Mueller-Report Standoff Echoes 1982 Fight Involving Neil Gorsuch’s Mother

Thorny legal questions about relations between Congress and executive branch could be decided by Supreme Court

The standoff between Attorney General William Barr and Congress over access to the full, unredacted report from special counsel Robert Mueller has parallels to a 1982 fight involving the late Anne Gorsuch Burford, then administrator of the Environmental Protection Agency.

The thorny legal questions about relations between Congress and the executive branch that were in play then and today could end up being decided by a Supreme Court that now features her son, Neil Gorsuch.

Then, like now, a Democratic House of Representatives wanted access to documents that a Republican president said were privileged law-enforcement materials. As a result of the Reagan administration’s refusal to comply with a congressional subpoena, Ms. Burford was cited for contempt, sparking a legal battle that culminated in her resignation.

Mr. Barr, who was a young lawyer in the Reagan administration at the time of the showdown involving Ms. Burford, is also expected to be cited for contempt. House Democratic leaders have scheduled a vote this week on a contempt resolution that would authorize a House lawsuit for access to the full Mueller report on Russian election interference. The Trump administration has said the report is protected by executive privilege. Another House committee is considering a separate contempt effort against Mr. Barr over census documents.

If either measure passes the full House, Mr. Barr will be only the third agency head ever held in contempt of Congress. Ms. Burford was the first, and Eric Holder, who was attorney general under President Barack Obama, was the second.

The Supreme Court has never decided the question of whether a congressional demand for information can overcome an executive-privilege claim by a presidential administration.

The 1982 fight involving Ms. Burford had its roots in the belief among a number of young lawyers in the Reagan administration that the Watergate scandal had weakened the presidency as an institution. Those lawyers wanted a test case to strengthen the executive branch’s hand in fighting back against demands from Congress for information and found one in Ms. Burford.

The Burford fight “was all part of the Reagan plan to retrieve purported lost powers as a result of Watergate and to create this unitary executive theory,” said Morton Rosenberg, a longtime legal analyst for the Congressional Research Service and now a fellow at the nonpartisan Project On Government Oversight.

Ms. Burford wrote in her 1986 memoir “Are You Tough Enough?” that the Reagan administration had first sought to enlist the interior secretary and the attorney general as possible test cases on executive privilege but they refused. Ms. Burford, however, agreed to test the constitutionality of an executive-privilege claim by refusing to hand over documents to Congress.

At issue were congressional subpoenas demanding information on hazardous waste dumps from the EPA. Mr. Reagan ordered Ms. Burford not to comply with the subpoena, citing the doctrine of executive privilege—a legal theory that has been blessed by courts that allows a president to shield some documents from public scrutiny in certain circumstances. In the landmark 1974 case United States v. Nixon, a unanimous Supreme Court said that executive privilege doesn’t protect documents in a criminal inquiry—in that case, Watergate—but has never decided a matter involving Congress.

Mr. Reagan’s executive-privilege claim prompted a fight with Congress that would result in the contempt citation against Ms. Burford. The Justice Department then filed suit on behalf of Ms. Burford to try to stop the subpoenas. Ms. Burford, in her memoir, called the lawsuit “the sloppiest piece of legal work I had seen in twenty years of being a lawyer.” Ultimately, a judge dismissed the case, saying that he could only rule on the issue if Ms. Burford were being criminally prosecuted for her refusal—and encouraged both sides to reach a compromise.

.. One of Justice Gorsuch’s most controversial opinions also stems from a case that involved the EPA under Ms. Burford’s leadership, Mr. Somin noted. The legal theory of “Chevron deference” says that courts should defer to administrative agencies. It stemmed from a 1984 Supreme Court case involving the EPA’s attempts to regulate air pollution.

Though the Supreme Court upheld deference to the EPA which was led by his mother when the case was first brought, Justice Gorsuch has called the decision an “abdication of the judicial duty” and suggested he would vote to overturn the precedent if a similar case came before the Supreme Court.

Neil Gorsuch’s philosophical mentor cites “natural law” to reject same-sex marriage and abortion

Discussion of natural law predates Christianity, but Christian theologians such as Aquinas are key figures in developing the theory (this makes intuitive sense, as natural law appeals to a higher and absolute moral authority on what constitutes justice, and God fits this authority well.) Finnis, a Catholic natural law philosopher, traces much of his thinking to ideas first expressed by Aquinas.

Interpretations of natural law have massive and widely varying influence. The US Declaration of Independence refers to the equality that “the laws of nature and nature’s God entitle” and is clearly founded on a belief in natural law. English Common Law sought to uphold natural law, and those who wrote the US Constitution referred, in the course of various writings, to the notion that God is the ultimate source of legal authority. The concept of human rights is also closely intertwined with natural law.

Though the US constitution is a positive law, the Supreme Court justices have not totally ignored the notion of natural law. Justice Anthony Scalia believed that “the government derives its authority from God,” and Justice Clarence Thomas argued at his Senate confirmation hearing that “we look at natural law beliefs of the Founders as a background to our Constitution.”  (Meanwhile, as Mother Jones notes, then-Senator Joe Biden once criticized Reagan’s Supreme Court nominee Robert Bork for not believing in natural law. “As a child of God, I believe my rights are not derived from the Constitution…They were given to me and each of my fellow citizens by our creator,” said Biden in 1987.)

Natural law philosophers have differing theories on the fundamental rights that must be protected by this law, and these rights are derived from absolute human goods. Georgetown moral and legal theorist Mark Murphy explains that, for Finnis, these basic goods include life, knowledge, aesthetic appreciation, play, friendship, practical reasonableness, and religion.

He argues that it is inherently wrong to intentionally harm any basic good. This framework means that, in Finnis’s view as laid out in articles, abortion is inherently wrong as it’s an attempt to harm life. His theory does, however, allow for some exceptions where abortion would be considered permissible. Finnis argues that if an abortion is carried out to save a mother’s life, then it is not the intention to harm the fetus and so is morally permissible. “Finnis is obliged to say the doctor did not intend the baby’s death, because he believes there is an absolute prohibition on intentionally killing innocent people. (The alternative would be to treat the procedure as impermissible, but this is clearly not his view.),” explains legal philosopher Jonathan Crowe.

Finnis’s beliefs about the absolute value of protecting life also means that the philosopher strongly opposes the death penalty and nuclear armament.

Conversely, Finnis argues that marriage is a basic good and, in his view, it’s a heterosexual good that should lead to procreation. “It is the sort of loving union inherently oriented to family life; it is the sort of living bond that by its nature would be fulfilled—extended and enriched—by the bearing and rearing of children,” he writes. Based on his interpretation of the good protected by natural law, Finnis is strongly against giving same-sex couples the same benefits as heterosexual married couples.

Relatedly, Finnis believes that the “good of marriage” should be the foundation of all sexual relations—in other words, sex is only moral if it takes place within a heterosexual marriage. Homosexual sex, masturbation, adultery, and bestiality are all grouped in the same category and marked similarly immoral by Finnis. “The truly morally significant thing about all non-marital sex acts is that, in diverse forms, they involve disrespect for the basic good of marriage,” he writes.

Of course, though Supreme Court nominee Neil Gorsuch has worked closely with Finnis, that does not mean the two share the same views. Finnis supervised Gorsuch’s Oxford dissertation on euthanasia in the 1990s, and the Supreme Court nominee developed this work into a book where he argues that euthanasia is impermissible as “human life is intrinsically valuable and that intentional killing is always wrong.”

Gorsuch’s views on abortion and gay rights outside of the same-sex marriage debate remain unclear, as he has not explicitly written or ruled on either subject. Meanwhile, when the Guardian asked Finnis about Gorsuch’s nomination, he replied “I have resolved not to say anything to anyone at all.”

Gorsuch’s confirmation hearings are scheduled to begin next month. Only once he’s confirmed will we know how much Finnis’s thinking has shaped the Supreme Court nominee.

What Motivates Mitch McConnell?

The Senate majority leader has become one of the few unambiguous winners of the Trump presidency so We look at whether his gains have come with a cost.

.. Over the past decade, the Senate Republican leader has emerged as a skilled legislative warrior, obstructing President Barack Obama’s agenda and enabling President Trump’s. But what does Mitch McConnell himself actually believe in?

 

.. Background reading:

‘Quite a shock’: The priest was a D.C. luminary. Then he had a disturbing fall from grace.

“There was a brashness about him that I always associated with the Wall Street ethos,” the Rev. John Paul Wauck, an Opus Dei priest who knew McCloskey, wrote in an email. “You could say that, as a priest, he maintained an entrepreneurial attitude. For some, this was off-putting; for others, it was, I’d say, invigorating and even entertaining.”

McCloskey harnessed that entrepreneurial spirit to persuade people, mostly men, to become Catholics. In New York in 1997, he converted Kudlow, who was recovering from addiction. Mark Belnick, a former general counsel of Tyco International, who described McCloskey as a “great friend” in a New York magazine article, soon followed. They would be among the first in a long line of high-profile conversions that McCloskey facilitated.

“It’s just like the brokerage business or any business of sales,” McCloskey told the National Catholic Reporter in 2003. “You get a reputation, you deal with one person and they mention you to another person . . . and all of a sudden you have a string of people.”

The conversions came naturally to McCloskey because “he just had an absolute certainty about what he was proposing, and he had no hesi­ta­tion at all about unapologetically offering Catholicism as an option,” said Shaw, his co-author.

.. Although he left Washington at perhaps the height of his fame, McCloskey’s legacy is the ongoing influence of the Catholic Information Center. The center’s board includes Leonard Leo, executive vice president of the Federalist Society, which helped shepherd the Supreme Court nominations of Brett M. Kavanaugh and Neil M. Gorsuch. White House counsel Pat Cipollone is a former board member, as is William P. Barr, who served as attorney general under President George H.W. Bush and is now President Trump’s nominee for the same position.

.. The small center — its members and its leaders — continue to have an outsize impact on policy and politics. It is the conservative spiritual and intellectual center that McCloskey had imagined and its influence is felt in all of Washington’s corridors of power.