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Judge Leon’s Ruling in the Kupperman Case Could be Important Even if it Does not Reach the Merits

The lawsuit brought by former deputy national security advisor Charles Kupperman continues, for the moment, despite the House’s withdrawal of its subpoena. Most likely, Judge Leon will end up dismissing the case as nonjusticiable on one ground or another. However, it could matter a good deal which ground(s) the court relies upon.

If the case is dismissed as moot due to the withdrawal of the subpoena, it would be of little consequence. On the other hand, if the court were to base its dismissal on the president’s lack of authority to direct Kupperman not to appear in response to the subpoena, its ruling is potentially of much greater significance. As Jonathan Shaub has noted in connection with the House’s lawsuit against former White House counsel Don McGahn, a judicial ruling that the president lacks authority to direct former officials how to respond to congressional subpoenas might be more important than a ruling on the merits of the absolute immunity issue. While the latter would affect only the relatively small group of senior White House advisors who allegedly are protected by absolute immunity, the former “could be far-reaching, encompassing all disputes involving former officials whether they are grounded in immunity or executive privilege.”

Kupperman’s complaint alleges that he “has a duty to abide by a lawful constitutional assertion of immunity by the President and a lawful instruction by the President that he decline to testify before Congress concerning his official duties as a close advisor to the President.” Complaint ¶ 41. Note that this arguably constitutes two distinct assertions. At one level, it is an assertion that if the claimed immunity exists, it belongs to the president, not to the subordinate official, and therefore Kupperman cannot or should not waive it contrary to the president’s instruction. This makes sense to me. Since the immunity (if it exists) is designed to protect the presidency, it should be the president’s decision whether to assert or waive it.

Of course, as Eric Columbus has pointed out, former officials not infrequently choose to disclose confidential information regarding their government service in medial interviews or tell-all books. Indeed, former national security advisor John Bolton, who is currently declining to testify before Congress based on the president’s assertion of “absolute immunity,” has a book deal in which he will presumably discuss many of the matters allegedly covered by that immunity. (As one Twitter wag put it, absolute immunity is a monarchical doctrine so naturally it has a “royalty exception.” Ok, that wag was me.). While there is a tension between this fact and the non-waiver principle, in my view it simply illustrates that the executive branch has no means of punishing former officials who violate a duty not to disclose non-classified information (about which more below).

Kupperman also appears to be making a second and stronger assertion. He seems to be claiming that a former official has a duty to obey the president’s instruction, regardless of whether the former official agrees with the president’s legal position. As Shaub points out, though, it is not clear where the president gets the authority to direct a private citizen’s response to a congressional subpoena. OLC’s past pronouncements suggest it believes the president has this authority, but it fails to “offer any constitutional analysis to support that conclusion.” (Shaub, this might be a good place to note, is a former OLC lawyer).

If Judge Leon were to conclude the president lacks authority to direct Kupperman’s response to the subpoena, he could dismiss the case without reaching the merits. Kupperman claims to be facing “irreconcilable commands” from the executive and legislative branches, but if he is not bound to obey the president’s command, the alleged conflict disappears and can provide no basis for him to sue. He then would be in a posture no different than any other congressional witness who asserts a potentially valid privilege. He can choose to assert absolute immunity if he wishes and, when the committee (properly) rejects that assertion, he can decide whether to comply or risk the possibility of a contempt proceeding. There is no reason why he, any more than any other congressional witness in this situation, should be entitled to an advance court ruling to forestall contempt.

A somewhat narrower approach the court might take is to side step the question of legal duty entirely. Instead, the court might ask what injury Kupperman would suffer should he choose to ignore the president’s directive not to testify. Kupperman alleges that “an erroneous judgment to appear and testify in obedience to the House Defendants’ subpoena would unlawfully impair the President in the exercise of his core national security responsibilities,” Complaint ¶ 2, but it is hard to see how this constitutes an injury to Kupperman. As suggested earlier, there do not appear to be any practical repercussions to a former official who reveals confidential but non-classified information, whether before Congress or in a tell-all book. In the absence of any adverse consequence Kupperman will suffer as a result of disregarding the president’s order, it would seem he lacks standing to sue regardless of whether the president has the authority to issue the order.

Even if Kupperman has a legal duty to assert absolute immunity when instructed to do so by the president, it does not follow that he is obligated to go into contempt to protect the president’s privilege. For example, a lawyer who is subpoenaed by a congressional committee to provide privileged information of a current or former client is obligated to assert the privilege if her client so instructs, but she is not obligated to go into contempt in order to fulfill her professional obligations. See D.C. Bar Ethics Opinion 288 (Feb. 1999). There is no reason why a former government official should be required to do more when instructed by the president; after all, the president has ample other tools, including filing his own lawsuit, to protect whatever confidentiality interests are at issue.

In short, a non-merits dismissal of Kupperman v. House could still have a significant (and beneficial) effect on the House’s ability to get information in the current impeachment inquiry and/or in future information disputes between the political branches.

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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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Why Mulvaney’s Attempt to Intervene in Kupperman’s Lawsuit is Bad for the White House

White House chief of staff Mick Mulvaney has filed this motion to intervene in the lawsuit brought by Charles Kupperman, just as the House is trying to moot the case by withdrawing its subpoena to Kupperman. Like Kupperman, Mulvaney has been subpoenaed by the House to give testimony in the impeachment inquiry and has been directed by the president not to testify based on absolute immunity. Unlike Kupperman, Mulvaney still works in the administration. Also unlike Kupperman, who is suing both the House and President Trump and purports to be neutral on the merits, Mulvaney is only suing the House defendants and appears to be supporting the president’s legal position on the merits.

Mulvaney argues that he should be permitted to intervene because a ruling that Kupperman is obligated to comply with his congressional subpoena could adversely affect Mulvaney, apparently by encouraging the House to move forward with some sort of action against him. Somewhat inconsistently, Mulvaney also argues that his interests will not be adequately represented by Kupperman because his situation is legally distinguishable– he “is both a closer and a more senior adviser to the President than was Mr. Kupperman.” Be that as it may, Judge Leon has scheduled a hearing tomorrow to discuss Mulvaney’s motion, and I guess we will know soon enough whether the motion to intervene will be granted.

The more interesting question is why Mulvaney is taking this action. Some suggest that this gambit is part of a White House strategy to undercut the House’s argument on uncooperative witnesses. The House has been arguing that those who fail to cooperate with its investigation are guilty of obstruction and that when the president directs a witness not to appear or testify one can reasonably make the inference that the testimony of that witness would be adverse to the president’s interests. The president’s defenders can respond that witnesses like Kupperman and Mulvaney are not acting lawlessly but seeking a judicial resolution of conflicting instructions from the political branches; they can also point to the House’s position in the Kupperman case as evidence the House is attempting to avoid a decision on the merits of its legal position.

I do not doubt these arguments will be made (indeed, I suggested as much in my last post), but I am skeptical that this is what motivated either Kupperman or Mulvaney. To begin with, there is little evidence to suggest the White House has a “strategy” for responding to the impeachment inquiry beyond its initial declaration that the inquiry is invalid and no one should cooperate with it. The fecklessness of that strategy is what has impelled individual witnesses to chart their own path on the advice of private counsel.

It also seems to me unlikely Kupperman and John Bolton (who share a lawyer and a legal strategy) are coordinating their actions with anyone else. In a letter to the House (which was also filed with the court) on Friday, their lawyer, Chuck Cooper, specifically denied that Kupperman’s “lawsuit [has] been coordinated in any way with the White House.” I see no reason to question the accuracy of this representation.

In the same letter Cooper responded to the House’s argument that his clients should follow whatever legal ruling emerges from the lawsuit against former White House counsel Don McGahn with the following remarkable paragraph:

Here, unlike McGahn, information concerning national security and foreign affairs is at the heart of the Committees’ impeachment inquiry, and it is difficult to imagine any question that the Committees might put to Dr. Kupperman that would not implicate these sensitive areas. After all, Dr. Kupperman was the Deputy National Security Advisor to the President throughout the period [of] your inquiry. The same is true, of course, of Ambassador Bolton, who was the National Security Advisor to the President, and who was personally involved in many of the events, meetings, and conversations about which you have already received testimony, as well as many relevant meetings and conversations that have not yet been discussed in the testimonies so far.

(emphasis added).

At the risk of stating the obvious, if your objective is to keep your clients from having to testify, emphasizing how much important knowledge they have is a funny way to go about it. Cooper could easily have said something like: “As you have wisely recognized by backing off the subpoenas to my clients, they have nothing to add that would be more than cumulative  of other witnesses or that would advance your impeachment inquiry.” That is what you would say if the goal is to get your clients out of testifying and/or to advance the White House narrative. Instead, Cooper’s message to the House seems to be: “my client(s) have important information which they would like to share with you and you will want to hear so you should let us proceed with this lawsuit.” The message was clear enough that even the president seems to have understood it.

Of course, it is theoretically possible that Mulvaney’s attempt to intervene is designed to further a White House plan to which Kupperman/Bolton are not parties. This would seem rather risky, though, as it could quickly expose rifts between Cooper’s clients and the White House. Moreover, it is hard to see why Mulvaney needs to intervene in order for the White House to get rhetorical mileage out of the case. If it is dismissed as nonjusticiable (or, less likely, Judge Leon rules on the merits in favor of the president), the White House can score the same political points regardless of whether Mulvaney is a party. From the White House’s perspective, therefore, Mulvaney’s move has some potential downside and little if any upside.

Furthermore, although Mulvaney is avoiding the optics of actually suing the president, his legal position is in fact adverse to the president’s on the issue of justiciability. The Justice Department has already indicated that it will take the position that Kupperman’s suit is nonjusticiable, consistent with its position in the McGahn case. It cannot be helpful from the Justice Department’s perspective to have the president’s current chief of staff contradicting it on this key legal issue.

Finally, if Mulvaney were pulling a political stunt, he would have hired tv lawyers (you know the kind I mean). Instead, he is represented by Bill Pittard, another real lawyer and the former deputy general counsel to the House. The sort of attorney you would retain if you wanted to keep a channel of communication open to the House Counsel’s office.

My guess, therefore, is that Mulvaney’s primary if not sole objective is to protect his own personal legal interests. By joining (or attempting to join) Kupperman, Bolton and McGahn, he is hoping for a kind of herd immunity from potential contempt or other prosecutions stemming from his defiance of the congressional subpoena. That also means that if they testify, he will probably use that as political cover to testify as well.

This does not strike me as good news for the White House.

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Why the House Withdrew the Kupperman Subpoena

As I discussed in this Just Security piece last week,  Charles Kupperman, the former deputy national security advisor in the Trump administration, has brought suit against the House of Representatives, the President of the United States, the Speaker of the House, and three House committee chairs. Ordinarily this constellation of defendants is only seen in nuisance suits filed by pro se plaintiffs who think the government or space aliens are monitoring them through dental fillings, but this is a serious lawsuit brought by the kind of real lawyers (Cooper & Kirk) who take notes and everything.

Kupperman’s suit arose out of a subpoena he received from the House committees to testify in the Ukraine impeachment inquiry. President Trump then directed Kupperman not to appear or testify in response to the House subpoena based on the theory that, as a senior White House advisor, he is absolutely immune from compelled congressional testimony. Kupperman is interpleading the defendants to determine which of the political branches trumps (so to speak) the other. Note: in March I suggested, somewhat casually, that “former [administration] officials might want to consider bringing an action to ask a court to declare whether they should abide by the instructions of the White House or those of the committee.”

Now the House has informed the district court judge (Judge Leon) that it has withdrawn the subpoena and asked him to dismiss the case as moot. The reason for this action, I submit, lies not in the merits of the absolute immunity issue (which, as we have discussed at some length, strongly favor the House), but rather in justiciability issues the House would rather not confront.

The House had previously indicated it intended to move to dismiss the case as nonjusticiable. It certainly has a straightforward argument that the Speech or Debate Clause requires the dismissal of the House defendants. See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 507 (1975). However, it is not clear what would happen to the lawsuit if the House defendants alone were dismissed. Arguably the case might go on with only the president as a defendant, which would leave no one to advance the House’s position on the merits. Presumably it was for that reason that the House did not seek to be dismissed as defendants in the Mazars and Deutsche Bank cases, choosing instead to remain in those cases in order to defend the validity of the congressional subpoenas at issue.

Somewhat more puzzlingly, the House did not challenge the standing of President Trump or his companies to challenge the validity of the subpoenas in the Mazars or Deutsche Bank litigation. (So far none of the judges to consider these cases have questioned their justiciability either). Thus, in the House’s view it is apparently proper for a court to consider the merits of a challenge to the validity of a congressional subpoena brought by a third party, even when that third party claims neither a privilege nor a property interest in the documents sought by the subpoena.

Let us alter the facts of the case somewhat and suppose that Mazars itself, as the subpoena  recipient, had brought suit, asking the court to determine whether the subpoena was valid. (To make the hypothetical parallel to Kupperman’s, assume that Mazars had been instructed by a third party, such as its private client or a state entity, that compliance with the allegedly invalid subpoena would violate a legal duty). It seems incongruous to maintain that the actual Mazars case is justiciable but the hypothetical one would not be.

Furthermore, the House itself is suing former White House counsel Don McGahn in a case that raises precisely the same absolute immunity issue as Kupperman. In McGahn, the House argues that the case is justiciable, while the Justice Department contends that disputes over information access between the political branches are not appropriate for judicial resolution. DOJ almost certainly would make the same argument in Kupperman’s lawsuit, maintaining that disputes over Kupperman’s testimony should be resolved through the traditional process of negotiation and accommodation. This would leave the House in the awkward position of agreeing with the Justice Department on justiciability, while vigorously arguing against its reasons for reaching that result.

In addition, it is not clear how a “victory” on justiciability would advance the House’s immediate interests. Without a decision on the merits, Kupperman would presumably continue to refuse to appear and testify, at least until higher court(s) have had an opportunity to weigh in. This likely would deprive the House of his testimony within a usable timeframe. Meanwhile, the president’s defenders would claim that the House’s position on justiciability shows (1) the House lacks confidence in the merits of its absolute immunity argument and (2) the House itself bears some responsibility for Kupperman’s failure to testify.

To be sure, the House does have a long-term institutional interest in preventing witnesses from, in effect, seeking to quash congressional subpoenas in federal court. But coming up with a principled basis for distinguishing Kupperman from McGahn and Mazars/Deutsche Bank may be tricky.

By withdrawing the subpoena, the House hopes to avoid the need to navigate this legal minefield. And if it receives a favorable decision on McGahn’s claim of absolute immunity, it will renew its request/demand for testimony from Kupperman (and Kupperman’s former boss, John Bolton, who is also represented by Cooper & Kirk). If they refuse, the House probably would not take further legal action, but at least it would be well-positioned to argue in the impeachment proceedings that the refusal of these witnesses to testify reflects something other than uncertainty about the state of the law.

Somewhat surprisingly, so far Judge Leon does not seem to be buying the House’s gambit. He has refused to dismiss the case as moot, and has ordered the parties to continue the expedited briefing schedule. Paradoxically, this might be good news for the House (if not the House’s overworked legal staff). It seems to me unlikely that Judge Leon would be that eager to retain jurisdiction over the case unless he thinks Kupperman ought to testify.

There are ways the judge could facilitate that result besides issuing a decision on the merits in the House’s favor (which likely would be appealed anyway). First, during oral argument he could ask the Justice Department what it would do if Kupperman were to violate the president’s instructions not to testify. Since the most likely answer to this is “nothing,” the court would thereby demonstrate Kupperman will suffer no injury by testifying, possibly depriving him of any excuse for non-compliance. Second, the judge might just order the parties to engage in that negotiation and accommodation process the Justice Department claims is constitutionally mandated. Allowing Kupperman to be deposed with the participation of a White House lawyer who can raise any specific executive privilege claims seems like the most straightforward solution to the problem.

 

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Marshall v. Gordon and its Significance

My prior post covered the facts of H. Snowden Marshall’s contempt case. Today we will address the legal issues.

The District Court Decision

The case was heard initially by Judge Learned Hand, who rejected Marshall’s challenge to the contempt proceedings. Judge Hand’s opinion summarizes the state of the law of contempt at that time. See United States ex rel. Marshall v. Gordon, 235 F. 422 (S.D.N.Y. 1916). In Hand’s view, the case presented three issues: (1) was the House engaged upon a “constitutional duty;” (2) did the House have a power of contempt in connection with that constitutional duty; and (3) did that power extend beyond testimonial compulsion to reach the type of dignitary harms of which Marshall was accused. Id. at 429.

The first question was easy, according to Judge Hand. See id. (“That the House was in fact engaged in a constitutional inquiry admits of no doubt.”). The House resolution directing the judiciary committee to investigate Marshall “was aimed at [his] impeachment,” and “the subcommittee was charged with duties ancillary to that inquiry.” Id. Thus, the House was engaged in the constitutional duty of impeachment (a proposition that seems to have been basically uncontested).

The second question was also straightforward given the answer to the first. Kilbourn had left “no question” that the House had a contempt power when it was engaged in an impeachment inquiry. Id.

The third question was the most difficult. Marshall argued that, notwithstanding dicta in Kilbourn and other cases, the House’s function in impeachment was not truly judicial and therefore it was not entitled to exercise the same powers as a court. He argued that the House’s function in impeachment was more akin to that of a grand jury or a prosecutor than a court. Id.

Judge Hand disagreed on the first part of this argument, calling it “too clear for question” that the House’s function in impeachment is judicial in nature. Id. However, he acknowledged that it was a closer issue whether the House should have “the powers of a court whenever it acts judicially.” Id. Ultimately, though, he concluded that “there is both reason and precedent for the position that the House, while deliberating upon articles of impeachment, has jurisdiction to determine whether a publication is a contumacious assault upon its freedom of action. Id. at 432.

Once it was determined that the matter fell within the House’s jurisdiction, the court’s role was at an end. The court had no power to review the merits of the House’s decision that Marshall’s letter should be treated as a contempt. Hand acknowledged that this created the potential for abuse, but opined that this potential was no greater for the House than for a court or any other government official entrusted with such power. The House’s power, moreover, was limited to the period during which an impeachment proceeding was pending. Id.

Accordingly, the district court ruled for the House. Marshall then appealed to the Supreme Court, which took a different view of the matter. Continue reading “Marshall v. Gordon and its Significance”

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(Don’t) Lock Him Up?

By “him,” of course, I mean this guy:

This is Hudson Snowden Marshall, who served as the United States Attorney for the Southern District of New York from 1915 to 1917. He also has the honor of being one of only two executive branch officials ever arrested by the Sergeant at Arms for contempt of Congress. The significance of Marshall’s case for interpreting the scope of the congressional contempt power is a matter of some contention, to which we will return in future posts. Compare Josh Chafetz, Executive Branch Contempt of Congress, 76 U. Chi. L. Rev. 1083,  1137-39 (2009) (arguing that Marshall’s case supports the proposition that the contempt power extends to actions of executive branch officials) with Todd David Peterson, Contempt of Congress v. Executive Privilege, 14 U. Pa. J. Const. L. 77, 128-30 (2011) (arguing that Marshall’s case has no broader significance because it involved no claim of executive privilege or separation of powers).

For today, however, I want to focus on the procedure used to “lock up” Marshall when the House held him in contempt in 1916. To the extent the House is considering the possibility of including a contempt process in its current impeachment inquiry, Marshall’s story is instructive.

A brief background may be helpful. Marshall’s contempt arose out of an intense conflict with a member of the House of Representatives. Marshall’s office procured an indictment in the Southern District of New York of the member (Frank Buchanan, a representative from Illinois) for violations of the Sherman antitrust act. The indictment alleged that Buchanan was receiving funds from Germany  to foment labor strikes in American factories as part of Germany’s effort during WWI (which America had not yet entered) to disrupt American munitions shipments to the allies. Buchanan, in turn, accused Marshall of all manner of corruption and impeachable offenses, and he succeeded in persuading the House to authorize an investigation of Marshall’s alleged misconduct by the Judiciary Committee. See 6 Cannon’s Precedents § 530.

A special Judiciary subcommittee was then appointed to take evidence on the matter. It proceeded to hold hearings in New York in early March 1916. While these hearings were ongoing, a New York newspaper published an article which stated, among other things, “[i]t is the belief in [Marshall’s] office that the real aim of the Congress investigation is to put a stop to the criminal investigation of the pro-German partisans.” 6 Cannon’s Precedents § 531.

The subcommittee did not take kindly to this allegation and it immediately summoned the author, Leonard R. Holme, to demand that he disclose whether anyone in the U.S. attorney’s office had made this accusation to him. When Holme refused to answer, the Sergeant at Arms was directed to arrest him and keep him in custody until further notice. 6 Cannon’s Precedents § 531.

The Sergeant at Arms did as instructed, but found himself in a bit of a dilemma. How was he going to keep a prisoner in custody, particularly in New York. Apparently he asked the local United States marshal to place Holme in confinement, but the marshal understandably declined the opportunity to get in the middle of a battle between Congress and the U.S. attorney’s office. This forced the subcommittee to reconsider and order Holme released, somewhat to its own embarrassment. 6 Cannon’s Precedents § 531.

Fortunately, the mystery of Holme’s source was solved the next day when a letter arrived from Marshall, who not only identified himself as the source, but amplified his charges against the subcommittee and the House. Among his milder complaints was that it was “irregular and extraordinary” to conduct an impeachment inquiry without a formal House vote authorizing it. (Sound familiar?) He also said that he regarded any member of Congress who would take money from a foreign agent (obviously referring to Buchanan) as a “traitor” and felt “it was a great pity that such a person could only be indicted under the Sherman law, which carries only one year in jail as punishment.” 6 Cannon’s Precedents § 531. He further accused the subcommittee of “a deliberate effort to intimidate any district attorney who had the temerity to present charges against one of your honorable body” and said it “had apparently resolved to prevent prosecution by causing the district attorney in charge to be publicly slandered.” Id.

When the subcommittee returned to DC. the House adopted a resolution to investigate Marshall’s statements as contempt. A committee then recommended that Marshall be found guilty of “a breach of the privileges and a contempt of the House of Representatives.” 6 Cannon’s Precedents § 532. The House resolved that Marshall be brought to the bar of the House to answer these charges, and on June 22, 1916, the Speaker issued a warrant for Marshall’s arrest. Id.

Here is where we get to the point of today’s post. After Marshall was arrested on June 26, he immediately secured a writ of habeas corpus from Judge Learned Hand, who further ordered that pending a hearing Marshall “should be at liberty to go upon his own recognizance.” Journal of the House of Representatives, 64th Cong. 1st sess. 855 (July 5, 1916). Judge Hand then heard the case and issued a decision on July 22, in which he found for the House and dismissed the writ. (We will discuss the merits of Hand’s decision in a future post). Rather than immediately remanding Marshall to the custody of the Sergeant at Arms, however, Hand directed that Marshall remain free on his own recognizance until August 15, unless Marshall had filed an appeal by that date, in which case he would remain free until December 1, at which time he would be remanded to the custody of the Sergeant at Arms. 53 Cong. Rec., Pt. 12, p. 11,691 (July 27, 1916). This procedure allowed Marshall a reasonable but not indefinite period to challenge the lower court’s ruling on appeal.

While I do not know who suggested this procedure, it appears to have been agreeable to both parties. It makes sense that the House would have accepted it because, then as now, the House had little capacity to keep an individual in custody for any significant period of time. This is particularly true if the House could not count on the cooperation of the executive branch.

Marshall did appeal to the Supreme Court, but the case was not argued until December 11, 1916 and it was not decided until April 23, 1917. See Marshall v. Gordon, 243 U.S. 521 (1917). (Spoiler alert: Marshall won). Marshall apparently remained free during this period, presumably based on an understanding between the parties.

There would seem to be no reason why an arrangement like this could not be employed today, with or without the imprimatur of a court. As a condition of release by the Sergeant at Arms, a contumacious witness could agree to return to the custody of the House on a particular date or upon the occurrence of a specified event. In addition to being better for the witness, such a procedure ameliorates the House’s difficulties with keeping prisoners for extended periods. In the case of executive officials, it would also lessen concerns about “the specter of violence between the political branches.” See Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 Marquette L. Rev. 881, 934 (2014).

There are a couple of ways to ensure that witnesses comply with the conditions of their parole. First, they can be released into the custody of their counsel. That way the lawyer is on the hook, at least reputationally, for her client’s behavior. Second, the witness can be informed that failure to comply with the specified conditions will result in monetary fines. While I am somewhat skeptical about the use of fines as a direct punishment for contempt, such fines would seem to be justifiable when the witness agrees to them as a substitute for confinement. Indeed, the Court noted in Anderson v. Dunn that legislative fines imposed in the past were justified as “mere commutation for confinement.”

This proposal, it should be noted, does not obviate the need for the Sergeant at Arms to arrest contemnors who refuse to surrender voluntarily. Moreover, some witnesses may refuse to agree to the specified conditions for release so the House will still need contingency plans for holding individuals for an indefinite period. As in the case of recent House subpoenas, though, once a few witnesses comply with the specified procedures, pressure will build on others to do so. (This assumes, of course, that these procedures will survive judicial review, which I believe they will).

It is important to note that this is not a plan for mass incarceration. Commitment for contempt still requires the witness to be brought before the bar of the House to show cause why he should not be held in contempt. This imposes a significant cost of time on the House, and is therefore not something it can do lightly or often.

Finally, for reasons we have discussed such a procedure will be more resistant to any type of judicial challenge if it is adopted in the context of an impeachment inquiry. Thus, if the House wishes to exercise this power, the time is now.

 

 

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Kilbourn and Chapman and Rao. Oh my.

As it happens, the decision in Trump v. Mazars USA (D.C. Cir. Oct. 11, 2019) coincides nicely with our discussion of the congressional contempt power. Although Mazars involved the validity of a congressional subpoena, not the exercise of the contempt power per se, the cases we are about to encounter are quite relevant to an analysis of the D.C. Circuit’s opinion, particularly with regard to Judge Rao’s remarkable dissent.

Kilbourn v. Thompson

Following its decision in Anderson v. Dunn, 19 U.S. 204 (1821), the Supreme Court next had occasion to consider the contempt power in Kilbourn v. Thompson, 103 U.S. 168 (1880). Kilbourn arose out of a House special committee’s investigation into the bankruptcy of Jay Cooke & Co., a private firm with large investments in a somewhat shady “real estate pool”; the House resolution  establishing the committee recited that the government of the United States was a creditor of the bankrupt firm as the result of “improvident deposits by the Secretary of the Navy” of public moneys at the firm. 103 U.S. at 171. The resolution further recited that the bankruptcy trustee  “has recently made a settlement of the interest of the estate . . . to the disadvantage and loss, as it is alleged, of the numerous creditors of said estate, including the government of the United States, and . . . the courts are now powerless by reason of said settlement to afford adequate redress to said creditors.” Id.

Hallet Kilbourn, a real estate broker with knowledge of the private investments in question, was subpoenaed by the House to provide testimony and documents regarding the matter. He declined to do so, denying “the right of the House to investigate private business arbitrarily,” but stated that “if either the committee or the House would assert that the production of his private papers, or the revelation of his private business, would promote any public interest, or if any private individual would assert on oath that the papers asked for would lead to the detection of corruption, he would respond freely to all demands for information or papers.” 2 Hinds’ Precedents § 1609.

The House then ordered that the Speaker issue an arrest warrant for Kilbourn, pursuant to which the recalcitrant witness was brought before the bar of the House. When he continued to refuse to answer, the House held him in contempt and ordered the Sergeant-at-Arms to keep him in custody until such time as he was willing to provide the information demanded. 103 U.S. at 175; 2 Hinds’ Precedents § 1609.

While Kilbourn was in custody, he was indicted by a federal grand jury under the criminal contempt of Congress statute. This precipitated a conflict between the legislative branch and the executive/judicial branches when the U.S. marshal, with a warrant from the D.C. court, attempted to take custody of Kilbourn from the Sergeant-at-Arms. 2 Hinds’ Precedents § 1609. The Sergeant-at-Arms refused, and the House actually considered a Blackstonian resolution that would have asserted that the House, not the courts, had the ultimate right to determine the disposition of the prisoner. Id. The House rejected this resolution, however, and authorized the Sergeant-at-Arms to obey the court’s writ of habeas corpus. Id. The court eventually determined that Kilbourn should be released by the Sergeant-at-Arms and taken into custody by the U.S. marshal. Id.

Kilbourn subsequently sued the House for false imprisonment. Perhaps due to the prior tension with the executive branch, the House was represented by private counsel in the case. See Representation of Congress and Congressional Interests in Court: Hearings Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 94th Cong., 2d sess. 511-12 (1974-75). For whatever reason, the House’s position was much less warmly received when it reached the Supreme Court than it had been in Anderson.

While the Anderson Court embraced the key arguments of the “pro-contempt” side of congressional debates (particularly the argument that the contempt power was an absolute necessity to protect the functioning of Congress), the Kilbourn Court adopts many of the principal arguments of congressional opponents of contempt. It begins with the observation that Congress’s powers are “dependent solely on the Constitution,” “either expressly or by fair implication.” 103 U.S. at 182. As no express power to punish contempts is granted, “advocates of this power have, therefore, resorted to an implication of its existence founded on two principal arguments . . . (1) its exercise by the House of Commons of England, from which country we, it is said, have derived our system of parliamentary law, and (2) the necessity of such a power to enable the two Houses of Congress to perform the duties and exercise the power the Constitution has conferred on them.” Id. at 182-83. Continue reading “Kilbourn and Chapman and Rao. Oh my.”

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Colonel Anderson’s Contempt

To continue our discussion of Congress’s contempt power (sometimes referred to as the inherent contempt power), let us examine the first case in which the U.S. Supreme Court had occasion to consider the existence and scope of this power. The case arose from an attempt by Colonel John Anderson, who had numerous claims pending against the federal government, to bribe Representative Lewis Williams of North Carolina, the chairman of the Committee on Claims. See Donald G. Morgan, Congress and the Constitution: A Study of Responsibility 102 (1966). When this came to the House’s attention in early 1818, it was understandably enraged and unanimously authorized the Speaker (Henry Clay) to issue a warrant for Colonel Anderson’s arrest. 31 Annals of Congress 581.

The Congressional Debate

After the Sergeant-at-Arms took Anderson into custody, the House proceeded to spend more than a week debating whether it had the power to punish him. The House “retraced the excellent arguments” made in the prior Randall/Whitney and Aurora contempts (see here for details) but, according to Professor Currie, “added little of importance.” David P. Currie, The Constitution in Congress, The Jeffersonians, 1801-1829 315 n. 214 (2001). Be that as it may, Professor Morgan praises the House for conducting a high quality legal argument that “not only provided a guidepost to the Court” but educated its own members and the public on the relevant constitutional principles. Morgan, Congress and the Constitution 119.

The debate was long and often repetitive (or, as one member remarked, “tedious”). It did, however, cover all the key arguments that would subsequently be addressed by the Supreme Court and did so more thoroughly than the Court would. Morgan summarizes the “anti-contempt” side of the argument as taking “the strict constructionist line in the interest of individual liberty, state reserved powers, and an exclusive judicial cognizance of contempts.” Morgan, Congress and the Constitution 104. The major points of this side included: (1) the framers were well acquainted with the undefined and encroaching nature of parliamentary privilege in Britain; (2) by carefully enumerating certain privileges in the Constitution, they evinced an intent to exclude others historically claimed by Parliament or the state legislatures; (3) recognizing unenumerated privileges would be inconsistent with the limited nature of congressional power under a written constitution, separation of powers principles (which prohibit Congress from exercising judicial powers), and specific constitutional protections of individual liberties; and (4) once unenumerated privileges are recognized, there is no logical stopping point in terms of the House’s authority to define the scope of contempt/breach of privilege or to impose punishment therefor.

On the other side, the “[s]upporters of the power relied on broad construction, congressional precedents, and practical necessities.” Morgan, Congress and the Constitution 104. Typically, they acknowledged that British parliamentary privileges were not inherited by Congress in any direct sense. However, they also denied that British practices were simply a product of unique historical circumstances or a feature of the unlimited sovereignty enjoyed by Parliament. Instead, they contended that the precedents of Parliament, as well as of the colonial and state legislatures, were evidence that the power to punish for contempt was an inherent and necessary attribute of any legislative  body.

A critical aspect of the debate was the concession by most (though not all) of those on the “anti-contempt” side that the House could punish nonmembers for contempts committed within the walls of the House. Seizing on this concession, their opponents pointed out, somewhat ad nauseam, that they had undermined their own enumeration argument. If the House had some unenumerated power to punish contempt, why should that power not extend to Anderson’s flagrant attempt to corrupt the institution? No good answer to this question was offered. (As we shall see, this point would also play a key role in the Supreme Court’s decision).

Another major point of contention was the “anti-contempt” side’s claim that contempt was an inherently judicial power. In response, it was pointed out that “[b]oth Houses of Congress have powers strictly judicial in their nature and application.” 31 Annals of Congress 638 (Rep. Mercer); see also id. at 697 (Rep. Smyth points out the House is a court “with authority to try certain causes”). As noted in my last post, impeachment was offered as a prime example of a judicial process for which the House needed the contempt power. See also 31 Annals of Congress 701-02 (Rep. Settle). In particular, it was noted that the House needed a power of punishment independent of the executive, which might be the source of corruption it was trying to investigate in the first place. Id. at 634 (Rep. Tucker). Again, the “anti-contempt” camp seemed to have no rejoinder to this argument.

There was also some discussion of what punishments could be inflicted for contempt (with opponents of contempt suggesting they might include indefinite detention, corporal punishment, or worse). Supporters of contempt asserted because the power was one of self-protection, punishment was limited to imprisonment while the House was in session. 31 Annals of Congress 691 (Rep. McLane); id. at 703 (Rep. Settle). No one directly stated that the House had the power to fine, but there were occasional approving references to the fact that courts could impose fines for contempt. See, e.g., id. at 697 (Rep. Smyth). And one contempt opponent accused supporters of wanting to authorize the House “to fine and imprison at discretion.” Id. at 760 (Rep. Beecher).

At the end of the lengthy debate, the House rejected the arguments against recognizing the contempt power. 31 Annals of Congress 776. Anderson was tried and found guilty of contempt. Id. at 789. He was then brought to the bar of the House, reprimanded by the Speaker, and discharged from custody. Id. at 789-90. Continue reading “Colonel Anderson’s Contempt”

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Representative Forsyth on Impeachment and the Contempt Power

As part of my series on impeachment and the contempt power, I have been reading the 1818 House debate on the contempt proceeding against Colonel John Anderson. I will have more to say on this subject presently, but today I want to flag an argument made by Representative Forsyth, who was one of the leading figures in the debate. The question before the House was whether it possessed the power to punish Anderson, who had attempted to bribe a member of the House. Forsyth argued strongly that the House did indeed possess this power.

In citing these remarks, it is important to emphasize that Anderson’s case had nothing whatsoever to do with impeachment or with any alleged misconduct by the president or any executive branch officer. Rather, Forsyth discusses impeachment (as did several others on his side of the argument) as evidence that the Constitution necessarily contemplated that the House could exercise the contempt power:

Judging that the time might arrive when a President would conspire with corrupt and ambitious men, of his own country or of a foreign nation, to change his temporary and limited authority to a permanent and despotic power, [the framers] supposed a sufficient barrier was erected to defeat such conspiracy, by giving to this House the power of impeachment, and the Senate the authority to judge and punish the offender, when brought to the bar by the charges of the people, and convicted by proper evidence. Has it not occurred to the members of this House, especially those [who argued the House lacked the power to punish for contempt], that the efficacy of this provision resides wholly in the power of the House and Senate, respectively, to issue process of attachment for contempt?

31 Annals of Congress 745 (emphasis added). Again, Forsyth is advancing a hypothetical that illustrates most clearly, in his view, that the House may punish for contempt. He continues:

A President forms treasonable designs against the United States. By one those fortunate events which, in the order of Providence, usually occurs to defeat the machinations of guilt, a partial discovery of the design is made, and an inquiry is instituted; you ascertain the sources from which which accurate and certain information is to be procured. How are you to compel the production of the treasonable correspondence in their custody? By attachment for contempt.

Id. (emphasis added). Forsyth had a vivid imagination, did he not?

But he doesn’t stop there. He anticipates the argument that a law could be passed making it a crime to withhold information from Congress (as it would be about 40 years later). Such a law would be inadequate:

Sir, it is vain to say we can provide by law for such an occurrence. Such provision is impossible. You make laws, but these laws are nugatory. You may provide penalties, but to inflict them must be judicial process, trial, conviction and sentence. The inevitable delay is ruinous to the country, and gives to the traitors the time to consummate their horrible designs. But even the guilty witness, the contemner of your authority, escapes the punishment provided by your law. The same Constitution under which you defined his offense, and annexed an appropriate punishment, gives to the President, for whom he commits it, the power of pardoning the offender. You have the consolation to know that he is convicted, and he has the consolation of laughing at an impotent branch of the Legislature, called, in derision, the Grand Inquest of the Nation!

Id. (emphasis added).

Note that Forsyth anticipated that a statutory contempt procedure would be inadequate because it would take too long and because the president would in any event pardon the guilty witness who was acting on his behalf. But he did not anticipate that the president could block prosecution in the first place.

Even Forsyth could not imagine the Office of Legal Counsel.

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Must Congress Allow Agency Counsel to Attend Depositions?

Last week I wrote a piece for Just Security regarding the State Department’s refusal to produce certain officials for depositions requested by several House  committees (relating, of course, to the Ukraine affair). Among other things, I addressed the question of whether Congress is required to allow government counsel to attend depositions of the current or former officials of their department or agency. OLC (surprise!) says the answer is yes. In my view, the correct answer is no.

Anyway, I thought it would be helpful to collect the materials in one place. Here is the link to the piece. And here are the relevant House rules and regulations.