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House Judiciary’s Terrible, Horrible, No Good, Very Bad McGahn Deal

Friday was the day Don McGahn finally spoke to the House Judiciary Committee, though he did so behind closed doors pursuant to an agreement reached between the committee and the Biden Justice Department. What McGahn has to say may or may not be of some public interest, but it is unlikely to be as important as the agreement itself.

Background  

McGahn, you may recall, was White House counsel in the early part of the Trump administration. In the spring of 2019, well after McGahn had left his position and returned to private life, the committee subpoenaed him to give testimony in its investigation into matters related to the Mueller report. The attachment to the subpoena, which instructed McGahn to bring documents still in his possession regarding certain specified matters, gives some indication of the broad spectrum of topics upon which the committee was seeking to question him. Most of these were subjects covered to some extent by the Mueller report, but Mueller did not necessarily report on McGahn’s involvement in all of them. For example, the subpoena sought documents on potential presidential pardons for various individuals, including Paul Manafort, Michael Flynn and Roger Stone (all of whom later received pardons), but the Mueller report does not reveal what, if any, role McGahn may have had in pardon discussions.

McGahn refused to appear for his deposition based on instructions from President Trump, who invoked the longstanding but highly controversial executive doctrine that senior presidential aides enjoy absolute immunity from compelled congressional testimony regarding their official duties. The committee thereupon commenced a federal lawsuit seeking a court order requiring McGahn to appear. The Trump Justice Department, representing McGahn in the lawsuit, offered three primary arguments for dismissal of the suit: (1) constitutional separation of powers principles establish that a congressional committee lacks standing to sue for enforcement of a subpoena; (2) the committee’s suit lacked statutory authorization; and (3) McGahn was absolutely immune from compelled congressional testimony regarding his service as White House counsel.

These arguments met with what might be charitably described as a mixed reception by the courts. The district judge (Kentaji Brown Jackson, now a nominee to the D.C. Circuit) firmly rejected all three arguments, reaching identical conclusions on these questions as had another district judge (John Bates) in a similar case in 2008. Judge Jackson issued a lengthy opinion excoriating the Justice Department’s legal arguments. She was particularly incredulous of DOJ’s position that the president, as the “owner” of this alleged immunity, could exercise absolute control over the communications of his aides, even after they left the government. This assertion “brings to mind an Executive with the power to oversee and direct certain subordinates’ communications for the remainder of their natural life” and was inconsistent with the proposition that “Presidents are not kings” and “do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

McGahn appealed to the D.C. Circuit, where he initially met with more success. A three judge panel ruled 2-1 that the committee lacked standing to sue, holding in an opinion written by Judge Griffith that the case presented an interbranch dispute that must be resolved through political negotiation and accommodation rather than by the judiciary. Judge Rogers vigorously dissented from the majority’s “extraordinary conclusion” which, she contended, “removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties.”

It should be noted that nothing in the panel’s ruling suggests any inclination to support the Justice Department’s position on absolute immunity. To the contrary, Judge Griffith, while noting there was no need to reach the merits, obliquely referenced the president’s “blatant refusal to cooperate with the Committee’s investigation into his alleged wrongdoing” and warned that while the political branches may “disagree in good faith about their obligations to one another . . . the legitimate scope of that disagreement is not boundless.” Judge Henderson, concurring, went further, criticizing McGahn’s “absolutist stance” which “rests on somewhat shaky legal ground.” Judge Rogers agreed with Judge Henderson that if the court were to reach the merits “McGahn would be unlikely to prevail” and noted that the Supreme Court’s decision in United States v. Nixon “would appear to foreclose McGahn’s argument on the merits.”

In any event, the full D.C. Circuit granted rehearing en banc and concluded in a 7-2 decision (Griffith and Henderson being the only dissenters) that the committee did in fact have standing to seek judicial enforcement of its subpoena. The majority opinion by Judge Rogers, however, did not address the other issues raised by McGahn, instead remanding the case to the original panel to address those issues.

The panel then again split 2-1 on the question whether the committee had a cause of action to enforce its subpoena, with Judge Griffith again writing (on the last day before his retirement) the majority opinion which held that a congressional subpoena enforcement action against the executive branch would require specific statutory authorization, which Congress had failed to enact despite repeated attempts over the years. Judge Rogers again dissented, finding both that the committee had an implied cause of action under the Constitution and a cause of action pursuant to the Declaratory Judgment Act. Judge Rogers also addressed the merits, finding that the absolute immunity theory was based on “a view of Presidential power expressly rejected by the Supreme Court” in Nixon.

The case did not end there, however. The full court agreed again to review the panel’s ruling en banc. By this time, though, it was well into the fall of 2020, and the court set argument for February 2021, when there would be a new congress and (as it turned out) a new administration.  Continue reading “House Judiciary’s Terrible, Horrible, No Good, Very Bad McGahn Deal”

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What Would Xena Do? A Conscientious Senator Navigates the Impeachment Trial.

As you know, on February 9 the Senate voted 56-44 to proceed with the second impeachment trial of Donald Trump, finding that the former president “is subject to the jurisdiction of a court of impeachment for acts committed while President of the United States, notwithstanding the expiration of his term in that office.” This allows the trial to proceed, although some argue that there is no reason to continue since it is clear there cannot be enough votes to convict. After all, if a senator has concluded that there is no jurisdiction over the defendant, she logically cannot convict (or so it is argued).

The same issue arose in the 1876 trial of former secretary of war William Belknap, who resigned from office just hours before the House impeached him for corruption. The Senate then debated whether it had jurisdiction to try the articles of impeachment against “William W. Belknap, late Secretary of War.” By a vote of 37-29, almost exactly the same percentage breakdown as in Tuesday’s vote in the Trump trial (by my calculation the Belknap majority was .00060606 larger), the Senate voted in favor of jurisdiction. See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke L. J. 1, 55 (1999).

Belknap’s lawyers then argued that the trial should not proceed. They contended the jurisdictional vote showed the respondent had been “substantially acquitted” because more than one-third of the Senate had by their votes “declared and affirmed their opinion to be that said plea of said respondent . . . was sufficient in law to prevent the Senate . . . from taking further cognizance of said articles of impeachment.” 3 Hinds’ Precedents §2461. The Senate, however, rejected this motion to dismiss and proceeded to conduct a lengthy trial (which nonetheless resulted in Belknap’s acquittal almost entirely based on the jurisdictional issue).

There are two reason why the Senate, as Professor Turley put it, “wisely rejected” Belknap’s effort to stop the trial. See Turley, 49 Duke L. J. at 55 n.240. First, even if Belknap’s acquittal were inevitable, there is value in conducting an impeachment trial that the Senate has determined it has the constitutional authority to conduct. As House manager George Hoar (later a prominent senator) argued in the Belknap case, holding a trial has value in itself, allowing for the airing of charges by “any responsible accuser” and the conduct of a “judicial trial” or “inquest” with a “process for the discovery of concealed evidence.” See Thomas Berry, Late Impeachment: An In-Depth Account of the Arguments at the Belknap Trial (Part IV) (Feb. 7, 2021). An impeachment trial can demonstrate the guilt or innocence of the accused, expose official misconduct, and serve as an affirmation of the standards of conduct expected for those entrusted with public office. See Turley, 49 Duke L. J. at 56 (explaining that “a trial of Belknap was needed as a corrective political measure” and “[r]egardless of outcome, the Belknap trial addressed the underlying conduct and affirmed core principles at a time of diminishing faith in government”).

Second, it is not inevitable (at least in theory) that a senator who votes against jurisdiction will also vote for acquittal. To see why, let us look at the matter from the perspective of our hypothetical conscientious senator, Xena. Senator Xena has sworn to do impartial justice in the impeachment trial of former president Trump and that is what she intends to do. Thus, she will approach the question of whether the Senate has jurisdiction to try a former president without fear or favor, uninfluenced by any constitutionally irrelevant considerations.

You may believe that such a senator could reach only one result, but most scholars who have studied the question (particularly those who did so before January 6) would acknowledge that it is, as Professor Kalt observed in his 2001 article, a “close and unsettled question.” I have made clear my view (which even Senator Cruz now shares) that the stronger argument favors late impeachment, but for purposes of this exercise we will assume Xena reaches a different conclusion. Continue reading “What Would Xena Do? A Conscientious Senator Navigates the Impeachment Trial.”

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Late Impeachments, Senate Resolution 16, and Some Relationships

Writing in the Wall Street Journal Sunday, Chuck Cooper argues that the Constitution permits late impeachments, i.e., the impeachment and trial of former officials who are accused of committing high crimes or misdemeanors while in office. Cooper acknowledges that forty-five Republican senators appear to have taken a different view by voting in favor of Senator Rand Paul’s point of order challenging the constitutionality of former President Trump’s impeachment trial, but he explains that “scholarship on this question has matured substantially since that vote.”

This remark occasioned some Twitter snark (o.k., it was from me) seeing as how the vote took place on January 26, which doesn’t leave much time for scholarship to have “matured.” It was pointed out to me that at least one useful piece of scholarship has emerged in that time, namely Thomas Berry’s four-part series on the question of late impeachment in the Belknap case. (Berry does not take a position on the issue, but very helpfully summarizes the relevant arguments on both sides).

For the most part, though, what has happened is that scholars have come forward to take positions for or against (mostly for) late impeachments, without necessarily adding to the actual scholarship on this issue. Having ten law professors or prominent lawyers make the same argument does not really make it any stronger, particularly when made in the context of a heated political dispute. Nonetheless, it can be important for senators who are looking for guidance or cover.

Republican senators (who are the main audience here) are naturally going to gravitate toward experts who are conservative/originalist, prominent constitutional lawyers, and/or well-known to them and their colleagues. Cooper qualifies on all of these counts. He is a highly prominent and successful constitutional litigator, and he has strong ties to Senate Republicans. (For example, Ted Cruz was one of the first associates Cooper hired when he formed his own law firm back in the 1990s.)

Of course, senators like Cruz, Josh Hawley and Mike Lee consider themselves to be fully qualified to make their own constitutional judgments, but it will be hard for them to deny that the issue of late impeachments is, at the very least, a close question when so many prominent conservative/libertarian legal scholars have come down in pro-late impeachment camp. These scholars include former federal judge Michael McConnell, who argues that the Constitution allows former officials to be tried in the Senate so long as they were impeached while in office, as well as many others (Andrew McCarthy, Ramesh Ponnuru, Dan McLaughlin, Keith Whittington, Jonathan Adler, Michael Stokes Paulsen, Ilya Somin and Steven Calabresi, to name a few), who argue for the constitutionality of late impeachments generally.

Of course, there are legal experts who have come out against late impeachments. Perhaps the most prominent is Phillip Bobbitt, a well-known constitutional scholar (and, it should be noted, someone who is not an originalist and is not associated with Trump or conservative politics). Another is J. Michael  Luttig, a well-respected conservative former judge (for whom, incidentally, Cruz clerked). Conservative legal scholars John Yoo and Robert Delahunty have also written a rather overstated originalist argument against the constitutionality of late impeachments. Jonathan Turley, who had written favorably of late impeachments in 1999, has now moved to a position of neutral, leaning against. And two characters from Trump’s last impeachment, Alan Dershowitz and John Bolton, have weighed in against late impeachments. There undoubtedly are other legal experts (however broadly that term is construed) who have expressed similar views, though the ranks are surely much thinner than the pro-late impeachment side.

As noted, numbers alone do not establish who is correct. Moreover, Republican senators who are inclined to oppose impeachment may discount the views of the pro-late impeachment experts on the grounds that they have been influenced by the atrocious nature of Trump’s offense and that (as mentioned in my last post) the facts of the case seem like they were dreamed up by a law professor to support late impeachment. Hard cases make bad law and all that.

Whether this is fair or not, it is worth specifically noting the views of those who have thought and written about this question prior to January 6. Whittington, McCarthy and Turley are in this category, and they all had favored late impeachment. As mentioned in my last post, in fact, while relatively few scholars had addressed themselves to this question even in passing, the ones who did seemed to overwhelmingly support the constitutionality of the practice. One important but partial exception is Justice Story, about whom more later.

To my knowledge, however, the only scholar who has truly looked at this issue in depth and outside the context of a particular controversy is Professor Brian Kalt. (Kalt specializes in odd constitutional issues, including the 25th amendment and late impeachments, and boy did he hit the jackpot with the Trump administration.) If you want an exhaustive and even-handed discussion of the arguments for and against late impeachment, you need to read Kalt’s 2001 article on the subject, in which he concludes that while the “question of late impeachability is close and unsettled,” the better view is that “Congress can pursue late impeachments, based on an analysis of the text, structure, historical underpinnings, and precedent of the Constitution’s impeachment provisions.”

All of which brings me to Senate Resolution 16, which is the brief resolution that the Senate adopted on January 26 in connection with “the article of impeachment against Donald John Trump, President of the United States.” That the resolution refers to Trump in this manner reflects only, I assume, the fact that the article of impeachment is addressed to Trump as president because, of course, Trump was indeed president at the time the House impeached him. Somewhat more interesting, though, is that the resolution states it was adopted “pursuant to rules III and IV fo the Rules and Practice When Sitting on Impeachment Trials,” which are the Senate’s standing rules on impeachment. Rule IV deals exclusively with presidential impeachments and provides that the chief justice shall preside. Unless the reference to Rule IV was a mistake or oversight, it seems that the Senate is still leaving open the possibility that this will be conducted as a presidential impeachment trial. Continue reading “Late Impeachments, Senate Resolution 16, and Some Relationships”

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Some Legal Questions About the Second Trump Impeachment Trial

The second impeachment of Donald Trump raises some significant legal issues, which I sketch out below. All I can say is that we could have avoided a lot of trouble if anyone ever listened to me.

Can the Senate Try a Former President? This is, of course, the most fundamental question. While Trump was president when the House impeached him (and still is for a few more hours), his term will have ended by the time the Senate trial begins. Trump and his supporters (as well as some legal scholars) argue that this precludes further proceedings because impeachment applies only to “[t]he President, Vice President and all civil Officers of the United States,” and Trump will no longer be any of these on January 20. Other legal scholars, such as Professors Keith Whittington and Steve Vladeck,  argue that the constitutional text does not expressly limit impeachment to current officeholders and the constitutional purpose, structure, history and precedent support “late impeachments,” that is, impeachments and/or trials of former officeholders for high crimes and misdemeanors relating to their time in office.

In the heat of the current moment it may be difficult to reach an objective answer to this question, which has long been debated in Congress and the legal academy. So it is helpful to review the past scholarship on this issue, which was written at a time when there were no immediate political stakes involved. CRS has a good summary of the arguments on both sides and notes that “[a]lthough the text is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office.” Similarly, Professor Gerhardt has noted a “surprising consensus” among legal experts “that resignation does not necessarily preclude impeachment and disqualification.” Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 79 (1996). Professor Kalt’s 2001 article, likely the most comprehensive treatment of this subject, finds that while “late impeachability is a close and unsettled question,” the better view is that “Congress can pursue late impeachments, based on analysis of the text, structure, historical underpinnings, and precedents of the Constitution’s impeachment provisions.” Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, at 3 (Oct. 24, 2001). And for what it’s worth I tend to agree. See Could Congress Impeach Judge Bybee?, Point of Order (Apr. 20, 2009) (“Although it is seldom worth Congress’s while to conduct an impeachment trial for a former official, this is a matter of prudence, not constitutional power.”).

It should be noted here that the facts of the current situation seem like they were dreamed up as a hypothetical to support late impeachments. Trump did not commit (or at least complete) the alleged impeachable offense until January 6, when there were barely two weeks remaining in his term. It would have been virtually impossible to impeach and convict within this time frame. Even if the trial had commenced while Trump was still president, it would be extremely difficult to complete before noon on January 20. Attempting to compress the trial within the available time would mean short changing the House managers and/or the defense in terms of presenting their cases, and would give the defense an incentive to delay as much as possible in order to run out the clock. It seems borderline absurd to read the Constitution as imposing such artificial limitations on a trial of the gravity and consequence described by Alexander Hamilton in Federalist No. 65, which can subject the offender “to a perpetual ostracism from the esteem and confidence, and honours and emoluments of his country.”

Furthermore, if there were ever presidential conduct which warranted the imposition of the constitutional penalty of disqualification from future office, it is that with which Trump is charged. Professor Chafetz has argued that the paradigmatic case of impeachable conduct is an effort to illegally use presidential power to entrench oneself in office. See Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347, 422 (2010). Trump’s (alleged) effort to overturn the election results by falsely claiming fraud, pressuring state election officials to change the results, and inciting a violent mob to disrupt the electoral vote count in Congress goes far beyond anything any president has been accused of in this regard. Yet under the anti-late impeachment theory, there would be no way of disqualifying a president who engaged in such behavior as a last-ditch effort to hold on to power. Trump would be free to seek the presidency in the future and use exactly the same tactics again. To interpret the Constitution to require this result makes very little sense.

Who Presides at the Impeachment Trial of a Former President?  The Constitution provides that “[w]hen the President is tried, the Chief Justice shall preside.” Does this requirement apply to the trial of a former president?

Professor Baude has a good analysis of this issue here. He points out that the last time there was an impeachment trial of a former official (ex-Secretary of War William Belknap in 1876) two arguments were made in favor of late impeachments. One is what we just discussed, namely that impeachable officials remain subject to impeachment and disqualification even after they leave office so long as the offense “relates back” to the office they held. The other is that anyone could be impeached, and that the Constitution’s reference to impeachable officials is only for the purpose of prescribing a particular punishment (removal) that must be imposed in such cases.

If the latter were correct, then presumably Trump could be impeached in his capacity as a private citizen and there would be no need for the chief justice to preside. However, the “relating back” theory is a far stronger argument and the basis of all of the scholarship discussed above. This does not necessarily mean that the chief justice must preside, but it tends to support that conclusion. The issue is murky, but in my view the appropriate course would be to ask the chief justice to preside.

From the standpoint of the House managers, this raises something of a tactical dilemma. If the chief justice does not preside, it creates the risk that Trump could later attack the verdict as improper or use the chief justice’s absence as evidence that the “relating back” theory is wrong. On the other hand, if the chief justice is asked to preside, there is some risk that he would decline (see below), which would undermine the House’s position. It might therefore be in the interest of the House managers not to request that the chief justice preside but also not object if the defense makes this request. That way if Trump does not object to a different presiding officer (whether it be the vice president or the president pro team), it will be difficult for him to attack the process at a later date.

Who Decides Who Presides? If the Senate decides, either on its own or at the request of one of the parties, to request the chief justice’s presence, is the chief justice obligated to preside? It seems to me that the answer is no. If the Constitution does not (in his view) require him to preside at the trial of a former president, it seems to me that Chief Justice Roberts would be within his rights to decline. He might believe that it is improper or unconstitutional for the chief justice to preside over an impeachment trial except in the specific instance (the trial of a sitting president) specified by the Constitution.

It is certainly possible that Roberts would not raise this issue sua sponte, but would only address it if one of the parties objected. It is also possible that he would defer to the Senate’s judgment on the matter even if one of the parties did object. It is not obvious to me, however, why the Senate’s judgment should control on an issue of what the chief justice’s responsibilities are.

It is unlikely, but not impossible, that Roberts could address the issue of whether a former official can be tried at all. In other words, he could decline to preside on the ground that a former official is not subject to impeachment, and therefore there is no trial at which he could constitutionally preside. It seems far more likely, however, that he would assume, without deciding, that a former official could be tried.

(In theory, Roberts could also decide to preside and then rule on a motion to dismiss for lack of jurisdiction. Based on how deferential to the Senate he was while presiding over Trump’s first impeachment trial, however, this seems even less likely.)

Can Trump Challenge the Trial in Court? It is extremely unlikely that Trump could convince any court to interfere with the Senate’s conduct of the trial while it is ongoing. Among other reasons, any attempt to sue or enjoin the Senate would be barred by the Speech or Debate Clause.

A different situation would be presented once Trump was convicted by the Senate. If Trump loses benefits (e.g., his pension), he could sue the United States or whatever official(s) are responsible for providing these benefits to former presidents. This was how former United States District Judge Walter Nixon challenged his impeachment (hat tip: Ira Goldman). Such a suit would not be barred by the Speech or Debate Clause.

Professor Vladeck argues, however, that judicial review of the Senate’s verdict would be precluded by the Supreme Court’s decision in Judge Nixon’s lawsuit, in which it held that his challenge to the procedures followed by the Senate in his impeachment trial constituted a nonjusticiable political question. Chief Justice Rehnquist’s opinion in that case emphasizes that the judiciary was intended to have no role in impeachments. See Nixon v. United States, 506 U.S. 224 (1993).

It is not at all clear, however, that the Nixon case governs the question whether former officeholders may be impeached or convicted. That is a straightforward legal question of the kind found to be justiciable in Powell v. McCormack, 395 U.S. 486 (1969), which held that the question of what “qualifications” were subject to the House’s power to judge the qualifications of its members was justiciable. Unlike the question of what constitutes a proper impeachment trial, which involves discretionary judgments lacking judicially discoverable and manageable standards, the issue of late impeachability presents a yes or no question susceptible of judicial resolution.

Would Trump’s Disqualification be Judicially Reviewable? Assuming that for some reason Trump did not or could not challenge the Senate’s verdict based on loss of pension or benefits, he could also seek to challenge his disqualification (assuming the Senate imposes disqualification) in court. Presumably such an issue would not be ripe for judicial review unless and until Trump sought to attain an office from which the disqualification purported to bar him.

Most likely, this would arise in the context of a 2024 presidential bid. If, for example, state officials refused to put Trump’s name on the ballot, either for the primary or general election, he could sue to obtain ballot access, arguing that his disqualification was invalid because the Senate lacked jurisdiction over him as a former president. This would present the same justiciability issue discussed above and, for the reasons indicated, I think the courts probably would review Trump’s claim on the merits.

In addition, Trump could argue that the Senate’s judgment of disqualification, even if valid, does not prevent him from holding the office of president because that office is not an “Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause. This, of course, is the Tillman/Blackman theory we have discussed many times (see, e.g., my last post) and it seems to me that proposition would be clearly justiciable since it merely involves interpreting the meaning of the constitutional disqualification that the Senate imposed.

It is, however, still very, very wrong.

 

 

 

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Does Section 3 of the Fourteenth Amendment Apply to the Presidency?

It will come as no surprise to readers of this blog that Professors Tillman and Blackman have written a controversial piece about the current troubles in which, among other things, they reiterate their view that the Constitution’s Disqualification Clause does not bar an impeached, removed and disqualified official from the presidency because that office does not constitute an “Office of honor, Trust or Profit” within the meaning of Article I, § 3, cl. 7. See Blackman & Tillman, Can President Trump be Impeached and Removed on Grounds of Incitement (Jan. 8, 2021) (“The Senate has no power to disqualify a defendant from holding elected federal positions, such as the presidency.”) (emphasis in original).

I will not bore you by restating the reasons why I think this view is very, very wrong. You can read them ad nauseam by following the links in my most recent post on the subject.

The same issue arises, however, in regard to another constitutional provision which, as far as I recall, I have not addressed before. Specifically, section 3 of the Fourteenth Amendment (an obscure provision which is enjoying its moment in the sun) provides:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial office of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

(emphasis added).

I should state at the outset that I am extremely skeptical that President Trump’s behavior, as atrocious and impeachable as it may be, constitutes “insurrection or rebellion” or other conduct covered by this provision. Assuming for the sake of argument that it is, however, the italicized language raises two questions. First, is the president “an officer of the United States” subject to the bar of section 3 if he engages in the proscribed conduct? Second, is the presidency an “office, civil or military, under the United States” which a covered officer is barred from holding?

I assume that Tillman and Blackman would say no to both questions, although I am not entirely sure. Their argument is that the meaning of “officer of the United States” and office “under the United States” as used in the original Constitution applies only to appointed, not elected, offices and therefore excludes the presidency (and vice presidency). Whether they would say that this meaning was understood by anyone as of the time the Fourteenth Amendment was drafted is less clear. As I have pointed out, the view they ascribe (based on highly ambiguous historical practice) to a few members of the founding generation seems to have vanished without a trace by 1834 at the very latest.

It is interesting nonetheless that the only example I have found anyone actually expressing the Tillman/Blackman view (prior to Professor Tillman himself) comes in the debate over section 3 in the Senate on June 13, 1866. During the debate over the draft constitutional language, the following colloquy occurred:

Mr. Johnson. But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation. No man is to be a Senator or Representative or an elector for President or Vice President–

39 Cong. Globe 2899 (1866) (emphasis added).

Here we have a U.S. senator suggesting that the disability imposed by section 3 would not exclude anyone from the “privilege of holding the two highest offices” in the land, even though it on its face applies to “any office, civil or military, under the United States.” Admittedly, its just one man’s opinion, but to my knowledge it is closer than anyone else (pre-Tillman) has ever come to expressly endorsing the Tillman/Blackman view of “office under the United States.”

Naturally a fierce debate ensued:

Mr. Morrill. Let me call the Senator’s attention to the words “or hold any office, civil or military, under the United States.”

Mr. Johnson. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives.

39 Cong. Globe 2899 (1866).

Ok, “oops, I was wrong” might not qualify as a fierce debate, but it is as much of a debate as you will find anywhere on this issue between 1787 and 2008 or so. No doubt if the 39th Congress had any doubt that the language flagged by Senator Johnson was ambiguous, it would have been clarified. After all, there is no chance that the framers of the Fourteenth Amendment intended to prevent former rebels from serving as presidential electors but not as the president. Of course, the same can be said of the framers of the Constitution. Clearly it could not have been intended that a president be impeached, removed from office, and disqualified from serving in any federal office other than the presidency. Similarly, it could not have been intended that presidents be able to receive foreign emoluments or titles of nobility.

The question of whether the president or vice-president is an “officer of the United States” within the meaning of section 3 is somewhat closer. As was pointed out during the same Senate debate, section 3’s language regarding the individuals whose violation of oath triggers the disability tracks the Constitution’s Oath Clause in Article VI, which requires that “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

There is a plausible structural argument that the term “officer of the United States” as used in Article II refers to individuals appointed and commissioned by the president, which would exclude the vice president and the president himself. Whether or not this is correct, it does not follow that the phrase used elsewhere in the Constitution is necessarily so limited. For example, while it is true that the president’s oath is separately provided for in Article II, the vice president’s is not; therefore, interpreting Article VI’s reference to “executive . . . Officers . . . of the United States” as excluding the president and vice president would mean the nowhere in the Constitution is the vice president’s oath provided for, a result that Tillman finds a good deal more plausible that do I. And while Tillman’s view of the Oath Clause has some support from a 1974 OLC memorandum written (or at least signed) by Assistant Attorney General Antonin Scalia, as I explain here that memo’s reasoning leaves much to be desired.

It also seems unlikely that the framers of section 3 would have deliberately omitted the president and vice president from the list of officials prohibited from engaging in insurrection and rebellion, although this conclusion seems more reasonable if one assumes their focus was entirely on the immediate past rebellion rather than potential future ones. In short, the argument that the president is not an “officer of the United States” within the meaning of section 3 seems to me to be quite weak, but not as weak as the claim that he holds no “office under the United States” under section 3 or the Disqualification Clause.

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ACTUALLY CRIMINAL CONTEMPT MIGHT WORK PRETTY WELL RIGHT ABOUT NOW

I will take the occasion of a tweet by Representative Ted Lieu to make a point so obvious it may have been overlooked. Representative Lieu was responding to a question about why House Democrats have not subpoenaed the administrator of GSA (Emily Murphy, who goes by the adorable twitter handle of @GSAEmily) to ask her why she has not yet ascertained “the apparent successful candidates for the office of President and Vice President” in accordance with the Presidential Transition Act of 1963 (3 U.S.C. § 102 note). Lieu explained:

CONGRESSIONAL SUBPOENAS ARE MEANINGLESS BECAUSE WE CANNOT ENFORCE THEM.

(You can tell he is serious by the all-caps). Lieu goes on to say that GSA would simply ignore a subpoena, and that the House should change its rules to authorize inherent contempt, which would allow the sergeant-at-arms to arrest Murphy or other recalcitrant witnesses and bring them before a committee to testify (and, if they refuse, to try them for contempt before the bar of the House).

Now no one is more concerned than I about the impotence of congressional compulsory process with respect to the executive branch. All options for addressing that problem, including the revival of inherent contempt, should be on table for discussion.

However, the most important thing that the House could do right now to restore respect for its process would be to use the criminal contempt procedure set forth in 2 U.S.C. § 194. Under that provision, when a witness fails to appear, answer questions or produce documents in a congressional investigation, the House or Senate may refer the matter “to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.”

As we have frequently discussed, this provision is normally of little value with regard to executive branch witnesses because the Justice Department, despite the apparently mandatory language of the law, takes the position that it does not require it to take action when a witness asserts an official privilege at the president’s direction. Of course, ordinarily the Justice Department that makes the decision on prosecution is the same as the one that advised the president with regard to assertion of the privilege in the first place. That circumstance does not obtain today. There will be (at least if my twitter feed is to be believed)  a new administration come January 20, 2021, which may be willing to move forward with congressional contempt prosecutions of executive officials (or former executive officials), at least under certain conditions.

In the case of Murphy, for example, there are no grounds that I am aware of, even under the views previously articulated by OLC, for her to refuse to even appear before a congressional committee to discuss her statutory duties with regard to the transition. If she were to simply ignore a subpoena to appear, as Lieu suggests she would, she would be taking a very big risk that a new U.S. attorney for the District of Columbia (the “appropriate” U.S. attorney in this and almost all contempt cases) would decide to prosecute her. I suspect that she would in fact appear pursuant to a subpoena, but if she doesn’t, the House should certainly refer her for prosecution. (If she shows up but refuses to answer particular questions, we can cross that bridge when we come to it.)

Apart from Murphy, the House should be looking at strong contempt cases which could be referred now to the U.S. attorney. Presumably the current (acting) U.S. attorney will take no action on them, but as far as I know there is no way for him to prevent his successor from doing so. If the incoming Biden Justice Department is willing to prosecute one or more of the most egregious cases of executive contempt, that may go some way to restoring effective deterrence. And if it is not willing to do so, that will tell us something as well.

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Things to Do in Dirksen When You’re Dead (Reprise)

In case you don’t get the reference, see here. Anyway, I have been meaning to write something about the 25thamendment for a while. This might seem like an odd time to do so, but there are distinct issues that may arise during the period between November 3, 2020 and January 20, 2121. So here goes.

The world’s leading expert (possibly the only expert) on the 25thamendment is Professor Brian Kalt of the Michigan State University College of Law. He has written a book called “Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment,” which you can and should buy on Amazon or wherever. (The numerical references in this post are to my kindle version of the book, which may or may not correspond to the hard copy). Even though almost everything I know about the 25thamendment I learned from Professor Kalt, I am not entirely in agreement with his take on it.

The key issue, for our purposes, relates to the meaning of the phrase “is unable to discharge the powers and duties of his office,” which is used in both sections 3 and 4 of the amendment. Under section 4, which governs the involuntary transfer of power from the president to the vice president, the vice president immediately assumes the powers and duties of the presidency as “Acting President” whenever he and a majority of the “principal officers of the executive departments . . . transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office.”

Professor Kalt stresses that section 4 “was meant neither to cover policy disagreements, however intense, nor to rectify misuses of power by a foolish or ineffective leader.” (55) The legislative history of the 25thamendment shows that Congress “focused on past Presidents who had been incapacitated, and ignored Presidents who had been feckless or inept even in the most damaging ways.” (54) The garden variety case for an invocation of section 4 was a president in a coma or otherwise completely incapacitated or incommunicado.

On the other hand, the text of section 4 is clear that it is not limited to such situations. The provision expressly contemplates the possibility that the president and the vice president/acting president will disagree about whether the former was or remains “unable to discharge the powers and duties of his office.” In such eventuality, section 4 provides a process for resolving the disagreement. The framers of the 25thamendment therefore anticipated that a president who is both conscious and able to communicate in a coherent fashion will nonetheless be ultimately determined to be unable to discharge the powers and duties of his office. As one key member of Congress remarked during the debate on proposing the amendment, section 4 covers “the case when the President, by reason of mental debility, is unable or unwilling to make any rational decision, including particularly the decision to stand down.” (54)

Parsed closely, that quote raises more questions than it answers. It suggests that a president could be declared “unable” because he is “unwilling” to make a “rational decision” about whether to stand down, which seems rather circular. The larger point, though, is that the 25thamendment does not attempt to define with any precision the line between inability, on the one hand, and ordinary errors, abuses, ineptness or incompetence in the execution of the president’s office, on the other. Instead, the framers left it to the process they designed to discern where that line is. Continue reading “Things to Do in Dirksen When You’re Dead (Reprise)”

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Could Trump be held Liable for Infecting Others?

What seems like a lifetime ago (i.e., sometime in September) there was controversy about the Justice Department’s decision to intervene in a state court defamation suit against President Trump brought by E. Jean Carroll, a woman who has accused Trump of sexually assaulting her in the 1990s, for statements Trump made publicly about Carroll during his time in office. According to Carroll’s lawsuit, Trump defamed her by (among other things) falsely asserting that she had invented her accusation for political reasons or in order to sell books. The Justice Department filed a certification under the Westfall Act that these defamation claims fell within the scope of Trump’s employment as president, which resulted in the case automatically being removed to federal court. Unless Carroll is able to successfully challenge the certification before the federal court, her case becomes one against the United States, rather than Trump personally, and will ultimately be dismissed because under the Federal Tort Claims Act the United States retains sovereign immunity for intentional torts.

Although it was widely claimed that DOJ was acting improperly by intervening to protect Trump’s personal interests, even many of the president’s sharpest critics grudgingly acknowledged that this was not the case. As I pointed out on Twitter and in the press, DOJ’s action was most likely correct and certainly reasonable under existing case law. The fact that a woman who was (allegedly) defamed by her (alleged) rapist could be without any remedy for defamation because the rapist was a federal official when he made the defamatory statements is counterintuitive and morally appalling, but (for reasons we have previously discussed) it is the law. The key legal question is whether Trump’s statements are considered to have been made within the scope of his employment, a determination that is made under the governing state law and will most likely be made in Trump’s favor.

Now we may face a different tort question arising from Trump’s positive test for Covid-19 and allegations that he held or attended various events knowing that he and/or others had tested positive or likely were positive and that he failed to take appropriate precautions to protect guests and workers at these events from possible infection. As suggested by @jedshug on Twitter,  individuals infected by Trump or at events he sponsored could seek to sue him for recklessly endangering their health. I have no idea whether there would be a viable cause of action in any state where such infections might have occurred, but for arguments sake let’s assume there is.

The analysis of such claims would then differ depending on the nature of the “super spreading” event in question. If it was an official event, such as the White House ceremony announcing the nomination of Amy Coney Barrett to the Supreme Court, it seems likely that Trump’s actions would be considered to be within the scope of his employment and therefore the United States would be substituted as a defendant in any suit brought against him. Unlike the defamation claim brought by Carroll, though, the plaintiffs in such cases would not necessarily be out of luck. They could still recover damages against the United States because torts involving negligence or recklessness are not barred by the FTCA. (There are, however, other potential obstacles to recovery, including whether the claims were grounded in official acts for which the president enjoys absolute immunity).

On the other hand, Trump’s attendance at political fundraisers would most likely not be considered to be within his scope of employment because these are by definition nonofficial and personal in nature. One can imagine the argument being made that some aspect of Trump’s attendance should be considered within the scope of his employment and therefore the Westfall Act and FTCA applied. While it would be difficult to fully appraise such an argument without knowing the precise claims made and the state law that governs, my sense is that this would be pressing the outer bounds of scope of employment even under the existing case law.

As an example, back in the day there was a congressman from South Dakota named Bill Janklow who tragically killed a motorcyclist while driving to his home from an event elsewhere in the state. Not only did Janklow violate the speed limit and disregard a stop sign, but he had a long history of prior driving citations. He was convicted of reckless driving and manslaughter for his actions. Nonetheless, when the motorcyclist’s family brought suit against him, the court upheld DOJ’s certification that he was acting within the scope of employment. The fact that Janklow was acting in a reckless and even criminal manner, the court found, was not relevant; what mattered was that the event Janklow had attended (a ceremony honoring Korean war veterans) constituted congressional business and “[i]is readily foreseeable that a Congressman serving a district as vast and rural as South Dakota would drive an automobile when commuting between his office and meetings with his constituents.”

Had Janklow been returning from a political fundraiser or campaign event, however, the result would likely have been different. As the former head of the federal torts claims branch at DOJ, Jeffrey Axelrad, told Roll Call at the time, the department would not certify that a lawmaker was acting within the scope of his employment if he was in a traffic accident on the way back from such a political event.

 

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Me and the Committee on Privileges

The Committee on Privileges of the House of Commons, which is reviewing the authority of select committees to compel the production of information and punish for contempt, has published my submission, which provides a general overview of similar dilemmas facing Congress in this area. If you would like to read it (and why wouldn’t you?), click here.

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Justice Thomas, the Committee on Manufactures, and the Precedent of 1827

Continuing from my last post, let’s take a closer look at the precedent Justice Thomas considers “particularly significant” for purposes of determining whether Congress may subpoena private documents in a legislative investigation. In 1827, the House Committee on Manufactures (COM), which had been charged with developing a legislative proposal to raise tariffs, asked the House to pass the following resolution: “Resolved, That the Committee on Manufactures be vested with the power to send for persons and papers.” 4 Cong. Deb. 862 (Dec. 31, 1827). Members of the committee believed that it needed to hear from witnesses, particularly representatives of manufacturing interests that would benefit from tariffs, to determine both what goods should be protected and what the optimal tariff amount would be. See id. at 871-73 (Rep. Livingston); 875-76 (Rep. Buchanan).

Here is how Justice Thomas characterizes the ensuing debate over COM’s request:

This debate is particularly significant because of the arguments made by both sides. Proponents made essentially the same arguments the Committees raise here– that the power to send for persons and papers was necessary to inform Congress as it legislated. [4 Cong. Deb.] at 871 (Rep. Livingston). Opponents argued that this power was not part of any legislative function. Id. at 865-866 (Rep. Strong). They also argued that the House of Commons provided no precedent because Congress was a body of limited and enumerated powers. Id. at 882 (Rep. Wood). And in the end, the opponents prevailed. Thus, through 1827, the idea that Congress had the implied power to issue subpoenas for private documents was considered “novel,” “extraordinary,” and “unnecessary.” Id. at 874.

Dissent at 9.

Thus, Thomas argues that the record shows two things: (1) opponents of the resolution argued that Congress lacked the power to issue subpoenas for private documents as part of a legislative investigation; and (2) the opponents prevailed in the debate, thereby establishing a precedent that Congress lacked such power. As I will show below, Thomas badly misreads what happened in this debate.

The first thing to understand is that the debate was not primarily about the legal principle underlying COM’s request. Rather opponents had a practical and political objection to the request, namely that they feared it was a delaying tactic that would prevent a bill from being passed before the end of the session. See 4 Cong. Deb. 869 (Rep. Mallary) (“It certainly looked very much as if the object of the gentlemen, in introducing such a resolution as this, was merely to produce delay.”); id. at 865 (Rep. Strong) (“If the [requested] power be exercised, there will not be time to report and pass the bill during this session.”); see also id. at 866-67 (Rep. Stewart); 866-67 (Rep. Storrs); James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 177 (1926) (“Northern protection against southern free-trade appeared as the dominant issue and found violent partisans within and without Congress.”).

To be sure opponents also objected to COM’s request on the grounds that it was “novel” and “extraordinary.” See 4 Cong. Deb. 862 (Rep. Strong); id. (Rep. Wright of New York); id. at 874 (Rep. Stewart). Some doubted whether the House had the power to grant the request, although only one clearly took the position it did not. See id. at 877 (Rep. Wood).

In this regard opponents of the resolution focused on the unprecedented nature of giving a committee the power to send for “persons and papers” merely in order “to adjust the details of an ordinary bill.” 4 Cong. Deb. 866 (Rep. Strong). COM’s task, they suggested, was to exercise judgment based on a broad assessment of economic and social conditions (what might be termed “legislative facts” in modern parlance), rather than to investigate specific factual situations. See id. at 869-71 (Rep. Mallary). Thus, while Representative Wood expressed the strict view that “the only cases in which the House has a right to send for persons and papers, are those of impeachment, and of contested elections,” id. at 882, other opponents suggested a more nuanced distinction between gathering information to draft an “ordinary bill” and what today we might call “investigative oversight.” The latter position was more consistent with existing House precedent as a number of committees had been authorized to exercise compulsory powers for nonimpeachment investigations (including the St. Clair, Wilkinson, and Calhoun investigations). See Landis, supra, at 170-77; Ernest Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 36-37, 53-54, 64-66, 86-93 (1928).

What is most important, however, is that no one argued that there was something special, either constitutionally or as a matter of House precedent, about giving COM the power to demand the production of private documents (or any documents). The issue was whether COM should have any compulsory powers, not whether it should have the power to call for papers in particular. Indeed, the debate makes clear that COM’s interest was in hearing from witnesses; there is no indication it wished to obtain documents.

It is simply not accurate to suggest, as the dissent does, that opponents “prevailed” on removing COM’s power to call for documents. What actually happened was that Representative Oakley proposed an amendment to the resolution adding the words “with a view to ascertain and report to this House such facts as may be useful to guide the judgment of this House in relation to a revision of the tariff duties on imported goods.” 4 Cong. Deb. 868. The purpose of the proposed amendment (which did not affect the power to call for documents) was to address the objection that COM’s proposed resolution, unlike prior resolutions of this nature, did not specify the purpose for which the power was granted.

Oakley’s amendment mollified no one. Representative Stevenson, a supporter of the original resolution, noted that requiring the committee to submit a detailed report would create the kind of delay opponents feared. 4 Cong. Deb. 869. Representative Mallary, an opponent, remarked “that he could not perceive that the amendment varied in the least the principle of the resolution.” Id. at 869.

Nonetheless, Oakley persisted. He offered a new version of his amendment which he suggested would address the concern expressed by Stevenson. The new amendment was in the nature of a substitute for the original resolution, and it provided in full: “That the Committee on Manufactures be empowered to send for, and to examine persons on oath, concerning the present condition of our manufactures, and to report the minutes of such examination to this House.” 4 Cong. Deb. 873.

This revised amendment appears to have done nothing to soften the opposition of the pro-tariff side. See 4 Cong. Deb. 873 (Rep. Stewart) (noting that he “thought his amendment was substantially the same as the other”). Supporters of the resolution, on the other hand, found it acceptable. See id. at 875 (Rep. Buchanan) (“I am in favor of the amendment proposed by [Oakley]; not because it varies in principle from the resolution reported by the Committee on Manufactures, but because it expresses more fully and distinctly the objects which that committee had in view.”). Though Oakley’s revised amendment did not appear to change any minds, the House accepted it and ultimately approved the resolution as amended. Id. at 888, 890.

Oakley’s revised amendment did eliminate the authorization for COM to call for papers. This, however, was not the expressed purpose of the amendment, and it is unclear whether the omission was even intentional. Oakley himself never mentioned it, and it attracted little attention from anyone else. Representative Wright of New York noted the omission and suggested that Oakley might want to modify the amendment to authorize COM to require witnesses to bring the books of their establishments when they appeared to testify. 4 Cong. Deb. 879. Although no one else followed up on this suggestion, one of the opponents of the resolution (confusingly also named Wright, but from Ohio) attacked Wright of New York for making it. See id. at 885 (“Are gentlemen prepared, sir, to establish an inquisition in this country, that shall pry into the business concerns of individuals, upon common subjects of general legislation?”). Other than this rhetorical jab, no one appeared to care about the issue at all.

There is, in short, nothing to suggest that anyone, including Oakley himself, voted for the revised amendment because it eliminated COM’s power to call for papers. If there were “swing voters” who supported the resolution because of this modification, there is nothing in the record to so indicate. Not a single member argued that the power to call for papers raised a separate constitutional issue or that the elimination of this power affected the constitutionality or propriety of the resolution.

The House’s ultimate adoption of the resolution has been uniformly understood as establishing a precedent in favor of the House’s authority to use compulsory powers for purposes of aiding the drafting of legislation. See Landis, supra, at 177-78; Eberling, supra, at 94-98; Telford Taylor, Grand Inquest: The Story of Congressional Investigations 34 (1955). No commentator has suggested “the opponents prevailed” or interpreted the result as a precedent against the House’s authority to compel the production of documents. Cf. Carl Beck, Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on Un-American Activities, 1945-1957 17 (1959) (“Throughout its history Congress has been aware that this power [to compel the production of documents and papers] is necessary to gather facts in aid of a legislative purpose and to serve as a watchdog upon the executive branch of the government.”).

As Justice Thomas notes, controversy over the extent of congressional compulsory powers did not end in 1827. Dissent at 9-11. However, his discussion of these subsequent controversies overlooks that: (1) like the 1827 debate, they involved whether compulsory powers generally, not the power to compel the production of documents in particular, could be employed in certain types of investigations; (2) those who opposed the use of compulsory powers did not assert the 1827 vote as a precedent in their favor; and (3) these later controversies also invariably were resolved in favor of the compulsory power. Thus, to the extent that Justice Thomas believes that Congress lacks any compulsory power in legislative investigations, he is not asserting a novel position, but one that has been repeatedly rejected by both houses of Congress over two centuries. On the other hand, the idea that Congress specifically lacks the power to compel the production of documents has not only been (impliedly) rejected, it does not appear to have been even asserted.

Thomas’s dissent also alludes to the possibility that congressional subpoenas for documents might violate the Fourth Amendment. See Dissent at 7. This is a different legal argument than the claim Congress lacks the power to subpoena documents in the first place. This argument was raised on at least one occasion of which I am aware, although interestingly the dissent does not cite it. When the original contempt of Congress statute was introduced in 1857, Representative Israel Washburn questioned whether making it a crime to withhold papers from Congress would be consistent with the Fourth Amendment. See David P. Currie, The Constitution in Congress: Democrats and Whigs 1829-1861 222 (2005). Washburn asked “Are you not by this bill dispensing with the conditions and requirements of the Constitution and endeavoring to obtain the possession of private papers without warrant issued upon probable cause, and supported by oath or affirmation?” Id.

It was perhaps an interesting question, though Professor Currie reports that “no one condescended to answer Washburn’s objection.” Of course, if taken seriously, the objection would call into question all congressional as well as judicial document subpoenas and, as Currie notes, has long since been settled by the Supreme Court against Washburn. See id. at 222-23 & nn. 98, 100. It is unclear how throwing the Fourth Amendment into the mix advances Justice Thomas’s argument.