Author: Michael Stern

Posted on

Recalibrating the “Subpoena Cannon”

(I know some artillery expert from Quora is going to correct my title but you get the idea).

To continue the martial metaphors, the House’s investigatory offensive against the Trump administration is meeting stiff resistance on all fronts or, one might say, running into a stone wall. The administration is refusing to cooperate with any oversight or investigation it considers to be hostile or partisan (so, basically all of them). This noncooperation can take the form of refusing to comply with document requests or subpoenas outright, simply ignoring them, delaying a final response (as in the case of the Ways & Means committee request to the treasury secretary for the Trump tax returns), placing conditions on compliance (as where the White House is refusing to allow witnesses to testify at congressional depositions unless a representative from the counsel’s office is also allowed to attend), instructing or encouraging former executive officials or others not to comply with congressional demands (as the administration apparently plans to do with respect to the Judiciary committee subpoena to former White House counsel Don McGahn), and even bringing legal action to prevent third parties from providing information to Congress (as discussed in my last post).

The situation has given rise to much handwringing in Congress, where House Democrats are predictably characterizing the administration’s actions as “massive, unprecedented obstruction.” The frustration is entirely understandable, but I agree with Andy Wright that it is a bit overwrought to describe the situation as a “constitutional crisis,” particularly at this early stage. The basic problems are ones faced by Congress in every administration, even though the scope of the investigations and sheer number of information disputes is unusual. Moreover, while it may be accurate to describe the administration as engaged in unprecedented stonewalling, it should also be remembered that the Mueller report provides Congress with an exceptional degree of visibility into the areas of the administration about which it is most concerned.

It will come as no surprise to readers of this blog that the House faces a difficult set of challenges in responding to the administration’s recalcitrance because there is no clearly established mechanism for enforcing congressional subpoenas against the executive branch. If an executive branch official refuses to testify or produce documents based on the assertion of executive privilege at the direction of the president, the Justice Department has long maintained that it will not (and constitutionally may not) prosecute the official for contempt of Congress. See, e.g.,  Response to Congressional Requests for Information Regarding Decisions made Under the Independent Counsel Act, 10 OLC 68, 85 (Apr. 28, 1986). Thus, while a House committee may vote to hold this official in contempt and report the contempt to the full House, which in turn may adopt a resolution referring the matter to the U.S. attorney pursuant to 2 U.S.C. § 194, the U.S. attorney will not present the matter to a grand jury and thus the House’s action will be largely symbolic.

It should be noted, however, that this calculus is arguably somewhat different in the case of a former executive branch official. While it is clear that the executive branch would contend that a former official should obey the president’s instructions as to the assertion of executive privilege, and it is highly likely that it would employ similar reasoning to avoid presenting any contempt citation to a grand jury, there is at least some possibility that a future administration might reach a different conclusion, placing the former official in legal jeopardy. At the very least, the former official might worry that having a formal citation of contempt by the House on the record might generate legal expenses or other collateral consequences down the road.

With criminal contempt largely useless, then, the House is considering other options, including inherent contempt. Again, as readers well know, this is the process by which the House (or Senate) can send the Sergeant at Arms to take a recalcitrant witness into custody, bring him before the bar of the house to explain his refusal to testify, and remand him to custody until he changes his mind. Although members of Congress are starting to make noises about reviving this process (something that happens periodically whenever there is divided government), these threats are not very credible in light of the fact that the House has not used it in about a century.

To solve that problem, the estimable Mort Rosenberg has proposed a House rule that would use fines, rather than arrest and detention, as the primary means of forcing executive branch officials to comply with congressional subpoenas. Judiciary committee chairman Nadler has apparently raised this as a way “to put teeth in his party’s numerous investigative inquiries, many of which Trump officials are stonewalling or simply ignoring.”

Not surprisingly, the Justice Department has suggested that it would be unconstitutional to employ inherent contempt against executive branch officials in situations where (it claims) separation of powers principles prohibit the use of criminal contempt. See 10 OLC at 86. There are also obvious practical problems that would be involved with attempting to detain an executive official. See id. (“it seems most unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison an Executive Branch official who claimed executive privilege”). The House’s “cannon” is, after all, only metaphorical, and the executive branch has the Sergeant at Arms and the Capitol Police pretty well out-gunned. Imposing fines instead of imprisonment might mitigate, or at least postpone, this problem, but if the House wanted to have this option available it should have included it in the rules package that was adopted at the beginning of the congress.

Another suggestion is that the House could use political remedies, such as the appropriations process, to punish officials or agencies that refuse to comply with congressional demands for information. Professor Josh Chafetz is a big proponent of this technique. It seems to me that this can be effective when the resistance to congressional demands is coming from the agency level, but it is much harder to do when it is coming from the president (and harder still with this president). To the extent the House has leverage in the appropriations process vis a vis the Senate and the president, it is likely to use it for higher priority items than winning disputes over information access. Put another way, I don’t see the House shutting down the government to get an unredacted copy of the Mueller report.

This leaves what is most commonly thought of as the House’s best legal remedy, a civil action seeking declaratory or injunctive relief to enforce its right to obtain information. Most commonly, this would take the form of an action to enforce a subpoena, but other actions are also possible. For example, the Ways & Means committee could bring suit to enforce its statutory rights to obtain tax return information under 26 U.S.C. § 6103(f). Note that such an action would be analogous to an action to enforce congressional rights to information under 5 U.S.C. § 2954 (commonly known as the Rule of Seven), which is at issue in the case of Cummings v. Murphy currently pending in the D.C. Circuit (though likely presenting a stronger case for congressional standing than Cummings if the committee’s action were authorized by House resolution).

Civil enforcement of subpoenas presents its own set of challenges, namely (1) the absence of any clearly defined process for bringing such actions and unsettled legal issues of justiciability; (2) the fact that courts do not like to be in the middle of political disputes between the legislative and executive branches; and (3) the length of time that it would take to obtain a final enforceable court order, particularly because even if the House prevails at the district court level there will be inevitable appeals to the D.C. Circuit and the Supreme Court. Some of these problems could have been mitigated had the House adopted a brilliant proposed rule (still my blog) on civil enforcement of subpoenas, but alas it failed to do so. Nevertheless, civil enforcement remains the most promising avenue for legal vindication of the House’s constitutional rights. Continue reading “Recalibrating the “Subpoena Cannon””

Posted on

Trump v. Cummings May Not Be a Slam Dunk for Congress

 

See update below:

On Monday Donald J. Trump (in his personal capacity) and several of his businesses sued Elijah Cummings (chair of the House Committee on Oversight and Reform), the committee’s chief counsel, and Mazars, an accounting firm that had provided services to Trump and his companies. The suit aims to prevent Mazars from complying with a committee subpoena seeking financial statements and similar records related to Trump and his business activities.

Many immediately dismissed this as a nuisance suit designed solely to delay the committee’s investigation. To be honest, this was my first reaction as well. Upon closer inspection, while I still think Trump will lose, the case is somewhat stronger than expected.

While there may well be issues I have not considered, I see the case unfolding in three stages. First, there is the question whether the suit is barred by the Speech or Debate Clause. The answer is yes as to the congressional defendants, but no as to the third party accounting firm. Although the court cannot grant relief against the congressional defendants, it can enjoin Mazars from complying with the congressional subpoena without offending the Speech or Debate Clause. See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 n. 14 (1975) (suggesting a court may inquire into the validity of a subpoena directed to a third party even though a subpoena recipient cannot bring a challenge directly against Congress itself); id. at 516 (“The Speech or Debate Clause cannot be used to avoid meaningful review of constitutional objections to a subpoena simply because the subpoena is served on a third party.”) (Marshall, J., concurring); United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977) (relying on Justice Marshall’s concurrence in Eastland for the proposition that “the fortuity that documents sought by a congressional subpoena are not in the hands of a party claiming injury from the subpoena should not immunize that subpoena from challenge by that party.”). Nor should it matter if the court dismisses the congressional defendants form the case; indeed, Chairman Cummings may want to remain a party so that he can defend the validity of the subpoena.

The second question is whether Trump has asserted a facially valid objection to the subpoena. In my view, a third party challenge to a congressional subpoena must assert a constitutional privilege or some other constitutionally protected right. Here Trump has asserted neither a constitutional privilege nor a statutory/common law privilege (he cites the duty of accounting firms to maintain confidentiality but stops short of claiming, at least as I read the complaint, a legally cognizable privilege).

Instead, Trump claims that the subpoena is invalid because it lacks a legitimate legislative purpose. This is an objection that can be made by the subpoena recipient, but the absence of such purpose does not violate any constitutionally protected right of a third party who may be inconvenienced by or simply opposed to the congressional investigation. Trump relies on the aforementioned footnote 14 in Eastland for the proposition that a third party can challenge the legitimate legislative purpose of a subpoena, but the Court’s reference there was in the context of a First Amendment challenge to a subpoena. I would not read it as allowing a challenge to the legislative purpose by a third party where that purpose was not relevant to an asserted constitutional privilege. Nonetheless, the Eastland footnote is ambiguous on this point and one cannot rule out the possibility a court could agree with Trump’s interpretation.

If a court is willing to scrutinize the legislative purpose here, that would bring us to the third question in the case. Is there a legitimate legislative purpose for the subpoena at issue? The immediate purpose of the subpoena, of course, is to obtain evidence to support allegations by former Trump lawyer Michael Cohen that Trump engaged in dishonest business practices (such as overstating or understating his net worth) in violation of federal law. But what legislative purpose is served by such information?

There are two arguments I can think of in support of Congress’s interest in obtaining the information in question. One would be that the evidence is potentially relevant to impeachment. This, however, is a weak argument. Even if sleazy and illegal business conduct that precedes the president’s time in office is a basis for impeachment, there is no impeachment inquiry in the House and the oversight committee would not have jurisdiction over such an inquiry anyway.

The stronger argument would be that the information is potentially relevant to matters on which legislation may be had. Because Congress’s authority to legislate is broad, and the courts are deferential to congressional judgments about what information may be needed for legislative purposes, this is normally a fairly easy standard to meet. It would probably be enough if the committee had jurisdiction over the federal laws Trump is alleged to have violated. However, it likely does not.

The committee does have broad jurisdiction over matters relating to federal government personnel and agency management and operations generally. Presumably the committee will be able to identify some link between the matters it is investigating and that jurisdiction, but let’s say that it doesn’t jump off the page. And, as Trump’s lawyers can be expected to stress repeatedly, the Supreme Court  has said “[t]here is no congressional power to expose for the sake of exposure.” Watkins v. United States, 354 U.S. 178, 200 (1957).

In short, I think the committee probably wins this case at stage two. If it gets to stage three, the committee still probably has the edge, but it is not a slam dunk.

The good news is that even if the committee were to lose, it should not be on a ground that would compromise Congress’s ability to get information it truly needs. Moreover, by bringing this matter to court, Trump may have undercut arguments that his administration will want to make in the future against judicial involvement in enforcement of congressional subpoenas. This case therefore may inadvertently assist Congress’s forthcoming efforts to bring civil enforcement actions to secure compliance with its subpoenas and demands for information.

Update: Margaret Taylor (@MargLTaylor) points out that Chairman Cummings described the ostensible purpose of the Mazars subpoena in an April 12, 2019 memorandum to committee members. The memo states the committee “has full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.”

The first claim, that the committee is looking into potential illegal conduct by the president, has the advantage of reflecting the actual purpose of the subpoena. On the other hand, it is not true (in my judgment) that the House or the committee has the authority to look into illegality by President Trump for its own sake, particularly with regard to his activities prior to taking office.

The other claims may strike the court as more pretextual, but they are probably close enough for government work. The House undoubtedly has the authority to investigate financial conflicts of interest and potential emoluments violations by the president. It is also plausible, if less than completely clear, that such an inquiry would fall within the committee’s general good government jurisdiction. Whether the committee is actually pursuing such an inquiry, and whether the subpoena to Mazars can reasonably be seen as a first step in pursuing that inquiry, may be more debatable, however.

To me the strongest claim of a legitimate legislative purpose is the last one. If Trump was falsifying his financial statements as a private businessman, it stands to reason that he might also have done so as public official. This seems like a legitimate reason to follow up on Michael Cohen’s allegations of falsified statements. It might not be the committee’s actual reason, but the courts are not suppose to probe the actual motives of members in evaluating legitimate legislative purpose.

Posted on

The Time Has Come: A Proposed Article of Impeachment Against Donald John Trump

The following was drafted in February and therefore does not reflect any information obtained from the Mueller report (which I have to admit I have not yet read in its entirety). There may well be additions and modifications that suggest themselves from that report (one area in particular would be to add specifics regarding pardon discussions with potential witnesses), but at the moment I am unaware of anything that convinces me the thrust of any impeachment effort should be fundamentally reoriented from what is proposed below.

It should be noted that this is a single article of impeachment. Perhaps needless to say, this is not because the scope of the president’s misconduct has been so narrow that only one article could be substantiated. To the contrary, as Professor Keith Whittington has aptly observed, the range of the president’s faults and misbehavior is so breathtakingly wide that it is a challenge to present them as part of a larger picture (or to choose among the many unflattering pictures that might be drawn).

It should also be noted that this article does not charge the president with committing any federal crimes. Consistent with my understanding of the nature of impeachment, the article focuses on conduct that is inherently wrongful or in the most charitable light reflects gross negligence that is for all intents and purposes indistinguishable from such wrongful conduct, but it does not attempt to demonstrate that this conduct satisfies the elements of any statutory offense.

Finally, the article has only the barest reference to pre-presidential conduct. This is not because pre-presidential conduct is necessarily irrelevant to an impeachment proceeding or even that an article of impeachment could not in some circumstances be wholly based on pre-presidential conduct. The proper relationship of impeachment to conduct that precedes the taking of the oath and the assumption of office, however, is controversial, particularly with regard to matters widely known by the voters at the time of the election. It is in my judgment unnecessary and distracting to focus on them here.

Any feedback of the constructive variety would be deeply appreciated.

IN THE HOUSE OF REPRESENTATIVES

February __, 2019

______________________________ submitted the following resolution; which was referred to the Committee on the Judiciary

RESOLUTION

 Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.

Resolved, That Donald John Trump, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate:

Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States, against Donald John Trump, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors.

ARTICLE OF IMPEACHMENT

In his conduct while President of the United States, Donald J. Trump, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has engaged in conduct that resulted in misuse and abuse of his high office, and, for self-protection or other reasons of personal interest, has (1) impaired and impeded the due and proper administration of justice and the conduct of lawful inquiries; and (2) undermined confidence in and the authority of the legislative, executive and judicial branches of the United States, in that:

Donald J. Trump sought to hinder and impede lawful investigations by federal authorities into the conduct of individuals employed by or associated with his 2016 presidential campaign, including General Michael Flynn, by improperly seeking to influence and intimidate the then-Director of the Federal Bureau of Investigation, James Comey, with respect to such investigations.

Donald J. Trump, having concluded that James Comey lacked sufficient personal loyalty and could not be pressured to conduct the aforementioned investigations in a manner consistent with his personal interests and wishes, terminated James Comey as Director of the FBI.

In an effort to undermine the credibility of federal investigations involving his 2016 presidential campaign and/or his business or personal affairs, Donald J. Trump has engaged in a pattern of publicly disparaging, defaming and demeaning officials serving in the executive branch under his own administration, including Special Counsel Robert Mueller, Deputy Attorney General Rod Rosenstein and former Attorney General Jeff Sessions. He has publicly and routinely attacked the integrity of numerous officials at the Department of Justice, the Federal Bureau of Investigation and the Special Counsel’s office, including both career public servants and officers of the United States he himself appointed with the advice and consent of the United States Senate. He has publicly and repeatedly referred to Special Counsel Mueller’s investigation of Russian interference in the 2016 presidential election as a “hoax” and a “witch hunt,” even though this inquiry was lawfully commenced by the directive of the Deputy Attorney General, whom he appointed with the advice and consent of the United States Senate. These statements had the purpose and effect of undermining public confidence in law enforcement agencies and inquiries that might threaten his personal interests.

Donald J. Trump repeatedly and publicly criticized his own Attorney General, Jeff Sessions, for making decisions in accordance with the Attorney General’s constitutional oath and ethical obligations, rather than with the personal and political interests of Donald J. Trump. For example, he blamed Attorney General Sessions for recusing himself from the investigation into Russian interference in the 2016 presidential election, even though this recusal was in accordance with the advice of Department of Justice ethics officials. Thus, he tweeted on June 5, 2018: “The Russian Witch Hunt Hoax continues, all because Jeff Sessions didn’t tell me he was going to recuse himself . . . I would quickly have picked someone else.”

Donald J. Trump further has sought to undermine the credibility of federal law enforcement by openly politicizing the activities of the Department of Justice. He has complained about the Department’s failure to investigate his political adversaries by, for example, tweeting on July 25, 2017: “Attorney General Jeff Sessions has taken a VERY weak position on Hillary Clinton crimes (where are E-mails & DNC server) & Intel leakers!” He has also complained about the Department’s prosecution of his political allies. Following federal indictments of two incumbent Members of Congress, he tweeted on September 3, 2018: “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff . . . . . .”

Donald J. Trump, having concluded that Jeff Sessions could not be pressured or intimidated to subordinate his constitutional oath and ethical obligations to Donald J. Trump’s personal and political interests, asked for and received his resignation immediately following the 2018 congressional elections. Even after Sessions’s departure from office, Donald J. Trump continued to blame him for the investigation into Russian election interference, tweeting on December 16, 2018 that “Jeff Sessions should be ashamed of himself for allowing this total HOAX to get started in the first place!”

Donald J. Trump has impaired and impeded the due and proper administration of justice by the reckless and impulsive use and threatened use of his constitutional power to grant reprieves and pardons for offenses against the United States. He has granted clemency based on personal and political favoritism, without consulting the Department of Justice or considering the effect of his actions on the administration of justice. He has boasted about the breadth of his pardon power, even tweeting on June 24, 2018: “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!” The purpose and effect of these actions and statements is to send the message that loyalty to Donald J. Trump will be rewarded, to undermine respect for lawful inquiries and judicial proceedings, and to encourage defiance of such inquiries and proceedings as Donald J. Trump regards as “witch hunts” or otherwise disfavors.

Donald J. Trump’s most egregious abuse of the pardon power occurred on August 25, 2017, when he granted a pardon to Joe Arpaio, who had been held in criminal contempt of a federal court order. The order of contempt had been issued less than one month earlier, on July 31, 2017, when a federal judge held that Arpaio had willfully violated a prior federal court order, issued by a different judge, requiring then-Maricopa to cease racially profiling Latinos and detaining them in violation of their constitutional rights. Donald J. Trump pardoned Arpaio without consulting the Department of Justice, without permitting the judicial process to run its normal course, and without considering the importance of the contempt power to protecting the integrity of the judicial system and the constitutional rights of Americans. In so doing Donald J. Trump favored a loyal political ally over the rule of law and the independence of the judicial branch.

Consistent with this disregard for the federal judiciary, Donald J. Trump has intemperately and improperly attacked federal judges. For example, on February 4, 2017, the day after U.S. District Court Judge James Robart issued a temporary injunction against the executive order known as the “travel ban,” Donald J. Trump tweeted: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” This statement was not an isolated incident, but is consistent with language Donald J. Trump has employed toward the judiciary on other occasions both during his presidential campaign and his presidency. By employing such rhetoric, unmindful of the high duties of his office and the dignity and proprieties thereof, Donald J. Trump has attempted to impair and destroy the regard and respect of the people of the United States for the federal judiciary and thereby to deprive its judgments of legitimacy to the extent they conflict with his personal and political interests.

Donald J. Trump has also repeatedly sought to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States and individual members thereof. He has particularly sought to excite public odium and resentment toward members of his own party who have criticized him or his conduct in office and who have thereby failed, in his mind, to show the proper loyalty. In so doing he has disregarded the status of Congress has a separate and independent branch of government, and he has sought to diminish and undermine the legislative power of inquiry and oversight.

Donald J. Trump has caused or permitted false, misleading or incomplete information to be provided to the Congress of the United States. During 2017 and 2018, congressional committees, including the House Permanent Select Committee on Intelligence, conducted investigations of Russian interference in the 2016 presidential election. Agents and associates of Donald J. Trump provided false, misleading or incomplete information in connection with these investigations. For example, on or about April 27, 2018, the House Permanent Select Committee on Intelligence released its report and findings regarding the election interference investigation. Although Donald J. Trump tweeted about the report and findings, he did not inform the committee that they were based in part on false, misleading or incomplete information, including testimony of Michael Cohen, Donald J. Trump’s personal lawyer, which testimony Donald J. Trump knew or should have known was false, misleading or incomplete. Donald J. Trump’s failure to take reasonable steps to ensure that congressional committee received accurate and complete information regarding the activities of his agents, associates and campaign impaired and impeded the conduct of lawful inquiries of the legislative branch.

In all of this, Donald John Trump has acted in a manner so as to bring disrepute on the Presidency and engaged in a pattern of conduct contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore, Donald John Trump, by such conduct, warrants impeachment and trial, and removal from office.

 

 

Posted on

Local Rule 57.7 regarding Pretrial Publicity and the Release of the Mueller Report

The Justice Department has filed this “Government’s Notice Regarding Report of the Special Counsel” in the pending criminal case against Roger Stone.  The notice informs Judge Amy Berman Jackson that among the redactions to the Mueller report are “redactions made in consideration of Local Rule 57.7(c) and the Court’s order so that the public release of the Special Counsel’s report as redacted does not pose either a ‘substantial likelihood of material prejudice to this case’ . . . or a ‘reasonable likelihood ‘ of ‘interfer[ing] with a fair trial or otherwise prejudic[ing] the due administration of justice.'” Although information regarding the Stone prosecution will be redacted from the version of the Mueller report released to Congress and the public on April 18, however, the notice informs the court that the Justice Department “plans to make available for review by a limited number of Members of Congress and their staff a copy of the Special Counsel’s report without certain redactions,” including those related to the Stone case.

Local Criminal Rule 57.7 restricts public dissemination of information by attorneys involved in criminal cases where “there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the administration of justice.” It also authorizes the court “[i]n a widely publicized or sensational criminal case” to issue a special order governing extrajudicial statements and other matters designed to limit publicity that might interfere with the conduct of a fair trial (Judge Jackson issued such an order in the Stone case on February 15, 2019).

The Justice Department’s theory is that the public release of the Mueller report, to the extent it contains information relating to the Stone prosecution, could be considered a violation of the local rule and/or the court’s order. It further suggests that providing this information to Congress in a manner in which Congress could make the information publicly available also could be considered a violation.

DOJ advanced a similar theory in connection with the terrorism prosecution of Zacharias Moussaoui. The congressional joint inquiry into the 9-11 attacks intended to hold a hearing at which witnesses, including ironically then-FBI Director Robert Mueller, would be questioned about matters such as the process by which the FBI conducted its investigation of Moussaoui. DOJ contended that such questions in a public hearing would violate Rule 57.7 and sought to persuade Judge Brinkema that she should in essence prohibit any such questioning (by preventing Mueller or other government witnesses from answering) in a public hearing.

DOJ’s request was properly rejected by Judge Brinkema. As the joint inquiry pointed out, Rule 57.7 explicitly provides that nothing in it is intended “to preclude the holding of hearings or the lawful issuance of reports by legislative, administrative, or investigative bodies.” Moreover, any interpretation of the rule that allowed the court to interfere with congressional proceedings would raise serious separation of powers issues.

For similar reasons it is debatable whether either the rule or the court’s order pursuant to it would provide a lawful basis for restricting congressional access to the Mueller report (or perhaps the redaction of material from the report in the first place). Nevertheless, the Department’s proposal that members and staff first be given limited access to a less redacted version of the report is a common sense approach to the problem (and, of course, is similar to the Freeh/LaBella procedure we have previously discussed). If, following this initial review, Congress requests copies of a less redacted version of the report, DOJ will “seek guidance” from the court on this request.

It is important to note that the “less redacted” version of the Mueller report will “include,” but not be limited to, portions of the report related to the Stone case. One can infer that DOJ is prepared to negotiate with Congress about which redactions can be “unredacted” (that’s probably not an actual word) for purposes of review by designated members/staff. This suggests to me that the Department understands that eventually Congress will be given an opportunity to see a mostly if not entirely unredacted version of the report and to make its case to some judge (whether Judge Jackson in the Stone case, Chief Judge Howell as the supervising authority for the grand jury or Judge Walton who is hearing the FOIA case) as to why it needs that version of the report.

In other words, we are moving closer to a Freeh/LaBella solution to the redaction controversy.

Posted on

Emoluments Clause Litigation Status Report

When we last left the emoluments clauses, Judge Messitte, U.S. district judge for the District of Maryland, had just issued a ruling in District of Columbia v. Trump, holding that the plaintiffs (DC and Maryland) had standing to sue the president for his alleged violations of the foreign and domestic emoluments clauses. As we observed at the time, the standing theory adopted by the court, based on the premise that these violations were advantaging the Trump Hotel in DC at the expense of competitors such as the Four Seasons and Ritz Carlton, seemed strained, to put it mildly. We also noted that although the court thus far had only addressed standing, “[a]t points it appears to have already decided the merits” against President Trump.

Sure enough, in July 2018 Judge Messitte issued an opinion adopting a broad view of the term “emolument” as extending “to any profit, gain, or advantage, of more than de minimis value, received . . . directly or indirectly, from foreign, the federal, or domestic governments [including] profits from private transactions, even those involving services given at a fair market value.” Memorandum Opinion of 7-25-18 at 47. Although ostensibly Judge Messitte merely denied the president’s motion to dismiss, he effectively decided the case in favor of the plaintiffs since there is no dispute that foreign and domestic governments have patronized the Trump Hotel during the Trump administration, which is all that is required to establish an emoluments violation under the court’s theory. Not surprisingly then, the president’s lawyers sought to stay discovery and take an interlocutory appeal and, when Judge Messitte denied these motions, sought a writ of mandamus in the Fourth Circuit (about which more in a moment).

Two other emoluments suits against Trump also remain pending (hat tip: @SethBTillman). In Blumenthal v. Trump, a suit brought by members of Congress in the U.S. district court for the District of Columbia, Judge Sullivan denied the president’s motion to dismiss for lack of standing but deferred decision on other issues, including the president’s contention that the plaintiffs had failed to state a claim upon which relief may be granted. The district court as of yet has apparently not ruled on the remainder of the motion to dismiss (which was argued nearly a year ago), nor upon Trump’s motion to certify the court’s ruling on standing for interlocutory appeal. No discovery is occurring while these legal motions are pending.

The third case is CREW v. Trump, a suit filed in the U.S. district court for the Southern District of New York. The district judge in that case dismissed for lack of standing. The plaintiffs appealed to the Second Circuit, which heard argument in October 2018. No decision has yet been issued. Continue reading “Emoluments Clause Litigation Status Report”

Posted on

Barr on Grand Jury Redactions

I have not watched most of Attorney General Barr’s testimony over the past couple days, but I gather from clips and reporting that he has made a few remarks regarding grand jury material redactions from the Mueller report. I have a few brief comments on these statements.

First, Barr notes, correctly, that under the Mckeever decision no grand jury material can be provided to Congress or the public except pursuant to one of the express exceptions set forth in Rule 6(e). He also indicates he does not see at the moment that any of those exceptions apply. He suggests, however, a willingness to discuss 6(e) redactions once the report is released, specifically with regard to any redactions that might be material to understanding the report or its conclusions.

Barr mentions the possibility of “workarounds” with regard to the redacted material. By this he might mean providing non-grand jury material that would provide the needed context or substantiation to substitute for whatever was redacted. He also may be leaving open the possibility of seeking permission from the court to release 6(e) material, although he appears disinclined to go that route at the moment.

Barr made one comment of potential legal significance. With regard to grand jury material in the report to Congress by independent counsel Ken Starr, Barr suggested that this was immaterial to the current circumstances because Starr was operating pursuant to a statute that “overrode” the provisions of Rule 6(e). Barr here is referring to 28 U.S.C. § 595(c), discussed in my prior post, which provided “[a]n independent counsel shall advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for an impeachment.”

Barr is correct that in Starr’s view § 595(c) overrode the requirements of grand jury secrecy. As explained in Starr’s report to Congress (see note 18), however, out of an abundance of caution he also sought express authorization from the Special Division to disclose grand jury material. The Special Division then authorized Starr to release grand jury material and provided “this authorization constitutes an order for purposes of Federal Rule of Criminal Procedure 6(e)(3)(C)(i) permitting disclosure of all grand jury material that the independent counsel deems necessary to comply with the requirements of § 595(c).”

The Special Division’s order does not say that section 595(c) overrides the requirements of grand jury secrecy. It may or may not have agreed with Starr on this point. By issuing an order pursuant to the “judicial proceeding” exception, however, the panel indicated that Starr’s disclosure was also justified under that exception, presumably because it was “preliminarily to” the “judicial proceeding” of impeachment.

Of course, it is impossible to know from the Special Division’s brief order what role section 595(c) played in its decision to invoke the “judicial proceeding” exception. It may have believed, for example, that section 595(c) effectively gave the independent counsel the authority to decide what materials were necessary for the House to receive. (That Starr’s application to the Special Division is still under seal makes it particularly difficult to discern the panel’s thinking on this). Nevertheless, it is hard to see how its order makes sense unless impeachment is the “judicial proceeding” on which it was based. This in turn indicates that a disclosure can be “preliminarily to” an impeachment proceeding even if no impeachment inquiry has yet been formally initiated.

It should also be noted that the Freeh/LaBella disclosure was not made pursuant to section 595(c). Although it is possible that the Justice Department could attempt to distinguish that disclosure on the grounds that an impeachment inquiry was underway (although on a different subject than that of the disclosure), there is nothing in the language of Rule 6(e) or in any of the relevant precedents to suggest that this is a material distinction.

In short, if Barr is merely suggesting that the absence of section 595(c)’s reporting requirement makes it inappropriate to seek here the kind of blanket authorization to disclose grand jury material received by Ken Starr, he makes a reasonable point. If, on the other hand, he is arguing that Chief Judge Howell would be without power to order disclosure of grand jury material in the Mueller report because of the absence of a “judicial proceeding,” he is in my opinion mistaken.

Posted on

The D.C. Circuit’s McKeever Decision Supports Use of the Freeh/LaBella Procedure for Handling the Mueller Report

On its face, Friday’s D.C. Circuit decision in McKeever v. Barr, involving a historian’s request for access to grand jury materials from 1957 for purposes of a book he is writing, might seem to have little relevance to redactions in the Mueller report. In fact, however, the decision turns on the court’s interpretation of a 1974 precedent in which Chief Judge Sirica authorized “disclosure of a sealed grand jury report to aid in the inquiry by the House Judiciary Committee into possible grounds for impeachment of President Nixon.” McKeever, majority slip op. at 9 n. 3; see In re Report & Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219 (D.D.C. 1974). More precisely, it turns on the McKeever court’s interpretation of the D.C. Circuit’s 1974 en banc interpretation of Judge Sirca’s decision. See Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (en banc).

As explained below, this decision is potentially  significant with respect to the Mueller report.

The McKeever majority ruled that judges lack inherent authority to disclose grand jury materials protected by Fed. R. Crim. P. 6(e) outside of the express exceptions set forth in that rule. Acknowledging the court’s decision in Haldeman was ambiguous on this point, McKeever construed Haldeman as approving Judge Sirica’s disclosure on the grounds that a House impeachment inquiry is a “judicial proceeding” for purposes of Fed. R. Crim. P. 6(e)(3)(E)(i), which is one of the explicit exceptions to grand jury secrecy set forth in the rule. McKeever, majority slip op. at 9 n. 3. It therefore concluded Haldeman did not stand as a precedent in favor of a court’s inherent authority to release grand jury materials.

Judge Srinivasan dissented in McKeever. While he noted that the “judicial proceeding” exception to Rule 6(e) “arguably applied” to the release of a grand jury report to Congress in connection with an impeachment investigation, he did not interpret Judge Sirica’s decision as relying on that exception. Instead, in Judge Srinivasan’s view the best reading of the en banc opinion in Haldeman was that it approved Judge Sirica’s exercise of inherent authority to release the report. See McKeever, dissent slip op. at 2-5.

Whatever one’s evaluation of the relative strengths of these positions, the majority opinion in McKeever is, at least for the moment, the controlling law in the D.C. Circuit. Thus, Congress cannot now ask the district court to release grand jury material in the Mueller report based on the court’s inherent authority. The Justice Department likewise could not support such a request even if it agreed with it (which it clearly would not, given that DOJ urged the narrow reading of the court’s authority adopted by the McKeever majority).

This does not mean, however, that Congress has no options for obtaining access to grand jury material in the Mueller report. It merely means that any disclosure to Congress must be pursuant to one of the express exceptions to grand jury secrecy listed in Rule 6(e).

Continue reading “The D.C. Circuit’s McKeever Decision Supports Use of the Freeh/LaBella Procedure for Handling the Mueller Report”

Posted on

A Proposal for Dealing with Mueller Report Redactions

In our political culture of contempt and pervasive paranoia, it is hardly surprising that Attorney General Barr’s refusal to release immediately the unreacted Mueller report has led many to accuse him of a coverup. So while I agree with Ben Wittes that everyone should chill out and wait to see what Barr actually produces in the next week or so, the reality is that any redactions will raise suspicions.

Fortunately, there is a relatively simple way to address this problem. The idea comes from the impeachment proceedings against President Clinton in 1998. The House Judiciary committee, which was reviewing the allegations against Clinton in the Starr report, wanted access to the Freeh and LaBella memos, internal Justice Department documents that recommended appointment of an independent counsel to investigate campaign fundraising violations during the 1996 presidential election cycle. The Justice Department took the position that these memoranda could not be shared with Congress because, among other reasons, they contained grand jury material protected under Fed. R. Crim. P. 6(e). (It would later turn out DOJ had been rather overly enthusiastic about designating grand jury material, including for example a quote from a Dick Morris book).

In light of the impeachment investigation (and the associated political pressure from Congress), the Clinton Justice Department agreed to ask the judge supervising the grand jury, Chief Judge Norma Holloway Johnson, to allow the committee access to the memoranda. After a couple of attempts (the committee, through House counsel, had to file its own motion after the court denied DOJ’s first request), Judge Johnson agreed to allow the committee limited access to the memoranda. As Peter Baker described the court’s decision: “Each side could send a single staff member to read the memos, but no copies could be made and no notes taken.” Peter Baker, The Breach: Inside the Impeachment and Trial of William Jefferson Clinton 183-85 (2000). That way the committee would have a basis for requesting any additional material it believed was relevant to its proceedings (it ultimately did not do so).

A similar process could be used to deal with redactions from the Mueller report. The court could permit two Judiciary committee staffers (one majority, one minority) to review the unreacted report. They would be prohibited from taking notes or disclosing the contents of the report publicly. If, however, there were redactions the committee believed to be improper or to contain important information, it could ask the court to release that information.

This seems like a reasonable way for protecting any legitimate Justice Department interests while reassuring the public that the attorney general is fulfilling his promise of maximum transparency.

Posted on

Why Congress May Not Want a Completely Unredacted Mueller Report

Yesterday we discussed potential redactions to the Mueller report with respect to grand jury material protected under Federal Rule of Criminal Procedure 6(e). Today we will discuss the other category of redactions mentioned in Attorney General Barr’s March 24 letter, namely “any information that could impact other ongoing matters, including those that the Special Counsel has referred to other offices.” In other words, the report contains some information about, or that “could impact,” ongoing criminal matters relating to the subject of the special counsel’s investigation and/or individuals involved involved in that investigation as targets, subjects or witnesses.

Historically, the Justice Department has been extremely reluctant to share its internal investigative and litigation files with Congress. Attorney General Robert Jackson famously declared the executive branch position in a 1941 opinion responding to congressional requests for FBI reports and other internal DOJ documents relating to investigations of labor unrest in industrial establishments with naval contracts. See Position of the Executive Dep’t Regarding Investigative Reports, 40 Op. Atty Gen. 45, 1941 U.S. AG Lexis 28 (Apr. 30, 1941). Jackson argued that such disclosure “would not be in the public interest” because it would “seriously prejudice law enforcement” (by tipping the government’s hand to actual and potential defendants), assist foreign adversaries, undermine the use of confidential informants and perpetuate “the grossest kind of injustice to innocent individuals.” Id.  at **2-4. Jackson allowed, however, that there were exceptions to the executive’s position, including that “pertinent information would be supplied in impeachment proceedings, usually instituted at the suggestion of the Department and for the good of the administration of justice.” Id. at *12.

In fact, Congress has been successful in obtaining internal Justice Department documents on a number of occasions. See generally Congressional Investigations of the Department of Justice, 1920-2012: History, Law, and Practice, CRS Report for Congress 15-49 (Nov. 5, 2012). In most if not all cases, however, the congressional investigation involved alleged wrongdoing at the Justice Department itself, not merely an attempt to learn about wrongdoing being investigated by the Department. Moreover, Congress has been far more successful at obtaining information from closed investigations. Thus CRS notes:

In the last 85 years, Congress has consistently sought and obtained access to information concerning prosecutorial misconduct in Department of Justice officials in closed cases; and access to pre-decisional deliberative prosecutorial memoranda– while often resisted by the Department– is usually released upon committee insistence, as well. In contrast, the Department rarely releases– and committees rarely subpoena– material relevant to open criminal investigations.

Id. at 2.

This suggests that the Justice Department would be on solid ground if it redacted information from the Mueller report relating to open criminal investigations, particularly in the absence of any claim of wrongdoing regarding how the Department is handling those investigations. (Note the potential irony that those in Congress who are alleging wrongdoing at the Department, namely House Republicans, are likely not those who would be pushing for full disclosure of the Mueller report). Moreover, congressional investigating committees might want to think twice before insisting that information relating to open criminal investigations be produced since this will tip off potential defendants as to what allegations are being investigated and what evidence exists to support them.

Of course, the committees will want to scrutinize any redactions to make sure that they are no broader than necessary to protect the integrity of ongoing investigations. They will properly demand assurance that none of the redacted information will be shared with potential defendants, including the president. They may even ask the attorney general to promise that specified Justice Department officials are free to share information they believe to be relevant to impeachment proceedings with the House Judiciary committee (I am not placing any bets on how likely they are to get that).

At the end of the day, though, Congress may not want to take a knee-jerk position against any redactions related to open criminal investigations.

Posted on

Congress’s Response to Potential Redaction of Grand Jury Material in the Mueller Report

In his letter yesterday to Congress, Attorney General Barr reiterated that “my goal and intent is to release as much of the Special Counsel’s report as I can consistent with applicable law, regulations, and Departmental policies.” Barr, noted, however that “[b]ased on my discussions with the Special Counsel and my initial review, the report contains material that is or could be subject to Federal Rule of Criminal Procedure 6(e)” (emphasis added), which restricts “disclosure of matters occurring before the grand jury.” Before deciding how much of the report can be released, the Justice Department must “identify the 6(e) material that by law cannot be made public.”

Although the redaction of grand jury material runs counter to Congress’s goal of full transparency for the Mueller report, it may on balance work in Congress’s favor. First, unless the Justice Department adopts a broad interpretation of grand jury secrecy, there should be little need to redact information in order to comply with Rule 6(e). The only material clearly covered by the rule would be direct references to what transpired before the grand jury. Thus, for example, discussion of evidence (such as documents or witness interviews) without reference to the grand jury should not fall within the rule even if that evidence was presented to the grand jury. See Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight, CRS Report for Congress 11-13 (Jan. 10, 2019). Because Mueller presumably drafted the report with an understanding of Rule 6(e)’s strictures, it is reasonable to assume that the need for redactions will be minimal.

Second, Congress can seek judicial authorization for disclosure of any material withheld under 6(e). It can do this by filing an application with the chief judge in the district where the grand jury was empaneled (presumably the chief judge of the United States District Court for the District of Columbia, although Mueller also had a grand jury in Virginia), asking for a determination whether the material in question falls with 6(e) and, if so, authorization of disclosure of the material to a congressional committee. Although it is possible that a committee could obtain access to protected material for oversight purposes under the court’s exercise of its inherent authority, its argument will be considerably stronger if it is acting pursuant to the impeachment power. See CRS Report, supra, at 41 (“where a congressional committee has sought grand jury materials in connection with the contemplated impeachment of a specific public official, several courts have recognized that court-ordered disclosure may be available pursuant to the ‘judicial proceeding’ exception.”). Thus, if the Justice Department attempts to withhold a significant amount of grand jury material, it may inadvertently hasten the advent of formal impeachment proceedings.

Finally, the Office of Legal Counsel has recognized that in “rare circumstances” the president’s “Article II responsibilities may independently justify the disclosure of pertinent grand jury information to him and his advisors.” Whether the President May Have Access to Grand Jury Material in the Course of Exercising his Authority to Grant Pardons, 24 OLC Op. 366, 367 (Dec. 22, 2000). It reached this conclusion in part based on case law allowing congressional access, noting “if congressional access to grand jury materials may be independently justified on the basis of its Article I power, it would be anomalous to contend that presidential access to such materials could not be justified on the basis of the President’s Article II powers.” Disclosure of Grand Jury Matters to the President and Other Officials, 17 OLC Op. 59, 68 (Sept. 21, 1993). OLC, however, cautioned that such disclosures not be routine, be undertaken only in accordance with carefully crafted procedures, and that obtaining advance court approval would be preferable.

Given that the Mueller grand jury was investigating possible crimes of the president and his close associates, it would seem inadvisable (to say the least) for the president to get access to any grand jury material withheld from Congress. In light of the OLC opinions allowing such disclosures under some circumstances, including where the president believes it would be relevant to his exercise of the pardon authority, the House Judiciary committee should demand that the attorney general notify it of any special access to grand jury information granted to the president.

And DOJ would be well-advised to keep any Rule 6(e) redactions to the bare minimum.