Category: Congressional Investigations

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Is Congress Competent?

Ok, that’s not exactly the question raised by attorneys for Roger Clemens in last week’s filing in federal district court, but I bet its how they hope the jurors interpret the question.

Technically, the issue that Rusty Hardin and company want jurors to consider is whether the House Committee on Oversight and Government Reform (COGR) was a “competent tribunal” when it questioned Clemens in 2008 about his alleged steroid use. They also want jurors to decide if COGR was engaged in “the due and proper exercise of the power of inquiry” and whether Clemens’s alleged false statements were made in a matter “within the jurisdiction” of the legislative branch.

According to the defense team, these competency elements all boil down to one basic inquiry: what was COGR’s purpose in calling Clemens to testify and with respect to the specific questions he was asked. Examples of improper purpose, they say, include:

  • Questioning a witness solely for a purpose other than to elicit facts in aid of legislation
  • Usurping the functions of a prosecuting attorney in the guise of a legislative investigation
  • Re-questioning a witness for the purpose of rendering him more liable to criminal prosecution
  • Conducting a hearing for an actual purpose different than a stated purpose
  • Directing an inquiry primarily to the witness’s guilt or innocence of a crime

To which the prosecution responds: go ahead, make my day. Rather than contesting the defense position on what types of competency issues may be presented to the jury, or pointing out the serious Speech or Debate/separation of powers problems that could result from a judicial inquiry into legislative motives, the government seems to concede the defense’s right to put COGR on trial.

Instead, the prosecution warns that if the defense exercises this right, the government must be permitted the opportunity to show the “broader context” of the congressional investigation. It says “if defendant thus calls into question the competency of the congressional tribunal by suggesting that the Committee was not acting with a proper legislative purpose, then the United States must be permitted to explain, among other things, the seriousness of the problem of steroids and other performance enhancing drugs, the national spotlight being cast on this problem, and the necessity for the congressional inquiry.” The defendant “cannot, on the one hand, impugn the integrity of the Oversight Committee by suggesting that its true- singular- motive was a perjury indictment of him, but, on the other hand, preclude the United States from explaining to the jury, for example, that the Committee’s investigative work was of national importance because of the wide-spread problem of steroid and other performance enhancing drug use in Major League Baseball.”

This strikes me as a dubious prosecution strategy. In the first place, I doubt that anyone is disputing the “seriousness of the problem of steroids and other performance enhancing drugs,” generally speaking. What is being questioned is the reason for calling a particular witness to a particular congressional hearing. I don’t think that Judge Walton will allow that to be the basis for inquiry into steroid use by other baseball players. Moreover, even if the court does allow it, I am not sure this is a good trade for the prosecution. Many jurors may be more concerned about Congress’s reasons for the investigation than they are about steroid use in baseball.

I also wonder about the more general implications of the prosecution’s apparent concessions. The government must prove that Clemens’s statements were material, and this means that they have to be related to a legitimate legislative purpose. But there also have to be limits on how far the parties can go into the actual motives of the COGR members, or otherwise every congressional perjury case will devolve into a political trial of Members of Congress. The prosecutors have not suggested, at least yet, what those limits might be.

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The Solyndra Subpoenas and the White House Response

The House Energy and Commerce Committee has issued subpoenas to the White House Chief of Staff and the Chief of Staff to the Vice President, seeking documents relating to the Solyndra loan scandal. Specifically, each subpoena asks for “[a]ll documents referring or relating in any way to the $535 million loan guarantee issued to Solyndra, Inc. by the Department of Energy.” This is the only request made by the subpoenas. Although they provide a non-exclusive list of examples that would be responsive to the request, they ask for no other documents.

In this letter, the White House Counsel Kathryn Ruemmler responds that the subpoenas are “unprecedented.” Unprecedented in what sense? Obviously, congressional committees have issued numerous subpoenas to prior administrations, including subpoenas seeking documents and testimony from White House officials. Such subpoenas were rare before Watergate (and virtually unheard of before World War II), but they have become rather commonplace since. Here are some examples of congressional subpoenas issued to the Bush Administration. During the Clinton Administration, House Government Reform Committee Chairman Dan Burton became something of a legend for the number of subpoenas he issued (reportedly over a thousand), including many to the White House.

Perhaps there is something about these particular subpoenas that makes them, in Ruemmler’s view, “unprecedented.” But nowhere in her letter does she explain what that might be.

Instead, her primary objection seems to be that the subpoenas are “overbroad.” She characterizes the document request as “extremely broad” because it “encompasses all communications within the White House from the beginning of this Administration to the present that refer or relate to Solyndra,” and she suggests that “any document that references Solyndra, even in passing, is arguably responsive to the Committee’s request.” She contends that responding to such an “expansive request” would place “an unreasonable burden on the President’s ability to meet his constitutional duties.” As an example, she cites the fact that the subpoenas would require producing “thousands of pages of news clips” literally responsive to the requests.

It is hard to characterize this objection as anything but silly. Asking the White House to produce all documents relating to a single small company is hardly placing an undue burden on the presidency. Federal agencies routinely respond to subpoenas and FOIA requests that are far broader in scope. All that needs to be done is to identify those locations most likely to contain responsive documents and to conduct a reasonable search thereof. Since most if not all of those locations will consist of electronic databases, a single search containing the word “Solyndra” would likely suffice.

Continue reading “The Solyndra Subpoenas and the White House Response”

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More Legal Misinformation About Congress

If there were an award for cramming the most amount of legal misinformation into the shortest segment, Friday’s edition of “Nightly Scoreboard” would surely earn a nomination. The subject was a potential congressional subpoena for White House emails concerning Solyndra, and the discussion took place between host David Asman and former federal prosecutor Annmarie McAvoy.

The premise of the piece was that a congressional subpoena for presidential emails would be “unprecedented” and would raise novel issues of executive privilege and separation of powers. McAvoy explained that “[t]here are certain communications that are not available to the Congress.” The following colloquy ensued:

 McAvoy: The argument will be made that the President has to be able to have full and free and open communications with those who are advising him, be those his senior staffers or be those other people in the industries that he is looking at who can come to him and openly talk to him and that he can communicate with them without having to worry about those communications going over to Congress.

 Asman: But have those statutes even been written- about emails- because this is new territory we’re in?

 McAvoy: It is and it raises a very interesting question because what happens is as we have new technologies essentially the law has to eventually catch up with the technology and it hasn’t as of yet. So they’ll be looking at your basic laws relating—and cases relating—to executive privilege in trying to figure out where this would fit in but there really isn’t a statute that directly applies to emails because it didn’t exist beforehand and none of the presidents before Obama had ever used email.

  Continue reading “More Legal Misinformation About Congress”

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A Useful Resource on the Attorney-Client Privilege in Congressional Investigations

The American College of Trial Lawyers has issued this paper on the attorney-client privilege in congressional investigations. The ACTL is, not surprisingly, highly skeptical of Congress’s traditional claim not to be bound by the privilege, and it makes some forceful arguments on the other side. It also provides some helpful guidance for practitioners who wish to preserve the privilege in congressional investigations, as well as for committees that wish to avoid unnecessarily trampling upon it.

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Law Professors Lecture Congress on Stuff They Know Nothing About

A group of law professors and labor policy experts have written this letter to Darrell Issa, Chairman of the House Oversight and Government Reform Committee (COGR), expressing their grave concerns over “threats to compel disclosure of privileged documents” from the National Labor Relations Board. COGR is investigating the NLRB’s decision to bring an action against Boeing for shifting work from a union plant in Washington State to a new non-union facility in South Carolina. Yesterday COGR issued a subpoena to the NLRB, seeking a broad range of documents relating to the agency’s investigation of Boeing in order to obtain “complete facts about the NLRB’s rationale and its decision making process in this matter.”

The letter asserts that the documents COGR is seeking will likely include some relating to settlement discussions, litigation strategy and “other key factors in deciding to file the Complaint.” It suggests that these documents are privileged, and that the privileged nature of the documents is illustrated by the Administrative Law Judge’s refusal to order that they be produced in the pending litigation.

The law professors claim that “[u]nder current law, Congress must look to how the courts would handle the assertion of attorney-client and work product privilege claims when determining whether to press for these documents.” In support of this proposition, they cite Mort Rosenberg’s “Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry” 32-37(1995). No other support is provided.

If you go to page 32 of the cited Rosenberg report (which evidently none of the professors did), you will see the following: “The precedents of the Senate and the House of Representatives, which are founded on Congress’ inherent constitutional prerogative to investigate, establish that the acceptance of a claim of attorney-client or work product privilege rests in the sound discretion of a congressional committee regardless of whether a court would uphold the claim in the context of litigation.” (emphasis added)

Hmm, that sounds like the exact opposite of what the professors said.

As anyone who knows Mort Rosenberg would realize, he does not support the proposition that the courts can dictate, even indirectly, how Congress conducts its oversight activities. As he explains on page 36 of the same report: “the suggestion that the investigatory authority of the legislative branch of government is subject to non-constitutional, common-law rules developed by the judicial branch to govern its proceedings is arguably contrary to the concept of separation of powers. It would, in effect, permit the judiciary to determine congressional procedures and is therefore difficult to reconcile with the constitutional authority granted each House of Congress to determine its own rules.”

Moreover, while it is true that Congress will normally follow judicial precedents with respect to determining the contours of the attorney-client privilege with respect to private parties, it is not at all clear that government agencies like NLRB even have the right to assert attorney-client privilege as against Congress. Cf. In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998), cert. denied 525 U.S. 996 (1998) (government attorney may not invoke attorney-client privilege in a grand jury proceeding). There is no reason why the advice given by executive branch lawyers should be entitled to special protection in a congressional investigation.

When a government agency wishes to withhold information from Congress regarding a pending litigation or investigation, the matter is typically evaluated under the deliberative process privilege. The issues raised by the professors with regard to the NLRB proceeding, such as the potential for interference with an ongoing proceeding and the disclosure of litigation strategy, etc., must be weighed against considerations that militate in favor of immediate congressional action, such as the need to consider a legislative fix to resolve the economic hardship caused by Boeing’s inability to commence operations in South Carolina. Ultimately the weighing of these competing considerations is in the discretion of the committee.

Again to quote Rosenberg, “[d]espite objections by an agency, either house of Congress, or its committees or subcommittees, may obtain and publish information it considers essential for the proper performance of its constitutional functions. There is no court precedent that requires committees to demonstrate a substantial reason to believe that wrongdoing occurred before seeking disclosures with respect to the conduct of specific criminal and civil cases, whether open or closed. Indeed, the case law is quite to the contrary.”

If these labor law professors want to opine on congressional procedure, perhaps they should learn a little about it first.

 

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The First Witness at the Clemens Trial

The prosecution opened the Clemens trial today by having Charles Johnson, former House Parliamentarian and one of the world’s leading experts on the House of Representatives, read House Mouse, Senate Mouse to the jury.

Ok, I am making that up, but it was pretty close. The first exhibit offered by the prosecution was the U.S. Constitution. (I am not making that up). Apparently the prosecution needed Johnson to explain to the jurors that Article I establishes a Congress, consisting of a House and Senate, and grants it legislative powers.

The next exhibit was a photograph of the U.S. Capitol. Charlie correctly identified as such. Shockingly, there was no cross-examination on that point.

For the more substantive part of his direct testimony, Johnson explained the rules of the House, the role of committees, the broad investigatory jurisdiction of COGR, and the fact that it has been granted deposition authority by the House. Pretty much what I expected.

Johnson specifically described COGR’s investigatory jurisdiction as uniquely broad among House committees because it includes both its own legislative jurisdiction and that of any other committee of the House. He also mentioned the fact that COGR is supposed to report findings and recommendations to the committee of legislative jurisdiction. (I didn’t hear any discussion of whether it did so). There was no cross on this point.

One interesting question from the prosecution. Johnson was asked whether one purpose of committees holding public hearings was to convey information to the public. Johnson agreed that this was a “by-product” of public hearings, but demurred somewhat on whether this was a primary purpose of such hearings. There was no cross-examination on this point either.

When it was his turn, Rusty Hardin concentrated on getting Johnson to acknowledge that the congressional investigatory power was not unlimited. Johnson didn’t provide much assistance on this point, but he acknowledged that Congress cannot “expose for the sake of exposure” and that it lacks the authority to conduct a trial.

Clearly a major theme of the defense will be that COGR improperly exercised its investigatory authority to conduct a trial of private misconduct, rather than for legitimate legislative purposes. It remains to be seen how far the court will let it take this theme.

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“This is Not a Love Making Process”

So explained Charles Tiefer, former Solicitor and Deputy General Counsel to the House and former Assistant Senate Legal Counsel, speaking at a hearing of the House Committee on Oversight and Government Reform yesterday. Tiefer was not talking about the latest congressional sex scandal, but advocating for an aggressive congressional posture when the executive branch withholds information sought by a committee in the course of conducting oversight.

Tiefer was joined on the panel by Mort Rosenberg, Lou Fisher and Todd Tatelman. I would explain who these guys are, but you probably already know, or else you would have stopped reading after learning that this post is not Weiner-related.

The panel ably laid out the constitutional and historical basis for congressional oversight of the executive, including the House’s 1792 decision to appoint a special committee to investigate General Arthur St. Clair’s failed military operation against Indian tribes (referenced in my last post). They were speaking in the context of the Justice Department’s failure to comply with a congressional subpoena for documents related to  “Operation Fast and Furious,” an ATF weapons sting that appears to have gone about as well as General St. Clair’s expedition. Most of the testimony, however, did not focus on the specifics of the particular information dispute, but on numerous historical examples of executive branch recalcitrance in the face of congressional oversight, and the need for persistence in overcoming these types of objections.

The hearing and/or written testimony is well worth reviewing by anyone interested in congressional oversight. The witnesses are certainly among the foremost experts on the subject. As Chairman Issa aptly concluded, “we haven’t brought this much intellectual capital to a hearing in a very, very long time.”

 

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What Information Can Congress Get from Libyan Agents?

In 2002, in the course of investigating abductions of U.S. citizens in Saudi Arabia, the House Government Reform Committee subpoenaed three U.S. firms (Patton Boggs, Qorvis Communications and The Gallagher Group), which had provided lobbying and public relations services to the Saudi government.  Each firm was registered under the Foreign Agents Registration Act (FARA), which requires registrants to maintain, and make available for Justice Department inspection, extensive documentation regarding the foreign representation.

The Saudi government maintained that the subpoenas violated the Vienna Convention on Diplomatic Relations, which provides that “archives and documents” of a diplomatic mission are to be held “inviolable.” The House committee, backed by an opinion from Vienna Convention expert Eileen Denza, argued that the Vienna Convention was inapplicable to records of U.S. lobbyists for a foreign government.  It noted that the Saudi position was incompatible with FARA and pointed out that Congress had previously investigated the activities of lobbyists for foreign governments (in 1980 the Senate Judiciary Committee investigated Billy Carter’s lobbying on behalf of Libya).

Congress will want to keep this background in mind as it considers gathering information from Libyan agents in the U.S.  There are several U.S. firms that reportedly have contracted with the Libyan government to provide lobbying, public relations or other services.  Some registered under FARA; others did not.  Congress may want to obtain information from these firms to better understand Libya’s propaganda campaign in the U.S. and to determine whether FARA has been effective in making this campaign transparent.

I have always thought that the Saudi Vienna Convention argument was pretty weak (I represented the House committee in that dispute).  Moreover, under the present circumstances it seems unlikely that U.S. firms would abide by Libyan instructions to withhold information from Congress.  Thus, I suspect that Congress would have little difficulty getting information from Libya’s U.S. representatives.

A more difficult question will be presented if Congress attempts to get documents or testimony directly from Libyan diplomats.  Presumably these officials would normally enjoy immunity from congressional inquiry.  However, there are two wrinkles here that could make a difference.

First, there is the question of which Libyan government is entitled to representation in the U.S.  As far as I understand it, the U.S. has not yet withdrawn recognition from the Qadaffi regime or extended it to the Libyan rebels.  If this change occurs, however, it could affect the privileges and immunities available to Libya’s (former) diplomats.

Second, some Libyan diplomats in the U.S. have already broken with the Qadaffi regime.  Are these officials still entitled to diplomatic immunity/inviolability?

I don’t know the answers to these questions.  But lawyers on the Hill may want to start thinking about them.

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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.