of the independent counsel statute is well known.  Republicans and Democrats agreed that the Independent Counsel statute was a mistake, and let it lapse. But who knew, all along, that Rule 42 permits a single district court judge to unilaterally install a truly independent counsel, subject to none of the restrictions under the EIGA? I realize the Supreme Court ducked the Rule 42 issue in the Donzinger case. Justice Gorsuch, and Judge Menashi (2nd Circuit) in dissent, were clearly right. That prosecution involved a private citizen. This was not a case where a special prosecutor is opening an investigation into the executive branch itself.

Sixth, at least in the Donziger case, the special prosecutor could ostensibly assert the authority of the United States in parallel to DOJ. But in the Boasberg case, the special prosecution would be asserting the sovereign authority of the United States in conflict with the Department of Justice. I see an analogy to United States v. Nixon. I remain convinced that Nixon was not justiciable because it was an intra-executive branch dispute. There was a conflict between the special prosecutor and the President. The courts had no business resolving that conflict. Here, Judge Boasberg is about do something far more problematic. He will be seizing the prosecutorial authority of the executive branch, delegating it to a private citizen, who will then prosecute the executive branch, all in the absence of clear statutory authorization. This sort of move makes anything Judges Reed O'Connor or Matthew Kacsmaryk did look like child's play.

The government's brief states the issue well:

The Executive Branch must itself prosecute, or face a court-appointed private prosecutor who would apparently exercise core executive powers of prosecution. And that private prosecutor would exercise those powers outside the President's or the Attorney General's control, all in service of a prosecution that the Executive Branch opposes. District courts cannot outsource prosecutorial power to private citizens, insulate them from Executive Branch control, and then unleash them against the Executive Branch.

Seventh, where will the budget come from for this special prosecutor? DOJ certainly will not give a penny. The lawyer cannot keep an office at Main Justice. Does the court have the budget to pay for this crusade? Or will the court order the government to divert funds for the lawyer and his team? Then again, there may be a line of attorneys who will gladly work pro bono to nail Trump.

Update: Judge Menashi's dissent discusses the funding issue. In Donzinger, the special prosecutor was paid from the judiciary's budget. He observed, "Providing judiciary-funded prosecutors to the executive branch creates tension with Congress's power of the purse."

Eighth, please do not forget about "officer stuff." In the Florida special counsel litigation, Seth Barrett Tillman and I argued that the special counsel was not an officer, but was at most an employee, and as an employee lacked the "significant authority," per Buckley, to bring a criminal indictment. (Our 11th Circuit brief in the since-mooted case is a good place to start.) In the past, DOJ has argued that court-appointed special prosecutors were employees. Thus, in our view, the special prosecutors could not exercise the "significant authority" to investigate and prosecute the executive branch, and perhaps the President himself. Remember, a court-appointed prosecutor would not be subject to the DOJ opinion on whether the President could be indicted. Alternatively, the special prosecutor position would be appointed for only a single purpose. This position would lack duration because it is not continuous. Therefore, it cannot be an "officer" of any type. The current qui tam case before the Eleventh Circuit just became far more important. I will probably write about that case soon.

Even assuming Morrison v. Olson is valid, what Judge Boasberg is doing is unconstitutional. Indeed, he is taking all of these steps after the Supreme Court ruled he lacks jurisdiction! Putting aside the venue issue, the absence of a cause of action is a jurisdictional defect. (Seth and I addressed this issue in our Emoluments Clause briefing at p. 8-9.) The Chief Justice gave Judge Boasberg an easy jurisdictional out: issue a grumbling opinion, but dismiss the contempt proceedings. Instead, the court seeks to push forward.

Going forward, the airplane case should no longer be known as J.G.G. v. Trump. It is better captioned as J.E.B. v. Trump, as Judge James E. Boasberg ("Jeb" for short) is going down a personal path against the Trump Administration. He will be the judge, jury, and executioner about the fate of the executive branch. Hell hath no fury like a scorned inferior court judge.

We are treading down a very dangerous path. I fear the judiciary will suffer the same fate of Ken Starr, Robert Mueller, and Jack Smith. None of this bodes well for the separation of powers.

The D.C. Circuit must intervene here. I know it was fashionable to dunk on the Fifth Circuit as this rogue right-wing court, but in candor, that court was never quite that conservative. There are many moderate members who can tip the en banc vote. The D.C. Circuit, by contrast, has an over-whelming liberal majority, and will have that majority for a generation. If the D.C. Circuit upholds this action, I will see it as no different than the new liberal majority on the Wisconsin Supreme Court that upheld a 400-year line item veto. A special prosecutor is not the way to deal with Trump.