Posts

Posted on

Justice Thomas’s Dissent in Trump v. Mazars

Today I will discuss Justice Thomas’s dissent in Trump v. Mazars USA, LLP. Specifically, I will consider how Thomas uses historical practice and precedent to support his claim that “[a]t the time of the founding, the power to subpoena private, nonofficial documents was not included by necessary implication in any of Congress’s legislative powers.” Mazars, slip op. at 3 (Thomas, J., dissenting) (hereinafter “Dissent”).

The starting point for Justice Thomas is that the House has no express power to issue legislative subpoenas and thus it may only be found to have such power if it can “be necessarily implied from an enumerated power.” Dissent at 3. This in itself is fairly noncontroversial, leaving aside the longstanding debate whether “necessary” means absolutely necessary, merely convenient, or somewhere in between. See Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 188-208 (2003).

The challenges for Justice Thomas’s position are two-fold. First, as he acknowledges, the Supreme Court long ago decided this issue against him when it declared the “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” McGrain v. Daugherty, 273 U.S. 135, 174 (1927). Although Thomas points out that McGraindid not involve document subpoenas, he does not contest that its language and reasoning are broad enough to cover such subpoenas, and he acknowledges that subsequent cases have applied it to uphold legislative subpoenas for private documents. Dissent at 14. Nonetheless, he contends that McGrain and its progeny should be disregarded because “this line of cases misunderstands both the original meaning of Article I and the historical practice underlying it.” Id.

This brings us to the second challenge. Even if we assume away the McGrain line of cases, Congress has been issuing legislative subpoenas for private documents for nearly two centuries, even by Thomas’s own reckoning. So in what sense might historical practice demonstrate that the original meaning of Article I does not encompass a congressional power to issue such subpoenas? According to the dissent, the key precedent occurred in 1827, when the Committee on Manufactures (COM) sought the power to subpoena documents and the House rejected the request as “unprecedented.” Dissent at 8. But even if this were true (and we will see that it is not), this would establish only that the issue was unsettled at that point in time. If a majority of the House had determined in 1827 that it lacked the constitutional authority to issue subpoenas for private documents, this would tell us little or nothing about the intent of the founders on this issue. Nor could it have constituted a “constitutional liquidation”  of the issue because, as Thomas acknowledges, the House reversed its (alleged) decision within the next ten years and has followed the practice of issuing such subpoenas ever since. See Dissent at 9-11; see generally William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).

Perhaps one could make the argument that the absence of any history of issuing legislative document subpoenas prior to 1827 demonstrates that this power was not truly “necessary” in the sense required to make it incidental to the legislative power. If this is Thomas’s argument, however, he does not make it explicitly. To the contrary, he criticizes the McGrain Court for adopting “a test that rested heavily on functional considerations.” Dissent at 16. Although he offers his view that “the failure to respond to a subpoena does not pose a fundamental threat to Congress’ ability to exercise its powers,” this “functional” assertion appears in a footnote and is not central to the dissent’s analysis. See Dissent at 17 n.6.

The “key moves” in the dissent’s argument serve to define the universe of relevant practice and precedent so narrowly that none exists prior to the Committee on Manufactures’ request in 1827. First, Thomas insists that only precedent involving the production of private papers, rather than official papers or witness testimony, is relevant. See Dissent at 6. Second, he assumes that the actual exercise of the subpoena or compulsory power, as opposed to the mere authorization of such power by the legislative body, is required to establish a persuasive precedent. Third, he discounts precedents from Parliament and (to a lesser degree) the colonial and early state legislatures on the ground that these bodies are not “exact precursor[s]” to Congress, which has more limited powers. See Dissent at 3-7. Finally, he contends that precedents established in the exercise of nonlegislative functions (such as impeachment, discipline of members, and other quasi-judicial functions) are unpersuasive to establish the existence of a like legislative power. Dissent at 6-7.

This approach allows the dissent to ignore the fact that the practice of investing legislative committees with the power to send for “persons and papers” dates back to the early 17thcentury. Telford Taylor, Grand Inquest: The Story of Congressional Investigations 7 (1955). It was commonly used by Parliament, the colonial assemblies, and the early state legislatures to empower committees to conduct a wide variety of investigations, including those related to election contests, breaches of privilege, government misconduct or maladministration, and proposed legislation. See Taylor, Grand Inquest at 7-12; Ernest Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 14-30 (1928); James M. Landis, Constitutional Limitations on the Power of Investigation, 40 Harv. L. Rev. 153, 161-68 (1926); C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. Pa. L. Rev. 691, 708-15 (1926). While this power was usually provided in connection with a specific investigation, in 1781 the Virginia House of Delegates provided four standing committees (on religion, privileges and elections, courts of justice, and trade) with general power to “send for persons, papers, and records for their information.” Potts, 74 U. Pa. L. Rev. at 716.

The dissent apparently would view this ample historical precedent to be of little weight in the absence of evidence that any of these committees actually subpoenaed private papers or that any witness was punished for withholding them. But given the large number of these investigations and the wide variety of subjects they covered, it is not credible to suggest the term “papers” was understood to be limited to “official papers.” The dissent cites no evidence to suggest that anyone at the time understood these authorizations to be so limited, nor do any of the scholars who have studied these investigations advance such an interpretation.

The dissent’s narrow reading of precedent extends to early congressional practice. Take, for example, the House’s 1792 investigation into General St. Clair’s failed military expedition, which the McGrain Court viewed as significant evidence that the founders understood the power to compel the production of information as an inherent attribute of the legislative power. See McGrain, 273 U.S. at 161, 174. The House empowered the investigating committee “to call for such persons, papers and records as may be necessary to assist their inquiries.” As the McGrain Court understood (and Justice Thomas does not dispute), this language authorized the committee to demand the production of evidence with the implicit backing of the House’s compulsory powers.

According to the dissent, the St. Clair committee “never subpoenaed private, nonofficial documents, which is telling.” Dissent at 7. However, there is nothing in the language of the House’s resolution or in the contemporaneous congressional debates to suggest that the committee’s compulsory authority did not extent to private persons or papers. To the contrary, a significant part of the committee’s investigation involved evaluating the performance of private contractors and the quality of goods they supplied to General St. Clair’s army. See, e.g., I Arthur M. Schlesinger, Jr. & Roger Bruns, eds., Congress Investigates: A Documented History 1792-1974 39 (1983) (committee report of May 8, 1792 noting complaints “as to tents, knapsacks, camp kettles, cartridge boxes, packsaddles, &c. all of which were deficient in quantity and bad in quality”). If the committee were precluded from obtaining information from the contractors or compelling the production of their records, this seems like a significant limitation that would have attracted attention, particularly since the House debated at length whether the inquiry should be conducted by a congressional committee or a military tribunal. See id. at 9-10.

While it may be true that the St. Clair committee never subpoenaed “private, nonofficial documents” (a conclusion that cannot be reached with confidence given that many of the relevant records were not preserved, see id. at 17, 101), there is nothing “telling” about this fact. There is no indication that the committee lacked access to private documents it believed relevant; to the contrary, it reviewed St. Clair’s personal papers as well as information from the private contractors. See id. at 10, 95. There is simply nothing to suggest that the committee doubted its authority to subpoena private papers if necessary.

The overall effect of Justice Thomas’s approach is to narrow the scope of relevant precedent to a very small subset. In order to qualify, a precedent must involve an actual subpoena or document demand (not merely an authorization) by Congress (not by Parliament or a colonial/state legislature) for clearly private papers (not official or arguably official records) in connection with a legislative investigation (not the exercise of a judicial power such as impeachment or discipline of members). Using these restrictive criteria, Thomas contends that when in 1827 COM sought the power to subpoena documents in connection with a proposed bill to raise tariffs, its request was “unprecedented.” Dissent at 8.

Even so, Justice Thomas is wrong. About a year before the committee’s request, another House committee investigating John Calhoun’s prior administration of the War Department subpoenaed documents from an unsuccessful bidder on a government contract. See 3 Reg. of Debates in Cong. 1124 (Feb. 13, 1827). Moreover, the House’s 1810 investigation of General James Wilkinson also obtained testimony and documents from a number of private individuals, at least some of which was obtained from a number of private individuals, at least some of which was obtained by compulsory process. I Schlesinger & Bruns, Congress Investigates at 119 & 170. Thus, even by Thomas’s own standards, COM’s request was not “unprecedented.”

That being said, in my next post we will take a closer look at the 1827 debate precipitated by COM’s request for compulsory powers.

 

 

 

Posted on

Applicability of Federal Criminal Laws to OCE Investigations

In one of his last opinions on the D.C. Circuit, Judge Griffith resolved another congressional case, United States v. Bowser, No. 18-3055 (D.C. Cir. June 30, 2020), albeit one less consequential than McGahn. David Bowser, a former chief of staff to Representative Paul Broun (R-Ga), was convicted of obstructing an investigation by the Office of Congressional Ethics (OCE) into whether Broun had improperly used funds from his “Members Representational Allowance” (MRA) to pay for campaign related expenses.  Specifically, OCE in 2014 launched an inquiry into whether a “messaging consultant” hired by Broun’s office had been paid out of the MRA for time spent on Broun’s congressional and senate campaigns.

In response to OCE’s preliminary review of these allegations, Bowser coached witnesses to provide false or misleading information to OCE, encouraged them to withhold responsive and relevant documents, and did the same himself. As a consequence, he was indicted and convicted of obstructing Congress, concealing material facts from OCE, and making false statements.

On appeal, there were two principal legal issues presented. First, the court addressed whether the obstruction of Congress statute, 18 U.S.C. § 1505, applies to OCE investigations. The statute applies to any investigation or inquiry by “either House, or any committee of either House or any joint committee of the Congress.” As the court noted (and the government conceded), this language on its face does not encompass OCE. It stressed that Congress knows how to draft statutes to cover offices such as OCE when it wishes to do so, contrasting the limited scope of § 1505 with the False Statements Act, which “applies to ‘any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress.'” Bowser, slip op. at 8 (quoting 18 U.S.C. § 1001(c)(2)) (emphasis added by court).

The government argued, however, that OCE conducts investigations as an agent for the House and/or the House ethics committee. The court was not persuaded. It pointed out that the statute defines which “agents” it covers, i.e., committees and joint committees, and therefore other entities could not be covered simply because they act in some general sense as agents for one house or Congress as a whole. It also found that OCE’s functions under the House rules undercut the government’s argument because OCE merely has the limited power of conducting reviews and issuing recommendations to the ethics committee, which then determines whether to undertake the actual “investigation.”

Accordingly, the D.C. Circuit found the obstruction statute inapplicable to OCE’s inquiry and affirmed the district court’s grant of Bowser’s post-trial motion for acquittal on the obstruction charge.

The second major issue was Bowser’s claim that the district court should have also granted his motion for acquittal on the charge of concealment under the False Statements Act. While he did not dispute that OCE was an “office of the Congress” within the meaning of that statute, he argued there could be no concealment because OCE’s preliminary reviews are voluntary and therefore impose no duty on witnesses to disclose information. The court, however, held that a voluntary ethics investigation or review may impose a duty to disclose as long as witnesses are given fair notice of this fact. Under the circumstances of this case, Bowser was under such a duty because he had certified in writing that he had fully complied with OCE’s request for information and had been advised that his disclosure was subject to the False Statements Act.

Bowser is a fairly straightforward statutory interpretation case which is probably not all that interesting to anyone except lawyers who represent clients in House ethics matters. Its most immediate impact, I suspect, will be to give such lawyers cover for advising their clients not to cooperate voluntarily with OCE.

Posted on

Presidential Electors and the Article V Convention: An Update

A few years ago I wrote a post explaining why the failure of the “Hamilton electors” in the 2016 presidential election demonstrated that it would be equally impossible for an Article V convention to “run away,” i.e., to propose amendments beyond the scope of the convention applied for by the state legislatures. Among other things, I argued that the constitutional case for allowing state legislatures to control their delegates to an Article V convention was stronger than that for exercising such control over their presidential electors. Accordingly, the deterrent and coercive effect of “delegate limitation laws” (DLAs) enacted by various states to control delegates to a potential Article V convention should be as least as great as that of faithless elector laws upon which they were in part modeled.

The Supreme Court’s recent decision upholding the constitutionality of faithless elector laws shows that it will be difficult to challenge DLAs and may encourage additional states to enact such laws. In Chiafolo v. Washington, 591 U.S. __ (2020), the Court unanimously held that states may not only require presidential electors to pledge to support a particular candidate but they may penalize electors who violate this pledge. Writing for seven justices, Justice Kagan acknowledged that the framers may have expected that the electors would exercise their own judgment and discretion in voting for president, but the “barebones” constitutional text regarding the electoral college failed to constitutionalize that requirement. Chiafolo, slip op. at 12-13. In contrast, the Constitution expressly gives state legislatures power over the appointment of presidential electors, and “the power to appoint an elector (in any manner) includes the power to condition his appointment– that is, to say what the elector must do for the appointment to take effect.” Id. at 9. The constitutional text and the longstanding practice of treating electors as mere instruments of the voters’ will persuaded the Court to uphold faithless elector laws.

Justice Thomas, writing for himself and Justice Gorsuch, concurred on different grounds. While he found “highly questionable” the majority’s conclusion that the Constitution affirmatively grants states the power to limit the discretion of presidential electors, he concluded that faithless elector laws were valid under the Tenth Amendment’s reservation of powers to the states and the people.

The Chiafolo ruling provides strong support for the constitutionality of DLAs. The Constitution is even more “barebones” about an Article V convention than about the electoral college. It does not expressly address how an Article V convention is constituted, who selects the delegates, or how they vote. (These omissions did not escape James Madison’s attention. See Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 768 n.27 (2011)). Nonetheless, assuming that convention delegates are to be appointed by or in a manner directed by the state legislatures (as virtually everyone agrees would be the case), Chiafolo strongly suggests that these legislatures would have the power to condition the appointment by limiting the discretion of delegates and to impose legal consequences for violations of such condition. Continue reading “Presidential Electors and the Article V Convention: An Update”

Posted on

Will the D.C. Circuit’s “Unusual Moves” Allow it to Evade Supreme Court Review in the McGahn and Mnuchin Cases?

On Friday the D.C. Circuit, sitting en banc, held that the House Judiciary committee has standing to enforce its testimonial subpoena to former White House counsel Don McGahn. See Comm. on the Judiciary, U.S. House of Representatives, v. McGahn, No. 19-5331 (D.C. Cir. Aug. 7, 2020) (en banc). In so doing, the court rejected both the administration’s broad argument that Congress lacks Article III standing to sue anybody for anything and its narrower position that Congress lacks standing to bring an interbranch dispute to court. This is an important decision that, if it stands, will form the legal backdrop of executive-legislative disputes for years to come.

The court’s reasoning and that of the dissenters is not my focus today. (Professor Adler has a good summary of the various opinions here). Rather I want to focus on what happens next in these cases, and whether the majority has successfully insulated its decision from Supreme Court review.

The vote in McGahn was 7-2. The two dissenters were Judges Henderson and Griffith, who were the majority on the original panel to hear the McGahn case. They were also the only Republican appointees to participate in the en banc court because the two other Republicans on the court (Judges Katsas and Rao) were recused.

Although the McGahn en banc decision resolved the standing issue, it did not deal with other issues that had been raised on appeal. Instead, the full court ordered that the remaining appellate issues be “remanded to the panel to address in the first instance.” the issues remanded are (1) whether there is subject matter jurisdiction with respect to this lawsuit; (2) whether there is a cause of action for failure to comply with a congressional subpoena; and (3) assuming the Judiciary committee prevails on the first two issues, the merits of McGahn’s “absolute immunity” defense.

In addition to rejecting the majority’s standing analysis, Judge Griffith (but not Judge Henderson) protested the majority’s failure to decide all the issues in the case, noting that “the full court hurdles over Article III barriers only to decline to resolve the case.” In Griffith’s view, the court should have addressed the remaining issues and concluded, as he does, that there is no subject matter jurisdiction and no cause of action for the committee’s grievance against McGahn.

The original McGahn panel consisted of Judges Rogers, Henderson and Griffith. I assume the case will be remanded to the same panel. Judge Griffith, however, is retiring effective September 1 and therefore (I assume) will have to be replaced. Presumably this is why Griffith felt compelled/able to give his views on the issues the panel will now have to consider.

Separately, the en banc court remanded to a different panel the case of U.S. House of Representatives v. Mnuchin, No. 19-5176, in which the House is suing the Trump administration for violating the Appropriations Clause by constructing a border wall without congressional authorization. Although the en banc court initially agreed to consider the standing issue in Mnuchin (even before the original three-judge panel had ruled on it), it has now decided to send that issue back to the panel to consider the House’s standing under the principles set forth in its McGahn decision.

Judges Henderson and Griffith also dissented from the decision to remand Mnuchin, arguing that it makes no sense to have sua sponte agreed to hear the Mnuchin case en banc, requested and received supplemental briefing and argument, and then simply punted the issue back to the three-judge panel.  As Judge Henderson puts it, “[t]he majority points to no case– nor am I aware of any– in which we sua sponte consolidated two appeals for en banc rehearing and then addressed only one of them in the resulting opinion.” Mnuchin, slip op. at 2 (Henderson, J., dissenting).

Judge Griffith had some even more pointed remarks for his soon to be former colleagues. He accuses the full court of repeatedly departing from regular order by first determining that the standing question in Mnuchin was not only of such “exceptional importance” to justify rehearing en banc, but making this determination sua sponte before the three-judge panel had even issued an opinion, and then “sending the case back to the panel without answering the ‘question of exceptional importance’ that triggered rehearing in the first place.” Mnuchin, slip op. at 3 (Griffith, J., dissenting). He then asks: “What accounts for this extraordinary departure? The court offers no explanation for this unusual move, and I can think of none.” Id.

Well, I can think of an explanation (and I suspect Griffith can too). By failing to issue a final decision in either McGahn or Mnuchin, the D.C. Circuit has made it much less likely that the Supreme Court will have an opportunity to grant certiorari prior to the election. And if these cases drag on past the election, there is a good chance the Court will never hear them at all.

Let’s begin with McGahn. As everyone concedes, it is highly unlikely now that McGahn will be testifying in this congress (and certainly not before the election). Thus, there will be little urgency for the reconstituted panel to issue a final decision (and consider how slowly things moved when there was urgency). Possibly a final decision might issue before the election, but the longer it takes, the less reason the Supreme Court will have to grant review. In the first place, the expiration of the congress terminates the subpoena and therefore arguably moots the case. Furthermore, if the election changes the occupant of the White House, it is entirely possible the incoming Justice Department will not be interested in pursuing Supreme Court review.

Now consider Mnuchin. As in the case of McGahn, if the full D.C. Circuit had found in favor of the House now, the Justice Department would have undoubtedly sought Supreme Court review on an expedited basis. Even if the court found against the House (which frankly I think is more likely), the House might have felt politically that it needed to seek further review. However, if the Democrats win the White House, the House will probably lose interest in the case regardless of which way the panel decision goes, and the case will go away without Supreme Court review. Only if the House wins the panel decision and Trump retains the White House does it seem likely that the parties would pursue further review.

Note, however, that if there is a new administration, its interests will not necessarily align with those of the House. While it may not wish to take a case on congressional standing to the Supreme Court, it probably would prefer not to have the D.C. Circuit’s standing decision in McGahn as the controlling law either. Just as the Obama administration reportedly tried (unsuccessfully) to get the House to agree to dismissal of the Miers case on grounds of mootness, the issue in an incoming Biden administration may not be Supreme Court review, but whether the D.C. Circuit’s en banc decision in McGahn is rendered moot by the expiration of the congress or otherwise.

In short, the big issue in McGahn and Mnuchin is no longer whether the House will get the relief it initially sought, but whether the D. C. Circuit’s standing decision will be preserved as the law of the circuit. Interested parties should plan accordingly.

 

 

Posted on

Justice Thomas and Judge Rao: A Tale of Two Mazars Dissents

Justice Thomas’s dissent in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), has been compared to Judge Rao’s dissent in the D.C. Circuit below, with the implication that this somewhat vindicates Rao’s widely panned opinion. However, the two dissents are in fact quite different, and it seems pretty clear that Justice Thomas was not persuaded by his former clerk’s opinion.

To be sure, there are similarities between the two dissents. Both ignore the presidency-centered arguments offered by President Trump’s personal legal team and the Department of Justice in favor of broader theories not raised by any party or amicus. Both evince skepticism if not outright hostility toward legislative investigations generally and clearly prefer the stance taken by the Court in Kilbourn v. Thompson, 103 U.S. 168 (1881) to that of McGrain v. Daugherty, 273 U.S. 135 (1927). Both indicate that these congressional subpoenas seeking the president’s personal financial information would be valid, if at all, only through the exercise of the impeachment power. Both rely to a great extent on historical practice, particularly a kind of negative historical practice (i.e., drawing conclusions from things that allegedly did not happen).

Despite these similarities, the two dissents employ different reasoning, rely on different “precedents,” and reach very different conclusions. The textual and structural lynchpin of Judge Rao’s analysis is the impeachment power, which she claims “provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process.” Trump v. Mazars USA, LLP, 940 F.3d 710, 751 (D.C. Cir. 2019) (Rao, J., dissenting). While Rao acknowledges Congress’s general legislative power to conduct investigations, this power in her view does not extend to matters within the “impeachment zone” (my term, not hers). How one determines what falls within the impeachment zone is somewhat unclear, but Rao finds that the subpoenas for Trump’s financial information are ones that can only be pursued through the impeachment power.

Much of Rao’s opinion is devoted to her contention that “consistent historical practice” supports her conclusion. Id. at 753. To wit, she endeavors to show that Congress has never investigated matters within the impeachment zone except through the use of the impeachment power. Id. at 758-67.

Thomas takes a different approach. Although he agrees with Rao that the personal financial records at issue may be obtained by Congress, if at all, only through the exercise of the impeachment power, he reaches this result because he believes Congress lacks the power to subpoena private, nonofficial documents in any legislative investigation. Unlike Rao, he does not claim that the impeachment power somehow displaces otherwise available legislative power to investigate.

A simple illustration of the difference between the two dissents is to imagine Donald Trump had never been elected president. (It’s easy if you try). Under Rao’s theory, Congress would be able to subpoena his financial records for legislative purposes, such as to investigate the operation of money-laundering laws (which was the asserted purpose of the subpoena issued by the Committee on Financial Services). Under Thomas’s theory, on the other hand, these records could never be subpoenaed for a legislative purpose.

Put another way, Thomas would proscribe a particular legislative tool (subpoenas for private documents) for all legislative investigations, while Rao would proscribe the use of any compulsory process for certain investigative subjects (legislative investigations of matters falling within the impeachment zone). Thus, Rao would allow subpoenas for private documents in legislative investigations outside the impeachment zone; Thomas would not. Thomas would allow subpoenas for testimony or official documents in legislative investigations within the impeachment zone; Rao would not. Though they produce the same result in this particular case, the two theories are entirely different.

Furthermore, Thomas evidently rejects Rao’s interpretation of historical practice. While Rao claims that investigations of wrongdoing by impeachable officials have occurred exclusively through the exercise of the impeachment power, Thomas makes this observation:

     For nearly two centuries, until the 1970s, Congress never attempted to subpoena documents to investigate wrongdoing by the President outside the context of impeachment. Congress investigated Presidents without opening impeachment proceedings. But it never issued a subpoena for private, nonofficial documents as part of those non-impeachment inquiries.

Trump v. Mazars USA, LLP, 591 U.S. __, slip op. at 20-21 (2020) (Thomas, J., dissenting) (citation omitted) (emphasis added).

As Thomas acknowledges, Congress has investigated wrongdoing by presidents (not to mention other impeachable officials) in “non-impeachment inquiries” both before and after the 1970s. Whatever the factual accuracy or legal significance of the claim that these non-impeachment inquiries did not subpoena private, nonofficial documents “until the 1970s,” Thomas clearly does not see the historical pattern asserted by Rao as the key to her dissent.

None of this is to say that Justice Thomas’s dissent is correct (it is not) or even more plausible than Judge Rao’s (we will leave that to another day). It is fair to say, though, that Thomas was unpersuaded by Rao’s analysis and finds his own to be more plausible.

Posted on

The Stone Commutation, the Pardon Power and Impeachment

Two years ago to the day I completed a series of posts regarding President Trump’s use and threatened use of the pardon power. Yesterday the president commuted the sentence of Roger Stone, who was charged with and convicted of seven counts of false statements, obstruction and witness tampering. This event has predictably given rise to two competing takes: (1) the president’s action was a “corrupt” use of the pardon/commutation power because it was given to a coconspirator in exchange for his silence; and (2) the president was showing mercy to someone who had been unfairly targeted by the Russian “hoax” investigation cooked up by his political enemies.

The latter position was put forth by the White House press secretary, who asserted in a prepared statement that “Roger Stone is a victim of the Russia Hoax that the Left and its allies in the media perpetrated for years in an attempt to undermine the Trump Presidency.” This claim overlooks the fact that Stone was convicted of obstructing congressional investigations being conducted by committees controlled by Republican majorities in both the House and Senate. He was also convicted of making false statements to the House Permanent Select Committee on Intelligence, chaired at the time by Representative Devin Nunes.

Even if one accepts the most critical possible view of the Russia investigation (namely that the FBI’s “Crossfire Hurricane” investigation was commenced without adequate predication based on political animus toward the Trump campaign and without any serious reason to believe that Trump or anyone on his campaign had engaged in criminal collusion with the Russians), it was still the right and duty of HPSCI to look into allegations regarding Trump’s ties to Russia. As I have noted before, the final HPSCI report is quite critical of a number of aspects of those ties, even as it found no evidence to substantiate a claim of criminal conspiracy between the Trump campaign and Russia (similar to the conclusions reached by the Mueller investigation and the Senate intelligence committee).

A congressional committee may on occasion investigate allegations which turn out in fact to be a hoax, such as the “October Surprise” allegations. This is not, of course, a justification for providing false information to the committee. Indeed, if President Trump believed that there was no merit to the Russia allegations, he would want his subordinates and allies to provide full and truthful information, particularly to committees which could be counted on to give his side of the story a fair shake, and he would be furious that Stone had failed to do so. The fact that he is not speaks volumes.

This does not necessarily mean that Trump’s action was “corrupt” in either the specific sense of a quid pro quo in exchange for Stone to concealing truthful information that might be politically or legally damaging to Trump’s interests or in the more general sense of encouraging others who might desire pardons/commutations to remain silent. There is good reason to suspect that either or both of these may be true, but it is also possible that Trump simply wants to use his powers to reward his friends and punish his enemies. He is so upfront about these desires that it is tempting to assume that something more calculated underlies his actions, but maybe not.

Although the House can and should investigate Trump’s commutation of Stone’s sentence, it should not limit its consideration to the more complicated explanation of his action. As I wrote two years ago, the pattern of how the president has used his pardon power is troubling enough to reach the level of an impeachable offense even if it cannot be proved that he was attempting directly to benefit himself:

At some point a pattern of impulsive and arbitrary use (or threatened use) of the pardon power may rise to the level of impeachable conduct even if there is no ulterior motive to thwart investigations or protect the president from the legal consequences of his actions. The president’s unlimited and unreviewable authority to grant pardons is based on the assumption that he will exercise this vast power with some degree of prudence and deliberation. President Trump, it appears from overwhelming evidence, has interpreted this as a license to issue pardons whenever he so desires, with little or no consideration of consequences or counterarguments. His standard, to the extent he has one, for the exercise of this vast power is his sense of “unfairness,” which seems to be as ill-considered and self-centered as that of a small child.

That is the charitable view. Viewed less charitably, Trump’s self-pardon tweet may reflect a strategy to protect himself and his associates from the special counsel and other investigations that threaten their personal interests. By expressing the authority to pardon himself in connection with the Russia investigation, he emphasized the breadth of his pardon power and willingness to employ it if need be to counter a probe he views as a “witch hunt.” Although the tweet implied Trump has no plans to pardon himself (since he has “done nothing wrong”), one could infer a willingness to pardon others, who may or may not have done something wrong, but whom Trump deems in any event to be victims of a politically motivated witch hunt.

*      *       *

It is not necessary at this juncture to decide whether the evidence of Trump’s actions and statements regarding the pardon power actually warrant impeachment. It is only required to decide that the evidence is enough (more than enough, IMHO) for the House to open an impeachment inquiry, which is also the only way in which Congress can effectively exercise oversight with respect to the pardon power.

The president’s unlimited discretion to grant clemency is based on the assumption he will exercise his power with prudence and serious deliberation. It is apparent that President Trump has fallen far short of that standard. Whether this fact alone, under our current circumstances, warrants impeachment or whether the evidence establishes with sufficient clarity the use of the pardon power for self-interested or corrupt purposes, are the questions that the House should seek to answer in its inquiry. Should it turn out that the inquiry does not produce sufficient evidence to support impeachment, the worst that happens is that the president will have the benefit of some sorely-needed adult supervision in this area of his presidency.

We will see whether the House sees fit to accept this advice now.

Posted on

Mazars and Common Law Privileges Before Congress

So the Supreme Court’s decision in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), yesterday will be a full employment act for congressional lawyers for the foreseeable future, but today I just wish to weigh in on one relatively minor point. For reasons that escape me, the Court chose to offer the following piece of dicta: “recipients [of congressional subpoenas] have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.” Mazars, slip op. at 12. The Court evidently thought this was a noncontroversial observation, but this is assuredly not the case with regard to common law privileges. As readers of this blog are aware, Congress has long asserted that it is not obligated to respect common law privileges such as the attorney-client privilege.

The sole authority cited by the Court for the proposition that witnesses “retain” their common law privileges is a 2003 Congressional Research Service report written by Louis Fisher. The cited section of the report describes the 1995 dispute between the Clinton administration and congressional committees investigating Whitewater regarding the notes of a White House lawyer regarding a meeting conducted to discuss legal strategy with Clinton’s personal lawyers. The Clinton administration asserted that these notes were protected by attorney-client privilege and they demanded that the congressional committees agree that the production of these notes would not constitute a waiver of the privilege. Fisher notes that as part of an agreement to provide the notes to the Senate Whitewater Committee, “House Banking and Financial Services Committee Chairman Jim Leach announced that the House wold not try to later assert that President Clinton had waived his attorney-client privilege.”

An agreement to not to claim waiver of a privilege is not at all the same thing as agreeing that the privilege may be validly asserted, however. Indeed, in another place where Fisher describes this episode more fully, he notes that Chairman Leach explicitly made the point that the  House’s agreement not to assert waiver was in the context of rejecting the existence of the privilege in the first place. See Louis Fisher, The Politics of Executive Privilege 106 (2004) (quoting Leach as noting that “one cannot waive a privilege that never came into being in the first place.”). More importantly, Leach explained that Congress was not obligated to respect the attorney-client privilege even if it applied because “[i]t is well-established by congressional precedent and practice that acceptance of a claim of attorney-client privilege rests in the sole and sound discretion of Congress, and cannot be asserted as a matter of right.” Id.

While the question of whether Congress must respect common law privileges in general, and the attorney-client privilege in particular, will no doubt remain a hotly debated topic, the Supreme Court’s poorly researched dicta on this point should not be given any weight.

Update: Rob Kelner also discussed this issue at Covington’s Political Law Blog (hat tip: @derekmuller).

Posted on

The Berman Firing, Congressional Oversight, and (Lack of) Presidential Accountability for the Exercise of the Removal Power

I don’t envy Andrew McCarthy, the National Review contributing editor who writes about legal affairs. McCarthy is a smart and experienced lawyer who clearly thinks of himself as intellectually honest. But he also seems to conceive his job as explaining the constitutional operation of our government while minimizing references to the president’s massive unfitness for office. This makes intellectual honesty challenging. It’s a bit like submitting a detailed report on the crash of a passenger jet and only casually mentioning that the pilot was a kangaroo.

A case in point is McCarthy’s take on the dismissal of Geoffrey Berman, the interim U.S. attorney for the Southern District of New York (USA-SDNY). In case you had not heard, late Friday, June 19, the Justice Department issued a press release with three announcements by Attorney General Bill Barr: (1) President Trump “intends to nominate” Jay Clayton (currently the SEC chairman) as the permanent USA-SDNY; (2) Trump “has appointed” Craig Carpenito (currently the interim U.S. attorney for the District of New Jersey) to be the “acting” USA-SDNY effective July 3; and (3) Berman would “stepping down” from his position as the interim USA-SDNY.

Berman responded immediately by denying that he was stepping down and implying that he needed to stay on to protect the integrity of the SDNY’s investigations (which include politically sensitive investigations that could implicate the president’s personal or political interests). The next day, June 20, Barr wrote to Berman advising him that “[b]ecause you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so.”

Noticeably absent from Barr’s letter was any claim that the president had asked for Berman’s resignation or had been involved at all prior to that day. Also unmentioned was any reference to the president’s alleged “appointment” of Carpenito that DOJ had announced the day before. Instead, Barr stated that by “operation of law” Berman’s deputy, Audrey Strauss, would become acting USA-SDNY, noting that “I anticipate that she will serve in that capacity until a permanent successor is in place.” The assurance regarding Strauss’s tenure was reportedly given as a concession for Berman to agree to leave quietly.

To add to the chaos, when asked about Berman’s departure, Trump told the press that he was “not involved.” The White House later “clarified” this statement to acknowledge that Trump had “signed off” on Barr’s recommendation that Berman be terminated. Whether this sign off occurred only after Berman refused to leave is unclear. There has been no other official or unofficial indication that Trump was involved in either Berman’s departure or the botched attempt to appoint Carpenito.

In two columns (June 20 and June 23), McCarthy defends the Trump administration against critics who conceive Berman’s firing to be part of an effort by the president and the attorney general to obstruct justice by derailing particular investigations that threaten Trump in some way. About this he is probably right, but he glosses over the incompetence, dysfunction and lack of accountability that have been so typical of this administration’s “personnel” actions. Continue reading “The Berman Firing, Congressional Oversight, and (Lack of) Presidential Accountability for the Exercise of the Removal Power”

Posted on

Will the Mazars Court Overrule McGrain? (Part Two)

As suggested in my last post, the May 12, 2020 oral argument in Trump v. Mazars USA, LLP did not go well for the House, to put it mildly. Most of the tough questions for the House Counsel clustered around a single idea: what is the limiting principle that prevents Congress from prying into whatever it wants, whenever it wants? Before getting to that, however, let’s consider an even more fundamental issue raised by Justice Thomas.

Justice Thomas began his questioning of House Counsel Doug Letter by essentially asking what the constitutional basis is for recognizing the power to issue legislative subpoenas at all. Tr. 54-55. Letter responded by pointing to the long line of Supreme Court cases (which began with McGrain) holding that the power to conduct investigations and issue compulsory process is an inherent and integral part of the legislative power conferred by the Constitution.

Justice Thomas did not appear entirely satisfied with this answer, and he followed up by asking “can you give me the earliest example you have of Congress issuing a legislative subpoena?” Tr. 56. Letter pointed to the House’s 1792 investigation of General St. Clair’s failed expedition. This investigation was viewed by the McGrain Court as significant historical evidence of the existence of a constitutional power to issue legislative subpoenas. As the Court explained:

This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition and authorized the committee to send for necessary persons, papers and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work, were members of the House of Representatives at the time, and all voted for the inquiry.

*           *          *

We are of opinion that the power of inquiry– with process to enforce it– is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history– the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action– and both houses have employed the power accordingly up to the present time.

McGrain v. Daugherty, 273 U.S. 135, 161, 174 (1927).

Still not satisfied, Thomas pressed further: “What’s the first example of Congress issuing a legislative subpoena to a private party for documents?” Tr. 56. Letter could not answer him directly, but referred him to the discussion of congressional investigatory history in Watkins v. United States, 354 U.S. 178 (1957).

The referenced passage in Watkins, I think, is the following:

Most of the instances of use of compulsory process by the first Congresses concerned matters affecting the qualification or integrity of their members or came about in inquiries dealing with suspected corruption or mismanagement of government officials. [Note: here the Court cites to Landis’s article]. Unlike the English practice, from the very outset, the use of contempt power by the legislature was deemed subject to judicial review.

     There was very little use of the power of compulsory process in early years to enable the Congress to obtain facts pertinent to the enactment of new statutes or the administration of existing laws. The first occasion for such an investigation arose in 1827, when the House of Representatives was considering a revision of the tariff laws. In the Senate, there was no use of a factfinding investigation in aid of legislation until 1859.

Watkins, 354 U.S. at 192-93.

This passage does not specifically answer Justice Thomas’s question, but it suggests why it may not have been exactly the right question. While courts pass on the validity of specific subpoenas, the scope of Congress’s investigatory authority is determined by reference to the investigation that is being conducted, not by the nature of an individual subpoena (e.g., whether it is directed to a private party or seeks documents).

Thus, for example, the investigation of the St. Clair expedition would be one of the inquiries involving “suspected corruption or mismanagement of government officials” referred to in Watkins, but that does not  mean the investigation lacked the power to compel the production of documents or other information from private parties. Indeed, one of the issues in the St. Clair investigation was the quality of military supplies provided by private contractors, and the committee received affidavits and other evidence from these contractors. See I Arthur M. Schlesinger, Jr. & Roger Bruns, eds., Congress Investigates: A Documented History: 1792-1974 95 (1983). Whether or not the committee actually issued compulsory process to a private party, there seems little doubt it had the authority to do so.

When was the first occasion on which a congressional committee actually issued a legislative subpoena to a private party for documents? The earliest I can verify is that in 1827 a House committee investigating John Calhoun’s prior administration of the War Department subpoenaed documents from an unsuccessful bidder on a government contract. See 3 Reg. of Debates in Cong. 1124 (Feb. 13, 1827). However, the House’s 1810 investigation of General James Wilkinson also obtained testimony and documents from a number of private individuals, at least some of which was obtained by compulsory process. I Congress Investigates at 119 & 170.

The passage quoted from Watkins does not distinguish between subpoenas directed to private parties and government officials, but it does suggest a distinction between (1) investigations of suspected government corruption or mismanagement (what would often be referred to as congressional oversight) and (2) inquiries to obtain facts relevant to enacting or amending legislation. Although both are “legislative” in nature, the Court implies that the latter requires more vigorous scrutiny to ensure that the information sought is pertinent to the investigation, particularly when the information sought would implicate the constitutional rights of private citizens.

This interpretation is consistent with the holding of Watkins, where a labor organizer summoned to testify before the House Un-American Activities Committee testified freely about his own activities and associations, but refused to answer questions about individuals whom he believed may have once been but no longer were members of the Communist Party. The Court reversed his conviction for contempt of Congress, holding that the committee violated his rights under the contempt statute and the due process clause by failing to clearly explain to him the pertinency of the questions to its investigation. It did not dispute that political opinions and associations protected by the Bill of Rights could nonetheless be a proper subject of congressional investigation, but “[p]rotected freedoms should not be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a specific legislative need.” Watkins, 354 U.S. at 198, 205.

The Court emphasized that it was not dealing with congressional oversight, noting that “[t]he public is, of course, entitled to be informed concerning the workings of its government.” Id. at 198. It explained:

     We are not concerned with the power of Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. That was the only kind of activity described by Woodrow Wilson in Congressional Government when he wrote: “The informing function of Congress should be preferred even to its legislative function.” From the earliest times in its history, Congress has assiduously performed an “informing function” of this nature. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 168-194.

Watkins, 354 U.S. at 200 n.33 (citation omitted). The Court thus distinguishes the inquiry in Watkins from the type of congressional oversight involved in McGrain.

This distinction may help point the way to an answer to the question asked by many of the justices at the May 12 argument in Mazars, i.e., what stops Congress from investigating virtually anything on the basis that it has some connection to a subject on which legislation could potentially be had. See, e.g., Tr. 52-54 (Chief Justice Roberts); 57 (Justice Ginsburg); 64 (Justice Alito); 74 (Justice Kavanaugh). Letter had some difficulty answering this question, perhaps because judicial doctrine since McGrain has in fact been extremely deferential to Congress on this score. As the district judge in Mazars pointed out, the governing legal standards are so deferential that they “do not substantially constrain Congress.”

However, the real constraint on Congress is that enforcing a subpoena is extremely cumbersome and therefore legal sanctions for contempt are virtually never imposed. This is in part because the Court in cases like Watkins has imposed technical and procedural requirements for criminal contempt to address the very issue raised in the Mazars argument. See Watkins,  354 U.S. at 204 (expressing concern that the committee “can radiate outward infinitely to any topic thought to be related in some way” to its mandate, that “[r]emoteness of subject can be aggravated by a probe for a depth of detail even farther removed from any basis of legislative action,” and further that “investigators [can] turn their attention to the past to collect minutiae on remote topics, on the hypothesis that the past may reflect upon the present”).

As a consequence, any witness who wishes to contest a congressional subpoena has far more leverage than the formal legal standards would imply. In addition, witnesses have the right to assert privileges, including the privilege against self-incrimination. Congress also has political incentives which further constrain its exercise of the subpoena power. Thus, the hypotheticals advanced by the justices are, for the most part, very unlikely to occur. See, e.g., Tr. 85-86 (Justice Alito) (suggesting the possibility that one house of Congress might subpoena personal records relating to a member of the other house).

Of course, some of these safeguards are inoperative in the Mazars case because it presents the fairly rare scenario of Congress seeking non-privileged records from third parties with no interest in contesting the subpoenas. Whether this  creates a significant potential of congressional abuse is debatable. After all, if Congress were to attempt to exercise this authority in an excessive or abusive manner, banks and other third party record keepers would have an incentive to contest subpoenas to protect the interests of their clients. (This is why the Court would have been wise to consider this blog’s suggestion that only the third parties themselves should have standing to contest the validity of the subpoenas).

Nonetheless, there are undoubtedly instances where Congress investigates particular factual questions which seem tenuously related to a legislative need. It is difficult to see, for example, why Congress would need to know whether a particular baseball player used steroids in order to legislate on the general subject. One could reasonably argue that if Congress is merely seeking information as a case study of a particular social, economic or national security problem, it ought to explain not only how the information is pertinent to potential legislation but why there is a legislative need to explore one specific example out of many. This should be more than adequate to protect against some of the other hypotheticals raised in the May 12 argument, such as the idea that Congress could subpoena an individual’s medical records on the ground it was considering healthcare legislation. See Tr. 65 (Justice Sotomayor).

On the other hand, there is no need for Congress to provide any additional justification for conducting oversight of government agencies and officials. As explained in McGrain and Watkins (and detailed in Professor Landis’s article, among other places), Congress has conducted searching probes into the conduct of government officials and operations since its earliest days. Such investigations are inherently justified by the need to inform itself and the public as to the working of the federal government and to uncover corruption, maladministration and inefficiency of every kind.

This distinction is reflected in Justice Kagan’s suggestion that there may be reasons for treating differently the three congressional subpoenas involved in the consolidated Mazars and Deustche Bank cases. See Tr. 88. Although all three seek similar types of information (financial records relating to President Trump’s private business interests), there are significant differences in the nature of the investigation to which each subpoena relates. The investigation by the Financial Services committee seeks the information simply to use it as a case study of a much more general problem (money laundering) in the financial sector. By contrast, the subpoena from the Intelligence committee is for the purpose of determining whether the president has financial ties to Russia or other foreign actors that might create a conflict of interest or give such actors leverage over his official decision making. The latter falls squarely within the province of congressional oversight while the former constitutes a pure case study investigation that may require additional justification.

The subpoena from the House Oversight committee falls somewhere in the middle. It is defended in part on the ground that it will assist the committee in determining whether to recommend changes to disclosure laws applying to federal officials generally. This is arguably closer to a case study approach, although it seems self-evident why the committee would focus on the highest-ranking federal official, particularly when it has gathered substantial evidence that he has been less than truthful in his private financial disclosures. In addition, the subpoena can be justified on the pure oversight grounds of determining whether the president has financial conflicts of interest or is in violation of the Foreign Emoluments Clause.

The line suggested by Justice Kagan would allow the Court to uphold at least one and likely two of the congressional subpoenas, while sending the other(s) back for further proceedings. It seems to me this would be a reasonable compromise that would satisfy the concerns expressed by the justices (with the possible exception of Justice Thomas) without fundamentally disturbing the legal standards established by McGrain and applied in subsequent cases.

Unlike Kagan (and several of her colleagues), however, I would be loathe to establish a special protection applicable only to the president. Historically the Court’s concerns about over broad congressional investigations focus on protecting the affairs of private citizens from arbitrary scrutiny. Even Judge Cochran, who would have applied these principles to an inquiry into the conduct of (then former) Attorney General Daugherty, claimed only that these principles applied as much to federal officials as to private citizens, not that the former were entitled to additional protection. (To date only Judge Rao, in her Mazars dissent in the D.C. Circuit, has advanced the remarkable proposition that impeachable officials enjoy an immunity from legislative investigation that is unavailable to private citizens). If the Court believes that changes are needed to the doctrine governing congressional case study investigations to avoid arbitrary intrusions into private affairs, such should apply to all citizens, not just the one who happens to sit in the Oval Office.

Whatever the Court ends up deciding in Mazars, let us hope they emulate the McGrain Court in one way but not another: the first by achieving unanimity or something close to it; and the second by not taking more than two years to issue a decision.