Month: August 2020

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Applicability of Federal Criminal Laws to OCE Investigations

In one of his last opinions on the D.C. Circuit, Judge Griffith resolved another congressional case, United States v. Bowser, No. 18-3055 (D.C. Cir. June 30, 2020), albeit one less consequential than McGahn. David Bowser, a former chief of staff to Representative Paul Broun (R-Ga), was convicted of obstructing an investigation by the Office of Congressional Ethics (OCE) into whether Broun had improperly used funds from his “Members Representational Allowance” (MRA) to pay for campaign related expenses.  Specifically, OCE in 2014 launched an inquiry into whether a “messaging consultant” hired by Broun’s office had been paid out of the MRA for time spent on Broun’s congressional and senate campaigns.

In response to OCE’s preliminary review of these allegations, Bowser coached witnesses to provide false or misleading information to OCE, encouraged them to withhold responsive and relevant documents, and did the same himself. As a consequence, he was indicted and convicted of obstructing Congress, concealing material facts from OCE, and making false statements.

On appeal, there were two principal legal issues presented. First, the court addressed whether the obstruction of Congress statute, 18 U.S.C. § 1505, applies to OCE investigations. The statute applies to any investigation or inquiry by “either House, or any committee of either House or any joint committee of the Congress.” As the court noted (and the government conceded), this language on its face does not encompass OCE. It stressed that Congress knows how to draft statutes to cover offices such as OCE when it wishes to do so, contrasting the limited scope of § 1505 with the False Statements Act, which “applies to ‘any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress.'” Bowser, slip op. at 8 (quoting 18 U.S.C. § 1001(c)(2)) (emphasis added by court).

The government argued, however, that OCE conducts investigations as an agent for the House and/or the House ethics committee. The court was not persuaded. It pointed out that the statute defines which “agents” it covers, i.e., committees and joint committees, and therefore other entities could not be covered simply because they act in some general sense as agents for one house or Congress as a whole. It also found that OCE’s functions under the House rules undercut the government’s argument because OCE merely has the limited power of conducting reviews and issuing recommendations to the ethics committee, which then determines whether to undertake the actual “investigation.”

Accordingly, the D.C. Circuit found the obstruction statute inapplicable to OCE’s inquiry and affirmed the district court’s grant of Bowser’s post-trial motion for acquittal on the obstruction charge.

The second major issue was Bowser’s claim that the district court should have also granted his motion for acquittal on the charge of concealment under the False Statements Act. While he did not dispute that OCE was an “office of the Congress” within the meaning of that statute, he argued there could be no concealment because OCE’s preliminary reviews are voluntary and therefore impose no duty on witnesses to disclose information. The court, however, held that a voluntary ethics investigation or review may impose a duty to disclose as long as witnesses are given fair notice of this fact. Under the circumstances of this case, Bowser was under such a duty because he had certified in writing that he had fully complied with OCE’s request for information and had been advised that his disclosure was subject to the False Statements Act.

Bowser is a fairly straightforward statutory interpretation case which is probably not all that interesting to anyone except lawyers who represent clients in House ethics matters. Its most immediate impact, I suspect, will be to give such lawyers cover for advising their clients not to cooperate voluntarily with OCE.

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Presidential Electors and the Article V Convention: An Update

A few years ago I wrote a post explaining why the failure of the “Hamilton electors” in the 2016 presidential election demonstrated that it would be equally impossible for an Article V convention to “run away,” i.e., to propose amendments beyond the scope of the convention applied for by the state legislatures. Among other things, I argued that the constitutional case for allowing state legislatures to control their delegates to an Article V convention was stronger than that for exercising such control over their presidential electors. Accordingly, the deterrent and coercive effect of “delegate limitation laws” (DLAs) enacted by various states to control delegates to a potential Article V convention should be as least as great as that of faithless elector laws upon which they were in part modeled.

The Supreme Court’s recent decision upholding the constitutionality of faithless elector laws shows that it will be difficult to challenge DLAs and may encourage additional states to enact such laws. In Chiafolo v. Washington, 591 U.S. __ (2020), the Court unanimously held that states may not only require presidential electors to pledge to support a particular candidate but they may penalize electors who violate this pledge. Writing for seven justices, Justice Kagan acknowledged that the framers may have expected that the electors would exercise their own judgment and discretion in voting for president, but the “barebones” constitutional text regarding the electoral college failed to constitutionalize that requirement. Chiafolo, slip op. at 12-13. In contrast, the Constitution expressly gives state legislatures power over the appointment of presidential electors, and “the power to appoint an elector (in any manner) includes the power to condition his appointment– that is, to say what the elector must do for the appointment to take effect.” Id. at 9. The constitutional text and the longstanding practice of treating electors as mere instruments of the voters’ will persuaded the Court to uphold faithless elector laws.

Justice Thomas, writing for himself and Justice Gorsuch, concurred on different grounds. While he found “highly questionable” the majority’s conclusion that the Constitution affirmatively grants states the power to limit the discretion of presidential electors, he concluded that faithless elector laws were valid under the Tenth Amendment’s reservation of powers to the states and the people.

The Chiafolo ruling provides strong support for the constitutionality of DLAs. The Constitution is even more “barebones” about an Article V convention than about the electoral college. It does not expressly address how an Article V convention is constituted, who selects the delegates, or how they vote. (These omissions did not escape James Madison’s attention. See Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 768 n.27 (2011)). Nonetheless, assuming that convention delegates are to be appointed by or in a manner directed by the state legislatures (as virtually everyone agrees would be the case), Chiafolo strongly suggests that these legislatures would have the power to condition the appointment by limiting the discretion of delegates and to impose legal consequences for violations of such condition. Continue reading “Presidential Electors and the Article V Convention: An Update”

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Will the D.C. Circuit’s “Unusual Moves” Allow it to Evade Supreme Court Review in the McGahn and Mnuchin Cases?

On Friday the D.C. Circuit, sitting en banc, held that the House Judiciary committee has standing to enforce its testimonial subpoena to former White House counsel Don McGahn. See Comm. on the Judiciary, U.S. House of Representatives, v. McGahn, No. 19-5331 (D.C. Cir. Aug. 7, 2020) (en banc). In so doing, the court rejected both the administration’s broad argument that Congress lacks Article III standing to sue anybody for anything and its narrower position that Congress lacks standing to bring an interbranch dispute to court. This is an important decision that, if it stands, will form the legal backdrop of executive-legislative disputes for years to come.

The court’s reasoning and that of the dissenters is not my focus today. (Professor Adler has a good summary of the various opinions here). Rather I want to focus on what happens next in these cases, and whether the majority has successfully insulated its decision from Supreme Court review.

The vote in McGahn was 7-2. The two dissenters were Judges Henderson and Griffith, who were the majority on the original panel to hear the McGahn case. They were also the only Republican appointees to participate in the en banc court because the two other Republicans on the court (Judges Katsas and Rao) were recused.

Although the McGahn en banc decision resolved the standing issue, it did not deal with other issues that had been raised on appeal. Instead, the full court ordered that the remaining appellate issues be “remanded to the panel to address in the first instance.” the issues remanded are (1) whether there is subject matter jurisdiction with respect to this lawsuit; (2) whether there is a cause of action for failure to comply with a congressional subpoena; and (3) assuming the Judiciary committee prevails on the first two issues, the merits of McGahn’s “absolute immunity” defense.

In addition to rejecting the majority’s standing analysis, Judge Griffith (but not Judge Henderson) protested the majority’s failure to decide all the issues in the case, noting that “the full court hurdles over Article III barriers only to decline to resolve the case.” In Griffith’s view, the court should have addressed the remaining issues and concluded, as he does, that there is no subject matter jurisdiction and no cause of action for the committee’s grievance against McGahn.

The original McGahn panel consisted of Judges Rogers, Henderson and Griffith. I assume the case will be remanded to the same panel. Judge Griffith, however, is retiring effective September 1 and therefore (I assume) will have to be replaced. Presumably this is why Griffith felt compelled/able to give his views on the issues the panel will now have to consider.

Separately, the en banc court remanded to a different panel the case of U.S. House of Representatives v. Mnuchin, No. 19-5176, in which the House is suing the Trump administration for violating the Appropriations Clause by constructing a border wall without congressional authorization. Although the en banc court initially agreed to consider the standing issue in Mnuchin (even before the original three-judge panel had ruled on it), it has now decided to send that issue back to the panel to consider the House’s standing under the principles set forth in its McGahn decision.

Judges Henderson and Griffith also dissented from the decision to remand Mnuchin, arguing that it makes no sense to have sua sponte agreed to hear the Mnuchin case en banc, requested and received supplemental briefing and argument, and then simply punted the issue back to the three-judge panel.  As Judge Henderson puts it, “[t]he majority points to no case– nor am I aware of any– in which we sua sponte consolidated two appeals for en banc rehearing and then addressed only one of them in the resulting opinion.” Mnuchin, slip op. at 2 (Henderson, J., dissenting).

Judge Griffith had some even more pointed remarks for his soon to be former colleagues. He accuses the full court of repeatedly departing from regular order by first determining that the standing question in Mnuchin was not only of such “exceptional importance” to justify rehearing en banc, but making this determination sua sponte before the three-judge panel had even issued an opinion, and then “sending the case back to the panel without answering the ‘question of exceptional importance’ that triggered rehearing in the first place.” Mnuchin, slip op. at 3 (Griffith, J., dissenting). He then asks: “What accounts for this extraordinary departure? The court offers no explanation for this unusual move, and I can think of none.” Id.

Well, I can think of an explanation (and I suspect Griffith can too). By failing to issue a final decision in either McGahn or Mnuchin, the D.C. Circuit has made it much less likely that the Supreme Court will have an opportunity to grant certiorari prior to the election. And if these cases drag on past the election, there is a good chance the Court will never hear them at all.

Let’s begin with McGahn. As everyone concedes, it is highly unlikely now that McGahn will be testifying in this congress (and certainly not before the election). Thus, there will be little urgency for the reconstituted panel to issue a final decision (and consider how slowly things moved when there was urgency). Possibly a final decision might issue before the election, but the longer it takes, the less reason the Supreme Court will have to grant review. In the first place, the expiration of the congress terminates the subpoena and therefore arguably moots the case. Furthermore, if the election changes the occupant of the White House, it is entirely possible the incoming Justice Department will not be interested in pursuing Supreme Court review.

Now consider Mnuchin. As in the case of McGahn, if the full D.C. Circuit had found in favor of the House now, the Justice Department would have undoubtedly sought Supreme Court review on an expedited basis. Even if the court found against the House (which frankly I think is more likely), the House might have felt politically that it needed to seek further review. However, if the Democrats win the White House, the House will probably lose interest in the case regardless of which way the panel decision goes, and the case will go away without Supreme Court review. Only if the House wins the panel decision and Trump retains the White House does it seem likely that the parties would pursue further review.

Note, however, that if there is a new administration, its interests will not necessarily align with those of the House. While it may not wish to take a case on congressional standing to the Supreme Court, it probably would prefer not to have the D.C. Circuit’s standing decision in McGahn as the controlling law either. Just as the Obama administration reportedly tried (unsuccessfully) to get the House to agree to dismissal of the Miers case on grounds of mootness, the issue in an incoming Biden administration may not be Supreme Court review, but whether the D.C. Circuit’s en banc decision in McGahn is rendered moot by the expiration of the congress or otherwise.

In short, the big issue in McGahn and Mnuchin is no longer whether the House will get the relief it initially sought, but whether the D. C. Circuit’s standing decision will be preserved as the law of the circuit. Interested parties should plan accordingly.

 

 

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Justice Thomas and Judge Rao: A Tale of Two Mazars Dissents

Justice Thomas’s dissent in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), has been compared to Judge Rao’s dissent in the D.C. Circuit below, with the implication that this somewhat vindicates Rao’s widely panned opinion. However, the two dissents are in fact quite different, and it seems pretty clear that Justice Thomas was not persuaded by his former clerk’s opinion.

To be sure, there are similarities between the two dissents. Both ignore the presidency-centered arguments offered by President Trump’s personal legal team and the Department of Justice in favor of broader theories not raised by any party or amicus. Both evince skepticism if not outright hostility toward legislative investigations generally and clearly prefer the stance taken by the Court in Kilbourn v. Thompson, 103 U.S. 168 (1881) to that of McGrain v. Daugherty, 273 U.S. 135 (1927). Both indicate that these congressional subpoenas seeking the president’s personal financial information would be valid, if at all, only through the exercise of the impeachment power. Both rely to a great extent on historical practice, particularly a kind of negative historical practice (i.e., drawing conclusions from things that allegedly did not happen).

Despite these similarities, the two dissents employ different reasoning, rely on different “precedents,” and reach very different conclusions. The textual and structural lynchpin of Judge Rao’s analysis is the impeachment power, which she claims “provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process.” Trump v. Mazars USA, LLP, 940 F.3d 710, 751 (D.C. Cir. 2019) (Rao, J., dissenting). While Rao acknowledges Congress’s general legislative power to conduct investigations, this power in her view does not extend to matters within the “impeachment zone” (my term, not hers). How one determines what falls within the impeachment zone is somewhat unclear, but Rao finds that the subpoenas for Trump’s financial information are ones that can only be pursued through the impeachment power.

Much of Rao’s opinion is devoted to her contention that “consistent historical practice” supports her conclusion. Id. at 753. To wit, she endeavors to show that Congress has never investigated matters within the impeachment zone except through the use of the impeachment power. Id. at 758-67.

Thomas takes a different approach. Although he agrees with Rao that the personal financial records at issue may be obtained by Congress, if at all, only through the exercise of the impeachment power, he reaches this result because he believes Congress lacks the power to subpoena private, nonofficial documents in any legislative investigation. Unlike Rao, he does not claim that the impeachment power somehow displaces otherwise available legislative power to investigate.

A simple illustration of the difference between the two dissents is to imagine Donald Trump had never been elected president. (It’s easy if you try). Under Rao’s theory, Congress would be able to subpoena his financial records for legislative purposes, such as to investigate the operation of money-laundering laws (which was the asserted purpose of the subpoena issued by the Committee on Financial Services). Under Thomas’s theory, on the other hand, these records could never be subpoenaed for a legislative purpose.

Put another way, Thomas would proscribe a particular legislative tool (subpoenas for private documents) for all legislative investigations, while Rao would proscribe the use of any compulsory process for certain investigative subjects (legislative investigations of matters falling within the impeachment zone). Thus, Rao would allow subpoenas for private documents in legislative investigations outside the impeachment zone; Thomas would not. Thomas would allow subpoenas for testimony or official documents in legislative investigations within the impeachment zone; Rao would not. Though they produce the same result in this particular case, the two theories are entirely different.

Furthermore, Thomas evidently rejects Rao’s interpretation of historical practice. While Rao claims that investigations of wrongdoing by impeachable officials have occurred exclusively through the exercise of the impeachment power, Thomas makes this observation:

     For nearly two centuries, until the 1970s, Congress never attempted to subpoena documents to investigate wrongdoing by the President outside the context of impeachment. Congress investigated Presidents without opening impeachment proceedings. But it never issued a subpoena for private, nonofficial documents as part of those non-impeachment inquiries.

Trump v. Mazars USA, LLP, 591 U.S. __, slip op. at 20-21 (2020) (Thomas, J., dissenting) (citation omitted) (emphasis added).

As Thomas acknowledges, Congress has investigated wrongdoing by presidents (not to mention other impeachable officials) in “non-impeachment inquiries” both before and after the 1970s. Whatever the factual accuracy or legal significance of the claim that these non-impeachment inquiries did not subpoena private, nonofficial documents “until the 1970s,” Thomas clearly does not see the historical pattern asserted by Rao as the key to her dissent.

None of this is to say that Justice Thomas’s dissent is correct (it is not) or even more plausible than Judge Rao’s (we will leave that to another day). It is fair to say, though, that Thomas was unpersuaded by Rao’s analysis and finds his own to be more plausible.