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The Justice Department’s Inventive New Process for (Not) Responding to Congressional Questions

Acting Attorney General Matthew Whitaker was scheduled to appear before the House Committee on the Judiciary tomorrow. According to the latest communication by the Department of Justice, however, he may refuse to appear because the committee has authorized a subpoena for his testimony (even though the subpoena has not actually been served on him). [Update: it seems he will appear after all].

This unusual chain of events began in early January, when Judiciary Committee Chair Jerry Nadler invited Whitaker to testify before the committee at a general oversight hearing regarding the Department of Justice’s operations. Nadler identified a broad range of areas regarding which the committee would likely have questions. Some of these areas related specifically to the investigation of Special Counsel Robert Mueller; others involved completely unrelated areas. The former included questions about Whitaker’s decision not to recuse himself from matters involving the investigation and the question of how the investigation is currently being supervised at the Department of Justice. In addition, Nadler notes “[w]e must discuss the impact of the President’s near-daily statements attacking the integrity of the Department of Justice, the FBI, and Special Counsel Robert Mueller’s investigation.”

After some back and forth over scheduling, Whitaker agreed to testify at a February 8 hearing. On January 22, Nadler sent him a follow-up letter listing a series of specific questions Whitaker could expect to be asked at the hearing. Some of these questions fell clearly within the subjects delineated in Nadler’s earlier letter; others were arguably beyond the scope. For example, some of the questions focused on discussions with President Trump about the investigation by the U.S. Attorney for the Southern District of New York, something that was not specifically mentioned in Nadler’s first letter but is closely related the Special Counsel’s investigation as well as Trump’s general attacks on the Department of Justice.

In any event, Nadler explained that he was sending these questions because “your responses may implicate communications with the President of the United States.” Nadler directed Whitaker to “take any steps that may be necessary for the White House to consider these communications and for the President to determine whether he will invoke executive privilege.” Absent such a formal invocation of privilege by the president, Nadler stated “I will expect you to answer these questions fully and to the best of your knowledge.”

Earlier today, the committee held a business meeting for the purpose of authorizing a testimonial subpoena to Whitaker. According to Nadler, this was necessary “[i]n an abundance of caution to ensure Mr. Whitaker both appears in the hearing room on Friday morning and answers our questions cleanly . . . .”

As a legal matter, it is not clear why this step was deemed necessary. If Whitaker had simply failed to show up at the hearing after saying that he would (which seems unlikely), the committee would presumably have had to subpoena him for a future hearing, which could be easily done whether or not a subpoena had previously been authorized. On the other hand, if Whitaker showed up voluntarily, he would be under the same obligation to answer questions as he would have been under subpoena. See Sinclair v. United States, 279 U.S. 263, 291 (1929) (holding that the congressional contempt statute’s penalty for refusing to answer questions “plainly extends to a case where a person voluntarily appears as a witness without being summoned as well as to the case of one being required to attend.”).

In any event, the Department of Justice (through Assistant Attorney General for Legislative Affairs Stephen E. Boyd) responded to the committee’s authorization of a subpoena by demanding a written assurance “that the Committee will not issue a subpoena to the Acting Attorney General on or before February 8, and that the Committee will engage in good faith negotiations with the Department before issuing a subpoena.”

The first part of this demand is simply the flip side of the committee’s position and is rather silly. If Whitaker shows up at the hearing, there is no reason for the committee to serve him with a subpoena. Conversely, there is no reason to demand that the committee not serve him with a subpoena if he shows up. It really does not matter.

The second part of the demand, however, is different. The Department is using the committee’s theatrical and unnecessary authorization of a subpoena as an opportunity to establish a new and (as far as I know) unprecedented position regarding the process for responding to congressional questions at a hearing. According to Boyd’s letter, the appropriate process for responding to questions that may implicate executive privilege is that first the committee must ask the questions at a hearing in which the witness appears voluntarily, then there must be a period of negotiation in which the parties attempt to resolve differences and, only then, if an accommodation cannot be reached, the committee may issue a subpoena and the president may choose to formally invoke executive privilege.

This is ridiculous. In support of this theory, Boyd quotes an opinion by the once (and presumably future) Attorney General, Bill Barr. But Barr’s opinion related to the process for producing documents, not oral testimony. Although there is nothing prohibiting a committee from issuing a document subpoena in the first instance, the ordinary process is to begin with a document request, have a period of negotiation and the proceed to a subpoena. Indeed, my proposed House rule would formalize that process and add deadlines to ensure that committees are able to get a final response (including a decision by the president whether or not to invoke executive privilege) within a timeframe that is useful for fulfilling their oversight functions.

The proposed rule does not address oral testimony, however, because there the process is different. A committee is free to ask witnesses any questions pertinent to a matter within the committee’s jurisdiction. If the witness declines to answer on grounds of executive privilege (or, more precisely, that the question is one on which the president might decide to invoke executive privilege), theoretically the committee could move immediately to hold the witness in contempt. There is no need to issue a subsequent subpoena because, as we have already seen, the witness is under a legal obligation to answer at the time the questions are asked. As a matter both of practice and practicality, however, the committee should give the witness an opportunity to consult with White House counsel and others to determine whether the president intends to formally invoke the privilege before moving forward with contempt.

The problem is that there is no deadline within which the president must make this decision. The executive branch can (and does) drag the process out indefinitely, often citing the layers of legal counsel that must be consulted before a decision is reached (agency counsel, if applicable, then the Office of Legal Counsel, then the Attorney General, then the White House counsel, etc.). If Congress proceeds with contempt in the meantime, the president can invoke executive privilege immediately before the final contempt vote or even thereafter. And there is little Congress can do about it.

By informing Whitaker of the specific questions before the hearing, Chairman Nadler is cleverly trying to speed up this process (in a manner analogous to my proposed rule on document subpoenas). Whitaker is clearly on notice as to the types of questions that will be asked and has had an opportunity to consult with others in the Department and the White House as to where to draw the lines. But it would not be advisable to press this too far. Until the hearing is actually held, there is no way to say for sure what questions will be asked, whether the committee will be satisfied with Whitaker’s answers to particular questions, what follow up questions might be asked, etc. So assuming that the president does not formally invoke executive privilege before the hearing, the committee should provide Whitaker with a limited but reasonable period of time to determine whether the privilege will be invoked. If the time period expires without any invocation, the committee will be in as strong a position as possible to move forward with contempt.

Of course, the committee still has the problem of how to enforce the contempt. But we will leave that problem for another day.

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Can Governor Northam be Impeached?

No.

Perhaps I should elaborate. Article IV, section 17 of the Virginia Constitution (adopted in 1971) provides: “The Governor, Lieutenant Governor, Attorney General, judges, members of the State Corporation Commission, and all officers appointed by the Governor or elected by the General Assembly, offending against the Commonwealth by malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor may be impeached by the House of Delegates and prosecuted before the Senate, which shall have the sole power to try impeachments.”

This language is identical to that contained in the Virginia Constitution of 1902, except that the latter referred to the “State” rather than the “Commonwealth.” The reference to “high crimes and misdemeanors,” language also contained in the U.S. Constitution, dates back to the Virginia Constitution of 1830, which provided: “The Governor, the Judges of the Court of Appeals and Superior Courts, and all others offending against the State, either by maladministration, corruption, neglect of duty, or any other high crime or misdemeanor, shall be impeachable by the House of Delegates; such impeachment to be prosecuted before the Senate, which shall have the sole power to try all impeachments.”

It is clear that Governor Northam has not committed “malfeasance in office, corruption or neglect of duty.” This leaves “other high crime or misdemeanor” as the only charge that conceivably could be brought against him for the offending conduct (which, in case you have been under a rock for the past 48 hours, consists of offensive and racist photos on his medical school yearbook page in 1984).

The term “high crime and misdemeanor” as used in the U.S. Constitution is broad and, as we have discussed before, not necessarily limited to conduct while in office. There is precedent for the proposition (again, at the federal level) that conduct predating the office in question may constitute a high crime or misdemeanor if the misconduct related to a different office and/or can be causally linked to the gaining of the current office. Thus, for example, if an officeholder were to attain office by corruptly rigging an election, there is a strong argument that this could provide the basis for impeachment and removal.

In Northam’s case, one would have to argue that his failure to reveal his prior misbehavior, decades prior to his election as governor, constituted a fraud on the electorate that resulted in his attaining the governorship. Not only would that mean that every untruth told during a political campaign would be potentially impeachable, but that an officeholder could be impeached simply for failing to volunteer damaging information.

To be sure, impeachment has both legal/judicial and political attributes, and the latter is reflected in the “awful discretion which a court of impeachments must necessarily have” such that it “can never be tied down by such strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favour of personal security.” The Federalist No. 65 (Hamilton). But to extend that discretion so far as to encompass any distasteful behavior at any point in an officeholder’s life would be to disregard entirely the judicial aspects of the proceeding and to make impeachment little more than a measure of political popularity.

It is difficult to draw a precise line as to when conduct preceding an officeholder’s tenure should be considered potentially impeachable. But non-criminal conduct that occurred decades before taking office cannot be close to that line.

 

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Congressional Subpoenas, Contempt, and Executive Privilege: Molly Reynolds and Stan Brand Discuss

There will undoubtedly be a lot of content appearing in the next few months about congressional subpoenas and how to enforce them, along with the related topics of contempt of Congress and executive privilege. Most of this will be review for the regular readers of this blog (you can click on the “congressional investigations,” “contempt of Congress” or “executive privilege” categories to see Point of Order’s prior posts on these topics), but you still might want to check out this podcast featuring Molly Reynolds of Brookings and former House General Counsel Stan Brand, which provides a good overview of the subject as well as some history of the House Counsel’s office (you can find out, for example, why Neil Gorsuch might not be the biggest fan of the congressional subpoena power).

As Stan explains, the biggest problem with congressional subpoenas is that there is no clearly established mechanism to enforce them against the executive branch. Civil contempt is the only currently usable method, but it faces a number of obstacles, the greatest of which is that it is somewhere between extremely difficult and impossible to get a resolution within the time frame of a two-year congress. This gives the Justice Department and its clients a strong incentive to delay as much as possible, knowing that by the time a court gets around to deciding the dispute, it is likely that the whole matter will be moot.

As it happens, I have proposed a reform to House rules designed to address this problem (you can read about it here). Thus far the House in its wisdom has not seen fit to adopt this proposal, but perhaps someone will bring it to the attention of the new House Select Committee on the Modernization of Congress.

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Impeachment or Indictment: What If the President Actually Shoots Someone on Fifth Avenue?

Since the subject of my last post turns out to be somewhat hypothetical, let’s turn to another hypothetical that is often invoked to show that it must be possible to indict (and prosecute) a sitting president for some crimes. Here is how Professor Larry Tribe put it recently:

Nearly everyone concedes [a prohibition on indicting the president] would have to permit exceptions. The familiar hypothetical of a president who shoots and kills someone in plain view clinches the point. Surely, there must be an exception for that kind of a case: Having to wait until the House of Representatives impeaches the alleged murderer and the Senate removes him from office before prosecuting and sentencing him would be crazy.

CNN Anchor Erin Burnett also raised the hypothetical of a murderous president during a January 3, 2019 debate between Norm Eisen (representing the “pro-indictment” or “anti-immunity” position) and David Rivkin (representing the “pro-immunity” position):

BURNETT: Let me interject. The president once famously said I could shoot somebody on Fifth Avenue, we’re not even talking about Russian conspiracy. I could shoot someone on Fifth Avenue. You’re saying if he did that, if he murdered somebody he still above the law, still can’t indict him?

RIVKIN: No, he’s not above the law. He can’t be indicted for murder. There’s only one Constitution proper way to deal with an aberrant president. And that’s what the framers intended, beside from elections. And between elections, you got the impeachment process which features political accountability.

* * *
BURNETT: Norm, you heard David. Even in murder, he would put it to the political process of impeachment. Not indict somebody for murder?

EISEN: The murder example explains why this is so wrong, Erin.

You can watch the video here.

This is not a new hypothetical. In fact, it was raised as early as September 26, 1789, when Senator William Maclay entered into an argument with Vice-President John Adams, Senator Oliver Ellsworth and others who believed the president could only be impeached, not indicted. Maclay summarized the discussion:

I put the case: “Suppose the President committed murder in the street. Impeach him? But you can only remove him from office on impeachment. Why, when he is no longer President you can indict him. But in the meantime he runs away. But I will put up another case. Suppose he continues his murders daily, and neither House is willing to impeach him?” Oh, the people would arise and restrain him. “Very well, you will allow the mob to do what legal justice must abstain from.” Mr. Adams said I was arguing from cases nearly impossible. There had been some hundreds of crowned heads within these two centuries in Europe, and there was no instance of any of them having committed murder. Very true, in the retail way, Charles IX of France excepted. They generally do these things on a great scale. I am, however, certainly within the bounds of possibility, though it may be improbable.

William Maclay, Journal of William Maclay 166-67 (E. Maclay ed. 1890), quoted in Impeachment or Indictment: Is a Sitting President Subject to Compulsory Criminal Process?, Hearing Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Senate. Comm. on the Judiciary, 105thCong., 2d Sess., at 41-42 (1998) (hereinafter the “1998 Hearing”) (testimony of Eric M. Freedman).

You can imagine this passage being read by Erin Burnett, complete with furrowed brow and skeptical expression. (What can I say? I’m easily amused.)  Continue reading “Impeachment or Indictment: What If the President Actually Shoots Someone on Fifth Avenue?”

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Impeachment and the Cohen Allegations

Things are moving ahead at a rapid pace, and I am therefore going to interrupt my discussion of impeachment and indictment to discuss some breaking news. As you may have heard, it is being reported that “President Donald Trump directed his longtime attorney Michael Cohen to lie to Congress about negotiations to build a Trump Tower in Moscow, according to two law enforcement officials involved in an investigation of the matter.”

Because the House Permanent Select Committee on Intelligence (HPSCI) issued its Russia report in the spring of last year, we have a pretty good idea of what Cohen told the committee and how his testimony may have influenced its conclusions. First, let’s review the relevant sections of the report, as summarized in an earlier blog post:

[T]he report discusses the business relationship between Trump and Russia. For example, while Trump was in Moscow in 2013 for the Miss Universe pageant (which he owned at the time), he discussed with his business partners, the Agalarovs, the possibility of constructing a Trump Tower Moscow. Subsequently, during the presidential campaign, Trump’s personal lawyer, Michael Cohen, worked on a potential Trump Tower Moscow deal with Felix Sater, a colorful and shady Russian-American businessman who had pleaded guilty in the 1990s to participation in a stock fraud scheme allegedly orchestrated by the Russian mafia.

In late 2015 and early 2016, Cohen and Sater had a number of communications related to the Trump Tower Moscow project. Many of these conversations involved the need to get Russian government backing for the project, including “an attempt to broker a meeting or other ties between candidate Trump and President Putin.” Sater claimed, perhaps falsely or with exaggeration, to have connections to Putin and other Russian government officials who would support the project. He also suggested that cementing a business deal between Putin and Trump would benefit the latter politically. In a November 3, 2015 email to Cohen, Sater wrote: “Buddy our boy can become President of the USA and we can engineer it. . . . [If] Putin gets on stage with Donald for a ribbon cutting for Trump Moscow, . . . Donald owns the republican nomination.”

Much or all of this may have been grandiose puffery on Sater’s part, but Cohen was not merely pretending to represent Trump and the Trump Organization. Whether his clients were specifically aware of his communications with Sater, there does not seem to be any doubt they approved his efforts to move the Trump Tower Moscow forward in the midst of the presidential campaign or that they understood this would require the approval and support of the Russian government.

The Trump Tower evidence laid out by the committee would seem to establish, at the very least, (1) a conflict of interest that might reasonably be thought to explain Trump’s pro-Russia views and (2) corroboration of other evidence discussed in the report suggesting that Trump and/or his associates expected and welcomed Russian assistance in the campaign.

Since the issuance of the HPSCI report, additional facts have come to light regarding this project. For example, Cohen admitted that he lied to Congress when he claimed that the discussions regarding Trump Tower Moscow ended in January 2016; it appears that they continued until June of that year. It also transpired that Trump himself signed a letter of intent for the project in October 2015.

Note that even if everything Cohen had told HPSCI was the truth, the whole truth and nothing but the truth, his testimony should have been extremely troubling, to say the least. A candidate (1) with unusually pro-Russian policy positions, a campaign manager with a history of corrupt Russian dealings, and a number of campaign advisors with questionable Russian connections; (2) whose campaign engaged in inappropriate and ill-advised contacts with Russia, such as the June 2016 meeting in Trump Tower New York (which HPSCI said evinced “poor judgment”); (3) whose praise for and campaign’s communications with Wikileaks, a hostile foreign intelligence service linked to Russia, HPSCI found “to be highly objectionable and inconsistent with U.S. national security interests”; and (4) who encouraged and benefitted from election interference by Russia and Wikileaks, also had business dealings with Russia during the campaign (i.e. for at least seven months after Trump announced his candidacy), in which the approval of high-ranking Russian officials would have bestowed a major financial benefit on the candidate.

Standing alone, these facts strongly suggest that Trump’s Russia policies may have been influenced by his financial interests and that Russia had a motive to help Trump win the election because it believed these financial interests would cause him to favor Russia. Trump’s “defense” of this conduct was as follows: “There was a good chance I wouldn’t have won, in which case I would have gotten back into the business, and why should I lose lots of opportunities?” This is hardly reassuring, particularly given that Trump still owns a large business organization which, as far as we know, continues to look for opportunities in Russia and other hostile foreign countries.

Be that as it may, the HPSCI report states: “The Committee determined that the Trump Tower Moscow project did not progress beyond an early developmental phase, and that this potential licensing deal was not related to the Trump campaign.” The committee made this determination based on evidence which included Cohen’s false statement that the Trump Tower Moscow project petered out in January 2016, around the time the first Republican primaries began.

In fact, according to Cohen’s subsequent guilty plea, the negotiations went on until approximately June 2016, during which time Cohen had undisclosed communications with Russian officials as well as Trump and members of the Trump family regarding the project. In addition, during this period Cohen agreed to travel to Russia in connection with the project and also took steps to arrange a trip to Russia for Trump himself. Although it is not clear exactly how seriously the latter was considered, Cohen apparently discussed the idea with Trump and others, and contemplated the possibility of Trump traveling to Russia either immediately before or after accepting the Republican nomination. The possibility of Trump meeting with Russian President Putin during this trip was also discussed.

Interestingly, Cohen pleaded guilty to making a false statement only to the Senate Select Committee on Intelligence (SSCI), perhaps because HPSCI would not provide the evidence needed to establish that his misrepresentation was “material” to its investigation. Nevertheless, it seems likely that a disinterested factfinder would find that his misrepresentation was material to both the HPSCI and SSCI investigations because materiality requires merely that the false statement have a “natural tendency to influence, or be capable of influencing, the decisionmaking body to which it is addressed,” not that it actually influenced the decisionmaker.

For purposes of discussion, I assume that if Trump directed Cohen to make these false statements to HPSCI and SSCI, he is guilty of obstruction of Congress. Whether or not the special counsel has the evidence to prove this crime beyond a reasonable doubt, however, it remains the position of the Department of Justice that a sitting president cannot be indicted. Indeed, as recently as a few days ago, Bill Barr, the nominee for attorney general (and someone I know well and think highly of), told the Senate Judiciary Committee he sees no reason to revisit the Justice Department’s longstanding position on this issue.

Thus, as I suggested in my last post (and will continue to discuss), impeachment, not indictment, is the only practical option for addressing presidential misconduct at the present time. If congressional Democrats are demanding an investigation of the latest revelations (as well they should), they have only themselves to petition for redress of grievances.

It is true that the House (or Senate, for that matter) can investigate this issue without instituting a formal impeachment inquiry. However, instituting such an inquiry sooner rather than later provides at least one advantage. Ordinarily it is extremely difficult for Congress to get evidence from an ongoing criminal investigation (it isn’t that easy to get it from a closed investigation for that matter, as discussed here pages 14-18). But since the president is subject only to impeachment, not indictment, the rationale for allowing an impeachment inquiry immediate access to this information is much stronger.

As former acting solicitor general Neal Katyal writes, “[t]o say that a prosecutor cannot indict a sitting president is, by definition, to say that the prosecutor’s evidence must be given to Congress so it may decide whether the president should remain in office.” While I don’t agree with everything Katyal says in this piece, I totally agree with that. And almost as importantly, so does Brett Kavanaugh. See Brett Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2161 (1998) (“When nonfrivolous allegations or evidence of wrongdoing by the President is received by a prosecutor, that evidence should be forwarded to the House of Representatives.”)

 

 

 

 

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Impeachment or Indictment?

This was the question addressed by a Senate subcommittee about two decades ago (on September 9, 1998, to be precise). See Impeachment or Indictment: Is a Sitting President Subject to Compulsory Criminal Process?,  Hearing Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Senate. Comm. on the Judiciary, 105thCong., 2d Sess. (1998) (hereinafter the “1998 Hearing”). Specifically, with the independent counsel report on misconduct by President Clinton about to be submitted to Congress (it came two days later), the subcommittee asked whether it was constitutionally permissible to pursue criminal charges against a sitting president, or whether such charges had to be deferred until after impeachment proceedings resulted in the president’s removal (or the president otherwise left office).

At the outset, the subcommittee chair, Senator John Ashcroft, posited two distinct questions. The first was whether “as a constitutional matter, can the President be indicted?” 1998 Hearing at 3. This was a “close and difficult” question, one about which legal scholars had “sharply different views.” Id. While Ashcroft leaned toward an affirmative answer to the question, he acknowledged substantial uncertainty on the point and stressed that it was only a “preliminary view” on which he remained “open to persuasion.” Id. at 1.

The second question was “even assuming a sitting President can be indicted, whether a sitting President should be indicted as long as impeachment remains an option.” 1998 Hearing at 4 (emphasis added). This question, Ashcroft explained, was one “of prudence, rather than of constitutional law,” and a matter “of judgment, not of law or whether or not there is authority.” Id.

In contrast to the uncertainty surrounding the first question, Ashcroft argued that the answer to the second was “crystal clear”: “As long as impeachment remains a viable option, impeachment should be the preferred course.” 1998 Hearing at 4. He noted that “[t]he act of disciplining a popularly-elected President is such an awesome task that it ought to be carried out by the most popularly-responsive mechanism possible.” Id. He cautioned, however, that “just as prudence dictates that a prosecutor should defer to Congress when impeachment is an option, prudence also demands that Congress not shrink from its responsibilities.” Id.

Interestingly, despite the intensely partisan context of the hearing, there was a great deal of agreement between Senator Ashcroft and his two Democratic colleagues on these points. Senator Robert Torricelli noted that “offenses by a President of the United States are to the body politic in its entirety, and therefore need to be judged not as narrow abuses against the criminal law.” 1998 Hearing at 6. The framers entrusted the Senate alone to sit in judgment of such offenses, and it was the Senate’s obligation “to actually live up to those responsibilities.” Id. at 5. Torricelli concluded that impeachment was a “condition precedent” to any criminal action against a president; “any indictment would have to follow impeachment and an action by the U.S. Senate to remove a person from the Presidency.” Id. at 6.

Senator Russell Feingold, like Ashcroft, expressed substantial uncertainty on the question whether a sitting president could constitutionally be indicted. While Feingold was uncomfortable with the idea of a president being “above the law,” even temporarily, “a strong argument can be made that the interest in protecting the proper functioning of the Executive Branch outweighs the interest in allowing indictment.” 1998 Hearing at 22. Regardless, Feingold agreed entirely with Ashcroft on the second question: “I think we can all agree . . . that even if indictment prior to impeachment is constitutionally permissible, impeachment first is by far the more prudent approach.” Id. at 21.

Torricelli suggested that the hearing might be important “in an unforeseen administration in undefined events at another time,” 1998 Hearing at 5, and I think it provides a good starting point for discussing the issues that consume much of official Washington in 2019. Legal experts are once again debating whether the Constitution permits the indictment of a sitting president, an issue that remains as open and unsettled today as it was in 1998.

Truth be told, however, no one is really interested in this abstract constitutional question. What people actually want to know is whether indictment is a prudent and practical alternative to impeachment. More specifically, they want to know if it is realistic to believe that President Trump could be indicted and prosecuted in such a way as to end his presidency. The answer to these questions is even more “crystal clear” today than it was in 1998. The answer is no.

As in 1998, considerations of constitutional legitimacy strongly militate in favor of impeachment rather than indictment. Even more clearly, though, indictment is simply not a viable option at all. Brett Kavanaugh wrote in 1998 that indictment of a sitting president would be “virtually untenable as a matter of practice and unwise as a matter of policy.” Brett Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2159 (1998). Developments since then (Kavanaugh’s elevation to the Supreme Court being one, but far from the most important) make indictment of a president virtually impossible and all but guarantee that a hypothetical indictment of the current president would not lead to his removal.

Indeed, the effect (perhaps intended) of arguing the president can be indicted is to distract from the constitutional remedy of impeachment, thereby making it more likely that Congress will shrink from its constitutional responsibilities.

I will elaborate on these points in future posts.

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North Carolina Ninth Congressional District: Status Unchanged

The updates on the North Carolina 9thcongressional district consist largely of things that have not happened. First, not surprisingly, no one has been sworn in to represent the district in the new Congress. Second, no one has been issued a certificate of election, although Republican candidate Mark Harris has filed suit asking a court to order the state elections board to issue him such a certificate. Third, while some investigation into the election by state election authorities continues, formal proceedings are on hold until a new state board of elections is constituted on January 31. Fourth, and somewhat more surprisingly, the House has not taken any formal action to assert jurisdiction or commence an investigation regarding the election, although House Democrats have been having discussions about possible next steps. A good summary of these nondevelopments can be found here.

It appears House leaders are inclined to wait on the outcome of the state election proceedings, unless a court should order Harris certified (in which case the House would refuse to seat Harris and commence its own investigation). They seem to be hoping that the state board of elections will order a new election, thereby obviating the need for the House to take any action.

The problem with this passive approach is that it could take weeks or months for the new state election board to act. Moreover, as suggested in my last post, there are questions about the interaction of the House’s authority to declare a vacancy, the governor’s authority to call a special election in the event of a vacancy, and the state board’s authority to order new elections under state law. These questions and uncertainties could further delay congressional representation for the 9th district.

In the meantime, the House seems to recognize that there is no vacancy in the North Carolina 9th congressional district. Up until yesterday the Clerk’s homepage showed the tally of members in the 116th Congress as including one vacancy, but that has now been changed to zero vacancies. The Clerk’s vacancies page confirms “there are no vacancies for the 1st Session of the 116th Congress.”

What this means for the Clerk’s authority over the empty congressional office remains to be seen. As of Tuesday afternoon, no one seemed to be in 132 Cannon (see photo of the uncollected mail). Unless the House takes further steps to empower the Clerk or someone else to manage the office or hire staff, the people of the district will have to look to their senators if they need constituent service.

 

 

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Is there a Vacancy in North Carolina?

The vote count in North Carolina’s ninth congressional district resulted in the Republican candidate, Mark Harris, leading his Democratic opponent by a narrow margin (905 votes). The North Carolina election authorities, however, have declined to certify his victory as they investigate allegations that the results were tainted by fraud.

This means that the House, which is constitutionally the judge of the elections and returns of its members (Article I, section 5, clause 1), has a decision to make when it meets tomorrow on the first day of the 116th Congress. Will it seat a member to represent the ninth congressional district of North Carolina? According to the incoming House Majority Leader, Steny Hoyer, the answer is no. Last Friday, Hoyer told the Charlotte Observer that Harris would not be seated on January 3 because “[i]n this instance, the integrity of our democratic process outweighs concerns about the seat being vacant at the start of the new Congress.” Hoyer’s position was visually illustrated on Monday by the nameplate on the door of a congressional office at 132 Cannon (see photo below). Rather than bearing the name of the member expected to represent the district, it reads “Office of the 9th Congressional District of North Carolina,” which is how the House designates an office managed by the Clerk under House Rule II(2)(h)(i) in the event that a vacancy occurs.

There is, however, no vacancy in the North Carolina 9th district yet, and there will not be one tomorrow unless the House votes to declare one. The House certainly has the power to do so, but it seems unlikely that it will. The question of whether the seat is vacant is not a relatively straightforward factual question (like whether a member has died or is in a coma from which recovery is unlikely), but a legal judgment that can only be made after reviewing the evidence and determining that (1) fraud occurred and (2) either the candidate was complicit or that the fraud was significant enough to have affected the outcome. This is particularly so given House precedent that “[n]othing short of an impossibility of ascertaining for whom the majority of votes were given ought to vacate an election, especially if by such decision the people must . . . necessarily go unrepresented for a long period of time.” CRS Report for Congress, Procedures for Contested Election Cases in the House of Representatives 16-17 (Oct. 18, 2016) (quoting McCloskey and McIntyre, H. Rep. 99-58, at 44 (1985)).

So what then should the House do?  It could choose to seat Harris without prejudice to its ultimate determination of the election outcome. Normally this is what the House does when one candidate is certified as the winner but there appears to be a serious challenge to the certified election results. Even then, the House sometimes declines to seat anyone. I am not aware of any precedent for what the House should do when the state authorities have not certified anyone as the winner, but it seems logical that no one would be seated in that situation. On the other hand, that intensifies the need for a speedy resolution of the matter.

The House could also choose to wait upon the outcome of the state election investigation. There are both pragmatic and constitutional considerations against such an approach, however. The former include the fact that it would significantly extend the period in which the people of the district would be unrepresented, particularly because the process in North Carolina appears to be bogged down with its own problems. The latter include the question whether it is proper for state election authorities or courts to make the types of difficult factual and legal decisions inherent in a fraud case (as opposed to the administrative nature of a recount). See Kristen R. Lisk, The Resolution of Contested Elections in the U.S. House of Representatives: Why State Courts Should Not Help with the House Work, 83 N.Y.U. L. Rev. 1213, 1217-18 (2008) (arguing for “exclusive congressional jurisdiction over all election contests seeking more than administrative recounts, because these contests involve substantive claims that require decision makers to engage directly with election results and make difficult policy decisions.”).

There is a separate and even more serious question whether state officials have the authority to order a new election on the grounds that the original election was tainted by fraud. A new election is fundamentally different than recounts or other post-election remedies. Under federal law, North Carolina was required to conduct its congressional elections for the 116th Congress on the first Monday in November 2018. See 2 U.S.C. 7. If a vacancy then happens in North Carolina’s representation, the governor must then issue a writ of election to fill the vacancy, but I am not aware of any authority for the proposition that the governor or other state officials can declare a vacancy because they believe the initial election to be defective in some way.

The closest case I have found (in an admittedly non-exhaustive search) is an 1826 Pennsylvania congressional election which resulted in a tie vote. See I Hinds Precedents 555. In that case “[i]t appearing that the people had failed to make a choice, the executive seems to have considered the case in the light of a vacancy, but not to an extent sufficient to warrant him in directing a new election until both [candidates] informed him in writing that they relinquished all claims to the seat in virtue of the election of 1826.” In light of this waiver, the House committee accepted the results of the second election and declined to consider claims arising from the first. This precedent would therefore be of little help in establishing a governor’s authority to declare or recognize a vacancy in the circumstances presented here. There are also a couple of even earlier cases brought to my attention by Professor Derek Muller in which a second election was held to fill a House seat (Lyon v. Smith, 1796 and Turner v. Baylies, 1809), but it is not clear that these involved a purported vacancy as opposed to merely a carrying out of state election procedures for the original election. Prior to the enactment of a uniform federal date for congressional elections, states were free to hold a second election at a later time if the initial election was deemed inconclusive.

It could be argued that the North Carolina governor has the authority to call for a special election, and that this authority does not interfere with the House’s constitutional prerogatives because the House is always free to disregard the results of that special election (if it believes there was no vacancy in the first place). But this would not only be an extraordinarily inefficient way of proceeding, but it would establish a potentially dangerous precedent which would allow governors to disregard the results of any election if they believed there was some deficiency in it. As a matter of prudence, if not constitutional necessity, therefore, no special election should be called in North Carolina unless the House itself first declares a vacancy.

The House could still wait on the results of the North Carolina proceedings before making a decision as to whether a vacancy exists. This, however, is likely to take a long time. Instead, the House should immediately assert jurisdiction over the North Carolina election matter and direct the Committee on House Administration (or a task force thereof) to gather the relevant facts and determine as expeditiously as possible whether a vacancy should be declared.

Finally, there is an interesting question regarding the Clerk’s authority over the office located at 132 Cannon H.O.B. As already noted, House Rules provide that “[t]he Clerk shall supervise the staff and manage the office of a Member, Delegate, or Resident Commissioner who has died, resigned, or been expelled until a successor is elected.” This authority, however, is inapplicable here. The same rule provides “[t]he Clerk shall perform similar duties in the event that a vacancy is declared by the House in any congressional district because of the incapacity of the person representing such district or other reason.” Until the House declares a vacancy, however, this authority also is inapplicable. Therefore, it would seem the House would be well advised to provide specific authority to the Clerk to manage this office in whatever resolution it crafts to deal with this unusual situation.

 

 

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Who is a “Constituent”?: Lessons from the Menendez Case

A significant portion of a congressional office’s resources are devoted to performing “casework,” which the Congressional Research Service defines as “the response or services that Members of Congress provide to constituents who request assistance.” While this seems like a noncontroversial definition, it raises two more difficult questions: (1) who are the “constituents” for whom a Member of Congress may perform casework; and (2) when, if ever, is it appropriate for Members to perform casework for non-constituents. The House and Senate answer these questions somewhat differently. See CRS Report for Congress, Casework in a Congressional Office: Background, Rules, Laws, and Resources 3-4 n.13 (Jan. 3, 2017).

The House Ethics Manual notes that “[a]s a general matter . . .  a Member should not devote official resources to casework for individuals who live outside the district.” This admonition is based partly on the statute authorizing funding of the Members’ Representational Allowance, which provides that the MRA “’is to support the conduct of the official and representational duties of a Member of the House of Representatives with respect to the district from which the Member is elected.’” House Ethics Manual at 310 (quoting 2 U.S.C. §57b, now codified at 2 U.S.C. §5341(a)) (emphasis added by House Manual). The House Manual thus provides both a definition of “constituent” (one residing in the Member’s district) and an admonition against performing casework for non-constituents. See also Dennis F. Thompson, Ethics in Congress 91-92 (1995) (noting that the House Manual’s “sensible discussion” of casework is not explicitly endorsed in House or committee rules).

To be sure, the House guidance does not categorically prohibit providing assistance to non-constituents. The House Manual notes that there are circumstances in which it might be appropriate to do so, such as where “working for non-constituents on matters that are similar to those facing constituents may enable the Member better to serve his or her district.” House Ethics Manual at 310. Members may also vary on how they interpret this guidance. For example, the website of Representative Sean Duffy states flatly that “Members of Congress are prevented from assisting constituents residing outside their Congressional District.” Others may take a more nuanced view. Members are advised, however, that there is at least a strong presumption against performing casework for non-constituents.

In contrast, the Senate’s guidance on this issue is less clear. Senate Rule 43(2) provides that senators and staff may provide certain assistance with matters pending before government agencies “at the request of a petitioner.” The Senate Ethics Manual notes that “petitioners . . . may or may not be constituents,” but it does not elaborate on this observation or explain if or when it is appropriate for senators to provide assistance to non-constituents. See Senate Ethics Manual at 178. The Senate Manual discusses Rule 43 in the course of a chapter on “Constituent Service,” and its discussion largely assumes that senators will be providing assistance to constituents. Id. at 177-86. Nonetheless, CRS suggests the Senate guidance provides greater leeway to assist “nonconstituents who might seek congressional intervention in administrative proceedings [such as] foreign-born individuals seeking to emigrate to the United States, or a family or other interested party who live outside a Member’s constituency on behalf of a resident constituent.”

During the course of Senator Robert Menendez’s bribery trial, the prosecution argued that Menendez’s assistance to Dr. Melgen, a personal friend who resided in Florida, was improper or irregular because Melgen was not a constituent of the New Jersey senator. The court directed the parties to brief the meaning of “constituent” for purposes of instructing the jury.

Prosecutors filed a brief response stating that “Senator Menendez’s constituents are the New Jerseyans that he was elected to represent in the United States Senate.” Menendez’s lawyers, however, argued that there was not a single definition of “constituent.” They acknowledged “Dr. Melgen was a citizen of Florida, not New Jersey, and [therefore] was not Senator Melendez’s electoral constituent.” (emphasis in original). They contended, however, that Menendez’s “constituents” were not limited to electoral constituents.

According to Menendez’s legal team, “no law, custom, or congressional precedent supports the prosecution’s suggestion that a legislator cannot advocate on behalf of someone outside the legislator’s electoral constituency.” Moreover, “as advances in technology, travel, and communication (particularly the Internet) have created greater interconnectedness throughout the citizenry, political constituencies based on ideology, cultural ties, and other criteria—as well as these constituencies’ financial support—have outstripped the geographic boundaries of any given State or District.” Thus, it is increasingly common, they suggest, for legislators to represent “political constituencies” and not merely electoral ones.

In particular, “[r]acial and ethnic constituencies have . . . long played a key role in nationalized, non-electoral constituencies.” Thus, because Senator Menendez is “one of the only Senators of Latino heritage,” he regularly “advocates for Latinos across the country on a range of issues from immigration reform to discrimination.” He also “has felt a special obligation to help Hispanic-Americans—no matter where they live.” (This obligation apparently extended to helping Dr. Melgen, a Hispanic-American, with respect to his personal and business interests, such as intervening on his behalf when a federal agency found the doctor had overbilled Medicare by $8.9 million.)

Finally, Menendez’s lawyers contended that “Senate Rules do not support the view that a Senator’s duties are confined to electoral constituencies.” Pointing to Rule 43’s broad reference to “petitioners,” they note that nothing in the rule “defines ‘constituent’ or restricts a Senator’s duties to geographic constituents.”

For purposes of the criminal trial, the defense’s ultimate point was that the meaning of “constituent” only mattered to the extent it was relevant to the senator’s state of mind, and therefore it was a question of fact for the jury to decide whether Menendez believed he was assisting a constituent (as opposed to providing favors in exchange for the personal gifts and campaign contributions he had received from Melgen). Thus, it really did not matter whether Menendez’s understanding of Senate rules on constituent service was accurate so long as it was what he believed.

However, Menendez’s conduct was subsequently considered by the Senate Ethics Committee, which issued this letter of admonition to the senator on April 26, 2018. Somewhat surprisingly, though, the committee did not criticize Menendez’s understanding of constituent service. Instead, it stated:

[T]he Committee understands that you are committed to assisting constituents. Indeed, the Committee has long recognized that “[r]esponding to inquiries of petitioners and assisting them before executive or independent government officials and agencies” is an “appropriate exercise of the representational function of each Member of Congress, as well as an important function of congressional oversight.” Your assistance to Dr. Melgen, however, went well beyond Senate norms. You took action, over the course of several years, on behalf of one specific individual who repeatedly gave you many valuable gifts and who was also among your closest friends, which included direct contact with officials at the highest levels of government.

Letter of Admonition at 3 (citation omitted). This passage does not make any reference to the fact that Melgen did not reside in New Jersey. Arguably, therefore, it implicitly suggests that the committee accepted Senator Menendez’s theory of “political constituencies,” including the idea that a senator may appropriately choose to provide assistance to out-of-state individuals based on race or ethnicity (even with respect to issues unrelated to either).  If this is an accurate interpretation of the Senate Ethics Committee’s position, it suggests that the gulf between House and Senate “norms” on this question has grown even wider.

 

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The HPSCI Russia Report, Reconsidered

What seems eons ago, but was only last spring, the House Permanent Select Committee on Intelligence (HPSCI) issued its report on “Russian Active Measures” in connection with the 2016 presidential election. The report was largely dismissed as a partisan effort by Chairman Devin Nunes, “one of Trump’s staunchest allies in Congress and a former adviser to his transition team,” to protect the president. The HPSCI minority issued separate views that claimed the majority’s findings were “crafted to advance a political narrative that exonerates the President, downplays Russia’s preference and support for then-candidate Trump, explains away repeated contacts by Trump associates with Russia-aligned actors, and seeks to shift suspicion towards President Trump’s political opponents and the prior administration.” Both the majority report and the minority response were then quickly forgotten.

With the Democrats assuming control of the committee in the 116thCongress, however, the HPSCI report may assume new significance. For one thing, the incoming majority will reopen the investigation in order to answer questions it claims the Republicans failed to adequately pursue. For another, there will be questions about the veracity of witnesses who testified before HPSCI in the 115thCongress. Michael Cohen, the president’s personal lawyer, has already plead guilty to making false statements to both HPSCI and the Senate intelligence committee regarding his efforts to pursue a Trump Tower Moscow deal during the 2016 presidential campaign.

It is important to distinguish between the facts reported by HPSCI and the characterization of those facts by the committee majority. It is fair to say that the HPSCI report gave President Trump the benefit of every reasonable doubt (and perhaps some unreasonable ones), but the facts it reported are nonetheless damning enough. Moreover, although the committee may have sought to exonerate the president in some respects, it also had some very pointed criticisms of the judgment and ethics of his campaign. It is therefore worth reviewing what HPSCI reported in the spring of 2018.

Russia’s Active Measures

The committee found that Russia employed an “active measures campaign” in connection with the 2016 election, a campaign which “achieved its primary goal of inciting division and discord among Americans.” It was “multifaceted,” “leverage[ing] cyberattacks, covert platforms, social media, third-party intermediaries, and state-run media.” Furthermore, “[h]acked material was disseminated through this myriad network . . . in conjunction with derisive messages posted on social media” in order to “undermine confidence in the election,” “sow fear and division in American society,” and ultimately to sabotage “the effectiveness of the future administration.”

The HPSCI report notes that Russia’s campaign was consistent with its efforts in other countries: “Russia supports fringe political parties and non-governmental organizations in Europe to further the Kremlin’s agenda while also disparaging or discrediting politicians and groups seen as hostile to Moscow.” For example, “during the recent French Presidential elections, Russian-controlled media highlighted defamatory stories about the private life and campaign funding of the more Russia-skeptic Emmanuel Macron.”

While the report avoids labeling Donald Trump (or for that matter Bernie Sanders or Jill Stein) as a “fringe” candidate supported by Russia, one can read between the lines. In any event, the report leaves no doubt who played the role of Macron in the U.S. election of 2016. Russian media “was critical of presidential candidates from both major parties but was consistently critical of candidate Clinton through the election.”

Clinton and her campaign were also the focus of Russia’s cyberattacks and its use of Wikileaks to disseminate politically damaging information obtained in those attacks. Thus, the report confirms key intelligence community findings, including that “Russian intelligence services, acting on the orders of Russian President Vladimir Putin, launched cyber and conventional influence operations—notably by leaking politically sensitive emails obtained from computer intrusions—during the 2016 election.”

Why was Clinton targeted as the more “Russia-skeptic” candidate? The report does not directly answer that question, but it provides some clues. It points out that “candidate Trump and several of his campaign advisers expressed policy views toward Russia quite different than those espoused by much of the Republican foreign policy establishment . . . .”

Trump also had an unusual number of campaign aides with pro-Russian views or close ties to Russia. These included his campaign chairman, Paul Manafort, who at the time of the report had been indicted for financial crimes related to his pre-campaign Russian activities. As the report notes, “[i]f the accusations against Manafort are true, he should have never served as a senior official with a campaign for the U.S. presidency, much less campaign chairman or manager.” (A jury found in August that many of the accusations were true.). Continue reading “The HPSCI Russia Report, Reconsidered”