Author: Michael Stern

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Was OCE’s Referral to the Justice Department Ultra Vires?

On May 27, 2010, the Office of Congressional Ethics (OCE) announced that its Board had voted unanimously to refer to the Justice Department “certain evidence collected in the course of its investigation concerning appropriations earmarks and the now defunct PMA lobbying firm.”   The announcement contends the referral to the Justice Department was authorized “pursuant to Section 1(f)(B) of House Resolution 895 of the 110thCongress and Rule 13 of the OCE Rules for the Conduct of Investigations.”   However, for the reasons described below, I think the Board exceeded its authority in making this referral.

House Resolution 895 is the resolution which established OCE and provides it with its authorities.  Nowhere in that resolution is there any explicit authorization for OCE to make referrals or provide information to the Justice Department or any law enforcement authorities. Section 1(f)(B), on which OCE relies, provides as follows: “No testimony received or any other information obtained as a member of the board or staff of the Office shall be publicly disclosed by any such individual to any such person or entity outside the Office.  Any communication to any person or entity outside the Office may occur only as authorized by the board as necessary to conduct official business or pursuant to its rules.”

This section is evidently designed to sharply limit disclosures by OCE to any outside individual or entity.  Such an interpretation is consistent with the intent of the House task force that recommended the establishment of OCE.  The task force made clear that OCE’s work in conducting preliminary investigations and review of ethics matters would be conducted confidentially.   Report of the Democratic Members of the Special Task Force on Ethics Enforcement 10 (Dec. 2007) (“To ensure confidentiality and responsibility in the opening steps of the ethics process, the OCE will conduct all of its proceedings and deliberations in executive session.”)

Section 1(f)(B) does recognize that there will be circumstances under which OCE will need to have communications with outside persons or entities.  The House did not try to anticipate all of the circumstances in which such communications might be necessary, and it provided the OCE Board with the power either to authorize a particular communication or to adopt rules that would authorize a particular category of communication.  This rulemaking authority, however, can reasonably be read only to allow the Board to authorize narrow categories of disclosure necessary to conduct OCE’s business or achieve its objectives; otherwise, it would grant the Board the authority to eviscerate the entire confidentiality scheme.

The Board itself initially seems to have interpreted its authority in this limited fashion.  The draft rules that it distributed for public comment would have authorized OCE to provide information to state or federal law enforcement only in cases of “imminent harm or threat to public safety.”   This rule would have limited OCE to providing information to law enforcement only where there was a true necessity. However, the draft rule was criticized by groups like Citizens for Ethics and Responsibility in Washington as “unjustified and unwise.”  They wanted OCE to be able to refer evidence of legal violations, regardless of whether there was any imminent harm. Apparently in response to this criticism, the Board substantially broadened the rule (I do not know whether the House or the general public was given an opportunity to comment on the revised rule).

As ultimately promulgated, Rule 13 (D) of the OCE Rules of Investigation provides that “[t]he Staff, in consultation with the Chairman and Co-Chairman, may refer information to state and federal authorities in the event that information indicates a crime has occurred or is about to occur.”  This is the authority relied upon by OCE in making its PMA referral.

As interpreted by OCE, therefore, Rule 13 permits OCE to refer any evidence of criminal violations to federal or state authorities, regardless of the nature of the violations, the strength of the evidence, or the urgency of the matter.  Even more importantly, it permits OCE to refer evidence even after the same evidence has been submitted to the House Ethics Committee.  In the case of the PMA referrals, the House Ethics Committee received and reviewed the evidence, and concluded that no violations had occurred.  Whatever one thinks of this decision, it seems clear, under the ethics enforcement regime established by the House, that the decision was one for the Ethics Committee to make.

Moreover, House Rules explicitly provide for the circumstances in which the Ethics Committee can make referrals to law enforcement authorities.  House Rule XI, cl. 3(a)(3) provides that “[t]he committee may report to the appropriate Federal or State authorities, either with the approval of the House or by an affirmative vote of two-thirds of the members of the committee, any substantial evidence of a violation by a Member, Delegate, Resident Commissioner, officer, or employee of the House, of a law applicable to the discharge of his responsibilities that may have been disclosed in a committee investigation.”

In other words, even if a majority of the Committee believes that there is evidence warranting referral to the Justice Department, they may not be permitted to make such a referral.  But under OCE Rule 13 as interpreted by the Board, OCE’s staff could refer evidence even after (as here) the Committee unanimously determined that it warranted neither referral nor further investigation.  This makes no sense, and strongly suggests that OCE has acted beyond its authority in this case.

Finally, it should be noted that OCE’s interpretation of Rule 13 could have negative consequences for its future investigations.  It will give attorneys for Members under investigation a handy excuse, and perhaps a legitimate reason, for refusing to cooperate with OCE investigations.  After all, if OCE can make referrals of evidence to the Department of Justice or other law enforcement authorities, their clients may be relinquishing Speech or Debate or other privileges when they provide information to OCE.  Far better to wait until the matter reaches the Ethics Committee, where both formal rules and actual practice make referral much less likely.

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Northern Exposure

            The Canadians seem to be having their own version of the Karl Rove/Harriet Miers/Josh Bolten controversy that arose in during the Bush administration (when these White House officials asserted immunity from having to appear before congressional committees).  The Canadian government has declared only cabinet ministers, not their political staffs, can be called as witnesses before parliamentary committees. 

            Generally speaking, I presume the Canadian Parliament has the same inherent powers to call for testimony and records as does the Congress.  According to the Canadian House of Commons Procedure and Practice Manual, standing committees have the power to issue a summons for any person located on Canadian soil, with certain recognized exceptions.  These include the Queen (no surprise), the Governor General and provincial lieutenant-governors (who I think are the Queen’s representatives) and members of either Canadian provincial or federal legislative bodies. 

            Since parliamentary committees are not permitted to summon Members of Parliament (at least not without the specific authority of the House), it would seem that they cannot not compel the appearance of the prime minister or a cabinet minister (who are Members of Parliament).  In this case, however, the government is arguing that the committee must call the minister, rather than his or her political subordinates.   The basis of the argument, which I don’t fully understand, has something to do with the concept of “ministerial responsibility,” a system in which it is only the ministers (and not their subordinates) who are considered responsible to both the Parliament and the Canadian people.  A government spokesman distinguishes this system from that in the U.S., where (he says) “the American Congress calls people, grills them and does whatever they want.”

           

            Normally this type of issue would not arise in the Canadian system because the government and the Parliament would be controlled by the same party.  However, the current Conservative government has only a plurality in Parliament, and this apparently means that the opposition effectively controls at least some of the standing committees.  The latest controversy involves a request to a government official to testify before the House of Commons committee on access to information, privacy and ethics, which is chaired by a Liberal Democrat. 

            What happens if the government official refuses to appear and the parliamentary committee refuses to accept the failure to appear?  Like the Congress, the Canadian Parliament has the inherent power to punish for contempt, and to imprison recalcitrant witnesses.  The last time this authority was used, however, was 1913.

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A Final Word on Congress and Miranda

           From my last three posts on Miranda (see here, here and here), one can see the argument that would be made by opponents of a “public safety” exception statute.  They will say that Miranda’s requirements are “constitutional” in nature; ergo any exceptions are similarly of constitutional dimension.  Since it is the Court, not Congress, which decides what the Constitution means (at least in the mind of judicial supremacists), Congress’s view of the proper scope of the public safety exception is of little relevance. 

            It is certainly possible that the Court will take this view, but I don’t think that its precedents require it to do so.  There are at least two possible grounds on which the Court could uphold a public safety exception statute: (1) that Congress’s reasoned factfinding is relevant to the constitutional test as set forth in Quarles; and (2) that stare decisis does not require the Court to strike down statutes which do not attempt to reverse the general rule established in Miranda, but merely establish reasonable exceptions thereto. 

            Consider the following from the Court’s recent opinion in Citizens United v. FEC, 558 U.S. __ (2010): “When Congress finds that a problem exists, we must give that finding due deference, but Congress may not choose an unconstitutional remedy.”  By analogy, the Court must defer to a congressional finding that providing Miranda warnings to a terrorist would impede law enforcement from obtaining vital intelligence that might prevent an imminent attack, even though it need not defer to Congress’s ultimate determination on the admissibility of the terrorist’s unwarned statements.  Recall that in Quarles the Court concluded that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for [Miranda’s] prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”  If this balancing test is the controlling constitutional test, a congressional finding on the public safety issue would seem clearly relevant to, if not dispositive of, admissibility. 

            Furthermore, while Dickerson affirms Miranda’s continuing validity as a “constitutional holding,” it is less than clear what that holding is.  As conceived by the Dickerson Court , Miranda is essentially a constitutional policy that “reliance on the traditional totality-of-the-circumstances test raise[s] a[n] [unacceptably great] risk of overlooking an involuntary custodial confession.” 

            We know that stare decisis prohibits Congress from simply reinstating the  totality-of-the-circumstances test, but this doesn’t necessarily preclude Congress from establishing exceptions for certain categories of cases.  Quarles and other post-Miranda cases demonstrate that the courts can still make determinations of voluntariness even when no warnings are given.  It is difficult to see a principled reason why Congress could not provide for admission of voluntary statements in limited circumstances. 

            In his Citizens United concurrence, Chief Justice Roberts explained that stare decisis “counsels deference to past mistakes, but provides no justification for making new ones.”  Would applying Miranda’s rules, developed for use in ordinary law enforcement in the 1960s, to intelligence-focused interrogations of suspected terrorists qualify as a “new mistake”?  Hard to say, but I wouldn’t rule it out. 

            Finally, one should not forget that Miranda itself left room for legislative action that provides alternative safeguards to ensure voluntariness.  Such safeguards would provide an additional basis on which the Court might defer to a public safety statute.  Although it might be politically controversial, for example, Congress could require that unwarned interrogations of terrorists be videotaped, in order to facilitate the court’s determination of voluntariness. 

            So I think that critics are premature when they dismiss the viability of a public safety exception statute for terrorist interrogations.

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The Dickerson Decision

           The majority opinion in Dickerson v. United States, 530 U.S. 428 (2000), was written by Chief Justice Rehnquist (the author of the Quarles decision).  The opinion states its hold succinctly at the outset: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.” 

            Note that the opinion does not say that Miranda was a correct constitutional decision.  On the contrary, the Court expressly notes that its holding is independent of “[w]hether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance.”  This is not surprising—we have already seen that Justice Rehnquist’s opinion in Quarles expressed considerable skepticism about Miranda. 

            The Court’s analysis begins with the proposition that “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.”  This is a strange formulation.   The justification for judicial review, as set forth in Marbury, is that the Court has the authority and duty to determine whether a federal statute (presented in a case or controversy) complies with the Constitution.  In making this determination the Court will consider and generally adhere to the holdings and reasoning of its precedents, but this is different from claiming that Congress is forbidden from “legislatively supersed[ing]” a precedent that purports to interpret or apply the Constitution. 

            The distinction may be seen by reference to Hamilton’s observation, in Federalist No. 78, that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.”  Thus when the Court applies its precedents, it is (or should be) applying the judgment or reasoning of those cases to the case before it.  If the reasoning of precedent controls the case at hand, then it may result in striking down a federal statute.  But the assertion that Congress may not “legislatively supersede” a precedent suggests that Congress is required not merely to comply with the Constitution (the interpretation of which may be informed by judicial precedent), but is also required to comply with Supreme Court precedent as a declaration of judicial policy, ie, an act of will not merely judgment. 

            Of course, as is often observed (for example by Justice Sotamayor), the exercise of judgment may in effect make policy and may be influenced by the policy preferences of the judges.  This, however, is a byproduct of the unfortunate fact that laws cannot interpret, apply and enforce themselves, and therefore require human beings to do it for them.  It is a bug, not a feature, of the judicial system. 

            The distinction between precedent as judgment and precedent as policy is often difficult to detect, but the unusual nature of the Miranda decision makes it apparent.  If the Miranda rule were formulated as a judgment, it would go something like this: “absent warnings or some other special safeguards, admission of a custodial confession violates the Fifth Amendment.”  As the Dickerson dissent (Justice Scalia, joined by Justice Thomas) notes, this was the fairest reading of Miranda at the time that the initial decision was rendered.  Subsequent decisions, however, preclude this reading of Miranda.  Those decisions allow unwarned, but voluntary, custodial confessions to be admitted in the prosecution’s case in chief under some circumstances (Quarles), or allow them to be used for impeachment (Oregon v. Hass, 420 U.S. 714 (1975), or allow the fruits of such confessions to be admitted (Michigan v. Tucker, 417 U.S. 433 (1974)).  Both the results and reasoning of these cases establish that unwarned, but voluntary, confessions do not violate the Fifth Amendment.

  

            The Dickerson majority, while conceding that there “is language in some of our opinions that supports the view” of Miranda as a non-constitutional decision, concluded that Miranda’s constitutional nature was demonstrated by the fact that the Court had consistently applied its rule to the states.  Since the Court lacks supervisory authority over the states, the majority reasoned, this necessarily means that the Miranda rule must be one of constitutional dimension. 

            Note that the Court isn’t saying that section 3501 is invalid because it is inconsistent with the Constitution, or inconsistent with the Constitution as interpreted by Miranda, or even inconsistent with Miranda’s reasoning.  Instead, section 3501 is invalid because holding it valid would imply that Miranda is invalid and the Court is unwilling to consider, under stare decisis, whether Miranda is in fact valid.  The Court has traveled a ways from the traditional notion that congressional enactments are entitled to a presumption of constitutionality. 

            At the end of the day, the most plausible interpretation of Miranda seems to be that it was based on the assertion of a judicial authority to create prophylactic rules, not themselves required by the Constitution, in order to protect constitutional rights.  The Dickerson dissent points out that this interpretation was urged by both Dickerson and the government, and suggests that the fact that the majority does not mention it means that they, like the dissenters, reject the existence of any such authority.  However, the majority appears to be applying the doctrine of stare decisis to Miranda’s result, not its reasoning.  Thus, it may be that Miranda now stands only for the proposition that the Court has created a specific set of prophylactic rules to govern custodial confessions in most circumstances, not that the Court actually has the constitutional power to do so.  If this in fact is the proper interpretation of Dickerson, it is understandable that the Court may not have wanted to say so explicitly. 

             The Dickerson Court echoes Quarles in describing Miranda as essentially an exercise in balancing the costs and benefits of requiring warnings prior to a custodial interrogation.  On the cost side, the Court acknowledges the “disadvantage of the Miranda rule . . . that statements which may be by no means involuntary . .           . may nonetheless be excluded and a guilty defendant go free as a result.”  On the benefit side, it notes the Miranda Court found that the traditional totality of the circumstances test (ie, the approach endorsed by section 3501) created an “unacceptably great” risk of “overlooking an involuntary custodial confession.”  Moreover, the Dickerson Courtconcluded that the Miranda rule had shown itself to be easier for both law enforcement and the courts to apply than section 3501.

            This type of cost-benefit analysis would seem to be a quintessential legislative task, but the Dickerson majority evidently felt that it was under no obligation to consider, much less defer to, the factual findings and judgments made by Congress in enacting section 3501.  In my next (and final) post on this subject, I will consider the implications of Dickerson’s approach for a potential statute expanding and defining the public safety exception for terrorist interrogations.

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Miranda and the Justice Department’s Duty to Defend Federal Statutes

           In the late 1990s a bank robbery suspect named Charles Dickerson made an incriminating statement while in FBI custody.  Claiming that he had not received Miranda warnings, Dickerson moved to suppress the statement at his trial.  The Fourth Circuit, while finding that no warnings were given, held that the statement was nonetheless admissible under 18 U.S.C. § 3501.  The Supreme Court granted certiorari to consider the validity of section 3501. 

            Before the case was argued, a dispute arose between Congress and the Clinton Justice Department (at that time under the leadership of Attorney General Reno, Deputy Attorney General Holder, and Solicitor General Waxman).  By letter of November 1, 1999, the Attorney General informed Speaker Hastert that the Justice Department would not defend the constitutionality of section 3501.  (By law the Attorney General is required to inform Congress whenever the Department declines to defend the constitutionality of a federal statute.). 

            In a responsive letter dated February 16, 2000 (which I drafted on his behalf), Speaker Hastert strongly objected to the Justice Department’s refusal to defend the statute.  Hastert noted the Department’s longstanding position that it “appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.”  Solicitor General Waxman, in his 1997 confirmation hearings, expressly affirmed that the Department “is bound to defend the constitutionality of all acts of Congress unless no reasonable arguments can be made in support.” 

            As Hastert pointed out, the Justice Department’s refusal to defend section 3501 could not be justified under this standard.  There was, of course, no suggestion that the statute infringed upon executive power.  Furthermore, there was plainly a reasonable argument in support of the law’s constitutionality in light of post-Miranda precedent (some of which is discussed in my previous post) and the decision of the Fourth Circuit in the Dickerson case itself.   

            Waxman later wrote a law review article attempting to explain the Justice Department’s position in the Dickerson case.  Waxman claimed that the Justice Department’s obligation to defend a statute did not apply when doing so “would require the Solicitor General to ask the Supreme Court to overrule one of its constitutional precedents.”  He explained that unlike the ordinary case in which the constitutionality of a statute is at issue, the instance “when a contrary constitutional ruling is directly on point” creates a “direct tension” between “the interests of the legislative and judicial branches.”  The Solicitor General, he argued, “has an obligation to honor the important doctrine of stare decisis and a duty to respect the rulings of the Court.”  These obligations evidently relieved the Solicitor General of the duty to defend section 3501. 

            Waxman’s argument, however, makes no sense.  In the first place, whether or not upholding section 3501 required overruling a “constitutional precedent” (ie, Miranda) was itself one of the key issues in the Dickerson case.  The Fourth Circuit, which lacks the power to overrule Supreme Court precedent, believed that it did not.  The Justice Department believed otherwise, but Waxman does not explain why its judgment in this regard should be controlling.  After all, the whole point of the duty to defend is that the Justice Department will defend a statute it believes to be unconstitutional, so long as it believes it can make a reasonable argument in support of the law’s constitutionality. 

            In the case of section 3501, the strongest argument in support of its validity was not the Miranda should be overruled, but that post-Miranda precedent had established the non-constitutional nature of Miranda’s requirements.  Under this argument, section 3501 could be upheld without overruling Miranda.  Of course, this approach might be characterized as overruling Miranda by implication or, perhaps more accurately, as holding that Miranda had already been overruled by implication.  But these descriptions merely highlight the fact that there is no bright-line distinction between formally “overruling” a legal precedent and other rulings by the Court that have essentially the same effect.  Waxman’s attempt to carve out an exception to the duty to defend is an invitation to confusion and mischief. 

            Even if defending section 3501 did require the Solicitor General to ask the Court to overrule Miranda, it is not at all apparent why this should make a difference to the duty to defend.  Of course, if the Solicitor General believes that there is no reasonable basis for asking the Court to overrule a particular precedent or series of precedents, the duty to defend does not require him to do so.  But if the Solicitor General can make a reasonable argument that the Court should overrule a particular precedent (because, for example, the rationale of a precedent has been undermined by subsequent caselaw), it is hard to see why it shows any disrespect to the Court’s decisions to ask it to do so.

            Waxman clearly approaches this subject from the perspective of judicial supremacy, i.e., namely the concept that the courts are the sole and final arbiter of constitutional questions.  Indeed, he says that “under Marbury v. Madison, the Supreme Court has the final word on the meaning of the Constitution.”  This is, at best, a significant oversimplification of how constitutional issues are debated and sometimes settled in our system.  But even if one accepts the concept of judicial supremacy, there is something disturbing about the notion that merely asking the Supreme Court to reconsider a precedent is inconsistent with the Solicitor General’s obligations to the Court.   

            Equally questionable is the idea that there is a “judicial interest” in adhering to a prior decision, even an erroneous one.  One would think that the Court’s “interest,” if that is the right word, is in deciding cases correctly under the Constitution.  Indeed, it is only the Court’s duty to follow the Constitution that justifies it, under Marbury, in declaring a federal statute unconstitutional.  One might question whether declaring a federal statute unconstitutional solely on the basis of stare decisis, without reconsidering whether the initial decision correctly interpreted the Constitution, is itself an exercise of power authorized by Marbury’s reasoning.  It certainly does not offend any judicial interest for the Solicitor General to make reasonable arguments in favor of applying the well-recognized exceptions to the doctrine of stare decisis. 

            It is interesting to compare the Justice Department’s position in Dickerson with its decision to defend the constitutionality of the Communications Decency Act.  This ill-considered law made it a crime to make “indecent” or “patently offensive” materials available on the Internet to minors.  As Waxman notes, two three-judge panels “found the law facially unconstitutional in every respect.”  It is clear that the Justice Department also believed that it was unconstitutional.  Nevertheless, Waxman defended it (unsuccessfully) before the Supreme Court; as he wryly notes, “there is nothing quite like standing in front of the Supreme Court to defend the constitutionality of a law that not a single judge has ever found to be constitutional in any respect.”  The Government, it is true, did not ask the Supreme Court to overrule any precedents; instead, it argued that the statute was “plainly constitutional” under three Supreme Court precedents.  To which the Court responded, also somewhat wryly, that “a close look at these cases, however, raises–rather than relieves–doubts concerning the constitutionality of the CDA.” 

            In the case of the CDA, the Solicitor General defended a law which was, at best, of dubious constitutionality under any reasonable reading of the First Amendment, as well as under numerous Supreme Court precedents.  In the case of section 3501, on the other hand, the Solicitor General refused to defend a statute which was completely consistent with the historic understanding of the Fifth Amendment, and was, at worst, contrary to the Miranda decision, a widely-criticized precedent which had been undermined by subsequent Supreme Court decisions.  As Judge Clark would say, I find it hard to wrap my mind around the differing approaches in the two cases. 

            Be that as it may, the Justice Department adhered to its position in Dickerson, and filed a brief with the Supreme Court arguing that section 3501 was unconstitutional under Miranda.  Since both the prosecution and defendant were on the same side, the Court appointed Professor Paul Cassell to defend the constitutionality of the law.  We also filed an amicus brief on behalf of the Speaker. 

            In my next post I will discuss the Dickerson decision (spoiler alert- we lost). 

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Congress, Miranda and the “Public Safety” Exception

Last week Attorney General Holder suggested that the administration may seek legislative changes to facilitate the questioning of terrorism suspects within the criminal justice system.  One potential change would be to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate suspected terrorists without providing the so-called “Miranda warnings.”

Some experts, such as Professor Orin Kerr, say that the Supreme Court is likely to give little deference to such a statute.  Kerr suggests that the constitutional nature of the Miranda rule means that Congress has no role in determining its scope or application.  (Kerr, btw, will be serving as a special advisor to Senator John Cornyn for the Kagan nomination).  Senator Pat Leahy expressed a similar view yesterday.

I think Kerr and Leahy are wrong.  To understand why, one needs to be familiar with the dialogue between Congress and the courts with regard to Miranda specifically and with regard to the broader question of each branch’s role in interpreting the Constitution.

In Miranda, the Court found that custodial interrogation is inherently coercive, noting that “the very fact of custodial interrogation exacts a heavy toll on individual liberty, and trades on the weakness of individuals.”  It acknowledged that the admissions in the cases before it were not necessarily involuntary in the sense previously thought to justify exclusion, but nonetheless found that the “current practice of incommunicado interrogation” conflicts with “one of our Nation’s most cherished principles — that the individual may not be compelled to incriminate himself.”  It concluded that “[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”

To guide law enforcement as to what would be “adequate protective devices,” the Court laid out the now-famous Miranda warnings.  It was careful to note that it was not creating a “constitutional straitjacket” to prevent Congress and the States from adopting alternative procedures to protect a suspect’s Fifth Amendment rights.  However, in the absence of “other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it,” the Miranda Court held that the warnings would be required before a suspect’s custodial statement could be admitted into evidence.

Congress reacted to the Miranda decision by holding hearings that questioned the empirical basis of the Court’s assessment of custodial interrogations. The Senate Judiciary Committee heard from witnesses such as then-District Attorney (now U.S. Senator) Arlen Specter, who “pointed out that the so-called third degree methods deplored by the Supreme Court and cited as a basis for their opinion in Miranda is not a correct portrayal of what actually goes on in police stations across the country.”  Other critics of the Miranda decision included Quinn Tamm, the executive director of the International Association of Chiefs of Police, who stated that “while these coercive practices might have been approved 30 years ago, they have no place in modern police techniques.”   Thus, coercive practices in police interrogations constituted the “exception rather than the rule,” and the Senate Judiciary Committee concluded that custodial interrogations were not in fact inherently coercive.

In 1968, two years after Miranda was decided, Congress enacted 18 U.S.C. § 3501, which purported to establish a multi-standard test for determining the admissibility of confessions.  The law in essence restored the pre-Miranda law by requiring the court to make a determination whether the confession was voluntary based on the totality of the circumstances.  It directed the judge to consider certain specified factors, including whether the defendant had been warned of his rights, but provided that no one factor was to be conclusive on the issue of admissibility.

The legislative history of section 3501 clearly indicates that it was intended to “overrule” Miranda, and prosecutors did not attempt to rely on it in court in the years following enactment.  They no doubt thought it unlikely that the courts would follow a statute purporting to overrule a constitutional holding of the Supreme Court.

As time went on, however, subsequent Supreme Court decisions began to call into question the constitutional basis of Miranda. Although it was always clear that the Constitution itself did not require any specific warnings, these later decisions suggested that the Miranda warnings were a mere “prophylactic rule” and that the Constitution did not require the exclusion of voluntary confessions, even if there were no warnings or alternative procedures to protect the suspect’s rights.

For present purposes, the most significant of these decisions was New York v. Quarles, 467 U.S. 651 (1984), a case involving a rape suspect who was apprehended by the police.  The victim flagged down two police officers immediately after the rape, described the suspect, and told them he had a gun.  The officers located the suspect, and, after a brief chase, arrested and handcuffed him.  After discovering that he had an empty shoulder holster, one of the officers asked him “where’s the gun?”  The suspect then indicated where he had ditched the revolver, which the officer recovered.

Because the suspect was clearly in custody, and had made the incriminating statement regarding the gun before being warned of his rights, the state courts suppressed the statement (and the gun itself) under Miranda.  The Quarles Court, in an opinion written by then-Justice Rehnquist, reversed.  It held that there was a “public safety” exception to Miranda that applied in a “kaleidoscopic situation such as the one confronting the officers.”  In short, it did not believe that the warnings were required in “a situation in which police officers ask questions reasonably prompted by a concern for the public safety.”

Justice Rehnquist’s opinion fairly drips with skepticism regarding the validity of the initial Miranda decision.  Noting that the Miranda dissenters warned that the ruling would have the effect of decreasing the number of suspects who confessed, he rather acerbically notes that the Miranda majority “apparently felt that whatever the cost to society in terms of fewer convictions of guilty suspects, that cost would simply have to be borne in the interest of enlarged protection for the Fifth Amendment privilege”  (emphasis added).  Where public safety was at stake, however, the potential cost of deterring the suspect from responding was “something more than merely the failure to obtain evidence.” Accordingly, the Quarles Court concluded that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”

It is impossible to square the holding in Quarles with the notion that Miranda is constitutionally required.  After all, as the Quarles dissenters pointed out, a custodial interrogation does not become any less coercive by virtue of the fact that the public safety is at stake.  If an unwarned interrogation violated the Fifth Amendment, the confession in Quarles would have had to be suppressed, regardless of the public interest in getting the information.  The only logical conclusion from the holding in Quarles was that the admission of unwarned, but voluntary, custodial confessions did not violate the Constitution.

The reasoning of Quarles also suggests that the Miranda rule was essentially derived from balancing the public interest in obtaining criminal convictions against the danger posed by potentially coercive interrogations.  Such a task would seem to be a quintessential legislative endeavor, as the Senate Judiciary Committee had in fact suggested in considering section 3501.  It was only a matter of time before the courts would be asked to consider the validity of the federal statute in light of the new judicial perspective on Miranda.

I will turn to that story in my next post.

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The Attorney-Client Privilege in Congressional Proceedings

Congressional practitioners will be interested in this article in the Journal of Law and Politics on the attorney-client privilege and work product doctrine in congressional proceedings.  (Bradley Bondi, “No Secrets Allowed: Congress’s Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings”).  As the title implies, Bondi is critical of Congress’s assertion of the authority to disregard the attorney-client or other common law privileges.  While he concedes that Congress, like the British Parliament, may have the power to disregard privileges in inherent contempt proceedings (ie, where Congress uses its own contempt authority to try and imprison a contumacious witness), he argues that the situation is different with respect to statutory contempt proceedings under 2 U.S.C. § 192.

Bondi uses the legislative history of the statute, which was enacted in 1857, to show that Congress itself was uncertain of the default rule that applied in congressional proceedings.  Some legislators assumed that Congress was bound to respect common-law privileges, while others believed that it had the power to overrule them.  He also points to the fact that Congress has generally respected the attorney-client privilege since the enactment of the statute, although the relevance of this practice to the interpretation of the statute is unclear.

If a court were faced with the question of whether the statute permits prosecution of a witness who asserts an otherwise valid attorney-client privilege (ie, a claim of privilege that would be recognized at common law or in judicial proceedings), its conclusion would likely be dictated by the presumption that it starts with.  Since the statute itself is silent on its applicability to claims of attorney-client privilege, the court might hold that the statute should not be construed in derogation of a firmly established common law privilege.  Alternatively, the court might start with the presumption that the statute was intended to preserve the traditional legislative authority to overrule privileges and therefore reach the opposite conclusion.

Given the difficulty of this question, however, a court is likely to look for ways to avoid deciding it.  And there is likely to be an easy way for it to do so.  Under current congressional procedures, while a witness can argue his privilege claim to a congressional committee, there is no way to present the claim to the full House or Senate prior to being held in contempt.  But if the power to disregard privileges exists, it certainly inheres in the full legislative body, not in committees.  Thus, if a witness has a judicially valid claim of privilege, he can argue that it was a violation of due process to hold him in contempt without first giving him an opportunity to argue the claim before the full legislative body.

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A Code of Lobbying Ethics

Tom Spulak, a well-respected congressional lawyer and a former House General Counsel (as well as a former colleague of mine at Shaw Pittman), wrote this recent piece on the “assault on lobbyists.”   Of particular interest to me is his suggestion that lobbyists could adopt a voluntary code of conduct that would prohibit questionable and/or controversial practices, such as providing campaign contributions to elected officials.

I think that this is a promising idea which is worthy of more public discussion.  It should be noted that Section 214 of the Honest Leadership and Open Government Act of 2007 expresses the sense of Congress that the lobbying community develop “proposals for multiple self-regulatory organizations” to, among other things, develop standards for lobbying and provide ethics training to the lobbying community.   Other than some occasional discussion over the last couple of years, there has been little response to date from the lobbying community to Congress’s call for action.

One possible objection to a voluntary code of ethics is that those who subscribe to it will be subject to a competitive disadvantage.  To alleviate this fear, there needs to be some formal recognition of the code.  For example, suppose the House and Senate Ethics Committees were to recognize a code of ethics for lobbying that would apply to both lawyers and non-lawyers. The ethical code for lawyers would be enforced by the bar, and for non-lawyers it could be enforced by a separate professional organization.  Under this regime, lobbyists who agreed to comply with the ethical requirements would be certified by the Ethics Committees as “professional policy advocates” and could so represent themselves in the course of their practice.  The Ethics Committees could de-certify individuals upon notification from the bar or professional organization of a rules violation.

No one would be prohibited from lobbying for failure to subscribe to this ethical regime, but both Members and executive agencies might think twice before dealing with uncertified lobbyists (and perhaps registered lobbyists who were not certified would be required to so state when they made lobbying contacts).  This regime would be consistent with the sense of Congress expressed in HLOGA.  It would also seem to mitigate the potential competitive advantage that would otherwise be enjoyed by unethical lobbyists.  Finally, it might cause some rethinking in the administration about the wisdom of branding all registered lobbyists as inherently unethical.

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Who is the House Ethics Committee Actually Investigating?

The Hill reported yesterday that “[t]he House Ethics Committee has launched a formal investigation of sexual harassment allegations against Rep. Eric Massa (D-N.Y.)”  

One can understand how the Hill reached this conclusion.  The resolution adopted by the House Ethics Committee states that the Chair and Ranking Member “have been jointly engaged in an investigation concerning alleged or actual misconduct on the part of former Representative Eric Massa including actions that were offensive, inappropriate, created a hostile work environment, or were otherwise in violation of laws, rules, regulations or other standards of conduct.”  It goes on to note that “the conduct of a current or former Member, officer, or employee of the House . . . may have violated one or more laws, rules, regulations, or other standards of conduct . . . .”  (emphasis added).  This certainly sounds as if the Committee is investigating Massa and the sexual harassment allegations against him. 

The problem is that Massa resigned in March, and the Committee has consistently taken the position that it loses jurisdiction over a Member once he or she resigns.  See, e.g.,  Statement of the Committee on Standards of Official Conduct in the Matter of Representative Vito Fossella (Dec. 19, 2008) (“Representative Fossella did not seek re-election, and the Committee will lose jurisdiction over him when his term expires on January 3, 2009.”); Investigation of Allegations Related to Improper Conduct Involving Members and Current or Former House Pages 78 (Dec. 8, 2006) (“Rep. Kolbe is retiring from the House at the end of his term, and will no longer be within the Committee’s jurisdiction after his retirement.”);   Investigation of Certain Allegations Related to Voting on the Medicare Prescription Drug Improvement and Modernization Act of 2003 57 n. 158 (Sept. 30, 2004) (“Due to Representative Smith’s retirement, the Committee will lose jurisdiction over Representative Smith at the end of this Congress.”). 

Moreover, the language quoted from the resolution above was all contained in the “Whereas” clauses.  When one gets to the “Resolved” Clauses, which actually establish the Investigative Subcommittee, there is no language conferring jurisdiction on the subcommittee to investigate former Members, officers or employees.  The resolution states simply that the subcommittee is established “with jurisdiction to conduct a full and complete inquiry into whether the conduct of any Member, officer, or employee violated any law, rule, regulation or other standard of conduct applicable to the performance of their duties with respect to the allegations of misconduct recited above.”  Given the resolution’s previous express reference to “former” Members and the Committee’s historical position with regard to its jurisdiction, it seems unlikely that this language was intended to confer jurisdiction over Massa himself. 

Thus, despite the (perhaps intentional) ambiguity of the Committee’s resolution, it is probably not conducting an investigation of Massa or his alleged misconduct, except to the extent that such misconduct is relevant to any violations by the real targets of the investigation—those hapless individuals who may be found, as in the Mark Foley investigation, to have been insufficiently vigorous in reporting or otherwise acting on their knowledge of the former congressman’s misconduct.

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What’s Good for the United Nations . . .

           In perusing the Office of Government Ethics report on Executive Order 13490 (the “Ethics Pledge”), I was struck by one waiver that the administration has granted.  Under Section 2 of the E.O., all covered appointees are prohibited from participating in certain matters related to their former employers or clients.  In the case of Stephen J. Rapp, appointed by President Obama as Ambassador at Large for War Crimes Issues, this turns out to be a problem.  Ambassador Rapp’s previous employment was with the United Nations, where he had been appointed by the Secretary General to serve as independent prosecutor for the Special Court for Sierra Leone, a tribunal set up to address war crimes in that country. 

            As explained in a September 8, 2009 memorandum from the State Department’s designated ethics official, Rapp’s ambassadorial duties would involve participation in many matters prohibited by Section 2.  He is expected to be in “constant contact with United Nations and Sierra Leone Court officials at all levels regarding particular matters [such as] communications with respect to operations of the Sierra Leone Court and other United Nations-affiliated courts; oversight of those institutions on behalf of the United States Government on such matters as appointment of judges, prosecutors, and other senior officials and on personnel and budgetary matters; information sharing; cooperation of member-states; arrests of fugitives; ongoing cases for violation of International Humanitarian Law; disposition of prisoners; U.S. diplomatic efforts on behalf of the tribunals; and other issues related to U.S. support for the courts.”  Accordingly, application of Section 2 would prevent Rapp from adequately performing his duties as Ambassador at Large. 

            To solve this problem, the State Department granted Rapp a waiver from the strictures of Section 2, allowing him to participate in matters related to the United Nations and the Sierra Leone Court.  The designated agency official explained: 

It is my determination that the literal application of the restriction in this situation would be inconsistent with the purposes of the restriction.  Because the United Nations is an international organization consisting of many countries, including the United States, and the Sierra Leone Court is a tribunal tasked with creating a forum for the trial of violations of international humanitarian law, the interests of these organizations are generally consistent with the interests of the United States.  The United States provides significant funding to both the United Nations and the Sierra Leone Court and is the largest single contributor to both.  Also, because neither organization is organized for the purpose of generating a monetary profit, there is no concern that you would take official action motivated to increase the revenues of either of these organizations.  I therefore believe that as Ambassador at Large for War Crimes Issues, you will not leave the public with the appearance that your actions are influenced by the interests of your former employers, rather than by the interests of the United States. 

            There are at least two fundamental problems with this reasoning.  First, if one accepts the asserted premise, namely that the interests of the United States and the United Nations are “generally consistent,” the conclusion would be that the United Nations should not be considered a “former employer” within the meaning of the Executive Order.  However, the Executive Order excludes only entities of “the Federal Government, State or local government, the District of Columbia, Native American tribe, or any United States territory or possession.”  It noticeably does not exclude international organizations, foreign governments or nonprofits.  It is presumably not within the purview of the designated ethics officer to substitute his determination about what former employers present a conflict issue for that of the Executive Order. 

            Second, the notion that the interests of the United States are more “generally consistent” with those of the United Nations than with the interests of the typical former employer is ludicrous.  It is true that the United States is a member of the United Nations, but so are Iran, Venezuela, Cuba, Libya, and North Korea, just to name a few countries whose interests have been known to diverge from ours.  Even our closest allies have potential conflicts of interest which in some respects may be more serious than those of any domestic U.S. employer.  (This is why, for example, lobbyists for Canada still have to register under the Foreign Agents Registration Act and British citizens are prohibited from contributing to U.S. political campaigns).  Needless to say, there have been numerous historical examples of conflicts between the United States and the United Nations, including on issues relating to war crimes and the International Criminal Court. 

            During his 1953 confirmation hearing for Secretary of Defense, the then-President of General Motors was quoted (not quite accurately) as saying “what’s good for General Motors is good for the country.”   Surely the statement that “what’s good for the United Nations is good for the country” is no more defensible.