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This Tuesday, November 15, from 12 pm to 2 pm, the Administrative Law and Agency Practice Section of the D.C. Bar will host the Annual Harold Leventhal Lecture. Our speaker will be the Honorable Thomas B. Griffith of the U.S. Court of Appeals for the D.C. Circuit. Judge Griffith will speak on “Congress in the D.C. Circuit.”

Judge Griffith brings a unique perspective to this topic. As we have discussed, relatively few federal judges have had prior legislative experience. Judge Griffith, however, is certainly the only federal judge to have served as the chief legal officer of either chamber of Congress. From 1995 to 1999, he served as Senate Legal Counsel, during which he advised the Senate on numerous legal matters of great significance, including the impeachment trial of President William J. Clinton.

I will be introducing Judge Griffith on behalf of the Administrative Law Section. Further details and registration information may be found here.

Charles Clark was nominated to the U.S. Court of Appeals for the Fifth Circuit on October 7, 1969, and he was confirmed eight days later.  Such a speedy confirmation would be unthinkable today, although legend has it that Senator Eastland helped the process along by scheduling the vote when potential opponents were otherwise occupied.  The story as I heard it was that the more liberal members of the Senate were attending an Earth Day event on the day of the vote, but it is more likely (assuming the story is true) that they were participating in Moratorium Day, a Vietnam War protest that took place on October 15, 1969.

Judge Clark became the chief judge of the Fifth Circuit in 1981, and served in that capacity until 1992, when he retired from the bench.  Upon the occasion of his retirement, Rodney Smolla, Dean of the William & Mary Law School and one of the Judge’s former clerks, wrote this fitting tribute: “At a time in the history of the profession in which lawyers and laymen alike are tempted to dismiss our judicial system as corrupt and cynical, Judge Clark stood out as immediate and irrefutable evidence that all is not hopeless:  Here is a lawyer in a position of power and influence who is compassionate, diligent, honest and thoroughly professional.  Here is a lawyer’s lawyer, a judge’s judge, a clerk’s judge.”

I had the privilege of clerking for Judge Clark during the 1985-86 term.  This probably was not the Judge’s favorite clerkship year, as none of his clerks were hunting or fishing enthusiasts.  But for me the year is full of warm memories of Judge Clark: sitting around the conference table as we discussed cases, observing the Judge’s incisive but unfailingly courteous questioning of counsel at oral argument, driving him back to Jackson from New Orleans in my Dodge Daytona (which was thankfully able to make it without one of its too frequent breakdowns).  Everything that Dean Smolla wrote was very true.  Judge Clark was the very model not only of a judge but of a Southern gentleman.

Judge Clark passed away on March 6, 2011.  He will be sorely missed on earth, but we can take comfort that he was a man of faith, who today is reaping the rewards of that faith.

Attorney General Gonzales has resigned.  ABC News: Attorney General Gonzales Resigns  Will his resignation take effect only upon confirmation of his replacement?  The rumor has been that Homeland Security Secretary Mike Chertoff will be nominated to replace Gonzales, but not clear if this is a done deal.  Chertoff is well-respected and likely would be confirmed, but he will face a lot of his questions regarding his prior tenure as head of the criminal division at DOJ.  During his nomination for DHS Secretary, Chertoff was asked about his role in Administration policies on military tribunals, foreign detainees, torture and use of the material witness statute, among other things.  One can expect renewed questioning on these subjects.  He will also be grilled about his tenure at DHS, particularly his response to Katrina (from Senate Democrats) and illegal immigration (from Senate Republicans). 

Set forth below is a short piece I wrote regarding the search of the congressional office of Congressman Jefferson, just before Chief Judge Hogan issued his ruling upholding the search.

In the next few days, Chief Judge Thomas Hogan of the United States District Court for the District of Columbia is expected to rule on the legality of the FBI’s raid on the congressional offices of Congressman William Jefferson.

Attorneys for Congressman Jefferson, backed by lawyers for the U.S. House of Representatives, have argued FBI’s search of Mr. Jefferson’s congressional office violated the Speech or Debate Clause of the Constitution.They assert that during the search the FBI reviewed and/or seized “legislative” documents, i.e., documents which by virtue of dealing with matters within the legislative sphere, such as legislation or congressional hearings, are privileged against compelled production from a member of Congress or a legislative agent.

The Department of Justice, on the other hand, contends that the search of premises belonging to or under the control of a member of Congress does not constitute “questioning” of that member within the meaning of the Speech or Debate Clause.Moreover, DOJ maintains that the search was not seeking legislative documents and that Congressman Jefferson’s Speech or Debate privilege can be adequately protected through a post-search review to screen out any legislative documents that may have been seized incidentally.

These competing arguments present the court with difficult and novel issues of law, but they do not address what is—in my judgment— a more fundamental problem with the FBI’s search of Congressman Jefferson’s office.I maintain that even if the FBI had been able to conduct its search in a manner that avoided all contact with legislative documents, this raid would nonetheless constitute a serious affront to the House of Representatives and a threat to the proper functioning of our system of separated powers.

The forcible intrusion of executive agents into the Capitol Complex raises a concern that is not present when law enforcement searches a member’s home or even a member’s district office.This concern does not relate to a member’s legislative privilege or to any right of individual members.Instead, such an invasion violates the dignity of the House itself, and infringes its right to exercise control within its own walls.

That the House has such a right cannot be doubted.Nearly 200 years ago, in Anderson v. Dunn, the Supreme Court found that “the right of the respective Houses to exclude from their presence, and their absolute control within their own walls, carry with them the right to punish contempts committed in their presence.”The contrary view, namely that the House would have to rely on the other branches for its own protection, would lead:

to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument from which it is derived. That a deliberate assembly, clothed with the majesty of the people, and charged with the care of all that is dear to them; composed of the most distinguished citizens, selected and drawn together from every quarter of a great nation; whose deliberations are required by public opinion to be conducted under the eye of the public, and whose decisions must be clothed with all that sanctity which unlimited confidence in their wisdom and purity can inspire; that such an assembly should not possess the power to suppress rudeness, or repel insult, is a supposition too wild to be suggested.

Although the exercise of the contempt power by each House of Congress is not limited to conduct committed literally “within the walls” of the Capitol, Anderson demonstrates that the most fundamental reason for recognizing the power is that the House and Senate must be able to control their immediate environment, and to prevent affronts to their dignity and disruption of their proceedings by outside forces.Moreover, Anderson and later cases reject the proposition that the Houses of Congress can be required to rely on the other branches for this basic need of self-protection.

Compare this to the principle endorsed by the Justice Department’s search of Representative Jefferson’s office, namely that the executive and judicial branches can authorize the FBI to enter the congressional office buildings (and presumably the Capitol itself) without the permission of—indeed without even providing notice to—the House or its leadership.No consideration seems to have been given to how the specter of uninvited federal agents in the Capitol Complex not only insults the dignity of the House, but threatens its very physical security.If nothing else, the fact that in more than 200 years, despite many criminal investigations, prosecutions and convictions of members of Congress, law enforcement authorities had never conducted a similar search should have been a tip off as to the potential ramifications.

The outrageous nature of the action is aggravated by the fact that there was so little reason for it.I will leave aside the puzzling question of why the Justice Department felt it necessary to take the unprecedented step of obtaining a search warrant when the materials sought were apparently covered by a grand jury subpoena served months before.Assuming there was a true law enforcement need to conduct a search, what harm would have come from notifying the House leadership and requesting its permission?The chances are very good that the requested permission would have been granted or, at the very least, that steps would have been taken to secure the requested materials until any issues could be resolved.If the claim is made that notifying the House leadership would somehow have risked the destruction or disappearance of materials sought by the warrant, that charge is both insulting and frankly preposterous.

Recognizing the House’s right to exercise control within its own walls is not the equivalent of declaring a member of the House to be “above the law.”In the first place, it is not up to Representative Jefferson or any other individual member as to whether the FBI is allowed access to the Capitol Complex.In the second place, as already noted, any assumption that the House or its leadership would use its power to shield a member from criminal investigation is unwarranted, and the mere possibility that such abuse could occur is hardly reason for overturning two hundred years of history and tradition.

By contrast, establishing a precedent that would allow the executive literally to breach the walls of Congress, with or without judicial permission, would be very dangerous.If Chief Judge Hogan’s decision were to ratify this precedent, it would threaten a dramatic change in the relationship between the branches, with potential ramifications that may be only dimly perceived today.

To defuse the interbranch conflict created by this ill-advised search, it may not be necessary for the court to hold that the House or Senate is, under all circumstances, the final authority on execution of search warrants in the Capitol Complex.Rather, the court can follow the example of past cases where, facing other sensitive questions of executive-legislative relationships (such as whether Congress could subpoena sensitive national security information from a telephone company over the objections of the executive), courts have declined to decide the constitutional issue presented and instructed the other branches to attempt to resolve their differences through negotiation.The House, in its papers, has suggested something along those lines.

Hopefully, the outcome of those negotiations will make it unnecessary to revisit this subject for the next two hundred years.

A press release from Congressman Barney Frank states as follows:

Congressman Barney Frank (D-MA) introduced legislation today that would require the appointment of a special prosecutor each time the House votes an official of the executive branch in contempt of Congress.

“After listening to the testimony of [the Attorney General] before the Judiciary Committee and his refusal to pursue House-passed contempt citation . . ., I believe we need to change the method of dealing with contempt if we are to protect Congress’ right to get information,” Frank said.  “If we make no change in the law, Congress will face future instances in which the Justice Department simply refuses to process contempt citations and we will be left without any recourse for getting documents.”

One might assume that this press release resulted from the recent refusals of White House Chief of Staff Josh Bolten and former White House Counsel Harriett Miers to provide documents and testimony in response to congressional subpoenas regarding the removal and replacement of U.S. Attorneys.  Or perhaps it stemmed from the front page article in the Washington Post on July 20, 2007, which began “Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.”

In fact, however, the Frank press release is dated April 21, 1983, nearly a quarter of a century before the Washington Post’s breathless revelation of this “bold new assertion of executive authority.”  The Bush Administration’s position in this regard may have been bold, but it certainly was not new.  Anyone familiar with the history of congressional-executive could have told the Post that the Justice Department, under this or any other administration, would not prosecute executive branch officials for asserting executive privilege in accordance with the President’s instructions.  One would think that the fact that no executive branch official has ever been prosecuted for contempt of Congress might have been a tipoff in this regard.

The current controversy is merely the latest chapter in a longstanding debate over whether the Congress has, or should have, a legal remedy when the executive branch refuses to produce information demanded by the House or Senate.  Note that this issue is distinct from the question of whether Congress has the right to obtain information from the executive branch.  Since the administration of George Washington, the Congress has asserted, and the executive branch has acknowledged, the right of the legislative branch to call upon the executive branch for information.  In 1792, the House established an investigating committee to inquire into a failed military campaign by General St. Clair against Indian tribes in Ohio.  This committee requested documents from President Washington, who assembled his cabinet to advise him on how to respond.  As reflected by Thomas Jefferson’s notes, the cabinet reached the following conclusions:

First, that the House was an inquest and therefore might institute inquiries.  Second, that they might call for papers generally.  Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would endanger the public.  Fourth, that neither the committee nor the House had a right to call on the Head of a department, who and whose papers were under the President alone, but that the committee should instruct their chairman to move the House to address the President.  

Washington produced all of the papers called for by the House in the St. Clair investigation, but in later years he refused congressional requests for other materials, such as a 1796 request from the House for documents relating to John Jay’s negotiation of a treaty with Great Britain.

Although executive branch refusals to provide information to Congress often led to major battles with Congress, historically these struggles were treated as political, not legal.   The term “political” here should not be taken to mean partisan, unprincipled or insincere, the way the term is often used today.  (Ironically, much of the dispute about the U.S. attorney matter has to do with how the word “political” is used or perceived.)  Instead, the disputes were political because they had to be resolved through political pressure and negotiation, rather than legal compulsion.  If the parties could not reach an acceptable compromise, Congress had no available remedy other than the ultimate political remedy of impeachment (which would be practical, if at all, in only the most extreme circumstances).      

For example, in 1886 during the Grover Cleveland Administration, the Senate made a demand for all papers in the Department of Justice relating to the removal of a U.S. attorney.  When the Attorney General refused this demand, the matter was referred to the Senate Judiciary Committee, which reported that when papers were “unconditionally demanded” of the President or heads of Departments, “they were under a constitutional duty and obligation to furnish to either House the papers called for.”  Further, “the committee believes it to be clear from the very nature of the powers intrusted by the Constitution to the two Houses of Congress it is a necessary incident that either House must have at all times the right to know all that officially exists or takes place in any of the Departments of the Government.”  Although the Senate ultimately adopted a resolution condemning the Attorney General’s refusal to provide the documents as “in violation of his official duty and subversive of the fundamental principles of the Government and of a good administration thereof,” it still did not get the requested documents.

It is only since World War II, and more particularly since Watergate, that Congress began thinking about its informational disputes with the executive branch as legal disputes that could be resolved through a legal remedy.  Apart from criminal prosecution under the contempt of Congress statute, the remedies potentially available to Congress would be so-called “inherent contempt,” in which the House or Senate instructs the Sergeant at Arms to arrest the contumacious witness and then proceeds to conducts its own contempt trial on the floor, or a civil action for injunctive or declaratory relief filed in federal court.  As will be discussed in later posts, each of these options had certain legal and practical drawbacks.  For now suffice to say that Congress has to date never successfully used any of these remedies against the executive branch.

Moreover, it is by no means clear that it would be to the advantage of Congress if informational disputes with the executive were to be resolved through one of these legal mechanisms.  At first blush it may seem that the absence of a remedy works to the advantage of the executive branch, which controls the information that the legislative branch wishes to obtain.  However, as I will discuss in my next post, this is not necessarily the case.