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House Republicans Should Heed the Warning of Justice Scalia

What the conservative judicial icon can teach the GOP weaponization subcommittee—and Democrats—about the separation of powers.
February 9, 2023
House Republicans Should Heed the Warning of Justice Scalia
Portrait of the late Justice Antonin Scalia circa 1993. (Photo by Jeffrey Markowitz/Sygma via Getty Images)

Last year, Rep. Kevin McCarthy vowed that on the “very first day” of the 118th Congress, Republicans would “read every single word of the Constitution aloud from the floor of the House.” But the first day passed by, as did the second, and the third. . . . It took the House GOP more than a month—until this Tuesday, to be precise—to get around to their patriotic oration. They would have you believe that they respect the Constitution, but they can’t even pay their lip service on time.

Their real aim during the next two years is to investigate the Biden administration. Urged on by members of the right-wing House Freedom Caucus, Republicans have established the new Select Subcommittee on the Weaponization of the Federal Government, which will seek, among other things, to prove that the Justice Department and the FBI are biased against conservatives. To that end, the resolution establishing the subcommittee authorizes it to review the agencies’ “ongoing criminal investigations.”

But if they had paid attention to their recitation this week, House Republicans might have noticed that the Constitution gives the president, not them, the power to enforce the law. This should give pause to conservatives minded to pry into ongoing criminal investigations. Indeed, the Justice Department has a longstanding practice, applied by both parties and grounded in the Constitution and good sense, of refusing to share open investigatory files with Congress. Just last week, DOJ cited this policy in rejecting Rep. Jim Jordan’s request to scrutinize the recently launched investigation of President Biden’s sloppy handling of classified documents.

In the coming weeks, Jordan, chairman of the weaponization subcommittee, will likely press for records and testimony regarding the government’s probes of Donald Trump’s efforts to overturn the 2020 election, his contribution to the events of January 6th, and his post-presidential possession of classified material. DOJ will resist attempts to interfere with these, or any other, ongoing criminal investigations. In the understated words of the New York Times, “legal and political fights over subpoenas and executive privilege are most likely looming.”

If House Republicans really love the Constitution so much, they should stop to consider the work of one of its great conservative champions, Antonin Scalia, before charging into these battles. As they clamor for “accountability” and object to administration “stonewalling,” there is a point they seem determined to miss: Scalia stands squarely against them. He believed that “the President’s constitutionally assigned duties include complete control over investigation and prosecution of violations of the law.” And he believed that executive privilege—the president’s ability to protect information when necessary to fulfill his duties—is “indispensable to the functioning of our system of checks and balances and separation of powers.”

Democrats, too, could benefit, at this of all moments, from reflecting on what Scalia had to say about the Constitution’s structure. Attempting to evade responsibility for a failed electoral coup and an insurrection, Donald Trump and his allies have spouted claims of executive privilege that deserve to fail. It is important to understand how those unserious claims differ from the valid, even vital, ones that the Justice Department will be making to protect its investigations from the encroachments of the weaponization subcommittee. Though Scalia often raised liberal hackles, no one doubted the sharpness of his intellect. He can help Democrats—or, for that matter, any American—figure out where executive privilege matters, and where it does not.

The president’s power to withhold sensitive information from Congress was staked out in the early days of the republic. In 1795, President George Washington signed the Jay Treaty, which sought to improve relations between the United States and Great Britain in the aftermath of the Revolutionary War. James Madison, who opposed the treaty, objected that the administration had placed it under a cloak of “impenetrable secrecy.” At Madison’s urging, the House of Representatives demanded that Washington hand over the instructions he had given John Jay for the treaty negotiations.

Alexander Hamilton, by this point out of the cabinet but still occasionally advising the president, urged Washington to refuse to do so. Complying with the House’s demand would, in Hamilton’s view, be “fatal to the negotiating power of the government.” As biographer Ron Chernow puts it, Hamilton was convinced that the president could not “manage relations with foreign countries” with “a squabbling, pontificating Congress” on his back. Washington heeded Hamilton’s advice and held the instructions close. Under the Constitution, he observed in a message to Congress, the House has no role in treaty-making.

What is true of diplomatic relations is true also of law enforcement. Legislative involvement in the investigation of crime could cripple the executive’s ability to prosecute criminals. Leaks would proliferate. Innocent suspects would face public opprobrium. Guilty suspects would flee or destroy evidence. Witnesses would stop cooperating. The process would grind to a halt, as legislators second-guessed the investigators’ decisions (why focus on this crime? this suspect? that lead?). The legislators’ involvement could only increase, never decrease, any impression that a given prosecution is being swayed by partisan politics. One government attorney summed things up more than fifty years ago: “The Executive cannot effectively investigate if Congress is, in a sense, a partner in the investigation.”

Accordingly, the Justice Department has consistently refused to give Congress open criminal files. In recent decades, high-level government lawyers in both parties, such as Charles Cooper (a Reagan Republican) and Janet Reno (a Clinton Democrat), have signed letters and memos endorsing this position.

But no one has argued for executive privilege with greater force or passion than Antonin Scalia.

To see why Scalia would have opposed (indeed, recoiled at) congressional review of ongoing criminal investigations, one must first understand his views on the separation of powers.

Scalia liked to riff on the fact that many nations, including many highly oppressive ones, have produced impressive-sounding lists of rights. Our Bill of Rights is not what makes our constitutional system work. What matters is that the Constitution separates the legislative, executive, and judicial powers. The system was designed in the expectation that the three branches will often clash, compete, and check one another. They are divided, balanced, and locked in struggle, Scalia explained, to “prevent the consolidation of all power in one person or party.” It is that structure, rather than the Bill of Rights directly, that is our true protection. When power is unified and unchallenged, “the most admirable bill of rights can be ignored.” Just ask the Chinese Communist Party, which is theoretically obligated, under its national charter, to “respect and protect human rights.”

Disputes over the separation of powers can seem insignificant, even nitpicky. Who cares if a bankruptcy court can enter a final judgment? Or if an agency commissioner can object to being fired? Or if the president makes a recess appointment at the right time? Following the rules can be a pain; why not let judges craft exceptions when, in their considered view, doing so seems like a good idea? But “the balance of separated powers established by the Constitution,” Scalia responded, in an opinion for a three-judge district court in 1986, “consists precisely of a series of technical provisions that are more important to liberty than superficially appears, and whose observance cannot be approved or rejected by the courts as the times seem to require.”

Article II of the Constitution vests “the executive Power” in the “President of the United States,” and directs him to “take Care that the Laws be faithfully executed.” The president exercises such power, everyone agrees, when he enforces the law, seeking to punish those who break it.

In his famous lone dissent in Morrison v. Olson (1988), Scalia argued that Article II grants the president exclusive control over criminal investigations and prosecutions. A federal law (which has since lapsed) allowed Congress to pressure the attorney general into creating an independent counsel. Once appointed to investigate criminal wrongdoing, this person could be removed by the president only for misconduct. The question in Morrison was whether the statute infringed the president’s power to remove inferior officers. In his dissent, though, Scalia focused not on the removal authority, but on the damage the statute did to the separation of powers.

Article II assigns the president “the executive Power,” without qualification. And the independent counsel law “deprive[d] the President of exclusive control” over “investigation and prosecution of violations of the law”—a “quintessentially executive activity.” That, Scalia believed, was that. Congress had given itself permission to mint freestanding prosecutors to conduct criminal investigations at Congress’s behest. This loosening of the president’s grip on law enforcement was, in Scalia’s eyes, an obvious affront to the separation of powers and, thus, a clear violation of the Constitution. (“This wolf,” he memorably said, “comes as a wolf.”)

Exclusive control over a function, Scalia maintained (echoing Hamilton and Washington), entails exclusive control over information. In 1975, the Ford administration sent Scalia, then serving as assistant attorney general for the Office of Legal Counsel, to testify before the Senate. His task was to oppose a bill that would have granted Congress a comprehensive and judicially enforceable subpoena power over a wide array of information in the executive branch. Scalia made his case with gusto. “The congressional power” to obtain such information, he contended, is “restricted to the extent necessary” to preserve the “independence of the second branch of government.” In a “particular political context,” he went on, even a “sweeping assertion of privilege” may be “reasonable, and indeed absolutely essential, to protect employees of the executive branch in the fearless performance of the President’s constitutional functions.” As support for this contention, Scalia cited President Eisenhower’s refusal, in 1954, to let anyone at the Department of Defense cooperate with a Senate subcommittee investigation involving charges leveled against the military by Sen. Joseph McCarthy.

To Scalia’s mind, the “most difficult and controversial” parts of the bill were those that “provide[d] for judicial enforcement of congressional subpoenas.” Scalia did not see a subpoena fight between the legislature and the executive as a legal dispute amenable to resolution by the judiciary, but rather as a nonjusticiable political dispute. There are no “judicially discoverable and manageable standards,” he claimed, “for assessing the relative importance of a congressional need for information and an executive requirement of secrecy.” When such conflicts arise, he asserted, they should be—and historically have been—handled “by the hurly-burly, the give-and-take, of the political process between the legislative and the executive.” The Supreme Court recently quoted this statement with approval in Mazars v. Trump (2020), a dispute over whether the House could subpoena President Trump’s personal tax returns.

Making the political branches hash out subpoena disputes without judicial intervention is, Scalia said during his 1975 Senate appearance, “what the separation of powers means.” Nine years later, by then a judge on the U.S. Court of Appeals for the D.C. Circuit, he expanded on that idea, in a concurring opinion, while discussing whether members of the House could sue to thwart executive implementation of a law they believed to be unconstitutional. Scalia argued that the legislators lacked standing. The judiciary does not sit “to umpire disputes” between the other two branches “regarding their respective powers,” he wrote. The “constitutional province” of the federal courts, he explained, quoting Marbury v. Madison (1803), is, “solely, to decide on the rights of individuals.” He prodded the political branches to work things out “through the system of checks and balances.” Such rivalry is the essence, he insisted, of Madison’s dictum that “ambition must be made to counteract ambition.” (He reached for this line often, as we shall see.)

It can seem intuitive that the judiciary should have the last word on inter-branch quarrels. Scalia warned against such an expansion of the judicial role. If one political branch could sue the other over the proper performance of that branch’s constitutional duties, there would, Scalia feared, be no end to such litigation. More than that, such a system would be not one of competing co-equal branches but one of third-branch sovereignty. That would be a constitutional revolution. It would also place the judiciary in a position that it lacks the resources, the political acumen, or the democratic buy-in to sustain.

But isn’t the alternative judicial abdication? If the political branches are left to fight with each other, will chaos and destruction ensue? Throughout his career, Scalia objected that this fear misunderstands how the Constitution is supposed to work. The separation of powers is, at bottom, a set of good fences. Each branch has exclusive powers that lie beyond the reach of the other two. The true check “against any branch’s abuse of its exclusive powers,” Scalia wrote in Morrison, is “retaliation by one of the other branch’s use of its exclusive powers.”

Consider Scalia’s dissent in Windsor v. United States (2013). Not only did the Obama administration decline to defend the Defense of Marriage Act in that case; it joined hands with the plaintiff in asking that the law be overturned. Because the parties agreed on a desired outcome, Scalia protested, there was no live controversy for the court to resolve. Although he joined Scalia in this conclusion as to the government, Justice Samuel Alito thought that members of Congress could step in to defend the statute. And in contesting that theory, Scalia explained why Congress can (and should) be left to defend its interests without judicial assistance. “To be sure,” he wrote:

if Congress cannot invoke our authority [to make the president execute the law], then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, No. 51 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. . . . But the condition is crucial; Congress must care enough to Act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor.

Ultimately, Scalia added, the courts can’t help Congress. Seeing that the president had not faithfully implemented the statute, he asked, why should anyone expect him to faithfully implement a court ruling ordering him to faithfully implement the statute? In that event, Scalia said, “only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.”

In a system of checks and balances, in which ambition counteracts ambition, the key players often bend, stretch, and test the limits of their powers, but they rarely expose them to situations where they might break altogether. Better to share some documents than to have a court rule that, in this context, you lack executive privilege. Better to narrow the subpoena than for a judge to say that, in cases of this sort, you lack subpoena power. Inter-branch information disputes have historically followed this pattern.

Here as elsewhere, though, things have changed in the Trump years. Neither Trump nor his associates care whether the reckless use of an institution’s power today might damage that power going forward.

The now-disbanded House January 6th Committee was a magnet for feeble Trumpian executive-privilege arguments. Last year, in his trial for contempt of Congress (the fruit of his refusal to cooperate with the committee), Steve Bannon sought to invoke executive privilege even though the Biden administration did not support the claim, Trump had not instructed him to invoke it, and he was outside the executive branch when the pertinent communications occurred. The court was not impressed, and Trump wound up waiving Bannon’s (imagined) protection. Facing similar charges, Peter Navarro recently managed to delay his trial with a letter, signed by a Trump lawyer, claiming to belatedly ratify Navarro’s declaration of privilege. That gambit is likely to fare no better than Bannon’s.

Notice that these assertions of executive privilege connect to Trump’s bid to overturn the 2020 presidential election. Trumpists are trying to use the constitutional separation of powers to cast a veil over an attempt to wreck the constitutional order itself. No surprise therefore that the Biden administration has withheld its support. Trump sought to block the Jan. 6th Committee from obtaining records from the National Archives—records that included items such as “binders containing proposed talking points for the Press Secretary” on “allegations of voter fraud, election security, and other topics concerning the 2020 election.” The executive branch did not invoke the privilege. The D.C. Circuit rejected Trump’s attempt to do so, and the Supreme Court declined to intervene.

Trump has also invoked executive privilege in the DOJ investigations of his conduct after the election and leading up to the January 6th insurrection. There, too, the claim has been falling flat. As it should. The subpoenas in question, after all, are coming from ongoing criminal investigations. Here again, Trump is seeking to invoke executive privilege against the executive itself. (As a former president, he has some basis for doing this, but he is on the back foot.)

None of these privilege claims resembles the ones that will arise as DOJ opposes the intrusions of the weaponization subcommittee. Those will be direct Congress-vs.-president confrontations over information related to one of the president’s core constitutional functions. In those disputes, Scalia’s ideas about executive privilege will not be out of place. DOJ, to repeat, has long protected open files. And in Mazars, the Supreme Court case involving Trump’s tax returns, the solicitor general endorsed Scalia’s theory that Congress lacks standing to take an inter-branch subpoena dispute to court. (The D.C. Circuit, in a case involving a congressional subpoena of former White House Counsel Don McGahn, later disagreed, but the judges were deeply divided on the question.)

And while you, dear reader, may not care what Antonin Scalia thought about these matters, House Republicans should. When Scalia died in 2016, Democrats gave their condolences to his family. Kevin McCarthy, by contrast, praised “his fierce defense of our Constitution.” Rep. Darrell Issa, who will sit on the weaponization subcommittee, made a similar remark. Jim Jordan called Scalia one of the “greatest judicial voices” in history. Scalia’s dissent in Morrison v. Olson, in particular, is venerated among conservatives. In 2018, during a Senate Judiciary Committee hearing on a bill to make it harder for Trump to fire then-Special Counsel Robert Mueller, three Republican senators invoked its defense of executive power as grounds for voting not to move the bill forward.

“From President Washington until now,” the Supreme Court observed in Mazars, “we have never considered a dispute over a congressional subpoena for the President’s records.” Mazars was a first—and the Court punted, avoiding the question of executive privilege and remanding the case for further proceedings. There are vanishingly few decisions, even in the lower courts, on subpoena disputes between Congress and the wider executive branch. And yet House Republicans are poised to force a constitutional showdown. They want to fundamentally reshape the separation of powers by making the legislature a partner in executive investigations.

In a 2011 speech, Scalia complained about the proliferation of “extravagant assertions of congressional power,” including “efforts to eliminate or control powers belonging to one of the other two branches.” “Congress now seems of the attitude,” he said, “that it is, after all, the Supreme Court’s job to determine the constitutional limits on what Congress can do, so let’s run it up the flagpole and see if anyone salutes.”

Scalia was speaking to the House Tea Party Caucus, direct predecessor of the House Freedom Caucus, the most Constitution-loving wing of the Constitution-loving Republican Party.


Corbin Barthold

Corbin Barthold is internet policy counsel at TechFreedom. Twitter: @corbinkbarthold.