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Pardons, Self-Pardons and Impeachment (Part IV)

This post will conclude my series (see herehere and here) on the pardon power and impeachment. Today I will look at the pardon power in the context of the Russia investigation and explain why, in my judgment, the totality of the evidence warrants opening an impeachment inquiry focused on the president’s abuse and threatened abuse of the pardon power.

Pardons and the Russia Investigation 

On May 17, 2017, Robert Mueller was appointed as special counsel to “conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017” relating to the Russian government’s interference in the 2016 presidential election. The appointment expressly included “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”

Mueller’s appointment occurred just days after Trump had fired Comey, an action which was widely believed to have been taken because of Trump’s unhappiness with Comey’s handling of the Russian investigation. Trump, in fact, seemed to confirm this suspicion in a television interview immediately after the firing. Comey’s own testimony suggested that he may have been fired because he failed to comply with Trump’s “direction” that he drop the investigation with regard to former national security advisor Michael Flynn. More recently, Trump’s current lawyer, Rudy Giuliani, said that Comey was fired in part because he refused to say publicly that Trump was not under investigation.

On June 23, 2017, less than a month after Mueller’s appointment, Trump’s then-counsel, Marc Kasowitz, wrote to the special counsel expressing concern that Mueller was investigating the Comey firing as a potential obstruction of justice. Kasowitz argued that there was “no [c]onstitutionally permissible . . . view under which the President’s removal of Director Comey could constitute obstruction” because the president “has exclusive authority to direct that a matter be investigated, or that an investigation be closed without prosecution,or that the subject of an investigation or conviction be pardoned.” (emphasis added). In support of this proposition, he quoted Judge Kavanaugh’s dictum that “[t]he President may decline to prosecute or may pardon because of the President’s own constitutional concerns or because of policy objections to the law, among other reasons.” See In re Aiken County, 725 F.3d 255, 262-66 (D.C. Cir. 2013).

Kasowitz also argued that as a factual matter, the evidence did not support the proposition that Trump had attempted to obstruct justice by speaking to Comey about the Flynn investigation. Even if Comey was correct that Trump had expressed the “hope” that Comey would “let [the Flynn investigation] go” (something the White House denied), Kasowitz maintained this could not reasonably be construed as an attempt to obstruct. Moreover, he added in a footnote: “While some have made much of the fact that the President spoke to Director Comey privately about General Flynn, the President has made essentially identical public statements (including the day after meeting with Director Comey) that he thought General Flynn was a good guy who was being treated unfairly, hardly indicia of a secret, corrupt attempt to obstruct an investigation.”

A subsequent letter to Mueller (sent on January 29, 2018 by Trump’s then counsel John Dowd and Jay Sekulow) reiterates and elaborates on these positions. The January 29 letter specifically notes that “[i]t remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.” (emphasis in original).

While these letters do not state that Trump intends to pardon anyone in connection with the Russia investigation, neither do they disavow such intention or deny that the possibility is under consideration. They are reasonably read to suggest that it would be perfectly proper for Trump to grant such pardons “if he so desired.” More recently, Giuliani has publicly stated that Trump may issue pardons for those he decides were “treated unfairly” in the Russia investigation, and he expressed the view that “there is a lot of unfairness out there.” Giuliani, however, indicated that Trump would not issue such pardons until the investigation was complete.

Continue reading ‘Pardons, Self-Pardons and Impeachment (Part IV)’ »

Pardons, Self-Pardons and Impeachment (Part III)

The case against President Trump’s exercise of the pardon power to date may be summarized as follows. Trump’s statements and actions have demonstrated (1) a complete disinterest in the official pardon process; (2) a willingness to grant pardons based on a one-sided process in which no contrary information or view is solicited or considered; (3) the granting of pardons seemingly on the basis of partiality toward political allies and/or hostility toward prosecutors he deems to be adversaries; (4) repeated expressions of authority and/or inclination to grant pardons to individuals involved in investigations in which he is personally implicated, most particularly the inquiry by special counsel Robert Mueller into Russian activities in the 2016 election; and (5) open hostility toward the special counsel, DOJ and FBI with respect to such investigations, which further signals to witnesses and targets that he may use his pardon and other powers to stop inquiry and prevent detection of wrongdoing. In addition to the foregoing, which is largely based on the public record, there is evidence (albeit controverted) that Trump personally tried to shelter a former aide (General Michael Flynn) from investigation and that his legal team discussed possible pardons with lawyers for Flynn and former campaign manager Paul Manafort.

As I will explain in some detail, these facts are more than sufficient to justify the opening of an impeachment inquiry by the House of Representatives. Failure to do so is to invite further and more serious abuses of the pardon power in the future.

Today I will cover the president’s exercise of the pardon power to date.

The Perils of a One-Sided Process

The former pardon attorney, Margaret Colgate Love, has offered a qualified defense of President Trump’s pardons as a substantive matter, arguing that “[h]is grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law.” However, she notes that Trump appears to be ignoring entirely the official process for receiving pardon applications and recommendations from the Office of the Pardon Attorney in DOJ. Instead, “Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy.”

As noted in prior posts, there is no constitutional or legal obligation to follow the DOJ process, or any process at all. Moreover, some have argued that the official process has unwisely and inappropriately constricted the exercise of the pardon power. See Paul Rosenzweig, Reflections on the Atrophying Pardon Power, 102 J. Crim. L. & Criminology 593, 606 (2012) (“the advent of a pardon attorney has institutionalized the hostility of prosecutors to the exercise of the pardon power”).

Nevertheless, there are serious risks involved in circumventing the established process for considering clemency. It significantly increases the potential for favoritism and unfairness in the granting of pardons, as well as for public perception of the same. The last days of the Clinton administration, likened by one observer to a “Middle Eastern bazaar” of pardon lobbying by Clinton friends, family, and other well-connected individuals, are a good illustration of the problem. SeeAlbert W. Alschuler, Bill Clinton’s Parting Pardon Party, 100 J. Crim. L. & Criminology 1131, 1136 (2010). As former Clinton White House Counsel Beth Nolan testified, pardon requests “were coming from everywhere,” including from politicians and celebrities. See id. 

Viewed in the most charitable light, this deluge of pardon requests overwhelmed the system and prevented President Clinton from getting accurate information or objective advice about requests brought to him by various interested parties with access to the White House. See H.R. Rep. No. 107-454, vol. 3, at 3294-95 (2002) (Minority Views of Members of the House Comm. on Gov. Reform) (“Under these circumstances, and working against the clock, the White House and Justice Department officials responsible for assisting the President could not and did not conduct appropriate review of every petition.”). As a result, Clinton made a series of highly questionable grants of clemency in the final hours of his presidency, most notoriously the pardons of wealthy fugitives Marc Rich and Pincus Green. See id. at 3295 (“The Marc Rich pardon was .  . . the product of a rushed and one-sided process, and it reflected deeply flawed judgment by the President.”). Note that these are the views of Clinton’s political allies in Congress.

Viewed more skeptically, the one-sided nature of the Clinton pardon process was a feature, not a bug, designed to enable Clinton to grant clemency as favors to family members, political cronies and wealthy donors. See H.R. Rep. No. 107-454, vol. 1, at 28-29 (2002) (House Comm. on Gov. Reform) (“In his rush to grant pardons and commutations in the waning hours of his presidency, Bill Clinton ignored almost every applicable standard governing the exercise of the clemency power.”). This resulted in pardon grants that were at best motivated by blatant favoritism and at worst actually corrupt. See id. at 27 (noting that pardons of Rich and Green “raised substantial questions of direct corruption,” while other cases “involved indirect corruption, where close relatives of the President—namely Roger Clinton, Hugh Rodham, and Tony Rodham—apparently traded on their relationships with the President to lobby for pardons and commutations.”); see also Alschuler, 100 J. Crim. L & Criminology at 1137-60, 1168 (reviewing Clinton’s most controversial pardons).

In either event, the Clinton pardons illustrate the perils of granting clemency based on a one-sided process and/or without adequate (or any) deliberation. Trump’s reliance on “random, unofficial sources of information” (including celebrities like Kim Kardashian and Sylvester Stallone) poses similar risks.

These risks may be even greater because Trump has built his pardon “back door” so early in his presidency. Clinton and other presidents issued their most controversial pardons at the very end of their administrations. While this is bad from the standpoint of electoral accountability, it also limits the damage because, once out of office, the (former) president can issue no more pardons. If, on the other hand, potential pardon seekers believe the current president is willing to use his power to reward friends and allies, they have an incentive to seek his favor in the hope of receiving clemency. This is a particular issue for those who have reason to believe (as will be discussed later) the president may be willing to shelter them from justice.

Trump’s Controversial Pardons

Notwithstanding Love’s benign take, several of Trump’s pardons have been controversial on the merits. Here we must be careful because there are no constitutional standards for granting pardons, and therefore no pardon is “wrong” or improper as a constitutional matter. Criticism, however well-founded, of the merits of a particular pardon is in itself simply a political or policy disagreement, not a legitimate basis for impeachment.

Nonetheless, the merits of a pardon decision may still be relevant to whether there has been an impeachable abuse of the pardon power. A dramatic departure from traditional norms and standards, including the Justice Department’s criteria for evaluating pardon decisions, may suggest that a pardon was motivated by something other than the president’s sincere view of the merits. See generally H.R. Rep. 107-454, vol. 1, at 29-31 (describing DOJ standards for pardons). A pattern of questionable pardons given to friends or allies may suggest favoritism, corruption or some other improper motive. The granting of pardons without serious consideration of countervailing factors, such as their potential to undermine the administration of justice, may suggest recklessness and a breach of the duty to take care the laws be faithfully executed. Cf. id. at 35-37 (criticizing Clinton’s pardons as establishing “two standards of justice” and undermining “efforts of law enforcement officers everywhere”).

Of the five pardons and two commutations granted by President Trump to date, three stand out as problematic. The very first pardon, that of Joe Arpaio, was particularly controversial. Arpaio, an Arizona sheriff and close Trump ally, had been found guilty of contempt for defying a court order that prohibited him from arresting aliens not suspected of criminal activity. Trump pardoned Arpaio before the court had even imposed a sentence.

We put aside here policy and political disagreements over immigration and Arpaio’s treatment of and attitude toward immigrants. The Arpaio pardon is still troublesome for several reasons. First, contempt of court is a serious offense that impacts the functioning of an independent branch of government. Indeed, there was once a conflict of authority on whether criminal contempt could be pardoned at all, and in Ex Parte Grossman, 267 U.S. 87, 119 (1925), it was “urged that criminal contempts should not be held within the pardoning power because it will tend to destroy the independence of the judiciary, and violate the primary constitutional principle of a separation of the legislative, executive and judicial powers.” The Court, in an opinion by Chief Justice Taft, rejected that argument but noted that the hypothetical abuse of the pardon power to interfere with a court’s authority “would suggest a resort to impeachment.” Id. at 121.

Second, the Arpaio pardon was clearly inconsistent with Justice Department guidelines on making pardon recommendations. Among other things, those guidelines place a strong emphasis on acceptance of responsibility, remorse and post-conviction conduct evidencing rehabilitation. See H.R. Rep. No. 107-454, vol. 1, at 29. None of these was applicable in Arpaio’s case.

The guidelines also emphasize that for very serious offenses, such as those involving breach of public trust, “a suitable length of time should have elapsed in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction.” Id. Moreover, “[i]n the case of a prominent individual or notorious crime, the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account.” Id. All  of these factors counsel against the pardon, prior to sentencing, of a prominent public official who openly flouted court orders. As Andrew McCarthy, who is often sympathetic to the president, observed at the time, the pardon put “Trump in the position of endorsing Arpaio’s misconduct—a law officer’s arrogant defiance of lawful court orders, which themselves were issued as a result of judicial findings that Arpaio discriminated against Latinos in conducting unlawful arrests.”

Furthermore, the timing of the pardon was not only contrary to DOJ guidelines, it was unnecessary and imprudent because Arpaio had more than one avenue of judicial relief still available. Noting “[t]here was no sensible reason to pardon Arpaio at this time,” McCarthy criticized the “decidedly unpresidential impulsiveness of the pardon.”

Finally, it hardly seems controversial to note that Arpaio’s pardon was “for the benefit of a political crony” and was not even ostensibly based on an impartial consideration of the merits. If there is any evidence to suggest Trump considered arguments against the grant of the pardon, such as its effects on the administration of justice, I am not aware of it. There is every reason to believe that Trump’s process was as one-sided as Clinton’s, if not more so.

Of course, Trump is not the first president to pardon a political ally or supporter. It is instructive, however, to compare how President George W. Bush approached an analogous situation. Bush faced enormous pressure from his own vice president, Richard Cheney, to grant a pardon to Scooter Libby, Cheney’s former chief of staff. Libby (who ironically made a cameo appearance in the Clinton pardon saga as one of Marc Rich’s lawyers) had been convicted of perjury and obstruction of a special counsel’s investigation into alleged misconduct by the Bush administration in the aftermath of the 2003 invasion of Iraq.

Like Arpaio, Libby was convicted of an offense against the administration of justice in connection with an investigation that his defenders, who were also the president’s allies, viewed as politicized and unfair. Bush, however, declined to pardon Libby, accepting the advice of White House counsel that Libby “hadn’t met the criteria: accepting responsibility for the crime, doing time and demonstrating remorse.” As one participant in the process explained: “Pardons tend to be for the repentant, not for those who think the system was politicized or they were unfairly targeted.”

Bush did agree to commute Libby’s sentence, but the statement he issued carefully weighed both sides of the controversy. It did not excuse Libby’s conduct or endorse claims that he had been targeted for political reasons. Bush was careful to express respect for the special counsel, his investigation and the jury verdict in Libby’s trial.

Bush’s commutation decision contrasts not only with the Arpaio pardon, but with another controversial pardon granted by Trump: that of Libby himself. On April 13, 2018, Trump granted Libby a full pardon, saying in an official statement: “I don’t know Mr. Libby, but for years I have heard he has been treated unfairly.”

Trump’s reference to unfairness contrasts with Bush’s approach and certainly can be construed as an aspersion on the special counsel investigation at issue. It may not be entirely coincidental that the special counsel who prosecuted Libby was appointed by then-deputy attorney general James Comey. And, as in Arpaio’s case, there is reason to question whether Trump gave consideration to both sides of the issue, or whether he listened only to those who thought Libby had been treated “unfairly.”

Trump’s third controversial pardon presents similar problems. On May 31, 2018, he pardoned Dinesh D’Souza, a well-known conservative commentator and author, who had pleaded guilty to straw donor campaign finance violations in 2014. According to a White House press release, the president believed D’Souza to be “a victim of selective prosecution,” and Trump himself tweeted that D’Souza “was treated very unfairly by our government!”

D’Souza’s defenders (who include McCarthy) argue that his offenses were minor and ordinarily would be treated as a civil matter; they ascribe his prosecution by the prior administration as retaliation for his strident criticism of President Obama. Perhaps this is true, but anyone seeking to make a fair evaluation of that claim would need to hear the perspective of the prosecution as well. Compare H.R. Rep. No. 107-454, vol. 1, at 32 (Rich and Green “maintained that they were ‘singled out’ and unfairly prosecuted”) with id. at 104 (“The White House never consulted with the prosecutors in the Southern District of New York regarding the Rich case.”). In the absence of evidence President Trump consulted prosecutors or anyone other than D’Souza’s supporters, there is at least a prima facie case that this pardon was also motivated by favoritism and/or hostility toward prosecutors in the Obama administration, particularly the then-U.S. attorney for the Southern District of New York, Preet Bharara, now an outspoken Trump critic.

Taken together, these three pardons (Arpaio, Libby and D’Souza) suggest a one-sided process, blatant favoritism, and an “unpresidential impulsiveness” inconsistent with the president’s duty of care. (There is no reason to believe that Trump intends to change his practices in this regard; to the contrary, he has publicly mused about additional clemency actions for Martha Stewart and former Illinois governor Rod Blagojevich.) Those concerns would serious enough, but they are dramatically heightened when one considers the president’s posture toward the investigation of Russia’s efforts to interfere in the 2016 presidential election. I will turn to that subject in my next post.

Pardons, Self-Pardons and Impeachment (Part II)

Following on my last post, we will now turn to the pardon power generally and what role Congress plays in checking abuses of that power.

The Pardon Power and Congressional Oversight

The power to pardon is, as Maddie McMahon and Jack Goldsmith note in a recent Lawfare post, “among the broadest of presidential powers.” The Supreme Court has stated:

The power thus conferred [by the Pardon Clause] is unlimited, with the exception stated [i.e., impeachment]. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

Ex parte Garland, 71 U.S. 333, 380 (1866); see also Schick v. Reed, 419 U.S. 256, 266 (1974) (pardon power “flows from the Constitution alone, not from any legislative enactments, and  . . . cannot be modified, abridged, or diminished by the Congress.”); United States v. Klein, 80 U.S. 128, 147 (1871) (“To the executive alone is intrusted the power of pardon; and it is granted without limit.”).

Not surprisingly, executive branch lawyers have been particularly forceful in applying this view to a number of issues surrounding the president’s exercise of the pardon power, resulting in what McMahon and Goldsmith term an “extraordinarily broad” interpretation of that power.

For example, the executive branch recognizes no congressional oversight authority with respect to pardons, either generally or in specific cases. Citing the line of Supreme Court authority noted above, the Office of Legal Counsel has opined that “the pardon power is different from many other presidential powers in that it is textually committed exclusively to the President.” Whether the President May Have Access to Grand Jury Material in the Course of Exercising His Authority to Grand Pardons, 24 Op. Off. Legal Counsel 366, 368 (Dec. 22, 2000). Thus, in finding that Congress was not entitled to information regarding President Clinton’s exercise of the pardon power, Attorney General Janet Reno advised that “Congress’ oversight authority does not extend to the process employed in connection with a particular clemency decision, to the materials generated or the discussions that took place as part of that process, or to the advice or views the President received in connection with a clemency decision.” Assertion of Executive Privilege With Respect to Clemency Decision, 23 Op. Off. Legal Counsel 1, 3-4 (Sept. 16, 1999).

This position might strike some as extreme (it so struck me, as I was advising the House committee seeking this information). While no one disputed the president’s unreviewable power to make the clemency decisions in question, one still might conclude the Congress may inquire as to whether congressionally funded resources, such as the Office of the Pardon Attorney, were being properly or effectively used.

The executive’s position, however, flows from its view that the pardon power is not merely unreviewable; it is subject to no objective standards whatsoever. See 24 Op. Off. Legal Counsel at 370 (“it is important to keep in mind that the factors bearing on the President’s decision to exercise his pardon power, as an act of mercy, are subjective and undefined.”). As the pardon attorney wrote to a senator in 1952: “In the exercise of his pardoning power, the President is amenable only to the dictates of his own conscience, unhampered and uncontrolled by any person or branch of Government.” See id. at 370-71. Under this view, the pardon power is truly an example of “l’etat c’est moi;” while a pardon may be criticized as unjust or ill-advised, it can never be illegal or unconstitutional.

The Pardon Power Contrasted with Impeachment

It may be useful to contrast the pardon power with another power the Constitution vests exclusively in one branch of government: the impeachment power. It is generally accepted that Congress has the exclusive and nonreviewable power to impeach and remove the president, the vice president or any civil officer of the United States. See generally Nixon v. United States, 506 U.S. 224 (1993). Thus, for example, whether the Senate has conducted a constitutionally adequate trial within the meaning of the Impeachment Trial Clause is a nonjusticiable political question. Id. at 236-38.

The finality and non-justiciability of Congress’s impeachment determinations, along with the significant discretion it exercises in determining what constitutes “high crimes and misdemeanors,” occasioned then-Representative Gerald Ford’s famous and much-criticized remark that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office. . . .” Some argue that this is an accurate description of how impeachment works. See Michael J. Gerhardt,The Federal Impeachment Process: A Constitutional and Historical Analysis 103 (1996) (“Ford’s observation captures the practical reality of impeachment . . . .”).

As a normative and legal matter, however, Ford was clearly wrong. The Constitution establishes a standard for impeachment and removal (“Treason, Bribery, or other high Crimes and Misdemeanors”), which is textually incompatible, as Professor Rob Natelson has recently observed, with unlimited discretion. The framers specifically rejected a broader formulation, which would have included “maladministration,” precisely on the ground that it would confer too much discretion on Congress and amount to the president holding office “during the pleasure of the Senate,” as James Madison put it. See Charles L. Black, Jr., Impeachment: A Handbook 27-33 (1974).

Thus, while Congress’s impeachment judgments are final, they are not necessarily correct or even defensible. Unlike pardons, specific impeachment decisions can be criticized as legally wrong and unconstitutional. Ford’s observation is therefore perhaps best understood as a parallel to Justice Robert Jackson’s remark about the Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.” In matters of impeachment, Congress is “infallible” only because it is final.

In addition to the constitutional standard, there are significant structural safeguards that limit Congress’s discretion in impeachment matters. First, the initial decision to impeach must be made by the House of Representatives. Even if one believes (reasonably enough) that members “care more” about politics than law, building a solid prima facie case that the constitutional standards have been met is a practical necessity for developing a political consensus in favor of impeachment. Members know they will be accountable to their constituents for a vote to impeach. If impeachment is successful, moreover, the case moves to the Senate, where House managers act as prosecutors in an adversarial proceeding before that body. This creates a strong incentive not to bring cases that are factually or legally weak with regard to whether the accused has committed high crimes or misdemeanors.

As Professor Gerhardt points out, the Constitution provides a number of safeguards “to ensure that Congress will deliberate carefully prior to making any judgments in an impeachment proceeding.” Gerhardt, The Federal Impeachment Process 110. In addition to the House’s role, already noted, in a bifurcated process, these include that the Senate must (1) sit as a court of impeachment “on Oath or Affirmation;” (2) reach a judgment only after conducting a trial; and (3) convict only on the concurrence of two-thirds. The judicial nature of the proceedings is emphasized further when the president is on trial because the chief justice presides. These safeguards help ensure that impeachments do no occur for mere maladministration or policy/political differences. Id. at 111.

In contrast, the pardon power is exercised by a single individual, subject to no constitutional standard, and not required to follow any process at all to ensure careful deliberation. It is not subject to ordinary congressional oversight. There is thus only one constitutional check on the abuse of the pardon power. That check is impeachment.  Continue reading ‘Pardons, Self-Pardons and Impeachment (Part II)’ »

Pardons, Self-Pardons and Impeachment (Part I)

Let me digress from our discussion of legislative discontinuity to address a more topical issue: presidential self-pardons. The question whether the president may validly grant a pardon to himself has been sporadically discussed since the inception of the current administration, but the debate accelerated following President Trump’s issuance on June 4, 2018 of the following tweet:

As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!

Whether Trump in fact has the “absolute right” to pardon himself is not at all clear, but it is not a very important issue at this juncture. In fact, as I will explain over this series of posts, it is not a question that should be of much interest to Congress at all. What should matter to Congress is why the president is raising the possibility of a self-pardon, how this relates to his use (or abuse) of the pardon power to date, and whether his current or potential exercise of the pardon power constitutes a prima facie impeachable offense.

Before getting to that, however, let us consider what “numerous legal scholars” have actually said about presidential self-pardons.

The Constitutional Validity of the Self-Pardon

Contrary to the president’s tweet, there is no scholarly consensus on the validity of self-pardons. As Professor Brian Kalt has explained (well before the current administration):

Courts cannot overturn—or even review—an ill-advised pardon, but they can reject an invalid one. Self-pardons are on the margin. There is a good, simple argument that self-pardons are valid, and a worthy, more complicated argument that they are not. There is no consensus among lawyers or scholars sufficient to stop a president from pardoning himself, or to deter a prosecutor from challenging such a pardon. So the prosecutor would prosecute, the president (or ex-president by that point) would resist, and the courts would decide the issue.

Brian C. Kalt, Constitutional Cliffhangers: A Legal Guide for Presidents and their Enemies 41 (2012). Note that this issue will not and cannot be resolved unless and until some president attempts to pardon himself, and at that point it will be up to the courts, not Congress, to decide on the validity of the pardon.

Continue reading ‘Pardons, Self-Pardons and Impeachment (Part I)’ »

Constitutional Text and Discontinuity

So what does the Constitution say about discontinuity? Let’s start our analysis at what might seem like an odd place (strike that, what is an odd place), an email from the Clerk of the Australian Senate:

I have always thought that, as your Constitution has no prorogation or dissolution, and as both of your Houses are continuing bodies (notwithstanding that all of the House seats turn over at the same time), it makes little sense to speak of different congresses, sessions or terms, and the convention of bills dying at the end of a “term” also has no basis.

Email from Harry Evans, Clerk of the Senate, Parliament of Australia, to Seth Barrett Tillman (Nov. 4, 2004), reproduced in Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can the 110thSenate Enact a Bill Passed by the 109thHouse?, 16 Cornell J. L. & Pub. Pol’y 331 (2007).

I presume by “term” Mr. Evans was referring to the “term” of a congress, rather than to the terms of individual members of congress. The 20thamendment, after all, provides that “the terms of Senators and Representatives [shall end] at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.” This language is explicit in distinguishing a legislator’s term from that of his or her successor (or predecessor).

The original Constitution, on the other hand, says less about this subject:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

                   * * *

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one vote.

It is true, as Evans observes, that this language says nothing explicitly about “new” or “separate” congresses or congressional terms. It also says nothing about members of the House serving for terms of precisely two years (indeed, it does not expressly say they serve for limited terms at all). One might even draw a negative inference from the fact that senators are chosen “for six years,” but no statement is made that representatives are chosen “for two years.”

One could plausibly read this text as merely requiring that each state hold a congressional election sometime during each even-or odd-numbered year (absent congressional action pursuant to section 4 of Article I, the choice would be up to each state). Once the election were held, the newly elected member might assume a seat immediately, even if the House were in session. Alternatively, this might not occur until (1) the next convening or assembly of the House; (2) the next assembly or meeting of Congress: or (3) the first assembly or meeting of Congress in the next calendar year. The text does not tell us which of these alternatives is the correct one, or whether there is no single correct answer and it is up to somebody (Congress or the states, presumably) to decide as a policy matter.

Similarly, the text does not say when the terms of House members end. The Constitution does provide specifically that senate seats are vacated at two year intervals from the date of first assembly. Again, one mightdraw the inference that the absence of corresponding language for representatives is of some significance. Perhaps the seats of House members are vacated when their successors are elected (or sworn in) and thus will vary depending on the state election schedule. Perhaps the seats are vacated when the House adjourns sine diein the calendar year during which congressional elections are held (which might or might not be the same for all states). In short, it is not clear, based on the text of the (original) Constitution alone, when House seats turn over or if they in fact all turn over at the same time.

Nevertheless, from 1789 to 1932 (when the 20thamendment was proposed), the Constitution was uniformly interpreted to require all terms for House members to begin and end at the same time and to last for exactly two years. Although the beginning point was fixed not by a constitutional provision but by an act of ordinary legislation (one by the Confederation Congress), Congress believed that it lacked the constitutional power to alter this congressional schedule no matter how inconvenient or downright pernicious it was found to be. See generallyEdward J. Larson, The Constitutionality of Lame-Duck Lawmaking: The Text, History, and Original Meaning of the Twentieth Amendment, 2012 Utah L. Rev. 707, 715-17 (2012).

Specifically, in 1788 the Confederation Congress directed that the proceedings of the new government under the newly-ratified Constitution would commence on the first Wednesday of the following March. This date, which happened to be March 4, 1789, was thenceforth considered as the commencement date for the terms of all federal elected officials (president, vice president, senators and representatives), which terms would also expire on March 4 (of each odd-numbered year, in the case of representatives). This produced the odd result that congressional terms began on March 4 of each odd-numbered year, but the newly-elected congress did not ordinarily assemble until nine months later on the first Monday in December, which was the default date specified by the original Constitution for the annual meeting of Congress.

Another inconvenient result of this schedule was the so-called “short session” of Congress. When Congress assembled on the first Monday in December of an even-numbered year, its proceedings could last no longer than about three months, i.e.,until March 4 of the following year. At that time the terms of all House members and one-third of senators expired, and the incumbents no longer had any constitutional authority to hold their seats or perform legislative activities.

According to Evans, however, both houses of Congress, and therefore Congress itself, are continuing bodies. Professor Tillman agrees. SeeSeth Barrett Tillman, Defending the (Not So)  Indefensible, 16 Cornell J. L. & Pub. Pol’y 363, 368 n.22 (2007) (“I believe the House and the Senate are both continuing bodies.”). So, apparently, does Professor Prakash. See Saikrishna Bangalore Prakash, Of Synchronicity and Supreme Law35 (Jan. 2018) (“there is no [constitutional] rule that dictates that ‘Congress’ necessarily expires . . . [n]or does any text specify that, when terminated, an old Congress immediately segues into a new Congress”);id. at 36 (“one might conclude that while members come and go due to deaths, resignations, and expulsions, Congress itself never changes [and] there is (and always has been) but one, uninterrupted Congress, albeit composed of different members across time.”).

If Evans, Tillman and Prakash were correct that Congress is continuing in nature, the “short session” would not have posed much of a problem. Congress could have simply continued to sit past March 4, with two-thirds of the Senate and all re-elected incumbents unaffected, while the seats of retiring or defeated incumbents would be assumed by their newly-elected representatives. Thus, despite the expiration of congressional terms, the business of Congress could have continued without interruption. This would have been a regime of legislative continuity.

Congress, however, has never understood the Constitution to permit it to operate in such a fashion. From the very start, Congress has understood that each two-year congressional term constitutes a separate congress, with the First Congress occurring from March 4, 1789 to March 4, 1791, the Second Congress from March 4, 1791 to March 4, 1793, and so on. SeePrakash, supra, at 35. As a result, all legislative business had to be completed by March 4 of each odd-numbered year, when the “old Congress” expired. SeeS. Rep. 72-26Fixing the Commencement of the Terms of the President and Vice President and Members of Congress4 (72d Cong. 1stsess.) (Jan. 4, 1932) (explaining the “very undesirable legislative condition” resulting from the “so-called short session,” which “enables a few Members of Congress to arbitrarily prevent the passage of laws simply by the consumption of time”); Larson, supra, 2012 Utah L. Rev. at 715-34 (describing over a century of efforts to eliminate the short session).

It is true, as Professor Prakash emphasizes, that the Constitution does not explicitly declare that each congress expires or dissolves every two years or that there is a distinction between the current congress and past congresses. SeePrakash, supra, at 35. But if one recognizes that the temporal limitation of a legislative body was a fundamental practice not only of Parliament but of the colonial/state legislatures, it seems entirely reasonable to read the Constitution’s references to “Congress” as incorporating these concepts. For example, the declaration in Article I, section 1, that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives” may be interpreted as an implicit reference to the currentcongress, just as the “President” implicitly refers to the currentpresident. See generallyLawrence B. Solum, Surprising Originalism: The Regala Lecture11-12 (draft May 8, 2018) (discussing the importance of “impliciture” and other forms of “pragmatic enrichment” in reading constitutional text); cf.Tillman, Noncontemporaneous Lawmaking, 16 Cornell J. L. & Pub. Pol’y at 336 n.11 (conceding that the language of Art. I, §1 “might support contemporaneous action as an implicit requirement of bicameral action”).

Alternatively, one might conclude that the original Constitution is silent on the question of legislative discontinuity and that the practice of treating each two-year term as a separate congress is a “mere” constitutional gloss placed upon the text from 1789 to 1932. This position becomes much harder to take, however, when one considers the adoption of the 20thamendment in 1932-33.

Again, it is true, as Prakash takes pains to point out, that the 20thamendment never expressly “dictates that a ‘Congress’ commences on January 3 of an odd year at noon and terminates on the same day and time two years later.” Prakash, supra, at 35. It is indisputable, however, that this is precisely what everyone involved in proposing and ratifying the 20thamendment understood would be the effect of that amendment. This, moreover, was not an incidental effect but part of the amendment’s core purpose.

Part of the objective of the 20thamendment was simply to eliminate the short session, which was inconvenient and inefficient for the reasons already mentioned. The other objectives related to the importance of assembling a “new Congress” as soon as possible after it was elected and ensuring that it, rather than the “old Congress,” was making important decisions. SeeS. Rep. No. 72-26, at 4 (“No reason has been given why a new Congress elected at a general election to translate into law the wishes of the people should not be installed into office practically as soon as the results of the election can be determined.”).

As the House report accompanying the proposed amendment explains, “[u]nder our present system, the old Congress expires on the 4thday of March of the odd years, and the first meeting of the new Congress is on the first Monday of the following December.” H.R. Rep. No. 72-345, Proposing an Amendment to the Constitution of the United States3 (72d Cong. 1stsess.) (Feb. 2, 1932). The proposed amendment shifted this schedule so that the old Congress expired at noon on January 3 of each odd-numbered year, and the meeting of the new Congress (unless changed by law) would occur at the same date and time.

Supporters of the amendment argued that this revised schedule was not merely more efficient and convenient, but more consistent with the principles of representative democracy:

The only direct opportunity that the citizens of the country have to express their ideas and their wishes in regard to national legislation is the expression of their will through the election of their representatives at the general election in November. During the campaign that precedes this election the great questions demanding attention at the hands of the new Congress are discussed at length before the people and throughout the country, and it is only fair to presume that the Members of Congress chosen at that election fairly represent the ideas of a majority of the people of the country as to what legislation is desirable.

S. Rep. No. 72-26, at 3. These views mirror the arguments for legislative discontinuity discussed in my last post.

Professor Tillman argues that the idea of each congress expiring or dissolving was based on an inappropriate attempt to map British parliamentary practices onto a very different American legislative system. SeeTillman, Defending the (Not So) Indefensible, 16 Cornell J. L. & Pub. Pol’y at 368 n.22, 376 n.46, 377 n.50, 379 n.56. However, the framers of the 20thamendment were well familiar with a century and a half of legislative practice under the Constitution, and they did not see it the way Tillman does. They believed that the Constitution needed to be amended to bring American practice morein line with that of other countries with respect to the assembling of a new legislature. Representative Celler, for example, remarked: “In no country other than ours does 13 months elapse between election and convocation of parliament. The practice in Great Britain, Canada, Australia, and New Zealand has been to make the interval between elections and the summoning of parliaments as short as possible.” 75 Cong. Rec. 3828 (1932). Another member remarked:

Mr. Chairman, I was wondering, as Winston Churchill sat over in the rear of the House a few minutes ago, what his emotions would be if, in the Parliament of England, he and his colleagues sat around for 13 months after election before they took their seats for legislative work at the next regular session. There, the English people throw out an administration upon their own vote, returning the new Parliament that then comes in and legislates, while we wait 13 months unless called here in extra session.

Id.at 383 (Rep. Frear).

In short, the framers and ratifiers of the 20thamendment clearly understood that the amendment would establish noon on January 3 of each odd-numbered year as the time when an old congress would expire and a new congress would begin. To deny that the constitutional text has this effect would seem to be an exercise in “literalism” rather than “textualism.” See Solum, supra, at 11 (explaining the difference).

 

Legislative Discontinuity: An Introduction

Last month I had the pleasure of participating in the International Conference on Legislation and Law Reform, which was held at AU’s Washington College of Law. During one of the plenary sessions on U.S. legislative drafting, a Dutch lawyer asked about the practice of “discontinuity” in Congress. I am not sure the panelists understood what this term meant (I know I didn’t), but the lawyer elaborated that he was asking whether legislation had to pass within a certain period of time. The panelists then explained that bills must pass both houses within the two-year congressional term and that all unfinished legislative business dies at the end of each congress.

This practice is known, at least internationally, as one of “discontinuity” because legislative business does not continue past the expiration or dissolution of the legislature. I asked the Dutch lawyer later whether there are legislatures which follow the opposite practice of allowing legislation to continue even though a new legislature has been elected. He said there are, including the Netherlands and the EU Parliament. In these jurisdictions bills can remain “live” for years or even decades after they are introduced. In some cases, the original sponsor of the measure is no longer in the legislature so there is no one who can formally withdraw it.

There apparently is not a lot of literature on discontinuity, but one recent article discusses it in some depth. SeeRivka Weill, The Living-Dead, 38 Fordham Intl L. J. 387 (2015). Professor Weill explains that legislative discontinuity is “the prevailing norm in both presidential and parliamentary systems.” Id.at 389. There are, however, exceptions, including the Netherlands and the EU Parliament (so that checks out). Id.Another exception is Israel, and Weill (who is Israeli) focuses on the decision of the Knesset to adopt a rule of continuity in the 1960s.

She describes two different schools of thought within the Knesset. The pro-continuity side saw the Knesset as a continuing body. Id.at 447. This position, according to Weill, rested on a conception of the legislature as having “perpetuity and continuity similar to an artificial body, like a corporation.” Id. at 448. Under this vision, the continuity of the legislature is maintained by the passage of sovereignty from one assembly to another, just as in a monarchy the sovereignty of the King’s person passes in death to the natural body of his heir. Id.

The discontinuity side, on the other hand, believed that “each parliament is born anew.” Id.at 447. Weill argues that this conception is fundamental to representative government and that the failure to follow it “severs the link between legislative cycles and election cycles, and thus eviscerates the significance of elections.” Id.at 413. By contrast, the pro-continuity argument is mistaken because in Israel and other liberal democracies “the continuity of sovereignty rests with the people, not with their representatives.” Id. at 448. Thus, popular sovereignty “is manifested in the real power of constituents to influence the content of laws by breaking the legislative continuity and electing new representatives.” Id.

Weill also contends that as a matter of actual practice, the Knesset has not regarded itself as a continuing body. Moreover, even in the U.S. Senate, which does consider itself to be a continuing body, “the principle of discontinuity of the legislative process applies, as bills that do not become law within two years are dead.” Id.at 449.

One of the interesting aspects of this Israeli debate related to the discussion of British parliamentary practice. See id.at 404-06, 409-10. Weill explains that Great Britain was viewed as the symbol of discontinuity and that both supporters and opponents of the continuity proposal used its example in their arguments. Id.

Here, some background on British practice may be useful.

 

Discontinuity in Britain

Historically, discontinuity in Britain stems from the crown’s prerogative powers of summoning, proroguing and dissolving parliament. Once a parliament was summoned, the king could either use prorogation to end its session or dissolution to end the parliament altogether:

The Tudor and Stuart monarchs summoned parliaments not merely to request tax revenue, but also to enact policies. They also relied on prorogation to prolong the life of a favourable rather than risk dissolving it and summoning a new, potentially less pliable parliament. For example, Henry VIII used prorogation to extend the life of the Reformation Parliament to seven years; it sat through seven sessions between 1529 and 1536 and passed a variety of statutes that broke with the Holy See and established England as an independent Protestant kingdom. Charles II used prorogation to prolong the life of the Cavalier Parliament and its Royalist majority from 1661 to 1679. The Stuarts also expressed their hostility toward what they regarded as parliamentary encroachment on Divine Right by dissolving pesky parliaments. The Sovereign thus determined at his own discretion both the duration of each individual parliament through prorogation and the number of years between parliaments through dissolution.

James W. J. Bowden, Reining in the Crown’s Power on Dissolution: The Fixed-Term Parliaments Act of the United Kingdom versus The Fixed-Election Laws in Canada19 (June 4, 2013). Either prorogation (end of a session) or dissolution (end of a parliament) resulted in the death of pending legislative business. See 1 William Blackstone, Commentaries on the Laws of England186-88 (1765).

As Parliament grew stronger, these royal prerogatives were to a large extent limited by statute and practice. Bowden, supra, at 19-22. Eighteenth century parliaments had a statutory maximum life of seven years and the dissolution of one parliament was routinely followed by the summoning of a new parliament and accompanying elections for the House of Commons.See1 Blackstone, at 177-78, 189.

Even today, the queen formally exercises the powers of prorogation and dissolution, though in practice she does not exercise her own discretion but acts on the advice of the prime minister. SeeWilliam McKay & Charles W. Johnson, Parliament & Congress: Representation & Scrutiny in the Twenty-First Century33, 123 (2010). A new parliament is summoned by the crown and the parliament ends when It is dissolved by royal proclamation or (less commonly) by the passage of time. Id. Parliament continues to follow a rule of both legislative and sessional discontinuity (or, as it is sometimes called, “sessional cut-off”). However, sessional discontinuity is no longer absolute as some legislation can carry over from session to session. Id. at 465-66; Weill, 38 Fordham Intl L. J. at 404 n.74, 409-10.

Continue reading ‘Legislative Discontinuity: An Introduction’ »

Emoluments Trouble for Congress

As expected, Judge Messitte has issued an opinion finding that plaintiffs have standing to pursue their claims against President Trump for alleged violations of the Foreign and Domestic Emoluments Clauses in D.C. v. Trump, a case brought by the D.C. and Maryland governments in the U.S. district court in Maryland. Although I think this decision is mostly wrong, it may not matter much. The court is likely to fulfill the plaintiffs’ legal/political objectives before an appellate court has a chance to opine on the matter.

I will not bore you with the mind-numbing details of the standing analysis. The flavor of the court’s decision can be found on page 29, where it states “[i]t can hardly be gainsaid that a large number of Maryland and District of Columbia residents are being affected and will continue to be affected when foreign and state governments choose to stay, host events, or dine at the [Trump Hotel in DC] rather than at comparable Maryland or District of Columbia establishments, in whole or in substantial part simply because of the President’s association with it.”

Well, actually it can be gainsaid, and I hereby gainsay it. First, while the court cites anecdotal evidence that foreign governments (and, in one case, a state government) have frequented the Trump Hotel to curry favor with the president, this is not proof that the Trump Hotel is gaining a net advantage over its competitors because of its association with Trump. Are the Four Seasons and the Ritz Carlton (literally, the alleged “victims” being represented here) suffering an increase in room vacancies, a decline in revenue, or any other indicia of unfair competition? Undoubtedly some people are staying at the Trump because they like the president, and others are staying elsewhere because they feel differently. If the polls are to be believed, the Four Seasons should be a net winner.

Second, if the alleged injury is caused merely by the “association” between the president and the hotel, this would not be redressable by an order from the court requiring the president to divest his financial interest in the hotel. The court cursorily addresses this by saying that such an order would reduce the incentive to stay at the Trump Hotel “by some extent.” Op. at 37. This strikes me as sheer speculation (or, more accurately, speculation upon speculation).

Finally, and most importantly, I still do not see how the alleged competitive injuries are within the zone of interest protected by the emoluments clauses. The court’s conclusory assertion that competitors are within the zone of interests because the “the Emoluments Clauses clearly were and are meant to protect all Americans” is utterly unpersuasive. See op. at 41.

The opinion is closer to the mark when it discusses the Domestic Emoluments Clause. It points to the fact that Maine Governor LePage stayed at the Trump Hotel “on an official visit to Washington during the spring of 2017, met with the President, and not long after appeared with the President at a news conference” in which the latter signed an executive order that could help LePage reverse an Obama administration decision regarding a national monument in Maine. Op. at 18. Judge Messitte asserts that this “rather clearly suggests that Maryland and the District of Columbia may very well feel themselves obliged, i.e., coerced, to patronize the Hotel in order to help them obtain federal favors.” Op. at 19.

As a technical question of standing, it seems to me that if Governor LePage’s staying at the Trump Hotel constituted a violation of the Domestic Emoluments Clause (which presumably the court should assume for purposes of the analysis), there is a reasonable argument that Maryland (not DC, which is still not a state) has standing to sue as an injured party. The theory would be that the clause prohibits states from providing emoluments to the president so as to avoid any favoritism on his part with respect to one or more states. Arguably, therefore, a state should be able to sue to prevent the president from accepting a prohibited emolument from another state. See op. at 15 (plaintiffs claim standing “to protect their ‘position among . . . sister States’”) (citations omitted).

On the other hand, the court’s opinion seems to go well beyond this. It posits a causal connection between LePage’s stay at the Trump Hotel and the president’s signing of a favorable executive order. It seems rather unlikely that whatever tangential financial benefit Trump received from the governor’s stay at his hotel was actually the motivating factor for the executive order. But if this connection is part of the basis for the plaintiffs’ standing, is the court going to require them to prove it? Or is this something the court is just going to assume?

The court also cites reports that the Trump Organization has “been accorded substantial tax concessions by at least the District of Columbia and the State of Mississippi.” Op. at 17. The court goes on to say “while ordinarily there may be a presumption of regularity as far as the decisions of the tax authorities are concerned, the fact remains that Trump Organization hotels, from which the President allegedly derives substantial illegal profits, have been the beneficiaries of these actions.” Id. If I read this right, the court is holding that D.C. has standing in part based on the assumption that an agency of D.C. acted illegally.

Regardless, it is pretty clear from the court’s opinion that it has a decidedly jaundiced view of Trump’s business interests. At points it appears to have already decided the merits. See, e.g., op. at 24-25 (“Plaintiffs have alleged sufficient facts to show that the President’s ownership interest in the Hotel has had and almost certainly will continue to have an unlawful effect on competition . . .”). It cannot even resist taking an entirely inappropriate political shot at a party not even before the court, referring to “how Maine’s citizens may have felt about the propriety of their Governor living large at the Hotel while on official business in Washington . . .” Op. at 18-19. I personally think governors should stay at the Hilton Garden Inn when traveling, but this really doesn’t belong in a legal opinion. (Not to mention, “living large”?)

In short, if I were Trump’s lawyers, I would not be looking forward to the decision on the merits in this case.

None of this is to suggest that the court’s concerns are groundless from a public policy and, potentially, a constitutional perspective. The (alleged) fact that foreign governments are booking rooms at the Trump Hotel in order to win the president’s favor is unseemly at best. See op. at 4-5. While this alone would not constitute a violation of the Foreign Emoluments Clause, suppose it turned out that the Kingdom of Saudi Arabia, for example, had booked a couple floors of the hotel and had placed a standing order for the most expensive room service meals to be delivered three times a day to each room? Just a hypothetical, of course, but without any independent oversight of the president’s business arrangements, it is hardly beyond the realm of possibility.

Which brings us to Congress. It is not unreasonable to think that had Congress shown even a modicum of interest in overseeing Trump’s business dealings and the arrangements (allegedly) made to prevent conflicts of interest, this case would not be moving forward. For example, the court notes that although the president claims “he has now paid to the U.S. Treasury the profits the Hotel has received from foreign governments,” there is no detail to substantiate this claim. Op. at 4 n.5. This is the type of information that congressional oversight committees should have demanded and obtained.

Judge Messitte leaves little doubt that he intends to fill the vacuum that Congress has left. See op. at 42 (noting that under president’s standing theory “no one—except Congress which . . . may never undertake to act—would ever be able to enforce these constitutional provisions.”). In a pointed footnote, he notes that “[s]uppose” Congress is controlled by the same party as the president and it “never undertakes to approve or disapprove” the president’s receipt of emoluments; the president could receive “unlimited” emoluments “without the least oversight and with absolute impunity.” Op. at 46 n.18. It hardly needs saying that this is exactly what the judge believes has happened.

The district court’s ultimate decision will undoubtedly render a harsh verdict on Trump’s conduct and probably entail serious (though perhaps temporary) legal consequences for the president. But the real institutional loser will be Congress, which once again will see its constitutional functions usurped by another branch.

In this case, at least, it has no one to blame but itself.

 

 

HPSCI Doesn’t Need Don McGahn’s Permission to Release Schiff Memo

We discussed a couple weeks ago the process by which the House Permanent Select Committee on Intelligence (HPSCI) may publicly release classified information. Pursuant to House Rule X(11)(g)(2)(A), HPSCI had voted on January 29 to release the so-called “Nunes Memo.” This vote authorized the committee to release the memo

after the expiration of a five-day period following the day on which notice of the vote to disclose is transmitted to the President unless, before the expiration of the five-day period, the President, personally in writing, notifies the select committee that he objects to the disclosure of such information, provides his reasons therefor, and certifies that the threat to the national interest of the United States posed by the disclosure is of such gravity that it outweighs any public interest in the disclosure.

House Rule X(11)(g)(2)(B).

On February 2, President Trump declassified the Nunes Memo in response to HPSCI’s action. Although HPSCI’s January 29 vote was not a request to declassify the memo, there is nothing inherently wrong with declassifying the memo prior to the expiration of the five-day period, thereby allowing the committee to release the document earlier. However, there was no requirement that the president declassify the document. Once the five days expired without an objection satisfying the requirements of the rule, the committee was free to release the memo regardless of whether it had been declassified.

It appears, however, that the declassification of the Nunes Memo was something other than the executive branch’s attempt to be helpful. On February 5, HPSCI again voted to invoke the disclosure rule, this time with regard to the rebuttal memorandum prepared by the Democratic minority (the “Schiff Memo”). In response the president has neither declassified the memo nor objected in accordance with the rule.

Instead, by letter to HPSCI dated February 9, White House counsel Don McGahn explained that because “the public release of classified information by unilateral action of the Legislative Branch is extremely rare and raises serious separation of powers concerns, as the Constitution vests the President with the authority to control access to sensitive national security information . . . we are once again treating the Committee’s action as a request for declassification pursuant to the President’s constitutional authority.”  Moreover, although the president “is inclined” to declassify the Schiff Memo, he is “unable to do so at this time” because the memo “contains numerous properly classified and especially sensitive passages.” According to McGahn, President Trump “encourages” HPSCI to work with the Department of Justice to revise the Schiff Memo “to mitigate the risks identified by the Department,” and the “Executive Branch stands ready to review any subsequent draft” of the memo “for declassification at the earliest time.”

There is only one problem with this cooperative sounding letter. The House rule does not require any declassification decisions by the president or anyone else.  What it does require is an objection and specific certification by the president “personally and in writing.” These requirements are not satisfied by McGahn’s letter because McGahn is not the president and his letter does not contain the required certification.

McGahn’s position is that the executive branch will treat the HPSCI vote as if it were a request for declassification because otherwise HPSCI’s action would raise “serious separation of powers concerns.” This is a hitherto unknown means of constitutional avoidance. There was no ambiguity in HPSCI’s action and McGahn cannot pretend it did not happen because he thinks it might raise constitutional issues. It should be noted, moreover, that the executive branch has never before questioned the constitutionality of the House and Senate disclosure rules. McGahn’s only basis for doing so now is a single jump cite to Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988), a case which involved the executive branch’s authority to deny security clearance to its own employees.

HPSCI apparently wishes to work with the Department of Justice to ensure that nothing in the Schiff Memo jeopardizes national security. This is appropriate and reasonable. However, it is essential to protect its constitutional prerogatives that HPSCI make it clear it in no way accepts McGahn’s position with regard to the House rule. Once the five-day period expires, the executive branch has no standing to raise objections and HPSCI has no legal obligation to get permission from McGahn or anyone else before releasing the memo. Any redactions or other modifications that the committee wishes to make for national security reasons are entirely within its own discretion.

Standing Silliness in DC v. Trump

Last week I attended a part of the argument in DC v. Trump, one of three Emoluments Clause cases pending against President Trump. This case was brought by the governments of Maryland and the District of Columbia. It is being heard by Judge Messitte of the United States District Court for the District of Maryland, who sits in Greenbelt, Maryland. The argument, which began around 10 am and was wrapping up when I left at 3pm, was focused solely on whether the plaintiffs had standing to bring the case. This is a lot of time to spend on standing, and a good deal of the argument got down into the weeds of the various components of standing (injury in fact, traceability, redressability, etc.).

The most important takeaway is that Judge Messitte is clearly not inclined to follow the lead of Judge Daniels in CREW v. Trump and dismiss the case for lack of standing, at least not at this stage. The judge at one point became so impatient with hearing about the CREW v. Trump opinion that he told defendant’s counsel “don’t cite Judge Daniels to me.”

Judge Messitte seemed to be starting from the presumption that if the Foreign and/or Domestic Emoluments Clauses were being violated (a question on which he did not, from what I heard, express an opinion), somebody ought to be able to go to court to complain about it. Since no one else had any better standing to sue than these plaintiffs, he might as well let them go forward. The court evidently viewed the question of standing to be a legal technicality or fiction, one that he was happy to help the plaintiffs figure a way around.

Certainly anyone listening to the argument would come away with the impression that standing doctrine is rather ridiculous. A good deal of the discussion focused on the claims of Maryland and DC that the Trump Hotel in DC had caused economic injury to various competitor hotels and restaurants in the surrounding area due to the Trump Hotel’s alleged advantages in securing business from state and foreign governments. This led to Judge Messitte asking whether the MGM Hotel in National Harbor (one of the properties where Maryland claimed to have an economic interest) would actually lose gambling revenue from the Trump Hotel given that the latter has no casino. And defendant’s counsel kept harping on the fact that the plaintiffs had provided anecdotal evidence of competitive injury only to the Ritz and the Four Seasons, which were not (at least according to him) among the competitors for which the plaintiffs could assert a derivative economic interest.

While I admit to not being an expert on standing or having read all of the cases discussed in the argument, this whole line of inquiry strikes me as rather silly. I assume that if one looked hard enough one could find some people who stayed or ate at the Trump Hotel, rather than a competitor, for reasons having to do with the fact that the former is associated with the president. It seems rather unlikely, however, that one could show that any competitor suffered a net economic injury in light of the fact that some people also undoubtedly chose not to frequent Trump’s hotel (or restaurants) for precisely the same reason. And even if an injury could be shown, it is hard to see it results from the fact that Trump has an ownership interest in the hotel, as opposed to the fact that his name is on it.

Far more importantly, any competitive injury suffered by other hotels and restaurants has nothing to do with the purposes of the Emoluments Clauses and is therefore not within the zone of interests protected by these provisions. To give an analogy, my wife loves the original BLT restaurant and would undoubtedly be interested in dining at the new BLT Prime in the Trump Hotel. By the logic of plaintiffs’ theory, I should be able to sue President Trump on the grounds that if his establishment were not as busy with foreign and state government visitors trying to curry his favor, it would be easier for me to get a dinner reservation. I assume that this argument would be laughed out of court, but I fail to see how it is any different than plaintiffs’ “competitive injury” theory.

Of the standing cases I heard discussed, the most relevant seems to me to be Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974), a case in which the plaintiffs alleged that the Incompatibility Clause was violated by the fact that more than 100 members of Congress were in the reserves during the Vietnam War. Their alleged injury stemmed from the fact that this violation made Congress less independent of the executive branch and therefore more likely to support the war, thereby injuring plaintiffs as citizens and taxpayers opposed to the war. The district court accepted this theory of standing, finding the Incompatibility Clause to be a “precise and self-operative” provision designed to prevent the very type of harm asserted.

The Supreme Court, however, rejected the district court’s view of standing:

Furthermore, to have reached the conclusion that respondents’ interests as citizens were meant to be protected by the Incompatibility Clause because the primary purpose of the Clause was to insure independence of each of the branches of the Federal Government, similarly involved an appraisal of the merits before the issue of standing was resolved. All citizens, of course, share equally an interest in the independence of each branch of Government. In some fashion, every provision of the Constitution was meant to serve the interests of all. Such a generalized interest, however, is too abstract to constitute a “case or controversy” appropriate for judicial resolution. The proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions has no boundaries.

Closely linked to the idea that generalized citizen interest is a sufficient basis for standing was the District Court’s observation that it was not irrelevant that if respondents could not obtain judicial review of petitioners’ action, “then as a practical matter no one can.” Our system of government leaves many crucial decisions to the political processes. The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.

Id. at 227-28.

The Emoluments Clauses, like the Incompatibility Clause, are “precise and self-operative” structural provisions designed to protect the independence of one branch of the federal government. This is an interest in which all citizens share equally, and therefore is too generalized a grievance to support standing. If this means that no one would have standing to sue (which, as I will discuss in a moment, it may not), that is not sufficient reason to find standing.

Of course, Schlesinger is not on all fours with DC v. Trump because the plaintiffs in Schlesinger asserted their actual grievance, rather than an interest trumped up (sorry) solely for purposes of the litigation. It is obvious that neither Maryland or DC has any actual interest in the “competitive injury” that the Trump Hotel allegedly inflicts. It is as if the Schlesinger plaintiffs, instead of asserting their actual grievance, had claimed injury by virtue of the fact they might lose out to a member of Congress for a coveted slot or promotion in the reserves. Such a move would not have worked, and should not work now, because the alleged grievance is not anywhere in the vicinity of the zone of interests protected by the constitutional provisions at issue.

I will say, however, that there was a part of the plaintiffs’ standing in DC v. Trump position that was at least somewhat persuasive. They made a strong argument, based on in large measure on Federalist No. 73, that the Domestic Emoluments Clause (which prohibits the president from receiving additional emoluments from the United States or any individual state) is designed in part to ensure that all states are treated equally. Thus, if one or more states were providing emoluments to the president, there is an argument that the other states suffer a cognizable injury distinct from the injury suffered by the public at large. Accordingly, there is a plausible basis for Maryland (not DC, which seems to keep forgetting that it is not a state) to assert standing with respect to the Domestic Emoluments Clause only.

Unfortunately, it seems likely that Judge Messitte will allow Maryland and DC to proceed on both the Foreign and Domestic Emoluments Clause claims. As there is no plausible standing theory on the former claim, and because Congress at any rate should be the arbiter of Foreign Emoluments Clause violations, it remains essential that Congress bestir itself to take action on this front.

Marking Time on the Nunes Memo (with update)

In the past few days a lot of people (relatively speaking) have been reading this post (“Congressional Release of Classified Information and the Speech or Debate Clause”), which discusses the process by which the House and Senate intelligence committees may release classified information to the public. This spike in interest, I presume, relates to the vote yesterday of the House Permanent Select Committee on Intelligence (HPSCI) to release the “Nunes memo,” which details alleged abuses of the FISA process during the investigation of Russia’s involvement in the 2016 elections.

My prior posts on this subject have focused on the Senate (mostly in connection with the release of the “torture memo”, see here, here, here and here), but the House procedure is basically the same as that of the Senate, except that there is no requirement that HPSCI consult with or notify the chamber’s leadership. Thus, as provided by House Rule X(11)(g)(2)(B), HPSCI “may disclose publicly” the Nunes memo “after the expiration of a five-day period following the day on which notice of the vote to disclose is transmitted to the President,” unless in the interim the president objects in the manner specified by the rule.

As far as I can tell, the memo was not transmitted to the White House yesterday, so lets assume it will be transmitted today (note there is no requirement that HPSCI transmit the memo within a specified period of time). When will the five day period expire? If one counted every calendar day, it would expire at midnight on Sunday, February 4, and the memo could be released as early as Monday, February 5. Traditionally, however, the House considers Sunday to be a “dies non” so it will almost certainly not count for the computation. I am less clear on whether Saturday would be counted. Often House rules provide that Saturdays and legal holidays (as well as Sundays) are not counted for purposes of computing days, but there is no such express provision in the rule governing HPSCI’s release of information. So I am not sure whether the Parliamentarians will count Saturday or not. Depending on the answer, the memo would be releasable on Tuesday or Wednesday, unless an objection is received from the president.

What happens if the five days expire with no objection? The rule says that HPSCI “may” disclose the information at that point. It does not say that it must do so. But who decides whether the memo will actually be released? The rule says the information may be released by the “select committee.” It could therefore be argued that an individual member still cannot release the memo until HPSCI itself takes some further action. This might be interpreted to require that the committee take another vote, but since the rule elsewhere specifies other votes the committee must take, it seems likely that no formal vote is required. The Parliamentarians may rule that the chair can release the memo on behalf of the committee, but no one else may do so without the permission of the chair or another vote of the committee.

What if the White House asks for more time to evaluate the memo? Nothing in the rule expressly allows for the five day period to be extended. If the chair controls the release, he can agree to delay until the White House has an opportunity to respond. But once the five days expire, it would appear that the memo is releasable, even if it is not actually released. Any objection received after the expiration of the five days is (at least arguably) ineffective. Thus, if any faction of HPSCI (or the House) wanted the memo released, they could argue that the president’s objections were invalid under the rule.

[update: the above assumes that the transmission of the memo and "notice of the vote to disclose" occur simultaneously. This makes a certain amount of sense since it would be pointless to transmit the notice of the vote without informing the president of what is to be disclosed, given that the purpose of the five day period is for the president to decide whether to object to disclosure. But it is possible that HPSCI could transmit the memo to the president without a formal notice of the vote to disclose, thereby delaying the commencement of the five day period. So this represents another uncertainty as to when exactly the memo can/will be released publicly.]