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Judge Griffith Will Be Delivering The Leventhal Lecture This Tuesday

This Tuesday, November 15, from 12 pm to 2 pm, the Administrative Law and Agency Practice Section of the D.C. Bar will host the Annual Harold Leventhal Lecture. Our speaker will be the Honorable Thomas B. Griffith of the U.S. Court of Appeals for the D.C. Circuit. Judge Griffith will speak on “Congress in the D.C. Circuit.”

Judge Griffith brings a unique perspective to this topic. As we have discussed, relatively few federal judges have had prior legislative experience. Judge Griffith, however, is certainly the only federal judge to have served as the chief legal officer of either chamber of Congress. From 1995 to 1999, he served as Senate Legal Counsel, during which he advised the Senate on numerous legal matters of great significance, including the impeachment trial of President William J. Clinton.

I will be introducing Judge Griffith on behalf of the Administrative Law Section. Further details and registration information may be found here.

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Breaking a Tie in the Senate

(Update- see this more recent post on the possibility of a court challenge to the Lieutenant Governor’s vote).

It appears the Virginia Senate, following Tuesday’s elections, will be equally divided, with Republicans holding 20 seats and Democrats holding 20 seats. The Democrats want a shared-power arrangement, meaning that committee chairmanships and other responsibilities would be divided equally between the two parties. This is apparently what was done on the one previous occasion, in the 1990s, where such a situation arose. Republicans, on the other hand, contend that they are entitled to control the chamber because the Republican Lieutenant Governor has the power to break ties.

One Democratic Senator, “Chap” Petersen, told the Washington Post that “the lieutenant governor is not a member of the Senate” and that, if Republicans seized power, Democrats could sue to stop it. Senator Petersen seems to be saying that the Lieutenant Governor lacks the constitutional power to break ties with regard to internal matters such as committee assignments and other rules.

The Virginia Constitution provides that “[t]he Lieutenant Governor shall be President of the Senate but shall have no vote except in case of an equal division.” This provision was apparently (my research on this is admittedly cursory) added as part of the Constitution of 1869. It closely parallels Article I, Section 3, clause 4 of the U.S. Constitution, which provides that “[t]he Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

Because of the similarity of the constitutional provisions, it is worth taking a look at how the U.S. Senate has dealt with similar issues.

On several occasions during the 19th Century, questions were raised as to whether the Vice President’s right to break ties extended beyond legislative matters. For example, in 1850 Vice President Millard Fillmore inquired of the Senate whether “he might vote in a case where there was a tie in the election of an officer of the Senate.” Senator (and former Vice President) John Calhoun responded that he had voted several times on executive nominations during his tenure as Vice President. “The opinion of the Senate seeming to be in favor of the power of the Vice-President to vote in the case before them, Mr. Fillmore cast his vote for one of the candidates.” Hinds Precedents § 5972.

In 1877 the issue arose again when the Senate was considering a question of whether to seat a Senator. The vote being equally divided, Vice President William Wheeler voted in the negative. Senator Thurman initially challenged the Vice President’s right to vote on the question, but, after a debate in which the Fillmore precedent was discussed, Thurman withdrew his challenge and Wheeler ruled that there was “no doubt of his right to vote in all cases in which the Senate is equally divided.” Id. § 5977.

Finally, in 1881 Vice President Chester Arthur cast the tie-breaking vote with regard to organizing the Senate at a time when the parties had equal voting strength. Although Senator Saulsbury expressed the opinion that the Vice President was not empowered to vote on such a question, the earlier precedent was again cited, and the Vice President proceeded to break the tie. Id. § 5975.

In the U.S. Senate, therefore, the precedent seems well-established that the Vice President’s tie-breaking vote extends to non-legislative votes, including matters relating to control and organization of the chamber.

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The Solyndra Subpoenas and the White House Response

The House Energy and Commerce Committee has issued subpoenas to the White House Chief of Staff and the Chief of Staff to the Vice President, seeking documents relating to the Solyndra loan scandal. Specifically, each subpoena asks for “[a]ll documents referring or relating in any way to the $535 million loan guarantee issued to Solyndra, Inc. by the Department of Energy.” This is the only request made by the subpoenas. Although they provide a non-exclusive list of examples that would be responsive to the request, they ask for no other documents.

In this letter, the White House Counsel Kathryn Ruemmler responds that the subpoenas are “unprecedented.” Unprecedented in what sense? Obviously, congressional committees have issued numerous subpoenas to prior administrations, including subpoenas seeking documents and testimony from White House officials. Such subpoenas were rare before Watergate (and virtually unheard of before World War II), but they have become rather commonplace since. Here are some examples of congressional subpoenas issued to the Bush Administration. During the Clinton Administration, House Government Reform Committee Chairman Dan Burton became something of a legend for the number of subpoenas he issued (reportedly over a thousand), including many to the White House.

Perhaps there is something about these particular subpoenas that makes them, in Ruemmler’s view, “unprecedented.” But nowhere in her letter does she explain what that might be.

Instead, her primary objection seems to be that the subpoenas are “overbroad.” She characterizes the document request as “extremely broad” because it “encompasses all communications within the White House from the beginning of this Administration to the present that refer or relate to Solyndra,” and she suggests that “any document that references Solyndra, even in passing, is arguably responsive to the Committee’s request.” She contends that responding to such an “expansive request” would place “an unreasonable burden on the President’s ability to meet his constitutional duties.” As an example, she cites the fact that the subpoenas would require producing “thousands of pages of news clips” literally responsive to the requests.

It is hard to characterize this objection as anything but silly. Asking the White House to produce all documents relating to a single small company is hardly placing an undue burden on the presidency. Federal agencies routinely respond to subpoenas and FOIA requests that are far broader in scope. All that needs to be done is to identify those locations most likely to contain responsive documents and to conduct a reasonable search thereof. Since most if not all of those locations will consist of electronic databases, a single search containing the word “Solyndra” would likely suffice.

Continue reading “The Solyndra Subpoenas and the White House Response”

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Congressional Regulation of the Press Galleries

As described in this Hill article by Alexander Bolton, Vice President Biden’s office has filed a complaint with the Senate Press Gallery regarding the tactics used by a credentialed reporter who used the pretense of posing for a photograph with the Vice President to get close enough to ask him a question. In case you were wondering what authority the Press Gallery has, and where it comes from, here is a brief summary.

Continue reading “Congressional Regulation of the Press Galleries”

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Judge Walton Dismisses Kucinich v. Obama

Apparently he saw no more way of distinguishing Campbell v. Clinton than I did.

In fact, the court sounded a bit peeved that the case was brought in the first place: “While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law. The Court does not mean to imply that the judiciary should be anything but open and accommodating to all members of society, but is simply expressing its dismay that the plaintiffs are seemingly using the limited resources of this Court to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.”

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Congress: Beware of the Justice Department’s Attempt to Change Rule 6(e)

In a decision issued this summer, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia considered a petition to unseal the transcript of former President Nixon’s grand jury testimony in 1975. For reasons explained below, the court’s decision to grant the petition has important implications for the ability of congressional committees to access grand jury information. However, a change to the rules of grand jury secrecy proposed by Attorney General Holder this week would undercut both Judge Lamberth’s ruling and future congressional oversight.

Continue reading “Congress: Beware of the Justice Department’s Attempt to Change Rule 6(e)”

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A Congressional Clerkship Program (Or How Larry Kramer Went Back In Time And Stole My Idea)

A few years ago I came up with what I thought was a brilliant and original idea. Well, at least an original idea. Establish a congressional clerkship program, in which recent law school graduates could work for a year providing legal research and advice to Congress. It would be something of a cross between a judicial clerkship and the DOJ Honors Program, and the basic idea would be to give the clerks the same type of experience from a congressional perspective. Congress would get the benefit of top quality legal talent and, equally importantly, would have the opportunity to educate these new lawyers on congressional legal issues that are often overlooked in law schools.

It turns out that a lot of people were way ahead of me. In 2005, 145 Law School Deans, led by Stanford Dean Larry Kramer, had sent a letter to Congress urging the creation of a congressional clerkship program (the letter may be read at the Congressional Clerkship Initiative website). The Deans wrote: “Following the judicial clerkship model, we would propose that a Congressional Clerk serve for one or two years, either for an individual legislator or for a legislative committee, and be comparably compensated.” They predict that “legislative clerks could and would rapidly learn the ropes and become invaluable assistants on tasks ranging from research to crafting positions and writing speeches to the actual drafting of legislation and legislative reports.”

The Deans point out that judicial clerks are top law school graduates and “go on disproportionately to assume leadership positions in the bar and in the profession.” The fact that many such leaders have had judicial clerkship experience, but no comparable degree of congressional experience, explains “in part why the legal profession in this country tends to emphasize litigation and the judiciary over legislation and the lawmaking process.” A robust congressional clerkship program “would do much to improve understanding and appreciation of the legislative process within the legal profession and, through the profession, in the country as a whole.”

Continue reading “A Congressional Clerkship Program (Or How Larry Kramer Went Back In Time And Stole My Idea)”

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More Legal Misinformation About Congress

If there were an award for cramming the most amount of legal misinformation into the shortest segment, Friday’s edition of “Nightly Scoreboard” would surely earn a nomination. The subject was a potential congressional subpoena for White House emails concerning Solyndra, and the discussion took place between host David Asman and former federal prosecutor Annmarie McAvoy.

The premise of the piece was that a congressional subpoena for presidential emails would be “unprecedented” and would raise novel issues of executive privilege and separation of powers. McAvoy explained that “[t]here are certain communications that are not available to the Congress.” The following colloquy ensued:

 McAvoy: The argument will be made that the President has to be able to have full and free and open communications with those who are advising him, be those his senior staffers or be those other people in the industries that he is looking at who can come to him and openly talk to him and that he can communicate with them without having to worry about those communications going over to Congress.

 Asman: But have those statutes even been written- about emails- because this is new territory we’re in?

 McAvoy: It is and it raises a very interesting question because what happens is as we have new technologies essentially the law has to eventually catch up with the technology and it hasn’t as of yet. So they’ll be looking at your basic laws relating—and cases relating—to executive privilege in trying to figure out where this would fit in but there really isn’t a statute that directly applies to emails because it didn’t exist beforehand and none of the presidents before Obama had ever used email.

  Continue reading “More Legal Misinformation About Congress”

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Did Reid Go Nuclear?

As you may have heard, Senate Majority Leader Reid invoked the “nuclear option” yesterday, thereby laying waste to the Senate and all its traditions. At least that it is how Alexander Bolton of The Hill describes Reid’s actions in response to a Republican motion to suspend the rules with respect to the China currency legislation pending before the Senate. Bolton explains that “Reid and 50 members of his caucus voted to change Senate rules unilaterally to prevent Republicans from forcing votes on uncomfortable amendments after the chamber has voted to move to final passage of the bill.”

David Waldman says that Bolton is “way overstating the case” when he uses the term “nuclear option” to describe Reid’s actions. Waldman seems to believe that the term only applies to an action that eliminates or greatly curtails the filibuster, which did not happen here. But Waldman acknowledges that Reid’s action bears “strong similarities” to the nuclear option and that “a very similar procedure can be used to reverse unfavorable rulings on anything, including the filibuster, and doing so on the subject of the filibuster was what people came to understand as the ‘nuclear option’ way back in 2005.” So his disagreement with Bolton is more semantic than substantive.

There is no formal definition of the “nuclear option” and little point in debating the semantics of the term. The real question is whether yesterday’s action by the Senate was part of the normal process of interpreting and applying its rules, or whether it represented a radical change in that process. In my view, the jury is still out on that question. Here’s why. Continue reading “Did Reid Go Nuclear?”

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When is a Meeting not a Meeting?

When the Supercommittee says so, apparently.  According to this Politico article, the Supercommittee has been “supersecret,” holding a six and half hour closed session in the Capitol yesterday.

But wait, the Supercommittee rules require that its “meetings” be open, unless the Supercommittee votes in open session to close them. Wasn’t this a meeting? Senator Kerry seems to think so. Asked for comment on what occurred, he would say only that it was a “good meeting, we had a good meeting, a good meeting.” Not terribly informative, but the one thing that seems clear is that it was a meeting.

Maybe not. According to a colloquy between co-chairs Jeb Hensarling and Patty Murray at the organizational meeting, the term “meeting” in the Supercommittee rules refers to a “meeting for the transaction of business” as provided for by House and Senate rules. This means that sessions involving “markups of legislation and reports” are covered by the open meeting rule, but “less formal caucuses” or “working sessions” are not.

Committee markups refer to “sessions where committee members consider changes in the text of the measure or matter before them” or “determine whether a measure pending before a committee should be amended in any substantive way.” Since there are no legislative measures pending before the Supercommittee, it cannot yet conduct a markup. Indeed, even once legislative language has been drafted, it is not clear that consideration of accepting or changing such language would constitute a markup, since there is no measure formally pending before the Supercommittee.

In short, as the Supercommittee interprets its rules, all of its sessions that do not involve voting on specific legislative language appear to be beyond the scope of its open meeting rules. And it is not clear that even consideration of specific language would need to take place in open session, particularly if there is no formal vote. According to the Supercommittee’s interpretation, all of its deliberations could take place behind closed doors, with only the final vote on its report and proposed legislative language being public.