Author: Michael Stern

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A Response to “Congress’s Torture Bubble”

          Vicki Divoll, former counsel to the CIA’s Counterterrorist Center and the Senate Select Committee on Intelligence, wrote an op-ed for the New York Times this week entitled “Congress’s Torture Bubble,” in which she discusses limitations on the interrogation briefings provided to Congress from September 2002 onward.  Although Divoll covers many of the legal issues addressed in my post earlier in the week, she presents the information in a way that is likely to confuse and mislead her readers. 

             Divoll’s main thesis seems to be that even if the “Gang of Four” (the Chairs and Ranking Members of the congressional intelligence committees) had objected to the interrogation program, “as a practical matter, there was very little, if anything, [they] could have done to affect the Bush administration’s decision on the enhanced interrogation techniques program.”  Her support for this thesis includes statements of the blindingly obvious (individual Members of Congress do not have the power to enact laws on their own) and descriptions of political reality (it was highly unlikely that there would have been political support in Congress for enacting legislation to stop the program).  But the thesis is predicated on the unstated, and unsupported, assumption that the only way Members of Congress could have ended, or even affected, the interrogation program was by passing a new law.  This is debatable, given the fact that the Bush administration ultimately ended the program without any new legislation requiring it to do so. 

            More important, however, is that Divoll’s thesis has nothing to do with her area of presumed expertise, namely the laws and regulations governing intelligence briefings to Congress.  The assumption of congressional impotence also camouflages the fact that she fails to adequately address the most important legal issue, i.e., the limits of what the “Gang of Four” were permitted to do with the information they received. 

             Divoll states that “[i]t is unlawful for the executive branch to limit notification, as it did here, to the Gang of Four.”  This assertion is based on 50 U.S.C. § 413b (c) (2), which, as noted in my earlier post, provides: “If the President determines that it is essential to limit access to [a covert action] finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.”   

            The permissive phrasing of this provision makes it difficult to say with certainty whether the President is required, as Divoll contends, to report covert actions to (at least) the “Gang of Eight,” rather than the Gang of Four.  Divoll’s reading of the provision seems reasonable.  However, the provision only applies to notifications about covert actions and, as Divoll acknowledges, the interrogation briefings may not have involved covert actions at all. 

            One should note here the peculiarity that Divoll herself is unsure whether the interrogation briefings were conducted pursuant to the statutory provision.  At the time of the first briefings, Divoll was counsel to SSCI.  One would think that, at a minimum, she would have insisted that the executive branch (a) identify the authority under which it was conducting any restricted briefings, and, (b) if proceeding under the statutory provision, brief the full Gang of Eight.  To the extent there is uncertainty about the authority underlying the briefings, Divoll is as much to blame as anyone. 

            In any event, as I argued in my prior post, it is most likely that the interrogation briefings were not conducted pursuant to the statutory provision, but pursuant to an informal practice that has developed over many years, in which the executive branch briefs only the Gang of Four about sensitive intelligence matters that do not involve covert actions.  Divoll acknowledges the practice, and the fact that it began before the Bush administration, but still asserts that “every member of the two committees should have been notified” about the interrogation programs. 

            But what does she mean by this?  Does she mean that the practice of restricted briefings is bad policy or actually illegal?  Did she object to this practice either when she advised the briefers (CTC) or the briefees (SSCI), and, if so, on what basis?  If the executive branch has been violating the law when it provided restricted briefings, haven’t the congressional intelligence committees been violating the law when they accepted them?   Divoll answers none of these questions. 

            A better view of the law, it seems to me, is that while the executive branch and congressional intelligence committees are free to agree to restricted briefings, there is no legal prohibition against the Chair and the Ranking Member sharing the information with other members of the committee.  Furthermore, as argued in my prior post, the rules of the House and the House Intelligence Committee at least allow, and under some circumstances may compel, such information sharing. 

            Divoll acknowledges that the Gang of Four could have shared the interrogation briefings with other members of the committees.  However, she presents this in passing, as if it is of no moment, and fails to explain why the Gang of Four would not have taken this step if they had objected to the interrogation program.  Instead, she leaves the impression that such action would be as radical as disclosing the information in open session on the floor, although the latter would be clear violation of congressional rules.  And while Divoll is correct that the Speech or Debate Clause would protect the Gang of Four from civil or criminal liability for things said on the floor of the House or Senate (or in committee), it would not protect them from punishment by Congress. 

            In short, Divoll’s op-ed, while it might mislead readers to believe that the Gang of Four had no viable options for responding to the interrogation briefings, does not in fact make such a case.  As discussed in my prior post, viable options did exist.  Whether these would have been successful in changing the interrogation program is, of course, a matter of speculation.  But the same could be said whenever a Member of Congress sets out to stop or change an executive branch policy.

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Restricted Intelligence Briefings and the Intelligence Authorization Act of 2009

          My attention has been called to Section 502 of the Intelligence Authorization Act of 2009 (H.R. 5959), which passed the House last year (but never became law).  This provision would have amended the National Security Act of 1947 to provide a procedure governing situations where the President decides to disclose certain highly sensitive intelligence information only to the Chair and Ranking Member of the congressional intelligence committees. 

            Under this provision, intelligence information (other than information on covert action, which, as noted in my last post, is already covered by statute) would have to be shared with all members of the intelligence committees “unless the President requests that access to the information or material be limited after determining that limiting such access is essential to meet extraordinary circumstances affecting vital interests of the United States.”  The request and the extraordinary circumstances justifying it would have to be detailed in writing to the Chair and Ranking Member.  

            Even when such a request was made, it would not be automatically binding on the committees.  Instead, it would be up to the Chair and Ranking Member of each committee to “jointly determine whether and how to limit access to the information or material.”  If they were unable to agree, however, the default position would be to limit access in accordance with the President’s request.  Finally, “any information or material to which access is limited shall subsequently be made available to each member of the congressional intelligence committees at the earliest possible time and shall include a detailed statement of the reasons for not providing prior access.”    

            Of course, the fact of an unenacted statutory amendment does not prove what the current state of the law is, but it tends to confirm my view that Congress has not given and would not give the executive branch ultimate control over what Members can do with intelligence information that has been shared with them.  Instead, the final decision must rest with each House of Congress, acting pursuant to its own rulemaking powers.  Indeed, even if the statutory provision were passed, it would still be within the constitutional power of each House to change its own procedure by resolution of the body.  

            My understanding is that Section 502 had bipartisan support.  Perhaps there will be another effort to enact this worthwhile clarification of the law. 

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What the Presence of Congressional Staff Tells Us About the Interrogation Briefings

            Documents released by the CIA in the past few days indicate that congressional staff attended the key briefings given Congress with regard to “enhanced interrogation techniques” used on terrorist detainees.  In particular, a September 4, 2002 briefing to Porter Goss and Nancy Pelosi, then the Chairman and Ranking Member of the House Permanent Select Committee on Intelligence, was attended by Tim Sample and Michael Sheehy, and a February 5, 2003 briefing to Goss and Jane Harman (who had then replaced Pelosi as HPSCI Ranking Member), was attended by Patrick Murray, “Louise” Healey (referring, I assume, to Christine Healey, whose real first name is apparently classified), and Sheehy. 

            This is interesting for several reasons.  First, the fact that congressional staff participated in the briefings may tell us something about the legal authority under which the briefings were conducted.  There is only one legal provision which explicitly authorizes intelligence briefings limited to the Chairman and Ranking Member of the House and Senate Intelligence Committees.  This provision, which governs covert action findings, states: “If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.”  50 U.S.C. § 413b (c) (2). 

            If the Bush Administration had been relying on this provision, it seems unlikely that it would have permitted staff to attend the briefings.  After all, the statute specifically identifies the persons to whom the President may choose to report the finding, and all of them are members of the House and Senate.  It would seem difficult for the administration to have justified excluding congressional leadership, which is specifically mentioned in the statute, while at the same time including HPSCI staff, which is not.

            It seems more likely, therefore, that the briefings were conducted pursuant to an informal practice that has developed over a number of years.  This practice was described by L. Britt Snider in a 1997 article entitled “Sharing Secrets with Lawmakers:  Congress as a User of Intelligence:  “Occasionally, even in the intelligence committees, an analytical judgment or conclusion will be based on very sensitive information that analysts feel uncomfortable imparting to a large audience. Agencies typically deal with such situations by briefing the chairman and the ranking minority member separately, or perhaps the majority and minority staff directors acting in their stead. When the full committee is subsequently briefed, the analyst usually states that certain extremely sensitive information has been conveyed separately to the chairman and the ranking minority member.”

            Since that time, it appears that the practice of limiting briefings to the Chairman and Ranking Member (or their staff representatives) has become broader and more routine.  According to a January 2009 CRS Report, the executive branch now generally limits briefings on “operational intelligence” in this fashion, despite the absence of any statutory authority to do so.

            The fact that the executive branch without statutory authority limits who may attend briefings, however, cannot in itself impose any restriction on what may be done with the information received in those briefings.  (This also may be true, but less obviously so, for limited briefings authorized by statute).  I presume that the executive branch would claim there is at least an informal understanding that the information provided in limited briefings will not be shared with other members of the intelligence committees; perhaps there are even written protocols to that effect.  But while such agreements might be “enforced” by the executive branch cutting off future briefings, they would not seem to be legally binding or enforceable in any sense.

            Furthermore, it might be difficult to square any such non-disclosure agreement with the rules that govern HPSCI.  Nothing in either the House or committee rules explicitly authorizes, much less requires, the Chairman or Ranking Member to keep information secret from other members of HPSCI.  On the contrary, HPSCI Rule 14(b) provides that “[a]ll Members of the Committee shall at all times have access to all classified papers and other material received by the Committee from any source.”    In addition, House Rule X (11) (g) authorizes HPSCI to “disclose publicly any information in its possession after a determination by the select committee that the public interest would be served by such disclosure.”  If the Chairman and Ranking Member could not disclose information to other members, there would be no way for the committee to make this determination.

            It seems likely, therefore, that Goss, Pelosi and Harman were legally entitled (a) to disclose information received in the restricted EIT briefings to other members of HPSCI and/or (b) to introduce a HPSCI resolution authorizing the disclosure of the information to other members for purposes of making a finding under House Rule X (11) (g).  Of course, they might not have been aware of their legal rights in this regard if they had been dependent solely on the executive branch for advice and assistance.  But because they had staff to advise them, they had the opportunity to learn their rights if they were so inclined.

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Hill Report on the Renzi Case

           The Hill reports that the judge (presumably referring to Magistrate Velasco) in the Renzi case has scheduled a special hearing to determine whether prosecutors improperly listened to privileged attorney-client communications captured during the wiretap of Renzi’s cell phone.  As the article notes, this is a separate matter from the Speech or Debate issues regarding the wiretap. 

            This matter does not seem to involve any legal or factual issues peculiar to congressional defendants and so it is not one that I have been particularly following.  It is worth noting, however, that The Hill article suggests that this incident, combined with the prosecutorial misconduct in the Stevens case, may reflect a pattern of abuse in the Justice Department’s investigations of Members of Congress.  A bit of a stretch, IMHO, but there you have it.    

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A Strange Analogy

           As I have discussed before, the Obama Administration has imposed, by executive order, certain rules that apply only to lobbyists registered under the Lobbying Disclosure Act.  One of these rules prohibits executive branch officials from meeting with lobbyists regarding specific projects funded by the stimulus bill.   

            The principal author of these policies is apparently Norm Eisen, who serves as the special counsel to the president for ethics and government reform.  Mr. Eisen met last week with representatives of three groups which oppose the stimulus lobbying rule, Citizens for Responsibility and Ethics in Washington (CREW), the American Civil Liberties Union (ACLU) and the American League of Lobbyists (ALL).  He posted a description of this meeting on the White House blog (hat tip: Paul Blumenthal of the Sunlight Foundation). 

            There is not much substance to Eisen’s description of the meeting.  What caught my eye, though, was his explanation of why he had agreed to the meeting in the first place:  “As the President has noted, one of the hallmarks of being tough is that you not only talk to the people you agree with—you talk to the ones you disagree with.” 

            Unless I am missing something, Eisen appears to be analogizing his willingness to meet with CREW, the ACLU and ALL to the President’s willingness to meet and have dialogue with the leaders of unfriendly regimes like Iran, Venezuela, and Cuba.  This seems like a strange analogy to begin with; one would think that the administration has an obligation to listen to American citizens aggrieved by government policy that is quite different from the considerations which govern whether to conduct discussions or negotiations with foreign governments, hostile or otherwise. 

            Leaving that aside, though, the whole point of the executive order on stimulus lobbying is to forbid executive officials from meeting with registered lobbyists to discuss certain subjects.  Admittedly, the order doesn’t distinguish between lobbyists who “agree” or “disagree” with the administration, but it is premised on the notion that the very act of meeting with or talking to lobbyists creates either the appearance or the reality of impropriety.  It seems odd that an administration so proudly unafraid of meeting with representatives of hostile foreign powers is scared of meeting with a lobbyist for Topeka, Kansas. 

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Renzi District Court: Speech or Debate Clause Does not Create “Super Citizens”

           In an order issued earlier this month, U.S. District Judge David Bury of the U.S. District Court of Arizona rejected some of the key Speech or Debate claims made by former Congressman Rick Renzi.  This ruling means that Renzi will almost certainly be unsuccessful, at the district court level, in his attempts to suppress evidence from wiretaps of his cell phone.  Renzi has already signaled his intention to appeal this ruling to the Ninth Circuit. 

            The key to Judge Bury’s decision was his view that the Speech or Debate privilege is one of non-use, not non-disclosure. The court disagreed with the D.C. Circuit’s opinion in United States v. Rayburn House Office Building, 497 F.3d 654 (D.C. Cir. 2007), which held that the Justice Department violated the Speech or Debate privilege when it executed a search warrant on a congressional office without first allowing the Congressman an opportunity to protect legislative materials from seizure. 

            Judge Bury described Rayburn as “an example of hard cases making bad law.”  Carried to its “logical conclusion,” Rayburn “would require advance notice of any search of a Congressman’s property, including property outside his congressional office, such as his home or car, and that he be allowed to remove any material he deems to be covered by the legislative privilege prior to a search.  If mere exposure by the Executive Branch violates the privilege agents could not conduct voluntary interviews of congressional staffers, who wish to expose criminal acts involving legislative activities or conduct surveillance of a Member or staffer who might discuss legislative matters with another Member or staffer.”  (emphasis added).  Such results would be contrary to the purpose of the Speech or Debate Clause, which was designed “not to create super-citizens, immune from criminal responsibility and susceptible to corruption.” 

            Although Bury’s ruling directly applies only one of Renzi’s six pending Speech or Debate motions, his reasoning seems to require rejection of two of the other motions, which are also based on a “non-disclosure” theory (these motions request suppression of evidence obtained by wiretap, search warrant and consensual interview of staff).  However, the ruling will not necessarily affect Renzi’s remaining motions, which seek dismissal of the case based on alleged use of privileged information before the grand jury or in the indictment itself. 

            Renzi has asked for reconsideration of the ruling or, in the alternative, that it be held in abeyance until resolution of the other Speech or Debate motions.  Renzi suggests that however the Speech or Debate motions are resolved, there is likely to be a pre-trial appeal by either the prosecution or the defense (or both), and argues that all of the Speech or Debate issues should be consolidated into a single appeal in order to conserve judicial resources. 

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More on Bybee Impeachment

           The National Law Journal has an interview today with Professor Michael Gerhardt, author of The Federal Impeachment Process, regarding the possibility of an impeachment of Judge Jay Bybee.  Gerhardt’s responses are appropriately tentative, given the uncharted territory involved: 

NLJ: May a judge be impeached for conduct committed before becoming a judge?

MG: You have to judge every case on its own facts. The question we have to look at is to what extent this might fit into our understanding of the impeachment process. With President Clinton, one part involved his alleged misconduct related to something he had done before he came into the presidency and another charge was lying under oath about conduct while he was president. The questions can get pretty complicated.

I think it’s actually a significant question in constitutional law — the extent to which someone may be held accountable for something they did before they got into the office they now hold. John Quincy Adams declared when he was in the House that he thought he could still be held accountable for things he had done as president.

*          *          *

I think that language in the Constitution could be read credibly here to support an inquiry into Judge Byee’s conduct or judgment while he was in the Justice Department. There may be enough support in original meaning or historical practice to suggest the House has legitimate authority to inquire at least into whether it has authority to impeach somebody under circumstances like this.

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Could Congress Impeach Judge Bybee?

           Sunday’s New York Times editorializes that Congress should impeach Judge Jay Bybee, who now sits on the U.S. Court of Appeals for the Ninth Circuit, for actions he took in his former position as head of the Office of Legal Counsel.  Specifically, the Times argues that OLC memos authored by Bybee and others regarding prisoner interrogations were “not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.” Accordingly, it concludes that Bybee is “unfit for a job that requires legal judgment and a respect for the Constitution.” 

            It is not my intention here to rehash the arguments regarding the quality of OLC’s work.  Assuming that the OLC memos were as poorly reasoned and result-oriented as critics maintain, it is by no means obvious that these memos would constitute impeachable offenses.  One might reasonably conclude that the offenses charged by the Times are not “high crimes and misdemeanors” within the meaning of Article II, section 4 of the Constitution, but merely “maladministration” that is beyond the scope of that provision.   

            For present purposes, however, I will assume that Bybee’s role in authoring or approving various OLC memos falls within the outer limit of what Congress could reasonably find to be an impeachable offense.  This assumption leads us to questions of first impression. 

            Bybee did not commit the alleged misconduct while a federal judge.  There is no allegation that he has in any way misused his judicial power or acted improperly in his judicial capacity.  It is true that Bybee is charged with misusing his official position, but it was an entirely different official position, in a different branch of government, than the one he has now.  There is no precedent for impeaching an official based on misconduct committed in another position.

           

            In fact, as Professor Michael Gerhardt has noted: “As a general matter, it is noteworthy that no one has ever been impeached, much less removed from office, for something he or she did prior to assuming an impeachable position in the federal government.”  Gerhardt, The Federal Impeachment Process 108 (1996).  Gerhardt nonetheless argues that there are circumstances in which impeachment based on pre-appointment misconduct is appropriate.  He notes that “[p]articularly in cases in which an elected or confirmed official has lied or committed a serious act of wrongdoing to get into their present position, the misconduct that was committed prior to entering office clearly bears on the integrity of the way in which the present officeholder entered office and the integrity of that official to remain in office.”  Id. 108-09.   

            If there is evidence that Bybee lied during his judicial confirmation hearings regarding the OLC interrogation memos, one might have a plausible case for impeaching him as a federal judge.  (Indeed, such deception would make a stronger case for impeachment than the underlying misconduct).  But in the absence of such evidence, this would seem a weak case for impeachment based on pre-appointment misconduct.  The underlying misconduct is at best a borderline impeachable offense.  Moreover, the job of a federal judge is quite different than that of the OLC.  Some argue that OLC should perform a quasi-judicial function within the executive branch, but this is hardly a universal understanding of its role.  Even if one believes that Bybee misconstrued the proper function of OLC, this hardly proves that he is unwilling or unable to faithfully perform his judicial role.  

            But wait.  It is true that Bybee didn’t commit the (allegedly) impeachable offense as a federal judge, but he was in a Senate-confirmed position at the time.  And the head of OLC is, like other civil officers of the United States, subject to impeachment.  Perhaps the question shouldn’t be whether Bybee can be impeached as a judge, but whether he can be impeached as the former Assistant Attorney General for the Office of Legal Counsel.  Can he? 

             Although it is often assumed that impeachment will not lie once an official leaves his or her office, this is in fact far from settled.  In fact, the House has previously determined that “resignation of the office does not prevent impeachment for crime or misdemeanor therein.”   House Manual § 174 (108th Cong.) (Parliamentarian’s Note).  Although the Senate has not convicted on the two occasions where the House impeached a former official (Blount and Belknap), these precedents do not stand for the proposition that the Congress lacks jurisdiction in such cases.  As Gerhardt observes, “there is a surprising consensus among commentators that resignation does not necessarily preclude impeachment and disqualification.”  Gerhardt, supra, at 79. 

            In short, it appears likely that Congress does have the power to impeach Bybee for actions he took in his role as the head of OLC.  Although it is seldom worth Congress’s while to conduct an impeachment trial for a former official, this is a matter of prudence, not constitutional power. 

            Suppose, however, Bybee were to be impeached and convicted for these matters.  Would this result in his removal as a federal judge?   This is another matter of first impression.  One could argue that the Constitution requires that any official convicted of a high crime or misdemeanor be removed from office.   Alternatively, one could argue that removal is required only if the Senate imposes the punishment of disqualification to hold and enjoy any federal office.  Conceivably, one could argue that Bybee could not be removed from his judgeship at all, since the impeachment would relate solely to his prior office and his disqualification would relate solely to future offices. 

            It seems unlikely that Congress will take up the Times’s invitation to impeach Judge Bybee.  But should it do so, plenty of thorny constitutional issues await.  

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Why It is Pointless to Sue a Member of Congress for Defamation

        The D.C. Circuit just threw out the defamation suit filed by U.S. Marine Sergeant Frank Wuterich against Congressman John Murtha.  Wuterich alleged that Murtha, in a series of interviews with the media, made false and defamatory comments regarding the conduct of the squad led by Wuterich in Haditha, Iraq, in 2005.  Specifically, Murtha, according to the complaint, suggested that Wuterich and his squad were responsible for the “cold-blooded massacre” of Iraqi civilians.  

            Those familiar with a Supreme Court case called Hutchinson v. Proxmire, 442 U.S. 111 (1979), might assume that Wuterich would be entitled to his day in court.  In Hutchinson, the Court considered whether Senator Proxmire enjoyed constitutional immunity from a tort action brought by a research scientist who alleged that Proxmire had injured his reputation by disparaging, through a speech and press release, the scientist’s federally-funded research (into certain animal behaviors) as a waste of taxpayer money.

            The Court concluded that the Speech or Debate Clause did not protect Proxmire from the lawsuit.  The protections of the Clause are limited to “legislative activities,” and the Court found that “[w]hatever imprecision there may be in the term ‘legislative activities,’ it is clear that nothing in history or in the explicit language of the Clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber.”   In reaching this conclusion, the Court relied heavily on the fact that Members of the British Parliament, at the time the Constitution was drafted, were privileged for remarks made in Parliament, but not for the republication of those same remarks elsewhere.

            The Court also quoted the following from Justice Story’s Commentaries on the Constitution:  “No man ought to have a right to defame others under the colour of a performance of the duties of his office.  And if he does so in the actual discharge of his duties in congress, that furnishes no reason why he should be enabled, through the medium of the press, to destroy the reputation, and invade the repose of other citizens.  It is neither within the scope of his duty nor in furtherance of public rights or public policy.  Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory imputations, as a member of congress has to utter them in his seat.” 

            After Hutchinson, a Member of Congress was entitled to immunity for statements made “in his seat,” i.e., on the floor or in committee proceedings, but was liable as other citizens for defamatory remarks in the press or elsewhere outside of the legislative body.  This state of affairs changed, however, in 1989 when Congress passed the Westfall Act, which among other things extended existing tort protection for executive branch officials to “officers and employees” of the “the judicial and legislative branches.” 

           As a result of this legislative change (apparently made without much notice or discussion), Members of Congress were made immune from liability for torts committed within the scope of their office or employment.  The key question becomes whether an alleged tort was within the scope.  The initial decision on this question is made by the Attorney General (which presents some interesting separation of powers questions).  The Attorney General’s certification that the Member was acting within the scope constitutes prima facie, but not conclusive, evidence in a judicial proceeding.  If the court finds in accordance with the certification, the Member is dismissed as a defendant and the United States is substituted.  For defamation and similar torts, this is fatal to the plaintiff’s case because such torts cannot be prosecuted against the United States. 

            One might think, per Justice Story, that a Member of Congress is not acting within the scope of his or her office when making “false charges” or “defamatory imputations” to the press.  The courts, however, have found otherwise, finding that a Member’s communications with the press are generally within the scope of employment.  See, e.g. Operation Rescue Nat’l v. United States, 147 F.3d 68 (1st Cir. 1998) (Senator’s  remarks to a group of reporters following a campaign fundraiser); Williams v. United States, 71 F.3d 502 (5th Cir. 1995) (Representative’s interview on a local television station); Chapman v. Rahall, 399 F.Supp.2d 711 (W.D. Va. 2005) (same). 

            It is very difficult to define the outer boundaries of the “job” of a Member of Congress.  Almost anything the Member does may have an impact on his relationship with his constituents.  Even matters which are indisputably personal, if they become a matter of media inquiry, can impact the Member’s image and thus affect his ability to effectively represent his constituents.  This, at least, was the reasoning of Council on Am Islamic Relations v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006), where the court stated: “A Member’s ability to do his job as a legislator effectively is tied, as in this case, to the Member’s relationship with the public and in particular his constituents in the Congress.  In other words, there was a clear nexus between the congressman answering a reporter’s question about the congressman’s personal life and the congressman’s ability to carry out his representative responsibilities effectively.” 

            Given this precedent, there was never a realistic possibility that Wuterich would be able to maintain his lawsuit against Murtha.  Although the public may be surprised to learn that Members of Congress have, in effect, a license to defame private individuals, such is the current state of the law.  There are, moreover, good reasons why.  If Members of Congress feared constant lawsuits from individuals whom they criticized, there would be a significant chilling effect on their communications with constituents and the general public. 

            On the other hand, there ought to be some mechanism by which individuals who have truly been defamed can obtain a measure of redress and restore their reputations.  The House, for example, should allow plaintiffs who are unable to pursue defamation lawsuits against Members of Congress because of the operation of federal tort immunity to file complaints with the Office of Congressional Ethics.  This would be an appropriate forum for the plaintiff to prove the falsity of alleged defamatory statements and to obtain redress for the reputational injury. 

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What Holder Did on DC Voting Rights

          In February I wrote to suggest that the DC Voting Rights Act poses a significant challenge to the view expressed by many regarding the need to “de-politicize” the Justice Department and the Office of Legal Counsel in particular.  The reason is that this view squarely conflicts with the political imperative of supporting the Act, which is, to put it mildly, of dubious constitutionality. 

            Today’s Washington Post reveals that Attorney General Holder consulted with OLC regarding the DC Voting Rights Act and, to my pleasant surprise, OLC adhered to its previously expressed view that the Act is indeed unconstitutional.  More unpleasantly but less surprisingly, Holder then proceeded to get an answer that he liked better:   

“In deciding that the measure is unconstitutional, lawyers in the department’s Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.

Holder rejected the advice and sought the opinion of the solicitor general’s office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.”

Here it should be noted that there is a big difference between asking whether a law is constitutional and asking whether the Solicitor General’s office can defend it. The longstanding position of the Justice Department and the SG’s office is that “[t]he Department 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.”  Letter of Attorney General William French Smith to the Honorable Strom Thurmond and the Honorable Joseph R. Biden, Jr., 5 O.L.C. 25 (Apr. 6, 1981).  Unless the statute infringes on executive power (which is not an issue regarding the DC Voting Rights Act), the “Department has the duty to defend an act of Congress whenever a reasonable argument can be made in its support, even if the Attorney General and the lawyers examining the case conclude that the argument may ultimately be unsuccessful in the courts.”  Id.

            Whether or not the DC Voting Rights Act meets this deferential standard, this is not the standard that applies (or should apply) when the Justice Department is asked for its actual opinion on the constitutionality of proposed legislation.  This made clear by the “Principles to Guide the Office of Legal Counsel” issued in 2004 by a number of former OLC lawyers, including Dawn Johnsen, President Obama’s nominee to head OLC.  The first principle states: 

           

When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.  

By rejecting OLC’s advice, Holder is clearly signaling that the Obama Administration is no more interested in getting legal opinions inconsistent with its policy preferences than was the Bush Administration.  Indeed, his actions compare unfavorably with those of former Attorney General Ashcroft, who famously refused to overrule OLC and other Justice Department lawyers on the issue of warrantless wiretapping, despite intense pressure from the White House to do so. 

As for those who believed that the Obama Justice Department would base its decisions on “the rule of law” rather than politics, today’s news provides the following clarification:  April Fool!