Category: House and Senate Legal Counsel

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Congress in Court: Where Things Stand Today

Charlie Savage of the NY Times wrote an article over the summer which flagged the sheer volume of litigation in which the House has been involved this year. His count at the time was nine separate lawsuits in which the House was a party, plus four others in which it had filed amicus briefs. The cases in which the House is a party include three suits initiated by President Trump in his personal capacity to block Congress’s access to his financial records (Mazars, Deutsche Bank, and the effort to stop New York state authorities from providing his tax records to House committees), three initiated by the House to obtain information (the suit to require the Treasury Department to produce Trump’s tax records, the application for access to grand jury material, and the action to force Don McGahn to testify), plus the House’s effort to enjoin the border wall and its attempt to intervene in support of the constitutionality of the female genital mutilation statute.  The ninth, I think, would be the litigation over the Affordable Care Act. (I haven’t kept track of the cases in which the House has appeared as an amicus, but one was the census litigation).

Now the House is party to at least one more case (Kupperman), and it appears that Mick Mulvaney, his motion to intervene in the Kupperman case having been withdrawn, will be filing his own separate suit, which will bring the grand total of cases in which the House is a party to 11. In addition, there are several other ongoing cases that could affect the House’s institutional interests, including Blumenthal v. Trump, where members of Congress are suing the president for alleged violations of the emoluments clauses.

One of these cases has already produced a significant appellate court decision  (Mazars) and there are likely to be a number of important decisions coming out of the district and appellate courts in the next couple of months. The Supreme Court will be asked to weigh in and it seems very likely it will agree to hear at least one of these cases, if for no other reason than to decide questions of legislative standing. In the meantime, the House has decided, probably wisely, that further litigation is pointless in light of its determination to conclude impeachment proceedings in the near future (presumably by the end of the year).

We are therefore entering into a period in which there will be (1) a highly unusual amount of judicial precedent generated with potentially enormous impact on the balance of congressional and executive power and (2) an extremely difficult to predict interaction between these judicial opinions and ongoing impeachment proceedings (possibly including, if President Trump’s past statements are credited, an effort to directly challenge these proceedings in court). We cannot rule out the possibility that the chief justice of the United States will  be presiding over an impeachment trial in the Senate while the Supreme Court is being asked to consider directly or indirectly related issues at the same time.

In addition to all this, the very fact that Congress and the executive have taken so many of their disputes to court could itself have major effects on how our constitutional system functions in the future. As former House deputy general counsel Charlie Tiefer told Savage, “this is like nothing else in history.” It is probably not too early to start thinking about the consequences.

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Is the Trump Administration Overwhelming the House Counsel’s Office?

One question that I keep getting from reporters relates to how fast (or slowly) the various court cases related to the House’s investigation of the president are moving. While these cases are moving at a reasonable clip for ordinary litigation, they are not proceeding fast enough to enable the House to obtain any of the desired information during this session and perhaps not fast enough to get the information by the end of the congress.

For example, one of the cases (I think it was the Judiciary Committee’s application for grand jury materials) was filed at the end of July or early August, and the parties agreed to a briefing schedule that went through September. This seemed to me a rather leisurely pace, given the House’s contention that it needed the information for the purpose of considering articles of impeachment. When I asked about this on Twitter, several folks offered the explanation that nobody is in DC in August.

Maybe. I wonder, though, whether part of the reason is simply that the House Counsel’s office does not have the bandwidth to handle all of these cases simultaneously. The office currently has nine lawyers, according to the website, which is  a lot more than it had when I was there (when we typically had four or five), not to mention more than can reasonably be accommodated in its existing space. It also is receiving some help (apparently on a pro bono basis) from outside lawyers.

Still, this is not a lot of firepower to deal with the volume of work that the office currently has. It is currently representing House committees in six cases involving congressional investigations into the administration (three initiated by the House, three by President Trump or the Trump administration). It has also been involved in a number of other significant cases this year, including litigation over the border wall, the census, and the Affordable Care Act. Presumably its lawyers are also involved in advising the leadership and committees on legal issues that seem to pop up on a daily basis (e.g., relating to the Ukraine whistleblower, the congressional subpoena to Rudy Giuliani, and efforts to depose State Department officials). All of which is on top of the House Counsel’s normal duties.

Which raises the question whether the Trump administration’s legal resources are simply overwhelming the House Counsel’s office. Trump’s  personal lawyers alone probably outnumber the House Counsel’s entire legal staff. And the executive branch has an essentially unlimited number of lawyers to work on these cases and issues. All of which raises the further question whether this is a deliberate strategy or something that they just lucked into?

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Can BLAG Authorize a Subpoena Enforcement Action?

According to this CNN report, the House Ways & Means committee, which had previously requested President Trump’s tax returns pursuant to 26 U.S.C. § 6103(f), has now issued subpoenas to the Treasury Department and IRS for the same information. Although the committee believes that it can sue to enforce the statutory duty to provide information under § 6103(f), it was advised by House counsel that issuing subpoenas would bolster its case in court.

There are interesting questions about the scope of the committee’s authority under § 6103(f), which we have previously discussed, and whether the issuance of subpoenas will help or hurt the committee’s chances in court. However, what I want to highlight now is an issue that may be more consequential than these. According to CNN, the speaker is considering whether to authorize a civil action to enforce the subpoenas (and, presumably, the committee’s statutory right of access) through the Bipartisan Legal Advisory Group, rather than a vote of the House. Back in February, I raised the possibility that language added to House Rule II(8)(B) in the 114th congress could be used in this fashion.

The new language in question provides that “[u]nless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.” There are two potential problems with using this language to allow BLAG to authorize a lawsuit by the Ways & Means committee. The first is that the language does not explicitly authorize BLAG to initiate litigation on the House’s behalf. The purpose of the rule change was “to conform to current practice.” As explained in my February post, this referred to the practice of BLAG intervening in existing litigation to defend the constitutionality of statutes (in particular, the Defense of Marriage Act) the Justice Department refused to defend. There was not, and as far as I know has never been, a practice of BLAG initiating litigation.

There is a second problem with respect to litigation to enforce subpoenas. House Rule XI(2)(m)(3)(C) provides “[c]ompliance with a subpoena issued by a committee or subcommittee . . . may be enforced only as authorized or directed by the House.” This provision seems to override Rule II(8)(B), which only applies “[u]nless otherwise provided by the House.” One would have to argue, somewhat circularly, that Rule II(8)(B) allows BLAG to authorize or direct subpoena enforcement on behalf of the House, in order to prevent Rule XI(2)(m)(3)(C) from overriding Rule II(8)(B). I am somewhat skeptical that the parliamentarians would agree with this argument, but . . . (this is where I would insert the shruggie emoji if we were on Twitter).

In any event, if BLAG claims the authority to authorize subpoena enforcement actions, this could improve the efficiency of the “subpoena cannon” considerably. On the other hand, it will almost certainly lead the minority to challenge both BLAG’s interpretation of the rules and its decisions to authorize particular actions on the House floor.

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Would the House’s Sovereign Immunity Position Bar its Suit against the President?

This is a question that should have, but didn’t, occur to me even as I sat through a good portion of yesterday’s House Rules Committee hearing, in which members and witnesses spent five hours arguing over when, if ever, it was permissible for one branch of the government to sue another. Professor Walter Dellinger testified that the federal courts could not and would not hear an action brought by the House against the president for failing to perform his duties under the laws and Constitution. Dellinger based his conclusion on the House’s lack of standing, but I did not hear him or anyone else raise sovereign immunity as an issue.

But yesterday the SEC also filed its reply brief in its subpoena enforcement action against the House Ways & Means Committee and, as I was reading it, the light bulb went on. If the House were correct in the sovereign immunity position taken in that case, its proposed lawsuit against President Obama would seem to be barred by its own position unless it could take advantage of a express waiver in existing law. It is not at all obvious that any such waiver exists.

Of course, the same could be said of lawsuits that the House has already filed. The SEC notes in its brief that courts “have not applied (let alone discussed) federal sovereign immunity in the myriad cases where one branch of government (sometimes Congress) acting in a sovereign capacity sues another branch of government (sometimes to enforce a subpoena).” In a footnote, it cites two House-initiated suits, Comm. on Oversight and Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013), and Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008), which would have been barred by sovereign immunity if it were applicable.  SEC Reply Br. 3 & n.1. In neither case, however, did any party or the court raise sovereign immunity as an issue.

The SEC’s position is that sovereign immunity is simply inapplicable to suits by one part of the federal sovereign against another. The fact that neither party can identify any case in which sovereign immunity was discussed in the context of inter-branch (or intra-branch) lawsuits cuts against the House’s position, not the SEC’s. The House, it argues, is seeking an extension of the sovereign immunity doctrine with no foundation in the case law. See SEC Reply Br. 4 (“While [the House] attack[s] the Commission for not identifying any cases in which a court has rejected such an extension, the Commission should not bear the burden of proving a negative.”).

In light of the consequences for any lawsuit against the president, maybe the House should hope the SEC is right.

 

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The House All In on Sovereign Immunity

The House Ways & Means Committee has filed its response to the SEC’s enforcement action (see here and here). The House’s brief sheds some, though not much, light on its argument that the doctrine of sovereign immunity bars the subpoenas in question.

The House relies primarily on a Second Circuit case, In re SEC ex rel Glotzer, 374 F.3d 184 (2d Cir. 2004), which held that “a party seeking judicial review of an agency’s non-compliance with a subpoena must first exhaust his or her administrative remedies pursuant to APA § 704.” Glotzer involved two subpoenas issued by a party (specifically Martha Stewart) in a federal civil lawsuit to (ironically) SEC attorneys. An SEC official considered the subpoenas in accordance with the agency regulations and determined that the attorneys should not be authorized to testify. Rather than seeking further agency review, as required by the regulations, Stewart sought direct judicial enforcement by the district court in which the civil case was pending.

The Second Circuit found that the district court lacked jurisdiction to enforce the subpoenas. It relied on circuit precedent establishing that a motion to compel an agency to comply with a subpoena implicates the doctrine of sovereign immunity and therefore such compulsion may take place only in accordance with the federal government’s waiver of sovereign immunity in the APA. Because the APA requires exhaustion of administrative remedies before judicial review may occur, the Second Circuit concluded that the jurisdictional pre-requisite for judicial review had not been met.

The House’s application of this decision is straightforward. The doctrine of sovereign immunity applies to Congress (several circuits have so held) and therefore subpoenas cannot be enforced against Congress absent a waiver. The APA does not apply to Congress and so does not waive its sovereign immunity. The SEC having identified no other valid waiver, the House argues, the subpoenas cannot be enforced, period. Notably, the House brief does not discuss the possibility that Rule VIII constitutes a waiver and, in fact, does not mention the rule at all.

It seems to me unlikely that the Second Circuit, which purported to be addressing a narrow question of first impression, would take its decision as far as the House would. The court mostly seemed concerned that a litigant not be able to circumvent an agency’s established procedures for responding to subpoenas. This is not an issue with Rule VIII, where the administrative procedures have already been exhausted. Moreover, the Second Circuit construed Stewart’s motion as one to compel the agency itself, rather than merely the subpoena recipients, see footnote 7, which may provide a ground for distinguishing two cases. In any event, nothing in the Glotzer decision suggests that the court expected it to have the far-reaching implications that are entailed by the House’s interpretation.

If the House were correct, it would mean that no subpoena, administrative or judicial, could be enforced against any legislative entity or a legislative official acting in an official capacity. It would seem, for example, that the grand jury subpoena to a Senate aide in Gravel v. United States, 408 U.S. 606 (1972), would have been barred by sovereign immunity. The same would be true, presumably, of the civil subpoena in Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995), as well as the subpoenas in many of the other Speech or Debate cases discussed in the House’s brief. None of these cases even discuss sovereign immunity, which, if a substantial jurisdictional question, should have been considered by the courts even if not raised by the parties.

There are other implications of the House’s position which are, to put it mildly, surprising. What about subpoenas to executive branch officials not covered by the APA, such as the criminal trial subpoena to President Nixon? See United States v. Nixon, 418 U.S. 683 (1974). For that matter, what about congressional subpoenas to executive branch officials? Are they barred by sovereign immunity as well?

Perhaps there is a limiting principle in the House’s brief that is not apparent to me. For the moment, lets just say that nothing has changed my deep skepticism about this argument.

 

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The House’s Sovereign Immunity Objection to the SEC Subpoenas

As discussed in my last post, the SEC is suing the House Committee on Ways & Means and Brian Sutter, a committee staffer, to enforce two administrative subpoenas, one to the committee seeking documents and one to Sutter seeking both documents and testimony.

A May 19 letter from the House General Counsel lays out 11 objections to the subpoenas. The first objection, which I want to address today, is that “[e]ach of the subpoenas is barred by the sovereign immunity, never waived, that attaches to the Committee and Mr. Sutter in their official capacities.”

If I understand this objection correctly, it means that the House is asserting that the SEC is barred from compelling the production of official House documents or testimony related to the official functions of the House, even if that information is not constitutionally privileged and no matter how relevant it might be to the SEC’s investigation.

What might be the basis of such an objection? Well, during my time in the House Counsel’s office, we dealt with administrative subpoenas from several different federal agencies. We objected to these subpoenas based on the fact that House Rule VIII, which authorized compliance with subpoenas issued by courts, did not apply to administrative subpoenas. One aspect of this argument (I think) was that Rule VIII’s silence meant the House had not waived its sovereign immunity with regard to administrative subpoenas.

Now frankly sovereign immunity never struck me as exactly the right rubric for this argument. Historically the House (like the Senate) has maintained that its consent is needed before another branch of government can obtain documents from its files or testimony regarding its official functions, but this position has been grounded in the separation of powers. Thus, Deschler explains that the attempt by “another coordinate and coequal branch of government” to exercise authority over the House by serving process upon it “has historically been perceived by the House as a matter intimately related to its dignity and the integrity of its proceedings, and as constituting an occasion for the raising of the question of the privilege of the House.” 3 Deschler’s Precedents § 14. This view held that each branch of government had the constitutional authority to make the final determination regarding the disposition of its own documents and information. See Nixon v. Sirica, 487 F.2d 700, 742 (D.C. Cir. 1973) (MacKinnon, J., concurring in part and dissenting in part) (“It thus appears that the judiciary, as well as the Congress and past Presidents, believes that a protected independence is vital to the proper performance of its specified constitutional duties.”)

Be that as it may, in 1977 the House first adopted the predecessor to Rule VIII, providing standing authority to comply with judicial subpoenas. This rule obviated the need for the House to authorize compliance with such subpoenas on a case-by-case basis (which remains the practice in the Senate to this day). To the extent that the doctrine of sovereign immunity applies, the rule also presumably acts as a waiver of this defense so long as a subpoena meets the criteria set forth in the rule.

As noted, there remained a problem with respect to administrative subpoenas because Rule VIII did not address them. Thus, whether viewed as a question of sovereign immunity, separation of powers, or both, administrative subpoenas to the House were arguably barred and could not be complied with absent a specific House resolution authorizing compliance. (The merit of this position was never tested in court, to my recollection).

In the 107th Congress, however, Rule VIII was broadened to cover administrative subpoenas. This was done at the suggestion of the House Counsel’s office precisely because there seemed to be little sense from a policy standpoint (as well as some legal risk) in maintaining that administrative subpoenas were categorically barred.

Given that Rule VIII now expressly authorizes (and indeed requires, if the rule’s prerequisites are satisfied) compliance with administrative subpoenas, it is a little difficult to understand how the House could sustain a sovereign immunity objection. Perhaps a clue is the citation in the May 19 letter to Lane v. Pena, 518 187, 192 (1996), which it describes as holding “any waiver of sovereign immunity must be ‘unequivocally expressed in statutory text.’” Rule VIII, of course, is not a “statute” and thus, it might be argued, its language does not count for determining whether sovereign immunity has been waived.

If that’s the argument, it does not strike me as a winner.

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What Senate Legal Counsel’s Silence Says About Noel Canning: Not Much

Writing in Slate last week, Professor Neal Devins, a noted expert on the Constitution and Congress, had several complaints about how Congress presents its legal positions in court. Devins is unhappy that the House, because it operates on a majoritarian basis, may present legal views that are held only by the majority, but he is equally unhappy that the Senate, because it requires bipartisan consensus, may present no legal views at all. And he is particularly unhappy that in the Noel Canning recess appointments case the Supreme Court heard “only from the Senate minority and not from the Senate itself.” As Devins asks plaintively, “why would the Senate’s own lawyer sit on his hands while the minority leader purports to speak for the Senate?”

Why indeed. Let’s begin by reviewing how “the Senate’s own lawyer,” aka the Senate Legal Counsel, operates. As Devins notes, Senate Legal Counsel must, by statute, receive specific authorization before filing any brief on behalf of the Senate. Devins says that “counsel representation of the Senate requires two-thirds support of a leadership group made up of four members of the majority party and three members of the minority party,” but this is incorrect. Appearance as amicus curiae is authorized by Senate resolution, not by the Joint Leadership Group. See 2 U.S.C. § 288b(c). Nothing in the statute requires that such a resolution be bipartisan.

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House Counsel and the Congressional “Client”

At the June 28 meeting of the House Committee on Oversight and Government Reform, a question arose about the role of House Counsel in providing legal advice to COGR and its members. Chairman Issa had requested and received a House Counsel opinion on whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory opening statement at a prior COGR hearing. Issa took the position that this opinion was attorney-client privileged. Although he shared the opinion with Ranking Member Cummings prior to the June 28 meeting, he had asked Cummings to limit distribution of the document to prevent public disclosure.

Specifically, Issa requested that Cummings not distribute the opinion to “all of your members,” presumably because he feared that such wide distribution would inevitably lead to its being leaked. Committee Democrats protested that every member of COGR had an equal right to the opinion because House Counsel is charged with representing the House as a whole. Issa countered that each member of COGR was free to obtain his or her own opinion from House Counsel. He maintained, however, that this opinion was given to the committee majority and had been shared with the minority only as a “courtesy.”

This debate reflects some confusion about the function of House Counsel. It may also reflect the fact that the role of congressional lawyers in general, and House Counsel in particular, is, as the law professors like to say, “under-theorized.” (Which, admittedly, is a bit like your State Farm agent saying you are “under-insured”). As I noted a few years ago:

House Rule II(8), which establishes OHC [the Office of House Counsel], provides that the office exists,

for the purpose of providing legal assistance and representation to the House. Legal assistance and representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships.

This language, which constitutes essentially all of the legal authority defining the scope of the OHC’s functions and obligations, provides only limited guidance as to the OHC’s ethical responsibilities. It could be read to suggest that OHC’s responsibilities run primarily, if not exclusively, to the House as an institution, rather than to individual members or offices. On the other hand, it requires that OHC provide assistance and representation without regard to political affiliation, a directive that seems unintelligible except in the context of providing advice or representation to particular members. Finally, it implies that questions about the OHC’s responsibilities, including issues relating to the House’s institutional legal interests and positions, are to be resolved by the Speaker of the House after consultation with the Bipartisan Legal Advisory Group (BLAG).

Michael L. Stern, Ethical Obligations of Congressional Lawyers, 63 NYU Ann. Survey of Am. L. 191, 199 (2007).

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