Author: Michael Stern

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Common Cause’s Impossible Dream

When Common Cause filed this lawsuit challenging the constitutionality of the filibuster, the legal establishment scoffed. Critics called it “ridiculous,” “specious,” and “frivolous.” They said the courts would toss the case on jurisdictional grounds without reaching the merits. They said a rag tag bunch of public interest lawyers, Democratic House Members and illegal aliens stood no chance against the world’s greatest deliberative body. (Ok, I might have made up that last part).

But as much as we like a good David versus Goliath story, I would bet on Goliath here. Apart from the merits of any constitutional objection to the filibuster (or lack thereof, as I have argued here and here; see also Ed Whelan’s comments), the Common Cause lawsuit suffers from three fundamental defects: (1) the lack of plaintiffs with legally cognizable injuries, (2) the absence of defendants to whom the alleged injuries could be attributed, and (3) the inability of a federal court to redress the alleged injuries even if proper defendants were before it.

Continue reading “Common Cause’s Impossible Dream”

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Privileged Communications in Congressional Investigations

Michael Bopp and DeLisa Lay of Gibson Dunn have recently published an article, “The Availability of Common Law Privilege for Witnesses in Congressional Investigations” in the Harvard Journal of Law & Public Policy. It provides a helpful overview of congressional authority and practice with regard to assertions of attorney-client and other common law privileges in congressional investigations.

The article also focuses on a more unusual topic: the extent to which communications by lawyers and others involved in representing private parties in congressional investigations or other proceedings will themselves be protected by privilege. In other words, if a company hires lawyers, lobbyists or media consultants to represent it in connection with a congressional investigation, will it be able to claim privilege over its communications with these professionals, if for example they should be sought by adversaries in a future civil or criminal proceeding?

Not surprisingly, the answer turns out to be complicated. But it got me to wondering whether congressional committees could bolster future claims of privilege by, for example, allowing attorneys for congressional witnesses to “enter an appearance” in an investigation. In exchange for counsel adhering to certain ground rules established by the committee (eg, counsel could be required to acknowledge that the committee is a “tribunal” within the meaning of the legal ethics rules), it could recognize the privileged nature of the representation, which might (or might not) have an influence on courts or other tribunals considering future claims of privilege.

Does anyone know of committees doing this or something similar?

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Recess Appointment Litigation As A Means Of Constitutional Settlement

Today I will begin appraisal of the various methods of achieving constitutional settlement on the question of recess appointments. I will start with the judicial arena.

Pending Cases

There are currently at least two significant cases challenging the constitutionality of President Obama’s January 4, 2012 recess appointments.

A. Challenge to NLRB recess appointments. Noel Canning v. NLRB, now pending before the D.C. Circuit, challenges the authority of the National Labor Relations Board to exercise any authority (such as adjudicating labor disputes or promulgating rules) on the grounds that Obama’s recess appointments of three of the NLRB’s five members were invalid, thereby depriving the agency of a quorum.

The U.S. Chamber of Commerce has sought to intervene on the side of Noel Canning. Its motion argues:

[T]he Recess Appointment Clause only allows the President to act when the Senate is in recess, and the Senate was not in recess at the time of these appointments. Indeed, the Senate could not constitutionally go into recess because Article I, § 5, cl. 4, prohibits the Senate from going into recess absent consent from the House of Representatives, and the House of Representatives did not give such consent here. The Senate conducted pro forma sessions twice weekly from December 20, 2011 until January 23, 2012- never going into recess- and the President thus lacked constitutional authority to issue appointments under the Recess Appointments Clause.

Chamber Motion to Intervene at 10 (emphasis in original). The Chamber contends that its intervention is necessary because Noel Canning “is a small, individual employer with limited resources” that has an incentive “to prevail on any ground possible– including, for example, fact-specific grounds that are unrelated to the critical constitutional issue presented by this case—at the lowest possible cost.” Id. at 13. The Chamber, by contrast, represents the broader perspective of thousands of businesses with “a strong interest in resolving the legality of the President’s recess appointments to the [NLRB] as expeditiously as possible.” Id.

Meanwhile, Senate Republicans have retained Miguel Estrada to file an amicus brief in this case. Senate Minority Leader Mitch McConnell explained: “The president’s decision to circumvent the American people by installing his appointees at a  powerful federal agency, when the Senate was not in recess, and without obtaining the advice and consent of the Senate, is an unprecedented power grab. We will demonstrate to the court how the president’s unconstitutional actions fundamentally endanger the Congress’s role in providing a check on the excesses of the executive branch.”

B. Challenge to CFPB recess appointment. The second case is State National Bank of Big Spring v. Geithner, No. 1:12-cv-01032, which was filed on June 21, 2012 in the U.S. District Court for the District of Columbia and assigned to Judge Huvelle. The complaint alleges that the formation and operation of the Consumer Financial Protection Bureau violates separation of powers. It also contends that the January 4 recess appointment of CFPB’s first director, Richard Cordray, was invalid. The recess appointment, it says, was “an unconstitutional act that circumvented one of the few remaining (and only) checks on the CFPB’s formation and operation.” Complaint ¶ 79.

The complaint identifies three reasons why Cordray’s appointment was invalid: (1) “the Constitution gives the Senate the exclusive power to determine its rules, and the Senate declared itself to be in session;” (2) “the House of Representatives had not consented to a Senate adjournment of longer than three days, as it must to effect a recess;” and (3) “the Senate passed significant economic policy legislation during the session that the executive branch alleged to be a recess.” Complaint ¶¶ 81-83.

Note that the complaint counterposes “session” and “recess” so as to suggest that the Senate can only be in one of these states at any given time. Presumably, therefore, the plaintiffs intend to contest the executive branch position that the Senate can ever be in an “intrasession recess. Continue reading “Recess Appointment Litigation As A Means Of Constitutional Settlement”

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More Evidence Against the Multi-Session Recess Appointment

As discussed by the January 6, 2012 OLC memorandum, Presidents Harding and Coolidge each made one “intrasession” recess appointment. Harding’s appointment, made on August 30, 1921 (and presumably the reason for the August 27 opinion of Attorney General Daugherty), was to fill a vacancy in the Registrar of the Land Office. Coolidge made an appointment to fill a vacancy on the Interstate Commerce Commission. Along with President Andrew Johnson’s recess appointments, these were apparently the only “intrasession” recess appointments made prior to the 1940s.

I don’t know anything more about Harding’s appointment, but Coolidge’s recess appointment was of a gentleman by the name of John J. Esch. After Congress convened on December 5, 1927, it adjourned from December 21, 1927 to January 4, 1928. Coolidge recess appointed Esch to the ICC on January 3, 1928.

Under the multi-session recess appointment theory, Esch’s appointment would have lasted until the end of the “next session” of Congress, which convened on December 3, 1928 and ended on March 3, 1929. However, according to this Wikipedia entry, “Esch’s recess appointment ended with the close of Congress’s term on May 29, 1928, and he left the Commission.”

This is further evidence that the Daugherty opinion was neither intended nor interpreted to validate “intrasession” recess appointments that would span more that one congressional session.

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The Public Debt Clause and the Coming Debt Limit Crisis

Amidst all the legal excitement this week, you may have missed BNA White House Reporter Cheryl Bolen’s article on Section 4 of the 14th Amendment (AKA, the Public Debt Clause) and the possibility of another debt ceiling crisis. The article (“Obama Could Face Sophie’s Choice as Country Approaches Debt Limit”) begins: “As the nation again approaches its statutory debt limit this winter, President Obama may be forced to choose among potentially illegal or economically disastrous options, such as borrowing money without the approval of Congress or doing nothing as the country defaults on its debt.”

Professor Epps is interviewed at some length in defense of his argument, familiar to readers of this blog, that “[t]he president could in good conscience point to Section 4 of the 14th Amendment as a basis for unilaterally borrowing money.”

On the other side is me,[*] armed only with constitutional text, historical practice, and judicial precedent. With some cover fire from Larry Tribe, Erwin Chemerinsky, and the Congressional Research Service.

Somewhere in the middle is Professor Peter Shane who, while acknowledging that it is “probably unlikely that when the 14th Amendment was drafted, it was intended to give the president some new, unprecedented power to incur debts on behalf of the United States,” suggests that one could reach the same result as a matter of statutory construction. Essentially he argues that if Congress has given the president a whole bunch of conflicting instructions regarding revenues, spending and debt, it might do the least damage to congressional intent for the president to borrow in excess of the debt limit.

The problem, as I point out, is that no one has every understood the statutory scheme to work that way, and one has to interpret congressional intent based on the background practices and assumptions on which Congress legislated. “’I think it’s a question of faithfully interpreting and then executing the laws. And I think the way presidents have always looked at it, correctly, is that when they hit the debt limit they have to go back to Congress and get an increase if they want to borrow more money,’ Stern said.”

Indeed, if it were otherwise, what would be the point of having a debt limit in the first place?

Thanks to the good folks at BNA, you can read the full article here.

 

Reproduced with permission from Daily Report

for Executives, 122 DER AA-1 (June 26, 2012).

Copyright 2012 by The Bureau of National Affairs,

Inc. (800-372-1033) <http://www.bna.com>


[*] I know it should be “I,” but that really sounds pretentious. Try it and see.

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That Didn’t Take Long

Even before the Speaker had certified the contempt, this letter arrived from Deputy Attorney General James Cole informing him that “the Department has determined that the Attorney General’s response to the subpoena issued by the Committee on Oversight and Government Reform does not constitute a crime, and therefore the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General.”

It should be noted that the statute, 2 U.S.C. § 194, assigns a duty to the United States Attorney, not to the “Department.” It is interesting that the letter comes from the Deputy Attorney General, not from the United States Attorney for District of Columbia, who is the official charged with the responsibility for presenting the congressional contempt case to the grand jury.

Presumably the Department would point to the fact that Attorney General Mukasey sent a similar letter in the case of the congressional contempt certifications for Josh Bolten and Harriet Miers. But the fact that something was done before doesn’t make it right, and I cannot understand why the Attorney General (or the Deputy Attorney General), rather than the U.S. Attorney, would be responsible for making the decision that the statute clearly assigns to the latter.

Presumably, in this case the letter did not come from Attorney General Holder because it would look like a conflict of interest for Holder to declare that he would not prosecute himself. But this doesn’t look much better.

 

Update: here is Senator Grassley’s letter to U.S. Attorney Machen questioning whether he has made an independent determination regarding the scope of the executive privilege claim and whether the case should be submitted to the grand jury.

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The Holder Contempt- Civil Enforcement Edition

The House is scheduled to vote today on holding the Attorney General in contempt for his failure to comply with congressional subpoenas seeking documents in the Fast and Furious investigation. Since my last post on this subject, the House leadership has decided in addition to voting on the resolution to certify the contempt to the U.S. Attorney, the House will vote on H. Res. 706, which would authorize the Chairman of the Committee on Oversight and Governmental Reform to initiate judicial proceedings “to seek declaratory judgments affirming the duty of Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, to comply with any subpoena [covered by the contempt resolution].”

H.Res. 706 provides COGR an alternative mechanism to attempt to enforce the subpoena. Assuming that the U.S Attorney refuses to present the contempt certification to the grand jury, COGR can file suit in federal court seeking a declaratory judgment that Holder is required to produce some or all of the documents covered by the subpoenas.

Indeed, the U.S. Attorney may look on the availability of the civil enforcement mechanism as a ground for refusing to present the matter to a grand jury, at least until there is a resolution of the civil enforcement case. He may contend that a civil suit is the most appropriate means for resolving disputes between the executive and legislative branches regarding the applicability of executive privilege. This would be consistent with the position taken by the Department of Justice during the Reagan Administration.

However, during the Bush 43 Administration, the Department took a different position. It not only flatly refused to present a congressional contempt case against White House officials to the grand jury, but it also raised numerous jurisdictional objections to the House’s attempt to have the privilege issues resolved in a civil declaratory judgment action. Instead, the Department suggested that the only way the House could enforce a subpoena against an executive branch official would be to send the Sergeant-at-Arms to arrest him or her. Fortunately, Judge Bates did not find this to be a compelling argument.

So the question is- which Department of Justice will show up this time? Will it acknowledge the jurisdiction of the federal courts to resolve a declaratory judgment action regarding executive privilege? If so, a civil enforcement suit may be a relatively attractive and expeditious way of settling the dispute here. But if the Department intends to raise standing, subject-matter jurisdiction and political question issues (and the like), the House may be better off demanding that the U.S. Attorney comply with his statutory duty to present the matter to the grand jury.

Of course, if all else fails, there is always the nuclear option of sending the Sergeant-at-Arms to arrest the Attorney General. Professor Chafetz notwithstanding, however, I think this should be a really last resort.

David Laufman has more here.

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The Holder Contempt- A Procedural Primer

As you may have heard, President Obama has asserted executive privilege with regard to Department of Justice documents sought by the House Committee on Oversight and Government Reform as part of its investigation of the “Fast and Furious” program, and COGR has voted to hold Attorney General Holder in contempt for failing to produce them. Rather than delving into the merits (on that subject see commentary by Todd Gaziano at Heritage’s The Foundry, John Hinderaker at PowerLine and Andrew Rudalevige at the Monkey Cage), I will lay out the procedural posture of the case in this post.

The Statutory Contempt Process

There are several ways that Congress can attempt to compel the production of information, but it appears that the House will follow the ordinary procedure, which may be referred to as criminal or statutory contempt, Understanding this process begins with a federal statute, 2 U.S.C. § 192, that states “[e]very person who having been summoned . . .  to produce papers upon any matter under inquiry before . . . any committee of either House of Congress, willfully makes default . . . shall be deemed guilty of a misdemeanor . . . .”

This provision in turn must be read in conjunction with another section, 2 U.S.C. § 194, which provides:

Whenever a witness summoned as mentioned in section 192 of this title fails . . . to produce any books, papers, records, or documents, as required . . . and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.

A person relying on a literal reading of these provisions could be led seriously astray. In the first place, although nothing in the language of these sections indicates that certification by the presiding officer is a necessary prerequisite to prosecution under section 192, legislative, judicial and executive precedent clearly establishes that this is the case.

In the second place, although section 194 literally seems to require certification whenever “the fact of such failure or failures” is reported to the House or Senate, this is not the case. Before certification takes place, the House or Senate, as the case may be, must vote to hold the witness in contempt. Only then does it become the “duty” of the presiding officer to certify the contempt.

Even more perplexingly, if the House (for example) is not in session, and the “statement of fact” is presented to the Speaker, it is not the automatic duty of the Speaker to certify the contempt, although this is what section 194 seems to say. Instead, the D.C. Circuit held in Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966), that the Speaker cannot automatically certify the contempt, but must exercise some sort of discretionary review akin to that which the House would exercise if it were in session.

Finally, although the statute seems clear that the United States attorney to whom a certification is made must bring it before the grand jury for its action, this is also controversial. The executive branch has maintained that the statute cannot be interpreted to interfere with its prosecutorial discretion or with its authority to assert executive privilege. Specifically, in the one case in history where the House voted, and the Speaker certified, contempt against an executive branch official who withheld documents from a congressional committee on grounds of executive privilege, the Office of Legal Counsel opined that the United States Attorney for the District of Columbia was not required to refer the matter to the grand jury (or to initiate a prosecution). See 8 O.L.C. 101 (May 30, 1984). Although OLC’s reasoning would seem to apply to any case where an executive official asserted executive privilege at the President’s direction, it declined to announce a general rule, limiting its opinion to the specific facts of that case.

Continue reading “The Holder Contempt- A Procedural Primer”

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“We Refer a Lot of Things that Don’t Get Prosecuted”

So noted former congressman Tom Davis after Roger Clemens was acquitted on all charges stemming from his congressional testimony regarding alleged steroid use. Davis was explaining to the Washington Post why he did not believe the Justice Department was obligated to prosecute Clemens even though he and Representative Henry Waxman (respectively the ranking member and chairman of the Committee on Oversight and Government Reform at the time Clemens testified before that committee) had referred the matter to the Department for investigation.

As a technical matter, Davis is certainly correct. The Justice Department is not obligated to, and does not in fact, prosecute all cases referred to it by Congress. (Arguably, the Justice Department is obligated to present all congressional contempt cases referred under 2 U.S.C. ¶ 194 to a grand jury, but it doesn’t do that either).

In the case of a congressional perjury referral such as was made with regard to Clemens, I think it is safe to assume that the Justice Department conducted a thorough investigation of whether Clemens lied before Congress when he denied ever having used steroids. After conducting the investigation, it presumably reached an independent conclusion that Clemens was lying. It seems unlikely that the Department relied on the referral letter from Waxman and Davis, particularly since that letter states: “We are not in a position to reach a definitive judgment as to whether Mr. Clemens lied to the Committee. Our only conclusion is that significant questions have been raised about Mr. Clemens’s truthfulness and that further investigation by the Department of Justice is warranted.”

It is different matter with respect to the “congressional elements” of the charges, however. Although the referral letter does not explicitly address these questions, the Justice Department would have reasonably assumed from the fact of the referral itself that Waxman and Davis believed that Clemens’s testimony was “material” to a matter within the jurisdiction of the committee, and, of course, that the committee was a “competent tribunal” engaged in the “due and proper exercise of the power of inquiry.”

Continue reading ““We Refer a Lot of Things that Don’t Get Prosecuted””

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Laufman on Leaks

Pertinent to my last post, white collar defense attorney (and my former Hill colleague) David Laufman has published this article for the Huffington Post on “Prosecuting Leaks of Classified Information.” It provides an excellent overview of the laws governing national security leaks, and the challenges and risks involved in prosecuting leakers.