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BLAG, the Act of Production Doctrine and the Schock Case

Recent filings in the criminal case against former congressman Aaron Schock (see my last post) brought to my attention that a number of pleadings in the Schock grand jury proceedings have been unsealed. Among these were two briefs filed by the House Counsel on behalf of the Bipartisan Legal Advisory Group (BLAG) as amicus curiae in support of Schock’s right to assert a Fifth Amendment act of production privilege in response to grand jury subpoenas for Schock’s congressional records.

The Act of Production Privilege and the Records of a Congressional Office

The grand jury subpoenas in question seek documents from Schock’s “congressional office.” As used here, a “congressional office,” also sometimes referred to as the member’s “personal office,” means the offices that each member of the House maintains in Washington, D.C. and the congressional district for the conduct of official business as a representative from that district.

As we have discussed before, the House has long taken the position, for reasons unrelated to the Fifth Amendment, that such documents are the personal property of the individual member, not the property of the House itself or the U.S. government. Thus, these records are not archived under House Rule VII (as are documents such as committee records, which belong to the House and are periodically sent to the National Archives for archiving and eventual release to the public). Instead, upon a member’s departure from the House, the member is expected to take custody of her congressional office records or to arrange for their disposal (e.g., by having them destroyed, put in storage or donated to a university or other institution). See Declaration of Farar P. Elliott, Chief of the Office of Art and Archives (7-24-15).

Here we should step back and explain the Fifth Amendment “act of production” privilege and its relationship to the House’s stance on who owns congressional documents. As Judge Myerscough explained in an opinion issued in the course of the Schock investigation:

A person may be compelled to produce documents even though the documents contain incriminating assertions of fact or belief because the creation of the documents was not compelled. United States v. Hubbell, 530 U.S. 27, 35 (2000); Fisher v. United States, 425 U.S. 391, 410 (1976) (“The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else”). Nonetheless, “the act of producing documents in response to a subpoena may have a compelled testimonial aspect.” Hubbell, 530 U.S. at 36. That is, by producing the documents, the witness admits that the papers exist, that the papers were in his possession or control, and that the papers are authentic. Whether a particular act is testimonial and self-incriminating is largely a factual issue to be decided in each case.

The act-of-production privilege does not, however, apply to collective entities, such as corporations. Consequently, an individual cannot rely on the Fifth Amendment privilege to avoid producing a collective entity’s records that are in his possession in a representative capacity, even if the records may incriminate him personally.

Opinion of June 25, 2015 at 14-16 (some citations omitted).

Thus, if documents from a member’s congressional office belonged to a collective entity, such as the House itself, or the U.S. government, or the “Office of Congressman X or Congressional District Y,” the act of production privilege would not apply, and a member could be compelled to produce such documents in response to a subpoena.

On the other hand, the converse is not necessarily true. The government argued that documents which of their essential nature are public or official records are not subject to the act of production privilege even if the House treats them for some purposes as the member’s personal property. Moreover, it contended that the “collective entity” doctrine was applicable because a congressional office, while it differs from a government agency or private corporation with respect to the ownership of documents, is still more like these collective entities than it is like a “sole proprietorship” or the home or business of a private individual.

BLAG responded that the formal ownership of documents was dispositive for purposes of the Fifth Amendment analysis. Furthermore, to the extent that a “collective entity” analysis was appropriate, it maintained that the legal nature of a congressional office was like that of a sole proprietorship, as distinguished from a collective entity such as a government agency or corporation.

The House’s Purported Institutional Interest

BLAG, which consists of the Speaker of the House, the Majority and Minority Leaders and the Majority and Minority Whips, frequently appears in litigation to protect the House’s “institutional interests.” One might ask why the House would have an institutional interest in the question of whether a former or sitting congressman can assert a personal constitutional privilege such as the Fifth Amendment. According to BLAG, the applicability of the Fifth Amendment privilege to Schock’s situation turns on two issues in which the House has a “substantial institutional interest”: (1) whether a member of Congress personally (and exclusively) own the records of the member’s congressional office; and (2) whether the congressional office is a “collective entity” for Fifth Amendment purposes.

It is understandable that BLAG might want to advise the court of the House’s views and practices regarding ownership of these congressional records. BLAG might also want to ensure that the court’s resolution of the Fifth Amendment issue did not intrude upon the House’s authority to make whatever decisions it pleases regarding the ownership, maintenance and disposition of congressional documents. For example, BLAG would not want the court to decide the Fifth Amendment issue on the basis that Schock was not the true legal owner of his congressional records. Not only might such a ruling have unwelcome collateral consequences (e.g., preventing members from taking a tax deduction when donating their papers), but it would evince disrespect for the House’s constitutional authority to regulate its own proceedings.

On the other hand, it is not at all obvious why BLAG or the House should care if the court were to deem a congressional office to be a “collective entity” for Fifth Amendment purposes. Such a determination would not seem to directly conflict with any House rule or practice, not does BLAG identify any adverse collateral consequences that might result.

One related issue is suggested by the litigation surrounding the investigation of former congressman William Jefferson. In that case a grand jury subpoena was issued to Jefferson’s chief of staff, demanding that she produce certain documents from Jefferson’s congressional office. House Counsel, representing the chief of staff in her official capacity, took the position she had no authority to produce the documents because, under House rules and practice, the congressman was the sole owner and custodian of his congressional documents. Jefferson, meanwhile, took the position he could not be required to produce the documents because of the act of production privilege. See In re: Grand Jury Subpoena: John Doe, No. 05GJ1318, 584 F.3d 175 (4th Cir. 2007).

The Fourth Circuit found that it need not resolve the act of production issue because, even if a congressional office is not a collective entity for purposes of the Fifth Amendment, there is no bar to compelling a congressional staffer such as Jefferson’s chief of staff to produce congressional office records. So long as the staffer has possession of the documents sought, the fact that the documents actually belong to the member of Congress is of no moment. 584 F.3d at __ (act of production doctrine will not apply where “an employer shares control, use, or creation of documents with his employee”). The Fourth Circuit affirmed the district court’s finding that Jefferson’s chief of staff had either actual possession (with respect to documents she was responsible for preparing and maintaining) or constructive possession (with respect to documents prepared and maintained by other staff over whom she had supervisory authority). It is also worth noting that Jefferson’s chief of staff testified to the grand jury that she considered the documents in question to be “official documents of the congressional office.” Accordingly, the court ruled that the chief of staff must produce the documents sought by the subpoena.

The House would seem to have a legitimate interest in ensuring that all subpoenas or other demands for congressional office records be directed to the member of Congress or, at the least, be subject to the member’s ultimate authority. This posture is not only consistent with the House’s view that the member owns and controls these documents, but it also facilitates the orderly consideration of legislative privilege and other matters of institutional interest. To the extent, for example, that a subpoena raises Speech or Debate issues, it is the member, not the staffer, who must decide whether to assert the privilege. It is therefore contrary to the House’s interests for prosecutors and courts to use their coercive powers to require a congressional staffer to produce congressional office records against the member’s instructions.

Recognizing a personal act of production privilege in the member, however, does not advance this interest. To the contrary, by preventing prosecutors from obtaining documents directly from the member, it encourages them to seek documents from staffers or other third parties instead. As the Jefferson case shows, the member’s act of production privilege will not necessarily prevent third parties from being compelled to produce the documents.

Of course, if the House were to prevail on both of its arguments (i.e., the documents must be sought from the member alone and the member may assert an act of production privilege), it would make it more difficult for the Justice Department to conduct criminal investigations of members of Congress. Not surprisingly, however, BLAG did not identify hindering such investigations as an institutional interest of the House.

Furthermore, it seems unlikely that the House would be successful in convincing the courts to accept both these arguments, even if that were its objective. This point is illustrated by the Schock case itself. When Schock resigned from the House, he left most or all of his congressional records in the possession of the Clerk. This resulted in a three-way argument among Schock’s attorneys, federal prosecutors, and House Counsel about how, if at all, prosecutors would be able to get access to these documents for use in their grand jury investigation.

Schock’s lawyers argued that the government could only get the documents from the Clerk because (1) the documents were not in Schock’s custody or control; and (2) even if they were, the act of production privilege prevented Schock from being compelled to produce them. The government responded that Schock either had or could easily obtain copies of the documents in the Clerk’s possession; it also rejected the applicability of the act of production doctrine. As for House Counsel, it is not clear whether it initially took a position on the act of production issue. It did, however, reject the suggestion by Schock’s counsel that the documents be obtained directly from the Clerk. Consistent with the position it had taken in the Jefferson case, House Counsel maintained that congressional office documents could only be obtained from or through the member in question, not from third parties.

When the parties remained at an impasse, the government sought an order from the court requiring Schock to produce the disputed documents. The court initially sided with the government on the act of production issue. Acknowledging that the evidence was “mixed” as to whether a congressional office qualified as a “collective entity,” the court concluded that it was “more akin to a corporation than a sole proprietorship.” Opinion of June 25, 2015 at 18-20. Nevertheless, noting the “paucity of case law” on the issue, the court pointed out that a better way of resolving the problem might be for the government to directly subpoena the documents from the Clerk, thereby avoiding the Fifth Amendment issue. Id. at 21.

BLAG then filed its first amicus brief, in which it argued that Schock was entitled to assert the act of production privilege and contradicted the government’s position that a congressional office was a “collective entity” for Fifth Amendment purposes. BLAG did not address the court’s suggestion that the documents be subpoenaed from the Clerk.

Perhaps persuaded by BLAG’s argument, the court then indicated it was inclined to change its mind on the act of production issue, concluding that a congressional office was in fact more like a sole proprietorship than a corporation. In response, the government (1) issued a subpoena to the Clerk and (2) filed another brief asking the court to once again revisit the act of production issue. BLAG filed a second amicus brief, again contesting the act of production issue but not objecting to the subpoena to the Clerk.

The court then issued another order, noting that it was unnecessary to make a final decision on the act of production question because the government might be able to get all the documents it needed from the Clerk. While not expressly stated, I would read the court’s various pronouncements as indicating that she expected the government would be able to get the documents it needed for its investigation, one way or the other.

What happened next remains largely under seal, but it appears that there was a lengthy period of negotiation between the Clerk (represented by House Counsel) and the government. I assume, though I don’t know for sure, that the parties were ultimately able to reach an agreement that allowed the government to access some or all of the documents it was seeking.

All in all, the upshot of the Schock case seems to be to leave the act of production/collective entity issue unresolved, but to reinforce the holding in the Jefferson case that it is appropriate for prosecutors (or others) to subpoena a member’s congressional documents from third parties who have actual or constructive possession of those documents. This seems to me to leave the House in at least a marginally worse position than if it had insisted on the member exercising exclusive control over responses to subpoenas, but had remained neutral on the act of production issue.

Potential Collateral Consequences

One can also anticipate BLAG’s position in the Schock case coming back to bite the House in certain circumstances. For example, imagine that the House were conducting an impeachment investigation of a federal judge. The House seeks to subpoena the judge’s working papers, but the judge argues that under the House’s own reasoning he is entitled to assert the act of production privilege. He also might argue that it would be improper to subpoena third parties, such as his law clerks, to produce the documents, a position also consistent with that the House has taken in litigation.

A more common situation would relate to investigations by the House Ethics Committee. The committee frequently has occasion to demand the production of documents from members’ congressional offices. In such circumstances, private counsel for a member could argue that the act of production doctrine precludes the committee from compelling the member to produce them.

Indeed, in at least one matter the committee faced exactly that argument and responded in a manner not unlike that of the government in the Schock case. In a March 20, 1998 letter to lawyers for former congressman Bud Shuster, the committee acknowledged that while the records in question might “belong” to Shuster “in a limited sense,” this “is not dispositive of the nature of the documents for Fifth Amendment purposes:”

The documents you are withholding are official documents, created and maintained at public expense. Numerous rules and regulations establish that such documents must be for the conduct of official and representational duties only, not for personal or private business. As the Supreme Court stated long ago, official documents are not protected by the Fifth Amendment. Wilson v. United States, 221 U.S. 361, 380 (1911) (“Thus, in the case of public records and official documents, made or kept in the administration of public office, the fact of actual possession or lawful custody would not justify the officer in resisting inspection, even though the record was made by himself and would supply the evidence of his criminal conviction.”).

Comm. on Standards of Official Conduct, 106th Cong., In the Matter of Representative E.G. “Bud” Shuster, H. Rep. 106-109, at 738-40 (2d Sess. Oct. 16, 2000) (emphasis in original).

Clearly the views expressed by BLAG in the Schock case (which included disparaging the Wilson language as dicta) will make it more difficult for the Ethics Committee to sustain this position in the future.

The Merits of the Act of Production Argument

Finally, I have a few observations on the merits of the act of production issue argued in the Schock case. All parties acknowledged that the issue was one of first impression, and Judge Myerscough evidently had some difficulty in deciding how to resolve it. Nonetheless, my sense (admittedly without having looked at the caselaw in any depth) is that BLAG has the more difficult side of the argument.

For one thing, it is not clear that the collective entity analysis ought to apply to a congressional office or, put another way, that there can be such a thing as a taxpayer-funded government office which does not qualify as a collective entity for Fifth Amendment purposes. It may be that Wilson’s broad language regarding government and official records is dicta, but neither does there appear to be any case finding that such records can be treated like private papers for purposes of the act of production analysis.

Assuming that the collective entity analysis is appropriate, it is fair to say that a congressional office is different from either a typical government agency or a corporation, on the one hand, or a sole proprietorship, on the other. See 584 F.3d at __ n.15. The two main differences between a congressional office and a typical collective entity are (1) the former lacks an impersonal and continuing management structure that is distinct from the person of the member herself; and (2) when the member contracts for goods and services for official use, she does so in her own name and is personally liable for any expenditures that exceed the Members Representational Allowance (MRA) established by the House.

At the same time, a congressional office is not remotely like a “sole proprietorship.” It is not a private business run for personal profit. It is funded entirely or almost entirely through taxpayer dollars, either directly (by items, including DC office space and many “shared services,” provided by the House) or indirectly (through the MRA). In the event that private funds are used to supplement these public expenditures, there a host of regulations to ensure that these funds come solely from a member’s personal monies and are not contributed by third parties, nor in any way can be construed as the “proceeds” of the congressional “business.” As the House Ethics Committee explains in one relevant example:

Example 5: Member E would like to decorate his House office in a modern style not available from Office Furnishings. E may not accept the offer of a furniture store to supply his office with free furniture. E may purchase the furniture of his choice with his own money.

House Ethics Manual 329 (2008) (emphasis in original).

As this passage suggests, the furnishings for a member’s Washington, D.C. office are normally provided directly by the House itself. In fact, the House operates its own furniture department, which falls within the “Office of Logistics and Support,” which among other things is responsible for the “management and logistics of building, refurbishing, supplying, and moving furnishings, assets, and equipment” for all House offices. A member can choose to pay for some extra items through the MRA, subject to rules and guidelines established by the Committee on House Administration, or from personal funds. A member is strictly forbidden, however, from using campaign funds, in-kind donations (including special discounts not available to the general public) or third party funds of any type for these or other official purposes. Former congressman Schock’s legal troubles originated with his failure to pay heed to the detailed House regulations designed to establish a clear wall between private funding and official expenses.

It should be further noted that the Office of Logistics and Support is only one of many shared services provided by the House under the auspices of the Chief Administrative Officer, who also oversees offices such as Acquisition Management (procurement services), Finance (accounting, payroll and benefit services) and House Information Resources (technology services, technical support, cyber security and telecommunications). Outside the CAO’s operations, additional support and services are provided by the Clerk of the House, the Sergeant at Arms and independent offices such as the House Counsel. For administrative purposes, therefore, an individual congressional office functions more like a small office within a larger government agency or department than a “sole proprietorship.”

The employment of staff in congressional offices is particularly inconsistent with the “sole proprietorship” characterization. It may be true, as BLAG argues, that congressional staff are not considered to be the employees of a particular congressional offices as a separate legal entity except for the limited purposes of the Congressional Accountability Act, which creates a statutory cause of action against any “employing office” (defined so that each individual congressional office constitutes a separate employing office) for violations of certain labor and employment laws. See 2 U.S.C. §§ 1301(9), 1408(b). But for other purposes these employees are not considered the personal employees of a member, but rather as employees either of the House or the federal government. As the House Ethics Committee has stated: “Employees of the House are paid from funds of the United States Treasury to perform public duties [such as] assisting the Members in their official responsibilities . . . , but they do not include performing unofficial, personal, or campaign duties.” House Ethics Manual 267-68 (emphasis in original).

As far as the functions of a congressional office are concerned, these can be divided into roughly three parts: legislative and policy; administrative; and constituent service/casework. The legislative and policy functions are performed by legislative aides who act as the member’s “alter ego” and whose work is inextricably tied to the member’s personal performance of her constitutional role. The other functions are more impersonal and institutionalized. It is these latter functions that the Clerk of the House carries on when taking over supervision of a congressional office whose member has vacated her seat (i.e., through death, resignation or expulsion). See House Rule II (2)(i)(1). All three of these functions, however, relate to the performance of public duties, not to the member’s private business. Thus, the functions of a congressional office are far more like those of a government office or agency than those of a sole proprietorship.

In short, the documents and records of a congressional office are created, received and maintained at taxpayer expense, by congressional employees paid from the U.S. Treasury, and for purposes of conducting public duties and official business. It seems, therefore, that they would be more analogous to the records of a government agency or an office within a government agency than to those of a sole proprietorship.

Conclusion

At the beginning of this Congress, the House adopted the following addition to House Rule VII, which governs the archiving of records of the House:

Records created, generated, or received by the congressional office of a Member, Delegate, or Resident Commissioner in the performance of official duties are exclusively the personal property of the individual Member, Delegate or the Resident Commissioner and such Member, Delegate or Resident Commissioner has control over such records.

House Rule VII (6)(B).

Because this revision largely codifies longstanding House custom and practice, I did not originally think it of great significance. While I assumed it was likely motivated by the Schock litigation, I suspected that the House’s primary interest was to bolster the position that the member, rather than the House itself, is the proper party to make decisions about the release or disposition of the documents in question.

Given what I now know about the two BLAG briefs filed in the Schock case, however, it is reasonable to conclude that the rules change was also designed to strengthen the position that a member may assert the act of production privilege in response to a subpoena for congressional office documents. To the extent that the Fifth Amendment analysis turns on reasonable expectations as to whether the documents should be considered public records or private papers, the rules change might be thought to support the member’s right to assert the act of production privilege.

For the reasons discussed above, I am skeptical that the House has an institutional dog in this fight. At the end of the day, moreover, the issue will be decided by the courts, and I don’t think that this is a fight the House is likely to win.

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