Month: March 2014

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House Counsel on the Lerner Contempt

The House Counsel has issued this memorandum addressing the argument that Lois Lerner cannot be held in contempt because the Committee on Government Oversight and Reform failed to follow the proper procedures in overruling her objections. The memo provides additional factual detail regarding the committee’s actions and communications with Lerner and her counsel. House Counsel states that “the factual record overwhelmingly supports the conclusion that Ms. Lerner would ‘ha[ve] no cause to complain’ if she were to be indicted and prosecuted under 2 U.S.C. § 192 because she was ‘not forced to guess the [C]ommittee’s ruling’ on her Fifth Amendment claim.” Memorandum at 12. Thus, “we think it highly unlikely a district court would dismiss a section 192 indictment of Ms. Lerner on the ground that she was insufficiently apprised that the Committee demanded her answers to its questions, notwithstanding her Fifth Amendment objection.” Id. at 15.

House Counsel also points out that there is no reason at all to believe that the alleged infirmities in the committee’s procedures would have any bearing on a civil enforcement action. Id. at 18-19.

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Senator Johnson’s Obamacare Standing

 

Update: oops, I have been reminded that the Tenth Circuit in Schaffer v. Clinton, 240 F.3d 878, 885-86 (10th Cir. 2001), rejected the D.C. Circuit’s Boehner v. Anderson conclusion and held that a member of Congress lacked standing to complain of a pay increase that allegedly violated the Twenty-Seventh Amendment. Schaffer isn’t cited in DOJ’s motion to dismiss either.

 

Senator Ron Johnson (R-Wisc.) has brought a lawsuit against OPM in the U.S. District Court for the Eastern District of Wisconsin in which the senator, along with one of his aides, challenges OPM’s regulations related to congressional health insurance options available under the Affordable Care Act. Specifically, the plaintiffs argue that OPM lacked the authority to grant employer subsidies for congressional health insurance purchased on the exchanges under Section 1312 (d)(3)(D) of the ACA. They also maintain that OPM improperly shifted to Members of Congress the burden of determining which legislative employees qualify as employees of “the official office of a Member of Congress” within the meaning of Section 1312 (d)(3)(D).

Andrew McCarthy has called this lawsuit “frivolous,” saying “it is no more constitutionally proper or practical for a legislator to sue the president over a public policy dispute than for the president to violate valid laws.” But while the suit may be “frivolous” in the sense that it is not a worthwhile use of the senator’s or the court’s time, it is not legally defective simply because the senator’s motivation is to win a political or public policy dispute. If, for example, Marbury was motivated by the desire to score political points against the Jefferson administration rather than by a genuine ambition to become a justice of the peace (which may have been the case, for all I know), this would not have been grounds to reject his case. At least I don’t think so.

The legal question is simply whether Johnson and/or his aide have suffered a personal injury that can be redressed in court. This is not a case, like Raines v. Byrd, 521 U.S. 811 (1997), where individual members of Congress are attempting to vindicate an institutional injury suffered by the legislative body as a whole.

The Justice Department, representing OPM, argues that the plaintiffs lack standing because they are not claiming any personal injury. For example, they “are not contending that the challenged OPM regulations have any adverse effect on their own health coverage.” DOJ Motion to Dismiss at 7 (emphasis in original). Instead, their “suit seeks to narrow the health-coverage options and benefits made available to themselves and other Members of Congress and congressional employees.” Id. (emphasis in original). How, DOJ in essence asks, can Senator Johnson have been injured by receiving a financial benefit such as an employer subsidy?

This is a fair question, but I can’t help noticing that the Justice Department failed to cite the only case (to my knowledge) to answer this question in a virtually identical context. In Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994), a group of members and congressional candidates, led by the future Speaker of the House, challenged certain congressional pay increases as contrary to the Twenty-Seventh Amendment. As in the Johnson lawsuit, the defendants argued that Boehner lacked standing to sue because his complaint was really a generalized about the conduct of government. Besides, the Secretary of the Senate (one of the defendants) added sensibly, “an increase in pay is not an injury.”

Boehner, however, argued that in his case it was an injury because his constituents would think less of him for receiving a financial benefit to which he was not legally entitled. This argument, essentially identical to Johnson’s, was accepted by the D.C. Circuit, which stated: “We do not think it the office of a court to insist that getting additional monetary compensation is a good when the recipient, a congressman, says that in his political position it is a bad.”

We will see if the federal court in Wisconsin follows this line of reasoning. If it does not, Senator Johnson still may be able to prevail on standing with regard to the “official office” designation issue. Here Johnson contends that OPM has unlawfully punted the responsibility for determining who works for an “official office” within the statutory meaning. This places a burden on the individual member to make this determination, without any guidance from OPM, and results in identically situated staffers being treated differently.

DOJ’s arguments against standing on this issue strike me as less than impressive. The primary argument is that the necessity of determining which employees work for an “official office” results from the ACA itself, not from OPM. That’s true, but it is OPM that has taken a legal determination that should be made by the agency and made it into an arbitrary choice to be made by members.

DOJ also argues that Johnson does not really have to undertake the burden of making this decision because he has the option of delegating it to the Senate’s administrative office. But that’s just another way of making the decision. Johnson knows what determination the Senate administrative office will make. If that is the legally correct determination, then OPM should have made that determination in the first place. Instead, OPM is essentially giving members the option to decide whether or not they want to follow the law. Since following the law will impose a cost on a member (particularly in comparison to another member who may decide not to follow it), that does seem to place an individual burden on each member.

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Can Lois Lerner Skate on a Technicality?

Updated: Mort Rosenberg’s response follows

On a snowy day, what could be better than snuggling up with some 1950s Supreme Court cases and getting deep into the technicalities of congressional contempt procedure? If your answer is “just about anything,” you would not have enjoyed John Filamor’s going-away party.

As it happens, I had a reason for doing this. My friend and congressional legal expert extraordinaire Mort Rosenberg, with some assistance from former House Counsel Stan Brand, wrote this memo last week to Elijah Cummings, ranking member of the House Committee on Oversight and Government Reform (COGR). The memo concludes, based on Supreme Court precedent, that Lois Lerner cannot be held in contempt for her refusal to answer questions at a recent COGR hearing, explaining that “at no stage in this proceeding did the witness receive the clear rejections of her constitutional objections and direct demand for answers nor was it made unequivocally certain that her failure to respond would result in a criminal contempt prosecution.”

For the reasons set forth below, I don’t think the Supreme Court cases relied on by Rosenberg and Brand support their conclusion. It is unlikely, in my opinion, that Lerner could escape criminal conviction on the grounds set forth in their memo. Moreover, as far as I can tell there is no basis for the suggestion that Lerner would be able to successfully defend a civil suit on this basis.

Perhaps more importantly, I do not think it appropriate for Representative Cummings to endorse this position. Lerner has skilled defense counsel who is more than capable of deciding whether it is in her interest to raise this hyper-technical defense should she be charged with criminal contempt. There are legitimate institutional reasons why Cummings might object to holding Lerner in contempt, but this is not one of them.

Continue reading “Can Lois Lerner Skate on a Technicality?”

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Chris Donesa on the SSCI/CIA Dispute

Chris Donesa, former chief counsel to the House Permanent Select Committee on Intelligence, provides this thoughtful and balanced analysis at Lawfare of Senator Feinstein’s charges against the CIA, raising three questions about the dispute.

Of particular interest is Donesa’s third question, which relates to why SSCI itself apparently violated its agreement with the CIA by removing certain documents, including drafts of the “Internal Panetta Review,” from the CIA facility without getting pre-clearance to do so. I agree with Donesa that Feinstein clearly, though implicitly, acknowledged such a violation. She claimed in her statement that the removal of the documents was lawful and in keeping with the “spirit” of the agreement (because the committee redacted the information that it believed the CIA would legitimately be able to protect). The corollary is that SSCI violated the letter of the agreement, and I doubt that the CIA would agree that SSCI complied with the agreement’s spirit either.

I would note here that Feinstein doesn’t say whether she authorized the committee staff to remove the documents. But she is clearly saying that the staff acted properly because “there was a need to preserve and protect the Internal Panetta Review in the committee’s own space.” If they had not done so, she suggests, the CIA might have removed the committee’s ability to access the documents at the CIA facility. Moreover, the CIA might have destroyed the documents altogether.

Donesa finds the last suggestion, in particular, rather implausible under the circumstances, and this would be my first reaction as well. But the most important point is that Senator Feinstein is accusing the CIA of being such a rogue agency that it cannot be trusted to avoid even the reckless and unlawful step of destroying evidence specifically known to and demanded by its oversight committee.

So the question I would raise is whether Feinstein’s charge should be viewed as merely the sort of hyperbole we have come to expect in the back and forth of Washington bickering, or whether it should be taken seriously. And if the latter, what is the proper mechanism for adjudicating such an extraordinary charge?

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But Other Than That, the CIA Has Been Very Cooperative With SSCI’s Investigation

Senator Feinstein’s bill of particulars against the CIA, set forth in her speech this morning:

Between 2002 and 2006, the CIA failed to brief the Members of the Senate Select Committee on Intelligence, other than the Chairman and Vice Chairman, regarding its detention and interrogation program.

In 2007 the CIA destroyed videotapes, over the objections of White House Counsel and the DNI, of certain enhanced interrogations.

In early 2009, SSCI staffers provided an initial report indicating that “[t]he interrogations and conditions of confinement at the CIA detention sites were far different and far more harsh than the way the CIA had described them to us.”

After SSCI initiated a full investigation, SSCI agreed, at the request of then- CIA Director Panetta, that it would review CIA documents relevant to its investigation at a secure CIA facility in Northern Virginia. A process was agreed to under which SSCI would be provided with a “stand-alone computer system” that would not be accessed by CIA personnel, other than IT, without SSCI’s permission.

The CIA sent up a laborious and expensive document review process under which every responsive document was reviewed by outside contractors to make sure that SSCI did not receive documents that were either beyond the scope of its requests or potentially subject to a claim of executive privilege.

Beginning in mid-2009, the CIA began producing documents, eventually running into millions of pages, without index or organizational structure, a “document dump.”

SSCI asked the CIA to provide an electronic search tool so it could sort through these documents.  The CIA provided this tool, and SSCI staff used it to identify important documents, which they would then print out or copy to a separate folder on the computer. Eventually the staff identified thousands of such documents in the committee’s secure space at the CIA facility.

In May 2010, SSCI staff noticed that certain documents that had previously been made available for their review were no longer accessible on the SSCI computer at the CIA facility. It later turned out that CIA personnel, without the knowledge or approval of SSCI, had removed 870 documents or pages of documents in February 2010 and another 50 in May 2010. These actions violated the written agreements between SSCI and the CIA and represented the exact sort of CIA interference in the investigation that SSCI had sought to avoid at the outset.

When confronted by SSCI staff, CIA personnel first blamed IT contractors. Then the CIA stated that the removal of the documents was ordered by the White House. This claim was denied by the White House.

The White House Counsel and the CIA gave Senator Feinstein a renewed commitment that there would no further unauthorized access to the committee’s network or removal of CIA documents already provided to the committee. On May 17, 2010, the CIA director of congressional affairs apologized on behalf of the CIA for the removal of the documents.

Sometime during 2010, SSCI staff located draft versions of the “Internal Panetta Review” among the documents made available to the committee at the CIA facility. These documents reached the same conclusions as the committee did with regard to certain “troubling matters” uncovered in its investigation. These documents were identified by SSCI staff as important and were printed out and electronically copied in accordance with their normal practice.

Some, though not all, of the IPR documents were marked as “deliberative” or “privileged.” This was not considered noteworthy because many documents provided to SSCI by the CIA have such markings. Senate Legal Counsel has also advised that these claims of privilege are not recognized by Congress.

Sometime after SSCI staff identified and reviewed the IPR documents, most likely in 2010, the CIA removed access to the vast majority of them. This violated both the CIA’s initial agreements and later assurances by the White House and the CIA that there would be no further removal of documents.

In December 2012, SSCI produced a 6,300 page study of the CIA’s Detention and Interrogation Program and sent it to the CIA for comment.

On July 27, 2013, the CIA provided SSCI with its response. Although the CIA agreed with some parts of the SSCI study, it disagrees with and disputes important parts of it. Importantly, “[s]ome of these important parts that the CIA now disputes in our committee study are clearly acknowledged in the CIA’s own Internal Panetta Review.”

After noting the disparity between the official CIA response and the draft IPR, SSCI staff “securely transported a printed portion of the draft Internal Panetta Review from the committee’s secure room at the CIA-leased facility to the secure committee spaces in the Hart Senate Office Building.” This complied with the spirit (if not the letter) of SSCI’s agreements with the CIA because SSCI redacted from these documents the kind of information (names of CIA non-supervisory personnel and names of specific countries in which CIA detention sites were operated) that the CIA was trying to protect. There is no legal prohibition against what SSCI staff did.

Given the CIA’s past practice of removing or destroying information related to the detention and interrogation program, “there was a need to preserve and protect the Internal Panetta Review in the committee’s own secure spaces.”

In late 2013, Senator Feinstein requested a final and complete version of the IPR be provided to the committee. In early 2014, the CIA refused this request, citing the deliberative nature of the document.

On January 15, 2014, CIA Director Brennan informed Chairman Feinstein and Vice Chairman Chambliss that, without prior notification or approval, the CIA had conducted a search of the SSCI computers at the CIA facility. This search was conducted in response to indications that SSCI staff had already obtained access to the IPR. The CIA did not, either prior to the search or thereafter, ask SSCI how it acquired information regarding the IPR. Despite this, someone has made anonymous allegations in the press “that the committee staff had somehow obtained the document through unauthorized or criminal means, perhaps to include hacking into the CIA’s computer network.”

On January 17, 2014, Senator Feinstein wrote to Director Brennan objecting to any further CIA investigation regarding the activities of SSCI staff due to separation of powers concerns about the search and any further investigation. She followed up with a letter on January 23 asking 12 specific questions about the CIA’s actions. The CIA has refused to answer these questions.

Senator Feinstein believes that the CIA’s search may well have violated basic separation of powers principles, the Speech or Debate Clause and the Fourth Amendment, as well as the Computer Fraud and Abuse Act and Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance. Senator Feinstein has demanded an apology from the CIA and a recognition that the search was inappropriate. She has received neither.

The CIA Inspector General has initiated an investigation of the CIA search and has referred the matter to the Department of Justice for possible criminal investigation.

Senator Feinstein has also learned that the CIA’s acting General Counsel has “filed a crimes report with the Department of Justice concerning the committee’s staff actions.” This apparently took place after the IG made his referral to the Justice Department. Senator Feinstein believes that there is no legitimate reason for the acting General Counsel (who she notes was heavily involved in the activities covered by the committee’s study of the detention and interrogation program) to have taken this action. She “view[s] the acting general counsel’s referral as a potential effort to intimidate this staff.”

She says “this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.”