If you would like to hear me on a podcast talking about congressional subpoena power and executive privilege (and, really, why wouldn’t you?), you are in luck.
You can leave critiques in the comment section. (Offer does not apply to my children).
Just Security Post on How Impeachment Proceedings Strengthen Congress’s Investigatory Powers
The post can be read here.
Why the Mazars and New York Bank Cases are Moving So Fast, and Why Others Will Not
On Monday, May 20, 2019, Judge Mehta dismissed Trump v. Committee on Oversight and Reform, No. 19-civ-01136 (D.D.C.). The judge’s ruling came just four weeks after President Trump (in his personal capacity) and several of his businesses filed suit to enjoin enforcement of a congressional subpoena to Mazars, an accounting firm that had worked for the Trump companies. This quick resolution may have surprised some observers because legal experts have been predicting that legal fights between the administration and Congress are likely to drag on for many months if not years and could well be still in litigation when this congress expires in January 2021.
It is important to understand, however, that the Mazars case (and the case in New York which Trump seeks to block congressional subpoena to banks for his financial records) are in a very different procedural posture from other ongoing information disputes (such as those over the Mueller report and related documents, tax returns, or the testimony of current or former administration officials). Mazars and the New York banks are third parties that have indicated they will comply with the congressional subpoenas unless ordered to do otherwise by a court. Therefore, it is Trump’s legal team which needs judicial intervention to alter the status quo, whereas in the other disputes Congress will likely be in the position of asking for judicial assistance.
In the Mazar and New York bank cases, Trump’s legal team initially asked for emergency judicial relief (i.e., a TRO) in order to prevent the cases from becoming moot by virtue of the third parties complying with the subpoenas. In both cases, however, the House Counsel’s office agreed to postpone the return date for the subpoenas until 7 days after a district court ruling on the motion for a preliminary injunction, thereby rendering it unnecessary to have a TRO. As part of the same agreement, the parties agreed to an expedited schedule for briefing and oral argument (which both courts accepted and entered as orders).
As the result of that agreement, Trump’s team was now in the position of nominally seeking expedited relief (a preliminary injunction), but actually no longer needing it so long as the court did not rule on the preliminary injunction motion. This anomaly presented itself when Judge Mehta proposed consolidating the preliminary injunction hearing with a final trial on the merits. Trump’s lawyers objected, saying that they needed more time to prepare for such a trial, and suggesting that instead the preliminary injunction hearing could be pushed back so the record could be fully developed. The House oversight committee, in contrast, had no objection to the proposed consolidation, but emphasized that the preliminary injunction hearing should go on as scheduled regardless.
Judge Mehta did in fact consolidate the merits trial with the preliminary injunction, but it is not clear this mattered much. If the judge had simply denied the preliminary injunction, Mazars would have been expected to comply with the subpoena after 7 days regardless. Presumably Trump’s lawyers would have asked for the judge to stay his ruling until a final merits decision, but they would have been in no better posture (and arguably somewhat worse) than they were as a result of the consolidation. Following the court’s ruling against them on both the preliminary injunction and the merits, they asked the court for a stay, which was denied. Now the plaintiffs’ only option is to obtain a stay from the D.C. Circuit so as to prevent the case from becoming moot before the appellate court can hear it. Had the case not been consolidated, they probably could have sought such relief from the appellate court, but it might have been even harder to get the court to intervene on a matter that was still before the district court (admittedly I am just guessing about this).
In any event, unless the D.C. Circuit issues a stay of the district court’s ruling, Mazars will be required to comply with the subpoena as early as next week. If Judge Ramos, who is presiding over Trump v. Deutsche Bank, No. 1:19-cv-03826 (SDNY) and is hearing argument today, similarly denies Trump’s preliminary injunction motion, that case could also end within a week of the ruling unless either the district court or the Second Circuit issue a stay.
None of the other information disputes currently percolating are likely to move anywhere nearly as quickly as this. If cases are brought directly against the administration (eg, for the Mueller report or Trump’s tax returns), the congressional plaintiff will not be able to seek expedited relief (a TRO or preliminary injunction) since it will be seeking to change, not preserve, the status quo. Moreover, the executive branch defendant will have little incentive to agree to an expedited briefing or argument.
Exactly how fast a case may move at the district court level will depend on a number of factors, including the complexity of the legal issues and whether any discovery or document review is necessary to resolve the matter (going through the 1.4 million pages of Mueller documents to determine the applicability of different executive privilege claims, for example, could take a very long time). But even a case that presents a relatively straightforward legal issue is likely to take a few months with a normal briefing and argument schedule. In the Miers case, for example, Judge Bates issued his ruling in favor of the House Judiciary Committee about 4 and a half months after the action was filed.
Of course, the district court has a great deal of discretion with regard to scheduling matters. Judge Mehta clearly believed that it was important to expedite the Mazars case (even going so far as to consolidate the merits trial on his own initiative). Even there, though, the court’s reasons for acting quickly were based in part on the fact that it was being asked to interfere with the functioning of a coordinate branch of government. A district court might be less inclined to act quickly when it is being asked by the legislative branch to order the executive branch to turn over information.
Furthermore, however quickly the district court decides the case, the executive branch still has the right to appeal that decision, to seek rehearing en banc of any appellate decision, and ultimately to petition the Supreme Court for review. Even assuming that neither the en banc court nor the Supreme Court decide to hear the case, it is difficult to imagine the full process being complete in much less than a year.
One category of case that might be resolved more quickly would be enforcement actions by Congress against former executive officials like Don McGahn. These individuals are in a situation somewhat analogous to third parties like Mazars, in that they do not have (or purport not to have) a position or interest in whether or not they comply with the subpoena. On the other hand, they do purport to have an obligation to follow the president’s instructions with regard to asserting executive privilege (though opinions differ on whether such an obligation exists).
At any rate, if a district court orders such a former official to comply with a congressional subpoena, the former official may not wish to risk possible contempt of court by continuing to defy the subpoena. Even if the Justice Department is able to obtain a stay from the district court or the court of appeals, the former official could decide that the district court’s decision is sufficient to release him from any further obligation not to comply. Thus, these cases could be resolved more quickly than direct suits against the executive branch, though probably not as quickly as the Mazars and New York bank cases.
Resources on Congressional Oversight and Executive-Legislative Information Disputes
As there appears to a current demand for resources on congressional oversight, executive privilege and the process for resolving executive-legislative disputes over information, I thought I would post a few suggestions as to places to look for such materials. First, there is this Congressional Investigations Research Page hosted by Georgetown Law (hat tip: Andy Wright). Second, the Congressional Oversight Manual has a list of selected readings starting at page 136. Third, Daniel Schuman has been collecting resources on the congressional oversight and subpoena power, particularly reform proposals.
Finally, here is a link to a 2002 brief filed by BLAG in Waxman v. Evans, which describes in some detail how executive-legislative information disputes have been resolved historically. To the best of my knowledge, this document has not previously been available on line.
Resolved: The President’s Conduct with respect to the Special Counsel’s Investigation was Consistent with the Take Care Clause and his Constitutional Oath
Last year Professor Andy Wright published an article arguing that presidential interference with criminal investigations conducted by the Department of Justice may violate the president’s constitutional duties under Article II even if it does not constitute obstruction of justice or any other criminal offense established under federal statutory law. See Andrew M. Wright, The Take Care Clause, Justice Department Independence, and White House Control, 121 W. Va. L. Rev. 100 (2018). Specifically, he points to the president’s obligation to “take Care that the Laws be faithfully executed,” U.S. const. art. II, § 3, and his oath to “faithfully execute the Office of President of the United States, and [] to the best of my Ability, preserve, protect and defend the Constitution of the United States,” U.S. const. art. II, § 1, cl. 8. Wright contends that “if the President interferes with the investigative or prosecutorial function in bad faith, he can violate the Take Care Clause and his Oath of Office,” even if the president’s actions violate no criminal law.
At some level of generality, it is difficult to imagine anyone disagreeing with this proposition. That is to say, no one would argue the president satisfies his obligations under the Take Care and Oath Clauses simply by not committing a crime. At least I don’t think anyone would argue that.
More controversially, Professor Wright argues that the president’s constitutional obligations require prophylactic measures to separate the Justice Department from the White House and thereby “protect the integrity of . . . criminal investigation[s] from political interference, including interference by the President himself.” 121 W. Va. L. Rev. at 105. Specifically, he points to policies adopted by every administration since President Ford that limit contacts between the White House and the Justice Department by requiring most such contacts be channeled through the offices of White House counsel and the attorney general. 121 W. Va. L. Rev. at 141-50. These policies, and related practices such as the refusal of White Houses to comment on open investigations and pending cases, are not merely matters of etiquette and “norms,” Wright contends, but flow from the Take Care and Oath clauses.
Whether or not one embraces the specifics of Wright’s thesis, his article suggests an important line of questioning for current and former Trump administration officials, particularly from the White House counsel’s office and the top levels of the Justice Department. For example, as Wright points out, in the first week of the Trump administration White House Counsel Don McGahn issued a contacts policy memorandum designed “to ensure that DOJ exercises its investigatory and prosecutorial functions free from the fact or appearance of improper political interference.” 121 W. Va. L. Rev. at 149. Did the president approve this policy? Was he aware of its contents? Was he ever advised that actions he proposed or directed would violate the policy? Was the president’s conduct as described in volume II of the Mueller report consistent with the letter or spirit of this policy?
Apart from Trump administration officials (and members of the president’s legal team), is there anyone with actual or purported constitutional law expertise who would defend the proposition in the title of this blog post? There are notable scholars, such Professors Jack Goldsmith and Josh Blackman, who have advanced strong arguments that the president’s conduct in connection with the Mueller investigation (at least insofar as it involved the exercise of presidential powers) did not violate the criminal obstruction laws. But neither contends this conduct was consistent with the president’s obligations under the Take Care and Oath clauses.
Here is a political stunt that might serve a useful and clarifying purpose. The chair of the House Judiciary committee and the ranking member of the Senate Judiciary committee should write their Republican counterparts to propose a hearing devoted to a panel of legal experts who would defend the proposition that the president’s conduct has been consistent with the Take Care and Oath clauses. Chairman Graham and Ranking Member Collins could be asked to propose a list of potential witnesses to appear at such a hearing.
We can’t have a debate unless someone is prepared to defend this proposition.
A Better Way to Enforce Congressional Subpoenas?
In the course of writing the piece on enforcement of congressional subpoenas that I mentioned yesterday, I was looking for a copy of the House GOP white paper “A Better Way: Our Vision for a Confident America (The Constitution),” which was issued on June 16, 2016. At this time, of course, the Republican controlled Congress had experienced years of frustration in attempting to get information from the Obama administration (and, one has to imagine, was anticipating more of the same in a Hillary Clinton administration). As it turns out, finding a copy of this document online is more difficult than one would expect. Fortunately, I have located a hard copy in my files and post a link here for anyone who is interested (you’re welcome).
Among the proposals suggested by House Republicans in this paper was “expedited access to federal courts to enforce subpoenas” through legislation “requiring the executive branch to comply with deadlines in congressional subpoenas” and “providing a process for expedited court review when the House or Senate decides to bring litigation to enforce a committee subpoena, including expedited review by a three-judge panel at the district court level with immediate appeal to the Supreme Court.” These ideas would be incorporated into H.R. 4010, introduced by Rep. Darrell Issa, which passed the House in 2017 during the first session of the 115th congress but never received a vote in the Senate.
The white paper made two additional legislative proposals that did not make it into Issa’s legislation (at least in its final form). The first was to “clarify[] the nondiscretionary duty of a U.S. attorney to present a certified order for criminal contempt to a grand jury.” The second was to “statutorily eliminat[e] any privileges asserted by the executive branch when used against a congressional request for information.” Both of these would have been vigorously opposed by OLC and the executive branch on constitutional as well as policy grounds.
Just Security Piece on Enforcement of Congressional Subpoenas
As I have mentioned before, I have proposed a reform to House rules that would facilitate enforcement of committee subpoenas to the executive branch. Just Security has now published this piece in which I explain the justification for the rule and how it would work using the example of the House Judiciary committee’s efforts to obtain the Mueller report and underlying documents.
Can BLAG Authorize a Subpoena Enforcement Action?
According to this CNN report, the House Ways & Means committee, which had previously requested President Trump’s tax returns pursuant to 26 U.S.C. § 6103(f), has now issued subpoenas to the Treasury Department and IRS for the same information. Although the committee believes that it can sue to enforce the statutory duty to provide information under § 6103(f), it was advised by House counsel that issuing subpoenas would bolster its case in court.
There are interesting questions about the scope of the committee’s authority under § 6103(f), which we have previously discussed, and whether the issuance of subpoenas will help or hurt the committee’s chances in court. However, what I want to highlight now is an issue that may be more consequential than these. According to CNN, the speaker is considering whether to authorize a civil action to enforce the subpoenas (and, presumably, the committee’s statutory right of access) through the Bipartisan Legal Advisory Group, rather than a vote of the House. Back in February, I raised the possibility that language added to House Rule II(8)(B) in the 114th congress could be used in this fashion.
The new language in question provides that “[u]nless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.” There are two potential problems with using this language to allow BLAG to authorize a lawsuit by the Ways & Means committee. The first is that the language does not explicitly authorize BLAG to initiate litigation on the House’s behalf. The purpose of the rule change was “to conform to current practice.” As explained in my February post, this referred to the practice of BLAG intervening in existing litigation to defend the constitutionality of statutes (in particular, the Defense of Marriage Act) the Justice Department refused to defend. There was not, and as far as I know has never been, a practice of BLAG initiating litigation.
There is a second problem with respect to litigation to enforce subpoenas. House Rule XI(2)(m)(3)(C) provides “[c]ompliance with a subpoena issued by a committee or subcommittee . . . may be enforced only as authorized or directed by the House.” This provision seems to override Rule II(8)(B), which only applies “[u]nless otherwise provided by the House.” One would have to argue, somewhat circularly, that Rule II(8)(B) allows BLAG to authorize or direct subpoena enforcement on behalf of the House, in order to prevent Rule XI(2)(m)(3)(C) from overriding Rule II(8)(B). I am somewhat skeptical that the parliamentarians would agree with this argument, but . . . (this is where I would insert the shruggie emoji if we were on Twitter).
In any event, if BLAG claims the authority to authorize subpoena enforcement actions, this could improve the efficiency of the “subpoena cannon” considerably. On the other hand, it will almost certainly lead the minority to challenge both BLAG’s interpretation of the rules and its decisions to authorize particular actions on the House floor.
Trump v. Deutsche Bank and the Financial Right to Privacy Act
In Trump v. Deutsche Bank et al. (filed in the Southern District of New York), President Trump, in his personal capacity, and various of his companies have again filed to suit to block congressional subpoenas. This time the subpoenas in question were issued by two House committees (Intelligence and Financial Services) to two banks (Deutsche Bank and Capital One) seeking a wide range of financial records relating to Trump and his businesses. The case is similar to the one Trump brought against his accounting firm, except this time he has not named any members of Congress or committees as defendants. The reason for is likely tactical; by having only the banks (which are disinterested stakeholders) as defendants it may be easier to get preliminary relief from the court.
Trump’s primary objection to the subpoenas is the same as in the prior case. He contends that the subpoenas lack a legitimate legislative purpose. In addition, however, he asserts that the committees’ attempts to obtain these “account records violate the statutory requirements that apply to the federal government under the Right to Financial Privacy Act.” These are procedural requirements that apply to efforts by “any government authority” to obtain access to financial records. 12 U.S.C. § 3402.
This is not the first time someone has raised RFPA objections to a congressional subpoena. In 2001, counsel for Staten Island Bank and Trust raised such objections to a subpoena from the House Committee on Government Reform. In a letter dated October 15, 2001, committee counsel explained that congressional investigations were not implicated by the statute because it was clearly designed to apply only to law enforcement investigations:
Enforcing laws is the province of the executive branch, at which the statute is plainly directed. Congress does, however, have a Constitutional obligation to conduct oversight and legislative fact-finding investigations. Its power to compel document production in such investigations is a well-established necessity in order to carry out its Constitutional function. For one to accept your construction of the statute, he would have to believe that by enacting the Financial Right to Privacy Act, Congress intended to strip itself of the power to compel the production of bank records in the conduct of a fact-finding investigation because it is not relevant to a law enforcement inquiry. Such an interpretation would be an absurdity, and nothing in the legislative history of the Act supports it.
Justice Undone: Clemency Decisions in the Clinton White House, Second Report of the H. Comm. on Gov. Reform, H.R. Rep. 107-454, vol. 3, at 2536 (May 14, 2002). The counsel for the bank accepted the committee’s position and provided all of the responsive records. Id. at 2560.
So we will see if the president’s lawyers fare any better.
Mort Rosenberg on The Road to Effective Enforcement of House Committee Subpoenas
Mort Rosenberg notes that his proposal for reviving the House’s inherent contempt power goes beyond just substituting monetary fines for incarceration as the primary means of coercing compliance with congressional subpoenas. He also recommends that the House consider appointing outside counsel to prosecute contemnors. He argues as follows:
There is . . . sound support for direct appointment by the Speaker of a private attorney to conduct such prosecutions in law, history and practice. As I have indicated, the Supreme Court in Anderson v.Dunn (1821) upheld the constitutionality of the use of inherent contempt by the House and based that ruling on the analogy to its recognition of the inherent power of judges to protect their judicial integrity and authority from attack by means of contempt citations. It particularly noted that no statutory authorization was necessary because such self-protective actions were critical to the maintenance of the judiciary’s institutional independence. However, the Anderson Court’s qualification that any imposition of jail time could not exceed the session in which the contempt occurred ultimately led to the legislative decision in 1857 to provide the alternative possibility of a criminal contempt prosecution for failures to comply with committee subpoenas. The legislative history of that enactment makes it clear that it was to apply to executive branch officials. Prosecutions under that law were to be conducted by United States Attorneys. What has been currently and conveniently overlooked by DOJ is that at that time United States Attorneys were independent contract employees; there was no Justice Department until 1870. It must be presumed that Congress was aware of this and was simply authorizing the Speaker to utilize those non-governmental contract attorneys in the same manner that the Andersoncourt recognized that judges could appoint private prosecutors to vindicate the integrity of their judicial responsibilities, an understanding that the Supreme Court clearly articulated in its 1987 ruling in Young v. U.S. ex re Louis Vuitton upholding court appointment of a private sector attorney to prosecute its contempt citation, which was reiterated the next year in its ruling in Morrison v. Olson. The most recent recognition of this inherent institutional authority was in the 9th Circuit’s October 2018 en banc ruling in U.S. v. Arpaio. These consistent judicial rulings note that this inherent institutional self-protective authority needs no statutory basis and is so constitutionally indispensable that it may not be obstructed by either Congress or the Executive or abandoned by the Judiciary. The indisputable legal analogy to each House’s recognized self-protective authority is evident.
Finally, the appointment of two private prosecutors to assist in the Senate’s Teapot Dome investigation arguably provides further corroboration. The Senate’s inquiry had stalled and after Harding died and was succeeded by Coolidge, Attorney General Daugherty remained in office despite being suspected of deep complicity in the oil lease scandal. The Senate Committee, with the concurrence of Coolidge, agreed to a joint resolution for the appointment of two private counsels to assist in the Senate’s investigation of the lawfulness of the oil eases and to recapture the lost assets. The joint resolution specifically prohibited any DOJ role in their investigation or litigation actions. When Daugherty was forced to resign and a new Attorney General was confirmed a Senate resolution was passed directing a Senate committee investigation of corruption in DOJ during Daugherty’s leadership. The new AG retained the two private counsel as special assistants who brought the inherent contempt citation against Daugherty’s brother that resulted in the Supreme Court’s landmark ruling in McGrain v Daugherty (1927), which established Congress’s current broad investigatory powers, and U.S. v. Sinclair (1929) allowing a criminal citation for refusing to answer committee questions on the ground that he was the subject of a pending civil action regarding the oil leases.
The long standing judicial recognition of the analogous self-protective authorities of the Houses of Congress and judges should give rise to consideration of such a prosecutorial appointment by House authorization upon a vote of a criminal contempt citation by the House. There are plausible grounds for success and the Supreme Court’s recognition of the legitimacy of concurrent or seriatum inherent and criminal contempt citations provides additional constitutional support. The availability of both inherent and criminal processes would revive the historic leverage that made the threat of congressional subpoena enforcement so formidable and successful.
Mort’s full piece may be read here.