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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’ »

Comey and Executive Privilege (with Update)

[See Update below]

Former FBI Director Jim Comey is scheduled to testify before the Senate Select Committee on Intelligence (SSCI) next week. He is expected to be asked questions about certain subjects, including his personal conversations with the president, that might be the subject of executive privilege claims. However, because Comey is testifying voluntarily and presumably would like to share this information with the committee, the question arises whether there is any effective method for the administration to stop him from answering questions it believes to be invasive of executive privilege.

In a Twitter thread, Eric Columbus, a former lawyer in the Obama administration, argues that the answer is no. He contends that the privilege only protects a witness from being compelled to provide information. It does not apply, he suggests, to the voluntary testimony of a former government official, just as it does not prevent former officials from writing books or giving interviews in which they discuss conversations with the president or other communications that might fall within the scope of executive privilege. As Columbus puts it, “I know of no precedent for blocking a FORMER official who WANTS to testify.” (all caps in original; its Twitter after all).

To the extent Columbus is suggesting that the applicability of executive privilege turns on whether the former official wants to testify, this seems wrong. The privilege belongs to the president, not to the subordinate official, and it is hard to see why the availability of the privilege should turn on the subordinate’s preferences.

Columbus makes an interesting point about the fact that former officials often write books or make other public disclosures about matters that could be covered by executive privilege. It could be that executive privilege, having developed as an evidentiary doctrine in formal proceedings, simply does not apply to such situations or, alternatively, that it does apply but there is no method of enforcing it. Broad gag orders against former executive branch officials (e.g, requiring them to get preclearance before speaking about their time in office, or threatening sanctions if they make public disclosures that in the judgment of the president or his lawyers violate executive privilege) would raise some tricky First Amendment issues, which we have discussed in the context of analogous prohibitions on congressional staffers. But these issues do not have much bearing on Comey’s testimony in a formal congressional proceeding.

The real problem here is procedural. Assuming for the sake of argument that the president has a valid or at least plausible executive privilege objection, how can that objection be raised in this situation?

The most straightforward answer would be for the executive branch to communicate to Comey (presumably through a lawyer who would attend the hearing) which questions it believes intrude upon executive privilege. Comey would then inform the committee of this objection, and it would then be up to the chairman to decide how to proceed. Comey might refuse to play this role, but I doubt he would do so. It is in his interest to remain above the fray to the extent possible, and to let the real parties in interest (the committee and the executive branch) battle it out.

Even if Comey declines to cooperate, the committee would probably allow the executive branch to raise its objections directly (presumably by having its lawyer stand up and object on a question by question basis). This would be a highly unusual procedure, and it might be contended that the committee’s rules do not permit it. SSCI Rule 8.6 provides that “[a]ny objection raised by a witness or counsel shall be ruled upon by the Chairman or other presiding member, and such ruling shall be the ruling of the Committee unless a majority of the Committee present overrules the ruling of the chair.” The “counsel” referred to here is counsel for the witness, and in this case the government counsel would not be appearing in that capacity. I suspect, though, that SSCI would make an allowance for this unusual situation.

Assuming the executive branch has the opportunity to raise the objection, it is up to the chairman to rule on the objection in the first instance. I imagine there could be some dispute as to whether Rule 8.6 requires the chair to rule immediately or permits him to take the matter under advisement, but let’s assume eventually there is a final ruling from the chair/committee. At that point I expect that Comey would comply with the ruling, as he is under no obligation to risk being held in contempt. This procedure would therefore leave the resolution of the issue ultimately in the control of the committee.

The administration’s only alternative would seem to be to bring an action in federal court against Comey (the Speech or Debate Clause prohibits it from suing the committee). The suit would ask for declaratory and injunctive relief prohibiting Comey from testifying on certain subjects or providing certain information to Congress. The executive branch used this method in the 1970s in an attempt to prevent AT&T from complying with a congressional subpoena. See United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977). Although that case involved national security information, there is no reason in principle why the same method could not be used to resolve a different type of executive privilege issue. Whether the Trump administration wants to take the political heat from bringing such a suit, or whether it is confident that its legal position would ultimately be vindicated in court, are different questions.

UPDATE:

In a follow up exchange on Twitter, Columbus expresses doubt that a court could grant a remedy to the executive branch under the circumstances here. His argument is that the court could not enjoin Comey from discussing the same matters outside of Congress (e.g., it couldn’t stop him from going on the Sunday talk shows to discuss his conversations with the president) so logically it could not enjoin him from talking to Congress either. Essentially he is arguing that because the court cannot grant effective relief, it should dismiss the executive branch’s (hypothetical) lawsuit against Comey for lack of standing.

I agree that a court might accept this argument, but I don’t think it is a slam dunk. To begin with, it assumes that a court would take as a given that a former executive official cannot be enjoined from publicly disclosing confidential (but non-classified) presidential communications contrary to POTUS’s instructions. As far as I know, no such case has been brought, much less decided. While I tend to agree with Columbus that there would be serious problems with such a suit (including First Amendment prior restraint issues), the matter is not so clear that a court would necessarily want to predicate its decision in our hypothetical suit on a prediction about the outcome of this different and more novel case.

Moreover, even if we assume Comey could not be enjoined from disclosing presidential communications outside Congress, it does not follow that such disclosures would be legal or proper. Nor is it guaranteed they would be without consequence. For example, a former official might find his security clearance in jeopardy or face a bar complaint (if, like Comey, he is a lawyer). These potential consequences make it less likely a court can simply assume that Comey (or any former official) would be free to divulge presidential communications in a public setting.

Finally, a court’s view of this issue may very well depend on the position Comey himself takes in our (hypothetical) litigation. As a long time executive branch lawyer, Comey would probably be reluctant to suggest it is generally appropriate for former officials to divulge confidential presidential communications. Such a stance would be at least in tension with the executive branch’s approach to executive privilege, and it might have ramifications for the ability of future presidents to have candid discussions with their FBI directors. I am also not sure Comey would want to open himself up to questioning generally about his discussions with Presidents Trump, Obama or Bush. So I would guess he would be cautious about asserting any general right (much less intent) to make public disclosures about these matters.

I would note that in the course of my exchange with Columbus, a number of tweeters chirped in with comments along the lines of: “If Comey can’t testify before Congress, why wouldn’t he just go on Rachel Maddow or some other cable show and spill the beans there? That’s what I would do!”

The short answer to this is: “Because he’s Comey, not you.” The somewhat longer answer is that I don’t know what Comey might do, but I think he has a number of personal and institutional incentives, alluded to above, not to do that.

In any event, I agree with Columbus that there is a risk that the hypothetical lawsuit against Comey could be dismissed on jurisdictional grounds, but I don’t assess this risk as being as high as he does. If I were advising the president, I would be more concerned with the political cost of bringing such a lawsuit in the first place, as well as the distinct possibility that the executive branch could lose on the merits.

Based on the latest news, though, it sounds like the administration is backing away from asserting executive privilege at all with respect to Comey’s testimony before SSCI.

 

 

 

 

 

 

 

 

 

 

The Senate’s Options in the Flynn Matter

Just got back from a trip abroad. Did I miss anything? I thought my law school classmate Jim Comey could fill me in on the latest, but for some reason my emails to him keep bouncing back . . .

I know, I’m hilarious. Ok, let’s take a look at the controversy du jour, namely former National Security Advisor Michael Flynn’s decision to invoke the Fifth Amendment in response to a document subpoena from the Senate Select Committee on Intelligence (SSCI). This has led to a flurry of speculation as to what SSCI or the Senate might do next.

For regular readers of Point of Order, the issues here should be pretty familiar. There is no Fifth Amendment right to refuse to produce documents based on their potentially incriminating content, but under certain circumstances a subpoena recipient can refuse to comply on the ground that the act of producing the documents would itself be testimonial in nature. This “act of production” doctrine applies when the subpoena implicitly compels the recipient to communicate that the responsive documents exist, are authentic and are in the recipient’s possession or control.

The committee’s subpoena requires General Flynn to produce, among other things, “all communications records, including electronic communications records such as e-mail or text messages, written correspondence, and phone records, of communications that took place between June 16, 2015, and 12pm on January 20 2017, to which you and any Russian official or representative of Russian business interests was a party.” Flynn’s lawyers contend that the broad sweep of this request shows that the committee lacks prior knowledge of “whether responsive exist, who may possess them, or where they are located.” Thus, by producing documents Flynn would be testifying regarding the existence and authenticity of these records. Moreover, Flynn’s production of responsive documents would require him to testify implicitly regarding his knowledge of who is a “Russian official or representative of Russian business interests.”

Without having studied the matter in any detail, it strikes me that Flynn seems to have at least a plausible act of production objection here. This does not necessarily mean, however, that he would ultimately prevail in litigation. The act of production doctrine is technical and fact specific, and its contours have yet to be clearly spelled out in the case law. Furthermore, to the extent that Flynn has responsive documents that belong to a collective entity and are not simply his own individual documents, the privilege would be inapplicable. Thus, SSCI might reasonably conclude that Flynn’s objection should be rejected on the merits, in whole or in part, or at least that its validity should be tested in court.

What, then, would the committee’s options be? One possibility would be for the committee and the Senate to hold Flynn in criminal contempt, and refer the contempt citation to the U.S. Attorney for the District of Columbia for presentation to the grand jury pursuant to 2 U.S.C. § 194. This law on its face requires the U.S. Attorney to present the contempt matter to a grand jury, but the executive branch has long taken the position that it may disregard this mandatory language, at least in cases where Congress seeks to obtain information which the president has determined to be protected by executive privilege. An unfortunate precedent set in the last administration extends this position to cases where the U.S. Attorney simply believes Congress’s legal position is wrong, even if no question of executive privilege is presented. As I explained in that case (involving the contempt charge against Lois Lerner): “Essentially the U.S. Attorney’s office is reserving the right to make its own independent judgment about the legitimacy of a congressional contempt citation, even if that means resolving a close legal question in a way that protects a witness in an investigation that could embarrass the administration he serves.” Based on that precedent, the executive could refuse to present the Flynn contempt to a grand jury.

The matter is further complicated by the appointment of a special counsel (it turns out that quite a bit happened while I was gone) to investigate the Russia matter. One would think that the special counsel, Robert Mueller, would exercise jurisdiction over any Flynn contempt referral or, at the least, would have to sign off on how the case was handled. This makes it less likely that the Flynn prosecution would simply be dropped like the Lerner case. On the other hand, it may not make it more likely that SSCI will get the documents it is seeking, particularly in a timely fashion. Mueller’s incentive would be to use the possibility of a Flynn indictment for congressional contempt as leverage to advance the priorities of his own criminal investigation. He may have little interest in helping the committee with its investigation (or may actually prefer that the committee’s investigation be halted so as not to interfere with his own).

SSCI may prefer, therefore, to look to an alternative method of enforcing its subpoena. Under 28 U.S.C. § 1365, a Senate committee can bring a civil enforcement action to enforce a subpoena. Under this mechanism, if a subpoena recipient fails to comply with a subpoena from a Senate committee or subcommittee, the committee reports a contempt resolution to the Senate, which may then adopt a resolution directing the Senate Legal Counsel to bring the enforcement action in federal court. See 2 U.S.C. §§ 288b, 288d.

The Senate rarely uses this civil enforcement method, in part because there is an exemption for subpoenas directed to executive branch officials who assert a governmental privilege or objection. That exemption, however, is inapplicable to Flynn’s case, and thus the Senate is free to use it to obtain a federal court ruling on the validity of his Fifth Amendment objection. One downside to this method of enforcement is that it will take some time (e.g., it almost certainly could not be resolved before 2018). A civil enforcement action the Senate brought last year, however, was resolved relatively quickly, within about 6 months of the action being filed by Senate Legal Counsel. (Here is a good summary, ironically written by Flynn’s counsel, of the court’s decision in that case). There is no way to guarantee that a case against Flynn would proceed that quickly (in fact, it probably wouldn’t), but there is no also reason to believe that a criminal contempt proceeding would move any faster. And civil contempt is generally a better method of resolving good faith legal disputes than is criminal contempt. Thus, all in all, it seems to me that a civil enforcement action would be the better method of enforcement here.

In a saner world, there would be another option that the Senate should seriously consider. Any Senate committee can grant immunity by a two-thirds vote of its members (or the Senate as a whole can grant immunity by a simple majority). Although there is a procedure that must be followed to complete the grant of immunity (see 18 U.S.C. §§ 6002, 6005), ultimately SSCI has the power to overcome Flynn’s Fifth Amendment privilege if a bipartisan supermajority of the committee wishes to do so. Although the committee could grant immunity just for the act of production, under current law the consequences would probably be little different than granting Flynn full testimonial immunity (in either case it would be nearly impossible to prosecute him for crimes related to the subject of the committee’s investigation, though he could still be prosecuted for perjury or contempt were he to fail to fully and truthfully respond to the committee’s inquiries). If one believes that obtaining the full truth regarding the Russia investigation is a matter of the highest national priority, it is worth considering whether getting General Flynn’s documents and testimony is more important than preserving the option of prosecuting him.

As a practical matter, however, the Senate almost certainly will not give this serious consideration. The special counsel, whose mission is focused solely on criminal enforcement, would vigorously object to the Senate granting immunity to Flynn. Senators would not want to be seen as responsible for letting Flynn escape criminal punishment, even if this means that SSCI’s investigation is substantially slowed or halted. One of the unfortunate consequences of appointing a special counsel in these circumstances (not the only one, to be sure) is that the public’s interest in a full and expeditious investigation of the Russia matter will take a back seat to the needs and inclinations of the special counsel and the criminal justice system.

So with regard to General Flynn’s refusal to comply with SSCI’s document subpoena, it is likely to be a civil enforcement action or nothing.

(Not So) Desperately Seeking Trump’s Tax Returns

Despite the great deal of chatter (marches even) about the need for President Trump to release his tax returns, there has been relatively little discussion of Congress’s statutory authority to obtain these materials. Two exceptions are these comments by Professors Andy Grewal and George Yin. Grewal and Yin agree that Congress has the authority to request and obtain Trump’s tax returns for a legitimate legislative purpose, and they also agree that the executive branch could disregard a congressional request for these returns on certain grounds (e.g., Congress does not in fact have a legitimate legislative need for the information or, in Grewal’s words, “the request is supported only by personal animus and not a proper legislative purpose”).

Though the matter is not free from doubt, I take a somewhat different view of the law here. I argue below that the Secretary of the Treasury (to whom Congress directs requests for tax return information) and the executive branch in general do not have the legal right to refuse congressional requests for tax return information based on an assessment of the legislative need or motive that underlies such requests. I also suggest that Congress can minimize the likelihood that the executive branch will assert a right to refuse its request by adopting a careful and disciplined approach to making the request in the first place.

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