Month: April 2012

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When Harry Met Lindsay

Thanks to the good people at the Truman Library, I can provide a little more background on the relationship between President Truman and Comptroller General Warren. You can decide for yourself its relevance for evaluating Warren’s 1948 opinions on the Recess Appointments Clause, but it seems to me that, at the least, it shows that the executive branch exaggerates when it presents Warren as a defender of legislative branch interests and prerogatives. See, e.g. Brief of the United States in U.S. v. Miller 15 (contending that Warren’s opinions should be viewed in the context that the Comptroller General is an “officer of the Legislative Branch” and therefore “subservient to Congress”).

In the spring of 1947 Warren issued two opinions that rejected attempts by administrative agencies, in one case the Coal Mines Administration and in the other the U.S. Maritime Commission, to circumvent statutory restrictions on their authorities. These decisions led Truman to personally phone Warren to complain. The tone of this call, which occurred on Monday, June 30, 1947, must be left to the imagination, but on Wednesday Warren sent Truman a letter which begins “My dear Mr. President: Needless to say I was quite disturbed when I received your telephone call on June 30 . . .” and follows with a lengthy explanation of why he had no option but to decide the cases as he did.

I will spare you the details, but Warren emphasizes that he bent over backwards to assist the agencies in resolving their problems, including in one case personally telephoning the Chairman of the House Appropriations Committee to lobby him on behalf of the Maritime Commission. As I noted previously, there is no evidence of similar consultation with Congress before Warren decided adversely to its interests the following summer.

Warren closes his letter with a description of his office’s role that might seem more appropriate for the Office of Legal Counsel than for a legislative office “subservient to Congress:”

I want to assure you, Mr. President, that the officials of this office have a sympathetic understanding of the critical problems that many times confront the President and the departments and establishments of the Government. Many of them work overtime gratuitously on nights, week-ends and holidays in an effort to assist the Executive agencies in solving their problems and otherwise to extend the fullest cooperation. But just as those agencies are amenable to the law, and must abide by legislative enactments, so too must the General Accounting Office in passing upon matters coming before it. Occasions arise, of course, when we must decide questions without regard to our personal sympathies and, sometimes, adversely to the wishes of administrative officials. I know, too, the tremendous burden you must bear and the fact that many times matters are called to your attention so briefly or in such manner that the many details thereof—as in these two cases—are not made known to you. It is simply for that reason that I have considered it appropriate to send you this letter in order that you may have the complete picture before you in writing and know the thorough and sympathetic consideration that the matters involved received in the General Accounting Office.

Truman was evidently mollified, because he responded with a note of appreciation on July 11, closing as follows:

As you know, I have been having a lot of difficulties with the Congress, and with other things, and I was very certain that it was not your policy to add to those difficulties. I am very glad I called you because I know you feel better, and I am sure I do, over our exchange of information.

I don’t think it is unreasonable to suspect that when Warren reviewed the politically sensitive RAC cases the following year, he was keenly aware of the need to give “sympathetic consideration” to the administration’s request so as not “to add to [Truman’s] difficulties” and perhaps to avoid another call from “give ‘em hell Harry.”

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Is Congress Competent?

Ok, that’s not exactly the question raised by attorneys for Roger Clemens in last week’s filing in federal district court, but I bet its how they hope the jurors interpret the question.

Technically, the issue that Rusty Hardin and company want jurors to consider is whether the House Committee on Oversight and Government Reform (COGR) was a “competent tribunal” when it questioned Clemens in 2008 about his alleged steroid use. They also want jurors to decide if COGR was engaged in “the due and proper exercise of the power of inquiry” and whether Clemens’s alleged false statements were made in a matter “within the jurisdiction” of the legislative branch.

According to the defense team, these competency elements all boil down to one basic inquiry: what was COGR’s purpose in calling Clemens to testify and with respect to the specific questions he was asked. Examples of improper purpose, they say, include:

  • Questioning a witness solely for a purpose other than to elicit facts in aid of legislation
  • Usurping the functions of a prosecuting attorney in the guise of a legislative investigation
  • Re-questioning a witness for the purpose of rendering him more liable to criminal prosecution
  • Conducting a hearing for an actual purpose different than a stated purpose
  • Directing an inquiry primarily to the witness’s guilt or innocence of a crime

To which the prosecution responds: go ahead, make my day. Rather than contesting the defense position on what types of competency issues may be presented to the jury, or pointing out the serious Speech or Debate/separation of powers problems that could result from a judicial inquiry into legislative motives, the government seems to concede the defense’s right to put COGR on trial.

Instead, the prosecution warns that if the defense exercises this right, the government must be permitted the opportunity to show the “broader context” of the congressional investigation. It says “if defendant thus calls into question the competency of the congressional tribunal by suggesting that the Committee was not acting with a proper legislative purpose, then the United States must be permitted to explain, among other things, the seriousness of the problem of steroids and other performance enhancing drugs, the national spotlight being cast on this problem, and the necessity for the congressional inquiry.” The defendant “cannot, on the one hand, impugn the integrity of the Oversight Committee by suggesting that its true- singular- motive was a perjury indictment of him, but, on the other hand, preclude the United States from explaining to the jury, for example, that the Committee’s investigative work was of national importance because of the wide-spread problem of steroid and other performance enhancing drug use in Major League Baseball.”

This strikes me as a dubious prosecution strategy. In the first place, I doubt that anyone is disputing the “seriousness of the problem of steroids and other performance enhancing drugs,” generally speaking. What is being questioned is the reason for calling a particular witness to a particular congressional hearing. I don’t think that Judge Walton will allow that to be the basis for inquiry into steroid use by other baseball players. Moreover, even if the court does allow it, I am not sure this is a good trade for the prosecution. Many jurors may be more concerned about Congress’s reasons for the investigation than they are about steroid use in baseball.

I also wonder about the more general implications of the prosecution’s apparent concessions. The government must prove that Clemens’s statements were material, and this means that they have to be related to a legitimate legislative purpose. But there also have to be limits on how far the parties can go into the actual motives of the COGR members, or otherwise every congressional perjury case will devolve into a political trial of Members of Congress. The prosecutors have not suggested, at least yet, what those limits might be.

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Comptroller General Warren and the Origins of the Multi-Session Recess Appointment

As far as I know, Lindsay Warren was a competent attorney who served honorably as the third Comptroller General of the United States. The opinions that he issued in the summer of 1948 regarding the Recess Appointments Clause, however, were not a high point of his career or of the GAO’s protection of the institutional interests of the Congress.

To set the stage, Warren had been a long-serving Democratic congressman from North Carolina who was thrice offered the position of Comptroller General by President Franklin D. Roosevelt. The third time, in 1940, while he was serving as acting House Majority Leader, Warren accepted the offer. Warren’s acceptance of the position was an important signal that Roosevelt, who had previously attempted to eliminate or radically transform the GAO, no longer intended to do so. As Warren would later explain: “Mr. Roosevelt gave up his fight when I accepted this appointment. . . . [I]t is hard to conceive that I would give up a seat in Congress and accept this position in order to preside over the liquidation of the General Accounting Office.”

During World War II, the GAO’s most important function was to audit and investigate military expenditures, particularly the thousands of cost-plus contracts that were awarded in support of the war effort. In this role Warren worked closely with then-Senator Harry Truman, who chaired the Senate Special Committee to Investigate the National Defense Program. For example, in April 1943 Warren informed Truman of kickbacks that were being paid by Detroit-area subcontractors to procure work on these cost-plus defense contracts. Warren later proposed legislation, with Truman’s support, to prohibit such kickbacks.

Warren’s partisan affiliation and his close ties to the Roosevelt and Truman administrations may or may not be relevant to what follows, but they are certainly worth keeping in mind.

Truman became Roosevelt’s Vice President and ascended to the presidency on Roosevelt’s death in April 1945. The Republicans won control of Congress in 1946, ending (or interrupting) the period of Democratic dominance that began with the elections of 1932. The Eightieth Congress assembled on January 3, 1947 and adjourned on July 27, 1947. Rather than adjourning sine die, however, it adjourned to January 2, 1948, and reserved to congressional leaders the authority to call the Congress back into session at an earlier date. It followed the same practice in 1948, adjourning on June 20 until December 31, but authorizing congressional leaders to call members back early.

Given the bitter relations that developed between President Truman and the Republican Congress, one might assume that this practice was designed, as in the Fortieth Congress, as a means of thwarting the exercise of presidential authority. In fact, according to the Senate historian, it reflected a precaution taken in case something happened to the President (there being no Vice President to assume his duties).

To make matters more interesting, in both 1947 and 1948, Truman used his power under Article II, section 3 (“he may, on extraordinary Occasions, convene both Houses, or either of them”) to convene Congress during its extended adjournment. He convened Congress from November 17, 1947 to December 19, 1947, and again from July 26, 1948 to August 7, 1948.

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