Category: Separation of Powers

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Situation Comity

In her testimony before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts last week, noted Supreme Court advocate Maureen Mahoney urged the panel not to advance pending legislation requiring that Supreme Court proceedings be televised. Among other things, she contended that such legislation would raise “serious constitutional questions” on separation of powers grounds.

I don’t have much to say about the technical constitutional issue. Nothing in constitutional text, history or precedent appears to clearly answer the question of whether the proposed legislation crosses the line between a reasonable regulation of judicial proceedings and an unwarranted infringement on judicial independence. If you want to read an argument that it does, see this recent law review note, but frankly it failed to persuade me.

The more important issue to me, though, is not whether Congress has the constitutional authority to enact this legislation. Rather it is whether Congress ought to abstain from exercising its authority in light of that warm and fuzzy notion of inter-branch harmony known as “comity.”  Here Congress could do worse than to consider a very old Supreme Court case cited in Mahoney’s testimony, Anderson v. Dunn, 19 U.S. 204 (1821).

Anderson speaks to a constitutional branch’s inherent authority to control its physical environs. As Mahoney quotes the Anderson Court, “courts of justice are universally acknowledged to be vested, by the very creation” with the “power to impose silence, respect and decorum, in their presence” and “to preserve themselves and their officers from the approach and insults of pollution.” Id. at 227.

Anderson, however, did not involve a court’s use of this inherent authority. Instead, it involved the exercise of the contempt power by the U.S. House of Representatives, which, the Court found, was similarly entitled to control its proceedings, particularly with respect to matters occurring “within their own walls.”

Whether or not the Court would be similarly receptive to congressional prerogatives today remains to be seen. There are those who think the notion of each branch having special power to control the activities within its own walls is archaic. Yet I think it goes a long way toward explaining the outrage that Members of Congress expressed when the Justice Department unilaterally executed a search warrant in the Rayburn House Office Building. Notwithstanding the debatable technicalities of the Speech or Debate objection, these Members instinctively believed that it was improper for the executive and judicial branches to breach the walls of Congress, as it were, without permission.

The Senate Judiciary Committee would be well advised to keep this in mind before moving forward with cameras in the Supreme Court. Perhaps Mahoney’s testimony might best be summarized as a reminder to both Congress and the Court of this non-constitutional dictum: Do unto others as you would have others do unto you.

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Can a Court Resolve the Virginia Senate Deadlock?

Virginia Democrats may go to court over the issue of whether the Lieutenant Governor can break ties on organizational matters in the Senate. As indicated in a previous post, I am skeptical about the merits of this claim.

(Another useful resource on this subject is the website of the National Conference of State Legislatures, which contains a comprehensive list of state legislative chambers which have been tied over the years. Of particular interest here is NCSL’s note that “A lieutenant governor’s vote broke organizational deadlocks in Idaho (1990) and Pennsylvania (1992).  There was speculation that the lieutenant governor would determine party control in the Virginia Senate in 1995, but a power-sharing agreement between the political parties was negotiated instead.”)

For present purposes, however, lets assume that Virginia Democrats are correct on the merits. Can they get judicial relief? If this were a question of congressional organization, I would say the answer almost certainly would be no. Federal courts are extremely reluctant to intervene in the internal affairs of the legislature, and have employed a variety of doctrinal methods to avoid doing so. See, e.g., Vander Jagt v. O’Neill, 699 F.2d 1166 (DC Cir. 1983) (refusing to hear Republican challenge to allocation of committee seats in the U.S. House of Representatives).

Continue reading “Can a Court Resolve the Virginia Senate Deadlock?”

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Can Representative Waters Take the Ethics Committee to Court?

According to this Politico story, “Rep. Maxine Waters (D-Calif.) is threatening to take the House Ethics Committee to federal court if the secretive panel charges her with any violations of House rules.”

This statement appears to reflect a misunderstanding of a letter sent by Stan Brand, Waters’s attorney, to the chairman and ranking member of the Ethics Committee on July 19. Although Brand asserts that “the Committee’s actions in this matter have concluded and that any further action, save from formal acknowledgement of dismissal, is legally precluded and indefensible,” he knows full well that no federal court will grant relief against the Ethics Committee with regard to its ongoing disciplinary proceedings. Thus, his letter does not threaten to “take the Committee to court” in order to have those proceedings enjoined or declared invalid.

Instead, Brand threatens a federal court action with respect to one particular aspect of his grievances against the Committee, namely the alleged “illegal leaking of confidential Committee documents, transcripts, emails and other information to the media to create a misimpression regarding both the strength of the case against [Waters] and the Committee’s ability to proceed with this case.” Brand contends that this conduct (a) is unprotected by Speech or Debate and (b) implicates Waters’s constitutional and statutory rights.

It is certainly true that, under existing case law, there is no necessary constitutional barrier to a federal court action alleging that a member or staffer of the Ethics Committee has leaked information to the media. See Boehner v. McDermott, 483 F.3d 573 (D.C. Cir.), cert. denied, 128 S.Ct. 712 (2007) (upholding civil judgment against member of Congress who leaked an illegally recorded tape recording which had been given to him in his capacity as ranking member of the Ethics Committee). It is, however, not obvious what constitutional or statutory right might give rise to a cause of action for the leaking Brand alleges. Brand’s letter does not say.

Assuming that there is a viable cause of action (and assuming that it is not barred, for example, by the Federal Tort Claims Act) based on the alleged leaking, it would seem most likely that it would lie against the individuals responsible, not against the Committee itself. Any attempt to sue the Committee itself over the alleged leaking would face serious constitutional hurdles, such as Speech or Debate, sovereign immunity and separation of powers.

In short, the chances of Representative Waters obtaining any relief against the Ethics Committee in federal court are so remote that it seems highly unlikely that she would bring such an action. And there is no chance that any court would review or interfere with the committee’s investigatory or disciplinary decisions.

 

 

 

 

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Gang Territory: Improving Congressional Oversight of Intelligence

In the most recent edition of the Harvard Journal of Law and Public Policy, Vicki Divoll (former counsel to the Senate Select Committee on Intelligence) argues for what she terms the “Full Access Doctrine”  (FAD). That doctrine would provide that  “under the Constitution, Congress is entitled to seek and receive any information from the executive branch that it needs to carry out its core responsibilities to make laws, appropriate funds, and investigate all matters relating to the intelligence functions of our government.” The executive branch, she contends, has no right to withhold any information from Congress, apart from a narrow category of presidential communications protected under United States v. Nixon, 418 U.S. 683 (1974).

Divoll writes in the context of congressional oversight of the intelligence community, and she makes clear that she is dissatisfied with Congress’s ability to get information needed for such oversight. Specifically, she decries the process by which the executive will brief certain sensitive intelligence matters only to the “Gang of Four” (the chairs and ranking members of the two intelligence committees).

Divoll criticizes the restricted briefings as “meaningless access” because they do not assist Congress in carrying out its Article I responsibilities. She points to the briefings received by the Gang of Four on enhanced interrogation techniques during the Bush Administration. Although the briefings were later cited as evidence that the recipients, including Representative Nancy Pelosi, had implicitly sanctioned waterboarding and other controversial practices, Divoll argues that there was little that the Gang of Four could have done with the information. She notes that they “receive nothing in writing, are told not to take notes, often have no staff assistance, and cannot discuss the material with anyone but the other three Gang of Four members.” In short, the restricted briefing “serves to give the executive branch a scapegoat if a controversial program becomes public, but it provides absolutely nothing to assist Congress in the performance of its lawmaking, appropriations and oversight duties.”

Divoll’s solution to this problem is for Congress to pass legislation establishing new rules governing congressional access to intelligence. Although she does not spell out the details, the legislation would be “based on the constitutional principles that Congress is entitled to demand anything it wants to serve its proper duties, and the President is required to provide it.” While Congress might choose not to receive some types of information (particularly details of covert actions or similar ongoing operations), the President would not have the discretion to withhold information or to provide it only to a select group of Members.

Divoll’s frustration with the current oversight process is understandable, but her proposal misses the mark, IMHO, in several respects. First, it should be noted that she significantly overstates the extent to which FAD represents established law. Certainly it has never been regarded as the law by the executive branch. It was George Washington who first enunciated the authority of the President to withhold from Congress information that would “injure the public,” following the unanimous recommendation of a 1792 cabinet meeting that included Alexander Hamilton, Edmund Randolph and Thomas Jefferson. Since that time, presidents have often asserted the authority to withhold information from Congress for a variety of reasons, including national security. See, e.g., Mark Rozell, Executive Privilege: The Dilemma of Secrecy and Democratic Accountability 32-53 (1994). No president has ever endorsed FAD or anything like it.

Nor has the judicial branch endorsed the doctrine. Divoll primarily relies on Nixon and United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977), but neither supports her position. Nixon involved a criminal, not a  congressional, subpoena, and it did not suggest that the executive lacked authority to withhold national security information. The Court suggested, in fact, that the outcome might have been different if national security were involved, noting that Nixon “does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties, the courts have traditionally shown the utmost deference to Presidential responsibilities.”

United States v. AT&T did involve a congressional attempt to access national security information (evidence regarding potential abuses of executive branch wiretapping). The court, however, declined to resolve the competing constitutional claims of the executive and legislative branches, instead attempting to steer the parties toward a negotiated settlement. The court’s dicta suggests that it rejected the executive’s claim of absolute authority to withhold national security information, but also that it rejected the assertion of an absolute legislative right to access such information (“We have not accepted the contention that the executive determination that national security may be involved is conclusive and not subject to any further inquiry, nor have we accepted the rival claim that Congressional right of access to documents for legislative purposes is at any time absolute.”). Like Mark Rozell, the court appears to favor an intermediate approach that would weigh the competing interests of the executive and legislative branches with respect to a particular dispute.

Thus, neither the executive nor judicial branches have endorsed FAD. But even if one thinks that Divoll’s view of the law is the correct one, it is hard to see how new legislation would advance the ball. Congress, as she notes, was unwilling to stand up to the Obama administration over relatively minor changes to the law governing covert action notifications. There would seem to be little chance the Congress would be able to enact a far more ambitious statute along the lines she proposes. And even if such a law were enacted, there is no guarantee that the executive would obey it. (See the War Powers Act).

Yet new legislation is not necessary to address the problem of restricted briefings. Congress already has the power to share the information in these briefings with all the members of the intelligence committees. As far as I have been able to determine, there is nothing in law or congressional rules now that would prevent any member of the Gang of Four from sharing the contents of a restricted briefing with their colleagues on the intelligence committees.

To make the matter clear and to put the executive branch on notice, the House and Senate should each adopt a rule that allows the Gang of Four to further disseminate the contents of a restricted briefing within the intelligence committees. The rule could provide for notice to the President before such dissemination takes place, which would give the executive branch an opportunity to state any objections it may have. In cases where the President objected, the rule might require that the chair and ranking member agree to overrule the objection (or a vote of the entire committee might be required under some circumstances).

These types of procedures make sense because there are situations in which it is preferable that sensitive information be as tightly contained as possible. It may be true, as Divoll suggests, that the tendency of the intelligence committees to leak information has been overstated, but it cannot be seriously disputed that there are risks involved in sharing information with all members of the intelligence committees. There have been cases in which members of these committees have released sensitive information, and common sense suggests that Members of Congress are more likely to release information inadvertently than are career intelligence officials.

The major difference between Divoll’s approach and mine is that I would put the burden on the members of the Gang of Four to determine when further dissemination is required. By making it clear that the Gang of Four has the power to seek further dissemination of restricted briefings, my proposal would entail greater responsibility and political risk on their part. Just as there may be a tendency for the executive to use restricted briefings as a means of scapegoating the recipients, so there may be a tendency for the recipients to avoid any accountability for the information they receive. But if the intelligence committees wish to be full partners in the conduct of U.S. intelligence activities, they must be prepared to accept a degree of responsibility as well.

 

 

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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.