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Pagliano’s Contumacious Failure to Appear

Last night the House Committee on Oversight and Government Reform (COGR) voted to approve a contempt resolution for Bryan Pagliano, who failed to appear before the committee in response to a subpoena to testify. Pagliano, you may recall, is the IT specialist who was in charge of setting up Secretary of State Clinton’s private email server. Pagliano previously asserted his Fifth Amendment privilege against self-incrimination in both congressional and Justice Department/FBI investigations. He was given use immunity by DOJ/FBI to provide information regarding their investigation into whether the use of the email server by Clinton or others violated laws against the disclosure or mishandling of classified information.

Although the criminal investigation into Clinton’s handling of classified information terminated with FBI Director Comey’s public statement a couple of months ago, COGR says it is continuing to investigate this issue as well as other matters that the FBI investigation did not address. Specifically, the contempt report indicates that COGR’s ongoing investigation includes:

(1) seeking information about former Secretary Hillary Clinton’s use of a private, non-secure email server during her time at the Department of State, as well as the transmittal of classified national security information on that server; (2) examining the circumstances that resulted in the failure to preserve federal records arising during Secretary Clinton’s tenure, as required by the Federal Records Act, and to produce such records pursuant to Congressional requests or request made pursuant to the Freedom of Information and; (3) determining what, if any, changes to the Federal Records Act of 1950, Freedom of Information Act of 1966, Ethics in Government Act of 1978, or any other federal law(s) may be necessary to prevent these or similar circumstances from recurring.

No one, I think, would seriously dispute that these are proper matters for the committee to investigate, nor that Pagliano is a witness with information relevant to them.

Instead, the question is whether Pagliano, having informed COGR through his attorney that he will continue to assert his Fifth Amendment privilege with respect to any questions that the committee asks him about these issues, was required to appear at a hearing to assert the privilege in person. Citing legal ethics opinions, Pagliano’s attorneys at Akin Gump contend that Pagliano is not required to appear at an open hearing, although they said that he was willing to appear at a closed session. Backed by committee Democrats, they argue that requiring Pagliano to appear “in front of video cameras six weeks before the presidential election, betrays a naked political agenda and furthers no valid legislative aim.”

This is not a new issue. Congressional committees have been faced with such objections for decades, at least since a 1977 DC Bar opinion that an attorney serving as counsel to a congressional committee was prohibited by the disciplinary rules from requiring a witness to appear at televised hearings when the committee had been notified in advance that the witness would refuse to answer questions based on the Fifth Amendment right against self-incrimination.

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Coleman v. Miller and the Political Question Doctrine

Following on my last post, our analysis of the justiciability of claims related to the Article V convention will begin with Coleman v. Miller, 307 U.S. 433 (1939) and the political question doctrine. Coleman involved the purported ratification by the Kansas legislature of a child labor constitutional amendment proposed by Congress in 1924. After both houses of the Kansas legislature had rejected the proposed amendment in 1925, the Kansas house passed a resolution of ratification in 1937. The Kansas senate then equally divided (20-20) on the resolution, and the Lieutenant Governor, over the objections of those who opposed the amendment, broke the tie in favor of ratification.

Kansas legislators, including the 20 senators who voted against ratification, challenged this action in state court, and the case was ultimately appealed to the U.S. Supreme Court. The plaintiffs advanced three grounds for invalidating the purported ratification: (1) that the 13 years between proposal and ratification was too long; (2) that the prior rejection of the amendment by the Kansas legislature precluded subsequent ratification and (3) that the Lieutenant Governor was not part of the “legislature” under Article V and therefore could not vote on ratification.

In a famously splintered opinion, the Coleman Court declined to reach the merits of any of these issues. In an opinion by Chief Justice Hughes designated as the “Opinion of the Court” (but joined by only two other justices), the Court held the Kansas legislators had standing to bring the suit, but found that two of the plaintiffs’ claims raised political questions that could only be resolved by Congress.

With respect to the whether the Kansas legislature’s previous rejection of the child labor amendment precluded its subsequent ratification, the Court stated that this “should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the amendment.” 307 U.S. at 450. The Court found no basis for the proposition that it “should restrain the state officers from certifying the ratification to the Secretary of State because of an earlier rejection, and thus prevent the question from coming before the political departments.” Id.

Although the Supreme Court had previously held that ratification of amendments must take place within a reasonable time, the Coleman Court rejected the notion that “in the absence of a limitation by the Congress, the Court can and should decide what is a reasonable period within which ratification may be had.” 307 U.S. at 452. Determining what constitutes a reasonable time for ratification in any particular case would require “an appraisal of a great variety of relevant conditions, political, social, and economic,” which according to Chief Justice Hughes would involve questions that are “essentially political, and not justiciable.” Id. at 453-54.

With regard to the issue of the Lieutenant Governor’s participation in the ratification process, the Coleman Court declared: “Whether this contention presents a justiciable controversy, or a question which is political in its nature and hence not justiciable, is a question upon which the Court is equally divided, and therefore the Court expresses no opinion upon that point.” Id. at 447. (If you wonder how a 9-member Court came to be “equally divided,” the answer, though not relevant to our analysis, may be found here)

In his concurrence (joined by Justices Frankfurter, Roberts and Douglas), Justice Black suggested that the Court had not gone far enough in denying judicial power to resolve Article V controversies. While agreeing with the Court that Congress has the “exclusive power” to resolve “political questions” such the validity of ratification after prior rejection and the length of time within which an amendment could be ratified, Black criticized the Court for leaving an opening for any judicial resolution of Article V questions. See Coleman, 307 U.S. at 458 (“To the extent that the Court’s opinion in the present case even impliedly assumes a power to make judicial determination of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree.”). Instead, Black stressed that all Article V questions should be considered political and not justiciable:

Such a division between the political and judicial branches of the government is made by Article V, which grants power over the amending of the Constitution to Congress alone. Undivided control of that process has been given by the Article exclusively and completely to Congress.  The process itself is “political” in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control, or interference at any point.

Coleman, 307 U.S. at 458-59 (Black, J., concurring).

Two additional opinions were written in Coleman. Justice Frankfurter wrote for himself and Justices Black, Roberts and Douglas in a separate opinion rejecting the Court’s conclusion that the Kansas legislators had standing to sue. See Coleman, 307 U.S. at 460 (Frankfurter, J., concurring). Frankfurter argued that the injury asserted by the plaintiffs, namely that the Kansas legislature had followed unconstitutional procedures in ratifying the child labor amendment, was not the type traditionally redressed by the judiciary and would open the federal courts to “sit[ting] in judgment on the manifold disputes engendered by procedures for voting in legislative assemblies.” Id. at 469-70.

Finally, Justice Butler authored a dissent, for himself and Justice McReynolds, arguing that the Court should have reached the merits and struck down Kansas’s ratification as untimely. Coleman, 307 U.S. at 470 (Butler, J., dissenting). It should be noted, however, that Butler did not actually express an opinion on whether the timeliness of ratification was a political question. Instead, he pointed to the fact that the Court had previously treated it as a justiciable question, and he argued that the Court should not have reversed itself on this point without argument or briefing.

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The Justiciability of Controversies Related to the Article V Convention

As you may know, there is increasing chatter about the possibility of Congress calling an Article V “convention for proposing amendments” (sometimes referred to, inaccurately, as a “constitutional convention”).

Recently the New York Times featured a front page article by Michael Wines entitled “Inside the Conservative Push for States to Amend the Constitution.” The focus of the article is on the effort to call a convention to propose a federal balanced budget amendment, which I know something about through my association with with the Balanced Budget Amendment Task Force (BBATF), one of the three groups featured in the piece.

If I might digress for a moment, I note that Wines’s suggestion that the balanced budget amendment effort is “often funded by corporations and deeply conservative supporters like the billionaire Koch brothers and Donors Trust” is, unfortunately, not true, certainly with respect to the BBATF. To the contrary, the BBATF operates with little outside funding of any kind and depends on the work of citizen activists who volunteer their time and often pay their own travel expenses. (No need to mention that last part to my wife, though). But if you happen to be a wealthy donor, feel free to click through to the BBATF website and look for the donate button. . .

Anyway, as Wines notes, “Article 5 of the Constitution . . . allows the states to sidestep Congress and draft their own constitutional amendments whenever two-thirds of their legislatures demand it.” Thus far, “28 states have adopted resolutions calling for a convention on a balanced-budget amendment, including 10 in the past three years, and two, Oklahoma and West Virginia, this spring.” Thus, only six additional states are needed to trigger an Article V balanced budget amendment convention.

Wines is also correct that there are substantive legal issues which will undoubtedly be raised if and when the states reach the magic number of 34. For example, Wines says that “[e]ven if the two-thirds threshold were reached, a convention would probably face a court battle over whether the legislatures’ calls for a convention were sufficiently similar.”

What he refers to is the fact that the 28 existing applications for a balanced budget amendment convention do not use identical language, and it can be argued (and undoubtedly will be argued) that some of them are substantively different from the others in terms of the scope of the convention they seek. If Congress calls a convention based upon these applications, someone is likely to go to court to stop the convention from being held. Thus, Wines is right that there probably will be a “court battle” of some kind.

This doesn’t mean, however, that a court would actually consider such a case on its merits. Before doing so, it will have to answer a novel question: when (if ever) are claims related to the Article V convention justiciable?

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An Urgent Need to Combat Executive Privilege after COGR v. Lynch

In the Federalist Society Review, Chris Armstrong, the Deputy Chief Oversight Counsel for Chairman Hatch at the Senate Finance Committee, has written an article entitled “A Costly Victory for Congress: Executive Privilege after Committee on Oversight and Government Reform v. Lynch.” (Actually, he wrote this in June, but I am a little behind on everything, as you may have noticed).

Although the House committee mostly “won” this case at the district court level because Judge Amy Berman Jackson ordered DOJ to turn over many of the Fast and Furious related documents the committee was seeking, Armstrong points out the the court’s reasoning actually “lay[s] out a vision of an expansive deliberative process privilege that—if it stands—may diminish Congress’s powers to investigate the Executive Branch.” Specifically, by allowing the assertion of a constitutional privilege against Congress for any records that would reveal aspects of the executive branch’s deliberations with respect to policies or decisions it makes, the court opened the door to a privilege that “can be invoked against producing nearly any record the President chooses.”

Armstrong is right to be concerned about the implications of the district court’s ruling. As I pointed out earlier this year, Congress can expect that agencies will seize upon Judge Jackson’s opinion to resist congressional oversight. Armstrong suggests this is already happening, noting a recent “marked increase” in deliberative process claims “across agencies and to a wide range of congressional committees conducting active investigations.” He further expresses the concern that “we may be entering an era in which fewer disputes are resolved through good faith negotiation and the federal judiciary becomes the primary venue for settling these disputes,” a result that “may not bode well for Congress.”

This would indeed be an unfortunate development. However, as I wrote in my post on this topic, Congress can avoid this result by taking action to limit the types of subpoena enforcement cases that come before the judiciary. Essentially, such cases should be limited to situations where the president has not invoked executive privilege, thereby leaving the courts without any constitutional dispute to resolve (there still could be non-constitutional issues such as the committee’s jurisdiction and the relevance of the information sought).

So how should congressional committees go about enforcing their subpoenas when the president invokes executive privilege? A number of ideas have been floated, including using the appropriations process to restrict funding for agencies that refuse to comply with congressional subpoenas. The Select Committee on Benghazi, for example, recommends that “House and Senate rules should be amended to provide for mandatory reductions in appropriations to the salaries of federal officials held in contempt of Congress.” (see section IV, p. 66 of the Select Committee report). Other ideas include reinvigorating inherent contempt (in which the legislative body itself punishes the recalcitrant official), amending the criminal contempt statute to provide for appointment of a special counsel to prosecute contempt by executive officials (another recommendation of the Select Committee), and impeachment.

Whatever mechanism(s) Congress (and/or the House and Senate individually) settle on, the time to act is now. With the two leading presidential contenders not exactly known for their commitment to transparency, there can be no doubt that the next administration will see a continuation, if not an escalation, of these problems.

Neither is there any reason to wait on the outcome of the appellate process in COGR v. Lynch. The briefing schedule is rather leisurely: appellant’s brief is due October 6, appellee’s brief is due December 20, and any reply brief is not due until January 17, 2017. By the time briefing is complete, it seems likely that the case may be overtaken by events, and I would guess that the D.C. Circuit will never reach the merits of the case. In any event, Congress cannot afford to leave its institutional prerogatives in the hands of the courts.

 

Should SCOTUS Hear Senator Menendez’s Speech or Debate Case?

A Third Circuit panel recently rejected Senator Menendez’s Speech or Debate appeal, thereby clearing the way for his corruption trial to proceed. United States v. Menendez, No. 15-3459 (3d Cir. July 29, 2016) (slip opinion). Menendez, it is reported, may seek further review from the full Third Circuit and/or file a petition for certiorari with the Supreme Court. While the court’s conclusion is no surprise, its reasoning raises some questions which could be fodder for Supreme Court review.

To briefly recap the facts, Menendez is accused of having intervened with the executive branch on behalf of one Dr. Salmen Melgen in exchange for personal gifts and campaign contributions. For example, Menendez allegedly sought to persuade/pressure executive officials to drop a Medicare fraud investigation into Melgen’s billing practices.

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Senate Enforcement Action against Backpage CEO

I am a little late on this, but last month the Senate authorized a rare civil action to enforce a subpoena, utilizing a statutory mechanism for enforcement of Senate (but not House) subpoenas. See 28 U.S.C. § 1365. 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 an enforcement action in federal court. See 2 U.S.C. §§ 288b, 288d.

The subpoena in question was issued by the Senate Permanent Subcommittee on Investigations (affectionately known as “PSI”) to the CEO of a company called Backpage.com, which runs an online classified advertising website. PSI opened an investigation of internet sex trafficking in April 2015, and, according to its opening brief in the enforcement case, its “research and investigation have shown that Backpage is a dominant presence in the online market for commercial sex and that numerous instances of child sex trafficking have occurred through its website.” The PSI subpoena sought documents related to Backpage’s practices in this regard, particularly with respect to screening of advertisements and other measures designed to prevent sex traffickers from using its website.

According to PSI, Backpage’s CEO refused to produce or even to search for documents responsive to the subpoena, claiming that “the subpoena is outside the Subcommittee’s jurisdiction, intrudes on his First Amendment rights, and seeks materials not pertinent to the Subcommittee’s investigation.” We will see what Backpage (represented by former House Counsel Steve Ross) has to say in response, but those do not sound like winning objections to me.

The Senate unanimously adopted a resolution authorizing enforcement on March 17, and on March 29 Senate Legal Counsel filed the action on PSI’s behalf in DC federal court. When I say this action is “rare,” the last time Senate Legal Counsel brought such a case was in 1993, when the Ethics Committee sought to force Senator Packwood to produce his diary.

 

 

Some Schocking Information About Congressional Records

Former congressman Aaron Schock, under investigation for financial misconduct while in office, has been in various disputes with the Justice Department about documents prosecutors are seeking from him. One of those disputes involves the somewhat peculiar legal status of documents from a Member’s personal congressional office. So the blog having been on hiatus for a couple of months, I will ease back into things with a discussion of this obscure topic.

You may be aware, unless you happen to be former Secretary of State Hillary Clinton, that the records of federal agencies and the executive branch generally are subject to extensive regulation and control by various statutes, including the Federal Records Act, the Freedom of Information Act and the Presidential Records Act. You may or may not be surprised to know, however, that few if any of these laws apply to Congress. As the House Rules Committee observed in this 1988 report, the Privacy Act and FOIA explicitly exempt Congress from their coverage, and “[n]o statute comparable to the Presidential Recordings and Materials Preservation Act has ever been enacted with respect to congressional records.” Hmm, I wonder how that happened.

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Antonin Scalia on the “Minimal Risk” of an Article V Convention

When state legislatures consider whether to apply for an Article V convention for proposing amendments, the primary argument in opposition is invariably that such an application poses an intolerable risk of a “runaway convention,” i.e., a convention that proposes amendments outside the scope of the subject matter for which it was called. This question was considered by a panel of distinguished scholars (Paul Bator, Walter Berns, Gerald Gunther and Antonin Scalia) at an AEI forum held on May 23, 1979. The transcript of this forum has just been posted online (hat tip: Josh Blackman and Adam White).

Three panelists agreed that while the matter was not free from doubt, the best view of the Constitution is that an Article V convention may be limited as a matter of law. One panelist, Professor Gunther, contended that such a limitation was merely a “moral exhortation” that was not legally binding. Tr. 8.

Then-Professor Scalia agreed with Professors Bator and Berns that Article V was best interpreted to permit a limited convention. See Tr. 12 (“There is no reason not to interpret it to allow a limited call, if that is what the states desire.”) (Scalia); see also Tr. 7-8, 11 (Bator); Tr. 4-5 (Berns).

Scalia, however, mostly concentrated his remarks on debunking the practical reasoning of the “runaway convention” argument. Acknowledging the theoretical possibility that an Article V convention could propose an extreme or unpalatable amendment, he noted that this possibility could equally be employed as a reason against convening Congress (or any legislative authority). Tr. 5. The right question to ask is “how high we think the risk is and how necessary we think the convention is.” Id.

As far as the risk, Scalia made clear he had “no fear” that “extreme proposals” would come out of an Article V convention. Tr. 5. The risk of a convention exceeding its mandate “was not much of a risk.” Tr. 23. After all: “Three-quarters of the states would have to ratify whatever came out of the convention; therefore, I don’t worry about it too much.” Id.

On the need for a convention, Scalia noted:

The founders inserted this alternative method of obtaining constitutional amendments because they knew the Congress would be unwilling to give attention to many issues the people are concerned with, particularly those involving restrictions on the federal government’s own power. The founders foresaw that and they provided the convention as a remedy. If the only way to get that convention is to take this minimal risk, then it is a reasonable one.

Tr. 6.

He went on to explain that the argument against calling a convention effectively gives Congress a monopoly over amendments, contrary to the Framers’ intent: “The alternative is continuing with a system that provides no means of obtaining a constitutional amendment, except through the kindness of the Congress, which has demonstrated that it will not propose amendments—no matter how generally desired—of certain types.” Tr. 12. Indeed, Congress “likes the existing confusion, because that deters resort to the convention process.” Id.

Scalia left no doubt as to how he weighted the risk and reward in calling a balanced budget amendment convention: “The Congress knows that the people want more fiscal responsibility, but it is unwilling to oblige it. A means comparable to [California’s] Proposition 13 is needed at the federal level. The Constitution had provided it. If the only way to clarify the law, if the only way to remove us from utter bondage to the Congress, is to take what I think to be a minimal risk on this limited convention, then let’s take it.” Tr. 13.

Finally, Scalia put the point in the broader context of a constitutional system that was badly out of kilter: “I am not sure how long a people can accommodate to directives from a legislature it feels is no longer responsive, and to directives from a life-tenured judiciary that was never meant to be responsive, without losing its will to control its own destiny.” Tr. 18.

Though uttered 37 years ago, these words don’t seem the least bit out of date today.

The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?

The Court’s Decision

Judge Amy Berman Jackson recently issued her decision in the subpoena enforcement action brought by the House Committee on Oversight and Government Reform (COGR) against the Attorney General. The case arose out of an October 11, 2011 subpoena from COGR to then-Attorney General Holder seeking documents in the “Fast and Furious” investigation. Holder refused to produce certain responsive documents on the ground that they were protected by the deliberative process privilege.

On June 19, 2012, the day before COGR was to vote on a resolution holding him in contempt, Holder asked President Obama to assert executive privilege with regard to the disputed documents. The next day Deputy Attorney General Cole informed COGR that Obama had done so. COGR and the House then proceeded to find Holder in contempt, and COGR was authorized to bring a civil enforcement action in federal court.

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Shkreli and the House’s Power of Inherent Contempt

Although the congressional contempt statute only applies to witnesses who fail to provide information demanded by Congress, a broader range of misbehavior is subject to Congress’s so-called inherent contempt power. This is the process by which Congress itself, just like a court, can punish witnesses and other individuals who appear before it or attend its proceedings. As the Supreme Court observed long ago, each house of Congress must have this power “to guard itself from contempts” or else be “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.” Anderson v. Dunn, 19 U.S. 204, 228 (1821). That “such an assembly should not possess the power to suppress rudeness, or repel insult is a supposition too wild to be suggested.” Id. at 229.

I mention this because it turns out that Mr. Shkreli followed up his antics before the House committee today by tweeting: “Hard to accept that these imbeciles represent the people in our government.” Interestingly, he also tweeted: “I had prior counsel produce a memo on facial expressions during congressional testimony if anyone wants to see it. Interesting precedence.”

Well, I would love to see this “precedence” (I told him as much via Twitter, but so far he has not sent me the memo). But in any event it seems clear that his facial expressions were not the result of nervousness (as his counsel claimed), but were pre-planned expressions of rudeness and insult to the committee. At the very least, there would seem to be a firm basis for the House to direct the Sergeant at Arms to take Shkreli into custody and bring him before the bar of the House to explain himself.

I realize this isn’t likely to happen, but in my view the House would be within its constitutional powers if it did.