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Can Congressional Committees Exempt their Oversight Correspondence from FOIA?

A minor kerfuffle erupted recently over letters sent by certain House committees, including the Committee on Financial Services, to agencies within their jurisdiction maintaining that future communications between the committee and the agency should be treated as “congressional records” not subject to the Freedom of Information Act. For example, this letter from Chairman Hensarling of the Financial Services Committee to the Treasury Department states in part:

 Because of the often sensitive and confidential nature of [communications from the committee to Treasury], and in order to ensure the unfettered flow of information necessary to assist the Committee in performing its important legislative and oversight functions, the Committee intends to retain control of all such communications, and will be entrusting them to your agency only for use in handling those matters. Likewise, any documents created or compiled by your agency in connection with any responses to such Committee communications, including but not limited to any replies to the Committee, are also records of the Committee and remain subject to the Committee’s control.

All such documents and communications constitute congressional records, not “agency records,” for purposes of the Freedom of Information Act, and remain subject to congressional control even when in the physical possession of the Agency. As such, they should be segregated from agency records, and access to them should be limited to Agency personnel who need such access for purposes of providing information or assistance to the Committee.

The effect of this request, if honored by the agencies, would be to require each agency to withhold from FOIA requesters both any written communications from the committee and any documents created or compiled by the agency in response to communications from the committee.

The basis of the House’s legal position is a series of D.C. Circuit cases beginning with Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), vacated in part on other grounds, 607 F.2d 367 (D.C. Cir. 1979) (per curiam). In Goland, the court held that the transcript of a closed congressional hearing that was provided to the CIA did not thereby become an agency record for purposes of FOIA. The court relied on the fact that the congressional committee had held the hearing, which involved discussion of sensitive intelligence matters, in executive session and had marked the transcript “secret” before providing a copy to the CIA. Under these facts, the court concluded that Congress must have intended to retain control over the document and to provide it to the CIA only for internal reference purposes and as a “trustee” for Congress. To find otherwise, the court reasoned, would force Congress “either to surrender its constitutional prerogative of maintaining secrecy, or to suffer an impairment of its oversight role.”

The Goland court’s reasoning might have been limited to situations in which Congress shares executive session materials with an agency. As the court noted, “when Congress transfers secret documents to an agency, for a limited purpose and on condition of secrecy, we see no reason to think it thereby waives its own prerogative of confidentiality and resigns itself to the FOIA exemptions which bind the agency and not it.” However, in subsequent cases the D.C. Circuit recognized in principle that agency-created documents might be congressional documents if they were created or assembled in response to a congressional request and Congress manifested an intent to control the documents in question.

In 2004, the D.C. Circuit applied this principle in the context of a letter from the Joint Committee on Taxation to the Internal Revenue Service requesting certain information regarding the IRS’s auditing of tax-exempt organizations. The JCT letter concluded with the following statement: “This document is a Congressional record and is entrusted to the Internal Revenue Service for your use only. This document may not be disclosed without the prior approval of the Joint Committee.”

(Full disclosure: while at the House Counsel’s office, I advised JCT on various aspects of its position regarding the application of FOIA to its communications with executive agencies, including the use of legends such as that noted above.)

A FOIA request was made to the IRS, which declined to produce not only the JCT letter but the IRS response thereto on the grounds that they were congressional documents not subject to FOIA. After the district court ruled in the IRS’s favor, the case was appealed to the D.C. Circuit. See United We Stand America, Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004). Quoting an earlier case, Paisley v. CIA, 712 F.2d 686, 693, 696 (D.C. Cir. 1983), the court found the controlling standard was whether there was sufficient “indicia of congressional intent” to show “Congress has manifested its own intent to retain control” of the documents in question.

Applying this standard to the facts before it, the United We Stand court concluded that “under all of the circumstances surrounding the IRS’s creation and possession of the documents, we find sufficient indicia of congressional intent to control, but only with respect to the Joint Committee’s April 28 request and those portions of the IRS response that would reveal that request.” In reaching this conclusion, the court stressed the fact that the JCT request only referred to “this document,” i.e., the request itself, rather than the IRS response thereto. The court suggested that had JCT wished to maintain control over the IRS response, it could have done so by referring to “this document and all IRS documents created in response to it.”

The House’s current position seems to be well-grounded in the language and reasoning of the D.C. Circuit’s caselaw, particularly the United We Stand decision. The government watchdog group American Oversight, in this letter to the House Counsel, contends that the House’s “sweeping and circular position appears to be a radical extrapolation from specific language in case law.” But it looks to me like the House is simply doing what the D.C. Circuit suggested it do in order to protect its oversight correspondence from FOIA.

If watchdog groups want to challenge the House’s position, they can bring cases outside the D.C. Circuit or they try to get the issue to the D.C. Circuit sitting en banc or to the Supreme Court. But under the existing case law of the D.C. Circuit, it looks like it will be an uphill climb.

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Comey’s Choice: Congress or the Press

Former FBI Director Jim Comey’s decision to “leak” (a word which itself has generated controversy in this connection) the contents of his memos of conversations with President Donald Trump to the New York Times has led to much pontificating, but indulge me while I engage in a little more. My interest focuses on the question of why Comey chose to make his revelations first to the media, rather than to Congress.

Much of the commentary seems designed to attack Comey’s credibility by demonstrating that the disclosure to the Times was illegal or improper or, conversely, to bolster his credibility and undermine his critics by arguing the opposite. But the legal and ethical questions surrounding the “leak” (last time in quotes, I promise) are sufficiently murky that their relevance to the believability of Comey’s underlying testimony (particularly if that testimony is supported by contemporaneous memoranda) seems somewhat tangential. Frankly, under the circumstances I can understand how Comey would have been sorely tempted to bend the rules regarding disclosure if that were the only way to get his side of the story out.

Put yourself in Comey’s shoes. It is May 9, 2017, and you have just received a letter from President Trump, along with two enclosures, a letter from Attorney General Jeff Sessions and a memorandum from Deputy Attorney General Rod Rosenstein. The Rosenstein memo explains that you made “serious mistakes” in your handling of Secretary Hillary Clinton’s emails, as a result of which “the FBI’s reputation and credibility have suffered substantial damage” and “the entire Department of Justice” has been affected. The memo, while not quite explicitly recommending you be fired, concludes by saying “the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them.”

The one paragraph letter from Attorney General Sessions to President Trump recommends that Trump remove you as FBI director. Sessions explains that “[b]ased on my evaluation, and for the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI.”

Last but not least, Trump’s own letter informs you that he is accepting the “recommendation” of the attorney general and deputy attorney general, and “you are hereby terminated and removed from office, effective immediately.” The president goes on to elaborate (graciously, he no doubt thinks): “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.”

For purposes of discussion, we will assume you are well aware that many, many people have criticized your handling of the Clinton email investigation, and not a few of those have urged you be removed as FBI director. But you believe that this is not at all why Trump decided to fire you. And you have the evidence to prove it, in the form of contemporaneous memoranda recording a series of meetings and telephone discussions with the president over the past 5 months. These documents show (at least in your view) that Trump fired you because of your handling of the Russia investigation, including the failure to show adequate personal loyalty to Trump in the conduct of that investigation, the failure to “let go” of an inquiry into certain activities of former National Security Advisor Michael Flynn, and your unwillingness or inability to “lift the cloud” which the Russian investigation had cast over the Trump administration.

I think you can understand that anyone in this situation would feel impelled to come forward and bring these memos to the attention of the public and the proper authorities. What I find more difficult to explain is why Comey thought it necessary to have a friend anonymously leak the story to the New York Times, when he could have simply informed the relevant congressional committees, including the Senate Select Committee on Intelligence, that he was in possession of the memos and prepared to testify about their contents.

There are situations where press coverage is needed to attract public and congressional attention to a particular issue, but this was certainly not one of those. Even Michael Schmidt, the New York Times reporter who first wrote about the Comey memos, acknowledged as much on the day Comey was to testify before SSCI:

Q. Has Comey been called to testify in front of the Senate today because of your reporting?

Schmidt. It was certainly a catalyst, but Comey was going to have to go up there at some point and they were going to want to hear from him.

N.Y. Times Podcast, The Daily, 6-8-17 at 9:08.

With this background, let’s look at the legal and ethical issues raised by Comey’s leak to the Times.

Continue reading “Comey’s Choice: Congress or the Press”

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Comey and Executive Privilege (with Update)

[See Update below]

Former FBI Director Jim Comey is scheduled to testify before the Senate Select Committee on Intelligence (SSCI) next week. He is expected to be asked questions about certain subjects, including his personal conversations with the president, that might be the subject of executive privilege claims. However, because Comey is testifying voluntarily and presumably would like to share this information with the committee, the question arises whether there is any effective method for the administration to stop him from answering questions it believes to be invasive of executive privilege.

In a Twitter thread, Eric Columbus, a former lawyer in the Obama administration, argues that the answer is no. He contends that the privilege only protects a witness from being compelled to provide information. It does not apply, he suggests, to the voluntary testimony of a former government official, just as it does not prevent former officials from writing books or giving interviews in which they discuss conversations with the president or other communications that might fall within the scope of executive privilege. As Columbus puts it, “I know of no precedent for blocking a FORMER official who WANTS to testify.” (all caps in original; its Twitter after all).

To the extent Columbus is suggesting that the applicability of executive privilege turns on whether the former official wants to testify, this seems wrong. The privilege belongs to the president, not to the subordinate official, and it is hard to see why the availability of the privilege should turn on the subordinate’s preferences.

Columbus makes an interesting point about the fact that former officials often write books or make other public disclosures about matters that could be covered by executive privilege. It could be that executive privilege, having developed as an evidentiary doctrine in formal proceedings, simply does not apply to such situations or, alternatively, that it does apply but there is no method of enforcing it. Broad gag orders against former executive branch officials (e.g, requiring them to get preclearance before speaking about their time in office, or threatening sanctions if they make public disclosures that in the judgment of the president or his lawyers violate executive privilege) would raise some tricky First Amendment issues, which we have discussed in the context of analogous prohibitions on congressional staffers. But these issues do not have much bearing on Comey’s testimony in a formal congressional proceeding.

The real problem here is procedural. Assuming for the sake of argument that the president has a valid or at least plausible executive privilege objection, how can that objection be raised in this situation?

The most straightforward answer would be for the executive branch to communicate to Comey (presumably through a lawyer who would attend the hearing) which questions it believes intrude upon executive privilege. Comey would then inform the committee of this objection, and it would then be up to the chairman to decide how to proceed. Comey might refuse to play this role, but I doubt he would do so. It is in his interest to remain above the fray to the extent possible, and to let the real parties in interest (the committee and the executive branch) battle it out.

Even if Comey declines to cooperate, the committee would probably allow the executive branch to raise its objections directly (presumably by having its lawyer stand up and object on a question by question basis). This would be a highly unusual procedure, and it might be contended that the committee’s rules do not permit it. SSCI Rule 8.6 provides that “[a]ny objection raised by a witness or counsel shall be ruled upon by the Chairman or other presiding member, and such ruling shall be the ruling of the Committee unless a majority of the Committee present overrules the ruling of the chair.” The “counsel” referred to here is counsel for the witness, and in this case the government counsel would not be appearing in that capacity. I suspect, though, that SSCI would make an allowance for this unusual situation.

Assuming the executive branch has the opportunity to raise the objection, it is up to the chairman to rule on the objection in the first instance. I imagine there could be some dispute as to whether Rule 8.6 requires the chair to rule immediately or permits him to take the matter under advisement, but let’s assume eventually there is a final ruling from the chair/committee. At that point I expect that Comey would comply with the ruling, as he is under no obligation to risk being held in contempt. This procedure would therefore leave the resolution of the issue ultimately in the control of the committee.

The administration’s only alternative would seem to be to bring an action in federal court against Comey (the Speech or Debate Clause prohibits it from suing the committee). The suit would ask for declaratory and injunctive relief prohibiting Comey from testifying on certain subjects or providing certain information to Congress. The executive branch used this method in the 1970s in an attempt to prevent AT&T from complying with a congressional subpoena. See United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977). Although that case involved national security information, there is no reason in principle why the same method could not be used to resolve a different type of executive privilege issue. Whether the Trump administration wants to take the political heat from bringing such a suit, or whether it is confident that its legal position would ultimately be vindicated in court, are different questions.

UPDATE:

In a follow up exchange on Twitter, Columbus expresses doubt that a court could grant a remedy to the executive branch under the circumstances here. His argument is that the court could not enjoin Comey from discussing the same matters outside of Congress (e.g., it couldn’t stop him from going on the Sunday talk shows to discuss his conversations with the president) so logically it could not enjoin him from talking to Congress either. Essentially he is arguing that because the court cannot grant effective relief, it should dismiss the executive branch’s (hypothetical) lawsuit against Comey for lack of standing.

I agree that a court might accept this argument, but I don’t think it is a slam dunk. To begin with, it assumes that a court would take as a given that a former executive official cannot be enjoined from publicly disclosing confidential (but non-classified) presidential communications contrary to POTUS’s instructions. As far as I know, no such case has been brought, much less decided. While I tend to agree with Columbus that there would be serious problems with such a suit (including First Amendment prior restraint issues), the matter is not so clear that a court would necessarily want to predicate its decision in our hypothetical suit on a prediction about the outcome of this different and more novel case.

Moreover, even if we assume Comey could not be enjoined from disclosing presidential communications outside Congress, it does not follow that such disclosures would be legal or proper. Nor is it guaranteed they would be without consequence. For example, a former official might find his security clearance in jeopardy or face a bar complaint (if, like Comey, he is a lawyer). These potential consequences make it less likely a court can simply assume that Comey (or any former official) would be free to divulge presidential communications in a public setting.

Finally, a court’s view of this issue may very well depend on the position Comey himself takes in our (hypothetical) litigation. As a long time executive branch lawyer, Comey would probably be reluctant to suggest it is generally appropriate for former officials to divulge confidential presidential communications. Such a stance would be at least in tension with the executive branch’s approach to executive privilege, and it might have ramifications for the ability of future presidents to have candid discussions with their FBI directors. I am also not sure Comey would want to open himself up to questioning generally about his discussions with Presidents Trump, Obama or Bush. So I would guess he would be cautious about asserting any general right (much less intent) to make public disclosures about these matters.

I would note that in the course of my exchange with Columbus, a number of tweeters chirped in with comments along the lines of: “If Comey can’t testify before Congress, why wouldn’t he just go on Rachel Maddow or some other cable show and spill the beans there? That’s what I would do!”

The short answer to this is: “Because he’s Comey, not you.” The somewhat longer answer is that I don’t know what Comey might do, but I think he has a number of personal and institutional incentives, alluded to above, not to do that.

In any event, I agree with Columbus that there is a risk that the hypothetical lawsuit against Comey could be dismissed on jurisdictional grounds, but I don’t assess this risk as being as high as he does. If I were advising the president, I would be more concerned with the political cost of bringing such a lawsuit in the first place, as well as the distinct possibility that the executive branch could lose on the merits.

Based on the latest news, though, it sounds like the administration is backing away from asserting executive privilege at all with respect to Comey’s testimony before SSCI.

 

 

 

 

 

 

 

 

 

 

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The Senate’s Options in the Flynn Matter

Just got back from a trip abroad. Did I miss anything? I thought my law school classmate Jim Comey could fill me in on the latest, but for some reason my emails to him keep bouncing back . . .

I know, I’m hilarious. Ok, let’s take a look at the controversy du jour, namely former National Security Advisor Michael Flynn’s decision to invoke the Fifth Amendment in response to a document subpoena from the Senate Select Committee on Intelligence (SSCI). This has led to a flurry of speculation as to what SSCI or the Senate might do next.

For regular readers of Point of Order, the issues here should be pretty familiar. There is no Fifth Amendment right to refuse to produce documents based on their potentially incriminating content, but under certain circumstances a subpoena recipient can refuse to comply on the ground that the act of producing the documents would itself be testimonial in nature. This “act of production” doctrine applies when the subpoena implicitly compels the recipient to communicate that the responsive documents exist, are authentic and are in the recipient’s possession or control.

The committee’s subpoena requires General Flynn to produce, among other things, “all communications records, including electronic communications records such as e-mail or text messages, written correspondence, and phone records, of communications that took place between June 16, 2015, and 12pm on January 20 2017, to which you and any Russian official or representative of Russian business interests was a party.” Flynn’s lawyers contend that the broad sweep of this request shows that the committee lacks prior knowledge of “whether responsive exist, who may possess them, or where they are located.” Thus, by producing documents Flynn would be testifying regarding the existence and authenticity of these records. Moreover, Flynn’s production of responsive documents would require him to testify implicitly regarding his knowledge of who is a “Russian official or representative of Russian business interests.”

Without having studied the matter in any detail, it strikes me that Flynn seems to have at least a plausible act of production objection here. This does not necessarily mean, however, that he would ultimately prevail in litigation. The act of production doctrine is technical and fact specific, and its contours have yet to be clearly spelled out in the case law. Furthermore, to the extent that Flynn has responsive documents that belong to a collective entity and are not simply his own individual documents, the privilege would be inapplicable. Thus, SSCI might reasonably conclude that Flynn’s objection should be rejected on the merits, in whole or in part, or at least that its validity should be tested in court.

What, then, would the committee’s options be? One possibility would be for the committee and the Senate to hold Flynn in criminal contempt, and refer the contempt citation to the U.S. Attorney for the District of Columbia for presentation to the grand jury pursuant to 2 U.S.C. § 194. This law on its face requires the U.S. Attorney to present the contempt matter to a grand jury, but the executive branch has long taken the position that it may disregard this mandatory language, at least in cases where Congress seeks to obtain information which the president has determined to be protected by executive privilege. An unfortunate precedent set in the last administration extends this position to cases where the U.S. Attorney simply believes Congress’s legal position is wrong, even if no question of executive privilege is presented. As I explained in that case (involving the contempt charge against Lois Lerner): “Essentially the U.S. Attorney’s office is reserving the right to make its own independent judgment about the legitimacy of a congressional contempt citation, even if that means resolving a close legal question in a way that protects a witness in an investigation that could embarrass the administration he serves.” Based on that precedent, the executive could refuse to present the Flynn contempt to a grand jury.

The matter is further complicated by the appointment of a special counsel (it turns out that quite a bit happened while I was gone) to investigate the Russia matter. One would think that the special counsel, Robert Mueller, would exercise jurisdiction over any Flynn contempt referral or, at the least, would have to sign off on how the case was handled. This makes it less likely that the Flynn prosecution would simply be dropped like the Lerner case. On the other hand, it may not make it more likely that SSCI will get the documents it is seeking, particularly in a timely fashion. Mueller’s incentive would be to use the possibility of a Flynn indictment for congressional contempt as leverage to advance the priorities of his own criminal investigation. He may have little interest in helping the committee with its investigation (or may actually prefer that the committee’s investigation be halted so as not to interfere with his own).

SSCI may prefer, therefore, to look to an alternative method of enforcing its subpoena. Under 28 U.S.C. § 1365, a Senate committee can bring a civil enforcement action to enforce a subpoena. Under this mechanism, if a subpoena recipient fails to comply with a subpoena from a Senate committee or subcommittee, the committee reports a contempt resolution to the Senate, which may then adopt a resolution directing the Senate Legal Counsel to bring the enforcement action in federal court. See 2 U.S.C. §§ 288b, 288d.

The Senate rarely uses this civil enforcement method, in part because there is an exemption for subpoenas directed to executive branch officials who assert a governmental privilege or objection. That exemption, however, is inapplicable to Flynn’s case, and thus the Senate is free to use it to obtain a federal court ruling on the validity of his Fifth Amendment objection. One downside to this method of enforcement is that it will take some time (e.g., it almost certainly could not be resolved before 2018). A civil enforcement action the Senate brought last year, however, was resolved relatively quickly, within about 6 months of the action being filed by Senate Legal Counsel. (Here is a good summary, ironically written by Flynn’s counsel, of the court’s decision in that case). There is no way to guarantee that a case against Flynn would proceed that quickly (in fact, it probably wouldn’t), but there is no also reason to believe that a criminal contempt proceeding would move any faster. And civil contempt is generally a better method of resolving good faith legal disputes than is criminal contempt. Thus, all in all, it seems to me that a civil enforcement action would be the better method of enforcement here.

In a saner world, there would be another option that the Senate should seriously consider. Any Senate committee can grant immunity by a two-thirds vote of its members (or the Senate as a whole can grant immunity by a simple majority). Although there is a procedure that must be followed to complete the grant of immunity (see 18 U.S.C. §§ 6002, 6005), ultimately SSCI has the power to overcome Flynn’s Fifth Amendment privilege if a bipartisan supermajority of the committee wishes to do so. Although the committee could grant immunity just for the act of production, under current law the consequences would probably be little different than granting Flynn full testimonial immunity (in either case it would be nearly impossible to prosecute him for crimes related to the subject of the committee’s investigation, though he could still be prosecuted for perjury or contempt were he to fail to fully and truthfully respond to the committee’s inquiries). If one believes that obtaining the full truth regarding the Russia investigation is a matter of the highest national priority, it is worth considering whether getting General Flynn’s documents and testimony is more important than preserving the option of prosecuting him.

As a practical matter, however, the Senate almost certainly will not give this serious consideration. The special counsel, whose mission is focused solely on criminal enforcement, would vigorously object to the Senate granting immunity to Flynn. Senators would not want to be seen as responsible for letting Flynn escape criminal punishment, even if this means that SSCI’s investigation is substantially slowed or halted. One of the unfortunate consequences of appointing a special counsel in these circumstances (not the only one, to be sure) is that the public’s interest in a full and expeditious investigation of the Russia matter will take a back seat to the needs and inclinations of the special counsel and the criminal justice system.

So with regard to General Flynn’s refusal to comply with SSCI’s document subpoena, it is likely to be a civil enforcement action or nothing.

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(Not So) Desperately Seeking Trump’s Tax Returns

Despite the great deal of chatter (marches even) about the need for President Trump to release his tax returns, there has been relatively little discussion of Congress’s statutory authority to obtain these materials. Two exceptions are these comments by Professors Andy Grewal and George Yin. Grewal and Yin agree that Congress has the authority to request and obtain Trump’s tax returns for a legitimate legislative purpose, and they also agree that the executive branch could disregard a congressional request for these returns on certain grounds (e.g., Congress does not in fact have a legitimate legislative need for the information or, in Grewal’s words, “the request is supported only by personal animus and not a proper legislative purpose”).

Though the matter is not free from doubt, I take a somewhat different view of the law here. I argue below that the Secretary of the Treasury (to whom Congress directs requests for tax return information) and the executive branch in general do not have the legal right to refuse congressional requests for tax return information based on an assessment of the legislative need or motive that underlies such requests. I also suggest that Congress can minimize the likelihood that the executive branch will assert a right to refuse its request by adopting a careful and disciplined approach to making the request in the first place.

Continue reading “(Not So) Desperately Seeking Trump’s Tax Returns”

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BLAG, the Act of Production Doctrine and the Schock Case

Recent filings in the criminal case against former congressman Aaron Schock (see my last post) brought to my attention that a number of pleadings in the Schock grand jury proceedings have been unsealed. Among these were two briefs filed by the House Counsel on behalf of the Bipartisan Legal Advisory Group (BLAG) as amicus curiae in support of Schock’s right to assert a Fifth Amendment act of production privilege in response to grand jury subpoenas for Schock’s congressional records.

The Act of Production Privilege and the Records of a Congressional Office

The grand jury subpoenas in question seek documents from Schock’s “congressional office.” As used here, a “congressional office,” also sometimes referred to as the member’s “personal office,” means the offices that each member of the House maintains in Washington, D.C. and the congressional district for the conduct of official business as a representative from that district.

As we have discussed before, the House has long taken the position, for reasons unrelated to the Fifth Amendment, that such documents are the personal property of the individual member, not the property of the House itself or the U.S. government. Thus, these records are not archived under House Rule VII (as are documents such as committee records, which belong to the House and are periodically sent to the National Archives for archiving and eventual release to the public). Instead, upon a member’s departure from the House, the member is expected to take custody of her congressional office records or to arrange for their disposal (e.g., by having them destroyed, put in storage or donated to a university or other institution). See Declaration of Farar P. Elliott, Chief of the Office of Art and Archives (7-24-15).

Here we should step back and explain the Fifth Amendment “act of production” privilege and its relationship to the House’s stance on who owns congressional documents. As Judge Myerscough explained in an opinion issued in the course of the Schock investigation:

A person may be compelled to produce documents even though the documents contain incriminating assertions of fact or belief because the creation of the documents was not compelled. United States v. Hubbell, 530 U.S. 27, 35 (2000); Fisher v. United States, 425 U.S. 391, 410 (1976) (“The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else”). Nonetheless, “the act of producing documents in response to a subpoena may have a compelled testimonial aspect.” Hubbell, 530 U.S. at 36. That is, by producing the documents, the witness admits that the papers exist, that the papers were in his possession or control, and that the papers are authentic. Whether a particular act is testimonial and self-incriminating is largely a factual issue to be decided in each case.

The act-of-production privilege does not, however, apply to collective entities, such as corporations. Consequently, an individual cannot rely on the Fifth Amendment privilege to avoid producing a collective entity’s records that are in his possession in a representative capacity, even if the records may incriminate him personally.

Opinion of June 25, 2015 at 14-16 (some citations omitted).

Thus, if documents from a member’s congressional office belonged to a collective entity, such as the House itself, or the U.S. government, or the “Office of Congressman X or Congressional District Y,” the act of production privilege would not apply, and a member could be compelled to produce such documents in response to a subpoena.

On the other hand, the converse is not necessarily true. The government argued that documents which of their essential nature are public or official records are not subject to the act of production privilege even if the House treats them for some purposes as the member’s personal property. Moreover, it contended that the “collective entity” doctrine was applicable because a congressional office, while it differs from a government agency or private corporation with respect to the ownership of documents, is still more like these collective entities than it is like a “sole proprietorship” or the home or business of a private individual.

BLAG responded that the formal ownership of documents was dispositive for purposes of the Fifth Amendment analysis. Furthermore, to the extent that a “collective entity” analysis was appropriate, it maintained that the legal nature of a congressional office was like that of a sole proprietorship, as distinguished from a collective entity such as a government agency or corporation. Continue reading “BLAG, the Act of Production Doctrine and the Schock Case”

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Can Schock Turn the Tables (and Mirrors, Chandeliers, etc.) on the Government?

So last night I am at Costco and I get a tweet from @danielschuman directing my attention to two new filings by the legal team for former Congressman Aaron Schock, who is facing federal charges arising from, among other things, the allegedly improper use of his Members Representational Allowance to decorate his congressional office in a lavish “Downton Abbey” style. Schock’s attorneys maintain that the government’s allegations are built on a “house of cards” (heh) and are demanding discovery regarding certain aspects of the prosecution case, including whether prosecutors gave erroneous legal instructions to the grand jury about the House Ethics Manual and other House guidelines for official conduct by members of Congress.

The real blockbuster in the Schock motions, though, was the revelation that the FBI had recruited a congressional staffer in Schock’s district office to act as a confidential informant and, get this, wear a wire while having conversations with Schock and other members of his staff. The CI also allegedly seized or attempted to seize various documents from Schock’s office for the government’s benefit.

Schock’s team is livid, and I can’t say that I blame them. Bear in mind that the House Counsel has long taken the position that the FBI should go through its office to request or schedule interviews with members, officers or employees of the House related to official conduct. (The FBI supposedly agreed to this in the early 1990s, but, if so, this agreement has often been honored in the breach). The purpose of this procedure is to ensure that interviewees have the opportunity to be represented by counsel and that they understand the rights and obligations arising from their congressional service. For the FBI to not merely conduct an ex parte interview (which it has done before), but to turn a congressional staffer into an informant who secretly records conversations with his boss and colleagues, seems like a flagrant violation of the norms of conduct that have guided executive-legislative branch relations in the post-Watergate era. It is different, for example, than Abscam (controversial itself at the time), which involved third parties who were not subject to congressional rules and who did not enjoy a legislative relationship of trust and confidence with their targets.

A more difficult question is whether this breach of norms amounts to a legal violation that can be enforced in Schock’s criminal case. Schock’s lawyers argue that the government’s actions may constitute “violations of separation of powers principles, including those embodied in Speech or Debate jurisprudence” and assert that “the CI presented a direct threat to Mr. Schock’s Speech or Debate privilege.” They also contend, somewhat more directly, that by “us[ing] the CI to intrude upon Mr. Schock’s Office, to listen to and record conversations with Mr. Schock and his staffers, and to seize documents from with Mr. Schock’s Congressional Office,” the government “violated the Constitutional privilege against executive interference granted to all Members of Congress by the Speech or Debate Clause.”

The government’s alleged actions (and I should note my comments are based solely on what Schock’s lawyers have represented) certainly implicate fundamental concerns of the Speech or Debate Clause, but for reasons I have discussed before (see here for example), I am not sure they constituted violations of the Clause itself, at least as it has been interpreted by the courts. A Speech or Debate analysis would ask whether the government was prohibited from capturing, whether through the testimony of the CI, the secret recordings or pilfered documents, discussions of a legislative nature. But I don’t think that is the primary issue here. The bigger issue is the government’s improper use of a legislator’s “alter ego” (as legislative aides are called in the Speech or Debate jurisprudence) to act as a tool of the prosecution (i.e., the executive branch) without any contemplation of how this conflicted with his duties to the congressman and the House (i.e., the legislative branch).

The irony is that Schock’s prosecution rests in part on House rules, guidelines and norms of conduct (many of which his lawyers claim are not so clear). I am not aware of any specific House rule or guideline that prohibits a staffer from secretly recording his boss or stealing office documents to hand over to the government, but I think there is a decent chance the Ethics Committee would find this to be conduct not reflecting creditably on the House. Maybe the prosecutors should have sought an advisory opinion before they started down this path.

I may have further comments on this as things progress, but these are my initial reactions.

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The President and the Purposes of the Foreign Emoluments Clause (Part III): Presents and Emoluments

We may now turn to the question of whether the Framers might have had reason to exclude the president from the Foreign Emoluments Clause’s presumptive ban on accepting any “present” or “emolument” from a foreign power. Here we should start with an important distinction. I am not claiming that the exclusion of the president from the FEC would be an absurd result in the sense that it would justify departing from the plain meaning of the Constitution. Compare United States v. Kirby, 74 U.S. 482, 487 (1868) (classic example of the absurd results doctrine is the law “’that whoever drew blood in the streets should be punished with the utmost severity’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit”). If the plain meaning of the FEC excludes the president, I am satisfied that Professor Grewal’s explanation (discussed in my original post on this topic) would be sufficient to forestall operation of the absurd results doctrine.

If, however, the question is whether the meaning of the FEC is plain or, if plain, what that meaning is, then I think Professor Grewal falls short of offering a persuasive reason why the Framers might have decided not to restrict the president’s acceptance of foreign presents or emoluments. Grewal suggests first that the Framers’ concerns about foreign gifts and payments may have centered on appointed officers because only officers “like ambassadors . . . would make the type of extended visits abroad that could subject them to improper foreign influence.” Andy S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. __, *7 (forthcoming 2017).

At the outset, there is something less than a tight fit between this hypothesis and the language used in the FEC. After all, the Clause applies to all persons who hold any office of profit or trust under the United States. This language is not limited to officials likely to make extended trips abroad, but includes many officers with a largely or exclusively domestic focus (such as the Secretary of the Treasury and subordinate officials responsible for the public fisc, the Chief Coiner and other officers of the Mint, the Attorney General and district attorneys, postmasters and other officials involved in the postal system, and the entire federal judiciary, among others). If the Framers had wanted to limit the FEC to diplomatic officials likely to spend significant time abroad, they could have employed the language used elsewhere in the Constitution (“ambassadors, other public Ministers and Consuls”) to refer to such officials.

Common sense also suggests that foreign powers would have ample opportunity, and even greater motive, to offer the president gifts and payments (both of the somewhat above-board ceremonial kind or of the less savory surreptitious kind). For example, the president is charged by Article II with receiving ambassadors and other pubic ministers from foreign nations. See U.S. const., art. II, § 2. As the official ultimately responsible for the conduct of U.S. foreign policy, the president would certainly be expected to meet and correspond directly with foreign dignitaries, including heads of state, on a regular basis. Thus, the Framers would hardly have been surprised that U.S. presidents, beginning with George Washington, have been offered or received gifts from foreign governments or dignitaries. See, e.g., Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause, 107 Nw. L. Rev. 180, 188-90 (2013) (citing examples).

It is true that U.S. ambassadors and other diplomatic officials were a particular concern of the FEC, due in large part to the European custom of giving gifts, sometimes of significant value, to visiting foreign diplomats. Because it was often diplomatically awkward to refuse such gifts, this is also likely why it was thought impractical to have an absolute ban on accepting them. See Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution *40 (Feb. 5, 2017).

I am aware, however, of no evidence to suggest that the Framers were concerned exclusively with potential foreign corruption of diplomats or other officials who would be abroad for long periods. To the contrary, there is a great deal of evidence (some of which was discussed in my last post) that the Framers were equally if not more concerned about foreign corruption of the president.

For example, during the Philadelphia Convention’s consideration of whether the president should be impeachable, James Madison thought it “indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate.” II Farrand’s Documentary History of the Constitution 65. Madison warned specifically that the president “might betray his trust to foreign powers.” Id. at 66.

Gouverneur Morris, who had initially leaned against the president’s impeachability, pronounced himself persuaded by the debate to change his mind. He explained:

Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard agst. it by displacing him. One would think the King of England well secured agst bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV.

Id. at 68-69 (emphasis added). Morris’s point seems to be that there is a greater chance that the president would choose his private interest over that of the country than would the King of England, who basically owns his country as private property, yet even the latter could be successfully bribed by a foreign power. Be that as it may, these remarks confirm that the Framers were attuned to the danger of a president coming to be “in foreign pay.” It would therefore be highly surprising had the Framers decided the president, of all executive branch officials, should not be subject to the FEC. See Saikrishna Banglore Prakash, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y Sidebar 35, 41-42 (2009) (particularly in light of Framers’ knowledge of incidents such as payments from Louis XIV of France to Charles II of England, reading FEC “as if it permitted the President to receive foreign bribes, without any congressional oversight or check, makes little sense”).

It may be recalled from my last post that the anti-Federalists were dissatisfied with the Constitution’s protections in two respects relevant to our discussion. The first is that the FEC is not an absolute prohibition on foreign titles and payments, but allows for their acceptance with congressional consent. The second is that the president is simply too tempting a target for foreign influence and corruption because of the powers the Constitution concentrates in his hands. George Mason reflected both of these concerns in the Virginia ratifying convention when he pointed out that the president “may, by consent of Congress, receive a stated pension from European potentates.”

Responding to Mason’s argument, Edmund Randolph (who, like Mason, had been a delegate to the Philadelphia Convention) contended:

There is another provision against the danger, mentioned by the honorable member, of the President receiving emoluments from foreign powers. If discovered, he may be impeached. If he not be impeached, he may be displaced at the end of four years. By the 9th section of the 1st article, “no person, holding an office of profit or trust, shall accept of any present or emolument whatever, from any foreign power, without the consent of the representatives of the people;” and by the 1st section of the 2d article, his compensation is neither to be increased nor diminished during the time for which he shall have been elected; and he shall not, during that period, receive any emolument from the United States or any of them. I consider, therefore, that he is restrained from receiving any present or emolument whatever. It is impossible to guard better against corruption.

3 Elliot’s Debates 486.

This colloquy shows that Mason and Randolph, though disagreeing on the adequacy of the FEC and other constitutional provisions for this purpose, agree on two key points: (1) the president receiving emoluments or presents from foreign powers is a danger against which safeguards are needed; and (2) the FEC’s strictures do apply to the president.

Randolph’s remarks also suggest that the FEC and the Presidential Compensation Clause (art. II, § 1, cl. 7) are complementary restrictions that limit the president to a fixed salary and ensure that he does not receive any other emoluments from the United States, any state or any foreign power. One might quibble with Randolph on the grounds that the FEC is not an absolute prohibition, thus theoretically permitting the president to receive foreign emoluments or presents with congressional permission. In general, however, his remarks confirm, pace Professor Grewal, that the Framers did not see the presidency for some reason as raising concerns only as to domestic emoluments. Indeed, it is not obvious to me why anyone, with or without insight into the Framers’ deliberations, would think that the president would be singled out for restriction on domestic emoluments, while simultaneously excluded from a general prohibition on foreign emoluments.

Finally, we may address Grewal’s suggestion that the Framers might have been particularly concerned about potential foreign corruption of officers who, unlike the president, did not receive a fixed salary and were dependent on transaction-based payments for their livelihood. Andy S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. __, *9 (forthcoming 2017). This idea strikes me as getting things a little backwards. The president’s compensation, unlike that of any other executive branch official, is constitutionally fixed because of the singular importance of his office and the need to ensure that Congress cannot financially reward or punish him during his term of office. Likewise, he is prohibited from receiving any other emoluments from the United States or any state to prevent any financial dependence or partiality on his part. It would be utterly implausible to think that the Framers would be less concerned about the need to insulate the president from foreign financial influence, or that they would have been more worried about foreign corruption of customs collectors or immigration officials.

Federal judges also have constitutional protection for their salaries, which cannot be diminished during their time in office. In comparison to the president, there is little reason to think that they would either be in regular contact with foreign powers, or that foreign powers would have reason to influence them. Yet federal judges are not exempted from the prohibitions of the FEC.  It is hard to see how it would make sense to exempt the president.

A more plausible explanation for excluding the president would relate to the requirement in the FEC to obtain congressional consent. It is at least possible to imagine that some could think it improper to require the president, as the head of a separate branch of government, to seek such consent whenever a foreign government offered him something “on the order of a snuffbox, a portrait, or a gold chain,” as Professor Currie puts it. See David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 281 (1997). Rather than requiring the president to seek congressional permission, it would be left to his judgment whether to accept a foreign gift or an emolument personally or on behalf of the United States. If he should accept a bribe or an improper gift or payment that Congress considered to amount to a high crime or misdemeanor, he would be subject to impeachment.

Tillman suggests something along these lines in his comments to my blog post of 3-13-17. While stating “I frankly admit that I do not know” why the Framers might have exempted “federal elected officials” (including the president) from the FEC, Tillman proposes that the Framers might have “relied on elected officials to act like fiduciaries” and/or been concerned about giving another body the power to make judgments concerning “those at the apex of authority.” In the context of the president and the FEC, this would mean that the Framers may have preferred to rely on the president’s judgment regarding the acceptance of foreign presents and emoluments, instead of requiring him to submit to Congress’s judgment on such matters.

There is some surface plausibility to the “no congressional permission slip” explanation, but it is wrong for at least three reasons. First, as Professor Grewal noted regarding his own explanation, “no contemporaneous materials advance this understanding.” In other words, it’s a nice theory, but it is made up out of whole cloth. (I can say this since I made it up, and I think Tillman would agree as well). There is no evidence that any Framers (or anyone else) actually subscribed to it.

Second, this explanation overlooks an important aspect of the congressional consent requirement. This requirement doesn’t just restrict the foreign presents and emoluments that can be accepted; it also ensures that offers of such presents and emoluments are disclosed. If the recipient of a foreign gift or payment discloses it publicly, this is in itself some assurance that it is not improper and will not influence the recipient. If the gift or payment is kept secret, on the other hand, its discovery will excite suspicion even if it was not actually a bribe.

Had the Framers intended to permit the president to be the judge of his own emoluments, they would have provided for a mechanism for disclosure of his decisions. For example, they could have required that he inform Congress, rather than seek its permission. Simply omitting the president from the FEC would be a recipe for misunderstanding and suspicion, which would likely have led to wholly unnecessary and predictable charges of corruption.

Finally, and most importantly, while it is possible that some people might have subscribed to my theory, it is inconceivable that everyone would have done so. As we have seen, any suggestion of a loophole in the FEC that would have allowed the president to receive presents or emoluments (much less titles of nobility) from foreign powers without congressional permission or oversight would have excited tremendous opposition. The fact that there was no controversy on this point can only be explained in two ways: (1) the existence of a presidential loophole in the FEC was publicly known or discussed, and yet no one objected; or (2) everyone understood or assumed, and no one (at least publicly) disputed, that the president was in fact covered by the FEC. The overwhelming evidence is in favor of the latter over the former.

 

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The President and the Purposes of the Foreign Emoluments Clause (Part II): Titles of Nobility

There has been much debate about Professor Zephyr Teachout’s claim that the Foreign Emoluments Clause and other constitutional provisions show that the Framers were “obsessed” with corruption. Compare Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 405 (2009) with Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution 59-60 (Feb. 5, 2017) (arguing that the Framers balanced their concerns with potential corruption against other competing values) and Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. L. Rev. 399, 404-10 (2012) (arguing that Teachout has overstated her claim about the Framers’ “obsession” with corruption). Whatever the right word for the Framers’ concerns about corruption, a stronger one is probably needed to describe their hostility (and that of the founding generation) toward titles of nobility. This is particularly true in comparison with modern sensibilities, which regard financial corruption and conflicts of interest with at least as much dismay as did the Framers, but are more likely to view titles of nobility as an amusing irrelevance.

Some flavor of the republican opposition to titles of nobility can be found in the Georgia Constitution of 1777, Article XI of which provided:

No person shall be entitled to more than one vote, which shall be given in the county where such person resides, except as before excepted; nor shall any person who holds any title of nobility lie entitled to a vote, or be capable of serving as a representative, or hold any post of honor, profit, or trust in this State, whilst such person claims his title of nobility; but if the person shall give up such distinction, in the manner as may be directed by any future legislation, then, and in such case, he shall be entitled to a vote, and represent, as before directed, and enjoy all the other benefits of a free citizen.

(emphasis added). Here the holder of a title of nobility was not only disqualified from serving in the legislature and holding a “post of honor, profit, or trust,” but even from exercising his right to vote.

As discussed in my last post, the Articles of Confederation did not go quite that far, but it barred both the national and state governments from issuing titles of nobility and prohibited any person holding an “office of profit or trust” under the United States or any state from accepting titles of nobility (as well as presents, emoluments or offices) from a foreign power. The Constitution largely copied these prohibitions, but, as we saw, permitted acceptance with congressional consent and did not apply to state officeholders.

Ratification

The Federalists pointed to the Constitution’s provisions on titles of nobility as an essential protection of republican government. Madison remarked in Federalist No. 39: “Could any further proof be required of the republican complexion of this system, the decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the state governments, and in its express guarantee of the republican form to each of the latter.” (It should be noted that the Constitution’s guarantee of a republican form of government to the states, which did not appear in the Articles, may in part explain why it was not considered necessary to cover state officeholders in the Foreign Emoluments Clause).

Alexander Hamilton, in Federalist No. 85, likewise listed the “absolute and universal exclusion of titles of nobility” as one of “securities to republican government” provided by the Constitution and explained in Federalist No. 84:

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner stone of republican government for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

The assurance of an “absolute and universal exclusion,” however, was not quite accurate. With respect to foreign titles of nobility, the Constitution’s restrictions applied only to holders of offices of profit or trust under the United States. Moreover, unlike the Articles, the Constitution allowed acceptance of such titles of nobility (as well as presents, emoluments and offices from foreign powers) with congressional consent.

This latter change did not go unnoticed in the state ratifying conventions. John Hancock submitted a resolution to the Massachusetts convention asking that the words “without the Consent of Congress” be struck from the Foreign Emoluments Clause so that “there would be an absolute prohibition on federal officeholders’ accepting any emolument, office, or title from a foreign country or King.” Pauline Maier, Ratification: The People Debate the Constitution 1787-1788 197 (2010). The Massachusetts, New York and Rhode Island ratifying conventions all asked for amendments making this change. The Virginia and North Carolina conventions chimed in for a general amendment banning exclusive or hereditary emoluments, privileges or offices of any kind, which presumably would have banned all foreign titles among other things. See Jol A. Silversmith, The “Missing Thirteenth Amendment”: Constitutional Nonsense and Titles of Nobility, 8 Southern Cal. Interdisciplinary L. J. 577, 578 & nn. 11, 13 (1999). Finally, the New Hampshire ratifying convention asked for an amendment that “Congress shall at no Time consent that any Person holding an Office of Trust or profit under the United States shall accept any Title of Nobility or any other Title or Office from any King, Prince, or Foreign State.”

Clearly titles of nobility were a major concern of both Federalists and anti-Federalists, and there was considerable scrutiny during ratification of whether the FEC was sufficiently strict in this regard. It seems inconceivable that these concerns would not have extended to a presidential exemption from the FEC, if anyone thought that such an exemption might exist. To the contrary, the presidency would seem to present the most compelling example of the potential corruption of titles of nobility in general and foreign titles in particular. (It should be noted again that Professor Grewal’s explanation of why the Framers might have chosen to exempt the president from the FEC does not address titles of nobility).

Unquestionably the Framers were worried about potential foreign influence over the presidency, and it was to prevent such influence that they required the president to be a natural born citizen. See U.S. const., art. II, § 1, cl. 5. This requirement is inextricably tied to fears about presidential monarchism. As St. George Tucker explained:

That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, where-ever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. It was by means of foreign connections that the stadtholder of Holland, whose powers at first were probably not equal to those of a president of the United States, became a sovereign hereditary prince before the late revolution in that country. Nor is it with levity that I remark, that the very title of our first magistrate, in some measure exempts us from the danger of those calamities by which European nations are almost perpetually visited. The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.

St. George Tucker, Blackstone’s Commentaries, Vol. 1, Note D, Part 7 (1803)(emphasis added). See also Akhil Reed Amar, Natural Born Killjoy (2004) (natural born citizen requirement was designed to “ease anxieties about foreign nobility,” to “reject all vestiges of monarchy,” and to prevent a scenario where “a foreign earl or duke would cross the Atlantic with immense wealth and a vast retinue and use his European riches to buy friends and power on a scale that no American could match.”); cf. Keith E. Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors *17 (Mar. 4, 2017), Arizona L. Rev. forthcoming (“But the founders were familiar enough with the intrigues of the feudal courts of Europe to anticipate the possibility of foreign powers or domestic cabals attempting to influence the national legislature to install some willing princeling as president”).

The anti-Federalists, however, were not persuaded that the Constitution contained enough safeguards against presidential monarchism and foreign influence. At the Virginia ratifying convention, for example, William Grayson warned that ‘[t]he president had too much power, which would make it worth the while of foreign countries to interfere in his election—as they had done when Poland chose a new king in the early 1760s.” Maier, supra, at 286. Patrick Henry likewise warned that the president “could easily become a king.” Id. at 266. But no one claimed that the FEC exempted the president from the restrictions on receiving titles of nobility or other benefits from foreign powers.

Most telling in this regard were the remarks of George Mason, who like Grayson cited the Polish example as evidence of likely foreign tampering with the presidency:

Will not the great powers of Europe, as France and Great Britain, be interested in having a friend in the President of the United States? And will they not be more interested in his election than in that of the king of Poland? The people of Poland have a right to displace their King. But do they ever do it. No. Prussia and Russia, and other European powers, would not suffer it. This clause will open a door to the dangers and misfortunes which the people of Poland undergo. The powers of Europe will interpose, and we shall have a civil war in the bowels of our country, and be subject to all the horrors and calamities of an elective monarchy. This very executive officer may, by consent of Congress, receive a stated pension from European potentates.

 3 Elliott’s Debates 484 (emphasis added). Here Mason clearly implies that the president is subject to the FEC and therefore requires consent of Congress to receive a “stated pension from European potentates.” See Natelson, supra, *12 n. 25 (noting that Mason in this speech “apparently assumes that the Foreign Emoluments Clause applies to the president”). Mason’s remarks are particularly significant because (1) he was a Framer and (2) as an anti-Federalist, he had every incentive to identify any possible risks in the Constitution. (I mean, he even suggests the Russians might interfere in a presidential election!) The fact that he assumes that the FEC applies to the president suggests an interpretation to the contrary did not even cross his mind.

Indeed, nowhere in the ratification debates or the writings of the anti-Federalists does it appear that anyone suggested that the president might be exempt from the FEC. Given that many thought the FEC was already too lenient in allowing the acceptance of titles of nobility and other benefits with congressional consent, it is simply incredible that the opponents of the Constitution would not have objected to the president being exempted, which they certainly would have portrayed as a virtual invitation to foreign interference and bribery. The near universal revulsion with which titles of nobility were regarded would have made the idea that the president was free to accept foreign titles a particularly strong anti-Federalist talking point. Continue reading “The President and the Purposes of the Foreign Emoluments Clause (Part II): Titles of Nobility”

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The President and the Purposes of the Foreign Emoluments Clause (Part I)

I promised to return to the subject of the Foreign Emoluments Clause and so today I will start a series of posts on the purposes of that Clause and whether it makes sense for the president to be excluded from its terms. This first post will set the stage with a little background.

To be clear, the question here is not merely whether the ostensible purposes of the FEC would be better served by including the president. Rather it is whether the exclusion of the president would be so discordant with those purposes that (1) the educated reader of the Constitution in 1787-89 would have assumed the Clause encompassed the president and/or (2) any suggestion of the president’s exclusion could have been expected to provoke controversy and opposition. If either or both of these is true, then silence regarding the president’s alleged exclusion should be taken as evidence that (1) such exclusion was either (a) not intended by the Framers or (b) not communicated by the Framers to anyone else; and (2) such exclusion was not widely understood by the ratifiers or the general public.

And silence there was. To my knowledge, prior to Professor Tillman’s raising the issue in 2009 or so, no one had ever expressly claimed or directly implied the president was excluded by the FEC. No president, no member of Congress, no executive branch lawyer, no constitutional scholar. No one. By contrast, there had been a number of statements expressly affirming or clearly assuming the president’s inclusion, including by Framers/ratifiers (Edmund Randolph and George Mason), by executive branch lawyers at the Office of Legal Counsel, by statute (the Foreign Gifts and Decorations Act) and by occasional comment of constitutional writers and scholars. Perhaps this is a relative paucity of affirmations over a period of two centuries, but on the other hand there was little reason for anyone to expressly consider and affirm what no one had disputed or denied.

Under the circumstances, it is not surprising that no one had offered an explanation as to why the Framers might have excluded the president from the FEC’s provisions. Indeed, Tillman himself, although he has intimated reasons why the president might have been excluded from other constitutional provisions, such as the Disqualification Clause (see here at page 92 n.83), has not explained to my recollection why the Framers would have wanted the president to be exempt from the FEC’s presumptive ban against accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” And there is no obvious reason (at least obvious to me) why the president would be exempted from a provision founded, in Justice Story’s words, “in a just jealousy of foreign influence of every sort.” 3 Joseph Story, Commentaries on the Constitution of the United States § 1346.

Fortunately, Professor Grewal has attempted to fill this void. In a recent article focused primarily on other aspects of the FEC, he notes:

Scholarly debates show that whether the Foreign Emoluments Clause treats the President as a U.S. Officer remains an open question. At first glance, it may seem implausible that the Constitution would exempt any member of the government from a provision designed to prevent corruption. Yet the Domestic Emoluments Clause, which also guards against corruption, applies only to the President and not generally to U.S. Officers, or even to the Vice President. This suggests that the Framers may have drafted each emoluments clause to address their principal concerns, without attempting to guard against corruption of every type imaginable.

Regarding their principal concerns, the Framers may very well have believed that only appointed officers, like ambassadors, would make the type of extended visits abroad that could subject them to improper foreign influences. The President, they may have thought, would remain stateside to tend to the needs of the nation, and his potential corruption would be best addressed through the Domestic Emoluments Clause. Under this view, the exclusion of the President from the Foreign Emoluments Clause would be entirely consistent with the Framers’ design.

Andy S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. __, **7-9 (forthcoming 2017).

Grewal also notes that the Framers might have been more concerned about the potential for corruption among those officers of the United States who did not receive fixed compensation, but were dependent on “potentially uncertain streams of income” such as charging transaction-based user fees for services like processing of immigration papers. Id. at *9. Because the Constitution guarantees the president a fixed salary, Grewal suggest that the Framers may have been less concerned about the possibility the president would be susceptible to foreign corruption. He acknowledges, however, that “no contemporaneous materials advance this understanding.” Id.

With this potential explanation in mind, let’s take a closer look at what the FEC proscribes. We begin with the text:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

U.S. const., art. I, § 9, cl. 8.

One thing to note from this language is that the U.S. officeholder is not only restricted from receiving any present or emolument, but two items not discussed by Professor Grewal. One is any title, including if not necessarily limited to any title of nobility, which appears to be a central focus of the Clause. (More on this later.)

The other is any “office.” Presumably an office conferred by a foreign government could impose duties to be performed on behalf of that government. Acceptance of such an office would seem to be manifestly improper for any federal officeholder, much less the president of the United States. For present purposes, however, I will assume that the FEC primarily contemplates ceremonial offices, which would simply be another way of conferring an emolument or title. Therefore, I will not give separate consideration to this restriction.

The language of the FEC must be understood in light of Article VI of the Articles of Confederation, which contained a closely related provision from which the FEC is derived:

No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

This provision of the Articles combines two different concepts. The first sentence limits the ability of states to conduct their own foreign relations. The last sentence prohibits the United States or any state from issuing titles of nobility. The middle sentence links these seemingly unrelated subjects by prohibiting any person holding “any office of profit or trust” under the United States or any state from accepting a title of nobility or other benefit from a foreign power.

The drafters of the Constitution broke this provision into two components. The FEC addresses prohibitions on the United States, forbidding the issuance of titles of nobility at the federal level and federal officeholders from accepting, without congressional consent, titles of nobility or other benefits from foreign powers. A separate provision, which immediately follows the FEC, contains a series of prohibitions on the states, including forbidding them from entering into any treaty, alliance or confederation and from issuing any title of nobility. See U.S. const., art. I, § 10, cl. 1.

There are two observations of interest here. The first is that the FEC uses the same term, “office of profit or trust” under the United States, as was used in the Articles. Since there was no president under the Articles, there may have not been a pre-existing understanding as to whether the term embraced the office of president.

Second, unlike the Articles, the Constitution does not forbid state officeholders from accepting titles of nobility, emoluments, etc. from foreign powers. The reason for the change is unclear. One possibility is that the Framers decided to permit such acceptance with the consent of Congress, but thought it improper or impractical to require state officeholders to seek such permission (imagine Congress being inundated with requests from state officials, who at that time would have been much more numerous than federal officers). Alternatively or in addition, they may have thought it inappropriate or unnecessary for the federal constitution to regulate the conduct of state officeholders.

It is also possible that the prohibition with respect to state officeholders in the Articles was considered necessary because of the particular structure of that system. The primary national institution under the Articles was the Confederation Congress, and delegates to that Congress, who were “annually appointed in such manner as the legislatures of each State shall direct,” arguably functioned more like state delegates or commissioners to an interstate convention than like ordinary legislators. This is speculation, but the drafters of the Articles may have thought that covering “offices of profit or trust” under any state was necessary in order to ensure that delegates to the Confederation Congress were subject to the prohibition.

With this background, in my next post I will turn to the purposes of the prohibition on titles of nobility.