Supreme Court Reform: Desirable—And Constitutionally Required – Postscript (Comment) by David Orentlicher

From Volume 92, Postscript (November 2018)
DOWNLOAD PDF


Supreme Court Reform: Desirable—and Constitutionally Required

David Orentlicher[*]

As decisions by—and appointments to—the Supreme Court have become increasingly divisive,[1] many observers have renewed calls for reform.[2] For example, we could replace lifetime tenure with non-renewable terms of eighteen years, such that one term ends every two years.[3] That way, less would be at stake with each nomination, Justices could not time their retirements for partisan reasons, and appointments would be divided more evenly between Democratic and Republican presidents. Or we could establish a non-partisan, judicial nominating commission.[4]

Concerns about the Supreme Court are not new, but increasing political polarization and partisan maneuvering over the two most recent Court appointments have accentuated tensions. With the legitimacy of the Court at stake, reform to depoliticize the Court seems essential. And whichever reform is promoted, it is generally assumed that implementation would require a constitutional amendment, legislation, or a change in Senate rules.

But the conventional wisdom is wrong. There is a sound argument to be made that Supreme Court reform is constitutionally required.[5]

DUE PROCESS AND ideological baLANCE

With Justice Brett Kavanaugh’s appointment to the Supreme Court, it seems pretty clear that President Donald Trump and Senate Republicans have been able to solidify a staunchly conservative majority on the Court. In all likelihood, this new majority will stake out firmly conservative positions on a range of critical issues, including voting rights, reproductive rights, and corporate rights. With a second Trump nominee on the bench, the Supreme Court will bring a strong ideological bias to its decision making. While that is highly controversial, it is one of the features of our judicial appointment process. As is often said, elections have consequences.

Or should they when it comes to the judicial branch? We ought to consider the constitutional implications of ideological bias on the Supreme Court. In particular, principles of due process and the framers’ original intent provide good reason to think that neither a conservative nor liberal Court majority should be able to impose its views on the country. 

A.  Ideological Bias and Due Process

The Due Process Clause promises litigants that they will receive an impartial hearing before a neutral court.[6] And a neutral court decides cases without any personal, political, or other bias.[7] With a fifth strongly conservative Justice on the Supreme Court, it is not a neutral court. Any party promoting a liberal viewpoint before the Justices will not be able to count on a fair shot at prevailing.[8]

To be sure, if Justices merely acted like umpires, doing something akin to the calling of balls and strikes, as suggested by Chief Justice John Roberts in his confirmation hearings,[9] a Justice’s political philosophy would not matter. But of course, a Justice’s political philosophy does matter.[10] Otherwise, Republican Senators would have considered Judge Merrick Garland’s nomination to the Supreme Court in 2016, and other nominations also would not fail because of partisan opposition. Some Justices take more conservative positions, while others take more liberal positions.[11] A conservative majority will render different decisions on environmental regulation, consumer protection, or voting rights than will a liberal majority. When Court decisions reflect the philosophical leanings of the Justices, and decisions can be determined by one side of the ideological spectrum, our system denies an impartial hearing to parties on the other side of the ideological spectrum. And that is fundamentally unfair in a constitutional system that promises litigants due process in court.

Because it is unfair for litigants to have their cases decided by an ideologically-biased court, other countries have designed their highest courts so decisions do not reflect only one side of the philosophical spectrum. Arguably, due process requires something similar for the Supreme Court.

A strong view of due process would demand ideological moderation for each Justice, an approach taken in some European countries. In Germany, for example, nominees to the Constitutional Court must receive a two-thirds vote of approval and therefore must appeal to legislators on both sides of the partisan aisle.[12] Instead of getting judges who are either strongly conservative or liberal, German litigants get judges who are moderate. Like Germany, Portugal and Spain require supermajority votes for appointments to their constitutional courts.[13] So we might say that due process requires restoration of a strong filibuster rule in the Senate or a strong supermajority on final voting for judicial nominations. That would force presidents to nominate Justices acceptable to both conservatives and liberals.[14]

A less demanding view of due process would focus on overall balance on the Court rather than on the ideologies of individual Justices. While there are different ways to achieve overall balance,[15] the simplest path for the Supreme Court would be to follow the example of a number of countries. In many European nations, high court decisions are made by consensus, or at least a supermajority vote, so Justices on both sides of the ideological spectrum have to support the courts’ opinions.[16] The U.S. Supreme Court itself observed a norm of consensual decision-making for most of its history. Until 1941, the Justices typically spoke unanimously.[17] Only about 8% of cases included a dissenting opinion. Now, one or more Justices dissent in about 60% of rulings.[18] Chief Justice John Roberts has pushed for greater consensus on the Court,[19] saying that the court functions best “when it can deliver one clear and focused opinion.”[20]

An advantage of this path to ideological balance is that it allows for a greater range of perspectives among the different Justices. Instead of nine relatively moderate Justices, we would get a mix of conservative and liberal Justices. And that would make for a stronger decision making process. Studies on group decision making demonstrate that better outcomes result when the decision makers bring a range of viewpoints to the table.[21] Accordingly, I discuss this path to ideological balance in the remainder of this essay.

How large should a supermajority be? Since there may be times when six Justices are either conservative or liberal, it probably would be necessary to require more than a two-thirds supermajority to ensure that decisions always reflect the perspectives of both sides of the philosophical divide. We could require at least a 7-2 vote or even decisionmaking by consensus of the entire Court.

B.  Ideological Bias and Original Intent

What would the framers think about this? On one hand, they did not include in Article III of the Constitution a requirement for ideological balance on the Supreme Court. On the other hand, they did not reject ideological balance. Moreover, they recognized the need to amend the Constitution with a Bill of Rights that includes the Due Process Clause’s guarantee of impartial courts.

The framers’ intent is consistent with this essay’s due process analysis. With ideological balance, the Supreme Court would be more faithful to the framers’ design for our constitutional system. The Founding Fathers worried greatly about “factions” pursuing their self-interest to the detriment of the overall public good. Accordingly, the constitutional drafters devised a system that they thought would block factional control of the national government.[22] But the framers did not anticipate the extent to which political parties would form dominant factions that could gain command of government power. For example, the framers did not anticipate how partisan ties between presidents and members of Congress would limit the legislative branch’s checking and balancing of the executive branch.[23] Similarly, the framers did not expect—nor did they want—a Supreme Court that would reflect the views of only one side of the ideological spectrum. Indeed, when Alexander Hamilton explained the Constitution’s appointment provisions in The Federalist Papers, he emphasized the need to avoid nominations that reflect partiality instead of the overall public interest.[24]

The Due Process Clause and original intent both support ideological balance on the Supreme Court. As discussed in the next section, Supreme Court precedent is consistent with such a requirement.

C.  Ideological Bias and Supreme Court Precedent

In previous cases, the Supreme Court has observed that constitutional concerns are not raised when a judge favors one or another ideological view.[25] Anyone with the appropriate training and experience for the judiciary will have opinions on important legal issues. According to the Court, due process prohibits judicial bias against a party to a proceeding, not bias against a legal view that the party might advocate.[26]

But there are important reasons to distinguish Court discussions of the issue. First, these discussions were dicta. The question whether it is impermissible for an appellate court to have an overall ideological bias has not been decided by the Court. Rather, it has come up in cases addressing other issues of judicial neutrality. In Republican Party of Minnesota v. White, for example, the issue before the Court was whether a state could prohibit judicial candidates from announcing their positions on issues that might come before them if elected.[27] In another case, Tumey v. Ohio, the issue before the Court was whether judges could have a financial stake in the outcome of their decisions.[28]

Second, the Court’s reasoning is consistent with a due process argument against a Court that has an overall ideological bias. In Republican Party of Minnesota, the Justices discussed the kinds of personal biases that should disqualify a judge, and the Court wrote that a judge’s ideological bias is not disqualifying in the way that a personal financial bias is disqualifying. It took that view in Republican Party of Minnesota and earlier cases because anyone who has the experience and training that would be desirable in a judge will inevitably develop an ideological bias.[29] But the fact that we must accept individual judges with ideological leanings does not prevent us from ensuring an overall ideological balance on the Court. Under a fair reading of the Constitution, litigants ought to be able to ensure that their cases are decided in an ideologically-balanced way.

In addition, it is difficult to identify a good reason for permitting the Court to function with a majority on one side or the other of the ideological spectrum. While we can point to the principle of majority rule to justify partisan control in the executive or legislative branches, popular majorities do not deserve special recognition in a judicial branch that should be guided by legal principle rather than prevailing sentiment.

d.  Potential concerns with a requirement of ideological balance

In general, concerns about cost, efficiency, and fairness have limited policies to address judicial bias.[30] For example, one solution to judicial bias is recusal of the biased judge. But if reasons for recusal are not strictly limited, litigants might clog the courts with baseless recusal motions,[31] and lawyers might exploit the rules to game the system in favor of their clients.[32] Supreme Court Justices also have resisted strict recusal rules on the ground that there is no one who can step in for the disqualified Justice.[33] A supermajority requirement avoids the problems raised by judicial disqualification. It addresses bias not by removing partial Justices, but by counterbalancing their partialities. 

Still, one might worry that a supermajority requirement would lead the Court to deadlock with some frequency and leave too many issues to be decided by the lower courts. However, a few considerations indicate that it is unlikely to do so. First, the Justices would have a strong incentive to find common ground. Supreme Court Justices want to leave their imprint on the law—after spending years, if not decades, maneuvering for a Court appointment and having reached the pinnacle of the judiciary, they would be driven by their desire to leave an important judicial legacy. If the Justices spent their years on the Court bogged down in gridlock, they would not be able to issue key decisions that would allow them to make a difference in resolving critical legal questions. Accordingly, they would come to accommodations that would allow them to issue important decisions.

Empirical evidence supports this prediction. High courts operate successfully under a supermajority requirement in other countries. In addition, the U.S. Supreme Court has effectively operated under a supermajority requirement from time to time. On a number of occasions, the Court has heard cases with only eight members and therefore has needed a 62.5% supermajority (5/8) to reach a decision. Sometimes this happens when a seat is temporarily unfilled; other times when Justices take ill or have to recuse themselves.[34] In a study of the 1,319 cases in which a tie could have occurred between the 1946 and 2003 terms of the Court, researchers found that a tie vote occurred less than 6% of the time.[35] And, of course, a number of landmark decisions have been decided by a supermajority vote. A 9-0 Court issued its opinion in Brown v. Board of Education,[36] a 7-2 Court issued its opinion in Roe v. Wade,[37] and a 4-0 Court issued its opinion in Marbury v. Madison.[38]

The experience with juries also suggests that supermajority courts would reach decisions regularly. Criminal court juries typically have twelve members, and they usually have to reach unanimous decisions. Hung juries occur, but not very often.[39] Moreover, juries reach their unanimous decisions in a setting that allows for less compromise than does a decision by the Supreme Court. A criminal jury must acquit or convict.[40] The example of juries is important for a second reason. I have argued that to be impartial, the Court should issue decisions that reflect the views of Justices from both sides of the ideological spectrum.[41] Similarly, in defining the meaning of an impartial jury, the Supreme Court has required that jurors be drawn from a fair cross-section of the community.[42]

Game theory provides further reason to believe that the Court would find middle ground regularly under a supermajority requirement. Game theory can identify the kinds of relationships that are likely to encourage cooperative rather than oppositional strategies.[43] The Supreme Court includes important elements of cooperative relationships. For example, when individuals have an ongoing relationship with frequent and repeated interactions, as with members of the Court, they are much more likely to choose cooperation with each other than when they have a one-shot relationship. Cooperation is also more likely in relationships with an indefinite time horizon, as with Justices who have lifetime appointments, than when there is a finite time horizon. Finally, cooperation is more common among individuals who come to their relationship with equal status and authority. That is true about Supreme Court Justices, except perhaps with Chief Justices. The extra authority of a Chief Justice may not be that important, but if it is, we could make the Chief’s role a rotating position, as is the case with some state supreme courts.[44]

Conclusion

There is much dissatisfaction among Supreme Court observers with the Court and its appointment process. And as the Court’s decisions and appointment process have become increasingly divisive, public approval of the Supreme Court has declined. A majority of Americans once expressed strong confidence in the court. According to a July 2018 Gallup poll, only 37% do now.[45] Reforming the Supreme Court would do much to restore public faith in the Court. And it also would bring the Court into conformity with the requirements of due process.

 


[*] *. Cobeaga Law Firm Professor of Law, UNLV William S. Boyd School of Law; M.D., Harvard Medical School; J.D., Harvard Law School. This essay draws on my earlier discussions of ideological bias, infra note 2, and makes the novel argument that ideological balance is constitutionally required. I am grateful for the comments of Judy Failer and Ruben Garcia, the research assistance of Lena Rieke, and the editorial assistance of Daniel Brovman and other Southern California Law Review editors.

 [1]. While the U.S. Senate approved the appointment of Justice Anthony Kennedy by a 97-0 vote, his successor, Justice Brett Kavanaugh, squeaked by on a vote of 50-48. Similarly, the Senate approved Justice Antonin Scalia by a vote of 98-0, while the vote on his successor, Justice Neil Gorsuch, was 54-45. Supreme Court Nominations: present-1789, U.S. Senate, https://www.senate.gov/pagelayout
/reference/nominations/Nominations.htm (last visited Oct. 20, 2018).

 [2]. I have previously discussed the desirability of ideological balance on the Supreme Court in David Orentlicher, Politics and the Supreme Court: The Need for Ideological Balance, 79 U. Pitt. L. Rev. 411 (2018), and David Orentlicher, Two Presidents Are Better Than One: The Case for a Bipartisan Executive 2731 (2013).

 [3]. See generally Roger C. Cramton & Paul D. Carrington, Reforming the Court: Term Limits for Supreme Court Justices (2006).

 [4]. Many states have judicial nominating commissions, though they tend to be partisan since the governor appoints many of the commission members. See, e.g., Ind. Const. art. VII, § 9; Kan. Const. art. III, § 5(e).

 [5]. The logic of my argument also would apply to the circuit courts of appeal, as well as state appellate courts.

 [6]. Martin H. Redish & Jennifer Aronoff, The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism, 56 Wm. & Mary L. Rev. 1, 34, 3637 (2014).

 [7]. Charles Gardner Geyh, The Dimensions of Judicial Impartiality, 65 Fla. L. Rev. 493, 499–509 (2013).

 [8]. Likewise, if a fifth liberal Justice had joined the Court, parties promoting a conservative viewpoint would not be able to count on a fair shot at prevailing.

 [9]. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005).

 [10]. Lee Epstein et al., The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice 103 (2013).

 [11]. Lee Epstein et al., Ideological Drift Among Supreme Court Justices: Who, When, and How Important?, 101 Nw. U. L. Rev. 1483, 1491 (2007).

 [12]. Georg Vanberg, The Politics of Constitutional Review in Germany 83 (2005); Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633, 669 (2000).

 [13]. John Ferejohn & Pasquale Pasquino, Constitutional Adjudication: Lessons from Europe, 82 Tex. L. Rev. 1671, 1682 (2004).

 [14]. This approach would be especially valuable at the district court level, where there is a single judge deciding cases.

 [15]. Orentlicher, supra note 2, at 417–23.

 [16]. European Parliament, Dissenting Opinions in the Supreme Courts of the Member States (2012),  http://www.europarl.europa.eu/document/activities/cont/201304/20130423ATT64963
/20130423ATT64963EN.pdf

 [17]. Cass R. Sunstein, Unanimity and Disagreement on the Supreme Court, 100 Cornell L. Rev. 769, 771 (2015).

 [18]. Id. at 776–77.

 [19]. Hope Yen, Roberts Seeks Greater Consensus on Court, Wash. Post (May 21, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/05/21/AR2006052100678.html.

 [20]. Geoffrey R. Stone, Chief Justice Roberts and the Role of the Supreme Court, Huffington Post (May 25, 2011), https://www.huffingtonpost.com/geoffrey-r-stone/chief-justice-roberts-and_b
_40277.html.

 [21]. Alan Blinder, The Quiet Revolution: Central Banking Goes Modern 43 (2004); Scott E. Page, The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies 2–3 (2007); Lu Hong & Scott E. Page, Groups of Diverse Problem Solvers Can Outperform Groups of High-Ability Problem Solvers, 101 Proc. Nat’l Acad. Sci. 16385 (2004).

 [22]. Geoffrey R. Stone et al., Constitutional Law 18–21 (7th ed. 2013).

 [23]. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2313, 232324 (2006).

 [24]. The Federalist No. 76 (Alexander Hamilton).

 [25]. The Court’s opinion in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), provides a nice summary of the Court’s discussions of the topic.

 [26]. Id. at 77778.

 [27]. Id. at 768. The Court held that the prohibition violated the First Amendment. Id. at 788.

 [28]. Tumey v. Ohio, 273 U.S. 510, 514–15 (1927). The Court held that the judges’ financial interests violated due process. Id at 534.

 [29]. Republican Party of Minnesota, 536 U.S. at 77778.

 [30]. Geyh, supra note 7, at 514–15.

 [31]. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 890–91, 899–900 (2009) (Roberts C.J., dissenting).

 [32]. Id. at 903 (Scalia, J., dissenting).

 [33]. Gabriel Serbulea, Due Process and Judicial Disqualification: The Need for Reform, 38 Pepp. L. Rev. 1109, 1136–38 (2011).

 [34]. There also have been periods when the Court had an even number of Justices. For most of the period between 1789 and 1807, the Court had six members. Why Does the Supreme Court Have Nine Justices?, Const. Daily (July 6, 2018), https://constitutioncenter.org/blog/why-does-the-supreme-court
-have-nine-justices.

 [35]. Ryan Black & Lee Epstein, Recusals and the “Problem” of an Equally Divided Supreme Court, 7 J. App.  Pract. & Proc. 75, 85–86 (2005).

 [36]. Brown v. Bd. of Educ., 347 U.S. 483 (1954).

 [37]. Roe v. Wade, 410 U.S. 113 (1973).

 [38]. Marbury v. Madison, 5 U.S. 137 (1803). The Marbury Court had six Justices, but two did not take part because of illness.

 [39]. Studies suggest an average hung jury rate of around 6% nationwide. Paula L. Hannaford-Agor et al., Are Hung Juries a Problem?: Executive Summary 2 (2002), https://www.ncjrs.gov
/pdffiles1/nij/grants/199372.pdf.

 [40]. In some cases, juries can compromise if they have the option of convicting on a less serious charge.

 [41]. See supra notes 921 and accompanying text.

 [42]. Taylor v. Louisiana, 429 U.S. 522, 526–27 (1975).

 [43]. Robert Axelrod, The Evolution of Cooperation 12432 (1984); Itzhak Gilboa, Rational Choice 10001 (2010); Ming Zeng & Xiao-Ping Chen, Achieving Cooperation in Multiparty Alliances: A Social Dilemma Approach to Partnership Management, 28 Acad. Mgmt. Rev. 587 passim (2003).

 [44]. See, e.g., Supreme Court Judges, Mo. Cts. https://www.courts.mo.gov/page.jsp?id=133 (last visited Nov. 8, 2018) (“[T]he chief justice typically is elected on a rotating basis by a vote of all seven Supreme Court judges to a two-year term.”). Or consider a model from Switzerland. The members of the Swiss Federal Council rotate through the position of president so they remain true equals in the Swiss executive branch.

 [45]. Megan Brenan, Confidence in Supreme Court Modest, but Steady, Gallup (July 2, 2018), https://news.gallup.com/poll/236408/confidence-supreme-court-modest-steady.aspx.

Profound Sophistication or Legal Sophistry? – Postscript (Comment) by Ediberto Roman, Katryna Santa Cruz, Melissa Gonzalez & Dianet Torres

From Volume 92, Postscript (November 2018)
DOWNLOAD PDF


 

Profound Sophistication or Legal Sophistry?

Ediberto Roman,[*] Katryna Santa Cruz,[†] Melissa Gonzalez,[‡] and Dianet Torres[§]

In the midst of growing debate andaccording to widely publicized news accountsgrowing evidence against President Donald Trump’s impeachment, esteemed former Harvard Law Professor and public intellectual, Alan Dershowitz, recently published The Case Against Impeaching Trump.[1] In this brief, but passionate, defense of the President, Professor Dershowitz provides arguably the strongest legal argument against impeaching the Forty-Fifth President of the United States. Professor Dershowitz’s argument, while beautifully written, is largely a selectively applied textualist attempt to thwart the mounting evidence against President Trump and his administration.

Dershowitz argument boils down to the following: “[I]f a president has not committed any of these specified crimes [those specified in the Constitution], it would be unconstitutional to remove him, regardless of what else he may have done or may do.”[2] The Dershowitz defense focuses on the Constitution’s Impeachment ClauseArticle II, Section 4which provides: “The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”[3] Dershowitz’s argument is based on the premise that because “the Constitution speaks in clear terms, [its] plain meaning must prevail over other considerations.”[4] This argument is interesting because Dershowitz himself examines all of the subtle ambiguities that the Constitution’s lack of explanation creates, including: Can evidence be introduced? Who rules on admissibility? Common law? Exclusionary rule? Further, even Dershowitz recognizes the Constitution is missing a good deal of information on the issue of impeachment (in terms of Congressional trials for impeachment), but yet, according to Dershowitz, the Clause’s plain meaning should only allow for impeachment for treason and bribery.[5] Seems like his reading of the Constitution is a little too convenient.

According to Dershowitz’s argument, the Constitution provides the only basis for impeaching and removing the President of the United States, and in Trump’s case, there is no grounds for impeachment. The first part of his position—the Constitution provides the exclusive basis for impeachment—is uncontroversial. What is far more problematic is Dershowitz’s use of textualism. Dershowitz is both a self-professed champion of civil liberties as well as a textualist reader of the Constitution. Yet in this defense of Trump, the good professor fails to recognize one of the Constitution’s three stated grounds for impeachment, which is far from engaging in a textualist approach. In doing so, this champion of civil liberties fails to acknowledge a constitutional provision aimed at protecting the citizenry’s rights from tyrannical executive power. Dershowitz’s legitimate basis for impeachment focuses on only two of the three constitutional bases for impeachment: 1) treason and 2) bribery. Dershowitz’s lack of focus on a recognized reading of the third stated basis for impeachment is nothing short of perplexing especially given his textualist leaning and prior textualist positions. For example, he does not believe the Constitution includes privacy rights that protect a right to abortion because the document fails to specifically provide for such a right.[6]

Indeed, Dershowitz’s dismissal of the Constitution’s third specifically stated ground for impeachmentother high Crimes and Misdemeanors”is insufficiently explained in the book. This blatant omission leaves the reader wanting for a less partisan analysis. But before focusing on this shortcoming, an analysis of Dershowitz’s argument on what he views as the legitimate grounds for impeachment—treason and bribery—is in order.

In terms of his first legitimate basis for impeachment, Dershowitz notes that only treason is defined. The Constitution defines treason as “levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.”[7] This constitutional definition applies within Dershowitz’s textual approach, and is therefore a legitimate basis for impeachment. Though he admits that the second and third enumerated basesbribery, and high crimes and misdemeanorsare not defined in the Constitution, it is only the high crimes and misdemeanors basis that Dershowitz apparently finds fatally vague and therefore is an unavailable basis for impeachment.[8] Dershowitz apparently has less of a concern for bribery because it is a crime.[9] Dershowitz doesn’t openly state his antipathy for the high crimes or misdemeanors basis for impeachment. Instead, in what is an overall cryptic and truncated analysis, which amounts to no more than thirtytwo pages (including the book’s conclusion) of new materials (the remaining 114 pages of the book are excerpts of the professor’s previous editorials and interviews arguably related to his main thesis), Dershowitz spends the bulk of his argument addressing the purported procedural shortcomings of the high crimes impeachment basis attempting to limit its use to crimes.[10] Indeed, while Dershowitz spends virtually no time objecting to the bribery basis for impeachmentwhich he admits is not defined in the text of the Constitution, causing him to look to bribery’s common law definitionhe harps on the high crimes basis, without effectively explaining this choice. Then instead of looking to what the drafters of the constitution stated concerning the high crimes or misdemeanor grounds for impeachmentor even looking to judicial or congressional pronouncements on the subjectDershowitz shifts his focus to attacking those that advocate a broad interpretation of the “and other high crimes and misdemeanor” basis. He ultimately rejects any reading of the impeachment clause that does not make a crime a prerequisite to impeachment.[11] As a result, he rejects previous interpretations by both President Ford, when he served in Congress, and current Congresswoman Maxine Waters; each have argued that high crimes and misdemeanors is whatever the house of representatives  deems appropriate.[12] Another questionable aspect of Dershowitz’s argument against impeachment is his effort at equating the process of impeachment to the procedural requirements of a criminal trial. Yet the Impeachment Clause does not call for a criminal proceeding for impeachment. Instead, it provides for a trial by the House of Representatives, a political endeavor by definition. Thus, Dershowitz’s criminal law and criminal procedure-based arguments may very well be misplaced. While the text of the Impeachment Clause is far from clear on this point, interestingly, Dershowitz does not consider that the very placement of “and other high crimes and misdemeanor” in the list of impeachable acts alone strongly suggests this clause is in fact the broadest, or even the catch-all, basis for impeachment.[13] Further, as a matter of statutory interpretation and basic sentence construction, the fact the broadest language happens to be listed last similarly suggests this basis should be read broadly. Indeed, such a broad reading was exactly what the framers of the Constitution intended. While Dershowitz, as a self-professed textualist, is no fan of anything other than the text of the Constitution if the text is unambiguous,[14] it is in interpreting the Constitution’s Impeachment Clause where the shortcomings of his approach are highlighted. Indeed, it is here where textualism falls short because it utterly fails to seek or acknowledge what the drafters of the Constitution intendedevidently because, according to Dershowitz, the text is in fact unambiguous. If the text is in fact unambiguous, why is the debate over its language still the subject of dispute 200 years later? Protestations to the contrary, the legislative history of the Impeachment Clause makes clear that the third basis for impeachment—high crimes and misdemeanors—was drafted and intended to be a broad catch-all provision. As Yale Professor Thomas I. Emerson observed:

[T]he founding fathers did not wish to take over the English practice lock, stock and barrel. Impeachment was intended to be applicable only in a narrower set of circumstances and with more limited results. Hence, after some preliminary discussion, the proposal was made that the President could be removed from office by impeachment and conviction “for treason, or bribery.” This was deemed too restricted and, after rejecting “maladministration” as a cause for impeachment, on the ground it was too broad, the Convention settled on the addition of other high crimes and misdemeanors.” The grounds for impeachment were thus intended to be limited but, apart from a narrow definition of treason elsewhere in the Constitution, the limits were not precisely delineated.[15]

Further, at the Constitutional Convention, the substitute phrase “high Crimes and Misdemeanors” was to be interpreted broadly. Madison in fact believed that it allowed the President to be tried “for any act which might be called a misdemeanor.”[16] Indeed, while debate remains on how broadly the high crimes or misdemeanors basis should be read,[17] even a narrow reading of the clause allows for impeachment for a host of wrongs in a variety of settings:

[A] standard that the framers intentionally set at this extraordinarily high level to ensure that only the most serious offenses and in particular those that subverted our system of government would justify overturning a popular election. Impeachment is not a remedy for private wrongs. It is a method of removing someone whose continued presence in office would cause grave danger to the Nation.[18]

The weight of scholarly authority recognizes the “high Crime and Misdemeanors” Clause should be interpreted to address serious wrongs, but ultimately those wrongs can arise in a wide variety of ways.[19] As one scholar observed, Congressional practice confirms that “high Crimes and Misdemeanors” is broad enough in scope to reach all misconduct that undermines fitness to serve.[20] Professor Stephen Presser, a leading scholar on this constitutional provision, for instance, agreed with Gerald Ford’s famous suggestion that high Crimes and Misdemeanors means anything the House of Representatives wants it to mean when arguing that the provision reflects the essential notion that the Constitution confers broad discretion on the House of Representatives to make up its own mind about what kinds of conduct should lead to an impeachment proceeding. [W]hile giving members of Congress discretion to determine whether a particular act or series of acts amounts to grounds for impeachment, [the Constitution] requires them to move forward to impeach if they determine there are such acts.”[21] Professor Gary L. McDowell, similarly found, “[i]n the end, the determination of whether presidential misconduct rises to the level of ‘high Crimes and Misdemeanors,’ as used by the Framers, is left to the discretion and deliberation of the House of Representatives. No small part of that deliberation . . . must address what effect the exercise of this extraordinary constitutional sanction would have on the health of the Republic . . . .[22] Imminent constitutional scholar, Professor Cass R. Sunstein, likewise observed: “[t]ext, history, and longstanding practice suggest that the notion of ‘high Crimes and Misdemeanors’ should generally be understood to refer to large-scale abuses that involve the authority that comes from occupying a particular public office.”[23]

Dershowitz spends no time addressing either this legislative history or scholarly analysis. Instead of contending with the bulk of authority on the matter, he employs a tried and true lawyerly tact: instead of defending a difficult position, it is far easier and perhaps at times more persuasive to go the offensive and attack the position of others that take a differing view. Indeed, instead of examining the case law explaining and interpreting “other high Crimes or Misdemeanors,” which he briefly undertakes with respect to the bribery cases, Dershowitz proceeds to attack “the most extreme and reductionist” defenses of a broad reading of the high crimes and misdemeanor basis.[24] Yet, even under the tenets of his own textualist philosophy, his argument fails. Under a textualist approach, recourse to the ‘legislative history’ or intended ‘original meaning’ is inappropriate when the words are unambiguous. The plain meaning under such circumstances must prevail over all other interpretative mechanisms, since it was the word, not the intentions behind them, that were voted on and accepted. But even under a textualist approach, if the text is ambiguousand the high crimes and misdemeanor language is far from unambiguousfurther inquiry is necessary, particularly into the Framers intent.[25] It is here where the book’s analysis is weakest because Dershowitz fails to accept the value of further inquiry when text is ambiguous. Thus, a reader is left with a scant interpretation, lacking any significant legal reinforcement.

In terms of President Trump’s potential impeachment, Dershowitz, somewhat unsurprisingly argues that impeachment would be inappropriate because the alleged wrongs purportedly committed by President Trump involve neither treason nor bribery—two of his legitimate enumerated wrongs under Article II’s Impeachment Clause.[26] While Dershowitz may be correct that any charges or claims against President Trump may not involve bribery, there are growing calls arguing President Trump has in fact committed treason.[27] Perhaps more importantly, Dershowitz’s primary analytical flaw is that he simply ignores the text of the Constitution, its interpretation in terms of legislative history, and case law on the third impeachable basis under Article II’s Impeachment Clause: high crimes or misdemeanors.

In the end, Dershowitz attempts to largely ignore a broad reading of “other high Crimes and Misdemeanors” either because he may appreciate they provide problems for his client,[28] or following his stated reasons, such wrongs are not defined in Article II or other parts of the Constitution and there are no procedural requirements set forth for convictions of such crimes.[29] Yet his stated reasons are supported with slight authority and scant analysis. Dershowitz’s analysis is accordingly incomplete, thereby allowing the professor to accept bribery as a legitimate ground for impeachment (even permitting him to look to the common law, ever so briefly, on bribery), but in almost the same breath, he refuses to examine the legislative history of the Constitution, the common law, or the weight of authority on the high crimes or misdemeanor basis for impeachment. Any of these inquiries would have provided not only a more thoughtful undertaking, but also valuable guidance for interpreting the high crimes and misdemeanors basis for impeachment. It should not be forgotten, and he may himself point out, that he refuses to engage in an analysis that goes beyond the text’s “plain meaning.” However, in his own words, “‘other Crimes and Misdemeanors’ are not defined.”[30] So, according to his own preferred interpretive approach, we should not become inflexible and inexplicably resort to the plain meaning when there is textual ambiguity in this case. Not only will case law and legislative history analysis provide the reader with a more thoughtful undertaking, they are essential to understanding the text itself.

Ultimately, in what appears to be an apologist’s vain effort, Dershowitz does not address historical precedent, including the obstruction of justice charges brought in President Clinton’s impeachment proceedings,[31] and the proposed charges against President Nixon,[32] which were each based on high Crimes and Misdemeanors, and specially contained obstruction of justice charges (the likely charges against President Trump if impeachment is recommended).[33] Moreover, in the four lengthy legal opinions on impeachment and criminal charges against a president drafted by the Justice Department’s Legal Office and the Office of Special Counsel in the Nixon impeachment effort, as well as in Clinton’s impeachment, there was no hesitation to accept that a president could be impeached under the high Crimes and Misdemeanors provision of the Impeachment Clause of Article II.[34] Despite these historical facts, in one chapter of the book, Dershowitz tries to defend the President against any impending charge by arguing Trump cannot be charged with obstruction of justice where he was just basically doing what he has the power to do.[35] The problem with this argument is that it not only disregards the law of obstruction of justice, on which there is extensive caselaw and scholarship,[36] but also that Dershowitz, as a champion of civil liberties, astonishingly argues for a form of executive supremacy that would in fact make a sitting president above the law.[37]

In essence, despite the wealth of authority stating the contrary, Dershowitz asserts that a president can only be impeached for a crime. Yet his textual argument falls flat under its own weight—Dershowitz wants the interpretation of the Constitution’s Impeachment Clause to follow the enumerated wrongs listed in the Clause while also completely ignoring a specifically stated basis for impeachment that has historically and repeatedly been interpreted to be the broadest basis for impeachment. In the end, Dershowitz asserts that it would be dangerous to use a broad reading of “high Crimes and Misdemeanors because doing so could jeopardize our system of government.[38] How it would do so remains unclear, however. And even for somewhat playful arguments’ sake, if Dershowitz is correct in his selective reading of Article II’s Impeachment Clause, as he himself admits, more than one political candidate, including Professor Richard Painter, who is running for the U.S. Senate, has asserted that Trump’s actions amount to Treason.[39] Dershowitz harshly criticizes Painter, saying that he “should read the words of the Constitution, rather than making up crimes for partisan and personal advantage.”[40] Interestingly, Dershowitz defends his own “pure motives” for writing the book by noting how many individuals and even legal scholars have accused him of doing the very same thing: “My motives have also been questioned by some of my academic and political colleagues. Am I being paid? Am I auditioning to be Trump’s lawyer?”[41]

In conclusion, Dershowitz asserts that he merely wants to focus on the importance of following precedent,[42] arguably the most interesting assertion in the book. Yet in his defense of President Trump, Professor Dershowitz fails to examine the legal precedent on the law concerning impeachment. Much like his attacks on those he differs with in this book, Professor Dershowitz is being selectively principled with his arguments and review of the law. Perhaps the following best highlights a flaw in this book: it is evidently shameless for Painter to attack President Trump while Painter is running for office, but it is not shameless for Dershowitz to defend Trump while Dershowitz is selling books? Further, by his own admission, Dershowitz wants all to appreciate the importance of precedence,[43] but he fails or refuses to address legal precedence when dismissing “high Crimes and Misdemeanors” as a basis for impeachment, despite said basis being used against both President Clinton and President Nixon.

 


[*] *.. Professor of Law, Florida International University College of Law.

[†] †.. J.D. Candidate 2020, Florida International University College of Law.

[‡] ‡.. J.D. Candidate 2020, Florida International University College of Law.

[§] §.. J.D. Candidate 2020, Florida International University College of Law.

 [1]. Alan Dershowitz, The Case Against Impeaching Trump (2018).

 [2]. Id. at 1.

 [3]. U.S. Const. art. II, § 4.

 [4]. Dershowitz, supra note 1, at 10.

 [5]. See Dershowitz, supra note 1, at 5.

 [6]. Sandy Fitzgerald, Alan Dershowitz: Constitution Doesn’t Guarantee Right to Abortion, Newsmax (Oct. 27, 2013), https://www.newsmax.com/newsfront/dershowitz-constitution-abortion
/2013/10/27/id/533294.

 [7]. U.S. Const. art. III, § 3.

 [8]. See Dershowitz, supra note 1, at 3.

 [9]. See Dershowitz, supra note 1, at 2–3, 10.

 [10]. Id. at 3–7.

 [11]. Id. at 12.

 [12]. Id. at 7–8.

 [13]. Dershowitz’s attack on the “ejusdem generis” argument is peculiar. He says that that the argument is built on a ‘logical fallacy’ but (1) that’s absolutely untrue because this argument is based on the basics of grammar and (2) he doesn’t back up his point. Further, he goes on to talk about how a crime is needed. But we have that in Trump’s case: obstruction of justice.

 [14]. See Dershowitz, supra note 1, at, 17.

 [15]. Thomas Emerson, Impeachment: The Constitutional Problems, 74 Colum. L. Rev. 131, 131 (1974) (emphasis added).

 [16]. John O. McGinnis, Impeachment: The Structural Understanding, 67 Geo. Wash. L. Rev. 650, 653 (1999).

 [17]. See generally Mark Slusar, Comment, The Confusion Defined: Questions and Problems of Process in The Aftermath of the Clinton Impeachment, 49 Case W. Res. L. Rev. 869 (1999).

 [18]. Id. at 872.

 [19]. See generally, e.g., Lawrence Tribe, Defining “High Crimes And Misdemeanors”: Basic Principles, 67 Geo. Wash. L. Rev. 712 (1999).

 [20]. Id. at 712–15.

 [21]. Stephen B. Presser, Would George Washington Have Wanted Bill Clinton Impeached?, 67 Geo. Wash. L. Rev. 666, 676 (1999).

 [22]. Gary L. McDowell, “High Crimes and Misdemeanors”: Recovering the Intentions of the Founders, 67 Geo. Wash. L. Rev. 626, 649 (1999).

 [23]. Cass R. Sunstein, Impeachment and Stability, 67 Geo Wash. L. Rev. 699, 711 (1999)

 [24]. See Dershowitz supra note 1, at 7–8.

 [25]. See generally Linda Jellum, The Art of Statutory Interpretation: Identifying The Interpretive Theory of the Judges of the United States Court of Appeals for Veterans’ Claims and the United States Court of Appeals for the Federal Circuit, 49 U. Louisville L. Rev. 59 (2010); Elliot M. Davis, The Newer Textualism: Justice Alito’s Statutory Interpretation, 30 Harv. J.L. & Pub. Pol’y 983 (2007).

 [26]. Id. at 23–24.

 [27]. See, e.g., Matthew Bell, Did Trump Commit Treason in Helsinki?, PRI (July 17, 2018), https://www.pri.org/stories/2018-07-17/did-trump-commit-treason-helsinki; Grace Panetta, Former CIA Director John Brennan Said Trump’s Press Conference with Putin Was ‘Treasonous’ — Here’s What Legal Experts Say, Bus. Insider (July 16, 2018), https://www.businessinsider.com/did-trump-committ-treason-russia-summit-2018-7; Ian Schwartz, Ralph Peters: Trump “Committed Treason” if He Got Info from Russians, Attacking Press Like Goebbels, Real Clear Pol. (Aug. 1, 2018), https://www.realclearpolitics.com/video/2018/08/01/ralph_peters_trump_committed_treason_if_he_got_info_from_russians_attacking_press_like_goebbels.html.

 [28]. Though he has repeatedly denied he represents Trump, he at least takes the position of an apologist for Trump.

 [29].  See Dershowitz supra note 1, at 7–8.

 [30]. See The Clinton Impeachments, Justia: US Law, https://law.justia.com/constitution/us/article
-2/55-the-clinton-impeachment.html (last visited Nov. 5, 2018).

 [31]. Approved Articles of Impeachment, Wash. Post, https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/articles122098.htm (last visited Oct. 23, 2018) (presenting the text of the articles of impeachment against Bill Clinton).

 [32]. Dan Nonicki, In 1974, Goldwater and Rhodes Told Nixon He Was Doomed, AZCentral (Aug. 2, 2014), https://www.azcentral.com/story/azdc/2014/08/03/goldwater-rhodes-nixon-resignation
/13497493.

 [33]. Articles of Impeachment, Watergate.info, http://watergate.info/impeachment/articles-of-impeachment (last visited Oct. 23, 2018) (presenting Article 1 of the Articles of Impeachment against Richard Nixon adopted by the House Judiciary Committee on July 27, 1974, contain an obstruction of justice charge).

 [34]. Charlie Savage, Newly Discovered Clinton-era Memo Says Presidents Can Be Indicted, N.Y. Times (July 22, 2017), https://www.nytimes.com/interactive/2017/07/22/us/document-Savage-NYT-FOIA-Starr-memo-presidential.html (Appendix to the article); see also Jack Maskell, Cong. Res. Serv., Status of a Senator Who Has Been Indicted for or Convicted of a Felony (2015), https://fas.org/sgp/crs/misc/RL34716.pdf; A Sitting President’s Amenability to Indictment and Criminal Prosecution, Dep’t of Justice, https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution (last visited Oct. 23, 2018).

 [35]. Dershowitz supra note 1, at 24.

 [36]. See Ediberto Roman et al., Collusion, Obstruction of Justice, and Impeachment, 45 Notre Dame J. Legis. (forthcoming 2018).

 [37]. Dershowitz supra note 1, at 24.

 

 [38]. Dershowitz supra note 1, at 5–6.

 [39]. Id.

 [40]. Id.

 [41]. Id. at 54.

 [42]. Id. at 27.

 [43]. Id. at 3.

 

The Weintraub Principle: Attorney-Client Privilege and Government Entities – Postscript (Comment) by Jason Batts

From Volume 92, Number 1 (August 2018)
DOWNLOAD PDF


The Weintraub Principle: Attorney-Client Privilege and Government Entities

Jason Batts[*]

Amidst the backdrop of a federal investigation into the actions of President Donald Trump, a previously unexplored legal question has emerged on a topic that forms the foundation of legal practice: Can a succeeding government official revoke a predecessor’s claim of the attorney-client privilege? Although the question is novel, its role within the government context is well established—having been asserted by Presidents Richard Nixon and Bill Clinton in their respective administrations. The context of current events, however, underscores the need to further define the operation of a privilege that is once again being relied upon by a president under investigation.

In this Article, I argue that a public official should be permitted to revoke a predecessor’s claim of the attorney-client privilege if made on behalf of the government entity. I justify this determination by applying the same corporate rationale put forth by the Supreme Court in Commodity Futures Trading Commission v. Weintraub to the government context. Termed the “Weintraub Principle,” I contend that government agents should have the same authority afforded to their corporate counterparts for three primary reasons: (1) corporate and government entities are restricted to operating through replaceable agents; (2) corporate and government agents are granted authority from others to act on behalf of the entity; and (3) agents in both contexts owe a duty to act in the best interests of the entity—as well as to shareholders in the corporate setting and to the public in the government environment. While acknowledging the likely counterarguments to my proposal, further analysis reveals how each criticism falls short of prohibiting the rule’s application to government entities. In conclusion, I summarize the rationale for my argument and highlight the Weintraub Principle’s real-world application.

Introduction

“Attorney-client privilege is dead!”[1] This announcement by President Donald Trump declaring the passing of one of the oldest concepts known to law, came as a surprise to many in the legal community and garnered headlines around the world.[2] Absent from the death certificate was the cause of the privilege’s untimely, alleged demise—the search and seizure by federal agents of files maintained by President Trump’s private attorney, Michael Cohen.[3] The taking of Cohen’s documents represented the latest maneuver by federal officials charged with investigating alleged wrongdoings by President Trump and his associates.[4]

Political scandals are as old as government itself.[5] While far from a uniquely American phenomenon,[6] the modern political investigations regarding Presidents Richard Nixon and Bill Clinton captivated a worldwide audience and set a precedent for future actions involving high-ranking government officials.[7] Although such legal actions can involve defendants who are as concerned about the court of public opinion as the court of legal decision,[8] the spotlight in such cases can grow as focused on the legal doctrines involved as easily as it can upon the parties to the action.[9] For example, during the impeachment of President Clinton, an American public that typically associated privilege with political leaders also became acquainted with a legal form of privilege between an attorney and client.[10] While the Clinton impeachment process played out, the privilege rose in notoriety as Clinton’s White House cited it in fighting to keep private certain conversations with in-house counsel.[11]

In the current tumultuous political environment, fueled by investigations into President Trump and those associated with his administration, the attorney-client privilege is again gaining notoriety as part of the legal toolkit for a president under investigation.[12] Following the seizure of documents from properties being used by the President’s attorney, President Trump and Mr. Cohen asked a court to throw out the material collected, arguing it was privileged.[13] In addition, the President’s son, Donald Trump, Jr., cited the attorney-client privilege as justification for refusing to answer questions in a hearing before the House Intelligence Committee.[14] This resurgent notoriety of the attorney-client privilege and discussion of how the privilege operates within the government context will likely grow as the investigations into the Trump administration continue.[15]

It would be disingenuous, however, to suggest that the attorney-client privilege was an ignored legal issue outside the realm of modern political events.[16] Presidential sagas—like those of Nixon, Clinton, and Trumpmerely provide a catalyst for media pundits and legal commentators to discuss a topic that is all too familiar to legal scholars[17] Much has been written about the privilege’s history and its application to courts in the United States and abroad.[18] Scholarship has also delved into the intricate theories of the privilege by discussing its potential application to government lawyers.[19] However, one question remains unanswered: Whether the successor to a government official can revoke a predecessor’s claim of attorney-client privilege? Faced with this unresolved issue, courts should apply the corporate principle outlined in Commodity Futures Trading Commission v. Weintraub[20] to government actors and permit a successive government agent to revoke a predecessor’s claim of the attorney-client privilege.

I.  Application of the Attorney-Client Privilege to Corporate and Government Entities

Although courts and scholars have relied upon various enunciations of the rule for attorney-client privilege, one replete with the intricacies of modern practice is found in the often-cited case United States v. United Shoe Machinery Corporation.[21] For entities, that analysis becomes complicated because they are restricted to acting through agents.[22] To assist with the task of applying the privilege in the entity context, courts have developed various tests that are largely focus on the status of the entity employee.

In 1950, a Massachusetts District Court put forth the first such test in a broad holding that permitted an employee to invoke the privilege on a corporation’s behalf if the majority of the employee’s job activities involved legal work and the communication remained secret from public disclosure.[23] In 1962, a District Court for the Eastern District of Pennsylvania created the “control-group test,” which narrowed application of the corporate privilege to include only those communications between corporate counsel and agents who controlled the corporation.[24] Under this test, the privilege would apply if the recipient possessed sufficient authority to implement changes within the corporation based upon the advice received.[25] Considering the different approaches, in 1970, the Seventh Circuit Court of Appeals created the “subject-matter test.”[26] This test required an employee to seek legal advice at the direction of a supervisor on a “subject matter” within the employee’s realm of work responsibility.[27] Finally, in 1981, the United States Supreme Court announced the Upjohn Test in an opinion that acknowledged the different tests, but refused invitations to endorse one over the other.[28] Instead, the Court used five factors to determine whether a communication is privileged in the corporate context.[29]

The boundaries for government application of the attorney-client privilege are not as established as their corporate counterparts.[30] This is particularly true in the criminal context, which—as the Second Circuit Court of Appeals wryly notedis ripe for a Supreme Court decision to resolve the current judicial split.[31] The public function served by government agents and the potentially high-ranking clients involved in such cases further demonstrates the need for clarity as to how the privilege operates within the government context.[32] Often with little underlying analysis, courts have seemingly deferred to a version of the control-group test by assuming that elected officials have authority to assert the privilege.[33]

In contrast to the disagreement over how the privilege operates with respect to entities, unanimity exists as to how the entity itself operates. Whether the entity is a business or a government agency, both act through agents.[34] The agents, in turn, possess authority and bear responsibility for asserting the attorney-client privilege on behalf of the entity when in its “best interests.”[35] This intersection—where the requirement of entity agents to invoke the privilege as well as their power to do so collide—highlights the unresolved issue of a succeeding government official’s authority.

This analysis has practical implications because it is not hard to imagine a scenario where a newly elected politician might revoke the privilege of her or his predecessor. For instance, the Obama administration could have sought to revoke the privilege that protected communications made during the Bush administration—a practice which frustrated some in Congress at the time.[36] In addition, a future president could seek to revoke any claims of privilege put forth by officials within the Trump administration on behalf of the executive branch.[37] Applying the Weintraub Principle in the government context permits a court to logically draw upon similarities to corporate entities, while furthering the distinctively public function of public agencies.[38]

II.  Development of the WeintrAUb Principle

In the seminal case Commodity Futures Trading Commission v. Weintraub, the Supreme Court set out to resolve a circuit split as to “whether the trustee of a corporation in bankruptcy has the power to waive the debtor corporation’s attorney-client privilege with respect to communications that took place before the filing of the petition in bankruptcy.”[39] Although not appearing in the title, the case stemmed from an inquiry into the Chicago Discount Commodity Brokers (“CDCB”) by the Commodity Trading Commission (“the Commission”).[40] After the CDCB filed bankruptcy, a permanent trustee was appointed to act on its behalf, thus setting the stage for a confrontation to determine which agent was authorized to assert attorney-client privilege on behalf of a corporate entity in bankruptcy.[41]

While the trustee moved forward with the corporation’s bankruptcy action, so too did the Commission with its investigation into allegations of misconduct by CDCB agents. As part of its inquiry, the Commission subpoenaed Mr. Gary Weintraub—the former counsel for the CDCB.[42] Although Weintraub provided sworn answers to the Commission, he “refused to answer 23 questions, asserting CDCB’s attorney-client privilege.”[43] In response, the Commission filed a motion requiring Mr. Weintraub to answer the remaining questions, while taking the unorthodox approach of communicating directly with the bankruptcy trustee to request the trustee use his authority to waive CDCB’s privilege. The trustee agreed to abandon any right to the privilege owned by the CDCB up to the date he was appointed. Although the district court found the trustee could waive the privilege, thus requiring Mr. Weintraub to testify, the Seventh Circuit overturned this decision, placing the power to waive privilege back in the hands of Mr. Weintraub.[44] Subsequently, the Supreme Court accepted the case to resolve the issue and the circuit split that had developed.[45]

As respondents, Mr. Weintraub and his counsel put forth five primary arguments for why the Court should permit management of a corporation in bankruptcy to retain the authority to assert attorney-client privilege. First, they argued that the allegiances of a trustee would be to the creditors that selected her or him, as opposed to the shareholders of the debtor corporation.[46] The Court dismissed this argument by noting that the fiduciary duties of a trustee are to “shareholders as well as to creditors.”[47] Furthermore, were there to be no trustee appointed, the managers of the insolvent corporation would share the same dual fiduciary duty as a trustee.[48] The Court also shrewdly observed that “out of all management powers” lost to a trustee during bankruptcy, the respondents had offered no justification as to why the attorney-client privilege should be the sole power treated differently.[49]

Second, the respondents argued that the Court’s decision “would also apply to individuals in bankruptcy.”[50] However, the Court rejected this notion by drawing upon the distinction between human and entity clients to convey that any such result would be an overly broad application of their ruling. As the Court noted, whereas a person makes his or her own decisions, “a corporation, as an inanimate entity, must act through agents.”[51] Therefore, the decision held that any subsequent ruling involving a person in the same context would require different legal reasoning than employed in Weintraub.[52]

Third, the respondents claimed that granting a bankruptcy trustee power over the privilege would “have an undesirable chilling effect on attorney-client communications.”[53] Corporate executives, the theory went, would be far less willing to communicate openly with entity attorneys if the conversations were discoverable in an ensuing bankruptcy matter. However, the Court dispelled this argument by noting that any hesitancy would be no greater than the amount already existing for corporations operating outside of bankruptcy. Future managers of corporations that are not going through bankruptcy could always “waive the corporation’s attorney-client privilege with respect to prior management’s communications with counsel.”[54]

Fourth, the respondents claimed that vesting authority to control an insolvent entity’s attorney-client privilege in a trustee is tantamount to “‘economic discrimination.’”[55] The Court acknowledged that solvent and insolvent corporations were treated differently, but noted that this was by legislative design. Bankruptcy laws grant courts the ability to “change radically and materially [the] rights and obligations” of an insolvent debtor, and the respondents failed to provide the Court with an explanation as to why the disparity in treatment was unwarranted.[56]

Finally, the respondents claimed that permitting a trustee to waive a corporate successor’s privilege would deter individuals and entities from pursuing the shelter of bankruptcy.[57] Ruling in favor of the Commission, according to the respondents, would “provide an incentive for creditors to file for involuntary bankruptcy.”[58] However, the Court disagreed, noting that there are a number of factors that might motivate a party to pursue or avoid bankruptcy.[59] The Court felt that any impact of its decision upon the calculus of a party weighing the possibility of bankruptcy, would be in accord with “congressional intent.”[60]

Having considered and refuted the arguments put forth by Mr. Weintraub, the Court overruled the Seventh Circuit and implemented the Weintraub Principle—that a corporate successor in interest can revoke a predecessor’s assertion of attorney-client privilege.[61]

III.  Applying the Weintraub Principle to Government Entities

With the well-articulated, point-by-point approach taken in Weintraub, the Court laid the groundwork for applying the rationale to similar scenarios. The characteristics of corporate entities described by the Court are also applicable to government agencies. Further analysis of each shared trait establishes strong evidence for employing the Weintraub Principle in both contexts.

A.  The Agent Requirement

The Court in Weintraub held that, “[a]s an inanimate entity, a corporation must act through agents [and] cannot directly waive the attorney-client privilege when disclosure is in [the entity’s] best interest.”[62] Likewise, a government agency is an inanimate entity that must act through its agents.[63] It cannot speak for itself, and similarly, it cannot directly waive the privilege when disclosure is in its best interest.[64] Furthermore, the agents operating within each type of entity are replaceable.[65] Whether the chief executive officer of a company or the president of the country, the end of their tenure does not result in the expiration of the entity.[66] By operating via agents who are replaceable, entities can carry on in perpetuity, with varying individuals speaking on its behalf throughout its lifespan.[67] Since both government and corporate entities are restricted to operating through interchangeable agents, courts should apply the Weintraub Principle to successive government agents.

B.  The Sources of Authority

The Court in Weintraub also justified its decision to allow corporate successorsininterest the power to revoke a predecessor’s claim of privilege by recognizing that the power wielded by entity agents stems from other authorities.[68] Corporate officers are empowered to act on behalf of the entity by the board of directors, who in turn are vested with authority by the shareholders.[69] Similarly, government agents are endowed by the people to act on their behalf.[70] Actors within a government entity may be elected by the people, appointed by the elected official, or hired by a subordinate to the officeholder.[71] The existence of empowering authorities, who select agents to act on their behalf, illustrates another similarity between the two entity types that justifies application of the Weintraub Principal in both contexts.[72]

C.  The Duty Owed to Others

Finally, operating as an agent carries certain obligations to act in the interests of the principle.[73] Private entities, for example, rely on senior officers to assert the privilege “in a manner consistent with their fiduciary duty to act in the best interests of the corporation.”[74] Likewise, government entities often act through high-ranking elected officials[75] who must take care to assert the privilege in accord with the official’s duty to the public in honest and open government.[76] Breach of duty in either context can result in judicial action against the agent.[77] Permitting a government official to revoke a predecessor’s assertion of the privilege is in furtherance of the official’s duty to “open government” since it would reveal government information.[78] Furthermore, a government agent’s decision to waive a predecessor’s claim of privilege would be a direct implementation of the people’s will since the people elected the new public official.[79]

IV.  Counterarguments to Applying the Weintraub Principle to Government Entities

Applying the Weintraub Principle to the government context will not be without critics. The attorney-client privilege is central to the practice of law, and any proposed hindrance to its operation might understandably inspire well-intentioned counterarguments. Ultimately, just as with corporate employees, an elected official can retain a private attorney to deliver independent advice that would be exempt from future revocation by a successor in interest.[80] After all, the Court in Weintraub acknowledged that its ruling applied solely to entities, given their unique structure, and that any similar conclusion reached by a court in the context of individuals would require different reasoning.[81] While the option of hiring private counsel remains available to an agent of either entity, it is not the only rebuttal available to courts responding to criticisms of applying the Weintraub Principle to government entities.

A.  Applying the Weintraub Principle to Government Entities Would Have a Chilling Effect

Opponents may argue that applying this corporate standard to government entities would produce a chilling effect on government communications.[82] As the respondents in Weintraub argued, permitting discovery of attorney-client communications could deter agents from having candid conversations with entity attorneys.[83] This point is significant as it cuts to the very purpose of the privilege—to induce open communications between attorneys and clients.[84] Ultimately, this argument is unpersuasive because the attorney-client privilege is not absolute and other opportunities exist to seek legal advice that are exempt from public inspection.

For example, the privilege does not protect communications pertaining to ongoing criminal or fraudulent activity.[85] Clients continue to successfully seek competent legal advice in spite of this exemption. In addition, “[e]xisting protections, including exemptions to the [Freedom of Information Act], special governmental privileges, and the attorney work product doctrine, offer sufficient protection for the government’s legitimate interests in confidentiality.”[86]

Considering the privilege exceptions already in operation, as well as the additional safeguards available for certain communications, revoking a predecessor’s claim of privilege would not “have an undesirable chilling effect on client-attorney communications.”[87] Furthermore, the lack of any cognizable chilling impact brought to light in the corporate context since Weintraub provides strong circumstantial evidence supporting the Court’s decision as well as my thesis.[88] In fact, some express skepticism as to whether or not the privilege actually promotes candor at all.[89]

B.  Applying the Weintraub Principle to Government Entities Will not Reflect the Will of the People

Critics may also argue that applying the Weintraub Principle to government entities is not in furtherance of the public duty owed by government officials.[90] Those opposed to the government’s application of the rule could note that it is impossible to know if the revocation would be representative of the people’s will because it is unlikely a candidate would run on the platform of “promising to revoke my predecessor’s claim of privilege on day one.” Although a candidate may face a variety issues in a campaign, an elected official faces a myriad of issues that are not thoroughly expounded on during a campaign—either because there were more important topics that occupied the limited time of the election or because it was not an issue yet.[91] Thus, government officials should be permitted to revoke a predecessor’s claim of privilege because the decision to do so may be one of many issues not discussed during the campaign.

C.  Applying the Weintraub Principle to Government Entities Would Endanger National Security

Even conceding the application of Weintraub to government officials, opponents may argue against allowing government successors the power to revoke claims of privilege by their predecessors because government lawyers have access to confidential material that should not be divulged to the public.[92]

While “the government entity has a unique public function”[93] involving access to “military secrets [and] sensitive negotiations with foreign governments,” it must also adhere to the strict regulations barring distribution of such information that would prevent the disclosure of national security secrets or other highly confidential matters.[94] For example, the Freedom of Information Act contains provisions that prevent the general public from accessing secretive information.[95] Such protections would adequately safeguard critical communications from being disclosed by a succeeding government official.

CONCLUSION

In summary, considering the inherent conflict between the public’s right to open government and an individual’s interest in having private communications with an attorney, it seems inevitable that a court will confront the question considered by this paper. In the context of current events, President Trump could invoke the privilege yet again—this time in his position as president—to defend against the federal inquiry that is ongoing at the time of this writing.[96] While it is impossible to predict the course of an investigationespecially one occurring within the political settingthe President’s assertion of the privilege already demonstrates its value to his defense strategy. If the investigations continue with the same scope and public intensity as have been exhibited thus far, the likelihood only grows that President Trump will invoke the privilege in the same manner as former Presidents Nixon and Clinton. If that occurs, the next president would face the question of whether revocation of Trump’s assertion serves the public interest.

Even absent further assertion of the privilege by President Trump, the surging popularity of the rule during his tenure highlights the need for an answer to the question posed in this paper.[97] Confronted with a case on this issue, a court should draw upon the parallels between private corporations and government agencies and apply the corporate Weintraub Principle to the government context. Both types of entities are restricted to acting through agents who acquire authority from others and must assert the privilege in keeping with their duty to shareholders or the public. Such an application applies sound legal principles to further the public interest, while also proving that the attorney-client privilege is not only alive and well, but healthy enough to survive the transition of government power in a democracy.[98]


[*] *. Prosecutor, Hickman County, Kentucky; B.A. 2005, Morehead State University; J.D. 2010, Washington University School of Law; Editor-in-Chief, Washington University Law Review, Volume 87. Special Victim’s Counsel to sexual-assault victims as a Judge Advocate in the United States Army Reserve. Military information does not imply endorsement by the Department of Defense or the Department of the Army. All analysis and opinions are my own. I remain very thankful to Professor Kathleen Clark for her helpful comments and express my sincere gratitude to Professor Brad Areheart and Professor Rebecca Hollander-Blumoff for their respective time, assistance, and encouragement.  In addition, I appreciate the staff on the Southern California Law Review, especially Daniel Brovman, for their helpful and professional guidance. I am forever grateful to Judge Hunter B. Whitesell, II and attorneys, Richard Major and Amanda Major, for their unending patience and teaching. I dedicate this Article to my family, without whom this would not be possible.

 

 [1]. Donald J. Trump (@realDonaldTrump), Twitter (Apr. 10, 2018, 6:07 AM), https://twitter.com/realdonaldtrump/status/983662868540346371.

 [2]. E.g., Andrew Buncombe, Trump ‘Bouncing Off Walls’ with Rage After FBI Raid on Personal Lawyer’s Offices, The Independent, Apr. 11, 2018, at 27; Ben Riley-Smith, Republicans Warn Trump not to Fire Mueller, Daily Telegraph, Apr. 11, 2018, at 11; Chidanand Rajghatta, Trump Goes Ballistic as FBI Closes in, Raids His Personal Lawyer, Times of India, (Apr. 10, 2018, 9:09 PM), https://timesofindia.indiatimes.com/world/us/trump-goes-ballistic-as-fbi-closes-in-raids-his-personal-lawyer/articleshow/63700727.cms; Lawrence Douglas, The Cohen Raid Is a Game Changer: Trump’s Reaction Tells Us So, Guardian, (Apr. 10, 2018, 11:03 AM) https://www.theguardian.com/us-news/2018/apr/10/donald-trump-michael-cohen-raid-comment. Research of news articles via Google News that included the terms “Trump attorney client privilege”, restricted to the twenty-four hours after the President’s Tweet regarding the privilege’s death, returned about 14,500 results. Similarly, a search of Lexis Advance that I limited to “major non-U.S. newspapers” for the same twenty-four-hour period returned twenty-six results within this more defined pool of news outlets.

 [3]. Matt Apuzzo, F.B.I. Raids Office of Trump’s Longtime Lawyer Michael Cohen; Trump Calls it ‘Disgraceful’, N.Y. Times (Apr. 9, 2018), https: //www.nytimes.com/2018/04/09/us/politics/fbi-raids-office-of-trumps-longtime-lawyer-michael-cohen.html; Josh Gerstein, Trump Lawyer Presses for Access to Seized Cohen Files, Politico (Apr. 15, 2018, 10:57 PM), https://www.politico.com/story/ 2018/04/15/trump-cohen-files-access-seized-526268.

 [4]. See Philip Bump & Devlin Barrett, Investigation of Trump Attorney Cohen Underway for Months, Filing Shows, Wash. Post, Apr. 14, 2018, at A5; Matt Apuzzo et al., Trump Sees Inquiry into Cohen as Greater Threat than Mueller, N.Y. Times (Apr. 13, 2018), https://nyti.ms/2JDyg0h.

 [5]. See Ramsay MacMullen, Corruption and the Decline of Rome (1988); Kyle Swenson, America’s First ‘Hush Money’ Scandal, Wash. Post (Mar. 23, 2018), http://wapo.st
/2u90MD2?tid=ss_tw-bottom&utm_term=.97f3aeccf148.

 [6]. See, e.g., Choe Hang-Sun, Park Geun-hye, South Korea’s Ousted President, Gets 24 Years in Prison, N.Y. Times (Apr. 6, 2018), https://nyti.ms/2EmuUec; Lula: Former Brazilian President Surrenders to Police, BBC News (Apr. 8, 2018), http://www.bbc.com/news/world-latin-america-43686174.

 [7]. See e.g., Caryn James, Testing of a President: The Speech; Apology and Defiance Echo a Nixon Address, N.Y. Times, Aug. 18, 1991, at A16; Suzanne Garment, Nixon’s Decisions During Watergate May Help Us Understand the Legal Trouble Trump Is in Now, NBC News (Apr. 5, 2018, 1:29 AM), https://www.nbcnews.com/think/opinion/nixon-s-decisions-during-watergate-may-help-us-understand-legal-ncna862821; Sex, Lies and Impeachment, BBC News (Dec. 22, 1998), http://news.bbc.co.uk/2/hi/special_report/1998/12/98/review_of_98/themes/208715.stm.

 [8]. State of the Union with Jake Tapper, CNN (Apr. 15, 2018, 9:00 AM to 10:00 AM), https://archive.org/details/CNNW_20180415_160000_State_of_the_Union_With_Jake_Tapper/start/1299/end/1359 (starts at 9:20 AM).

My guess is that his lawyers don’t want him to go about it that way. That there’s lots of evidence, not necessarily in this Tweet storm, but in other Tweet storms, that will be bad for him if Bob Mueller you know ends up coming around to bringing some kind of case together either in a report or otherwise relating to obstruction. Every single time the President makes clear that he doesn’t like an investigation of him or his associates, and wants that investigation to stop, that adds to the narrative that when he takes an action that actually can cause the investigation to stop that that was intentional and was potential obstruction. I’m not saying it is obstruction, but its adds grist for people to find that to be true.

Id. In addition, during investigations concerning President Clinton, the President boldly pronounced that he “did not have sexual relations with that woman.” Bill Clinton: ‘I Did Not Have Sexual Relations with that Woman.’, Wash. Post (January 25, 2018, 4:39 PM EDT), https://www.washingtonpost.com
/video/politics/bill-clinton-i-did-not-have-sexual-relations-with-that-woman/2018/01/25/4a953c22-0221-11e8-86b9-8908743c79dd_video.html (affirming this story under oath caused the President to commit perjury); Mr. Clinton’s Last Deal, N. Y. Times (Jan. 20, 2001), https://www.nytimes.com
/2001/01/20/opinion/mr-clinton-s-last-deal.html. Likewise, President Trump’s social media commentary may boost his standing among his political base but could prove detrimental to his legal interests. See Julie Bykowicz & Janet Hook, Trump Weekend Tweetstorm Responds to Mueller Indictment, Wall St. J. (Feb. 18, 2018, 11:11 AM), https://www.wsj.com/articles/trump-weekend-tweetstorm-responds-to-mueller-indictment-1518967910.

 [9]. The investigations into Presidents Nixon, Clinton, and Trump increased the popular notoriety of the privilege through its repeated appearance in media reporting. See, e.g., Lesley Oelsner, Ehrlichman Blames Nixon, N.Y. Times, Oct. 16, 1974, at A1; Jacqueline Thomsen, Trump Lawyers Argue Material Seized in Cohen Raid Is Protected by Attorney-Client Privilege, The Hill (Apr. 13, 2018, 11:41 AM), http://thehill.com/homenews/administration/383019-trump-lawyers-argue-material-seized-in-cohen-raid-is-protected-by.

 [10]. Bob Franken, White House Says Clinton Needs Attorney-Client Privilege for Impeachment Fight, CNN (Aug 21, 1998), http://edition.cnn.com/ALLPOLITICS/1998/08/21/lewinsky.

 [11]. Id.; H.R. Res. 611, 105th Cong., 144 Cong. Rec. 11774 (1998) (enacted).

 [12]. See, e.g., Kathleen Parker, We’ve Seen This Movie Before. It Ended in Impeachment., Wash. Post (Apr. 10, 2018), https://wapo.st/2qkNFJO?tid=ss_tw-bottom&utm_term=.f83b124ba01c; Mike Huckabee (@GovMikeHuckabee), Twitter (Jun 13, 2017, 1:04 PM), https://twitter.com
/govmikehuckabee/status/874719159585841152?lang=en (“Dems act like they never heard of atty/client privilege; AG is top atty in Exec branch; serves @POTUS and not stooge of Congress.”).

 [13]. Thomsen, supra note 9.

 [14]. Kyle Cheney, Trump Jr. Cites Attorney-Client Privilege in not Answering Panel’s Questions About Discussions with his Father, Politico (December 6, 2017, 7:37 PM), https://www.politico.com
/story/2017/12/06/donald-trump-privilege-questions-284841.

 [15]. It is worth noting that the current investigations concerning President Trump are occurring amidst the backdrop of a federal government controlled by members within the President’s own political party. Congress has immense investigatory powers, which are most practically limited by its willingness to utilize them. Should the Democratic Party take control of Congress, or simply the House of Representatives or Senate, members in the new majority would likely have a far greater willingness to investigate the Trump administration.

 [16]. See, e.g., 8 John Henry Wigmore, Evidence in Trials at Common Law § 2292 (McNaughton rev. 1961); John Damin, Thawing the Chill Between Government Attorneys and Their Clients: The Need for Legislative Intervention in Protecting the Governmental Attorney-Client Privilege, 111 Penn. St. L. Rev. 1009, 1010 (2007).

 [17]. See, e.g., Gregory I. Massing, The Fifth Amendment, the Attorney-Client Privilege, and the Prosecution of White-Collar Crime, 75 Va. L. Rev. 1179 (1989); Clinton’s Senate Trial: How It Will Work, Palm Beach Post, Dec. 20. 1998, at 22A.

 [18]. See, e.g., Paul R. Rice, Attorney-Client Privilege in the United States § 1:11 (2d ed. 1999); Damin, supra note 16, at 1013–15.

 [19]. See, e.g., Damin, supra note 16, at 1010–11 (quoting In re Bruce R. Lindsey, 158 F.3d 1263, 1271 (D.C. Cir. 1998)); Michael Stokes Paulson, Who “Owns” the Government’s Attorney-Client Privilege?, 83 Minn. L. Rev. 473, 475 (1998) (“My topic concerns one of the many important practical consequences that flows from this post-Morrison constitutional order: how control over the government’s attorney-client privilege works under a regime of divided executive management of USA, Inc.”) (providing analysis, in the context of the impeachment of President Clinton, of the privilege’s operation within the federal Executive Branch).

 [20]. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343 (1985).

 [21]. United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358–59 (D. Mass. 1950).

The privilege applies only if (1) the asserted holder of the privilege is or sought to be come [sic] a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Id. See also John E. Sexton, A Post-Upjohn Consideration of the Corporate Attorney-Client Privilege, 57 N.Y.U. L. Rev. 443, 445 n.5 (1982) (claiming Dean Wigmore’s definition is “the most widely cited formulation of the elements of the attorney-client privilege” before also reciting the definition put forth in United Shoe).

 [22]. See, e.g., Bellis v. United States, 417 U.S. 85, 90 (1974) (stating “the inescapable fact that an artificial entity can only act to produce its records through its individual officers or agents”); Braswell v. United States, 487 U.S. 99, 110 (1988) (citing Bellis, 417 U.S. at 90) (“Artificial entities such as corporations may act only through their agents.”).

 [23]. United Shoe, 89 F. Supp. at 361.

 [24]. Philadelphia v. Westinghouse Elec. Corp., 210 F. Supp. 483, 485 (E.D. Pa. 1962).

 [25]. Id. at 485–86.

 [26]. Harper & Row Publishers v. Decker, 423 F.2d 487, 491–92 (7th Cir. 1970).

 [27]. Id.

[A]n employee at a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation’s attorney is privileged where the employee makes the communication at the direction of his superiors in the corporation and where the subject matter upon which the attorney’s advice is sought by the corporation and dealt with in the communication is the performance by the employee of the duties of his employment.

Id.

 [28]. Upjohn Co. v. United States, 449 U.S. 383, 386 (1981).

 [29]. Id. at 394–95. The Court first considered whether the information was “available from upper-echelon management.” Id. Second, the Court examined whether the information was “needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas.” Id. Third, the Court reviewed whether the “communications concerned matters within the scope of the employees’ corporate duties.” Id. Fourth, it asked whether “the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice.” Id. Finally, the Court considered whether “the communications were considered ‘highly confidential’ when made . . . and have been kept confidential by the company.” Id. at 395.

 [30]. The evolutionary development of the corporate privilege spans decades and includes several tests developed by courts to determine the operation of the rule. See supra notes 2229 and accompanying text.

 [31]. United States v. Doe (In re Grand Jury Investigation), 399 F.3d 527, 536 n.4 (2d Cir. 2005) (“We are in no position, however, to resolve this tension in the law.”).

 [32]. See supra note 8 (stating examples of the potential high-ranking clients in government-privilege cases by comparing the investigations of Presidents Nixon and Clinton).

 [33]. See, e.g., In re Lindsey, 158 F.3d 1263, 1273 (D.C. Cir. 1998); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 920 (8th Cir. 1997). Unlike in cases involving corporations and other private entities, when the client is a public entity, courts often include a public-function element within their analysis. See, e.g., Lindsey, 158 F.3d at 1273 (“[T]he loyalties of a government lawyer therefore cannot and must not lie solely with his or her client agency.”); Duces Tecum, 112 F.3d at 920 (“[T]he general duty of public service calls upon calls upon government employees and agencies to favor disclosure over concealment.”).

 [34]. Deshaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 194 (1989); Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348 (1985); Bowen v. Watkins, 669 F.2d 979, 989 (5th Cir. 1982) (“At some level of authority, there must be an official whose acts reflect governmental policy, for the government necessarily acts through its agents.”). See also Anne Bowen Poulin, Party Admissions in Criminal Cases: Should the Government Have to Eat Its Words?, 87 Minn. L. Rev. 401, 404 (“Like a corporation, the government speaks and acts only through its agents.”); Carlos E. Gonzalez, Popular Sovereign Generated Versus Government Institution Generated Constitutional Norms: When Does a Constitutional Amendment not Amend the Constitution?, 80 Wash. U. L.Q. 127, 132 (2003) (considering the degree to which government entities represent the will of the people).

 [35]. See Weintraub, 471 U.S. at 34–49.

 [36]. See Cheney, Rice Approved Use of Waterboarding, Other Interrogation Tactics, FOX News (April 11, 2008), http://www.foxnews.com/story/0,2933,349948,00.html.

 [37]. See supra note 11 and accompanying text.

 [38]. See infra note 73 and accompanying text.

 [39]. Weintraub, 471 U.S. at 345.

 [40]. Id. The Commission sought to determine whether the Chicago Discount Commodity Brokers (“CDCB”) had “violated the Commodity Exchange Act, 7 U.S.C. § 1 et seq.” Id.

 [41]. Id. at 345–46. The bankruptcy court named Mr. John K. Notz, Jr. as the permanent trustee for CDCB, granting him authority to proceed with the bankruptcy action on behalf of the company, which occurred on the same day the Commodity Trading Commission (“the Commission”) filed a complaint against CDCB. Id.

 [42]. Id. at 346.

 [43]. Id.

 [44]. Id. at 346–47.

 [45]. Id. at 347.

 [46]. Id. at 354–55.

 [47]. Id. at 355–56.

 [48]. Id. at 355 (Respondents also ignore that if a debtor remains in possession—that is, if a trustee is not appointed—the debtor’s directors bear essentially the same fiduciary obligation to creditors and shareholders as would the trustee for a debtor out of possession.”) (citing Wolf v. Weinstein, 372 U.S. 633, 649–52 (1963).

 [49]. Id.

 [50]. Id. at 356 (emphasis in original).

 [51]. Id.

 [52]. Id. at 356–57.

 [53]. Id. at 357.

 [54]. Id.

 [55]. Id. 

 [56]. Id. (quoting McDonald v. Williams, 174 U.S. 397, 404 (1899)).

 [57]. Id. at 357–58.

 [58]. Id. at 357.

 [59]. Id. at 358.

 [60]. Id.

 [61]. Id. (noting that a corporate bankruptcy trustee “has the power to waive the corporation’s attorney-client privilege with respect to prebankruptcy communications”).

 [62]. Id. at 348.

 [63]. Rice, supra note 18, at § 4:28.

 [64]. Id.

 [65]. Trs. of Dartmouth Coll. v. Woodward, 17 U.S. 518, 636 (1819).

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities, that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being. 

Id. Practically speaking, a potential counterargument could be the small, family-run corporation that may cease to exist beyond the original proprietors. This potential result, however, does not negate the well-stated case herein, nor the excellent article authored by Professor Schwartz. See Schwartz, infra note 66.

 [66]. Andrew A. Schwartz, The Perpetual Corporation, 80 Geo. Wash. L. Rev. 764, 766 (2012) (“Natural persons can get sick and die, and similarly, other forms of business organization, such as the partnership or sole proprietorship, have only limited lifespans. But one of the defining legal characteristics of the corporation is its capacity to live forever.”).

 [67]. Woodward, 17 U.S. at 636.

 [68]. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 349 n.4 (1985) (citing Melvin Aron Eisenberg, Legal Models of Management Structure in the Modern Corporation: Officers, Directors, and Accountants, 63 Calif. L. Rev. 375 (1975)).

 [69]. Id.; Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 127 (3d Cir. 1998) (citing 2 William M. Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 434, at 339 (perm. rev. ed. 1992)).

 [70]. See, e.g., Perry v. United States, 294 U.S. 330, 353 (1935) (“The congress cannot revoke the sovereign power of the people . . . .”); The Federalist No. 22, at 152 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (“The Fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”); The Federalist No. 49, at 313–14 (James Madison) (Clinton Rossiter ed., 1961) (stating that “the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which THE several branches of government hold their power, is derived.”).

 [71]. See, e.g., U.S. Const. art. I, § 2 (stating “the People of the several States” are to elect House of Representatives members).

 [72]. Although differences between public and private entities can emerge when examining how a senior agent may be terminated in either context, similarities between the two continue when discussing employees operating at other levels. Employment contracts can result in countless different scenarios; however, in the context of an at-will-employment relationship, public and private entities enjoy broad latitude in deciding whether to terminate an employment relationship. Engquist v. Dep’t of Agric., 553 U.S. 591, 599 (2008) (“In light of these basic principles, we have often recognized that government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.”); Hugley v. Art Inst., 3 F. Supp. 2d 900, 908 (N.D. Ill. 1998) (quoting Kahn v. U.S. Sec’y of Labor, 64 F.3d 271, 279 (7th Cir. 1995)). Yet differences can emerge with respect to elected officials because their employment in a particular office is restricted to certain timespans as well as limits on the number of terms the official can serve. See, e.g., U.S. Const. amend. XIV, § 2; Haw. Const. art. V, § 1. This variance for elected officials does not dilute the number of similarities between public and private entities enough, however, to warrant a result other than applying the Weintraub Principle to public entities.

 [73]. Restatement (Third) of Agency § 1.01 (Am. Law Inst. 2006) (“Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.”).

 [74]. Weintraub, 471 U.S. at 348–49. See also Quadrant Structured Prods. Co. v. Vertin, 102 A.3d 155, 171 (Del. Ch. 2014).

 [75]. See, e.g., In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997) (involving a president); United States v. Doe (In re Grand Jury Investigation), 399 F.3d 527 (2d Cir. 2005) (involving a governor).

 [76]. Subpoena Duces Tecum, 112 F.3d at 918 (finding that restricting communications involving the first family would be “in derogation of the search of the truth”) (quoting United States v. Nixon, 418 U.S. 683, 710 (1974)).

 [77]. Bailey v. Mayor of New York, 3 Hill 531, 538 (N.Y. Sup. Ct. 1842) (“If a public officer authorizes the doing of an act not within the scope of his authority, . . . he will be held responsible.”); Vertin, 102 A.3d at 171–72.

 [78]. Subpoena Duces Tecum, 112 F.3d at 918 (quoting Nixon, 418 U.S. at 710). A succeeding administration could also determine that revoking the prior claim of privilege undersuch circumstances would be contrary to a duty to maintain a truthful, open government that instills confidence in the people. See Chrysler Corp. v. Brown, 441 U.S. 281, 292 (1979) (“The Act is an attempt to meet the demand for open government.”).

 [79]. Hastings Ctr., The Ethics of Legislative Life 29 (1985). One theory of political representation describes an elected official’s duty as “carrying out [the] set of express or tacit instructions” expressed by her or his constituents. Id.

 [80]. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 356 (1985) (“An individual, in contrast, can act for himself; there is no ‘management’ that controls a solvent individual’s attorney-client privilege.”).

 [81]. Id.

 [82]. See, e.g., id. at 357.

 [83]. Id.

 [84]. Mitchell v. Superior Court, 691 P.2d 642, 646 (Cal. 1984) (citing People v. Flores, 139 Cal. Rptr. 546, 547–48 (1977) (“Clearly, the fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters.”).

 [85]. United States v. Zolin, 491 U.S. 554, 562–63 (1989) (quoting 8 J. Wigmore, Evidence § 2298)).

 [86]. Lory A. Barsdate, Attorney-Client Privilege for the Government Entity, 97 Yale L.J. 1725, 1742 (1988).

 [87]. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 357 (1985).

 [88]. Although I agree with the insufficiency of a “lack-of-evidence-to-the-contrary,” it is difficult to believe that the dire “chilling effect” warned of by the respondents in Weintraub has come to fruition in the more than thirty years since the Supreme Court’s decision, given the silence on the matter since. However, this question is primed for further research to shed light on this possibility.

 [89]. See, e.g., Melanie B. Leslie, Government Officials as Attorneys and Clients: Why Privilege the Privileged?, 77 Ind. L.J. 469, 482–84 (2002).

 [90]. See supra notes 7071 and accompanying text.

 [91]. If a predecessor invoked privilege in between the successor’s election and successor’s swearing-in ceremony, there is arguably less incentive for the successor to have spoken about the issue during the previous campaign. This likelihood stems from the fact that neither political party currently recognizes the operation of attorney-client privilege as a campaign issue. See, e.g., Our Platform, Democrats, https://www.democrats.org/party-platform (last visited Aug. 21, 2018); RNC Communications, The 2016 Republican Party Platform, GOP: Blog (July 28, 2016), https://www.gop.com/the-2016-republican-party-platform. As party platforms are updated in response to issues of significance to the electorate, the platforms could include the issue of privilege revocation if it became significant.

 [92]. See Barsdate, supra note 86, at 1742–44 (noting and then refuting the existence of concerns surrounding the “sensitive communications” government attorneys have access to).

 [93]. Id. at 1738.

 [94]. Roger C. Cramton, The Lawyer as Whistleblower: Confidentiality and the Government Lawyer, 5 Geo. J. Legal Ethics 291, 294–95 (1991) (citing 26 U.S.C §§ 6103, 6104, 6108, 6110 (1988); 5 U.S.C. §§ 552, 552(a) (1988); 18 U.S.C. § 1905 (1988)).

 [95]. 5 U.S.C. § 552(b)(1)–(9) (2007).

 [96]. Prior invocation of the attorney-client privilege by Presidents Richard Nixon and Bill Clinton—as well as the current assertions by President Donald Trump and others associated with his administration—signal the possibility that the test case may involve a president. However, application of my thesis is by no means limited to members of the White House, as the rationale and logic put forth herein apply to local- and state-government agencies, as well.

 [97]. Analysis of the news articles regarding the privilege and President Trump’s references to the long-standing rule have resulted in a public-relations campaign that has promoted the privilege. With so much scholarship devoted to attorney-client privilege in recent years, such publicized talk of the privilege’s application to the President prove the need to resolve this unexplored question. Yet the test case may not end up involving a president or even federal officials; however, no matter the level of government agent involved, the current discussions stemming from President Trump illustrate the importance of the privilege in a government official’s day-to-day operations.

 [98]. See supra note 1 and accompanying text (discussing President Trump declaring the privilege dead).

Strategic Law Avoidance Using the Internet: A Short History – Postscript (Response) by Tim Wu

From Volume 90, Number 3 (March 2017)
DOWNLOAD PDF

 

We are now some twenty years into the story of the Internet’s bold challenge to law and the legal system. In the early 2000s, Jack Goldsmith and I wrote Who Controls the Internet, a book that might be understood as a chronicle of some the early and more outlandish stages of the story. Professors Pollman and Barry’s excellent article, Regulatory Entrepreneurship, adds to and updates that story with subsequent chapters and a sophisticated analysis of the strategies more recently employed to avoid law using the Internet in some way. While Pollman and Barry’s article stands on its own, I write this Article to connect these two periods. I also wish to offer a slightly different normative assessment of the legal avoidance efforts described here, along with my opinion as to how law enforcement should conduct itself in these situations.

Behind regulatory entrepreneurship lies a history, albeit a short one, and one that has much to teach us about the very nature of law and the legal system as it interacts with new technologies. Viewed in context, Pollman and Barry’s “regulatory entrepreneurs” can be understood as, in fact, a second generation of entrepreneurs who learned lessons from an earlier generation that was active in the late 1990s and early 2000s. What both generations have in common is the idea that the Internet might provide profitable opportunities at the edges of the legal system. What has changed is the abandonment of so-called “evasion” strategies—ones that relied on concealment or geography (described below)—and a migration to strategies depending on “avoidance,” that is, avoiding the law’s direct application. In particular, the most successful entrepreneurs have relied on what might be called a mimicry strategy: they shape potentially illegal or regulated conduct to make it look like legal or unregulated conduct, thereby hopefully avoiding the weight of laws and regulatory regimes.

I take a different, though not necessarily inconsistent, normative position than do Pollman and Barry. Law avoidance is a complex phenomenon. Some of it is undignified avoidance of burdens faced by others, and it is not much different, normatively, from securities fraud or tax evasion. But it is also true that, over the long history of the Anglo-American system, efforts to avoid the law have played an important, and sometimes essential, role in the process of legal evolution; that is, in the process of the salutary adaption of our legal system to our current normative and technological environment. Sometimes technologies may genuinely make laws obsolete or unnecessary. Sometimes it is changing social norms that prompt challenges to the law: the best of such efforts, like forms of legal disobedience during the civil rights era, have become understood as dignified and justified.

But laws do not challenge themselves: someone or something must prompt a reevaulation of an existing regime, which I think is the strongest normative case for some tolerance of regulatory entrepreneurship and other forms of law avoidance. That said, for such a reexamination to provoke a full debate, I think it essential that law enforcement play its part in the dialogue. Sometimes it should vigorously enforce “old laws,” unless the law in question is so obviously moribund that doing so would be ridiculous. Enforcement creates an adversarial process where we, the public, can reexamine whether the values and goals that motivated the law’s enactment remain important or valuable today. This is, of course, necessarily an imperfect process, but one that I think is part of the poorly understood path of legal evolution. The struggle surrounding the Internet’s challenge to law provides a good opportunity to consider these questions afresh.

 

 

90_PS7

Sex, Videos, and Insurance: How Gawker Could Have Avoided Financial Responsibility for the $140 Million Hulk Hogan Sex Tape Verdict – Postscript (Comment) by Christopher C. French

From Volume 90, Number 1 (November 2016)
DOWNLOAD PDF

 

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online.

The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The story would be better if all of the characters in the story were not, at best, anti-heroes. Hulk Hogan had sex with his best friend’s wife. Hulk Hogan’s sex partner committed adultery. Hulk Hogan’s best friend, the cuckold, allegedly was the person who videotaped the encounter and then leaked it to Gawker. And, after sleeping with his best friend’s wife, Hulk Hogan had the audacity to sue the cuckold for allegedly leaking the sex tape to Gawker, with the cuckold settling that claim by paying Hulk Hogan $5000. The cuckold then asserted his Fifth Amendment right against self-incrimination to avoid testifying in the case against Gawker. On the other side of the story, Gawker, the entity that posted the sex tape online, is a “media gossip” website host and does not look very good attempting to wear the cloak of the First Amendment by claiming that the contents of the Hulk Hogan sex video, as opposed to the simple fact that the tape existed, was newsworthy. Nor did it help Gawker’s image when Gawker’s editor testified that he would only draw the line against posting sex videos if the video included a child under four years old. It is hard to root for any of the parties in the case.

 


 

90_PS1

“Fair, Reasonable, and Adequate” According to Who? Cy Pres Distributions That Result in Cheap Settlements and Generous Attorney Fees, but No Financial Benefit to Class Members – Postscript (Response) by Linda Sandstrom Simard

From Volume 88, Number 5 (July 2015)
DOWNLOAD PDF

In her recent article, Professor Rhonda Wasserman argues that class action settlements that distribute funds cy pres raise a very serious risk of prejudice to absent class members. The problem, she asserts, is the temptation for class counsel to sell out the interests of absent class members in exchange for a discounted settlement for the defendant and a generous fee for class counsel. To illustrate her concern, she cites the $9.5 million settlement in Lane v. Facebook, Inc. that directed approximately $6.5 million to a nascent charity that was controlled—at least partially—by the defendant, $3 million to class counsel and nothing to the three million absent class members. Professor Wasserman argues that courts cannot have a laissez faire attitude toward protecting absent class members and she proposes a number of procedural reforms to ensure that cy pres distributions are only used when absolutely necessary. While her proposals are likely to provoke increased judicial scrutiny of cy pres distributions, the article stops short of addressing the principal question: when, if ever, is a settlement that distributes funds cy pres “fair, reasonable and adequate” to the absent class members?


 

88_PS55

The New York Safe Act: A Thoughtful Approach to Gun Control, or a Politically Expedient Response to the Public’s Fear of the Mentally Ill? – Postscript (Note) by Matthew Gamsin

From Volume 88, Number 2 (January 2015)
DOWNLOAD PDF

This Note will first review the historical development of gun-control laws in the United States, including those referred to by the Supreme Court as “longstanding prohibitions on the possession of firearms by . . . the mentally ill.” It will then analyze the extent to which the SAFE Act differs from such longstanding prohibitions and whether the Act is constitutional. Finally, this Note will consider whether, regardless of its constitutionality, the SAFE Act is an appropriate legislative response to gun violence or whether a recent proposal by a group of national experts on mental illness and gun violence might be more effective and more likely to pass constitutional muster.


 

88_PS16

Narrow Banking as a Structural Remedy for the Problem of Systemic Risk: A Comment on Professor Schwarcz’s Ring-Fencing – Postscript (Comment) by Arthur E. Wilmarth, Jr.

From Volume 88, Number 1 (November 2014)
DOWNLOAD PDF

In Ring-Fencing, Professor Steven Schwarcz provides an insightful overview of the concept of “ring-fencing” as a “potential regulatory solution to problems in banking, finance, public utilities, and insurance.” As Professor Schwarcz explains, “ring-fencing can best be understood as legally deconstructing a firm in order to more optimally reallocate and reduce risk.” Ring-fencing has gained particular prominence in recent years as a strategy for limiting the systemic risk of large financial conglomerates (also referred to herein as “universal banks”). Professor Schwarcz describes several ring-fencing plans that have been adopted or proposed in the United States, United Kingdom, and European Union.

This Comment argues that “narrow banking” is a highly promising ring-fencing remedy for the problems created by universal banks. Narrow banking would strictly separate the deposit-taking function of universal banks from their capital markets activities. If properly implemented, narrow banking could significantly reduce the safety net subsidies currently exploited by large financial conglomerates and thereby diminish their incentives for excessive risk-taking.


 

88_PS1

Ring-Fencing and Its Alternatives – Postscript (Response) by David Zaring

From Volume 88, Number 1 (November 2014)
DOWNLOAD PDF

Steven Schwarcz’s “Ring-Fencing” gets much of its impact from its broad definition of the term, which is usually heard these days when thinking about whether a multinational bank ought to be forbidden from removing the assets of its branches in one country to support its activities in another.

One of the singular contributions of the article lies in its willingness to look beyond that use of the term to think about what ring-fencing means more broadly and conceptually. As Schwarcz observes, ring-fencing is nothing less than a way to allocate resources, regulate firms, and reassure stakeholders that could be applied any enterprise. The ring-fencing metaphor posits the separation of assets within a firm—some are inside the ring fence, and others are not. To Schwarcz this amounts to “legally deconstructing a firm in order to more optimally reallocate and reduce risk,” which could include any restructuring involving holding companies, off-balance sheet entities, and even the creation of corporate subsidiaries.


 

88_PS11

Running Afoul of the Non-Refoulment Principle: The [Mis]interpretation and [Mis]application of the Particularly Serious Crime Exception – Postscript (Note) by David Delgado

From Volume 86, Number 1 (November 2012)
DOWNLOAD PDF

Envision living with the constant fear of being tortured or killed for no other reason than having a different political opinion than those in power. While that may be difficult to imagine for those who live in the United States, unfortunately, many around the world must live with that fear or flee from their homes. That fear has mobilized an estimated 11,000 to 15,000 refugees to flee from Syria. The mass exodus followed Syrian President Bashar al-Assad’s siege of the western city of Homs, which is “the heart of an 11-month uprising against his rule.” In those early months of violence, only around 7000 Syrian refugees had registered with the United Nations High Commissioner for Refugees (“UNHCR”). However, given the persistent violence and the recent allegations that President al-Assad has used chemical weapons on or near civilian populations, it is unsurprising that current UNHCR projections estimate that there are over two million Syrian refugees. And according to the UNHCR, if current trends persist, there may be well over three million Syrian refugees by the end of 2013.


 

86_PS1