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Sexual Harassment and the Office of Congressional Ethics

As you are no doubt aware, there has been a great deal of controversy in the past few months about Congress’s handling of internal employment issues, most notably sexual harassment claims. It is less likely you are aware that Congress has actually moved rather expeditiously to address the problem. Last week a bill to do just that was introduced in the House by Representatives Gregg Harper and Robert Brady, respectively the chair and ranking member of the Committee on House Administration. The bill is titled the “Congressional Accountability Act of 1995 Reform Act,” H.R. 4822. (Someone could have put more effort into this “short title,” but we will refer to it simply as “CARA.”).

The Committee on House Administration has jurisdiction over House labor and employment issues, including the application of labor and employment laws to Congress through the Congressional Accountability Act of 1995 (CAA). In the wake of widespread publicity about the handling of sexual harassment claims in Congress, the committee held hearings (November 14 and December 7, 2017) to address perceived weaknesses in the CAA and the need to prevent sexual harassment in the congressional workplace. The committee heard from various witnesses, including representatives of the Office of Compliance (OOC), the congressional agency responsible for administering and enforcing the CAA.

CARA addresses the problems identified in these hearings through various measures to better protect congressional employees from sexual harassment and other employment violations, including (1) establishing an Office of Employee Advocacy in the House to advise and assist employees with regard to rights and claims under the CAA; (2) authorizing the OOC General Counsel to conduct investigations of sexual harassment and other employment claims; (3) holding representatives and senators personally liable for awards and settlements arising from employment discrimination (including sexual harassment) or retaliation where their individual misconduct was involved; and (4) requiring the OOC to publish more detailed information about awards and settlements under the CAA.

My purpose here is not to analyze CARA’s proposed reforms or take a position on the bill. I merely observe that, on its face, CARA seems to be a textbook example of how “regular order” is supposed to work. Congress identifies a problem, holds hearings, and proposes a legislative solution, preferably reflecting a broad consensus within the committee of jurisdiction. CARA in fact is cosponsored by every member of the Committee on House Administration. It also very bipartisan, with 14 Republicans and 20 Democrats listed as sponsors or co-sponsors. Among them are the chair and ranking member of the House Ethics Committee and two of the most outspoken House members on the issue of sexual harassment, Representatives Jackie Speier (D-CA) and Barbara Comstock (R-VA).

(Note: I have known Comstock since we both worked on the Hill in the 1990s and have supported her in races for state legislature and Congress).

Of course, the introduction of CARA is far from the end of the legislative process. The bill is now referred back to the Committee on House Administration and three other committees with some jurisdiction over its provisions (Ethics, Oversight and Government Reform and Ways & Means) where it can be further studied, amended and eventually marked up for consideration by the full House. There will be plenty of opportunities for further deliberation and changes in committee, not to mention (if it gets that far) on the House floor and in the Senate.

All of which makes it a little odd that the immediate reaction in the ethics/reform community to CARA was not applause (though my understanding is that it is generally supportive of the bill), but outrage directed at a single provision, Section 407, which is deemed to represent an insidious effort by the “House leadership” (though what the House leadership has to do with this, I am not sure) “to purposefully defang the Office of Congressional Ethics (OCE) and undermine its role in upholding high ethical standards in the House of Representatives.”

So what exactly does Section 407 do? Continue reading ‘Sexual Harassment and the Office of Congressional Ethics’ »

Wright on Executive Privilege with Some Additional Thoughts Hazarded by Stern

Steve Bannon, the former chief strategist in the Trump White House, has refused to answer questions from the House Permanent Select Committee on Intelligence (HPSCI) regarding his time in the White House and on the presidential transition team. Bannon claims these subjects may implicate executive privilege and is deferring to the White House counsel’s office as to whether the privilege will be invoked.

I was going to post some comments on this issue, but almost everything I was going to say is admirably covered by Professor Andy Wright here. Wright’s key points are (1) Bannon’s status as a former government official is irrelevant to the legal merits of the privilege claim, though it could impact how the matter is resolved procedurally (more on that in a minute); (2) the privilege belongs to the president, not to the subordinate official; (3) it is thus appropriate to provide the president, with the advice of White House counsel and other executive branch lawyers, an opportunity to decide whether to invoke the privilege formally; (4) if negotiations do not resolve the issue, HPSCI must move forward with a formal contempt process; (5) while it may ultimately be decided that executive privilege does not attach to presidential transitions, the question at this point is an open one; and (6) even if the privilege does apply, HPSCI will still have strong arguments in favor of requiring Bannon to answer some or all of its questions.

One point of qualification. While I agree with Wright that issues of executive privilege have to be decided on a question-by-question basis, the burden is not on Bannon to make sure that specific questions get asked. In other words, if Bannon issued a “blanket refusal [to answer] about all swaths of time during his transition and White House roles,” as Wright indicates, it is still incumbent on HPSCI to make a record of the specific questions it wants answered. Failure to do so could undermine its legal position or delay resolution of the merits should the dispute reach the courts.

This brings us to the procedure HPSCI should employ to resolve this matter. As Wright notes, there are three avenues available (criminal contempt, civil litigation and inherent contempt). Each has its drawbacks and none is guaranteed to work (or work in a timely fashion) even if one assumes HPSCI would win the executive privilege issue on the merits.

As we discussed in connection with the Comey matter, however, the procedure followed with regard to a former official might differ from the norm. If Bannon takes the position that he will abide by HPSCI’s rulings on executive privilege unless otherwise directed by a federal court, the burden would be on the executive branch to bring a civil action and obtain a speedy order (presumably a TRO) directing Bannon not to testify.

On the other hand, Bannon might say that he will abide by the president’s instructions even if it means being held in contempt by HPSCI and the House. If so, the House could consider employing the rarest form of testimonial compulsion, inherent contempt. In this procedure, Bannon would be arrested by the Sergeant at Arms and brought before the bar of the House. If he continues to refuse to testify, the House could remand him into the custody of the Sergeant at Arms until he changes his mind (or convinces a court to release him on a habeas petition). This is a drastic remedy, which has not been employed by the House in about a century. But if the House is serious about reasserting its institutional prerogatives, there could hardly be a more inviting target than Mr. Bannon.

Anyway, there is something about incarcerating Bannon in the basement of the Capitol that seems like where 2018 is going, don’t you think?

P.S. RIP Geoffrey Hazard.

 

 

Don’t be a Potted Plant and Other Takeaways from CREW v. Trump

Judge Daniels of the U.S. District Court for the Southern District of New York has issued this opinion (hat tip: Eric Columbus) dismissing the Emoluments Clause lawsuit spearheaded by Citizens for Ethics and Responsibility in Washington (CREW). The court found that neither CREW nor its co-plaintiffs (individuals and businesses in competition with hotels and restaurants owned by the Trump Organization) had standing to sue President Trump for allegedly violating the Foreign and Domestic Emoluments Clauses.

Much of the court’s analysis is focused on explaining why the plaintiffs have not suffered legally redressable injuries from the alleged constitutional violations. Professor Jonathan Adler has a good summary of the court’s reasoning here, and I have nothing in particular to add with respect to that aspect of the opinion. I do, however, have a few additional observations.

First, while the court makes clear (see op. at 2, n.1) it is not addressing the merits of the case, I think one can sense some skepticism from the court about the plaintiffs’ theory of liability. The gravamen of their claims is that Trump’s “’vast, complicated and secret’ business interests are creating conflicts of interest and have resulted in unprecedented government influence in violation of the Domestic and Foreign Emoluments Clauses of the United States Constitution.” Op. at 1.

As the court notes, however, nothing in the Constitution prevents Trump from operating an extensive business empire that competes with CREW’s co-plaintiffs as to non-government business. Op. at 17. To the extent the Constitution might be construed to apply to business transactions with governmental entities, the effect on the Trump Organization would be largely incidental. As the court points out, even in that circumstance the Constitution would not prohibit the Trump Organization from doing business with foreign (or state) governments; it would simply prevent Trump from personally accepting income or profits from these transactions. Op. at 14 & n.3. Trump thus can fix any constitutional problem if he has not already, and Congress can waive any constitutional problem under the Foreign Emoluments Clause (FEC) anyway. Op. at 15. In short, Judge Daniels effectively rejects the notions that the Constitution prohibits the Trump Organization from operating during the Trump presidency or that Trump needs to divest himself of all interest in his businesses.

A second and more important takeaway from the opinion relates specifically to the FEC. Judge Daniels did not merely hold that these particular plaintiffs lack standing to sue. Instead, he found that any claim under the FEC would be non-justiciable. Op. at 25-26. As the court explains:

Here, the issue presented under the Foreign Emoluments Clause is whether Defendant can continue to receive income from his business with foreign governments without the consent of Congress. As the explicit language of the [FEC] makes clear, this is an issue committed exclusively to Congress. As the only political branch with the power to consent to violations of the [FEC], Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power. If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant’s conduct. As such, this case presents a non-justiciable political question.

Op. at 26 (emphasis added).

In addition, the court found that plaintiffs’ claims were premature because Congress itself had taken no action with regard to Trump’s alleged violations of the FEC. (One might add that Congress had little opportunity to do so, given that CREW filed its lawsuit on the first day of the administration.) The result might be different, the court implied, if in the future Congress were to find Trump’s activities required congressional consent. Op. at 27-28. But it is not the court’s role to tell Congress what to do or “how it should or should not assert its power in responding to Defendant’s alleged violations of the Foreign Emoluments Clause.” Id.

In a footnote, Judge Daniels underscored this point: “Congress is not a potted plant. It is a co-equal branch of the federal government with the power to act as a body in response to Defendant’s alleged Foreign Emoluments Clause violations, if it chooses to do so.” Op. at 28 n.8.

Needless to say (or, rather, as I have already said here and here), I am in strong agreement with the court’s approach to justiciability of the FEC claim. The House and/or Senate should give serious consideration to filing an amicus brief defending the court’s decision if and when CREW appeals to the Second Circuit.

Congress can also justify Judge Daniels’ confidence by demonstrating that it is not in fact a potted plant. It should initiate a review of Trump’s business interests to ensure there are adequate safeguards to prevent violations of the FEC or any other unacceptable conflicts of interest. Upon reflection, I think the best way to conduct a serious, nonpublic and nonpartisan review of this matter would be to entrust it to the GAO, possibly under the auspices of the Joint Committee on Taxation.

Finally, I must note that Judge Daniels makes no mention of the theory, advanced by Professor Tillman as amicus curiae, that the FEC is inapplicable to the president, other than to note that “[f]or purposes of this motion, Defendant has conceded that he is subject to the Foreign Emoluments Clause.” Op. at 6 n.2. Make of this what you will, but perhaps it suggests the court was not bowled over by Tillman’s theory? As an exercise in reading tea leaves this seems as least as plausible as Tillman’s apparently inferring from these orders in District of Columbia v. Trump (another emoluments case) that Judge Messitte is interested in hearing more about his theory. But we will see.

“Nothing I have done as a senator, nothing, has brought dishonor on this institution . . .”

“And I am confident the ethics committee would agree.”

I was struck by these words from Senator Al Franken’s resignation speech (or perhaps semi-resignation speech) today. While Franken is to some extent denying the factual allegations (i.e., groping various women) made against him, the point of this particular line was to stress that he has done nothing “as a senator” to dishonor the Senate. One has to assume that he is saying that even if the allegations against him are true, they would not constitute “improper conduct which may reflect upon the Senate,” as these words are used in S. Res. 338 (2)(a)(1). (Otherwise there would be no reason for the qualification “as a senator” in his statement.).

The Senate Ethics Manual makes clear a senator may be disciplined “for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole.” Senate Ethics Manual at 13; see also id. at 432-36 (reviewing conduct found by the Senate to constitute “improper conduct which may reflect upon the Senate” or bring the Senate into “dishonor and disrepute”). But in all of the cases in which the Senate has taken disciplinary action, there has been at least some indirect connection between the misconduct and the senator’s official duties or status.

The most tenuous such connection was in the case of Senator Larry Craig, who was charged with a misdemeanor for soliciting sex in a men’s bathroom at the Minneapolis airport. The Senate ethics committee ultimately issued a letter of admonition to Craig over the incident, in which the committee found that Craig had improperly attempted to use his position to avoid being arrested and charged, and then had improperly attempted to avoid the consequences of his guilty plea.  The committee’s letter to Craig concluded that “[t]he conduct to which you pled guilty, together with your related and subsequent conduct as set forth above, constitutes improper conduct reflecting discreditably on the Senate.” (Yes, the committee used the word “pled,” which apparently means its letter was written by Donald Trump).

Simon Davidson, Roll Call’s ethics columnist, and I debated at the time whether the Craig case involved the first instance of the ethics committee punishing a senator in part for purely personal conduct (i.e., soliciting sex in a bathroom) or whether the committee’s action was dependent on Craig’s subsequent actions which involved conduct at least somewhat related to Craig’s official duties. My view was that the committee was in fact exercising jurisdiction over purely personal conduct, though attempting to downplay that aspect of its action. As I noted, “the committee understandably does not want to be in the business (or advertise that it is in the business) of investigating or punishing sexual misconduct or other common indiscretions by Senators.”

My broader interpretation of the Craig admonishment would support the committee’s exercise of jurisdiction in the Franken case, except for one very important distinction. Craig was a senator at the time he engaged in the misconduct. Franken was not. As mentioned in my last post, the Senate has never disciplined any senator for conduct that occurred before he or she entered the Senate. Moreover, it has on a number of occasions refused to do so precisely because of doubts about its jurisdiction over such matters.

The combination of the personal nature of Franken’s alleged misconduct and the fact that it occurred before he entered the Senate makes it highly questionable whether this is a matter that the ethics committee could even investigate based on past precedent. There is certainly no precedent that would support the imposition of any serious sanction based on the facts alleged, even if they are all true.

Which is perhaps why Franken wanted the matter before the ethics committee in the first place.

The Senate’s Authority to Punish or Expel Roy Moore: A Response to Stan Brand

Former House Counsel Stan Brand has written this article in Politico entitled “Why the Law Might Not Allow the Senate to Expel Roy Moore.” I am working on a longer piece dealing with jurisdictional and prudential limits on the Senate Ethics Committee, but I want to take this opportunity to comment on Brand’s article. In brief, I agree with Brand on the bottom line (i.e., it will be extraordinarily difficult for the Senate to punish, much less expel, Moore for his alleged misconduct), but I think a little more precision with regard to the constitutional and legal issues would be helpful.

Moore, of course, is the Republican candidate in the Alabama special senate election to be held on December 12. For the last month or so (it seems longer), the main issue in that election has been Moore’s alleged sexual misconduct with a number of teenage girls (at least one as young as 14) about 30 years ago. If Moore should win the election, senate leaders have suggested that he will nonetheless have to face these accusations before the Senate itself.

As Brand notes, it is clear that the law does not permit the Senate to “exclude” Moore, that is, to refuse to seat him on the grounds that he lacks the constitutional qualifications to serve in the Senate. Moore has the constitutionally prescribed qualifications (age, citizenship and residency) and so the Senate must seat him.

But the Senate also has the power to punish any senator for “disorderly behavior” and, with the concurrence of two-thirds of the Senate, a senator may be expelled. Brand suggests that these powers may not extend to Moore’s case for three reasons: (1) Moore’s misconduct occurred in a prior Congress; (2) Moore’s conduct occurred before he entered the Senate; and (3) Moore’s conduct was known to the electorate at the time that it (hypothetically) elected him.

The first of these points is not well taken. It is true that there is language in early precedents suggesting that members cannot be punished or expelled for conduct occurring in prior congresses. (Professor Turley alluded to this idea as well). To the extent that this position was ever seriously entertained, it made more sense for the House (all the members of which stand for election every two years) than for the Senate, a continuing body consisting of members elected for six year terms. But in any event, both bodies have long recognized that they can punish or expel members for conduct occurring in prior congresses. House rules, for example, allow its ethics committee to investigate matters going back to the third previous congress and longer if the committee determines the prior conduct is directly related to an alleged violation occurring in more recent congress. House Rule XI (3) (b) (3). The Senate has declined to adopt any statute of limitations at all.

The second point is far more substantial. As far as I know, neither the House nor the Senate has ever disciplined, much less expelled, a member for conduct preceding his or her first election to the legislative body. On a number of occasions, the Senate has declined the opportunity to take cognizance of alleged misconduct occurring before first election. The only question is whether this precedent reflects a jurisdictional limit (i.e., a constitutional limit on the Senate’s power) or merely a strong aversion to using the Senate’s power in such situations. It should also be noted that whether the limit is jurisdictional or prudential, there is some precedent that a senator can waive the limit by asking for an investigation of his own conduct. See Josh Chafetz, Congress’s Constitution 252 (2017) (discussing the 1904 case of Senator Charles Dietrich, who asked the Senate to appoint a committee to investigate allegations that he behaved corruptly in his prior position as governor of Nebraska). This is a point that Moore’s lawyers will want to keep in mind (as perhaps Senator Al Franken’s should have as well).

Finally, Brand’s third point alludes to the “Wilkes principle,” which we have discussed in this blog on prior occasions (see here, here, and here). Essentially, it means that a legislative body should not expel a member for conduct that was fully known to the voters at the time of his or her most recent election. The voters, as Benjamin Cassady puts it, have the power to grant an “electoral pardon” with respect to a candidate’s prior misconduct. See Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine,” 32 Quinnipiac L. Rev. 209, 218 (2014).

Like Professor Chafetz, I doubt that this limit is jurisdictional in nature. See Josh Chafetz, Democracy’s Privileged Few 210-12 (2007). Although ordinarily it would be “impermissibly undemocratic” for a legislative body to expel a member after his or her constituents have indicated either forgiveness or approval of the conduct in question, the framers of the Constitution declined to prohibit expulsion twice for the same offense. In truly extraordinary circumstances, therefore, it may be permissible for the legislative body to expel a member for conduct known to the voters. In addition, there is always the possibility that “new” information not available to the voters will emerge after the election. At the moment, however, it seems very unlikely that the Senate could expel Moore without violating the Wilkes principle.

In short, while reasonable people can disagree whether the Senate has the constitutional authority to expel (or even punish) Moore for the conduct in question, there can be no doubt that the Senate would have to go well beyond any of its existing precedents to take such action.

Harriet Miers and Assertions of Executive Privilege for Former Officials

Several months ago we discussed whether the president could assert executive privilege to prevent a former official (in that case, former FBI Director Jim Comey) from providing information to Congress, even if the former official wanted to disclose the information. Eric Columbus, a lawyer who had served in the Obama Justice Department, argued that the answer is no. The core of his argument was that there was no legal mechanism to prevent a former official from voluntarily disclosing privileged information to Congress or to anyone else.

In response to Columbus, I noted that executive privilege belongs to the president, not to subordinate officials, and “it is hard to see why the availability of the privilege should turn on the subordinate’s preferences.” The issue I saw was procedural. If the former official declines to obey the president’s instruction to assert executive privilege, and the congressional committee declines to allow the administration to raise its objections directly, the burden would be on the administration to bring a lawsuit to restrain the former official from testifying. An analogous suit was brought by the executive branch to prevent AT&T from complying with a congressional subpoena in the 1970s. See United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977).

In a subsequent article, Columbus acknowledged the possibility of the executive bringing such an action, but argued that it “would almost surely be laughed out of court.” He contended that “[a] court could not enjoin Comey from testifying unless it could fathom a rationale that would also bar Comey from revealing the same information by writing a book, going on the Sunday shows, taking to Twitter or chatting at his local bagel shop.” The premise of Columbus’s argument was that because Comey was eager to provide information to Congress and/or the general public, there was no way for a court (or anyone else) to stop him. Columbus distinguished Comey’s situation from that of a “reluctant” former official, who does not “really” want to testify or provide the information demanded by Congress.

In going through some files the other day, I came across materials related to Harriet Miers, who served as White House counsel in the Bush administration and who is Columbus’s example of a “reluctant” former official subpoenaed by Congress. Contrary to Columbus, it seems to me that the Miers case is basically on all fours with the Comey situation, and I will take this opportunity to explain why. (It also enables me to clean out some old files, so yah!)

About 10 years ago the House Judiciary Committee, then chaired by Representative John Conyers (D-Mich.), conducted an investigation of the Bush administration’s firing of certain U.S. attorneys. In the course of this investigation, the committee issued subpoenas for documents and testimony to several current or former White House officials, including Miers.

Continue reading ‘Harriet Miers and Assertions of Executive Privilege for Former Officials’ »

Why I Snipe

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

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

Now to Tillman’s comment:

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

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

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

It is up to you.

Here is my response.

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

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

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

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

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

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

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

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

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

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

 

 

Why Congress Must Intervene in the Foreign Emoluments Litigation

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

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

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

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

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

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

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

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

 

 

Why Tillman’s Experts Show He is Wrong

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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