Author: Michael Stern

Posted on

People Who Live in Glass Houses (Revised)

         

          A federal judge has ruled that the Library of Congress violated Title VII when it refused to hire a prospective employee who was a male-to-female transsexual.  Specifically, the plaintiff, who applied for a position with the Congressional Research Service (part of the LOC) while having the appearance and dress of a man, was made a job offer prior to CRS learning of the plaintiff’s intent to undergo surgery for “transitioning from male to female.”  The job offer was then withdrawn.  Judge Robertson ruled that by taking this action in response to the prospective employee’s “decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII’s prohibition on sex discrimination.” 

            The LOC, of course, is a legislative branch entity and falls under the jurisdiction of the Committee on House Administration.  The chairman of that committee, Robert Brady, has issued a statement which reads in part that “I applaud the Court’s decision, which should serve as a wake-up call to organizations that fail to include gender identity in their employee non-discrimination policies.” 

            It turns out, though, that one of those organizations is the U.S. House of Representatives.  Specifically, the Committee on House Administration, which has jurisdiction over employment of persons by the House, publishes a Model Employee Handbook which contains no mention of gender identity. 

After reviewing his own website, Chairman Brady might want to check the Rules of the House, which provide that a member, officer or employee of the House “may not discharge and may not refuse to hire an individual, or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the race, color, religion, sex (including marital or parental status), disability, age, or national origin of such individual, but may take into consideration the domicile or political affiliation of such individual.”

Note that the language relating to sex specifically includes marital or parental status, but says nothing about gender identity. This omission was most definitely not unintentional, as the House was well aware, at the time that it adopted its rules in January 2007, that neither sexual orientation nor gender identity have generally been considered to be included under the federal employment laws. In fact, the House was aware of this specific dispute regarding the LOC. Surely, then, the House’s failure to include gender identity (or sexual orientation) in its rules was far from inadvertent.

Indeed, as noted in Judge Robertson’s opinion, a bill that would have banned employment discrimination on the basis of both sexual orientation and gender identity (H.R. 2015) was introduced in the House during this very Congress. However, Representative Barney Frank, the principal sponsor of the bill, withdrew the gender identity provisions on the grounds that they were too controversial to pass the House. The revised version of the bill, entitled the Employment Non-discrimination Act of 2007 (H.R. 3685), banning discrimination on grounds of sexual orientation only, passed the House but has not been enacted into law.

If Chairman Brady thinks it important for organizations to include gender identity in their employment discrimination policies, perhaps he should start with his own organization. He should not impose new employment discrimination laws on the LOC that the House refuses to adopt for itself.

Posted on

D.C. Circuit Considers a Stay in the Miers Case

           I attended yesterday’s D.C. Circuit argument on the Justice Department’s stay application in the Miers case.  The panel consisted of Judges Randolph, Ginsburg and Tatel.  A few takeaways: 

            Despite having asked the parties to brief appellate jurisdiction, the court didn’t seem interested in that subject.  The sense I got was that the judges are satisfied that they have jurisdiction over at least some part of the case. 

            It seemed as if the judges were interested in granting a stay, but it was not clear why.  The judges did not give much indication of disagreement with the rulings of the court below.  Judge Randolph made a point of noting, in response to House Counsel’s assertion that the Justice Department’s position on absolute immunity was “bogus” and “frivolous,” that this was the position of every administration since the Nixon Administration.  However, while the panel may believe that absolute immunity is a question of first impression, I did not detect any indication that the judges disagreed with how Judge Bates resolved that question.  Toward the end of the argument, Judge Tatel asked DOJ attorney Carl Nichols what was his “best case” in support of the absolute immunity position.  Nichols cited Nixon v. Fitzgerald (holding that the President is immune from civil suits) but acknowledged that Harlow v. Fitzgerald (denying the same immunity to presidential aides) “would be difficult for us.”  I am probably biased here (as I don’t think much of the absolute immunity argument myself), but I don’t think the judges found that very convincing.

With regard to the Justice Department’s threshold arguments, standing and cause of action, there was no discussion of the latter and the former did not come up until the very end of the argument, when Judge Randolph pointed out that if the House were to exercise its “self-help” remedy by arresting an executive official for contempt, the court would have to hear the same issues in the form of a habeas petition brought by the detained official. None of the panel seemed to understand why this would be a more appropriate way to resolve the dispute than the declaratory judgment action brought by the House.

(Judge Randolph asked Nichols whether the House had ever arrested an executive official for contempt. Nichols stated that he was not aware of any such case. In fact, at least two executive officials have been arrested for contempt, but in neither case were they asserting executive branch privileges or refusing to testify on the direction of the President.)

Most of the argument focused on the how much harm the House would suffer if a stay were granted. This is a tricky question because, although both parties agreed that the subpoenas here would “expire” at the conclusion of the Congress (i.e., in the first week of January 2009), the parties themselves seemed unsure as to what that would mean for the case. Nichols argued that the case would “likely” be moot at the expiration of the Congress, but suggested that this might depend on several factors that he did not identify. He also argued that the only legitimate purpose for the subpoena was to obtain information in aid of legislation, and that there was no possibility, even if the case were not stayed, that the House would be able to get any useful information and use it for legislative purposes in this Congress. In other words, a stay would not really matter because the clock will run out either way. (For that very reason the Justice Department has previously taken the position that congressional subpoenas expire upon adjournment sine die, another position that it has apparently altered for the purposes of this case.)

House Counsel Irv Nathan acknowledged that the subpoena would expire at the end of the Congress, but suggested that this might not moot the case because it would fall within the mootness exception for cases capable of repetition but evading review. Judge Tatel pointed out, however, that this exception only applies if the case is capable of repetition for the same plaintiff, and is therefore arguably inapplicable because the House Judiciary Committee itself (along with the House as a whole) expires at the end of the Congress.

It is not clear to me that the case should be mooted by the expiration of the Congress. As both parties acknowledged at the argument, the court of appeals in the AT&T case apparently did not view the expiration of the Congress as mooting the controversy before it. Moreover, in the census litigation, the three-judge district court (which included Judge Ginsberg) rejected the Justice Department’s argument that the House lacked standing to assert the injuries of a future Congress. The court gave two reasons for its conclusion (1) it noted that the House is in some respects a continuing institution (such as for owning property) and (2) it found that in any event the House had a “special relationship” with its successors so as to allow it to vindicate the rights of the latter. It seems to me that similar reasoning would allow the 111th Congress to continue to litigate the rights of the 110th.

In the final analysis, I suspect that the D.C. Circuit’s decision here will turn on some fairly practical considerations. I think that the court may be nervous about letting the case go forward in the district court because of the possibility that the court will get further embroiled in this political dispute. On the other hand, the judges (particularly, but not solely, Judge Tatel) were clearly concerned about depriving the House of the opportunity (to which Judge Bates found it was entitled) to get the evidence needed for its investigation.

This suggests the possibility that the court will issue some sort of creative order (not unlike what happened in the AT&T case) designed to resolve the matter without the need for further judicial proceedings. For example, the court might give the parties a limited period of time, say a week, to reach a settlement of the matter. If the White House/Justice Department failed to make a reasonable offer to resolve the dispute, the stay would be lifted. As I have indicated before, I think that the offer of a private (preferably transcribed) interview with Miers would be a reasonable offer, if the White House dropped the condition that the House waive its right to seek additional information from Miers.

Posted on

More on Sunny Isle

Today’s Roll Call discusses Chairman Rangel’s reporting of his Sunny Isle condo transactions.  The article notes “the inconsistent reports are myriad errors, discrepancies and unexplained entries on Rangel’s personal disclosure forms over the past eight years that make it almost impossible to get a clear picture of the Ways and Means chairman’s financial dealings over time.” 

I remain puzzled as to how these discrepancies, which are evident on the face of the disclosure forms, escaped notice by the House Ethics Committee for so many years.

Posted on

DC Circuit to hear argument in Miers Case

The U.S. Court of Appeals for the D.C. Circuit today set oral argument in the White House subpoena case for September 16th at 2:30 p.m. before Circuit Judges Douglas Ginsburg, David Tatel, and Raymond Randolph. The sides each have 15 minutes.

Posted on

Chairman Rangel, Sunny Isles and the Perils of Financial Disclosure

          Representative Charles Rangel, the chairman of the House Ways and Means Committee, has been in hot water for several matters, most recently his ownership of a beach property in the Dominican Republic.  Rangel has acknowledged that he failed to pay taxes on income from the property and failed to properly disclose that income on his annual financial disclosure report (FD).            

            Rangel’s FDs, it should be noted, were filled out by hand, presumably by Rangel himself.  If that is the case, it should hardly be a surprise if there are inaccuracies in the filings.  Filling out an FD is a time-consuming and complicated process, and the rules and guidance are often unclear.  One can imagine that a Member of Congress would not have the time to do a proper job of it.

             A look at Rangel’s FDs illustrates the legal and ethical jeopardy that Members of Congress may face when these reports are scrutinized, particularly in light of the Justice Department’s ongoing prosecution of Senator Ted Stevens for filing false FDs. Rangel’s FDs, like those of other Members of Congress, may be found at opensecrets.org (I accessed them through the CREW website).     

Rather than look at one of the previously scrutinized matters, I focused my attention on Rangel’s ownership of a condominium in Sunny Isles, Florida. This was mentioned in passing in a July 11, 2008 NY Times article by David Kocieniewski, who noted that Rangel “bought a condominium in 2004 in Sunny Isles, Fla. for $50,000 to $100,000 and sold it last year for $100,000 to $250,000.”

The article’s information presumably came from Rangel’s FDs, but a closer look raises a number of questions. Rangel’s FD for 2004 does indeed indicate, in the “Assets and Unearned Income” Section, that the Sunny Isles condominium (located in the Winston Towers 500 building in Sunny Isles) was valued at $50,001 to $100,000 at the end of 2004. However, in the “Transactions” Section, it is indicated that Rangel purchased the condominium on March 4, 2004 for $100,001 to $250,000.

It is possible that Rangel bought the property for slightly more than $100,000 and its value declined to below $100,000 by the end of the year. A far more likely possibility, however, is that Rangel marked the wrong box in one of the sections. My guess is that he paid more than $100,000 for the condo, but this is just a guess.

Another interesting fact is that Rangel’s 2004 and 2005 FDs indicate “rent” as the “type of income” for the Sunny Isles condo, but state “none” as the “amount of income.” If he received no income, one wonders why he put “rent” as the type of income. He did the same thing for several years with respect to the property in the Dominican Republic, where he identified rent as the type of income but (apparently inaccurately) put “none” as the amount. This raises a question as to the accuracy of the Sunny Isle disclosure.

Rangel’s 2006 FD is also puzzling. The “Transactions” Section shows that the Sunny Isles condo was sold for $250,000 to $500,000. The date of the transaction is put as “7-21-07.” This, however, must be wrong since the 2006 FD was filed on June 15, 2007 and, in any event, the 2006 FD is only supposed to disclose transactions that occurred during calendar year 2006. One might assume, therefore, that the transaction occurred on 7-21-06, but again, this is a guess.

If Rangel made a profit on the sale of the condo, he also probably should have disclosed that in the “Assets and Unearned Income” Section of the 2006 FD. I say “probably” because the form requires the disclosure of “capital gains” from the sale of an asset. “Capital gains” is a tax term, and it has never been entirely clear to me what happens if a filer sells an asset, and the profit is not a taxable “capital gain” (eg, if a stock is sold in a 401k).

If all of this is not confusing enough, Rangel’s 2007 FD also discloses, in the “Transactions” Section, the sale of the Sunny Isles condo. This time the date of the sale is left blank. The amount of the sale, however, is stated to be $100,001 to $250,000. Was this an attempt to correct the previous year’s filing? Who knows?

In short, Rangel’s FDs leave a number of questions regarding the Sunny Isles condo. Was it purchased for 50-100k or for 100-250k? Was there rental income or not? Was it sold in 2006 or 2007? Was it sold for 100-250k or 250-500k? Did Rangel make a profit on the sale?

The one thing that seems clear is that Rangel’s FDs were not carefully prepared or reviewed prior to filing. Moreover, the House Ethics Committee either did not review the filings, or failed to notice any of the internal discrepancies related to the Sunny Isles condo.

Posted on

Miers Case on Hold Until Wednesday

          A panel of judges (Ginsburg, Randolph and Tatel) of the D.C. Circuit has granted an “administrative stay” of Judge Bates’s order in the Miers contempt case.  This stay is not the relief that the Executive Branch is asking for, which is a stay pending appeal, but a brief stay while the court considers whether to grant a stay pending appeal.  The stay issued on September 4, the date on which the White House was supposed to turn over non-privileged documents to the Judiciary Committee.  Presumably, it did not do so. 

            The appellate panel ordered the parties to address three questions by next week: (1) whether there is appellate jurisdiction over the appeal; (2) whether the case will become moot on expiration of the 110th Congress; and (3) if the court has jurisdiction and issues a stay pending appeal, what briefing schedule would the parties propose on the merits.  The final brief on this is due the afternoon of September 10; Harriet Miers is scheduled to testify on September 11. 

            I am not sure what to make of this.  You have a panel of two Republican appointees (Ginsburg and Randolph) and one Democratic appointee (Tatel).  Obviously they recognize the importance of this matter and want to think about it carefully.  I also suspect that they would like (a) to dispose of the case on the narrowest possible grounds and (b) reach a unanimous decision if possible. 

            Finding no appellate jurisdiction may be the simplest way to achieve these objectives (I am assuming that the exercise of jurisdiction here is either discretionary or a very close call legally).  OTOH, they may want to try to put pressure on the parties to resolve the issue through negotiation, which would require exercising appellate jurisdiction.  But it is hard to figure out how they can put pressure on both parties at the same time.  Perhaps they could give the parties a short period to work out a settlement with the proviso that the good faith of each party’s effort would be considered in ruling on a stay pending appeal. 

Posted on

Judge Bates Denies a Stay

            Judge Bates denies the Justice Department’s request for a stay in the Miers case.   His analysis of the four stay factors largely proceeds along the lines I expected.  While I thought he might give some credit to the Executive’s chances of prevailing on appeal simply based on the novelty of the issues presented, he does not: 

Without any supporting judicial precedent whatsoever—and, indeed, in the face of Supreme Court case law that effectively forecloses the basis for the assertion of absolute immunity here—it is difficult to see how the Executive can demonstrate that it has a substantial likelihood of success on appeal, or even that a serious legal question is presented.  The Executive’s argument boils down to a claim that a stay is appropriate because the underlying issue is important.  But that is beside the point and does not demonstrate a likelihood of success on the merits.  Simply calling an issue important—primarily because it involves the relationship of the political branches—does not transform the Executive’s weak arguments into a likelihood of success or a substantial appellate issue. 

            The court also observes that “[h]ad the litigants indicated that a negotiated solution was foreseeable in the near future, the Court may have stayed its hand in the hope the further intervention in this dispute by the Article III branch would not be necessary.”  Judge Bates points out that his prior order “does not compel Ms. Miers to appear at any particular date,” and urges the parties to reach a negotiated solution rather than continuing to bring disputes to the court. 

            I assume that the Executive will now seek a stay from the D.C. Circuit.  If this effort fails (and the odds are that it will), the Justice Department will have four options: (1) work out a negotiated solution with the Committee; (2) make an offer to the Committee that is sufficiently reasonable that it can return to Judge Bates if the Committee refuses; (3) have Miers appear at a Committee hearing and assert executive privilege on a question-by-question basis; or (4) have Miers continue to refuse to appear, risking the possibility that Judge Bates will hold her in contempt.

Posted on

Senate Ethics Guidance May Prove a Liability for Stevens Prosecution

            One other motion filed by Senator Stevens should be noted because it refers to what I anticipate will be at the core of his defense.   The issue, explained below, is whether Senate Ethics guidelines clearly require the disclosure of the “things of value” Stevens received. 

            The government charges that Stevens received various things of value over a seven-year period (1999-2006) from VECO and its CEO, Bill Allen, and that Stevens falsified his financial disclosure reports (FDs) for those years by failing to report these things of value as either gifts or liabilities.  In particular, the government alleges that from 2000 to 2006, “STEVENS accepted from ALLEN and VECO more than $250,000 in free labor, materials, and other things of value in connection with the substantial renovation, improvement, repair and maintenance to [Stevens’s personal residence in Girdwood, Alaska].” 

            Significantly, the indictment alleges that these things of value had to be disclosed as either a gift or liability, but does not specify which.  In his motion, Stevens asks: “Was it a gift or liability?  Why did this alleged gift or liability qualify as such under the applicable rules for completing the form in question?  Notably, the monetary disclosure thresholds are vastly different for gifts and liabilities:  during the relevant period a gift had to be disclosed if it exceeded an amount between $260 and $305, while a liability had to be disclosed only if it exceeded $10,000.” 

            In a footnote, Stevens amplifies this point: “Wholly absent from the indictment is any allegation by the government about why the things of value at issue qualified as a ‘gift’ or ‘liability’ as those items are described on the face of the Financial Disclosure Form.  These words, in the context of the completion of the form, are terms of art and cannot be interpreted colloquially or cavalierly.  See Senate Financial Disclosure Report, date 3/08, pp. 14-17, available at http://ethics.senate.gov/downloads/pdffiles/cover1.pdf  (instructions for “Gifts” and “Liabilities” sections) (relevant pages attached as Exh. 1).”  

Piecing these points together with what has been reported about the Stevens case, I anticipate that the Senator’s defense will go something like this: (1) Stevens expected that he would be billed in the ordinary course for any work performed on his house; (2) Stevens paid those bills he received but did not keep close track of what work had been done versus what work was billed; (3) to the extent that work was performed but not billed, Stevens did not understand that he was required to report this as a “liability” on his FD; and (4) a reasonable person, reading the Senate Ethics rules, instructions and guidance would not have understood that there was any such obligation.

From the prosecution’s perspective, the last point could be a bit of a problem. Looking at the Senate FD form, one would be hard-pressed to reach the conclusion that disclosure of unbilled contractor work is required. The page for reporting liabilities states: “Report liabilities over $10,000 owed by you, your spouse, or dependent child . . . to any one creditor at any time during the reporting period. Check the highest amount owed during the reporting period. Exclude: (1) Mortgages on your personal residences unless rented; (2) loans secured by automobiles, household furniture or appliances; and (3) liabilities owed to certain relatives listed in Instructions. See Instructions for reporting revolving charge accounts.”

The language used here directs the filer’s attention to mortgages, financed purchases, credit card balances and similar types of loan transactions. Similarly, the two examples given, “mortgage on undeveloped land” and “promissory note,” suggest the type of transaction associated with the extension of credit, rather than a debt incurred in the ordinary course of commerce.

The Instructions for filling out the FD also are suggestive of a loan-type transaction. For example, the instructions state: “Report the name and address (city, state) of the creditor to whom the liability is owed. You must also indicate the type of liability and date the liability was incurred, interest rate, and term (if applicable) of each liability. The category of value which must be checked is that which indicates the highest amount owed on that liability during the reporting period, not just at the end of the period. If the liability was completely paid during the reporting period, you may also note that on the form if you wish.”

The brief discussion of “liabilities” in the Senate Ethics Manual is similarly indicative of some sort of loan: “Personal obligations aggregating over $10,000 owed to one creditor at any time during the reporting period, regardless of repayment terms or interest rates, must be reported. The identity (name of the creditor), type, interest rate, term and amount of the liability must be stated. Except for revolving charge accounts (e.g. credit card accounts), the largest amount owed during the calendar year is the value to be reported. For revolving charge accounts, the value is determined by using the balance occurring within 30 days of the end of the reporting period (e.g. for annual Reports, the year-end or December balance is used); however, if the revolving charge account is less than $10,000 at the close of the reporting period, no reporting is required.”

With one exception, all of the examples given in these sources, including the examples of things that do not need to be disclosed, involve loan-type liabilities that would ordinarily be owed to financial institutions and carry an interest-rate of some sort. The one exception is that the Ethics Manual notes that Senate filers are “not required to report tax deficiencies [because] such matters involve the government as a creditor, are normally confidential, and may be contested.” Even this example (of something that need not be disclosed) involves a debt that is overdue and carries an interest rate established by law.

It would not be surprising if the average Senate filer, reading these various sources of guidance, reached the conclusion that “liabilities” did not extend to bills received in the ordinary course of commerce. This conclusion is buttressed by a quick review of the most recent FDs of 28 Senators (Akaka through Craig, excluding Bingamin and Corker, whose FDs I could not, for some reason, open). These Senators either reported no liabilities, or reported liabilities such as “mortgage,” “line of credit,” “promissory note,” “credit card,” or “student loan.” None of the FDs reported ordinary debts to contractors or others who provide goods and services without some credit aspect.

Of course, a wider search might yield different results. But one would expect that there would be a fair number of filers in recent years who incur obligations of more than $10,000 to someone during the course of a year. Anyone who has had a kitchen remodeled or any other substantial home project can testify that it doesn’t take much to reach the $10,000 mark. Not to mention things like medical bills or attorneys fees, which can easily reach those levels. If in fact there are few or no Senate filers who have disclosed such items, one could infer that the term “liability” has not been interpreted to reach such ordinary debts.

If Stevens makes this argument, the prosecution will no doubt respond that a debt owed to a contractor falls within the literal language of the Ethics in Government Act, which requires disclosure, with some exceptions not applicable here, of “total liabilities owed to any creditor” (see 5 U.S.C. App. § 102 (a) ((4)). It could rely on Opinion 94-11 (5-25-94) of the Office of Government Ethics, which advised that executive branch employees must disclose “outstanding fees for legal or other services as a liability on a public financial disclosure report.” OGE rejected the argument that the terms “liabilities” or “creditor” could be “limited to cash loans” or “defined in a manner other than their ordinary usage.” It therefore concluded that “[l]iabilities owed to creditors typically include promissory notes, mortgages, debts arising out of installment sales agreements, outstanding fees for personal services, revolving charge accounts such as credit card balances, outstanding bills for consumer goods and services, contractual financial obligations, overdue tax liabilities, and any other debt owed to a creditor.”

There are, however, two problems with this response. First, while OGE has the authority to interpret financial disclosure requirements for the executive branch, it has no such authority with regard to the legislative branch. The fact that the Senate Ethics Committee has apparently chosen not to incorporate OGE’s advice in the guidance provided to Senate filers may suggest that the Committee was not in agreement with this advice. If anything, the Committee’s silence arguably underscores the ambiguity in the instructions provided to Senate filers on this point, ambiguity which, as noted in an earlier post, the court is constitutionally prohibited from resolving with its own interpretation.

Finally, even if the OGE opinion controlled, the prosecution might have a problem. The opinion refers to “outstanding bills” for goods and services, but Stevens did not receive any bills for the services that are at issue. Thus, it is not at all clear, under the OGE opinion, that Stevens would have an obligation to disclose unbilled work as a “liability.”

These considerations suggest that the prosecution may have a difficult time proving that Stevens falsified his FD by failing to disclose liabilities.

Posted on

Stevens and Separation of Powers

         Senator Stevens has filed another interesting motion, one that seeks to have his indictment dismissed on separation of powers grounds.  His theory is that the requirement that Senators file financial disclosure statements is one imposed by Senate rule, not by law.  He recognizes, of course, that there is a statute, the Ethics in Government Act, imposing precisely this requirement, but contends that “the Act as applied to a house of Congress must be read as advisory only.”  This is because “Article I, Section 5 specifically reserves to the Senate, not the full Congress, the authority to make rules governing its members, such as the requirement to file a Financial Disclosure Form.”

Stevens appears to be arguing that the Constitution prohibits Congress from enacting laws regulating the conduct of Members of Congress because such regulation is the exclusive province of each House under the Rulemaking and Disciplinary Clauses. If this is his argument, it is an astonishingly broad and radical one. It would suggest, for example, that laws prohibiting Members from accepting bribes or gifts are constitutionally invalid.

Among other problems, this theory contravenes the Supreme Court’s holding more than a century ago in Burton v. United States, 202 U.S. 344 (1906). In Burton (a case not cited by Stevens), the Court upheld the conviction of a U.S. Senator for violating a statute that prohibited any Member of Congress from receiving or agreeing to receive compensation for services before a department of the government in connection with matters in which the U.S. had a direct or indirect interest. In so doing, the Court rejected the argument that enforcing the statute would impermissibly interfere with the Senate’s constitutional authority over its members, under the Disciplinary Clause in particular: “A statute like the one before us . . . can be executed without in any degree impinging upon the rightful authority of the Senate over its members or interfering with the legitimate duties of a Senator.” Id. at 367.

Stevens cites a law review article, Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L.& Pol. 345 (2003), which makes a rather persuasive case that the Constitution forbids the enactment of legally binding statutes (i.e., statutes which cannot be changed except by a subsequent statute enacted through bicameral passage and presentment) to govern the procedures of either House. But the focus of this article is on legislative procedures, such as fast track, not on regulations regarding the conduct of individual members. It is one thing to argue that each House must remain free to determine how it will consider and pass legislation, and quite another to suggest that Congress is disabled from requiring, by law, that members conduct themselves ethically while in office.

Interestingly, though, Stevens did not have to argue that Congress is constitutionally prohibited from enacting laws governing its members. He could have simply argued that in the case of the Ethics in Government Act, Congress chose not to do so. This is because Pub. L. 101-194, which re-enacted the financial disclosure and other requirements of the Act as applied to Congress, explicitly states that it is enacted with respect to the Members, officers and employees of the legislative branch “as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively.” Moreover, the law provided that this exercise of the rulemaking power was “with full recognition of the constitutional right of either House to change such rules (so far as relating to such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House.”

These provisions create a constitutional puzzle. If, in fact, either House can change the provisions of the Ethics in Government Act with respect to its members by a unilateral exercise of its rulemaking power, then those provisions would appear to be what Bruhl calls “statutized rules.” It is certainly questionable whether the executive and judicial branches would have any proper role in enforcing or applying these rules with regard to Members of Congress. Conversely, it could be argued the Ethics in Government Act is in fact a proper law, and thus Congress has no authority to change it without complying with the requirements for amending a statute, notwithstanding its attempt to reserve that authority.

The D.C. Circuit’s decision in United States v. Rose, 28 F.3d 181 (D.C. Cir. 1994), lends some support to the latter position. In that case the court rejected the argument that the Justice Department had violated separation of powers principles by bringing suit against a congressman under the Ethics in Government Act after the House Ethics Committee had determined that the financial disclosure violations at issue had been inadvertent. The court explained:

We do not think the DOJ’s action against Congressman Rose offends the separation of powers doctrine. The DOJ brought this action under section 706 of the Ethics Act, which authorizes it to investigate and prosecute “knowing and willful violations of the Act. It is true that the disclosure requirements of the Ethics Act applicable to Members of Congress have been incorporated into the House Rules . . . , which are enforced by the House pursuant to its constitutional power to discipline its Members. But by codifying these requirements in a statute, Congress has empowered the executive and judicial branches to enforce them; in bringing this action, then, the DOJ was fulfilling its constitutional responsibilities, not encroaching on Congress’s.

This language appears to reject any implication that the financial disclosure requirements of the Act are merely exercises of the rule-making power as applied to Members, officers and employees of the legislative branch. However, the court’s opinion does not directly address the reservation of authority language contained in Section 1201 of Pub. L. 101-194.

Stevens, incidentally, tries to get around the holding in Rose by arguing that it was somehow superseded by the Supreme Court’s holding in Clinton v. New York, 524 U.S. 417 (1997) (the line item veto case). I find this reasoning rather hard to follow. The line item veto case has nothing to do with Congress’s authority to enact statutory restrictions on its members. The Court does say, as Stevens notes, that one branch may not abdicate its constitutional powers to another, but this begs the question of whether statutes like the Ethics in Government Act represent an abdication of the congressional rulemaking and disciplinary powers or a proper exercise of the legislative power (as suggested by Burton, Rose, and other cases).

In any event, there is an additional problem with Stevens’s argument. He is not being prosecuted for violating the Ethics in Government Act. He is being prosecuted for violating the False Statements Act. Unlike the Ethics in Government Act, the False Statements Act does not purport to be an exercise of the congressional rulemaking power. Indeed, it would seem to be a “law of general applicability” (i.e., one that does not purport to impose any obligations upon Members of Congress different from those imposed on other citizens), for which, even Stevens acknowledges, Members of Congress can be prosecuted.

Moreover, it is well-established, at least in the D.C. Circuit, that the government may rely on unambiguous congressional rules as part of its proof of a statutory violation. Thus, for example, in a prosecution of a Representative for fraud and embezzlement of public funds, the government may introduce the House Rules to show that the defendant’s use of the funds in question was for an unauthorized purpose. United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995). Nor can there be any serious question that this remains the law of the circuit. As recently as last year, the D.C. Circuit relied on a rule of the House Ethics Committee in determining that a Representative could be held liable for violating the statute prohibiting disclosure of unlawfully intercepted communications. Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007) (en banc).

Stevens thus has virtually no chance of prevailing on his motion to dismiss at this juncture. But he is not totally out of luck. Under the Rostenkowksi case, if the Senate rules regarding financial disclosure are shown to be ambiguous with regard to the conduct charged, the separation of powers doctrine would require the court to dismiss the charge(s) in question rather than interpret the ambiguous rule. This would most likely come up with regard to the Senate rules regarding disclosure of liabilities. The instructions of the Senate Ethics Committee regarding the reporting of liabilities are very brief and do not clearly state whether ordinary debts incurred in the course of commerce need be reported. Stevens could argue that these instructions are ambiguous as applied to his situation and thus cannot be used as a basis for prosecuting him.

Posted on

The Prosecution’s Assault on Senator Stevens’ Legislative Privilege

       The prosecution’s motion in limine in the Stevens case lays out the evidence that it intends to introduce “concerning solicitations made by [VECO] and its executives or non-legislative acts taken by Senator Theodore F. Stevens or his staff in response to VECO’s solicitations.”  The government seeks a ruling in advance of trial that such evidence does not run afoul of the Speech or Debate Clause.  As I will suggest below, a significant amount of this evidence does in fact appear to violate the letter and/or spirit of the Speech or Debate Clause.

The prosecution’s evidence can be broken down into three categories. First, there is evidence regarding assistance requested from or provided by Stevens and/or his staff with regard to executive agencies or foreign governments. These matters involve interventions by Stevens or his office in furtherance of VECO’s business interests. For example, in 1999 Stevens allegedly arranged a meeting between VECO and FEMA “for VECO to attempt to obtain a federal contract, through FEMA, to do rebuilding in the former Yugoslavia.” Similarly, in 1999 Stevens and VECO President Allen are said to have traveled to Sakhalin Island to meet with Russian officials as part of an effort by VECO to obtain contracts from the Russian government.

Generally speaking, this type of “constituent service” is not covered by the Speech or Debate Clause. Although the courts have recognized that it is common and appropriate for Members of Congress to perform a variety of services on behalf of their constituents, these services do not fall within the “legislative sphere” protected by the Speech or Debate privilege.

The second category of evidence relates to requests for assistance which appears to be legislative in nature. For example, in 2004 Allen allegedly wrote to Stevens seeking a $5 million earmark in one of the FY 2005 Appropriations Bills.

Here the prosecution’s theory is that although the assistance requested is legislative in nature, the request itself is not. The government relies primarily on United States v. Helstoski, 442 U.S. 477, 489 (1979), which held that a promise to perform a legislative act in the future is not a legislative act. Thus, in a bribery case the government can show that the bribed official agreed to perform a legislative act in exchange for money so long as it introduces no evidence regarding the actual performance of the legislative act. The government argues that “[i]f a Member’s agreement to perform a future act is not privileged, it logically follows that a constituent’s request for assistance is not shielded by the Clause either. A Member cannot agree to perform a future official or political act if a constituent has not asked for one.”

The government also relies on cases which hold that the Speech or Debate Clause does not apply to communications outside the “halls of Congress.” An example would be Hutchinson v. Proxmire, 443 U.S. 111 (1979), which held that the Speech or Debate Clause did not protect a Senator against defamation claims relating to statements made to the press or the general public.

The government’s theory raises fundamental questions about the scope of the Speech or Debate Clause. Although it is true that the case law it cites contains broad language limiting the reach of the Clause’s protections, that language has been applied in the specific context of bribery or defamation-type cases. Under the government’s theory, this language could be used to eviscerate the Clause’s protections entirely. For example, while the government could not introduce evidence that Stevens voted to approve the FY 2005 earmark in question, it could introduce evidence of (a) any requests made by VECO or others that Stevens support this earmark, (b) any discussions that Stevens may have had regarding the earmark in advance of the actual vote, and (c) any communications that Stevens made “outside the halls of Congress” regarding the vote after it occurred. It is difficult to see what would be left of the privilege at that point.

The final category of evidence relates to actions and communications relating to a major public policy issue in the State of Alaska, the construction of a natural gas pipeline within the state. This issue evidently involved a complex interaction between state and federal jurisdiction, and required both federal and state legislation, as well as other governmental actions, to resolve.

The government’s theory here, consistent with its views with regard to the earmark, is that all of the evidence relating to this category, except perhaps direct evidence of how Stevens voted on the federal enabling legislation, is beyond the scope of Speech or Debate. Thus, “when Senator Stevens provided VECO with e-mail communications, status reports, and other forms of updates concerning the federal enabling legislation dealing with the natural gas pipeline,” these communications were unprotected by Speech or Debate. Similarly, communications or actions by Stevens and his staff relating to the state legislation that was required in order to implement the federal enabling legislation would also be unprotected. An example would be a speech given by Stevens on July 7, 2006 to the Alaska Senate Energy and Natural Resources Committee in which he urged the committee to pass the pipeline legislation in order to prevent the pipeline project from being crippled. The government argues that this speech is unprotected both because it was made outside the halls of Congress and because it addressed state, not federal, legislation.

I find this troubling for several reasons. If the Speech or Debate Clause means anything, one would think that it means that the government cannot prosecute a Member of Congress for the legislation that he has supported and the policies he has advocated in his official capacity. But under the government’s theory, unless the Member’s statements and activities remain hermetically sealed within the halls of Congress, the privilege is of little effect.

Furthermore, the natural gas pipeline is far from the type of constituent service where a Member of Congress seeks to provide assistance to a single company or a few individuals. This was a matter of major economic interest to Alaska as a whole. It involves a major piece of federal legislation that Senator Stevens sponsored and pushed through Congress. Given the close connection between this legislation and the state legislation it required, it would be difficult to “question” Stevens’ involvement in the latter without implicating his role in the former. As Stevens explained in a March 9, 2007 speech to the Alaska legislature:

Given the current climate in Washington, D.C., it is vitally important for our Congressional delegation to work closely with you. Alaska succeeds when Alaskans work together.

The first test of our partnership begins with the gas pipeline. Alaska’s gas resources – 35 trillion cubic feet of natural gas, an estimated 200 trillion cubic feet of conventional gas resources, and 32,000 trillion cubic feet of gas hydrates – will help chart the course for the next generation of energy development in our country.

Our pipeline authorization process, which began with passage by Congress of the Alaska Natural Gas Pipeline Act in 2004, must overcome many hurdles before the first pipe is laid.

*

Before construction can begin, our pipeline must go through several permitting processes, including approval by this state, FERC, and, perhaps, action by Canada. The timeline for our approval of the gas pipeline is very short. It is imperative that we act this year.

I met with Governor Palin in Washington and am encouraged by her efforts thus far. It is my hope that your review of Governor Palin’s plan will be completed as soon as possible. When the state has acted, our delegation will do all we can to accelerate federal review of the final design, precise location, and approval of the project, which will take time.

As this indicates, the pipeline project was an integrated effort involving Alaska’s congressional delegation as well as the Governor and state legislature. Even if part of this effort, such as Stevens’ communications with the Alaska legislature in support of the state legislation, is arguably unprotected by the Speech or Debate Clause, there is no way that the government could introduce evidence regarding isolated parts without implicating the whole.

Indeed, the reason that the prosecution seeks to introduce this evidence in the first place is to show that Stevens’ actions on the pipeline were taken on behalf of or for the benefit of VECO. In order to defend against this implication, Stevens will be required to put on evidence regarding the entire project, including the aspects that are clearly within the legislative sphere. The effect will be to have a mini-trial regarding the merits of Stevens’ legislative agenda with regard to the pipeline project, tried before a Washington, D.C. jury (if the government succeeds in fighting Stevens’ motion to move the trial to Alaska) disinterested in, if not actively hostile to, the Alaskan economic interests at stake. Such a spectacle would seem to strike at the very core of the protection the Speech or Debate Clause was intended to provide.

IMHO, the court should reject the prosecution’s attempt to introduce evidence in categories 2 and 3. In fact, given the peripheral nature of the point the government is trying to make (that Stevens’s relationship with VECO establishes his motive and intent with regard to omitting matters from his financial disclosure statement), it could be argued that all or almost all of this evidence is more prejudicial than probative. The government should have no need to establish anything beyond the (presumably uncontested) fact that VECO and Allen sought assistance from Stevens and his office on various occasions during the relevant time period.