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Is Congress Competent?

Ok, that’s not exactly the question raised by attorneys for Roger Clemens in last week’s filing in federal district court, but I bet its how they hope the jurors interpret the question.

Technically, the issue that Rusty Hardin and company want jurors to consider is whether the House Committee on Oversight and Government Reform (COGR) was a “competent tribunal” when it questioned Clemens in 2008 about his alleged steroid use. They also want jurors to decide if COGR was engaged in “the due and proper exercise of the power of inquiry” and whether Clemens’s alleged false statements were made in a matter “within the jurisdiction” of the legislative branch.

According to the defense team, these competency elements all boil down to one basic inquiry: what was COGR’s purpose in calling Clemens to testify and with respect to the specific questions he was asked. Examples of improper purpose, they say, include:

  • Questioning a witness solely for a purpose other than to elicit facts in aid of legislation
  • Usurping the functions of a prosecuting attorney in the guise of a legislative investigation
  • Re-questioning a witness for the purpose of rendering him more liable to criminal prosecution
  • Conducting a hearing for an actual purpose different than a stated purpose
  • Directing an inquiry primarily to the witness’s guilt or innocence of a crime

To which the prosecution responds: go ahead, make my day. Rather than contesting the defense position on what types of competency issues may be presented to the jury, or pointing out the serious Speech or Debate/separation of powers problems that could result from a judicial inquiry into legislative motives, the government seems to concede the defense’s right to put COGR on trial.

Instead, the prosecution warns that if the defense exercises this right, the government must be permitted the opportunity to show the “broader context” of the congressional investigation. It says “if defendant thus calls into question the competency of the congressional tribunal by suggesting that the Committee was not acting with a proper legislative purpose, then the United States must be permitted to explain, among other things, the seriousness of the problem of steroids and other performance enhancing drugs, the national spotlight being cast on this problem, and the necessity for the congressional inquiry.” The defendant “cannot, on the one hand, impugn the integrity of the Oversight Committee by suggesting that its true- singular- motive was a perjury indictment of him, but, on the other hand, preclude the United States from explaining to the jury, for example, that the Committee’s investigative work was of national importance because of the wide-spread problem of steroid and other performance enhancing drug use in Major League Baseball.”

This strikes me as a dubious prosecution strategy. In the first place, I doubt that anyone is disputing the “seriousness of the problem of steroids and other performance enhancing drugs,” generally speaking. What is being questioned is the reason for calling a particular witness to a particular congressional hearing. I don’t think that Judge Walton will allow that to be the basis for inquiry into steroid use by other baseball players. Moreover, even if the court does allow it, I am not sure this is a good trade for the prosecution. Many jurors may be more concerned about Congress’s reasons for the investigation than they are about steroid use in baseball.

I also wonder about the more general implications of the prosecution’s apparent concessions. The government must prove that Clemens’s statements were material, and this means that they have to be related to a legitimate legislative purpose. But there also have to be limits on how far the parties can go into the actual motives of the COGR members, or otherwise every congressional perjury case will devolve into a political trial of Members of Congress. The prosecutors have not suggested, at least yet, what those limits might be.

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Comptroller General Warren and the Origins of the Multi-Session Recess Appointment

As far as I know, Lindsay Warren was a competent attorney who served honorably as the third Comptroller General of the United States. The opinions that he issued in the summer of 1948 regarding the Recess Appointments Clause, however, were not a high point of his career or of the GAO’s protection of the institutional interests of the Congress.

To set the stage, Warren had been a long-serving Democratic congressman from North Carolina who was thrice offered the position of Comptroller General by President Franklin D. Roosevelt. The third time, in 1940, while he was serving as acting House Majority Leader, Warren accepted the offer. Warren’s acceptance of the position was an important signal that Roosevelt, who had previously attempted to eliminate or radically transform the GAO, no longer intended to do so. As Warren would later explain: “Mr. Roosevelt gave up his fight when I accepted this appointment. . . . [I]t is hard to conceive that I would give up a seat in Congress and accept this position in order to preside over the liquidation of the General Accounting Office.”

During World War II, the GAO’s most important function was to audit and investigate military expenditures, particularly the thousands of cost-plus contracts that were awarded in support of the war effort. In this role Warren worked closely with then-Senator Harry Truman, who chaired the Senate Special Committee to Investigate the National Defense Program. For example, in April 1943 Warren informed Truman of kickbacks that were being paid by Detroit-area subcontractors to procure work on these cost-plus defense contracts. Warren later proposed legislation, with Truman’s support, to prohibit such kickbacks.

Warren’s partisan affiliation and his close ties to the Roosevelt and Truman administrations may or may not be relevant to what follows, but they are certainly worth keeping in mind.

Truman became Roosevelt’s Vice President and ascended to the presidency on Roosevelt’s death in April 1945. The Republicans won control of Congress in 1946, ending (or interrupting) the period of Democratic dominance that began with the elections of 1932. The Eightieth Congress assembled on January 3, 1947 and adjourned on July 27, 1947. Rather than adjourning sine die, however, it adjourned to January 2, 1948, and reserved to congressional leaders the authority to call the Congress back into session at an earlier date. It followed the same practice in 1948, adjourning on June 20 until December 31, but authorizing congressional leaders to call members back early.

Given the bitter relations that developed between President Truman and the Republican Congress, one might assume that this practice was designed, as in the Fortieth Congress, as a means of thwarting the exercise of presidential authority. In fact, according to the Senate historian, it reflected a precaution taken in case something happened to the President (there being no Vice President to assume his duties).

To make matters more interesting, in both 1947 and 1948, Truman used his power under Article II, section 3 (“he may, on extraordinary Occasions, convene both Houses, or either of them”) to convene Congress during its extended adjournment. He convened Congress from November 17, 1947 to December 19, 1947, and again from July 26, 1948 to August 7, 1948.

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Attorney General Daugherty and the “Intra-Session” Recess

We now come to Attorney General Harry Daugherty, whose 1921 opinion still controls the executive branch’s understanding of what constitutes a “recess” within the meaning of the Recess Appointments Clause. See OLC Opinion, “Lawfulness of Recess Appointments during a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions” 5 (Jan. 6, 2012) (noting that the existence of a recess is determined “[u]nder a framework first articulated by Attorney General Daugherty in 1921, and subsequently reaffirmed and applied by several opinions of the Attorney General and this Office”); id. at 12 (discussing Daugherty’s “seminal opinion”).

The prominence of this opinion is presumably not due to the prestige of its author. No one would describe Harry Daugherty as an “extraordinary lawyer.” At least not in a good way. See L. McCartney, The Teapot Dome Scandal 63 (2008) (describing how Daugherty and a crony entertained President Harding and members of his administration at the H Street house, which they ran “like a combination bordello, gambling den, and speakeasy at a cost of $50,000 a year.”).

But I digress.

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Attorney General Knox and the Multi-Session Recess Appointment

On December 24,1901, during the administration of Teddy Roosevelt, Attorney General Knox issued an opinion responding to the question whether President Roosevelt could fill a vacant office (the appraiser of merchandise in the district of New York) during the “current holiday adjournment” of the Senate. Both houses had adjourned from December 19, 1901 to January 6, 1902 for the Christmas and New Years holidays.

It is important to appreciate the factual context of this question. The Fifty-seventh Congress had been elected in 1900 but, in accordance with normal practice prior to the 20th Amendment, its first meeting was not until the first Monday of December 1901 (December 2). The taking of a holiday adjournment during the session that began in December had become a matter of routine after the Civil War, with such adjournments typically lasting a maximum of 19 days (there was one exception in 1877, when the adjournment lasted for 26 days). The 17-day adjournment considered by Knox fell squarely within this tradition.

The issue, according to Knox, was “[m]ay the President appoint as in the recess when the Senate had adjourned temporarily to a day certain?” In answering this question in the negative, Knox explained the parliamentary differences between a resolution for “final adjournment of Congress for the session,” on the one hand, and, on the other, “a merely temporary suspension of business from day to day or, when exceeding three days, for such brief periods over holidays as are well recognized and established and as are agreed upon by the joint action of the two Houses.” While Knox acknowledged that the latter type of temporary adjournment might constitute “a recess in the general and ordinary use of that term,” he denied that it could be “the recess” referred to by the Recess Appointments Clause.

Apart from the distinction between “a recess” and “the recess,” Knox grounded his opinion on two structural points. The first was that if temporary adjournments during a session qualified as “recesses” within the meaning of the RAC, then every day-to-day adjournment of the Senate would become a recess during which the president could fill vacant offices. Such a result would be inconsistent with both historic practice and with the purposes of the RAC.

The second point related to the length of the temporary commissions granted under the RAC. Knox saw this as an insuperable barrier to finding the RAC applicable to an “intra-session” recess:

If an adjournment during a session is a recess within the meaning of the clause of the Constitution in question, then the commission of an appointee of the President would extend to the end of the Fifty-seventh Congress, as the Constitution provides that it shall extend to the end of the next session, not the session within which the recess occurs. The only theory to defeat such a conclusion would be that the reassembling of the Senate after each adjournment constitutes a new session, a position wholly untenable in view of the constitutional provision as to adjournments during the session.

23 Op. Atty Gen. at 404 (emphasis in original).

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But They Can Still Vote While Intoxicated, Right?

According to several news accounts in the last week, a Minnesota student group is working to end “legislative immunity from drunk driving arrests.” Apparently someone believes that Minnesota state legislators are immune from arrest for DWI based on Article IV, section 10, of the Minnesota Constitution, which provides that “members of each house in all cases except treason, felony and breach of the peace, shall be privileged from arrest during the session of their respective houses and in going to or returning from the same.”

This language is nearly identical to the Arrest Clause in the U.S. Constitution, from which it is undoubtedly derived. I am pretty sure that a federal legislator would have no Arrest Clause protection from a DWI arrest, and it is unclear why anyone thinks that a Minnesota legislator would be entitled to assert such a privilege.

Except that the professor for the students in question says she “witnessed a clearly drunken legislator last year bragging about his immunity from DWI arrests in a St. Paul bar last year.”

Well, how much more proof do you need?

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A Recess By Any Other Name

We now come to the issue that has been much discussed in connection with President Obama’s January 4, 2012 recess appointments: what constitutes a “recess” within the meaning of the Recess Appointments Clause? The RAC, you will recall, provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” (emphasis added).

Recess and Session

Although the Constitution does not define the terms “recess” or “session,” at the time of the framing there would have been little reason to question the meaning of these terms. As discussed in my original post, the Framers would have understood the “session” to consist of the time that Congress (or in some cases the Senate alone) was assembled at the seat of government, while the “recess” was the time between sessions when members of Congress returned to their homes.

The notion of Congress being in “recess” and in “session” simultaneously would have made little sense, sort of like describing someone as being asleep and awake at the same time. The understanding of these terms as mutually exclusive can be seen, for example, in the Act of March 3, 1791, which dealt with the appointment of duties inspectors and provided “if the appointment of inspectors . . . shall not be made during the present session of Congress, the President may, and he is hereby empowered to make such appointments during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” 1 Stat. 199, 200. It is evident from this usage that the “recess” is the period between the “present session” and the “next session.”

The relationship between session and recess was more explicitly stated by Senator Gore when he observed, during the 1814 debate, that “[t]he time of the Senate consists of two periods, viz: their session and their recess.”

There is no reason to believe that Gore thought this statement in any way controversial. Rather he was merely making a foundational observation for his argument that a vacancy must “happen” during the recess for the RAC to apply. Attorney General Wirt, while disagreeing with Gore on the definition of “happen,” shared his understanding of the relationship between the recess and the session. Wirt explained:

The constitution does not look to the moment of the origin of the vacancy, but to the state of things at the point at time at which the President is called on to act. Is the Senate in session? The he must make a nomination to that body. Is it in recess? Then the President must fill the vacancy by a temporary commission.

(emphasis added). Clearly Wirt did not believe that the Senate could be “in session” and “in recess” at the same time.

The Senate Judiciary Committee, in its 1868 report, similarly noted:

 We think the language too clear to admit of reasonable doubt, and that, upon principles of just construction, this period [when the vacancy must “happen”] must have its inceptive point after one session has closed and before another session has begun. It cannot, we think, be disputed that the period of time designated in the [RAC] as “the recess of the Senate,” includes the space beginning with the indivisible point in time which next follows that at which it adjourned, and ending with that which next precedes the moment of the commencement of their next session.

 What the Committee said “cannot be disputed”—namely that the recess consists of the period of time between the adjournment of one session and the commencement of the next—was apparently not disputed by anyone.

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We Have Another Tie!

This time in Wisconsin, where a Republican state senator (facing a recall election in June) has resigned, leaving the Senate split at 16-16.

Unlike Virginia, Wisconsin has no constitutional provision providing for the lieutenant governor (or anyone else) to break ties.  Nor, apparently, is there any statute that says what happens in this situation.

According to NCSL’s website, this leaves two options: (1) a negotiated agreement between the parties and (2) a coin toss.

A coin toss sounds good, but would they be able to agree on which coin to use?

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Senator Stevens and the Strange Evolution of Speech or Debate

Yesterday was the release date for Henry Schuelke’s report on misconduct in the prosecution of the late Senator Ted Stevens. The report, which I have only skimmed, is available here.  In addition, Judge Sullivan’s opinion ordering the public release of the report may be read here. Judge Sullivan summarizes the case for release by noting:

Mr. Schuelke’s Report chronicles significant prosecutorial misconduct in a highly publicized investigation and prosecution brought by the Public Integrity Section against an incumbent United States Senator. The government’s ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate.

One might think that the Speech or Debate Clause would have a role in preventing this type of prosecution, but, for reasons I discussed at the time, it was of little use to Senator Stevens.

On the other hand, in another Speech or Debate Clause case, currently pending in the same court, the defendant has proved to be much more fortunate. Howard v. Office of the Chief Administrative Officer is an employment discrimination case brought by a former employee of the CAO’s office, who alleged that she was discriminated against based on race and retaliated against for engaging in activity protected under the Congressional Accountability Act.

The question in the employment discrimination case is simply whether Howard was fired for not doing her job, as the CAO contends, or for the illegal reasons alleged by the employee. But because Howard’s job involved “legislative activities” (she prepared budget analyses that the CAO would submit to the Appropriations Committee for use in preparing the legislative appropriations bill), Judge Kennedy held that a court could not inquire into the reasons for her termination without violating the Speech or Debate Clause. Although the court acknowledged Howard’s somewhat tangential relationship to the legislative process, it found “there is not a sufficient basis in precedent to conclude that a task is non-legislative merely because it is performed by staff who are several steps removed from the Members themselves.”

If the purpose of Speech or Debate is to protect “the independence of the legislative branch from intimidation and interference,” as Judge Kennedy wrote, one would think it much more relevant to the Stevens prosecution than to the Howard case. But the courts have struggled to draw the line between “legislative activities” and “non-legislative activities” without giving much thought, it would seem, to whether the results make any sense.

As the court remarked in Jewish War Veterans, Inc. v. Gates, 506 F.Supp.2d 30, 57 (D.D.C. 2007), “[i]s hard enough to draw the crucial distinction between legislative and non-legislative acts, despite the existence of four decades of Supreme Court and D.C. Circuit case law to provide guidance.” True enough, though perhaps more true if “despite” were replaced by “due to.”

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What’s Happening? Rerunning the Wirt-Rappaport Debate on the Recess Appointments Clause

Attorney General Wirt’s interpretation of the Recess Appointments Clause, under which the President may fill vacancies that “happen to exist” during the recess of the Senate, has been followed by the executive branch since Wirt issued his opinion in 1823. A few years ago, Professor Michael Rappaport challenged Wirt’s interpretation, arguing that it was so obviously inconsistent with the original meaning of the RAC that it should be rejected despite its long historical provenance. Rappaport contends that the RAC only applies to vacancies that actually “happen,” i.e., arise or occur, during the recess of the Senate. Vacancies that arise while the Senate is in session cannot be filled under the RAC, even if the offices remain vacant when the Senate recesses.

Everyone, including Wirt, acknowledges that Rappaport’s interpretation of the RAC represents the more natural reading of the text. Rappaport argues, in fact, that if the RAC is read to give the President the power to fill all vacancies that exist during a recess, the words “that may happen” in the RAC become mere surplusage. This textual argument also convinced Judge Barkett, who concluded that “the plain meaning of the [RAC] directly, expressly and unambiguously requires that before a vacancy can be filled through the recess appointment power, that vacancy must have occurred during a Senate recess.” Evans v. Stephens, 387 F.3d 1220, 1229 (11th Cir. 2004) (en banc) (Barkett, J., dissenting).

Yet while the Rappaport theory is strongly grounded in the text of the RAC, it faces more difficulty when measured against the three purposes of the Clause. With regard to the purpose of keeping important offices filled, it compares poorly with the Wirt interpretation. As Wirt fairly pointed out, there is a reasonable possibility that some vacancies will arise during the session of the Senate in circumstances where it would be difficult or impossible to fill them with advice and consent. Rappaport’s position would mean that those offices would remain unfilled until the Senate’s return.

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Judge Jackson’s Non-decision on Recess Appointments

U.S. District Judge Amy Berman Jackson issued an opinion yesterday regarding a challenge to the validity of a rule promulgated by the National Labor Relations Board (NLRB) to require employers to post notices informing workers of their right to organize a union and conduct other activities under the National Labor Relations Act (NLRA). In its opinion on the merits, which can be found here, the court holds:

that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the notice posting provision. But it also holds that the provision of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law.

The articles about this decision stress another aspect of the court’s ruling, however, dealing with a challenge to President Obama’s recess appointments of three members of the NLRB. This ruling is not found in the main opinion, but in a separate memorandum and order (which for unknown reasons is not available on the court’s website).

The court does not address the merits of the challenge to the recess appointments. Instead, it notes that the “rule challenged in this case was already promulgated” when the recess appointments were made and that therefore “the validity of the recess appointments has absolutely no bearing on any of the issues that are ripe for decision in this case.” The validity of the recess appointments could be relevant to a later attempt to enforce the rule in question, but this issue is not ripe: “Neither the Court nor the parties know if and when the General Counsel will initiate enforcement actions pursuant to the rule, and we do not know whether the Board will be comprised of recess appointees at that time.”

Nothing particularly surprising (or interesting) there, but the media has picked up on the court’s comment that it “declines this invitation to take up a political dispute that is not before it.” The description of the matter as a “political dispute” may be cited by the Justice Department in future cases, if for no other reason than to provide mood music for the theme that the courts should stay out of the whole issue. Of course, Judge Jackson’s remark cannot fairly be taken as expressing any kind of a view on whether courts can review the merits of a recess appointments claim in a case where it is properly presented (and, if it could be so read, it would be obiter dicta).

Incidentally, the validity of the NLRB recess appointments is also being challenged in a case currently pending in the U.S. District Court for the Eastern District of New York. See the brief filed by Paul Clement on February 27, 2012 here.