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How Much of the Mueller Report Will Barr Disclose?

On March 22, 2019, Attorney General Bill Barr notified Congress “pursuant to 28 C.F.R. § 600.9 (a) (3) that Special Counsel Robert S. Mueller III has concluded his investigation of Russian interference in the 2016 election and related matters.” He further informed it that he was in receipt of the special counsel’s “confidential report explaining the prosecution or declination decisions” made in the course of the investigation. Barr advised that he was reviewing the report and anticipated advising the Congress of the special counsel’s “principal conclusions” possibly as early as this weekend. Finally, Barr indicated that he would consult with the special counsel and deputy attorney general “to determine what other information from the report can be released to Congress and the public consistent with the law, including the Special Counsel regulations, and the Department’s long-standing practices and policies.” This latter process will apparently be separate from the advice regarding the “principal conclusions” and presumably be on a longer timeline.

We don’t know, of course, what the long-anticipated “Mueller report” actually says, and we also don’t know how detailed it is. As Barr notes, the regulations only require the special counsel to explain the prosecution and declination decisions he has made. With respect to prosecution decisions, this could simply consist of a summary of publicly available information as the basis for each prosecution is readily inferred from indictments and other court filings. The scope of declination decisions is a bit trickier. Presumably this could include anyone who was identified as a subject or target of the investigation but not ultimately indicted. It might include anyone whom the special counsel seriously considered indicting but did not. It might include the president, but then again it might not because the president cannot be indicted (according to a longstanding Justice Department view) and therefore there was no declination decision for the special counsel to make.

There is also considerable room for interpretation as to what the special counsel’s “explanation” of his decisions should look like. Read narrowly, it could simply consist of a list of individuals charged or not charged along with a brief statement of the reason (e.g., “Individual 1 was not charged with obstruction of justice due to insufficient evidence of corrupt intent.”). But it could reasonably be read much more broadly to allow the special counsel to provide a road map of all the investigatory steps he took and evidence he accumulated so that the reader fully understands why the special counsel reached the decisions he did.

One thing that is clear, however, is that the intended audience for the special counsel’s report is not Congress or the general public. The regulations provide for a “confidential” report to the attorney general only. See 28 C.F.R. § 600.8 (c). In promulgating the special counsel regulations in 1999, the Clinton Justice Department made clear that this report was not to be shared with Congress or the public:

Much legitimate concern has been expressed about the Final Report requirement of the Independent Counsel Act, with respect to both the incentives it creates to over-investigate a matter and the fact that, since it often becomes a public document, it can do harm to legitimate privacy interests. On the other hand, it is appropriate for any federal official to provide a written record upon completion of an assignment, particularly a federal official who has functioned with substantial independence and little supervision. In major cases, federal prosecutors commonly document their decisions not to pursue a case, explaining the factual and legal reasons for the conclusions they have reached.

The principal source of the problems with the Final Report requirement as set forth in the Independent Counsel Act is the fact that the Report typically has been made public, unlike the closing documentation of any other criminal investigation. This single fact both provides an incentive to over-investigate, in order to avoid potential public criticism for not having turned over every stone, and creates potential harm to individual privacy interests.

Therefore, these regulations impose a limited reporting requirement on all Special Counsels, in the form of a summary final report to the Attorney General. This report will be handled as a confidential document, as are internal documents relating to any federal criminal investigation. The interests of the public in being informed of and understanding the reasons for the actions of the Special Counsel will be addressed in the final set of reporting requirements, discussed below.

64 Fed. Reg. 37038, 37041 (July 9, 1999).

This language suggests that the special counsel report should be similar to other declination reports written by federal prosecutors, but need not be as comprehensive as an independent counsel report. In any event, it is treated as an internal Justice Department document, the kind that the executive branch has argued should be considered “the crown jewels of executive privilege” (see here at pages 15-19) and may not be shared with Congress or the public.

But what of the public’s interest in being informed of the reasons for the special counsel’s actions, alluded to in the last sentence of the Federal Register notice? This is addressed in the following special counsel regulation:

The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action-

     *   *   *

(3) Upon conclusion of the Special Counsel’s investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

28 C.F.R. § 600.9 (a).

It should be noted that Barr’s letter of March 22 already notified the committees of the conclusion of the special counsel’s investigation and the fact that there had been no instances of the attorney general nixing a proposed action of the special counsel. It therefore satisfies the requirements of the regulation with the arguable exception of the “explanation for each action,” which presumably refers to an explanation for the termination of the special counsel’s investigation.

Exactly what is meant by this “explanation” is unclear. As Professor Marty Lederman notes, it “might conceivably consist of only a brief outline explaining why Mueller closed up shop, which is all the regulation formally requires.” It seems likely that this is what Barr is referring to when he speaks of the special counsel’s “principal conclusions.” This might be something on the order of a very summary description of the special counsel’s findings without getting into specifics of particular declination decisions. Any greater detail would seem to be more than what the regulation requires.

Lederman argues, however, that this is “merely a floor, not a ceiling.” Barr seems to be thinking along similar lines when he states he will consult with Mueller and Deputy Attorney General Rod Rosenstein to determine whether additional information can be released consistent with the law and DOJ practices and policies. But this additional information release would seem to be beyond the scope of the regulation itself. If the intent of the regulation were to authorize the attorney general to release any part of the special counsel report not otherwise prohibited by law, it picked an awkward way of expressing it.  And if this is Barr’s interpretation, he cannot claim to be legally required to withhold anything other than grand jury information.

In short, it is hard to see how one parses the applicable rules to allow disclosure of only a portion of the Mueller report. The report in essence is a glorified declination memorandum, and either Barr is free to release Mueller’s explanation for his declination decisions or he is not. If he is, it is hard to see how that will not involve getting into both the details of internal prosecutorial decision making (of the kind Lederman correctly notes DOJ does not like to share) and factual information that will impinge upon individual privacy interests. If he is not, it would seem he can share little beyond the report’s “principal conclusions.”

It should be noted that the above analysis is based on the logic of the executive branch’s own regulations and policies. It is not determinative of what would (or should) happen in a legal or constitutional fight between Congress and the executive over access to the Mueller report. There is also an interesting question about the right of White House counsel and the president’s personal lawyers to the Mueller report. It has been reported that the White House will be allowed to review the report for purposes of making executive privilege claims (primarily, one would imagine, those related to the presidential communications branch of the privilege) before it is disclosed to Congress. But will that review encompass the entire report, or only that portion which Barr decides can otherwise be disclosed?

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“Its Weird Being in an Organization that is Less Popular than Colonoscopies and Nickelback”

So said yesterday Representative Derek Kilmer (D-WA), the chair of the Select Committee on the Modernization of Congress, a new House committee  created at the beginning of the 116th Congress by a vote of 418-12. It is a bipartisan committee with 12 members equally divided between Democrats and Republicans. Kilmer’s vice-chair is Representative Tom Graves (R-GA).

The select committee’s mission is to fix Congress so that it can be at least as popular as Nickelback and as useful as colonoscopies. More precisely, the House charged it with studying and developing “recommendations on modernizing Congress,” including recommendations on seven specific topics:

      1. rules to promote a more modern and efficient Congress:
      2. procedures, including the schedule and calendar;
      3. policies to develop the next generation of leaders;
      4. staff recruitment, diversity, retention, and compensation and benefits;
      5. administrative efficiencies, including purchasing, travel, outside services, and shared administrative staff;
      6. technology and innovation; and
      7. the work of the House Commission on Congressional Mailing Standards.

In order to formally adopt a recommendation, two-thirds of the select committee’s members must agree to it.

The select committee has a limited lifespan. It is required to issue a final report by the end of the year and will end its existence (barring further action by the House) on February 1, 2020. It is authorized to make recommendations on a rolling basis and is supposed to issue interim status reports every 90 days.

There is no shortage of ideas for the select committee to consider. LegBranch.org has created this page with an excellent compilation of  proposals and resources that will be useful for the committee and others interested in congressional reform. I have a few ideas myself (see, for example, here and here). But first the committee has to get started. As of yet, it has not held or scheduled any hearings, nor has it apparently hired any staff.

Chairman Kilmer made his remarks at a Bipartisan Policy Center event yesterday (his discussion with Michele Stockwell of BPC starts at about the 12 and a half minute mark on the video). Not a great deal of news in the discussion. I was interested to know that he wants to look at best practices from the state legislatures. He is also not a big fan of the motion to recommit, though I doubt there will be any bipartisan agreement on reforming that procedure.

But in any event, nothing can happen until the select committee gets going. Until then, colonoscopies and Nickelback will keep extending their lead.

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Some Preliminary Thoughts on the House Judiciary Document Requests

Yesterday the House Judiciary Committee issued document requests to 81 individuals, government agencies and other organizations. The cover letter from Chairman Nadler explains that the committee “is investigating a number of actions that threaten our nation’s longstanding commitment to the rule of law, including allegations of obstruction of justice, public corruption, and other abuses of power.” As Spencer Ackerman put it more colorfully, the committee wants the files of “anyone who might know anything about any allegation about wrongdoing by President Trump, encompassing everything from obstruction of justice to collusion with Russia to paying off potential ex-mistresses.”

At the outset it should be noted that these are document requests, not subpoenas, and therefore do not impose any legal obligation on the recipients, with two caveats. First, the requests put the recipients on notice that the documents are relevant to and being sought in a congressional proceeding, thus establishing or helping to establish one or more elements of obstruction of Congress should any of this evidence later be altered or destroyed.

Second, although there is no legal enforcement mechanism, by practice and policy it is expected that government agencies will respond in good faith to congressional requests for information. See Letter Opinion for the Counsel to the President from Curtis E. Gannon, Acting Asst Atty Gen. for the Off. of Legal Counsel, at 3 (May 1, 2017) (“Upon receipt of a properly authorized oversight request, the Executive Branch’s longstanding policy has been to engage in the accommodation process by supplying the requested information ‘to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.'”) (quoting the Reagan memorandum of 1982); see also Letter from Senate Judiciary Chairman Charles E. Grassley to President Donald Trump at 6 (June 7, 2017) (“the Executive Branch should work to cooperate in good faith with all congressional requests to the fullest extent possible”). It is therefore likely the government recipients (the White House, Department of Justice, FBI, and General Services Administration) will provide some sort of timely response to the committee’s requests.

We can also anticipate, however, that these agencies will contend that the requests are inconsistent with their “constitutional and statutory obligations” in several respects. A number of the requests implicate matters (national security and foreign policy, exercise of the pardon power, discussions between high level advisors and the president personally) that traditionally lie at the heart of the doctrine of executive privilege. See generally Mark J. Rozell, Executive Privilege 49-61 (1994). It seems doubtful that the Trump administration will produce these materials without a fight.

The Judiciary committee has tried to forestall this objection by limiting the initial production to documents already produced to other investigative bodies, such as the Special Counsel’s office and the U.S. Attorney for the Southern District of New York. The administration, however, can be expected to argue that sharing information within the executive branch does not waive the privilege with regard to congressional requests.

The administration will also probably contend that the committee’s requests impinge upon open criminal investigations and violate grand jury secrecy rules. In particular, the document requests to the Justice Department and FBI would seem to encompass materials that these organizations or their components have gathered in their investigative capacities. If so, the administration may argue that the committee is essentially trying to obtain the work product of the Special Counsel and the SDNY.

Another category of recipient to keep an eye on consists of former Trump administration officials, including former Attorney General Jeff Sessions, Chief of Staff Reince Priebus, White House Counsel Don McGahn and many others. These individuals are in a tricky situation. They may have varying degrees of interest in cooperating with the committee, but they are unlikely to want to produce information over the administration’s objections. On the other hand, they probably do not want risk contempt (a possibility if and when the committee issues subpoenas) or incur enormous legal fees by fighting with the committee either.

I suggested on Twitter, half jokingly, that Tom Bossert (the former homeland security advisor and one of the lucky recipients) should interplead the committee and the administration. In all seriousness, though, the former 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. Such an action would certainly be more meritorious (which is not to say necessarily successful) than Jim Comey’s lawsuit against the committee last December.

The remaining 60 or so recipients are individuals and organizations with a variety of interests and legal postures vis a vis the committee’s requests. One (as far as I know) is the president’s personal lawyer, Jay Sekulow, who will presumably assert attorney-client privilege in response to most if not of all of the committee’s requests. Others are foreigners (e.g., Julian Assange, Wikileaks) who will probably ignore the committee’s requests unless it can figure out how to subject them to legal compulsion. Each recipient will have to make a decision about whether and how much to cooperate with the committee based on his/her/its individual situation and interests.

The only thing we can say for sure is there will be no shortage of congressional legal issues to discuss.

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The Trump Organization’s Complaint Against the House Judiciary Committee

Yesterday counsel for the Trump Organization wrote to the House Judiciary Committee alleging that the committee’s special oversight counsel, Barry H. Berke, “is ethically conflicted from representing or advising the Committee on any matters pertaining to the Company, and to respectfully demand that the Committee cease and desist from all investigative or other activities adverse to the Company.” My initial reaction from media reports was that this was a frivolous claim. After reading the actual letter, however, the issue turns out to be a bit more complicated.

To be clear, the demand that the Judiciary committee cease all investigations or other activities adverse to the Trump Organization is ridiculous. Even assuming Berke is personally conflicted (which, as discussed below, he may be), there is no basis for arguing this conflict somehow disables the committee from performing its legislative and investigative functions.

The Trump Organization analogizes this to a situation where a law firm is disqualified from representing a client in court, but it would be more analogous to prohibiting the client itself from participating in the litigation. The company’s letter cites nothing in the rules of professional conduct to suggest that a government agency or entity can be barred from conducting the public business simply because it hired a lawyer with a conflict. To the contrary, state bars have recognized that such interference would be improper. Thus, for example, DC Legal Ethics Opinion 308 notes that the normal rules of imputed disqualification do not apply to government agencies “[d]ue to the draconian effects of imputed disqualification on the ability of the government to obtain legal services.” Furthermore, even if the bar rules could be read to permit such a draconian result, there would be serious constitutional objections to any attempt by the bar to regulate the operations of Congress in this fashion. See Michael L. Stern, Ethical Obligations of Congressional Lawyers, 63 NYU Ann. Survey of Am. L. 191, 208 & n. 59 (2007).

With regard to Berke himself, there would not have been an ethical problem had he simply left his prior law firm (Kramer Levin) and joined the staff of the Judiciary committee. Although Kramer Levin  apparently has had a longstanding attorney-client relationship with the Trump Organization, there is no allegation that its representation has involved matters that are the same as or substantially related to matters that Berke may be handling at the Judiciary committee. In addition, it is not claimed that Berke himself was involved in representing the Trump Organization. Therefore, under ordinary circumstances, he would be free to participate in the committee’s investigation of the company.

However, Berke did not join the committee as an ordinary staffer. Instead, according to the committee’s press release earlier this month, he was “retained on a consulting basis as special oversight counsel[] to the Majority Staff, advising the Committee’s Oversight Counsel team on a range of issues.” Although his law firm is not being paid for the time he is spending on committee business, he remains at least nominally as a partner in Kramer Levin. The Trump Organization plausibly argues that this arrangement violates bar rules prohibiting a lawyer from handling matters adverse to an existing client (the Trump Organization maintains that it is an existing client of Kramer Levin, though there may be some factual dispute about that).

In addition to this question of professional ethics, it is not clear to me that this arrangement has been adequately scrutinized under  House rules. It is true that committees sometimes retain outside counsel for purposes such as conducting discrete investigations (usually involving internal ethical misconduct), providing specialized legal advice or litigating a particular case. The arrangement with Berke, however, looks more like someone who fulfilling the role of a regular staffer but being exempted from the normal restrictions on outside activities and income. Perhaps it is perfectly ok (it was approved by the Committee on House Administration), but someone ought to take a closer look. The Office of Congressional Ethics, for example.

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Do-Over Congressional Elections: The 1974 Louisiana Moore-LaCaze Race

Before leaving (hopefully) the subject of election do-overs, I should mention that there is one relevant modern “precedent,” of a fashion, which came to my attention after my initial post on the subject. (Hat tip: Steven Shepard of Politico).

The election of November 5, 1974 in Louisiana’s sixth congressional district was between Republican Henson Moore and Democrat Jeff LaCaze. The initial count had Moore leading by 44 votes, but LaCaze was able to obtain a TRO in state court preventing the certification of the results based on an allegedly malfunctioning voting machine. After the issue of the court’s jurisdiction was litigated up to the Louisiana Supreme Court (which upheld it), the trial judge (Judge Shortess) took evidence regarding the voting machine, which he determined was defective and may have changed the outcome of the election. See Melvin A. Shortess & Charles G. Douglas III, State Courts and Federal Elections, 62 A.B.A. J. 451, 453 (1976).

Judge Shortess then concluded that the appropriate remedy was to order a new election for the congressional district (he considered, but rejected, the alternative of rerunning the election in just the precinct affected by the defective voting machine). Review of this decision was sought in the Louisiana Supreme Court, which denied the writ. See LaCaze v. Johnson, 310 So.2d 86 (La. 1974).

A new election was held, which Moore won handily. He was seated by the House, apparently without further controversy. An unusual article co-written by Judge Shortess later claimed that this action by the House showed “by clear implication the House approved the analysis adopted by the state judiciary in Louisiana.” 62 A.B.A. J. at 453.

I would not assign much precedential weight to the House’s silence, particularly as to issues not before it. As far as I can tell, the question whether do-over elections conflict with federal law was not raised even in the Louisiana litigation. Two justices dissented from the denial of review of Judge Shortess’s order of a new election, but they merely argued that the circumstances did not warrant “the drastic step of annulling the entire election.” 310 So.2d at 88 (Dixon, J., dissenting). They did not consider whether federal law prohibited calling a new congressional election when no vacancy existed.

Nonetheless, the Louisiana case provides some support for the proposition that do-over congressional elections may be held, at least when ordered by a court as an extraordinary remedy. However, it is hardly conclusive as to an issue not raised, namely whether a state may provide for a do-over congressional election when, in circumstances it defines, the initial election is deemed unfair or inadequate. This remains very much an open question in my mind.

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North Carolina Still Has a Problem

Yesterday the North Carolina election board unanimously voted to call a new election in the state’s ninth congressional district, an unexpected result that occurred after the Republican candidate, Mark Harris, basically imploded on the stand and ended up agreeing with his Democratic opponent that a new election was needed. As a practical matter, this might seem to moot my concerns about the legality of this process because, with both candidates and their respective political parties on board, it is difficult to imagine a challenge to a second election being seriously entertained.

Not so fast. It turns out that there is still a dispute about the process for conducting the new election. Under North Carolina law as of the time of the 2018 election, a new election called by the election board is supposed to be limited to the same candidates who were on the ballot in the original election (with some exceptions not relevant here).  See NC Gen. Stat. 163-182.13 (c).

However, in December 2018, after the state election board refused to certify the result in the ninth congressional district, the Republican-controlled North Carolina legislature passed a new law that requires the candidates in a  new congressional election ordered by the board to be selected in primaries. This law, the New York Times observed, “opens the door for Republicans to consider replacing Mark Harris, their candidate in the disputed race in the Ninth Congressional District.” Under the current circumstances, this door is one Republicans are happy to have.

However, the three sitting Democratic members of Congress from North Carolina protested the passage of the new law, contending that “changing the law after the election, to require a new primary, is likely unconstitutional.” Needless to say, the Democrats would be better off if Republicans were required to run Harris as their candidate. Therefore, although the election board apparently intends to follow the new law and require that primaries be held, there could well be a legal challenge to this process.

Assuming for the sake of argument that states have the power to provide for do-over elections under their general authority to regulate congressional elections (art. I, § 4, cl. 1), it is not at all obvious to me whether that power extends to changing the law after an election has already occurred. It is possible that a court would order a new election to take place under the old law, which would deprive other Republican candidates of the opportunity to run. It is also possible that a court would conclude (correctly, I tend to think) that North Carolina lacks the power to provide for a do-over election at all. In either case, there is likely to be a procedural mess, as well as continuing controversy regarding the fairness and legality of the process.

But there is a simple way to avoid this. The House can simply declare the seat vacant (an noncontroversial act now that both candidates agree the first election must be set aside). This will trigger NC Gen. Stat. 163A-721, which requires the governor to set times for both primaries and the general election. It is the same process being used to fill the vacant seat caused by the death of Congressman Walter Jones and, as far as I know, there is no legal objection that could be made to it.

So why not do that?

 

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Why the North Carolina Election Board Should Punt to the House

Yesterday the North Carolina election board began hearing testimony regarding alleged fraud and misconduct affecting the 2018 election in the state’s 9th congressional district. Attorneys for Dan McCready, the Democratic candidate who finished 905 votes behind his opponent, urge the board to exercise its authority under NC Gen. Stat. 163-182.13 (a) (4), which allows it to order a new election if it finds “irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness.” Attorneys for Mark Harris, the Republican candidate, argue that the statutory standard has not been met and that in any event the discretionary remedy of calling a new election should not be employed.

My prior post on this issue assumed North Carolina’s authority to call a new election here would have to rise or fall based on the House Vacancies Clause (art. I, § 2, cl. 4) in the U.S. Constitution. Under this theory, the decision of the state election board to order a new election would have to be viewed either as a legally operative act creating a vacancy under North Carolina law or as prima facie evidence that a vacancy already exists. In either case the governor would have to issue a writ of election to comply with the House Vacancies Clause, which provides “[w]hen Vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”

This theory, however, seems problematic. For one thing, it is not at all clear that the governor will play any role here. There is a statutory provision for filling congressional vacancies, NC Gen. Stat. 163A-721, which the governor will use to fill the vacancy caused by the death of Congressman Walter Jones (RIP), but this provision appears to operate separately from the state election board’s process for calling new elections. Moreover, any attempt to argue that a vacancy exists would have to grapple with the fact that the House itself has not recognized a vacancy.

An alternative theory would be that the state election board’s authority flows from the state’s general power to regulate elections under the Constitution (art. I, § 4, cl. 1), which provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” Under this theory, North Carolina’s statutory scheme would prescribe the “time” and “manner” of electing representatives in situations where the initial election failed.

The problem with this theory, as mentioned in my earlier post, is that it seems to run afoul of 2 U.S.C. § 7, which provides that the general election for representatives to each congress must take place on a single uniform day in all states (i.e., the Tuesday after the first Monday in November in every even-numbered year). This federal law overrides any state law to the contrary. See generally Foster v. Love, 522 U.S. 67 (1997). As far as I know, there is no federal law allowing a “do over” exception to this mandate.

Therefore, it seems to me that any order from the North Carolina elections board ordering a new election in this case would run a significant risk of being held unconstitutional and/or a violation of federal law.

Another problem is that the elections board can only order a new election if four of its five members agree to do so. The board consists of three Democrats and two Republicans, creating a distinct possibility that it will be unable to reach agreement on the proper course of action. McCready’s lawyers argue that in such case the board should decline to certify the election and instead send its findings and records to the House of Representatives, deferring any further action until the House decides what to do. Harris’s lawyers counter that North Carolina law requires the board to either order a new election or certify Harris as the winner.

Whether or not a vacancy exists in this case is a determination only the House ultimately can make (however much it may wish otherwise). Regardless of whether the board certifies Harris as the winner, it should send its records, along with any findings or recommendations it deems fit to make, to the Committee on House Administration for purposes of allowing the House to make that determination. No election should be called until the House does so.

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BLAG’s Authority to Represent the House in Court

 

See Update Here

On February 11, 2019, the new General Counsel of the House, Douglas N. Letter, filed an amicus brief in U.S. Dept of Commerce v. State of New York, the case that challenges the Trump administration’s decision to add a citizenship question to the 2020 census. A federal district court ruled that the addition of the question violated the Administrative Procedure Act, and the Solicitor General sought a writ of certiorari before judgment from the Supreme Court. Letter’s brief argues that the district court’s decision is correct and urges the Court, should it decide to hear the case, to do so promptly in order to avoid disruption or delay in the census. (The Court has now agreed to hear the case on an expedited basis, with argument scheduled for late April).

I have nothing to say, at least at the moment, about the merits of this dispute, but I do have an observation about the caption of the brief, which is styled “Brief of Amicus Curiae United States House of Representatives in Support of Respondents.” This caption took me by surprise because during my time in the House General Counsel’s Office amicus briefs reflecting House institutional positions were filed in the name of the Bipartisan Legal Advisory Group (BLAG), rather than in the name of the House itself (unless the House actually voted on the matter, which rarely if ever happened).

It turns out that I had somehow overlooked a small but potentially important change to House rules which took place in 2015 at the outset of the 114th Congress. House Rule II(8), which provides the authority for the House Office of General Counsel, was amended to include the following subparagraph (b):

There is established a Bipartisan Legal Advisory Group composed of the Speaker and the majority and minority leaderships. Unless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.

Continue reading “BLAG’s Authority to Represent the House in Court”

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Is Senator McSally Unconstitutional?

An interesting Seventeenth Amendment issue is raised by this Atlantic article by Professor Garrett Epps.  Epps contends that the Arizona law which permitted the governor to appoint Martha McSally to fill the vacant senate seat arising from the death of Senator John McCain is unconstitutional. A new lawsuit filed in Arizona federal court, Tedards v. Ducey, seeks to force the governor to call an immediate special election to fill the vacancy.

To understand the issue, we should begin with the text of the Seventeenth Amendment:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This seemingly straightforward language turns out to be more complicated on closer inspection. For example, what happens if a vacancy arises so close to the end of a senate term it is impossible or impractical to call a special election to fill the remainder of the term? A literal reading of the constitutional language might suggest that in such instances the governor is disabled from making an appointment at all because such an appointment would not be a “temporary” one lasting only until the people fill the vacancy by election.

Perhaps not surprisingly, the constitutional text has not been so interpreted, presumably because it makes little or no sense to deprive the governor of the authority to fill a vacancy in such circumstances and because to do so would contravene the important goal of ensuring that each state is fully represented in the Senate. See U.S. const., art. v (“no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”). Indeed, there have been at least 27 instances since the ratification of the Seventeenth Amendment where the governor’s appointee served out the balance of the senate term rather than being replaced at some point by a senator popularly elected to fill the vacancy. See Judge v. Quinn, 612 F.3d 537, 556 (7th Cir. 2010) (“Judge I“). This practice is at least some evidence that the Constitution does not require a special election in all circumstances when a senate vacancy is filled by executive appointment.

What about vacancies at the opposite extreme, namely those that arise relatively early in a senate term? The Seventeenth Amendment does not specify when the special election to fill a vacancy must take place. Thus, if a state were to provide that the special election to fill the vacancy take place at the time of the general election immediately preceding the expiration of the senate term, the election could theoretically take place more than five years after the vacancy arose. Although such a state law would not violate the literal terms of the Seventeenth Amendment, it arguably conflicts with the spirit of the amendment’s “primary objective of guaranteeing that senators are selected by the people of the states in popular elections.” Judge I, 612 F.3d at 555.

Continue reading “Is Senator McSally Unconstitutional?”

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Can Virginia Lieutenant Governor Fairfax Be Impeached? It’s Complicated.

As I wrote a post recently regarding whether Virginia governor Ralph Northam could be impeached for a racist photo that appeared on his medical school yearbook page decades earlier (I said no), I temporized regarding a more difficult hypothetical. Suppose that after an individual has assumed office, it comes to light that he committed a serious crime, such as murder or rape, years before taking office and completely unrelated to his political life? Note that this question has implications for whether a president can be indicted because, if a president can neither be indicted nor impeached for some serious criminal offenses preceding his time in office, it means that he would be effectively immune from accountability for the remainder of his term.

Thanks to Virginia lieutenant governor Justin Fairfax (good job, Virginia), this hypothetical has come to life. Fairfax is accused of two separate sexual assaults, both of which long preceded his time in office. Fairfax denies the allegations. A member of the Virginia House of Delegates has announced that if Fairfax does not resign, he will introduce an impeachment resolution as early as Monday. This raises the question whether the allegations against Fairfax are grounds for impeachment.

This is not an easy question. In his recent book, Professor Michael Gerhardt, one of the leading scholars on impeachment, discusses the hypothetical of a presidential candidate “who lied about committing a murder during the campaign but then later is discovered to have been responsible for that crime.” Michael J. Gerhardt, Impeachment: What Everyone Needs to Know 56 (Oxford U. Press 2018). Gerhardt notes the recent case of federal judge Thomas Porteous, who was impeached by the House and convicted by the Senate in part based upon lying during the confirmation process about corrupt behavior as a state judge. (We also discussed the Porteous case here).

Continue reading “Can Virginia Lieutenant Governor Fairfax Be Impeached? It’s Complicated.”