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Why I Snipe

In my last post, I (briefly) laid out reasons why Congress should intervene in the ongoing litigation regarding the Foreign Emoluments Clause. Professor Tillman has offered a comment to that post, which he has shared by email and on the blog. His comment is set forth in full below, along with my response.

Before getting to that, though, there was one other point which I should have mentioned. As we have discussed, pending before the House Ethics Committee is a case which presents two of the major issues that could be decided by the courts if they reach the merits in the FEC litigation: (1) who is covered by the Clause; and (2) do fair market value transactions with foreign governments constitute “emoluments” within the meaning of the Clause. This provides an additional reason why Congress should insist on its own primacy in deciding questions related to the FEC. Not only would judicial pronouncements on the merits of these questions interfere with Congress’s authority vis a vis the other branches, but also with the authority of the House and Senate to discipline their own members.

Now to Tillman’s comment:

Litigation in general has rules. And the three Foreign Emoluments Clause cases have scheduling orders imposed by the court (in the SDNY, District of DC, and District of Maryland), and/or by the Federal Rules of Civil Procedure. Any amicus brief along the lines you suggest would, in effect, support the President. But the time for filing ab amicus brief in support of the President — in all 3 actions — elapsed some time before your post went live (on October 26, 2017).

It is too late for the House and Senate (or Congress as a whole) to follow your advice. Yes, they could file late, but such a late filing would require justification. What is that justification? Why did you not present your advice in a more timely fashion?

In lieu of a brief, you could take the time to write a full-length paper and post it on SSRN as a prelude to publication in a journal. Or you could snipe from the wings against those who actually attempt to do something consistent with the practical requirements of actual litigation.

It is up to you.

Here is my response.

Why do I snipe (or why didn’t I snipe earlier)? Tillman asks why I “snipe from the wings” rather than writing a full-length article or brief detailing my own views on the pertinent legal issues. But this misapprehends the nature of my concern. I am not urging Congress to act to ensure that the courts have the benefit of my brilliant legal scholarship. I want Congress to recognize that its own institutional interests are at stake and to take action to protect those interests. Sure, I have suggested some legal arguments that Congress may wish to make, but Congress has its own counsel that are more than capable of deciding on and developing those arguments.

To the extent that I have contributed any original thinking on the FEC, it relates solely to the question of whether the president is covered by the Clause. But this is distinct from the question of who should decide whether the president is covered. To be sure, I think it is important that Congress understand not only the (overwhelming, IMHO) legal arguments in favor of the president being covered, but also the radical implications of a contrary decision. For example, it would mean that the president and vice-president could hold seats in Congress, and that an impeached and convicted president (or vice-president) could not be disqualified from holding that office again. But while the substantive outcome of this issue is very important, it is equally if not more important that Congress, not the courts, should be making it.

As for why I did not post my thoughts on this earlier, I am sure the readers are not interested in my personal time management. As it happens, I don’t think it would have made any difference if I had posted earlier (granting, purely for the sake of discussion, that Congress is eagerly awaiting my advice on these things), for reasons I discuss below. But I will certainly endeavor to be quicker on the trigger in the future. Nobody likes a slow sniper.

What is the point of my giving this advice to Congress? This is a question that Tillman did not ask (at least explicitly), but should have. What makes me think that Congress has the slightest interest in what I have to say or would even be aware that I said it? And, as several people have commented to me, what makes me think that Congress even has any interest in vindicating its own institutional interests?

I am under no illusion that “Congress” as a whole reads my blog or that the House and Senate chambers are echoing with the sounds of members excitedly discussing my proposal. I do know that my blog is read by some of the relatively small cadre of folks on the Hill who care about institutional prerogatives and have the capacity and band-width to consider these types of “over the horizon” issues. The most that can be realistically hoped is that my post will trigger some thinking and discussion about this matter.

As a general matter, there reasons to question Congress’s commitment to protecting its own institutional interests. Individual members may care (or at least say they care) about vindicating those interests, but Congress as a whole is certainly far less consistent in protecting its institutional prerogatives than is the executive. These is partly a result of structural incentives inherent in a multi-member, bi-cameral body, but is also partly historically contingent. In my (tentative) opinion, the prediction that Congress would become more assertive in its dealings with the other branches (particularly the executive) in the unique circumstances of the current administration is in fact being borne out, but it is very much a work in progress. So my post may represent a triumph of hope over experience, but I don’t think it is entirely futile.

Is it too late for Congress to act on my advice? So I am generally familiar with the fact that litigation has rules and, while I did not look at the scheduling orders in the three district court cases, I recognized when I wrote my post that it was likely that the deadlines for filing amicus briefs in those cases had well passed. As a purely theoretical matter, Congress might still be able to file amicus briefs in those cases if it wished to do so. There is a statute, for example, giving Senate Legal Counsel greater leniency in filing amicus briefs than the ordinary litigant. See 2 U.S.C. § 288l(a). (I understand there is currently a legislative effort to give the House Counsel some of the same authorities, although I do not know whether this specific provision is one of those being considered).

As a practical matter, however, there was never any realistic chance that Congress was going to file an amicus brief at the district court level. There is simply too much that would need to happen before either house is going to authorize the filing of an amicus brief in these cases (particularly given their politically fraught nature). My hope (and it is no more than that) is that Congress starts the process of developing a legal position so that the House and/or the Senate could appear as amicus before the courts of appeals or the Supreme Court.

Finally, I would note that my proposal was not limited to formal appearance in court. There are a number of things that Congress could do (such as holding hearings) that would advance its institutional interests and make it less likely that the courts will think that Congress has simply abandoned its constitutional responsibilities for implementing the FEC.

So it is definitely not too late for Congress to act. The clock, however, is ticking.

 

 

Why Congress Must Intervene in the Foreign Emoluments Litigation

Professor Josh Blackman has a very informative summary of the oral argument before U.S. District Judge George Daniels in CREW v. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y.), one of the three federal cases in which President Trump is being sued for (allegedly) violating the Foreign Emoluments Clause. If you are following these cases, you should read the whole thing.

Of particular interest is the government’s “evolving” position on whether the FEC applies to the president at all. The executive branch has repeatedly affirmed that the clause applies to the president. See, e.g., Off. of Legal Counsel, Applicability of the Emoluments and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize (Dec. 7, 2009). Moreover, prior to the beginning of the Trump administration, the president-elect’s personal lawyers released a white paper in which they expressly acknowledged: “On assuming office, the President-Elect will be bound by—and will scrupulously abide by—his obligations under the Constitution. That includes the obligations created by the constitutional provision that these commentators highlight, the Foreign Emoluments Clause.”

My understanding had been that the Department of Justice, representing Trump as a defendant in his official capacity in the three federal lawsuits, had likewise acknowledged that the FEC applied to the president. However, at the oral argument, DOJ attorney Brett Shumate asserted that the government was only “assuming” that the FEC applied. Subsequently, Shumate wrote to the judge, confirming that “the government has not conceded that the President is subject to the Foreign Emoluments Clause.”

To paraphrase former VP Biden, this is a BFD. I don’t know whether the government will actually argue in court that the FEC is inapplicable to the president. Presumably it hopes not to have to address the issue because the cases will be dismissed as non-justiciable (as they should be). But even if the government never makes the argument, it has now reserved the right to assert that the FEC does not apply to the president or vice president. This seems a little inconsistent with the promise previously made by Trump’s personal counsel, but Congress has now been given fair warning. The president (or his successors) may take the position in the future that the FEC is inapplicable. That means that the president could accept a present, emolument, office or title from a foreign government without seeking congressional consent or even notifying Congress of this acceptance.

This illustrates the danger that these cases pose to Congress’s institutional interests. Both history and text strongly suggest that the FEC is designed to be enforced by Congress, not by the judiciary. Judge Daniels indicated as much during the oral argument, stating: “Clearly the Constitution was written so that Congress would make the determination. . . . They don’t have to sit on their hands if they think there’s a problem. They can do something about it.”

The court is clearly right about this. But there is no one before the court representing Congress’s interests in this matter. Trump’s personal and political interests, the executive branch’s institutional interests, the views and interests of Trump’s political opponents and even the thoughts of officious intermeddlers like Professor Tillman are represented, but not Congress.

It is time for Congress to stop sitting on its hands. It should authorize House and/or Senate legal counsel to file briefs in the three FEC cases, politely explaining to the courts that this is none of their business. It should demand through its committees that the Department of Justice provide a straight answer as to whether the FEC applies to the president. And, while they are at it, the committees should take a hard look at Trump’s business interests and the arrangements that he has made to “scrupulously abide” by the Foreign Emoluments Clause.

You know, the constitutional provision that may or may not apply to him.

 

 

Why Tillman’s Experts Show He is Wrong

Alternate title: “Everything You Ever Wanted to Know about the Hamilton Report (and Much, Much More).”

Readers of this blog are aware that Professor Seth Barrett Tillman has long maintained that the presidency and vice presidency are not “offices under the United States” within the meaning of various clauses of the Constitution which use that expression or a variant thereof. Tillman’s theory has a number of implications. We first discussed the theory in a December 20, 2008 post entitled “Can Joe Biden Be Vice President and Senator at the Same Time?,” in which it was noted that one implication is that the Incompatible Offices Clause (U.S. const., art. I, §7, cl. 2) would not prohibit someone from serving as president or vice president and at the same time as a member of the House or Senate.

More recently, Tillman’s theory has received a good deal of attention for its application to the Foreign Emoluments Clause (U.S. const., art. I, § 9, cl. 8). If, as Tillman maintains, the president does not hold an “Office of Profit or Trust under [the United States]” within the meaning of the FEC, then President Trump is not subject to the prohibitions of that clause, much to the dismay of many, including the plaintiffs in three separate lawsuits who have sued Trump for violating it.

Tillman has not (at least yet) convinced many people that his theory is correct. Among the unconvinced are President Trump’s personal lawyers and the Department of Justice, which represents the president in his official capacity in the aforementioned lawsuits. Because no party to these suits disputes the FEC’s applicability to the president, Tillman filed this amicus brief in one of the cases, CREW v. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y.), to ensure that the court has the benefit of his point of view.

(One prominent legal scholar who has been convinced is Professor Josh Blackman, who is representing Tillman in the CREW case. For brevity’s sake, this post refers only to Tillman, but it should be noted that Blackman also believes that the FEC does not apply to the president.)

Tillman’s argument relies in significant part on a 1793 document prepared by the Treasury Department that suggested, by omission, the president and vice president were not among those who held any “civil office or employment under the United States.” See Amicus Br. at 18-21. This document, which was submitted to the Senate under the signature of Secretary of the Treasury Alexander Hamilton, will be referred to herein as the “Hamilton Report.”

Before getting into the nuts and bolts of the Hamilton Report, I want to stress that Tillman’s reliance on the report depends on four assumptions about or inferences from the report: (1) the omission of the president and vice president from the report was a deliberate decision, rather than an oversight or error; (2) this decision was made or approved by Hamilton personally; (3) the decision was made for one specific reason, namely that the phrase “office or employment under the United States” excluded the president and vice president; and (4) the interpretation of this phrase was based on the unambiguous meaning of the words, rather than the context of their use or an extra-textual source of information. None of these can be definitively proved (or disproved), but Tillman evidently believes they can be adequately established for his purposes.

A foundational element of Tillman’s argument, though, came under attack in the CREW litigation when various experts and others aligned with the plaintiffs questioned whether the presidency and vice presidency had actually been omitted from the Treasury Department’s 1793 list. They contended (see here, here and here) that a subsequently published version of the Hamilton Report did include the president and vice president and therefore it was “grossly misleading” to suggest that Hamilton had omitted these offices at all. Moreover, in an amicus brief filed with the court, a group of legal historians contended that Hamilton had in fact signed the second version of this report, contrary to Tillman’s position.

Tillman responded to these charges by filing a proposed amicus response brief with a number of supporting exhibits, including declarations from five expert witnesses, two with expertise on authenticating founding-era documents and three with expertise on Alexander Hamilton. The evidence from these witnesses showed, to the satisfaction even of Tillman’s critics, that Hamilton signed only the Hamilton Report and not the version which listed the president and vice president. (That second version, which we will discuss later, was likely created in the 1830s, well after Hamilton’s death). In fact, the legal historians who had filed the brief criticizing Tillman issued a formal apology to him as well as a letter to the court withdrawing the footnote in which the criticism was made.

At this point you may be thinking this is all very interesting (if you’ve read this far I will assume you are the sort of person who would find this interesting), but is this really the way we go about determining the meaning of a constitutional provision? An inference from omission that is said to cast light on the view of a single framer about the meaning of a phrase that is used in an entirely different context but is similar (though not identical) to a phrase used in the Constitution? And which then leads to a battle of forensic experts about whether the omission happened in the first place? Is this original public meaning originalism or National Treasure originalism?

Well, these are good questions you ask, and I must admit I find the whole thing a little odd myself. Perhaps the judge did too, as he declined to accept Tillman’s proposed amicus response brief. But here at Point of Order, we never hesitate to waste large amounts of time on arcane matters that will never affect anyone in the real world. (Ask Vicki Divoll if you don’t believe me.) So here goes.  Continue reading ‘Why Tillman’s Experts Show He is Wrong’ »

The Office of Congressional Ethics Throws a Hand Grenade into the Foreign Emoluments Clause Litigation

The debate over the Foreign Emoluments Clause took an interesting twist yesterday when the House Ethics Committee released this report (hat tip Paul Singer) from the Office of Congressional Ethics (OCE) regarding Delegate Madeleine Bordallo (D-Guam).

The relevant facts are as follows. Delegate Bordallo owns a residential property in Guam, which she has leased to the Japanese government since 1993, some 10 years before she was first elected to Congress. During the period of her congressional service, Bordallo renegotiated this lease on several occasions, but it does not appear there were any unusual or inordinate increases in the rent, and OCE found the “rental amount fell within a normal range for rental properties in the residential community.” OCE Rep. at 11.

(It should be noted that the OCE report addresses other allegations against Bordallo involving more obviously questionable conduct, but the first count against her is based solely on this ordinary market transaction with the Japanese government.)

According to OCE, Bordallo’s arrangement with the Japanese government may have violated the Foreign Emoluments Clause. For the period looked at by OCE (2008-17), during which Bordallo has been serving in the House, she received about $800,000 in rent from the Japanese government. OCE explains that this rent may have constituted a prohibited “emolument”:

The U.S. Constitution prohibits federal employees from accepting “any” emolument of “any kind whatever, from any king, prince, or foreign state.” The House Ethics Manual advises that the emoluments clause should have the “broadest possible scope and applicability.” To this point, the House Ethics Manual unambiguously defines “emolument” to include any “profit, gain, or compensation for services rendered.” There is no exception or limitation under this definition in the House Ethics Manual for when the Member generates the profit from a fair market value commercial transaction.”

OCE Rep. at 12 (emphasis added) (footnotes omitted).

At the outset, we should note that the OCE assumes, without analysis, that a delegate is covered by the Foreign Emoluments Clause, i.e., that she holds an “office of profit or trust” within the meaning of that Clause. This assumption is perhaps understandable in light of the House Ethics Manual’s suggestion that the Clause applies to all federal officials, including members or employees of the House. See House Ethics Manual at 205. Delegates are not members, but for these purposes they can be regarded as employees of the House. Accordingly, OCE was correct in reading the Ethics Manual to say that the Clause applies to delegates.

As an original understanding of the Clause’s meaning, this is a dubious proposition, and Bordallo’s lawyers, in their response to the OCE report, rely heavily on the argument that she does not hold an “office of profit or trust” covered by the Clause. See Perkins Coie letter at 10-13 (July 3, 2017). Although there is a strong constitutional argument in support of this position (albeit not quite the one that Perkins Coie makes), under ordinary circumstances I think the Ethics Committee would give it short shrift. Accepting Bordallo’s position would mean that not only delegates but all House employees would be exempt from prohibitions of the Foreign Emoluments Clause, a result that the Ethics Committee would find hard to swallow. Instead, the Committee could simply decide that the Ethics Manual effectively applies those prohibitions to all House personnel as a matter of ethics rules, thus obviating the need to decide the constitutional issue.

But in this case the Committee, or at least half the Committee, has a strong incentive to resolve Bordallo’s case without reaching the question of whether the rents she received from the Japanese government constitute “emoluments” within the meaning of the Foreign Emoluments Clause. That’s because the latter issue presents squarely the question the Blumenthal v. Trump plaintiffs have raised in their lawsuit, contending that President Trump is violating the Clause by continuing to own interests in businesses which receive revenue or profits from foreign governments or instrumentalities. Thus, as I noted in a prior post, the plaintiffs assert the following proposition: If a federal officeholder (a) has a financial interest in a business and (b) that business derives revenues from foreign governments, then the officeholder receives prohibited emoluments within the meaning of the Clause. This is more or less precisely the proposition the OCE has endorsed in the Bordallo matter.

As it happens, the authorities that OCE cites in support of this proposition do not really substantiate it. All of them involve some sort of personal service that the officeholder is being paid to perform for a foreign government or instrumentality. None of them appear to involve rental or other investment income that an officeholder derives from foreign government sources.

Moreover, as Perkins Coie points out, adopting OCE’s broad reading of the Foreign Emoluments Clause would have rather dramatic consequences for the millions of federal personnel who are subject to it. See Perkins Coie letter at 14 (“[T]his question affects not simply Delegate Bordallo, but millions of retired military and federal employees, who are covered by the Clause, any yet might foreseeably engage in just this sort of commonplace household transaction.”). If merely generating income from fair market commercial transactions can constitute an “emolument,” there are a lot of people besides President Trump and Senator Blumenthal who could be affected.

Bordallo’s lawyers (not surprisingly) approach the parallels with Trump’s situation rather gingerly, but in a footnote they cite this blog post regarding the Trump case. Id. at 14 n.76. As the blog post observes:

One beginning word of caution:  while those who oppose Donald Trump will find attractive any argument that can be used to defeat him, this issue will affect many others as well.   While the Emoluments Clause might seem obscure to many, this provision is not at all obscure to the over 2 million military retirees and 2.8 million federal employees.  They are subject to the Emoluments Clause, and the issue of the Emoluments Clause could have consequences for federal employees and retirees.  For example, if the Trump Organization’s sales to foreign governments gives rise to an Emolument, this would also be true of a small veteran owned business that makes sales to foreign governments–which is not that rare in the government contracting world.

All this puts the House Ethics Committee in a difficult position. If it reaches the question of whether Bordallo was receiving “emoluments” from the Japanese government, its decision will have direct implications for the Trump case. This is a particular problem for the five Democratic members of the Committee, each of whom is a named plaintiff in Blumenthal v. Trump. If they stick with their litigation position, they will not only have to find against Bordallo, but they will potentially create problems for other members of Congress and countless federal employees who derive income in some way from foreign governments.

So what to do? In my next post I will have a suggestion.

Congressional Liaison Offices of Selected Federal Agencies

So I am cleaning out my papers and come across a CRS report from 2005 entitled “Congressional Liaison Offices of Selected Federal Agencies.” This isn’t something that I am likely to have use for, but I still feel obligated to make sure that there is a current version available on the internet before I throw it away. And guess what? There is. Even better, its dated August 10, 2017. So on the off-chance that I ever need to find the number for a congressional liaison office, I am bookmarking it here.

And now you can throw away your hard copy too.

Is Senator Blumenthal Violating the Foreign Emoluments Clause?

Senator Richard Blumenthal is one of the wealthiest members of Congress, with his net worth being pegged at a minimum of $67 million according to a Roll Call analysis of his financial disclosure statements. (Because financial disclosures report within broad ranges, they do not permit an exact calculation; this article says the senator’s actual net worth is more like $104 million.)

In addition to being really rich, Blumenthal is the lead plaintiff in Blumenthal v. Trump, a lawsuit brought by members of Congress against President Trump in the U.S. District Court for the District of Columbia. The lawsuit alleges that Trump is in violation of the Foreign Emoluments Clause (U.S. const., art. I, § 9, cl.8) because he “has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments.” Complaint ¶ 2. Because of this financial interest, plaintiffs allege, Trump “has accepted, or necessarily will accept, ‘Emolument[s]’ from ‘foreign State[s]’” within the meaning of the FEC. Id.

The Blumenthal plaintiffs therefore assert a simple legal proposition: If a federal officeholder (a) has a financial interest in a business and (b) that business derives revenue from foreign governments, then the officeholder receives prohibited emoluments within the meaning of the FEC. Thus, for example, because (a) Trump has a financial interest in Trump Tower in New York and (b) Trump Tower has at least two tenants owned by foreign states (a Chinese bank and the UAE’s Abu Dhabi Tourism & Culture Authority), Trump “has accepted, or necessarily will accept” prohibited emoluments when those tenants make their lease payments. Complaint ¶¶ 53-54. Continue reading ‘Is Senator Blumenthal Violating the Foreign Emoluments Clause?’ »

A Tweet Storm about Congress, Healthcare Reform, and Pathological Partisanship in America

Yeah, I know, tweet storms are supposed to be on Twitter. This one is, except I didn’t “thread” my tweets properly, as several people, including Paul Rosenzweig, patiently explained to me. I will try to do that next time. Anyway, for the moment, I am presenting the thread here, even though a bunch of tweets outside of Twitter read like some sort of weird haiku.

This is a tweet storm about Congress, healthcare reform, and pathological partisanship in America 1/31

I will cite Congress and the Constitution, ed. by Neal Devins and @kewhittington, and Congress’s Constitution by @joshchafetz 2/31

An important question addressed by these books is how Congress can restore itself to its proper role as a co-equal branch of government 3/31

Congressional dysfunction may be both cause and effect of what started as polarization and now is pathological partisanship in US 4/31

Pathological partisanship is when interests, policies & ideas are secondary to goal of defeating & dehumanizing an opposing tribe 5/31

Winning for winning’s sake is illustrated by spectacle of zero sum struggle between “repealing and replacing” vs. “fixing” Obamacare 6/31

Even though the exact same bill could be characterized either way 7/31

In such an atmosphere small wonder that Congress is viewed so unfavorably 8/31

When major political figures, media personalities and interest groups push perpetual conflict w/ no compromises, Congress looks useless 9/31

Sen. McCain said these “bombastic loudmouths” “don’t want anything done for the public good. Our incapacity is their livelihood.” 10/31

Congress’s institutional advantage is mediating conflict, not resolving philosophical questions or designing brilliant policies 11/31

“Congress is an institution skilled at reaching specific agreements that allow all parties to preserve their abstract commitments” 12/31

That was a quote from Elizabeth Garrett and Adrian Vermuele 13/31

Similarly Sen. McCain: “Merely preventing your political opponents from doing what they want isn’t the most inspiring work.” 14/31

“There’s greater satisfaction in . . .not letting [differences] prevent agreements that don’t require abandonment of core principles.” 15/31

There are tools Congress can use to bridge differences without requiring congressional factions to renounce their ideological views. 16/31

One is federalism, which allows states to develop their own approach to healthcare reform. 17/31

Another is the use of sunset provisions, which allow Congress to adopt reforms on an experimental basis. 18/31

Devins says sunsets improve congressional factfinding & incentivize Congress to monitor its empirical assumptions (p. 237). 19/31

As Chafetz notes, sunsets also enhance congressional power vis a vis the executive 20/31

Without sunsets, major legislation (like ACA) can be a one-time transfer of power to POTUS, who thereafter shapes policy. 21/31

Another mechanism to forge compromise on healthcare reform would be to hold hearings on issues beyond health insurance 22/31

Such as irrational & discriminatory pricing by medical & drug cos., abuse of tax-exempt status by “nonprofits,” and med liability. 23/31

Judicious use of these tools could help forge a broader compromise than now seems possible. 24/31

This will take time, however, & Congress must take action now to stabilize ins mkts & ensure that both sides have incentive to bargain 25/31

Congress could do this by providing temporary funding for cost-sharing subsidies currently in litigation before D.C. Circuit. 26/31

Importantly, funding for these subsidies would sunset, making it clear that admin cannot continue paying them unless Congress acts 27/31

This would be an “extremely skinny” bill, which might need to be fattened to attract R support 28/31

But if cong. leadership can attract substantial D support for this bill, it would set the table for a serious bipartisan reform effort 29/31

If Ds refuse to support bill or make concessions, leadership has unilateral options to employ. 30/31

But for the moment, let’s close w @SenJohnMcCain again: “What do we have to lose by trying to work together to find . . . solutions?” 31/31

 

Did Liz MacDonough Change the Process for Making Byrd Rule Determinations?

For those who don’t know, Ms. MacDonough is the Senate Parliamentarian, and in that capacity she is responsible for making preliminary rulings on what parts of the Senate health care reform bill comply with the “Byrd rule.” Without getting into the many intricacies of the Byrd rule, the basic point is that those provisions of the legislation which are compliant with that rule can pass the Senate with a simple majority vote under the reconciliation process, while those that are determined to be non-compliant must be stricken unless 60 senators (the same number needed to break a filibuster) vote to waive the Byrd rule point of order.

According to this June 20, 2017 post by Georgetown law professor David Super, MacDonough has changed the procedures for making preliminary Byrd rule determinations in a way that materially disadvantages Democrats who oppose the health care bill. Professor Super wrote:

Ms. MacDonough is by all accounts a smart and capable lawyer.  Nonetheless, she serves at the pleasure of the Majority Leader, Senator McConnell.  A prior Republican Senator Majority Leader fired one of her predecessors for making unwelcome rulings, and some current Republican senators have already called for Ms. MacDonough’s firing.  This year, she has departed from longstanding practice by meeting with Republican staff ex parte to discuss parliamentary objections rather than allowing Democratic and Republican staff to argue their points before her in a joint meeting.  Therefore, Republicans may know which items she will hold violate the Byrd Rule – and how to modify those items to achieve a favorable ruling – but Democrats do not and may not until the very last moment.

I found this charge surprising not only because it doesn’t sound like something MacDonough would do, but because I would think that there would be a much louder outcry if this were happening. (It seems a tad more important, for example, than the fact that there is a dress code for the Speaker’s Lobby).

So I emailed Professor Super for some more detail, and he graciously responded. He explained that the sources of his information were people “who were in frequent contact with Democratic staff.” These sources reported that the Parliamentarian was holding separate meetings with Democrats and Republicans and “keeping the contents of each meeting confidential from the other side.” Moreover, in the past “at the conclusion of or subsequent to the joint meetings, the parliamentarian has let both sides know what to expect.” By contrast, Democratic staff had not received any indication of MacDonough’s expected rulings on the health care bill. Super noted that “[a]lthough it may be theoretically possible that Republican staff are equally in the dark, the absence of complaints from that sector leads me to believe that they are not.”

I have no reason to doubt that Super is reporting in good faith what he has been told, but I just came across this article from June 30, which quotes several Democratic and Republican experts on the process MacDonough is following, with no indication of the irregularities Super alleges.

According to Bill Dauster, a longtime Democratic staff director for the Senate Budget Committee who just retired in May, the process is as follows: “The Democrats go in, the Republicans go in, then both of them go in together.” MacDonough has not been ruling immediately, but, according to Dauster, “she has, of late, gotten back to people by email” with her preliminary views or rulings. According to the article, this is an improvement over the process often used in the past, when staffers often did not know how the parliamentarian was leaning until the issue was raised on the floor.

There is nothing in this article to suggest that MacDonough is changing the process to make it less fair or transparent. Of course, it is possible that the author of the article did not talk to the right people. But it is also possible that Super’s (unnamed) sources were wrong, or had an agenda. Or perhaps they were upset that they had not yet received a ruling from the parliamentarian’s office, but later got one by email. (It seems that one major ruling has just come out in the last few days).

So I remain skeptical of this allegation. But if more emerges, I will update the post.

Can Congressional Committees Exempt their Oversight Correspondence from FOIA?

A minor kerfuffle erupted recently over letters sent by certain House committees, including the Committee on Financial Services, to agencies within their jurisdiction maintaining that future communications between the committee and the agency should be treated as “congressional records” not subject to the Freedom of Information Act. For example, this letter from Chairman Hensarling of the Financial Services Committee to the Treasury Department states in part:

 Because of the often sensitive and confidential nature of [communications from the committee to Treasury], and in order to ensure the unfettered flow of information necessary to assist the Committee in performing its important legislative and oversight functions, the Committee intends to retain control of all such communications, and will be entrusting them to your agency only for use in handling those matters. Likewise, any documents created or compiled by your agency in connection with any responses to such Committee communications, including but not limited to any replies to the Committee, are also records of the Committee and remain subject to the Committee’s control.

All such documents and communications constitute congressional records, not “agency records,” for purposes of the Freedom of Information Act, and remain subject to congressional control even when in the physical possession of the Agency. As such, they should be segregated from agency records, and access to them should be limited to Agency personnel who need such access for purposes of providing information or assistance to the Committee.

The effect of this request, if honored by the agencies, would be to require each agency to withhold from FOIA requesters both any written communications from the committee and any documents created or compiled by the agency in response to communications from the committee.

The basis of the House’s legal position is a series of D.C. Circuit cases beginning with Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), vacated in part on other grounds, 607 F.2d 367 (D.C. Cir. 1979) (per curiam). In Goland, the court held that the transcript of a closed congressional hearing that was provided to the CIA did not thereby become an agency record for purposes of FOIA. The court relied on the fact that the congressional committee had held the hearing, which involved discussion of sensitive intelligence matters, in executive session and had marked the transcript “secret” before providing a copy to the CIA. Under these facts, the court concluded that Congress must have intended to retain control over the document and to provide it to the CIA only for internal reference purposes and as a “trustee” for Congress. To find otherwise, the court reasoned, would force Congress “either to surrender its constitutional prerogative of maintaining secrecy, or to suffer an impairment of its oversight role.”

The Goland court’s reasoning might have been limited to situations in which Congress shares executive session materials with an agency. As the court noted, “when Congress transfers secret documents to an agency, for a limited purpose and on condition of secrecy, we see no reason to think it thereby waives its own prerogative of confidentiality and resigns itself to the FOIA exemptions which bind the agency and not it.” However, in subsequent cases the D.C. Circuit recognized in principle that agency-created documents might be congressional documents if they were created or assembled in response to a congressional request and Congress manifested an intent to control the documents in question.

In 2004, the D.C. Circuit applied this principle in the context of a letter from the Joint Committee on Taxation to the Internal Revenue Service requesting certain information regarding the IRS’s auditing of tax-exempt organizations. The JCT letter concluded with the following statement: “This document is a Congressional record and is entrusted to the Internal Revenue Service for your use only. This document may not be disclosed without the prior approval of the Joint Committee.”

(Full disclosure: while at the House Counsel’s office, I advised JCT on various aspects of its position regarding the application of FOIA to its communications with executive agencies, including the use of legends such as that noted above.)

A FOIA request was made to the IRS, which declined to produce not only the JCT letter but the IRS response thereto on the grounds that they were congressional documents not subject to FOIA. After the district court ruled in the IRS’s favor, the case was appealed to the D.C. Circuit. See United We Stand America, Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004). Quoting an earlier case, Paisley v. CIA, 712 F.2d 686, 693, 696 (D.C. Cir. 1983), the court found the controlling standard was whether there was sufficient “indicia of congressional intent” to show “Congress has manifested its own intent to retain control” of the documents in question.

Applying this standard to the facts before it, the United We Stand court concluded that “under all of the circumstances surrounding the IRS’s creation and possession of the documents, we find sufficient indicia of congressional intent to control, but only with respect to the Joint Committee’s April 28 request and those portions of the IRS response that would reveal that request.” In reaching this conclusion, the court stressed the fact that the JCT request only referred to “this document,” i.e., the request itself, rather than the IRS response thereto. The court suggested that had JCT wished to maintain control over the IRS response, it could have done so by referring to “this document and all IRS documents created in response to it.”

The House’s current position seems to be well-grounded in the language and reasoning of the D.C. Circuit’s caselaw, particularly the United We Stand decision. The government watchdog group American Oversight, in this letter to the House Counsel, contends that the House’s “sweeping and circular position appears to be a radical extrapolation from specific language in case law.” But it looks to me like the House is simply doing what the D.C. Circuit suggested it do in order to protect its oversight correspondence from FOIA.

If watchdog groups want to challenge the House’s position, they can bring cases outside the D.C. Circuit or they try to get the issue to the D.C. Circuit sitting en banc or to the Supreme Court. But under the existing case law of the D.C. Circuit, it looks like it will be an uphill climb.

Comey’s Choice: Congress or the Press

Former FBI Director Jim Comey’s decision to “leak” (a word which itself has generated controversy in this connection) the contents of his memos of conversations with President Donald Trump to the New York Times has led to much pontificating, but indulge me while I engage in a little more. My interest focuses on the question of why Comey chose to make his revelations first to the media, rather than to Congress.

Much of the commentary seems designed to attack Comey’s credibility by demonstrating that the disclosure to the Times was illegal or improper or, conversely, to bolster his credibility and undermine his critics by arguing the opposite. But the legal and ethical questions surrounding the “leak” (last time in quotes, I promise) are sufficiently murky that their relevance to the believability of Comey’s underlying testimony (particularly if that testimony is supported by contemporaneous memoranda) seems somewhat tangential. Frankly, under the circumstances I can understand how Comey would have been sorely tempted to bend the rules regarding disclosure if that were the only way to get his side of the story out.

Put yourself in Comey’s shoes. It is May 9, 2017, and you have just received a letter from President Trump, along with two enclosures, a letter from Attorney General Jeff Sessions and a memorandum from Deputy Attorney General Rod Rosenstein. The Rosenstein memo explains that you made “serious mistakes” in your handling of Secretary Hillary Clinton’s emails, as a result of which “the FBI’s reputation and credibility have suffered substantial damage” and “the entire Department of Justice” has been affected. The memo, while not quite explicitly recommending you be fired, concludes by saying “the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them.”

The one paragraph letter from Attorney General Sessions to President Trump recommends that Trump remove you as FBI director. Sessions explains that “[b]ased on my evaluation, and for the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI.”

Last but not least, Trump’s own letter informs you that he is accepting the “recommendation” of the attorney general and deputy attorney general, and “you are hereby terminated and removed from office, effective immediately.” The president goes on to elaborate (graciously, he no doubt thinks): “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.”

For purposes of discussion, we will assume you are well aware that many, many people have criticized your handling of the Clinton email investigation, and not a few of those have urged you be removed as FBI director. But you believe that this is not at all why Trump decided to fire you. And you have the evidence to prove it, in the form of contemporaneous memoranda recording a series of meetings and telephone discussions with the president over the past 5 months. These documents show (at least in your view) that Trump fired you because of your handling of the Russia investigation, including the failure to show adequate personal loyalty to Trump in the conduct of that investigation, the failure to “let go” of an inquiry into certain activities of former National Security Advisor Michael Flynn, and your unwillingness or inability to “lift the cloud” which the Russian investigation had cast over the Trump administration.

I think you can understand that anyone in this situation would feel impelled to come forward and bring these memos to the attention of the public and the proper authorities. What I find more difficult to explain is why Comey thought it necessary to have a friend anonymously leak the story to the New York Times, when he could have simply informed the relevant congressional committees, including the Senate Select Committee on Intelligence, that he was in possession of the memos and prepared to testify about their contents.

There are situations where press coverage is needed to attract public and congressional attention to a particular issue, but this was certainly not one of those. Even Michael Schmidt, the New York Times reporter who first wrote about the Comey memos, acknowledged as much on the day Comey was to testify before SSCI:

Q. Has Comey been called to testify in front of the Senate today because of your reporting?

Schmidt. It was certainly a catalyst, but Comey was going to have to go up there at some point and they were going to want to hear from him.

N.Y. Times Podcast, The Daily, 6-8-17 at 9:08.

With this background, let’s look at the legal and ethical issues raised by Comey’s leak to the Times.

Continue reading ‘Comey’s Choice: Congress or the Press’ »