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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.

Continue reading ‘The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?’ »

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.

Martin Shkreli’s Contempt for Congress

I have never seen anything like the deportment of this witness, who smirked and made various faces while taking the Fifth before the House Committee on Oversight and Government Reform. At least his lawyer did not allow him to make an opening statement. Instead, the lawyer gave an impromptu press conference afterwards, in which he made various exculpatory claims on his client’s behalf and claimed (ludicrously) that his client’s demeanor was not intended to show any disrespect for the committee.

 Update: apparently this conduct shouldn’t have been unexpected.

More from Professor Tillman on Cruz and Clinton

Professor Tillman responds to separate comments by Professor Rick Hasen and me (for the latter see my prior post) regarding legal issues that might affect the candidacies of Senator Cruz and former Senator Clinton.

Tillman notes that there is a conflict between two principles here: “one, protecting the democratic process from wrongful manipulation by prosecutors and courts, and two, the rule of law, applying the criminal law without fear or favor to all, even against those who are politically connected.” (In Cruz’s case, the issue does not involve criminal law, but there is a similar tension. On the one hand, it might seem desirable to have an authoritative decision on his eligibility while, on the other, there is a significant risk that his candidacy could be unfairly disrupted by lawsuits, decisions of various courts and actions by boards of election.)

Tillman agrees with me that this conflict presents a problem to which there is no easy solution. He does not believe, however, that my somewhat casual suggestion that the voters be allowed to make the decision except in cases where there “is no reasonable dispute” represents an adequate solution to the problem. Given the limited effort I put into designing this “solution,” I am sure he is right.





Hey, Did You Hear Ted Cruz Was Born in Canada?

Or maybe he was born in New York, and faked his birth certificate to hide the shame. I’m just saying.

Anyway, Professor Seth Barrett Tillman has a new post which compares the amount of attention given to the question of whether Senator Cruz is a “natural born Citizen” within the meaning of Article II, section 2, cl. 5, of the Constitution (a lot) with that given to certain legal issues surrounding a potential indictment of former Senator/Secretary Hillary Clinton (not much). Personally, I can think of a number of reasons for this disparity, the most obvious of which is that the citizenship issue has been publicly and repeatedly raised by another presidential candidate (I forget his name). If Senator Sanders, for example, were to raise one of Tillman’s legal issues in a debate with Clinton, I bet the legal commentariat would be racing to the blogs to express their views.

Be that as it may, I think we should be leery of prosecutors or courts inserting themselves into a presidential election, whether it involves Cruz or Clinton. Unless the legal issue is one that is beyond any reasonable dispute, the risk of politically motivated actors using lawsuits or prosecutions to disqualify candidates seems too high. As Professor Tillman has remarked in a different blog post focusing on the citizenship issue, “ties should go to the runner,” i.e., close questions should be resolved by letting the voters decide.

President Hastert and Other Symptoms of a Constitutional Crisis

What would have happened had the U.S. Supreme Court not intervened in the Florida election contest and the Florida courts had ultimately found in Gore’s favor? The answer to this question depends in part on when the Florida courts reached their decision.

Section 5 of Title 3 codifies the so-called “safe harbor” provision of the Electoral Count Act. This section states:

 If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

3 U.S.C. § 5.


Continue reading ‘President Hastert and Other Symptoms of a Constitutional Crisis’ »

How to Count to 270: The Electoral Count Act and the Election of 2000

To understand the congressional battlefield with regard to the counting of the 2000 presidential vote, we will need a (mercifully) brief review of the law and procedure of electoral vote counting, such as it is. For more comprehensive but less merciful discussions, see Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541 (2004) and Vasan Kesavan, Is the Electoral Count Act Constitutional?, 80 N.C. L. Rev. 1653 (2002).

The Basic Counting Procedure

As discussed in my original post, the Constitution does not say who, if anybody, has the “power” to count electoral votes. It says “the votes shall . . . be counted,” apparently referring to a mathematical task that could be performed by anyone who has mastered addition. In current congressional practice, this task is performed by four tellers, who consist of two members of each house appointed by the presiding officers thereof (with one teller from each party in each house).

To see how this works in an ordinary and uncontested situation, see this video of the counting of the electoral vote from the 2012 presidential election. After the members of the House and Senate file in to the chamber, Vice President Biden calls the four tellers (Senators Chuck Schumer and Lamar Alexander and Representatives Candace Miller and Robert Brady, respectively the chairs and ranking members of the Senate Committee on Rules and Administration and the Committee on House Administration) to come forward. The opening and reading of the certificates of the states (plus the District of Columbia) is done one at a time, proceeding in alphabetical order.

Continue reading ‘How to Count to 270: The Electoral Count Act and the Election of 2000’ »

What the 1960 Hawaii Presidential Election Meant for Bush v. Gore

On December 11, 2000, the day before the Supreme Court issued its Bush v. Gore ruling, Congresswoman Patsy Mink (D-HI) circulated this Dear Colleague entitled “1960 Hawaii Presidential Election Provides Roadmap for Resolving Florida Election Dispute.” As Congresswoman Mink explained, in 1960 Richard Nixon was originally declared the winner in Hawaii by 141 votes over John F. Kennedy, and the Nixon electors were certified by the governor. The results were contested in court, and on elector balloting day both the certified Nixon electors and the uncertified Kennedy electors cast ballots.

Subsequently, the court-ordered recount resulted in Kennedy being declared the winner by 115 votes. The court entered judgment in favor of Kennedy, and the Republican governor of Hawaii certified the election of the Kennedy electors pursuant to the court judgment. When the certificates from Hawaii were presented during the electoral vote counting, the President of the Senate (i.e., Vice President Nixon) suggested that the certificate of the Kennedy electors be accepted. No one objected and Hawaii’s three electoral votes were counted for Kennedy.

How, one might ask, did this episode provide a “roadmap” for the resolution of the Florida recount? Surely Mink (a University of Chicago trained lawyer, after all) understood that the Hawaii governor’s certification of a particular 1960 election contest conducted under Hawaiian law says nothing about whether the Florida governor should or would certify a 2000 contest conducted under Florida law and presenting completely different factual and legal issues. To take just one example, the Hawaii case had no bearing on whether Florida law required that any presidential election contest be completed by the “safe harbor” date of December 12. See Bush v. Gore, 531 U.S. 98, 110-11 (2000) (stating that any contest that lasted beyond December 12 would constitute “action in violation of the Florida election code”).

As a matter of congressional precedent, one might argue that the disposition of the Hawaii electoral vote supports the proposition that the President of the Senate may determine that the certified result of an election contest should be preferred over the certified result of the initial count, even when the contest was not decided until after the electors voted. One might make this argument, except for a small detail omitted from Mink’s Dear Colleague. When it came time to count Hawaii’s vote, Nixon stated: “In order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing a precedent, suggests that the electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful electors from the State of Hawaii.” 3 Deschler’s Precedents of the House of Representatives ch. 10, § 3.5 (emphasis added).

Even if Nixon had not made this reservation, the precedential value of the Hawaii episode would have been minimal. Nixon did not purport to make a ruling or exercise any power as presiding officer; he merely made a proposal, against his own interest, as to how to treat three electoral votes that would not have changed the outcome of the election anyway. Moreover, no one objected to his proposal. It is therefore difficult to see how this would have had any precedential effect, either as to procedure or substance, in an actual dispute over counting Florida’s electoral votes.

The Hawaii episode, however, does help to illustrate the two paths by which Congress, absent intervention by SCOTUS, might have resolved the 2000 presidential election in a relatively smooth manner (i.e., without a “constitutional crisis”). The first path would have involved Vice President Gore accepting Bush’s victory and proposing, as President of the Senate, that the votes of Florida’s Bush electors be counted. This likely would have happened if the Florida recount/contest had confirmed Bush as the winner.

The second path would have involved the Florida courts deciding the contest in Gore’s favor and the Florida governor (who happened to also be Bush’s brother) following the example of the Hawaii governor and certifying the result of the election contest. As a legal matter, the conclusiveness of an election contest judgment plus certification is debatable, but politically the certification would presumably have signaled the willingness of the Bush camp to accept Gore’s victory.

In hindsight, we know that there was a reasonable possibility that events would have unfolded along the first path if the Supreme Court had not intervened to stop the Florida recount. Subsequent media analysis indicated that if the recount had taken place in the manner ordered by the Florida courts (without further changes or modifications), Bush would have won. Of course, there was no way to know this in advance and even today we cannot be sure what would have happened.

On the other hand, we can say with a high degree of assurance that events would not have followed the second path. Given the numerous factual and legal controversies surrounding the recount and the Florida judicial process, it is difficult to imagine the Bush camp would have accepted a Gore victory based solely on the authority of the Florida supreme court. It is likewise highly doubtful that Florida Governor Bush would have certified the outcome (alternatively, he might have done so with such reservations as to deprive the certification of its utility).

Furthermore, any attempt to have Florida’s electoral votes counted for Gore under these circumstances would have faced fierce resistance in Congress, specifically from the House of Representatives led by Speaker Hastert and Majority Leader Delay. As I will discuss in my next post, the House had a number of options for blocking (or attempting to block) Gore’s ascension to the presidency and there is reason to believe it would have employed some or all of them.

Nobody for President

This is not an endorsement, but the title of an article written by a University of Virginia law professor in the immediate aftermath of the 2000 presidential election. See John Harrison, Nobody for President, 16 J. L. & Pol. 699 (2000). Professor Harrison rejects the claim that “Congress is the final judge of electoral votes,” contending that under the Constitution “Congress has no such authority, nor does anyone else.” Id. at 701. He acknowledges that Congress’s unique role in the counting of electoral votes may make it the de facto decisionmaker in some circumstances, but he argues that in those cases “Congress to a large extent would be acting, not as the legislature established by the Constitution, but as an extraordinary political body seeking to hammer out an extra-constitutional solution to a problem the Constitution cannot solve.” Id. at 707. This, he suggests, is basically what happened when Congress created a special Electoral Commission to resolve disputed electoral votes from the Hayes-Tilden election of 1876. Id.

I bring this up because I recently attended a program held by the American Constitution Society to commemorate the 15th anniversary of the Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000). (I guess the appropriate anniversary gift would be a crystal ball). The panel consisted of Judith Browne Dianis, Rick Hasen, Pam Karlan and Curt Levey, with Joan Biskupic moderating. You can watch the whole program here.

Contra Professor Harrison, a number of participants in the ACS program seemed to take it for granted that the Constitution assigns to Congress the role of resolving controversies such as that which arose over Florida’s electoral votes in 2000. Professors Hasen and Karlan, in particular, suggested that the Supreme Court should have deferred to Congress and declined to intervene in the Florida recount. Doing so, they said, would not have resulted in a “constitutional crisis,” but simply in the ultimate decision being made by a political body as the Framers intended.

Continue reading ‘Nobody for President’ »

Update on SEC v. Ways & Means

Judge Gardephe has granted the House’s motion for a state pending appeal of his order enforcing the SEC’s administrative subpoenas to the House Ways & Means Committee and its former staffer. In addition to finding that the balance of hardships weighed in the House’s favor (which seems fair), the court found there to be a “serious question” going to the merits of the legal dispute between the parties.

As far as one can tell from the stay ruling, this “serious question” relates to how the court applied the Speech or Debate privilege to the information sought by the subpoenas. The only specific issue mentioned, however, is “whether the Speech or Debate Clause provides a non-disclosure privilege for ‘legislative act’ documents.” Since the court resolved that issue in the House’s favor, it seems odd it would count as a serious question justifying a stay of the court’s ruling.

In any event, it looks like the Second Circuit will get a crack at this interesting case.