Category: Records of Congress

Posted on

Can Congressional Committees Exempt their Oversight Correspondence from FOIA?

A minor kerfuffle erupted recently over letters sent by certain House committees, including the Committee on Financial Services, to agencies within their jurisdiction maintaining that future communications between the committee and the agency should be treated as “congressional records” not subject to the Freedom of Information Act. For example, this letter from Chairman Hensarling of the Financial Services Committee to the Treasury Department states in part:

 Because of the often sensitive and confidential nature of [communications from the committee to Treasury], and in order to ensure the unfettered flow of information necessary to assist the Committee in performing its important legislative and oversight functions, the Committee intends to retain control of all such communications, and will be entrusting them to your agency only for use in handling those matters. Likewise, any documents created or compiled by your agency in connection with any responses to such Committee communications, including but not limited to any replies to the Committee, are also records of the Committee and remain subject to the Committee’s control.

All such documents and communications constitute congressional records, not “agency records,” for purposes of the Freedom of Information Act, and remain subject to congressional control even when in the physical possession of the Agency. As such, they should be segregated from agency records, and access to them should be limited to Agency personnel who need such access for purposes of providing information or assistance to the Committee.

The effect of this request, if honored by the agencies, would be to require each agency to withhold from FOIA requesters both any written communications from the committee and any documents created or compiled by the agency in response to communications from the committee.

The basis of the House’s legal position is a series of D.C. Circuit cases beginning with Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), vacated in part on other grounds, 607 F.2d 367 (D.C. Cir. 1979) (per curiam). In Goland, the court held that the transcript of a closed congressional hearing that was provided to the CIA did not thereby become an agency record for purposes of FOIA. The court relied on the fact that the congressional committee had held the hearing, which involved discussion of sensitive intelligence matters, in executive session and had marked the transcript “secret” before providing a copy to the CIA. Under these facts, the court concluded that Congress must have intended to retain control over the document and to provide it to the CIA only for internal reference purposes and as a “trustee” for Congress. To find otherwise, the court reasoned, would force Congress “either to surrender its constitutional prerogative of maintaining secrecy, or to suffer an impairment of its oversight role.”

The Goland court’s reasoning might have been limited to situations in which Congress shares executive session materials with an agency. As the court noted, “when Congress transfers secret documents to an agency, for a limited purpose and on condition of secrecy, we see no reason to think it thereby waives its own prerogative of confidentiality and resigns itself to the FOIA exemptions which bind the agency and not it.” However, in subsequent cases the D.C. Circuit recognized in principle that agency-created documents might be congressional documents if they were created or assembled in response to a congressional request and Congress manifested an intent to control the documents in question.

In 2004, the D.C. Circuit applied this principle in the context of a letter from the Joint Committee on Taxation to the Internal Revenue Service requesting certain information regarding the IRS’s auditing of tax-exempt organizations. The JCT letter concluded with the following statement: “This document is a Congressional record and is entrusted to the Internal Revenue Service for your use only. This document may not be disclosed without the prior approval of the Joint Committee.”

(Full disclosure: while at the House Counsel’s office, I advised JCT on various aspects of its position regarding the application of FOIA to its communications with executive agencies, including the use of legends such as that noted above.)

A FOIA request was made to the IRS, which declined to produce not only the JCT letter but the IRS response thereto on the grounds that they were congressional documents not subject to FOIA. After the district court ruled in the IRS’s favor, the case was appealed to the D.C. Circuit. See United We Stand America, Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004). Quoting an earlier case, Paisley v. CIA, 712 F.2d 686, 693, 696 (D.C. Cir. 1983), the court found the controlling standard was whether there was sufficient “indicia of congressional intent” to show “Congress has manifested its own intent to retain control” of the documents in question.

Applying this standard to the facts before it, the United We Stand court concluded that “under all of the circumstances surrounding the IRS’s creation and possession of the documents, we find sufficient indicia of congressional intent to control, but only with respect to the Joint Committee’s April 28 request and those portions of the IRS response that would reveal that request.” In reaching this conclusion, the court stressed the fact that the JCT request only referred to “this document,” i.e., the request itself, rather than the IRS response thereto. The court suggested that had JCT wished to maintain control over the IRS response, it could have done so by referring to “this document and all IRS documents created in response to it.”

The House’s current position seems to be well-grounded in the language and reasoning of the D.C. Circuit’s caselaw, particularly the United We Stand decision. The government watchdog group American Oversight, in this letter to the House Counsel, contends that the House’s “sweeping and circular position appears to be a radical extrapolation from specific language in case law.” But it looks to me like the House is simply doing what the D.C. Circuit suggested it do in order to protect its oversight correspondence from FOIA.

If watchdog groups want to challenge the House’s position, they can bring cases outside the D.C. Circuit or they try to get the issue to the D.C. Circuit sitting en banc or to the Supreme Court. But under the existing case law of the D.C. Circuit, it looks like it will be an uphill climb.

Posted on

BLAG, the Act of Production Doctrine and the Schock Case

Recent filings in the criminal case against former congressman Aaron Schock (see my last post) brought to my attention that a number of pleadings in the Schock grand jury proceedings have been unsealed. Among these were two briefs filed by the House Counsel on behalf of the Bipartisan Legal Advisory Group (BLAG) as amicus curiae in support of Schock’s right to assert a Fifth Amendment act of production privilege in response to grand jury subpoenas for Schock’s congressional records.

The Act of Production Privilege and the Records of a Congressional Office

The grand jury subpoenas in question seek documents from Schock’s “congressional office.” As used here, a “congressional office,” also sometimes referred to as the member’s “personal office,” means the offices that each member of the House maintains in Washington, D.C. and the congressional district for the conduct of official business as a representative from that district.

As we have discussed before, the House has long taken the position, for reasons unrelated to the Fifth Amendment, that such documents are the personal property of the individual member, not the property of the House itself or the U.S. government. Thus, these records are not archived under House Rule VII (as are documents such as committee records, which belong to the House and are periodically sent to the National Archives for archiving and eventual release to the public). Instead, upon a member’s departure from the House, the member is expected to take custody of her congressional office records or to arrange for their disposal (e.g., by having them destroyed, put in storage or donated to a university or other institution). See Declaration of Farar P. Elliott, Chief of the Office of Art and Archives (7-24-15).

Here we should step back and explain the Fifth Amendment “act of production” privilege and its relationship to the House’s stance on who owns congressional documents. As Judge Myerscough explained in an opinion issued in the course of the Schock investigation:

A person may be compelled to produce documents even though the documents contain incriminating assertions of fact or belief because the creation of the documents was not compelled. United States v. Hubbell, 530 U.S. 27, 35 (2000); Fisher v. United States, 425 U.S. 391, 410 (1976) (“The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else”). Nonetheless, “the act of producing documents in response to a subpoena may have a compelled testimonial aspect.” Hubbell, 530 U.S. at 36. That is, by producing the documents, the witness admits that the papers exist, that the papers were in his possession or control, and that the papers are authentic. Whether a particular act is testimonial and self-incriminating is largely a factual issue to be decided in each case.

The act-of-production privilege does not, however, apply to collective entities, such as corporations. Consequently, an individual cannot rely on the Fifth Amendment privilege to avoid producing a collective entity’s records that are in his possession in a representative capacity, even if the records may incriminate him personally.

Opinion of June 25, 2015 at 14-16 (some citations omitted).

Thus, if documents from a member’s congressional office belonged to a collective entity, such as the House itself, or the U.S. government, or the “Office of Congressman X or Congressional District Y,” the act of production privilege would not apply, and a member could be compelled to produce such documents in response to a subpoena.

On the other hand, the converse is not necessarily true. The government argued that documents which of their essential nature are public or official records are not subject to the act of production privilege even if the House treats them for some purposes as the member’s personal property. Moreover, it contended that the “collective entity” doctrine was applicable because a congressional office, while it differs from a government agency or private corporation with respect to the ownership of documents, is still more like these collective entities than it is like a “sole proprietorship” or the home or business of a private individual.

BLAG responded that the formal ownership of documents was dispositive for purposes of the Fifth Amendment analysis. Furthermore, to the extent that a “collective entity” analysis was appropriate, it maintained that the legal nature of a congressional office was like that of a sole proprietorship, as distinguished from a collective entity such as a government agency or corporation. Continue reading “BLAG, the Act of Production Doctrine and the Schock Case”

Posted on

Some Schocking Information About Congressional Records

Former congressman Aaron Schock, under investigation for financial misconduct while in office, has been in various disputes with the Justice Department about documents prosecutors are seeking from him. One of those disputes involves the somewhat peculiar legal status of documents from a Member’s personal congressional office. So the blog having been on hiatus for a couple of months, I will ease back into things with a discussion of this obscure topic.

You may be aware, unless you happen to be former Secretary of State Hillary Clinton, that the records of federal agencies and the executive branch generally are subject to extensive regulation and control by various statutes, including the Federal Records Act, the Freedom of Information Act and the Presidential Records Act. You may or may not be surprised to know, however, that few if any of these laws apply to Congress. As the House Rules Committee observed in this 1988 report, the Privacy Act and FOIA explicitly exempt Congress from their coverage, and “[n]o statute comparable to the Presidential Recordings and Materials Preservation Act has ever been enacted with respect to congressional records.” Hmm, I wonder how that happened.

Continue reading “Some Schocking Information About Congressional Records”

Posted on

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.

 

Posted on

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.

Posted on

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).

Continue reading “House Counsel and the Congressional “Client””

Posted on

The Senate’s Legal Basis for Muzzling Former Staffers

According to this story, Vicki Divoll, former counsel to the Senate Select Committee on Intelligence, has been barred by SSCI from discussing in the media (specifically Talking Points Memo) certain non-classified information relating to the committee’s oversight of intelligence programs. Divoll gave an interview to TPM regarding the congressional role in intelligence oversight and submitted it to SSCI for review prior to publication, apparently not expecting that there would be any significant concerns. To her surprise: “[F]or the first time in her career, the committee took the extraordinary step, on a bipartisan basis, of declaring the interview’s entire contents a violation of her non-disclosure agreement and effectively forbade her from putting any of it on the record.”

Divoll and TPM present this as an arbitrary decision by SSCI to block public discussion of intelligence oversight. TPM says that the interview did not involve “classified sources and methods of intelligence gathering” but “general information about how the committee functions– and how it should function.” It says that “[a]mong the insights Divoll shared with us was the important role that staff can and should play in oversight of the executive branch’s intelligence activities.” Moreover, Divoll’s statements “tracked closely with information gleaned from other sources, and the public record.”

No doubt the committee has a different perspective on the matter. Still, given that Divoll left the employ of the committee 10 years ago and has frequently discussed matters related to her tenure at SSCI in the media since then, apparently without objection by the committee, this is a somewhat curious development. It raises the questions of what legal authority the committee has to block a former staffer from discussing matters of public interest, how broad that authority might be, and what arguments Divoll might have to challenge that authority. We will turn to those issues now. Continue reading “The Senate’s Legal Basis for Muzzling Former Staffers”

Posted on

Must Committee Websites Be Fair and Balanced?

An article this week by Fortune senior editor Stephen Gandel questions whether certain House committee websites, particularly that of the Financial Services Committee, comply with rules and regulations established by the Committee on House Administration. These provide that committee websites may not:

  1. Include personal, political, or campaign information.
  2. Be directly linked or refer to Web sites created or operated by campaign or any campaign related entity, including political parties and campaign committees.
  3. Include grassroots lobbying or solicit support for a Member’s position.
  4. Generate, circulate, solicit or encourage signing petitions.
  5. Include any advertisement for any private individual, firm, or corporation, or imply in any manner that the Government       endorses or favors any specific commercial product, commodity, or service.

Gandel’s primary concern is that much of the Financial Services website is “dedicated to just how bad the [Dodd-Frank act] is.” He suggests this violates the rules that “websites can’t contain political information or solicit support for a member’s position.”

I think Gandel misunderstands the meaning of the term “political” as used in these rules. The House Ethics Manual provides that “[o]fficial resources of the House must, as a general rule, be used for the performance of official business of the House, and hence those resources may not be used for campaign or political purposes.” The phrase “campaign or political” is a term of art referring to election or campaign-related business, as opposed to the official business of the House.

Continue reading “Must Committee Websites Be Fair and Balanced?”

Posted on

Inappropriate Behavior?

House Rule XI (g)(5) provides

(5) To the maximum extent practicable, each committee shall— 
(A) provide audio and video coverage of each hearing or meeting for the transaction of business in a manner that allows the public to easily listen to and view the proceedings; and 
(B) maintain the recordings of such coverage in a manner that is easily accessible to the public.

Daniel Schuman of the Sunlight Foundation points out, however, that the Legislative Branch Subcommittee of the House Committee on Appropriations holds most of its hearings in a small hearing room in the Capitol (HT-2) that does not have a pre-positioned camera and apparently these proceedings have not typically been broadcast or recorded. Thus, for example, the public will not be able to view tomorrow’s hearing on the Library of Congress, the GAO, the Public Printer and the CBO.

As Schuman notes, it would be very “practicable” for the Appropriations Committee either to move the hearing to one of several available hearing rooms that have a camera or to request that the House Recording Studio provide one in HT-2. While admittedly tomorrow’s hearing is not exactly the half-time show at the Superbowl, the House Rules admit of no exception, even for “really boring” agencies.

Posted on

What Happens to the Supercommittee’s Records?

This story by Richard Lardner of the Associated Press (“Debt-reduction ‘supercommittee’ hid in plain sight”) discusses how the “Supercommittee” has conducted its business largely behind closed doors. The article cites this blog’s view that the committee’s narrow interpretation of the term “meeting” as used in its open meeting rule enabled it to conduct virtually all of its deliberations out of public view.

Lardner also raises an interesting question regarding the disposition of the committee records. Rule III(3) of its rules provides that “[u]pon termination of the Joint Select Committee, the records of the Joint Select Committee shall be treated as Senate records under S. Res. 474, 96th Congress as directed by the Secretary of the Senate.” S. Res. 474, in turn, provides that committee records, once archived, are to be made available to the public after 20 years unless (1) the records were already public before being archived (in which case they can be made available to the public immediately), (2) the records contain information relating to the privacy of specific individuals, such as investigative or personnel files (in which case they are not available for 50 years) or (3) the committee prescribes a different time for public release of its records.

As a practical mater, the decision as to what committee records are to be archived will be made by Senate archivists working with committee staff. My understanding is that the Senate archivists consider notes, emails and similar documents to be committee records, at least to the extent that they document significant committee matters. This understanding is based in part on my experience with the Senate Homeland Security and Governmental Affairs Committee; following the enactment of the Intelligence Reform and Terrorism Prevention Act of 2004, the committee’s archivist asked staff to identify and collect emails, notes and drafts that would document the negotiating and deliberating process. (We grumbled, but made reasonable efforts to comply).

In the case of the Supercommittee, the fact that it has no permanent or clearly demarcated offices may make this process even more haphazard than usual. But one assumes that the Senate archivists, acting under the Secretary’s direction, will do their best to gather those records that would shed light on the committee’s work.

But who will see these records? Unless the committee adopts a resolution or order providing for earlier public release, all of these records (save those already public) will remain sealed at the National Archives until at least 2031.

Perhaps the Congressional Transparency Caucus would like to weigh in?