Month: June 2013

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House Counsel and the Congressional “Client”

At the June 28 meeting of the House Committee on Oversight and Government Reform, a question arose about the role of House Counsel in providing legal advice to COGR and its members. Chairman Issa had requested and received a House Counsel opinion on whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory opening statement at a prior COGR hearing. Issa took the position that this opinion was attorney-client privileged. Although he shared the opinion with Ranking Member Cummings prior to the June 28 meeting, he had asked Cummings to limit distribution of the document to prevent public disclosure.

Specifically, Issa requested that Cummings not distribute the opinion to “all of your members,” presumably because he feared that such wide distribution would inevitably lead to its being leaked. Committee Democrats protested that every member of COGR had an equal right to the opinion because House Counsel is charged with representing the House as a whole. Issa countered that each member of COGR was free to obtain his or her own opinion from House Counsel. He maintained, however, that this opinion was given to the committee majority and had been shared with the minority only as a “courtesy.”

This debate reflects some confusion about the function of House Counsel. It may also reflect the fact that the role of congressional lawyers in general, and House Counsel in particular, is, as the law professors like to say, “under-theorized.” (Which, admittedly, is a bit like your State Farm agent saying you are “under-insured”). As I noted a few years ago:

House Rule II(8), which establishes OHC [the Office of House Counsel], provides that the office exists,

for the purpose of providing legal assistance and representation to the House. Legal assistance and representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships.

This language, which constitutes essentially all of the legal authority defining the scope of the OHC’s functions and obligations, provides only limited guidance as to the OHC’s ethical responsibilities. It could be read to suggest that OHC’s responsibilities run primarily, if not exclusively, to the House as an institution, rather than to individual members or offices. On the other hand, it requires that OHC provide assistance and representation without regard to political affiliation, a directive that seems unintelligible except in the context of providing advice or representation to particular members. Finally, it implies that questions about the OHC’s responsibilities, including issues relating to the House’s institutional legal interests and positions, are to be resolved by the Speaker of the House after consultation with the Bipartisan Legal Advisory Group (BLAG).

Michael L. Stern, Ethical Obligations of Congressional Lawyers, 63 NYU Ann. Survey of Am. L. 191, 199 (2007).

Continue reading “House Counsel and the Congressional “Client””

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Cert Granted on Three Recess Appointments Questions

The Supreme Court granted cert today in the Noel Canning case, as pretty much everyone expected. Cert was granted as to the two questions raised by the government, (1) whether the President can make recess appointments during so-called “intra-session recesses” and (2) whether the vacancy must arise during the recess for the President to exercise power under the Recess Appointments Clause. In addition, the Court directed the parties to address a third question raised by Noel Canning: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”

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The Senate’s Legal Basis for Muzzling Former Staffers

According to this story, Vicki Divoll, former counsel to the Senate Select Committee on Intelligence, has been barred by SSCI from discussing in the media (specifically Talking Points Memo) certain non-classified information relating to the committee’s oversight of intelligence programs. Divoll gave an interview to TPM regarding the congressional role in intelligence oversight and submitted it to SSCI for review prior to publication, apparently not expecting that there would be any significant concerns. To her surprise: “[F]or the first time in her career, the committee took the extraordinary step, on a bipartisan basis, of declaring the interview’s entire contents a violation of her non-disclosure agreement and effectively forbade her from putting any of it on the record.”

Divoll and TPM present this as an arbitrary decision by SSCI to block public discussion of intelligence oversight. TPM says that the interview did not involve “classified sources and methods of intelligence gathering” but “general information about how the committee functions– and how it should function.” It says that “[a]mong the insights Divoll shared with us was the important role that staff can and should play in oversight of the executive branch’s intelligence activities.” Moreover, Divoll’s statements “tracked closely with information gleaned from other sources, and the public record.”

No doubt the committee has a different perspective on the matter. Still, given that Divoll left the employ of the committee 10 years ago and has frequently discussed matters related to her tenure at SSCI in the media since then, apparently without objection by the committee, this is a somewhat curious development. It raises the questions of what legal authority the committee has to block a former staffer from discussing matters of public interest, how broad that authority might be, and what arguments Divoll might have to challenge that authority. We will turn to those issues now. Continue reading “The Senate’s Legal Basis for Muzzling Former Staffers”

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Will the New Jersey Special Senate Election Survive Judicial Review?

Update: the answer to this question is apparently yes, as the New Jersey Supreme Court has declined to hear the challenge.

A three-judge panel of the New Jersey Superior Court Appellate Division has issued this opinion rejecting a legal challenge to Governor Christie’s writ of election setting an October 16, 2013 date for the special election to fill the Senate seat that became vacant as the result of Senator Lautenberg’s death. The case, however, has been set for a fast track review by the New Jersey Supreme Court (hat tip: Rick Hasen), with briefs challenging the writ to be filed on Monday, June 17, and the Governor’s response due on Tuesday, June 18.

The appellate division opinion does not do a whole lot to clarify the meaning of the relevant New Jersey law, IMHO, but it does raise what appears to be another significant legal and practical problem with holding two elections in such a short period.

The court begins its analysis with the proposition that “[b]ecause Senator Lautenberg died on the day prior to the primary election, N.J.S.A. 19:27-6 governs.” Under this provision, the vacancy would be filled at the “second succeeding election” (i.e., in November 2014) unless the Governor calls a special election. The court states that “[w]ithout question, the Governor was authorized to call a special election in this circumstance, where the vacancy occurred one day prior to the primary.”

But what about N.J.S.A. 19:3-26, which appears to require that the vacancy be filled at the next general election (i.e., in November 2013) unless the vacancy occurred less than 70 days before that general election (which it did not)? The court does not attempt to reconcile this provision with 27-6 nor to explain how one would resolve the conflict between the two provisions if the Governor did not call a special election. It does state at one point that “[w]ithout a special election, this seat would be filled by an appointee for the remainder of the term.” That suggests that 27-6 would control (although, even then, the appointee would only serve until November 2014, not until the expiration of the term in January 2015). But the court offers no explanation as to why that would be the case.

The court also rejects the plaintiffs’ argument that 3-26 precludes the Governor from calling a special election. It evinces some sympathy for the Governor’s position that 3-26 permits the calling of a special election under any circumstances, not merely where the vacancy occurs less than 70 days before the general election. The Governor relied on the punctuation in 3-26, which (you may recall) provides:

If a vacancy shall happen in the representation of this State in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within 70 days next preceding such election, in which case it shall be filled by election at the second succeeding general election, unless the governor of this State shall deem it advisable to call a special election therefor, which he is authorized hereby to do.

According to the Governor, “the comma preceding the authorizing clause” (i.e., the comma immediately preceding the second “unless”) demonstrates “the Legislature’s intention to authorize a special election whether the vacancy occurs fewer or more than seventy days before the general election.” Maybe this is right, although it seems to me that the Legislature would have more clearly expressed this intention if it had used the word “or” instead of the comma, but I suppose this might have created an ambiguity as to which “unless” clause governs if both apply.

In any event, the court did not seem to be completely convinced by the Governor’s argument because it stressed that it was limiting its holding to the situation in which the Governor was already authorized to call a special election under 27-6: “In this circumstance, it would be wholly absurd to conclude that the Legislature intended to authorize a special election in N.J.S.A. 19:27-6 and preclude it in N.J.S.A. 19:3-26, even if the punctuation the Legislature chose did not support a contrary reading, as the punctuation used plainly does.” In other words, if Lautenberg had died the day after the primary election, instead of the day before, the court is not deciding whether Christie would have had the authority to call a special election under 3-26, although it seems to be leaning toward the conclusion that he would.

As for the timing of the special election, the court held that this was a matter within the Governor’s discretion. Although 27-6 tightly constricts the Governor’s discretion as to dates for the special primary and special elections once he issues the writ, there is no specific time set for issuing the writ. According to the court, the Legislature therefore must have intended the Governor to have a wide discretion in selecting the date of the special election:

Without question, the Legislature has authorized the Governor to select the date of the special elections, which can be accomplished by assigning the statutory dates backward from the date for a special general election that the Governor deems advisable before issuing the writ.  The Legislature could have, but did not, limit that discretion, and its breadth must have been as obvious to the Legislature at the time it was written as it is now. Because of the date of Senator Lautenberg’s death, this special election could have been scheduled for the same date as the general election.

The court seems to be saying that the Governor can indefinitely delay the issuance of the writ of election in order to set whatever date he wants for the special election. This seems to me to be a less than obvious conclusion. An equally if not more plausible inference from the legislature’s failure to specify a date for issuing the writ is that the legislature intended that it be issued either forthwith or within a reasonable time of the occurrence of the vacancy. In this case that might have allowed the Governor to set the special election on the same date as the general election. But the court’s assumption that the legislature intended for the Governor to have a broad discretion in choosing when to issue the writ seems to be in some tension with the very limited discretion it gave him once the writ issues.

Finally, the court declined to second guess the Governor’s decision to hold the special election on October 16, rather than on the date of this year’s general election, November 5. The issue of the cost of holding a separate election was a policy issue, the court sensibly concluded, that was not for judges to decide. However, the court did express a serious concern with the logistical difficulties involved in using the same voting machines in two statewide elections in such close proximity. It noted that the machines by law must be impounded for a 15 day period after the October 16 election, which would seem to make it extremely difficult to have them ready in time for their use in the November 5 general election. Although the court did not believe that the evidence provided by the plaintiffs warranted invalidating the writ, it left open the possibility of future challenges on this ground:

We view the potential for problems it may create in conducting the general election at this point as a matter committed to the Governor and relevant to his determination as to whether the date of this special election, dictated by his writ, is “advisable.” In our view, there is no question of statutory or constitutional violation that is ripe, and, as the State’s Chief Executive Officer, the Governor’s policy decision and assessment of the feasibility of accomplishing it is not reviewable.

(emphasis added).

This issue strikes me as raising a greater danger, both legal and practical, to the viability of Christie’s action than the attack on his authority to call a special election in the first place. But I guess we will see what the New Jersey Supreme Court thinks.

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“We are pleased that the jury acquitted Mr. Renzi on 15 counts”

Former Congressman Rick Renzi’s attorney, who is responsible for the quote above, is obviously a glass-half-full type of person. As it happens, Renzi was also convicted on the other 17 of the 32 counts against him (so the glass was not quite half full). You can read the verdict form here.

The linked Washington Post story indicates that Renzi intends to appeal. I am sure that there will be Speech or Debate issues presented on appeal, although some of Renzi’s potential arguments may be foreclosed or made more difficult by the prior Ninth Circuit ruling in his case. It should also be noted that some of the counts on which he was convicted (e.g., Counts 28-30) involve insurance fraud/false statements that appear to be unrelated to his legislative activities or official duties. Therefore, Renzi will not be able to argue for a complete reversal of the verdict based on Speech or Debate alone.

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An Unwarranted Attack on the House and the Ethics Committee

In an oddly speaking complaint, Representative Charlie Rangel, represented by New York attorney Jay Goldberg, has filed suit in federal court against the Speaker, the Clerk and several former members and staff of the House Ethics Committee, including Zoe Lofgren, the former Democratic chair, and Jo Bonner, the former Republican ranking member. Cutting through the ample legal verbiage, Rangel’s complaint comes down to this: the court should set aside his December 2, 2010 censure by the House of Representatives because that discipline stemmed from a recommendation by the Ethics Committee that was tainted by “numerous flagrant, knowing and intentional violations of Plaintiff’s Due Process rights and his other fundamental constitutional rights.”

If a court could consider these claims, Rangel’s chances of prevailing on them would be extremely remote. They appear to be based entirely on internal memoranda written by Blake Chisam, then the staff director and chief counsel of the Ethics Committee, about alleged misconduct of two subordinate lawyers, Morgan Kim and Stacy Sovereign, who worked on both the Maxine Waters and Rangel cases. Rangel’s complaint attaches these memoranda (which we have discussed before) and describes them as “essential reading.” Complaint at ¶ 38.

The Ethics Committee previously retained Outside Counsel Billy Martin to investigate these precise allegations in the context of the Waters case. Martin conducted an extensive investigation, at substantial taxpayer expense, and reported to the Committee in September 2012 that there was no due process violation in the Waters matter. Although the report does not analyze the allegations with respect to the Rangel case, its reasoning strongly suggests the same result would obtain there.

Following the issuance of the Outside Counsel report, the Committee wrote to Rangel, rejecting his request to re-open his case. The letter begins by observing “[w]e have received and considered the numerous communications from your counsel, Mr. Jay Goldberg” (emphasis added).  It then states “it is the unanimous opinion of the Committee the there is no legal or factual basis supporting a conclusion that you have been deprived of any constitutional rights in your proceedings.” It emphasizes that this opinion was based on the analysis of its current non-partisan staff (which was not involved in the original Rangel matter) and was consistent with the analysis of Outside Counsel in the Waters case. It concludes with the suggestion that Rangel and his attorney not make “any further public comments” that are “misleading” or “inconsistent with the facts or law in this matter.” The Committee’s irritation with Rangel and Goldberg is barely disguised.

Continue reading “An Unwarranted Attack on the House and the Ethics Committee”

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Dueling Speech or Debate Privileges in the Renzi Case

National Journal had an article last week regarding the Speech or Debate waiver issue in the Renzi case (hat tip: Rick Hasen), which we discussed awhile back.

Another interesting Speech or Debate issue is raised in this motion by the House General Counsel on behalf of Kevin Messner, a non-party witness. Messner served at different times as a staffer for then-Congressman Renzi and for Jim Kolbe, another (now former) congressman from Arizona. Messner has potentially relevant knowledge from his service for both of the former members. This is because both Renzi and Kolbe were interested and involved in the land exchange legislation that is at the heart of the charges against Renzi, and Messner worked on the legislation in the course of his service for each of them.

Both the prosecution and the defense expressed an interest in questioning Messner about his knowledge and activities regarding the land exchange legislation. The House Counsel, however, sought and obtained a protective order barring the parties “from questioning Kevin Messner at trial concerning the legislative activities of former U.S. Representative James Kolbe.”

Because Kolbe declined to waive his Speech or Debate privilege, he was entitled to object to questioning of Messner with respect to certain matters. I am not sure, though, that it is quite right to say that Kolbe has the right to object to any questioning of Messner regarding Kolbe’s legislative activities. Messner may have knowledge of Kolbe’s legislative activities during the time that Messner worked for Renzi. I don’t think Kolbe would have the right to object to Messner’s testifying about that.

Kolbe’s right to assert Speech or Debate cannot be based solely on the fact that Messner is being questioned about Kolbe’s legislative activities. If Messner had worked only for Renzi, Kolbe would have had no privilege to assert.  Kolbe’s right to assert privilege derives from the fact that the law views Messner as Kolbe’s “alter ego” with regard to the period when Messner worked for him. See Gravel v. United States, 408 U.S. 606, 616-17 (1972). Thus, Kolbe may assert the privilege when Messner is questioned about matters within the “legislative sphere” only if they occurred during Messner’s service in Kolbe’s office (because the law deems this the equivalent of questioning Kolbe himself).

Renzi is in a different position. He can object to questioning Messner regarding his service in Renzi’s office on the same alter ego theory, but, as the defendant, he can also object to introduction of evidence regarding legislative acts regardless of the source. Thus, Renzi could object to Messner’s testimony about Renzi’s legislative acts even if that testimony related solely to Messner’s service as a Kolbe staffer. I think (although I am not sure this has ever been litigated) Renzi could even object to Messner’s testimony if it related solely to Kolbe’s legislative acts, and arose solely from Messner’s work for Kolbe.

If this is correct, there should be no question Messner could be asked to which Kolbe alone would have the right to object. However, as House Counsel points out, Kolbe has an independent right to assert the Speech or Debate privilege, including to questions that Renzi might want to ask of Messner.

To protect Kolbe’s privilege, House Counsel not only obtained a protective order, but secured permission from the judge to sit in the well of the court during Messner’s testimony and raise any Speech or Debate objections on a question-by-question basis. This is a fairly novel procedure that, in my experience, many judges would be loath to permit. Theoretically, if the House Counsel objected to a question which the judge did not believe was covered by the privilege, House Counsel (on behalf of Kolbe) could take an immediate appeal from the judge’s ruling, potentially causing a delay in the trial.

I suspect that House Counsel would take such a step only in extraordinary circumstances. For one thing, it would make it less likely that judges would be willing to allow this procedure in the future.

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New Jersey’s Vacant Expression

Note to self- do not make casual observations about state statutes you know nothing about. Because it turns out that the New Jersey election law I cited in my last post is only one of two (or, who knows, maybe more) provisions that the New Jersey legislature, in its wisdom, has seen fit to enact on the subject of filling vacancies in the office of U.S. Senator. The section I cited (section 3-26) appeared to require that a vacancy be filled at the next general election unless the vacancy happened within the 70 days before that general election, in which case it would be filled at the second succeeding general election. However, another section states:

Congressional vacancies.

19:27-6.  In the case of a vacancy in the representation of this State in the United States Senate or House of Representatives, the writ may designate the next general election day for the election, but if a special day is designated, it shall specify the cause and purpose of such election, the name of the officer in whose office the vacancy has occurred, the day on which a special primary election shall be held, which shall be not less than 70 days nor more than 76 days following the date of such proclamation, and the day on which the special election shall be held, which shall be not less than 64 nor more than 70 days following the day of the special primary election.  The writ shall also specify the day or days when the district boards shall meet for the purpose of making, revising or correcting the registers of voters to be used at such special election.

If the vacancy happens in the representation of this State in the United States Senate the election shall take place at the general election next succeeding the happening thereof, unless the vacancy shall happen within 70 days next preceding the primary election prior to the general election, in which case it shall be filled by election at the second succeeding election, unless the Governor shall deem it advisable to call a special election therefor, which he is authorized hereby to do.

Continue reading “New Jersey’s Vacant Expression”

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Frank Lautenberg, RIP

Senator Frank Lautenberg of New Jersey, the last World War II veteran serving in the Senate, passed away today at the age of 89.

New Jersey law provides:

19:3-26. Vacancies in United States senate; election to fill; temporary appointment by governor.

19:3-26. If a vacancy shall happen in the representation of this State in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within 70 days next preceding such election, in which case it shall be filled by election at the second succeeding general election, unless the governor of this State shall deem it advisable to call a special election therefor, which he is authorized hereby to do.

The governor of this State may make a temporary appointment of a senator of the United States from this State whenever a vacancy shall occur by reason of any cause other than the expiration of the term; and such appointee shall serve as such senator until a special election or general election shall have been held pursuant to law and the Board of State Canvassers can deliver to his successor a certificate of election.

Note that if Attorney General Wirt’s definition of “happen” were to be applied to this statute, a vacancy would continue to “happen” until it was filled. In that case Governor Christie could wait until October to fill the vacancy, and the election to fill the remaining portion of Senator Lautenberg’s term (which ends in January 2015) could be delayed until November 2014.

However, it seems clear that “the happening” of the vacancy, at least within the meaning of the New Jersey law, refers to the specific date on which the vacancy occurs, rather than any date during which it continues to exist. Therefore, the election to fill the vacancy must occur at “the general election next succeeding” the occurrence of the vacancy, which will be in November 2013 (when New Jersey will be holding statewide elections).

This Hill article suggests that the Governor can choose to set a special election date to fill the seat. As I read the statute, he would only have that option if the vacancy happened within 70 days prior to the next general election. Therefore, I believe that the election must take place this November. But I could be wrong.