Month: September 2015

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The Judicial Conference on Impeachment of a Former Judge

In this certification pursuant to the Judicial Conduct and Disability Act, the Judicial Conference “certifies to the House of Representatives its determination that consideration of impeachment of former United States District Court Judge Mark E. Fuller (M.D. Ala.) may be warranted.”

The Judicial Conference’s certification was based on findings that Judge Fuller had (a) repeatedly physically abused his wife, (b) lied under oath about his misconduct to the Special Committee to the Judicial Council of the Eleventh Circuit, and (c) “made false statements to the Chief Judge of the Eleventh Circuit in late September 2010 in a way that caused a massive disruption in the District Court’s operation and loss of public confidence in the Court as an instrument of justice.”

It is not surprising that these findings led to a referral to the House for possible impeachment proceedings, but it is noteworthy that the referral occurred even though former Judge Fuller had already resigned his office. As we have discussed before, whether a former officer is subject to impeachment remains an open constitutional question, but the certification of the Judicial Conference here adds to the weight of authority in support of an affirmative answer to that question. See M. Gerhardt, The Federal Impeachment Process 79 (1996) (noting “a surprising consensus among commentators that resignation does not necessarily preclude impeachment and disqualification”).

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Congressional Standing to Protect the Power of the Purse

Do you remember how last summer I suggested the House’s odds of prevailing (in particular, with respect to standing) in a potential Obamacare lawsuit were in the vicinity of the proverbial snowball’s chance in hell? You don’t? Good, because that turns out to be not exactly correct.

To be fair (to myself), I was discussing a somewhat different lawsuit than the one the House ended up bringing. As originally explained by Speaker Boehner, the purpose of the suit was “to compel the president to follow his oath of office and faithfully execute the laws of our country.” Specifically, it was understood that the proposed lawsuit would “focus on the Obama administration’s implementation of the Affordable Care Act, particularly the failure to implement the employer mandate in accordance with the January 1, 2014 effective date set forth in the law.”

The House ultimately ended up bringing suit against the Secretaries of HHS and Treasury for disregarding the employer mandate deadline specified in the ACA and for reducing the statutory percentage of employees who are required to be offered insurance under that mandate. These are essentially the claims we anticipated before the suit was filed (although the House wisely decided to bring them against cabinet officials rather than the president).

In addition to these employer mandate claims, however, the House alleged that the defendants had illegally spent billions of dollars in “cost-sharing” payments to insurance companies under the ACA. Such payments were made pursuant to section 1402 of the ACA in order to compensate insurance companies for reducing the out-of-pocket cost of insurance for lower income beneficiaries.

According to the House’s complaint, payments under section 1402 must be funded through the normal annual appropriations process. Although the administration initially recognized this by submitting an FY 2014 appropriations request for these payments, it changed its position after Congress refused to appropriate the funds. Beginning in January 2014, the administration drew and spent money from permanent appropriations to make the section 1402 payments. The House maintains that this was illegal and unconstitutional because there was no permanent appropriation that covered these payments.

Continue reading “Congressional Standing to Protect the Power of the Purse”

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Why Wouldn’t Congress Give Pagliano Immunity?

Bryan Pagliano, a former State Department staffer who helped to set up Hillary Clinton’s private e-mail server, has informed several congressional committees, including the House Select Committee on Benghazi and the Senate Judiciary Committee, that he will invoke the Fifth Amendment privilege against self-incrimination if forced to appear before those committees to answer questions about that subject. Pagliano’s attorney cited “the ongoing FBI inquiry into the security of Clinton’s e-mail system” as the basis for his fear of possible incrimination.

In connection with the Lois Lerner matter, we have discussed the various legal issues related to a former government official’s invocation of the Fifth Amendment before Congress. One of the possible responses to such invocation is for the congressional committee to grant the witness immunity, thereby preventing his congressional testimony from being used against him in a future prosecution. Once such immunity is granted, the witness no longer has the legal right to refuse to answer questions before the committee based on the Fifth Amendment.

In theory, the immunity granted extends only to the actual use of the congressional testimony, but in practice it becomes nearly impossible to prosecute the congressional witness for any crime related to the subject of that testimony. Thus, if the committee believes that the witness may truly face the possibility of prosecution, it may be reluctant to grant immunity. This is one of the primary reasons that congressional grants of immunity are fairly rare (the last one given was to Monica Goodling in 2007 by the House Judiciary Committee).

With respect to Pagliano, however, this would hardly seem to be a serious issue. Unlike Lerner, he is not a senior or central figure in the investigation. The chances of his facing any kind of criminal jeopardy for setting up a private e-mail server (which by definition had to have occurred before any classified e-mails were sent through that server) would seem extremely remote.

In any event, the process of granting immunity allows the executive branch, in the person of the Attorney General, to express any concerns about the grant of immunity that it may have. The congressional committee must notify the Attorney General of its intent to seek the immunity order and thus the Attorney General has the opportunity to inform the committee of any objections to the grant of immunity. However, while the Attorney General has the power to delay the grant of immunity by up to 20 days, see 18 U.S.C. § 6005 (c), she has no power to veto or ultimately stop it from being granted. See Application of U.S. Senate Sel. Comm. on Pres. Campaign Activities, 361 F.Supp. 1270, 1276 (D.D.C. 1973).

Applying for immunity requires a vote of either two-thirds of the congressional committee or a majority of the full House or Senate. Thus, while the Attorney General cannot stop the grant of immunity, the committee minority can at least force the matter to full body if it objects to the grant. In the circumstances of this case, it seems to me it would be difficult to make a credible argument as to why Pagliano shouldn’t receive immunity. But the process gives everyone an ample opportunity to express their views.