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That Didn’t Take Long

Even before the Speaker had certified the contempt, this letter arrived from Deputy Attorney General James Cole informing him that “the Department has determined that the Attorney General’s response to the subpoena issued by the Committee on Oversight and Government Reform does not constitute a crime, and therefore the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General.”

It should be noted that the statute, 2 U.S.C. § 194, assigns a duty to the United States Attorney, not to the “Department.” It is interesting that the letter comes from the Deputy Attorney General, not from the United States Attorney for District of Columbia, who is the official charged with the responsibility for presenting the congressional contempt case to the grand jury.

Presumably the Department would point to the fact that Attorney General Mukasey sent a similar letter in the case of the congressional contempt certifications for Josh Bolten and Harriet Miers. But the fact that something was done before doesn’t make it right, and I cannot understand why the Attorney General (or the Deputy Attorney General), rather than the U.S. Attorney, would be responsible for making the decision that the statute clearly assigns to the latter.

Presumably, in this case the letter did not come from Attorney General Holder because it would look like a conflict of interest for Holder to declare that he would not prosecute himself. But this doesn’t look much better.

 

Update: here is Senator Grassley’s letter to U.S. Attorney Machen questioning whether he has made an independent determination regarding the scope of the executive privilege claim and whether the case should be submitted to the grand jury.

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The Holder Contempt- Civil Enforcement Edition

The House is scheduled to vote today on holding the Attorney General in contempt for his failure to comply with congressional subpoenas seeking documents in the Fast and Furious investigation. Since my last post on this subject, the House leadership has decided in addition to voting on the resolution to certify the contempt to the U.S. Attorney, the House will vote on H. Res. 706, which would authorize the Chairman of the Committee on Oversight and Governmental Reform to initiate judicial proceedings “to seek declaratory judgments affirming the duty of Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, to comply with any subpoena [covered by the contempt resolution].”

H.Res. 706 provides COGR an alternative mechanism to attempt to enforce the subpoena. Assuming that the U.S Attorney refuses to present the contempt certification to the grand jury, COGR can file suit in federal court seeking a declaratory judgment that Holder is required to produce some or all of the documents covered by the subpoenas.

Indeed, the U.S. Attorney may look on the availability of the civil enforcement mechanism as a ground for refusing to present the matter to a grand jury, at least until there is a resolution of the civil enforcement case. He may contend that a civil suit is the most appropriate means for resolving disputes between the executive and legislative branches regarding the applicability of executive privilege. This would be consistent with the position taken by the Department of Justice during the Reagan Administration.

However, during the Bush 43 Administration, the Department took a different position. It not only flatly refused to present a congressional contempt case against White House officials to the grand jury, but it also raised numerous jurisdictional objections to the House’s attempt to have the privilege issues resolved in a civil declaratory judgment action. Instead, the Department suggested that the only way the House could enforce a subpoena against an executive branch official would be to send the Sergeant-at-Arms to arrest him or her. Fortunately, Judge Bates did not find this to be a compelling argument.

So the question is- which Department of Justice will show up this time? Will it acknowledge the jurisdiction of the federal courts to resolve a declaratory judgment action regarding executive privilege? If so, a civil enforcement suit may be a relatively attractive and expeditious way of settling the dispute here. But if the Department intends to raise standing, subject-matter jurisdiction and political question issues (and the like), the House may be better off demanding that the U.S. Attorney comply with his statutory duty to present the matter to the grand jury.

Of course, if all else fails, there is always the nuclear option of sending the Sergeant-at-Arms to arrest the Attorney General. Professor Chafetz notwithstanding, however, I think this should be a really last resort.

David Laufman has more here.

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The Holder Contempt- A Procedural Primer

As you may have heard, President Obama has asserted executive privilege with regard to Department of Justice documents sought by the House Committee on Oversight and Government Reform as part of its investigation of the “Fast and Furious” program, and COGR has voted to hold Attorney General Holder in contempt for failing to produce them. Rather than delving into the merits (on that subject see commentary by Todd Gaziano at Heritage’s The Foundry, John Hinderaker at PowerLine and Andrew Rudalevige at the Monkey Cage), I will lay out the procedural posture of the case in this post.

The Statutory Contempt Process

There are several ways that Congress can attempt to compel the production of information, but it appears that the House will follow the ordinary procedure, which may be referred to as criminal or statutory contempt, Understanding this process begins with a federal statute, 2 U.S.C. § 192, that states “[e]very person who having been summoned . . .  to produce papers upon any matter under inquiry before . . . any committee of either House of Congress, willfully makes default . . . shall be deemed guilty of a misdemeanor . . . .”

This provision in turn must be read in conjunction with another section, 2 U.S.C. § 194, which provides:

Whenever a witness summoned as mentioned in section 192 of this title fails . . . to produce any books, papers, records, or documents, as required . . . and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.

A person relying on a literal reading of these provisions could be led seriously astray. In the first place, although nothing in the language of these sections indicates that certification by the presiding officer is a necessary prerequisite to prosecution under section 192, legislative, judicial and executive precedent clearly establishes that this is the case.

In the second place, although section 194 literally seems to require certification whenever “the fact of such failure or failures” is reported to the House or Senate, this is not the case. Before certification takes place, the House or Senate, as the case may be, must vote to hold the witness in contempt. Only then does it become the “duty” of the presiding officer to certify the contempt.

Even more perplexingly, if the House (for example) is not in session, and the “statement of fact” is presented to the Speaker, it is not the automatic duty of the Speaker to certify the contempt, although this is what section 194 seems to say. Instead, the D.C. Circuit held in Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966), that the Speaker cannot automatically certify the contempt, but must exercise some sort of discretionary review akin to that which the House would exercise if it were in session.

Finally, although the statute seems clear that the United States attorney to whom a certification is made must bring it before the grand jury for its action, this is also controversial. The executive branch has maintained that the statute cannot be interpreted to interfere with its prosecutorial discretion or with its authority to assert executive privilege. Specifically, in the one case in history where the House voted, and the Speaker certified, contempt against an executive branch official who withheld documents from a congressional committee on grounds of executive privilege, the Office of Legal Counsel opined that the United States Attorney for the District of Columbia was not required to refer the matter to the grand jury (or to initiate a prosecution). See 8 O.L.C. 101 (May 30, 1984). Although OLC’s reasoning would seem to apply to any case where an executive official asserted executive privilege at the President’s direction, it declined to announce a general rule, limiting its opinion to the specific facts of that case.

Continue reading “The Holder Contempt- A Procedural Primer”

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“We Refer a Lot of Things that Don’t Get Prosecuted”

So noted former congressman Tom Davis after Roger Clemens was acquitted on all charges stemming from his congressional testimony regarding alleged steroid use. Davis was explaining to the Washington Post why he did not believe the Justice Department was obligated to prosecute Clemens even though he and Representative Henry Waxman (respectively the ranking member and chairman of the Committee on Oversight and Government Reform at the time Clemens testified before that committee) had referred the matter to the Department for investigation.

As a technical matter, Davis is certainly correct. The Justice Department is not obligated to, and does not in fact, prosecute all cases referred to it by Congress. (Arguably, the Justice Department is obligated to present all congressional contempt cases referred under 2 U.S.C. ¶ 194 to a grand jury, but it doesn’t do that either).

In the case of a congressional perjury referral such as was made with regard to Clemens, I think it is safe to assume that the Justice Department conducted a thorough investigation of whether Clemens lied before Congress when he denied ever having used steroids. After conducting the investigation, it presumably reached an independent conclusion that Clemens was lying. It seems unlikely that the Department relied on the referral letter from Waxman and Davis, particularly since that letter states: “We are not in a position to reach a definitive judgment as to whether Mr. Clemens lied to the Committee. Our only conclusion is that significant questions have been raised about Mr. Clemens’s truthfulness and that further investigation by the Department of Justice is warranted.”

It is different matter with respect to the “congressional elements” of the charges, however. Although the referral letter does not explicitly address these questions, the Justice Department would have reasonably assumed from the fact of the referral itself that Waxman and Davis believed that Clemens’s testimony was “material” to a matter within the jurisdiction of the committee, and, of course, that the committee was a “competent tribunal” engaged in the “due and proper exercise of the power of inquiry.”

Continue reading ““We Refer a Lot of Things that Don’t Get Prosecuted””

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Laufman on Leaks

Pertinent to my last post, white collar defense attorney (and my former Hill colleague) David Laufman has published this article for the Huffington Post on “Prosecuting Leaks of Classified Information.” It provides an excellent overview of the laws governing national security leaks, and the challenges and risks involved in prosecuting leakers.

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Why Doesn’t Congress Investigate National Security Leaks by the Executive Branch?

Stop laughing, I’m serious. If Senator Feinstein and Representative Rogers, the chairs of the Senate and House Intelligence Committees respectively, want to get to the bottom of recent leaks of highly classified information from the executive branch, why don’t they conduct the investigation themselves?

Hear me out. The knee-jerk reaction to such issues is to call for the appointment of a special prosecutor, someone appointed by the Attorney General but given a guarantee of independence to conduct his or her investigation. However, even if the independence of the prosecutor is generally accepted (something that cannot be taken for granted in the highly partisan times in which we live), the criminal process is not necessarily the best mechanism for investigating the leaking of classified information.

For one thing, a prosecutor’s job is to build criminal cases, not to find out how and why leaks have occurred and how to stop them from happening again. For another, there are a lot of difficulties in conducting a successful criminal leak investigation. As recently explained by the Assistant Attorney General for the National Security Division: “One inherent difficulty in leak cases is that the investigations are focused on the pool of individuals who had access to the information, and not those to whom the information was disclosed. This is reflective of the fact that while there are certainly significant national security and law enforcement equities at play in unauthorized disclosure cases, there is also a need to recognize the serious First Amendment interests implicated whenever the media becomes involved in a criminal investigation.” Moreover, when the information in question has been widely disseminated across government agencies, it “can make identifying the source of the leak essentially impossible.”

The congressional intelligence committees have all the tools needed to investigate this matter. They have authority to compel the production of documents, testimony and other evidence in executive session and the systems and procedures to protect the secrecy of the information they gather. They have greater flexibility with regard to obtaining information from the media. Unlike a prosecutor, they don’t have to worry about fixing blame on a particular individual, satisfying all the elements of a criminal violation, or meeting the burden of proof beyond a reasonable doubt. They also do not need to conduct a public trial that might itself jeopardize national security. In addition to assessing responsibility for prior leaks, they can focus on actions to prevent future leaks and to contain the damage that has already been done.

The obvious rejoinder to all of this is that no one would trust Congress to conduct a fair and impartial investigation of such a politically sensitive matter. But while that observation might be compelling in other circumstances, this is a special case. In the first place, the secretive nature of the intelligence committees’ work makes them less susceptible to the occupational hazard of grandstanding. In the second place, Feinstein and Rogers are widely respected, and it would be hard (not impossible, but hard) to characterize any investigation that they jointly conducted as either a witch hunt or a coverup.

And in this case, the comparison is not to a special prosecutor but to prosecutors handpicked by Attorney General Holder. As far as public confidence is concerned, Feinstein and Rogers (or should it be Rogers and Feinstein- it has more of a ring) win hands down.

Of course, if the congressional intelligence committees were to undertake this investigation, they would need an experienced investigator to lead it. Someone who the public would trust. Preferably with some experience in leak investigations. I wonder if anyone like that is available?

 

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Seeking Section Four Transparency

As the national debt rises rapidly toward the latest “ceiling”, Professor Epps once again proposes (“A Gun to the Debt-Ceiling Fight”) the President invoke (or threaten to invoke) Section Four of the Fourteenth Amendment to avoid all that unpleasantness from last time. Needless to say, I don’t think any more of the legal merits of this proposal than I did before. I am also not too sure that Epps is right in thinking that the President’s biggest problem is the perception he is too weak. I mean, the man has a “kill list,” for Pete’s sake.

But let me concentrate on the positive. I wholeheartedly agree with Epps that the executive branch should share with us any analysis of Section Four that may have been done in connection with debt crises of 2011, 1995-96 or 1986 (or at any other time).  Epps reports “I called the U.S. Department of Justice to ask whether the Office of Legal Counsel has issued, or is preparing, a formal opinion on the President’s possible power under Section Four; the DOJ’s spokesman did not return my call.”

Well, I can beat that. I filed a FOIA request last July seeking that the Treasury Department produce “[a]ll documents that contain, discuss, refer or relate to any legal opinion or analysis by the Treasury Department General Counsel, or any attorney thereof, of Section Four of the Fourteenth Amendment (also known as the Public Debt Clause), or any application or potential application of Section Four to the statutory debt limit.”  I received a prompt response to tell me that . . . well, that I wouldn’t be receiving a prompt response. According to the Treasury Department, “unusual circumstances exist regarding a search and review of the information requested which may result in voluminous records.” Since then, nada.

It’s a little surprising that my request, which I thought was pretty narrow, would (or might) result in “voluminous records.” Presumably this means that Treasury has done some sort of analysis of Section Four. I assume that Epps would like to see it. So would I.

And there is no reason why the Treasury Department shouldn’t share it. Its not like we are asking to see the kill list, after all.

Update: Here is the FOIA request.

 

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Constitutional Settlements and the Recess Appointments Clause

We have now learned a good deal (some might say too much) about the Recess Appointments Clause, and it is time to consider how this knowledge might be employed for the betterment of the Republic. The many open questions regarding the interpretation and application of the RAC are an invitation to constant disputation and uncertainty regarding the validity of recess appointments. The executive branch’s theories are broad enough to allow the President to fill any vacancy at virtually any time, and to keep it filled throughout his term (and beyond), without Senate participation. Meanwhile, there are respectable counter-arguments, some of which have enjoyed wide currency in Congress, that cast doubt on the validity of the vast majority of modern recess appointments.

This is not a healthy situation. As Donald Morgan notes in Congress and the Constitution 25 (1966), “satisfactory settlement of constitutional questions is . . . necessary [because] [f]ailure to achieve settlement may cause inconvenience, confusion, disorder, retaliation, violence, and even civil war.” In the present case it may also cause embarrassment, as politicians, lawyers and the like rush to switch sides depending on whose ox is being gored. (For an example, see Adam White’s cleverly titled “Confirmation Bias”).

But how to reach a constitutional settlement? Many would argue, or simply assume, that this can be achieved only by a Supreme Court decision. As the courts like to remind us incessantly, it is their province to “say what the law is.” Until they say, the theory goes, who knows what the law is?

Continue reading “Constitutional Settlements and the Recess Appointments Clause”

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Burying the Multi-Session Recess Appointment Theory

In a recent post on the Recess Appointments Clause, I argued that the current method (the multi-session recess appointment theory) for determining the tenure of a recess appointee is based on “precedent” which does not amount to a hill of beans. It is time now to consider afresh the question of how one ought to determine the end of the Senate’s “next session” for purposes of the RAC.

 

The Reciprocal Meaning of Recess and Session

Discussion of the term “recess” has generally agreed that it may refer, both today and at the time the Constitution was written, to suspensions of business of any duration. With regard to today’s usage, Professor Hartnett notes “as anyone who has ever attended elementary school, a committee meeting, or a trial can attest, a ‘recess’ is quite frequently a rather short break.” With regard to usage in the late 18th and early 19th centuries, the 11th Circuit states that “recess” was “a general term for the suspension of business,” pointing to Samuel Johnson’s “A Dictionary of the English Language” (1755) and Noah Webster’s “An American Dictionary of the English Language” (1828).

The term “session,” as used today, can refer to  “a single continuous sitting, or period of sitting, of persons so assembled,” or “a continuous series of sittings or meetings of a court, legislature, or the like.” Thus, we might refer to “the afternoon session,” or “today’s session,” or the “fall session.” The degree of continuity is relative; saying that the Senate is “in session” might mean that Senators are currently on the floor conducting business, or that the Senate is conducting business today, or that the Senate is “in town” and meeting from time to time.

Although both “recess” and “session” can be used in different senses, one sense is as mutually exclusive statuses of a legislative body. As Senator Gore explained in 1814, “[t]he time of the Senate  consists of two periods, viz: their session and their recess.”

This usage of the terms “session” and “recess,” which Hartnett terms the “reciprocal” usage, was recognized in the 18th century. Thus, Johnson’s dictionary defines “session” as “an assembly of magistrates or senators” or “the space for which an assembly sits without intermission or recess.” Put another way, a “recess” would break the continuity of a “session” and thereby end it. An “intra-session recess” would therefore be oxymoronic.

Continue reading “Burying the Multi-Session Recess Appointment Theory”

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When Harry Met Lindsay

Thanks to the good people at the Truman Library, I can provide a little more background on the relationship between President Truman and Comptroller General Warren. You can decide for yourself its relevance for evaluating Warren’s 1948 opinions on the Recess Appointments Clause, but it seems to me that, at the least, it shows that the executive branch exaggerates when it presents Warren as a defender of legislative branch interests and prerogatives. See, e.g. Brief of the United States in U.S. v. Miller 15 (contending that Warren’s opinions should be viewed in the context that the Comptroller General is an “officer of the Legislative Branch” and therefore “subservient to Congress”).

In the spring of 1947 Warren issued two opinions that rejected attempts by administrative agencies, in one case the Coal Mines Administration and in the other the U.S. Maritime Commission, to circumvent statutory restrictions on their authorities. These decisions led Truman to personally phone Warren to complain. The tone of this call, which occurred on Monday, June 30, 1947, must be left to the imagination, but on Wednesday Warren sent Truman a letter which begins “My dear Mr. President: Needless to say I was quite disturbed when I received your telephone call on June 30 . . .” and follows with a lengthy explanation of why he had no option but to decide the cases as he did.

I will spare you the details, but Warren emphasizes that he bent over backwards to assist the agencies in resolving their problems, including in one case personally telephoning the Chairman of the House Appropriations Committee to lobby him on behalf of the Maritime Commission. As I noted previously, there is no evidence of similar consultation with Congress before Warren decided adversely to its interests the following summer.

Warren closes his letter with a description of his office’s role that might seem more appropriate for the Office of Legal Counsel than for a legislative office “subservient to Congress:”

I want to assure you, Mr. President, that the officials of this office have a sympathetic understanding of the critical problems that many times confront the President and the departments and establishments of the Government. Many of them work overtime gratuitously on nights, week-ends and holidays in an effort to assist the Executive agencies in solving their problems and otherwise to extend the fullest cooperation. But just as those agencies are amenable to the law, and must abide by legislative enactments, so too must the General Accounting Office in passing upon matters coming before it. Occasions arise, of course, when we must decide questions without regard to our personal sympathies and, sometimes, adversely to the wishes of administrative officials. I know, too, the tremendous burden you must bear and the fact that many times matters are called to your attention so briefly or in such manner that the many details thereof—as in these two cases—are not made known to you. It is simply for that reason that I have considered it appropriate to send you this letter in order that you may have the complete picture before you in writing and know the thorough and sympathetic consideration that the matters involved received in the General Accounting Office.

Truman was evidently mollified, because he responded with a note of appreciation on July 11, closing as follows:

As you know, I have been having a lot of difficulties with the Congress, and with other things, and I was very certain that it was not your policy to add to those difficulties. I am very glad I called you because I know you feel better, and I am sure I do, over our exchange of information.

I don’t think it is unreasonable to suspect that when Warren reviewed the politically sensitive RAC cases the following year, he was keenly aware of the need to give “sympathetic consideration” to the administration’s request so as not “to add to [Truman’s] difficulties” and perhaps to avoid another call from “give ‘em hell Harry.”