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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”

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An Update on Parliament’s Contempt Power

So at virtually the same time I told you that Parliament’s contempt power was in a state of desuetude, this happened. The House of Commons held the British government in contempt for its failure to publish the Attorney General’s legal advice regarding Brexit as the House had previously demanded.

To be sure, my prior post related to the use of contempt to impose punitive measures such as fines or imprisonment. These were not involved in yesterday’s contempt vote, which the article describes as “largely symbolic.” Yet it appears that the government intends to comply with the Commons’ demands as a consequence of the contempt vote. Moreover, while the use of contempt to impose rebukes is more common than fines or imprisonment, it is still extremely rare. According to this 2012 analysis I referred to yesterday, the last time someone was called to the bar of the house to be admonished by the Speaker was in the 1956-57 session. And it is apparently the first time ever that the British government itself has been held in contempt.

It should be noted that Congress’s inherent power of contempt derives from Parliament’s power (and thus has been recognized as being an “inherent” part of the legislative power conveyed in Article I). From time to time, the idea of using the inherent contempt power against a recalcitrant executive branch has been broached, but the idea always founders on practical considerations (e.g., what happens if the recalcitrant executive official is protected by security that does not want to surrender him/her to the custody of the Sergeant at Arms?).

If the House (or Senate) were to follow the procedure apparently used in the House of Commons yesterday, however, these problems largely disappear. The Commons simply voted on a resolution holding the government in contempt, without following the normal practice of referring the matter to the Committee on Privileges. No trial was held, nor was anyone (it appears) called to the bar of the house.

If Congress were to follow such a process, it would more closely resemble a censure or similar resolution, as opposed to a finding of contempt. It could be argued that such a largely symbolic action would have little impact in our system, where the continuation of the government does not depend on majority support in the legislature. On the other hand, if contempt were used, it would be possible for a trial to be held, with an executive official (or the entire executive branch) as the “defendant.” It would be up to the executive branch whether it wanted to attend or mount a defense. One can imagine that such a process could be more powerful as a display of soft power than a simple vote on a resolution.

We will see if some enterprising member of Congress picks up on this.

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Facebook’s Encounter with Parliament’s Inherent Powers

A parliamentary committee has seized a trove of internal Facebook documents relating to the company’s data and privacy policies and practices. The documents were obtained via a U.S. businessman, Ted Kramer, who had sued Facebook in state court in California. Kramer had access to the documents because his company had obtained them through discovery in the litigation, but a protective order prohibited the parties from sharing them with the outside world.

So how did the documents end up with a House of Commons committee investigating Facebook in the U.K.? Somehow the chair of the committee learned Kramer was in London on business, and he thereupon dispatched the Commons Serjeant at Arms to Kramer’s hotel. The Serjeant at Arms (no word on whether he was carrying his sword) served Kramer with an order demanding the documents, and the committee followed up with an email threatening the businessman with contempt of Parliament if he did not comply. After a meeting with the committee chair in which he was allegedly told he could be subject to fines and imprisonment for contempt, Kramer (who unwisely attended this meeting without his lawyers) used his laptop to access and download the documents to a USB drive and then handed it to the committee.

Facebook argues that the document disclosure violated the California court’s protective order, and it is seeking discovery regarding this disclosure (presumably hoping to establish collusion between Kramer and the committee). It has also demanded that the committee return its documents. The committee, however, notes that it is not subject to the court’s jurisdiction and is in any event protected by parliamentary privilege. The committee has already used the documents in the course of an extraordinary hearing held in London on November 27, 2018 in which lawmakers from nine different countries, calling themselves the “International Grand Committee on Disinformation,” interrogated a Facebook representative about the company’s policies and practices.

This series of events raises some interesting questions, which we will briefly consider below. Continue reading “Facebook’s Encounter with Parliament’s Inherent Powers”

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Me Too’s Privileged Few

If you are interested in the law and custom of Parliament (lex et consuetude parliamenti), you should follow Jack Simson Caird on twitter (@jasimsoncaird). Had you done so, you too would have learned of a recent controversy involving parliamentary privilege and legislative self-discipline that caught my attention.

The story begins on October 24, 2018, when the Daily Telegraph, a British newspaper, charged that a “leading businessman” had engaged in “alleged sexual harassment and racial abuse of staff.” This reporting followed an eight month investigation by the Telegraph of the allegations in question. However, the newspaper was unable to reveal the identity of the businessman and other details of its findings because of an injunction issued by a three-judge appellate court at the request of the businessman and his companies. This ruling was widely criticized (at least according to the Telegraph) by MPs and others as a violation of press freedom and an inappropriate attempt to gag harassment victims.

The British court’s opinion explains that five employees had made allegations of “discreditable conduct” against the businessman in question, but all of these claims had been settled by agreements in which the employees had received “substantial payments” and the parties had entered into nondisclosure agreements. The court found that the claimants had made a showing sufficient to establish the likelihood “a substantial part of the [Telegraph’s] information was obtained through breach of duty of confidentiality to the Claimants, either in breach of the NDAs, or by those with knowledge of the NDAs, and that the Telegraph acquired the information with knowledge both of the NDAs and the breach of confidence.” Accordingly, the court issued a temporary injunction prohibiting the newspaper from publishing the businessman’s identity or other details about the alleged misconduct until a full trial on the merits.

Needless to say, the substantive law in the U.K. is quite different from that of the United States, where the First Amendment presumably would prevent a judicial order of this kind. The divergence is illustrated by the British court’s quote of the following from an earlier case:

To take an extreme example, the content of a budget speech is a matter of great public interest. But if a disloyal typist were to seek to sell a copy to a newspaper in advance of the speech in Parliament, there can be no doubt that the newspaper would be in breach of duty if it purchased and published the speech.

The notion that the advance leaking of a budget speech is an “extreme example” potentially justifying a prior restraint against publication would strike Americans as outlandish (though, to be fair, bribery of a government official to provide confidential information might well have other civil or criminal consequences in the U.S.).

What is interesting for our purposes, however, is not the substantive law on press freedom, but what happened next. On October 25, 2018, immediately following the issuance of the injunction, Lord Peter Hain revealed in the House of Lords some of the confidential information covered by the court’s order, including the identity of the businessman in question. This in turn allowed the British media, which otherwise would have been risking contempt of court, to report the information to the general public. (See this blog post by Professor Jelena Gligorijevic for further details). Hain’s action has been widely condemned as an abuse of parliamentary privilege.  Continue reading “Me Too’s Privileged Few”

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Congressional Committees Should Consider Addressing Fifth Amendment Waiver in their Rules

As we move toward the opening of the 116thCongress, there are many ideas for reforming congressional rules and practice. One small but not insignificant change that might be considered relates to an issue that arises from time to time—when does a witness before Congress waive her Fifth Amendment privilege by making a voluntary exculpatory opening statement? We discussed this issue about five years ago in connection with Lois Lerner’s appearance before the House Committee on Oversight and Government Reform (see more here and here).

A 2015 law review article by Jason Kornmehl concludes that while the question is a close one, Lerner likely waived her Fifth Amendment rights “because her opening statement contained not only a general denial of wrongdoing, but also incriminating factual assertions as well as reference to the Inspector General’s ambiguous findings in the audit report on the IRS.” Kornmehl also makes two recommendations for future congressional practice: (1) congressional committees should not require witnesses to appear when it is absolutely certain they will invoke their privilege against self-incrimination and (2) witnesses who might invoke the privilege (e.g., if they are the subject of a parallel criminal investigation) should be advised that an opening statement may be deemed a waiver of the privilege, at least if it goes beyond a general assertion of innocence.

My own view is slightly different. When a witness advises a committee she intends to invoke the Fifth, there are valid reasons why it might nonetheless require her to appear, including the possibilities that she will change her mind or the committee will decide to offer her immunity. While no doubt there are instances when this power is abused, it is not necessarily improper for a committee to decide that a particular witness, particularly an executive branch official, should be required to invoke the privilege publicly.

I do, however, agree that committees should adopt rules and practices that clearly advise witnesses that making an opening statement may be deemed a waiver of the privilege. A witness should be able to state that she is acting on advice of counsel and that no adverse inferences should be drawn from her decision to follow that advice. Beyond that, witnesses and counsel should be advised that the committee will deem an opening statement to constitute a waiver of the privilege.

 

 

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Kavanaugh’s Missing Records

Yeah, I know. The transparency and separation of powers issues that everyone thought were so important with respect to the Kavanaugh nomination a week or so ago are now yesterday’s news. For that very reason, I am putting a longer piece on the Presidential Records Act and its application to the Kavanaugh hearing on the back burner. But I want to make a relatively brief point on the subject at this time.

With all the charges and countercharges relating to what documents were and were not produced from Kavanaugh’s prior government employment, it is easy to become confused as to what is actually at issue. In my view, the most important question has to do with the documents from Kavanaugh’s service at the White House counsel’s office that were withheld from the Senate Judiciary Committee.

Under the PRA, all of Kavanaugh’s documents from his service in the GW Bush White House are in the custody of the Archivist of the United States (and his agency the National Archives and Records Administration or NARA). At the outset, the committee majority and minority disagreed whether to request that NARA produce Kavanaugh’s documents from both his service as an attorney in the White House counsel’s office and later as President Bush’s staff secretary. Chairman Grassley decided that the former employment was far more relevant to Kavanaugh’s nomination and that requesting the latter would unreasonably delay the process. Accordingly, the committee requested that NARA produce only the White House counsel documents. While people may disagree with Grassley on this, the decision was one for him to make (and, for what it’s worth, seems reasonable to me).

The problem arises from the fact that the committee did not receive all of Kavanaugh’s White House counsel documents. Instead, some 27,110 documents (amounting to 101,921 pages) were withheld entirely from the committee on grounds of constitutional privilege. Other documents were withheld for other reasons (e.g., lack of responsiveness) and some documents were produced to the committee on a confidential basis, but it is the roughly 100,000 pages of material withheld as constitutionally privileged that present by far the most important issue, both in terms of compliance with constitutional and legal requirements and from the perspective of obtaining the information most relevant to Kavanaugh’s confirmation.

For purposes of discussion, we will assume that all of the documents in question were plausibly within the scope of constitutional privilege (or, as it is more commonly called, executive privilege). It should be understood that the word “plausibly” is doing a lot of work here. The scope of executive privilege is a highly contested matter, and executive branch lawyers (not surprisingly) tend to take a broader view than others. Moreover, as anyone who has had to review documents for privilege can attest, applying even an agreed-upon standard to particular documents is often more of an art than a science. So if one starts with a broad view of executive privilege and errs on the side of withholding anything that might arguably fall within that broad scope, one can “plausibly” withhold quite a bit of material. Indeed, one might be able to withhold nearly everything from Kavanaugh’s records that would be of actual relevance to assessing his performance as a White House lawyer.

So what exactly was withheld from the committee? According to a letter from a private law firm retained by former President Bush, the “most significant portion of these documents reflect deliberations and candid advice concerning the selection and nomination of judicial candidates, the confidentiality of which is critical to any President’s ability to carry out this core constitutional executive function.” One can certainly understand why the executive branch might be reluctant to share these files with Congress. Presumably they would contain candid discussion, including negative information and opinions, regarding actual and potential judicial nominees. To give one hypothetical but realistic example, there could be a file on a candidate who was not nominated because of alleged misconduct that may or may not have occurred in the distant past. The potential leak of such information might undercut the ability of future presidents to find qualified judicial candidates and to obtain information and candid advice regarding the exercise of the nomination power.

Of course, it is possible that the nomination files would have information that would be in some way relevant to Kavanaugh’s confirmation. They might show something about his judgment, about what qualities he thinks are important in a judge, or about his inclinations with regard to judicial philosophy. Nonetheless, I can see a strong argument that the relevance of this information is outweighed by the potential harm to the president’s nominating power and collateral damage to the judicial branch. (Needless to say, nothing in the events of the past week has inspired confidence in the ability of Congress to avoid such consequences). Thus, the withholding of judicial nomination files seems relatively defensible.

Less so is the withholding of the remaining documents at issue, which include “advice submitted directly to President Bush; substantive communications between White House staff about communications with President Bush; and substantive, deliberative discussions relating to or about executive orders or legislation considered by the Executive Office of the President.” These categories seem broad enough to encompass all of Kavanaugh’s work that would be of the most interest, including the subjects I discussed in my last post.

Let’s take one of those subjects as an example. As I mentioned previously, Kavanaugh was intimately involved in a controversial Bush executive order regarding the procedures for complying with the requirements of the PRA. (Yes, it is ironic, as Amy Howe notes, that we are discussing the use of the PRA to obtain access to documents involving legal work on the interpretation of the PRA). The documents produced to the committee confirm Kavanaugh’s deep involvement in the subject; Howe notes “another White House lawyer jokingly referring to him as ‘Mr. Presidential Records.’” Thus, there are hundreds if not thousands of pages of printouts of public or external materials related to the PRA (legal opinions, law review articles, court pleadings, congressional testimony and correspondence, etc.).

What is missing, as far as I can tell, is any evidence of Kavanaugh’s legal analysis, his participation in drafting and promulgating the executive order, or his role in deciding how to respond to criticism of the executive order by Congress and others. To illustrate the point, take a look at a printout of an August 15, 2001 email from Kavanaugh to White House counsel Alberto Gonzales. The subject is “New draft Presidential Records EO.” The brief email states: “The plan is to get this into the OMB process by the end of the week. Note new Section 5, which both is accurate and should deflect criticism.” And a handwritten note on the printout, apparently from Gonzales, instructs Kavanaugh to “prepare a cover memo . . . explaining what this is and the need—as well as possible negative repercussions.”

Although this non-substantive email was produced to the committee, the attached draft executive order was not, nor was the memo that Kavanaugh presumably prepared in response to Gonzales’s instruction.  Among other things, there is no way to tell how Kavanaugh initially drafted the executive order (if he did), what legal analysis or policy thinking underlay that draft or subsequent revisions, what the problem was with the troublesome Section 5 or how it was fixed, or what Kavanaugh’s memo identified as the need for the new executive order or the “possible negative repercussions.” All of the documents that would provide insight into Kavanaugh’s actual work on this matter appear to have been withheld.

Again, we can concede that internal deliberations related to the executive order were plausibly within the scope of executive privilege at the time they occurred (2001-03). It should be noted, however, that at least 15 years have elapsed since these deliberations took place, and the Supreme Court has recognized that executive privilege is “subject to erosion over time after an administration leaves office.” Nixon v. Administrator of General Services, 433 U.S. 425, 451 (1977). In contrast to the judicial nomination files, it is difficult to identify any particularized harm that might occur from making these materials public, still less from making them available to the committee on a confidential basis.

Even more important than the question of whether these documents could be properly withheld on grounds of executive privilege is whether the decision was made in a legally authorized manner. Because there is a wide range of views on when executive privilege can or should be asserted, it is essential that the decision to assert the privilege be made in a proper and accountable manner. As recognized by the PRA, the primary interest in asserting executive privilege in presidential records, particularly with respect to matters that do not involve classified information or state secrets, belongs to the former president from whose administration they originate. See Hearings Regarding Executive Order 13233 and the Presidential Records Act Before the House Subcomm. on Gov’t Efficiency, Financial Mgt. & Intergovernmental Relations of the Comm. on Government Reform 24 (Nov. 6, 2001) (testimony of Acting Asst. Atty. Gen. Edward Whelan) (“In short, in enacting the PRA, Congress envisioned a balancing act—an orderly process for making presidential records ‘available to the public as rapidly and completely as possible,’ while preserving opportunities former Presidents, at least, to assert constitutionally based privileges as grounds for withholding documents from mandatory disclosure.”) (citations omitted). Even where the privilege constitutionally may be asserted, moreover, there is nothing in the Constitution requiring that it must be asserted. Id. at 29.

Here President Bush did not assert executive privilege. Instead, Bush’s lawyers have informed the committee that they have withheld documents on grounds of executive privilege because “the White House, after consultation with the Department of Justice, has directed that we not provide these documents.” NARA, while still at an early stage in terms of reviewing Kavanaugh’s documents, has informed the committee that certain records are being withheld based on the determination by “representatives of the former and incumbent Presidents” that the documents concern “internal assessments about the qualifications of a judicial candidate, the confidentiality of which is critical to the process of advising the President regarding potential nominations.” This is clearly not a claim that President Bush has asserted executive privilege.

To be sure, Executive Order 13489, the executive order currently governing presidential records (which replaced the Bush executive order previously discussed), provides for the possibility that the incumbent president may assert executive privilege with respect to the records of a former president even where the latter has declined to do so. However, section 3(c) of E.O. 13489 provides specific procedures under which the issue must be presented to the incumbent president by the White House counsel and Attorney General, and section 3(d) requires that the president’s decision to assert executive privilege be specifically documented by the White House counsel. No one has suggested that the issue has been presented to President Trump or that he has made any such decision, nor has the required documentation been generated. Thus, it seems clear that no proper assertion of executive privilege has been made pursuant to the PRA or E.O. 13489. See also 44 U.S.C. §2208(b)(1) (“For purposes of this section, the decision to assert any claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) must be made personally by a former President or the incumbent President, as applicable.”).

In short, the decision to withhold more than 100,000 pages of White House counsel records from the Senate Judiciary Committee on grounds of executive privilege is substantively questionable with regard to those documents other than judicial nomination files, and the entire withholding appears to be procedurally improper under the PRA and E.O. 13489. Apart from legal infirmities, moreover, the broad withholding of these documents appears to have defeated the purpose of the committee’s request by depriving it of any information that would provide a significant insight with regard to how Kavanaugh performed his duties as a White House lawyer.

 

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Of Special Counsels and Congressional Investigations: Questions for Judge Kavanaugh

Note: click here to access full piece.

As you may have heard, President Trump has nominated Brett Kavanaugh, currently a judge on the U.S. Court of Appeals for the D.C. Circuit, to fill the vacancy on the Supreme Court. There has been a good deal of discussion about how a Justice Kavanaugh might approach issues of executive power, and in particular how he might rule on certain (at this point hypothetical) questions arising from the investigation by special counsel Robert Mueller into Russian interference in the 2016 presidential election.

I would like to propose a different line of questioning for Kavanaugh’s confirmation hearing, one that is not designed to score points for the pro-confirmation or anti-confirmation teams, but instead to illuminate the legal/constitutional framework within which allegations of presidential misconduct must be addressed. The jumping-off point for this discussion is Kavanaugh’s repeatedly expressed preference for congressional, rather than criminal, investigation of presidential misconduct. As we will see, this preference is not (or at least should not be) controversial, but it is in some tension with Kavanaugh’s efforts to hinder congressional oversight during his time as associate White House counsel.

Some background on Kavanaugh’s career: after graduating from Yale Law School in 1990, he spent several years clerking, culminating in a clerkship for Justice Anthony Kennedy, whose seat he has been nominated to fill. Kavanaugh went on to work for Kenneth Starr, the independent counsel appointed to investigate the Whitewater and Lewinsky matters. After a brief stint at Kirkland & Ellis, he joined the new George W. Bush administration, spending the first couple of years in the White House counsel’s office and then becoming the president’s staff secretary. President Bush appointed Kavanaugh to the D.C. Circuit in 2006.

Along the way, Kavanaugh authored three works relevant to our discussion today (there may be more, but I haven’t read them). Two are law review articles that have garnered a lot of attention. The third is Kavanaugh’s 2013 opinion in In re Aiken County, which I have mentioned previously but which has escaped widespread notice until recently.

The full piece is too long for a blog post but it may be accessed here. To sum up briefly, these are the three most important points I would aim to establish during Kavanaugh’s confirmation hearing:

1.  According to Kavanaugh, Congress is or should be the sole entity to determine whether the conduct of a sitting president warrants a sanction. The special counsel should not (or perhaps constitutionally may not) indict or prosecute a sitting president. (I think Kavanaugh is right about this, but it is important that Congress and the general public understand this view).

2.  Congress must have investigatory powers as strong as (or stronger than) those of the special counsel, at least when it is investigating presidential misconduct. Kavanaugh has recognized that a special counsel has a right of broad access to executive branch information, and he should do the same for Congress. Whether or not Kavanaugh accepts this proposition (or will speak to it at all), it seems to me a logical corollary of the first point. Otherwise we would be in a “catch 22” situation where only Congress can judge the conduct of a president but only the special counsel has access to the information needed to make that judgment.

3.  During his time at the White House counsel’s office, Kavanaugh was a key architect/defender of legal positions allowing the Bush administration to withhold information from Congress, including with respect to several congressional investigations involving serious and credible allegations of executive branch wrongdoing (the campaign finance, Boston FBI and Clinton pardon investigations). Kavanaugh should be pressed to explain the apparent inconsistency between those positions and points 1 and 2 above by, for example, acknowledging that the Bush administration positions were ill-considered and/or distinguishing them on the grounds that they are inapplicable to an investigation of a sitting president.

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Pardons, Self-Pardons and Impeachment (Part IV)

This post will conclude my series (see here, here and here) on the pardon power and impeachment. Today I will look at the pardon power in the context of the Russia investigation and explain why, in my judgment, the totality of the evidence warrants opening an impeachment inquiry focused on the president’s abuse and threatened abuse of the pardon power.

Pardons and the Russia Investigation 

On May 17, 2017, Robert Mueller was appointed as special counsel to “conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017” relating to the Russian government’s interference in the 2016 presidential election. The appointment expressly included “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”

Mueller’s appointment occurred just days after Trump had fired Comey, an action which was widely believed to have been taken because of Trump’s unhappiness with Comey’s handling of the Russian investigation. Trump, in fact, seemed to confirm this suspicion in a television interview immediately after the firing. Comey’s own testimony suggested that he may have been fired because he failed to comply with Trump’s “direction” that he drop the investigation with regard to former national security advisor Michael Flynn. More recently, Trump’s current lawyer, Rudy Giuliani, said that Comey was fired in part because he refused to say publicly that Trump was not under investigation.

On June 23, 2017, less than a month after Mueller’s appointment, Trump’s then-counsel, Marc Kasowitz, wrote to the special counsel expressing concern that Mueller was investigating the Comey firing as a potential obstruction of justice. Kasowitz argued that there was “no [c]onstitutionally permissible . . . view under which the President’s removal of Director Comey could constitute obstruction” because the president “has exclusive authority to direct that a matter be investigated, or that an investigation be closed without prosecution,or that the subject of an investigation or conviction be pardoned.” (emphasis added). In support of this proposition, he quoted Judge Kavanaugh’s dictum that “[t]he President may decline to prosecute or may pardon because of the President’s own constitutional concerns or because of policy objections to the law, among other reasons.” See In re Aiken County, 725 F.3d 255, 262-66 (D.C. Cir. 2013).

Kasowitz also argued that as a factual matter, the evidence did not support the proposition that Trump had attempted to obstruct justice by speaking to Comey about the Flynn investigation. Even if Comey was correct that Trump had expressed the “hope” that Comey would “let [the Flynn investigation] go” (something the White House denied), Kasowitz maintained this could not reasonably be construed as an attempt to obstruct. Moreover, he added in a footnote: “While some have made much of the fact that the President spoke to Director Comey privately about General Flynn, the President has made essentially identical public statements (including the day after meeting with Director Comey) that he thought General Flynn was a good guy who was being treated unfairly, hardly indicia of a secret, corrupt attempt to obstruct an investigation.”

A subsequent letter to Mueller (sent on January 29, 2018 by Trump’s then counsel John Dowd and Jay Sekulow) reiterates and elaborates on these positions. The January 29 letter specifically notes that “[i]t remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.” (emphasis in original).

While these letters do not state that Trump intends to pardon anyone in connection with the Russia investigation, neither do they disavow such intention or deny that the possibility is under consideration. They are reasonably read to suggest that it would be perfectly proper for Trump to grant such pardons “if he so desired.” More recently, Giuliani has publicly stated that Trump may issue pardons for those he decides were “treated unfairly” in the Russia investigation, and he expressed the view that “there is a lot of unfairness out there.” Giuliani, however, indicated that Trump would not issue such pardons until the investigation was complete.

Continue reading “Pardons, Self-Pardons and Impeachment (Part IV)”