ACTUALLY CRIMINAL CONTEMPT MIGHT WORK PRETTY WELL RIGHT ABOUT NOW

I will take the occasion of a tweet by Representative Ted Lieu to make a point so obvious it may have been overlooked. Representative Lieu was responding to a question about why House Democrats have not subpoenaed the administrator of GSA (Emily Murphy, who goes by the adorable twitter handle of @GSAEmily) to ask her why she has not yet ascertained “the apparent successful candidates for the office of President and Vice President” in accordance with the Presidential Transition Act of 1963 (3 U.S.C. § 102 note). Lieu explained:

CONGRESSIONAL SUBPOENAS ARE MEANINGLESS BECAUSE WE CANNOT ENFORCE THEM.

(You can tell he is serious by the all-caps). Lieu goes on to say that GSA would simply ignore a subpoena, and that the House should change its rules to authorize inherent contempt, which would allow the sergeant-at-arms to arrest Murphy or other recalcitrant witnesses and bring them before a committee to testify (and, if they refuse, to try them for contempt before the bar of the House).

Now no one is more concerned than I about the impotence of congressional compulsory process with respect to the executive branch. All options for addressing that problem, including the revival of inherent contempt, should be on table for discussion.

However, the most important thing that the House could do right now to restore respect for its process would be to use the criminal contempt procedure set forth in 2 U.S.C. § 194. Under that provision, when a witness fails to appear, answer questions or produce documents in a congressional investigation, the House or Senate may refer the matter “to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.”

As we have frequently discussed, this provision is normally of little value with regard to executive branch witnesses because the Justice Department, despite the apparently mandatory language of the law, takes the position that it does not require it to take action when a witness asserts an official privilege at the president’s direction. Of course, ordinarily the Justice Department that makes the decision on prosecution is the same as the one that advised the president with regard to assertion of the privilege in the first place. That circumstance does not obtain today. There will be (at least if my twitter feed is to be believed)  a new administration come January 20, 2021, which may be willing to move forward with congressional contempt prosecutions of executive officials (or former executive officials), at least under certain conditions.

In the case of Murphy, for example, there are no grounds that I am aware of, even under the views previously articulated by OLC, for her to refuse to even appear before a congressional committee to discuss her statutory duties with regard to the transition. If she were to simply ignore a subpoena to appear, as Lieu suggests she would, she would be taking a very big risk that a new U.S. attorney for the District of Columbia (the “appropriate” U.S. attorney in this and almost all contempt cases) would decide to prosecute her. I suspect that she would in fact appear pursuant to a subpoena, but if she doesn’t, the House should certainly refer her for prosecution. (If she shows up but refuses to answer particular questions, we can cross that bridge when we come to it.)

Apart from Murphy, the House should be looking at strong contempt cases which could be referred now to the U.S. attorney. Presumably the current (acting) U.S. attorney will take no action on them, but as far as I know there is no way for him to prevent his successor from doing so. If the incoming Biden Justice Department is willing to prosecute one or more of the most egregious cases of executive contempt, that may go some way to restoring effective deterrence. And if it is not willing to do so, that will tell us something as well.

Things to Do in Dirksen When You’re Dead (Reprise)

In case you don’t get the reference, see here. Anyway, I have been meaning to write something about the 25thamendment for a while. This might seem like an odd time to do so, but there are distinct issues that may arise during the period between November 3, 2020 and January 20, 2121. So here goes.

The world’s leading expert (possibly the only expert) on the 25thamendment is Professor Brian Kalt of the Michigan State University College of Law. He has written a book called “Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment,” which you can and should buy on Amazon or wherever. (The numerical references in this post are to my kindle version of the book, which may or may not correspond to the hard copy). Even though almost everything I know about the 25thamendment I learned from Professor Kalt, I am not entirely in agreement with his take on it.

The key issue, for our purposes, relates to the meaning of the phrase “is unable to discharge the powers and duties of his office,” which is used in both sections 3 and 4 of the amendment. Under section 4, which governs the involuntary transfer of power from the president to the vice president, the vice president immediately assumes the powers and duties of the presidency as “Acting President” whenever he and a majority of the “principal officers of the executive departments . . . transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office.”

Professor Kalt stresses that section 4 “was meant neither to cover policy disagreements, however intense, nor to rectify misuses of power by a foolish or ineffective leader.” (55) The legislative history of the 25thamendment shows that Congress “focused on past Presidents who had been incapacitated, and ignored Presidents who had been feckless or inept even in the most damaging ways.” (54) The garden variety case for an invocation of section 4 was a president in a coma or otherwise completely incapacitated or incommunicado.

On the other hand, the text of section 4 is clear that it is not limited to such situations. The provision expressly contemplates the possibility that the president and the vice president/acting president will disagree about whether the former was or remains “unable to discharge the powers and duties of his office.” In such eventuality, section 4 provides a process for resolving the disagreement. The framers of the 25thamendment therefore anticipated that a president who is both conscious and able to communicate in a coherent fashion will nonetheless be ultimately determined to be unable to discharge the powers and duties of his office. As one key member of Congress remarked during the debate on proposing the amendment, section 4 covers “the case when the President, by reason of mental debility, is unable or unwilling to make any rational decision, including particularly the decision to stand down.” (54)

Parsed closely, that quote raises more questions than it answers. It suggests that a president could be declared “unable” because he is “unwilling” to make a “rational decision” about whether to stand down, which seems rather circular. The larger point, though, is that the 25thamendment does not attempt to define with any precision the line between inability, on the one hand, and ordinary errors, abuses, ineptness or incompetence in the execution of the president’s office, on the other. Instead, the framers left it to the process they designed to discern where that line is. Continue reading “Things to Do in Dirksen When You’re Dead (Reprise)”

Could Trump be held Liable for Infecting Others?

What seems like a lifetime ago (i.e., sometime in September) there was controversy about the Justice Department’s decision to intervene in a state court defamation suit against President Trump brought by E. Jean Carroll, a woman who has accused Trump of sexually assaulting her in the 1990s, for statements Trump made publicly about Carroll during his time in office. According to Carroll’s lawsuit, Trump defamed her by (among other things) falsely asserting that she had invented her accusation for political reasons or in order to sell books. The Justice Department filed a certification under the Westfall Act that these defamation claims fell within the scope of Trump’s employment as president, which resulted in the case automatically being removed to federal court. Unless Carroll is able to successfully challenge the certification before the federal court, her case becomes one against the United States, rather than Trump personally, and will ultimately be dismissed because under the Federal Tort Claims Act the United States retains sovereign immunity for intentional torts.

Although it was widely claimed that DOJ was acting improperly by intervening to protect Trump’s personal interests, even many of the president’s sharpest critics grudgingly acknowledged that this was not the case. As I pointed out on Twitter and in the press, DOJ’s action was most likely correct and certainly reasonable under existing case law. The fact that a woman who was (allegedly) defamed by her (alleged) rapist could be without any remedy for defamation because the rapist was a federal official when he made the defamatory statements is counterintuitive and morally appalling, but (for reasons we have previously discussed) it is the law. The key legal question is whether Trump’s statements are considered to have been made within the scope of his employment, a determination that is made under the governing state law and will most likely be made in Trump’s favor.

Now we may face a different tort question arising from Trump’s positive test for Covid-19 and allegations that he held or attended various events knowing that he and/or others had tested positive or likely were positive and that he failed to take appropriate precautions to protect guests and workers at these events from possible infection. As suggested by @jedshug on Twitter,  individuals infected by Trump or at events he sponsored could seek to sue him for recklessly endangering their health. I have no idea whether there would be a viable cause of action in any state where such infections might have occurred, but for arguments sake let’s assume there is.

The analysis of such claims would then differ depending on the nature of the “super spreading” event in question. If it was an official event, such as the White House ceremony announcing the nomination of Amy Coney Barrett to the Supreme Court, it seems likely that Trump’s actions would be considered to be within the scope of his employment and therefore the United States would be substituted as a defendant in any suit brought against him. Unlike the defamation claim brought by Carroll, though, the plaintiffs in such cases would not necessarily be out of luck. They could still recover damages against the United States because torts involving negligence or recklessness are not barred by the FTCA. (There are, however, other potential obstacles to recovery, including whether the claims were grounded in official acts for which the president enjoys absolute immunity).

On the other hand, Trump’s attendance at political fundraisers would most likely not be considered to be within his scope of employment because these are by definition nonofficial and personal in nature. One can imagine the argument being made that some aspect of Trump’s attendance should be considered within the scope of his employment and therefore the Westfall Act and FTCA applied. While it would be difficult to fully appraise such an argument without knowing the precise claims made and the state law that governs, my sense is that this would be pressing the outer bounds of scope of employment even under the existing case law.

As an example, back in the day there was a congressman from South Dakota named Bill Janklow who tragically killed a motorcyclist while driving to his home from an event elsewhere in the state. Not only did Janklow violate the speed limit and disregard a stop sign, but he had a long history of prior driving citations. He was convicted of reckless driving and manslaughter for his actions. Nonetheless, when the motorcyclist’s family brought suit against him, the court upheld DOJ’s certification that he was acting within the scope of employment. The fact that Janklow was acting in a reckless and even criminal manner, the court found, was not relevant; what mattered was that the event Janklow had attended (a ceremony honoring Korean war veterans) constituted congressional business and “[i]is readily foreseeable that a Congressman serving a district as vast and rural as South Dakota would drive an automobile when commuting between his office and meetings with his constituents.”

Had Janklow been returning from a political fundraiser or campaign event, however, the result would likely have been different. As the former head of the federal torts claims branch at DOJ, Jeffrey Axelrad, told Roll Call at the time, the department would not certify that a lawmaker was acting within the scope of his employment if he was in a traffic accident on the way back from such a political event.

 

Me and the Committee on Privileges

The Committee on Privileges of the House of Commons, which is reviewing the authority of select committees to compel the production of information and punish for contempt, has published my submission, which provides a general overview of similar dilemmas facing Congress in this area. If you would like to read it (and why wouldn’t you?), click here.

Justice Thomas, the Committee on Manufactures, and the Precedent of 1827

Continuing from my last post, let’s take a closer look at the precedent Justice Thomas considers “particularly significant” for purposes of determining whether Congress may subpoena private documents in a legislative investigation. In 1827, the House Committee on Manufactures (COM), which had been charged with developing a legislative proposal to raise tariffs, asked the House to pass the following resolution: “Resolved, That the Committee on Manufactures be vested with the power to send for persons and papers.” 4 Cong. Deb. 862 (Dec. 31, 1827). Members of the committee believed that it needed to hear from witnesses, particularly representatives of manufacturing interests that would benefit from tariffs, to determine both what goods should be protected and what the optimal tariff amount would be. See id. at 871-73 (Rep. Livingston); 875-76 (Rep. Buchanan).

Here is how Justice Thomas characterizes the ensuing debate over COM’s request:

This debate is particularly significant because of the arguments made by both sides. Proponents made essentially the same arguments the Committees raise here– that the power to send for persons and papers was necessary to inform Congress as it legislated. [4 Cong. Deb.] at 871 (Rep. Livingston). Opponents argued that this power was not part of any legislative function. Id. at 865-866 (Rep. Strong). They also argued that the House of Commons provided no precedent because Congress was a body of limited and enumerated powers. Id. at 882 (Rep. Wood). And in the end, the opponents prevailed. Thus, through 1827, the idea that Congress had the implied power to issue subpoenas for private documents was considered “novel,” “extraordinary,” and “unnecessary.” Id. at 874.

Dissent at 9.

Thus, Thomas argues that the record shows two things: (1) opponents of the resolution argued that Congress lacked the power to issue subpoenas for private documents as part of a legislative investigation; and (2) the opponents prevailed in the debate, thereby establishing a precedent that Congress lacked such power. As I will show below, Thomas badly misreads what happened in this debate.

The first thing to understand is that the debate was not primarily about the legal principle underlying COM’s request. Rather opponents had a practical and political objection to the request, namely that they feared it was a delaying tactic that would prevent a bill from being passed before the end of the session. See 4 Cong. Deb. 869 (Rep. Mallary) (“It certainly looked very much as if the object of the gentlemen, in introducing such a resolution as this, was merely to produce delay.”); id. at 865 (Rep. Strong) (“If the [requested] power be exercised, there will not be time to report and pass the bill during this session.”); see also id. at 866-67 (Rep. Stewart); 866-67 (Rep. Storrs); James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 177 (1926) (“Northern protection against southern free-trade appeared as the dominant issue and found violent partisans within and without Congress.”).

To be sure opponents also objected to COM’s request on the grounds that it was “novel” and “extraordinary.” See 4 Cong. Deb. 862 (Rep. Strong); id. (Rep. Wright of New York); id. at 874 (Rep. Stewart). Some doubted whether the House had the power to grant the request, although only one clearly took the position it did not. See id. at 877 (Rep. Wood).

In this regard opponents of the resolution focused on the unprecedented nature of giving a committee the power to send for “persons and papers” merely in order “to adjust the details of an ordinary bill.” 4 Cong. Deb. 866 (Rep. Strong). COM’s task, they suggested, was to exercise judgment based on a broad assessment of economic and social conditions (what might be termed “legislative facts” in modern parlance), rather than to investigate specific factual situations. See id. at 869-71 (Rep. Mallary). Thus, while Representative Wood expressed the strict view that “the only cases in which the House has a right to send for persons and papers, are those of impeachment, and of contested elections,” id. at 882, other opponents suggested a more nuanced distinction between gathering information to draft an “ordinary bill” and what today we might call “investigative oversight.” The latter position was more consistent with existing House precedent as a number of committees had been authorized to exercise compulsory powers for nonimpeachment investigations (including the St. Clair, Wilkinson, and Calhoun investigations). See Landis, supra, at 170-77; Ernest Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 36-37, 53-54, 64-66, 86-93 (1928).

What is most important, however, is that no one argued that there was something special, either constitutionally or as a matter of House precedent, about giving COM the power to demand the production of private documents (or any documents). The issue was whether COM should have any compulsory powers, not whether it should have the power to call for papers in particular. Indeed, the debate makes clear that COM’s interest was in hearing from witnesses; there is no indication it wished to obtain documents.

It is simply not accurate to suggest, as the dissent does, that opponents “prevailed” on removing COM’s power to call for documents. What actually happened was that Representative Oakley proposed an amendment to the resolution adding the words “with a view to ascertain and report to this House such facts as may be useful to guide the judgment of this House in relation to a revision of the tariff duties on imported goods.” 4 Cong. Deb. 868. The purpose of the proposed amendment (which did not affect the power to call for documents) was to address the objection that COM’s proposed resolution, unlike prior resolutions of this nature, did not specify the purpose for which the power was granted.

Oakley’s amendment mollified no one. Representative Stevenson, a supporter of the original resolution, noted that requiring the committee to submit a detailed report would create the kind of delay opponents feared. 4 Cong. Deb. 869. Representative Mallary, an opponent, remarked “that he could not perceive that the amendment varied in the least the principle of the resolution.” Id. at 869.

Nonetheless, Oakley persisted. He offered a new version of his amendment which he suggested would address the concern expressed by Stevenson. The new amendment was in the nature of a substitute for the original resolution, and it provided in full: “That the Committee on Manufactures be empowered to send for, and to examine persons on oath, concerning the present condition of our manufactures, and to report the minutes of such examination to this House.” 4 Cong. Deb. 873.

This revised amendment appears to have done nothing to soften the opposition of the pro-tariff side. See 4 Cong. Deb. 873 (Rep. Stewart) (noting that he “thought his amendment was substantially the same as the other”). Supporters of the resolution, on the other hand, found it acceptable. See id. at 875 (Rep. Buchanan) (“I am in favor of the amendment proposed by [Oakley]; not because it varies in principle from the resolution reported by the Committee on Manufactures, but because it expresses more fully and distinctly the objects which that committee had in view.”). Though Oakley’s revised amendment did not appear to change any minds, the House accepted it and ultimately approved the resolution as amended. Id. at 888, 890.

Oakley’s revised amendment did eliminate the authorization for COM to call for papers. This, however, was not the expressed purpose of the amendment, and it is unclear whether the omission was even intentional. Oakley himself never mentioned it, and it attracted little attention from anyone else. Representative Wright of New York noted the omission and suggested that Oakley might want to modify the amendment to authorize COM to require witnesses to bring the books of their establishments when they appeared to testify. 4 Cong. Deb. 879. Although no one else followed up on this suggestion, one of the opponents of the resolution (confusingly also named Wright, but from Ohio) attacked Wright of New York for making it. See id. at 885 (“Are gentlemen prepared, sir, to establish an inquisition in this country, that shall pry into the business concerns of individuals, upon common subjects of general legislation?”). Other than this rhetorical jab, no one appeared to care about the issue at all.

There is, in short, nothing to suggest that anyone, including Oakley himself, voted for the revised amendment because it eliminated COM’s power to call for papers. If there were “swing voters” who supported the resolution because of this modification, there is nothing in the record to so indicate. Not a single member argued that the power to call for papers raised a separate constitutional issue or that the elimination of this power affected the constitutionality or propriety of the resolution.

The House’s ultimate adoption of the resolution has been uniformly understood as establishing a precedent in favor of the House’s authority to use compulsory powers for purposes of aiding the drafting of legislation. See Landis, supra, at 177-78; Eberling, supra, at 94-98; Telford Taylor, Grand Inquest: The Story of Congressional Investigations 34 (1955). No commentator has suggested “the opponents prevailed” or interpreted the result as a precedent against the House’s authority to compel the production of documents. Cf. Carl Beck, Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on Un-American Activities, 1945-1957 17 (1959) (“Throughout its history Congress has been aware that this power [to compel the production of documents and papers] is necessary to gather facts in aid of a legislative purpose and to serve as a watchdog upon the executive branch of the government.”).

As Justice Thomas notes, controversy over the extent of congressional compulsory powers did not end in 1827. Dissent at 9-11. However, his discussion of these subsequent controversies overlooks that: (1) like the 1827 debate, they involved whether compulsory powers generally, not the power to compel the production of documents in particular, could be employed in certain types of investigations; (2) those who opposed the use of compulsory powers did not assert the 1827 vote as a precedent in their favor; and (3) these later controversies also invariably were resolved in favor of the compulsory power. Thus, to the extent that Justice Thomas believes that Congress lacks any compulsory power in legislative investigations, he is not asserting a novel position, but one that has been repeatedly rejected by both houses of Congress over two centuries. On the other hand, the idea that Congress specifically lacks the power to compel the production of documents has not only been (impliedly) rejected, it does not appear to have been even asserted.

Thomas’s dissent also alludes to the possibility that congressional subpoenas for documents might violate the Fourth Amendment. See Dissent at 7. This is a different legal argument than the claim Congress lacks the power to subpoena documents in the first place. This argument was raised on at least one occasion of which I am aware, although interestingly the dissent does not cite it. When the original contempt of Congress statute was introduced in 1857, Representative Israel Washburn questioned whether making it a crime to withhold papers from Congress would be consistent with the Fourth Amendment. See David P. Currie, The Constitution in Congress: Democrats and Whigs 1829-1861 222 (2005). Washburn asked “Are you not by this bill dispensing with the conditions and requirements of the Constitution and endeavoring to obtain the possession of private papers without warrant issued upon probable cause, and supported by oath or affirmation?” Id.

It was perhaps an interesting question, though Professor Currie reports that “no one condescended to answer Washburn’s objection.” Of course, if taken seriously, the objection would call into question all congressional as well as judicial document subpoenas and, as Currie notes, has long since been settled by the Supreme Court against Washburn. See id. at 222-23 & nn. 98, 100. It is unclear how throwing the Fourth Amendment into the mix advances Justice Thomas’s argument.

 

Justice Thomas’s Dissent in Trump v. Mazars

Today I will discuss Justice Thomas’s dissent in Trump v. Mazars USA, LLP. Specifically, I will consider how Thomas uses historical practice and precedent to support his claim that “[a]t the time of the founding, the power to subpoena private, nonofficial documents was not included by necessary implication in any of Congress’s legislative powers.” Mazars, slip op. at 3 (Thomas, J., dissenting) (hereinafter “Dissent”).

The starting point for Justice Thomas is that the House has no express power to issue legislative subpoenas and thus it may only be found to have such power if it can “be necessarily implied from an enumerated power.” Dissent at 3. This in itself is fairly noncontroversial, leaving aside the longstanding debate whether “necessary” means absolutely necessary, merely convenient, or somewhere in between. See Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 188-208 (2003).

The challenges for Justice Thomas’s position are two-fold. First, as he acknowledges, the Supreme Court long ago decided this issue against him when it declared the “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” McGrain v. Daugherty, 273 U.S. 135, 174 (1927). Although Thomas points out that McGraindid not involve document subpoenas, he does not contest that its language and reasoning are broad enough to cover such subpoenas, and he acknowledges that subsequent cases have applied it to uphold legislative subpoenas for private documents. Dissent at 14. Nonetheless, he contends that McGrain and its progeny should be disregarded because “this line of cases misunderstands both the original meaning of Article I and the historical practice underlying it.” Id.

This brings us to the second challenge. Even if we assume away the McGrain line of cases, Congress has been issuing legislative subpoenas for private documents for nearly two centuries, even by Thomas’s own reckoning. So in what sense might historical practice demonstrate that the original meaning of Article I does not encompass a congressional power to issue such subpoenas? According to the dissent, the key precedent occurred in 1827, when the Committee on Manufactures (COM) sought the power to subpoena documents and the House rejected the request as “unprecedented.” Dissent at 8. But even if this were true (and we will see that it is not), this would establish only that the issue was unsettled at that point in time. If a majority of the House had determined in 1827 that it lacked the constitutional authority to issue subpoenas for private documents, this would tell us little or nothing about the intent of the founders on this issue. Nor could it have constituted a “constitutional liquidation”  of the issue because, as Thomas acknowledges, the House reversed its (alleged) decision within the next ten years and has followed the practice of issuing such subpoenas ever since. See Dissent at 9-11; see generally William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).

Perhaps one could make the argument that the absence of any history of issuing legislative document subpoenas prior to 1827 demonstrates that this power was not truly “necessary” in the sense required to make it incidental to the legislative power. If this is Thomas’s argument, however, he does not make it explicitly. To the contrary, he criticizes the McGrain Court for adopting “a test that rested heavily on functional considerations.” Dissent at 16. Although he offers his view that “the failure to respond to a subpoena does not pose a fundamental threat to Congress’ ability to exercise its powers,” this “functional” assertion appears in a footnote and is not central to the dissent’s analysis. See Dissent at 17 n.6.

The “key moves” in the dissent’s argument serve to define the universe of relevant practice and precedent so narrowly that none exists prior to the Committee on Manufactures’ request in 1827. First, Thomas insists that only precedent involving the production of private papers, rather than official papers or witness testimony, is relevant. See Dissent at 6. Second, he assumes that the actual exercise of the subpoena or compulsory power, as opposed to the mere authorization of such power by the legislative body, is required to establish a persuasive precedent. Third, he discounts precedents from Parliament and (to a lesser degree) the colonial and early state legislatures on the ground that these bodies are not “exact precursor[s]” to Congress, which has more limited powers. See Dissent at 3-7. Finally, he contends that precedents established in the exercise of nonlegislative functions (such as impeachment, discipline of members, and other quasi-judicial functions) are unpersuasive to establish the existence of a like legislative power. Dissent at 6-7.

This approach allows the dissent to ignore the fact that the practice of investing legislative committees with the power to send for “persons and papers” dates back to the early 17thcentury. Telford Taylor, Grand Inquest: The Story of Congressional Investigations 7 (1955). It was commonly used by Parliament, the colonial assemblies, and the early state legislatures to empower committees to conduct a wide variety of investigations, including those related to election contests, breaches of privilege, government misconduct or maladministration, and proposed legislation. See Taylor, Grand Inquest at 7-12; Ernest Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 14-30 (1928); James M. Landis, Constitutional Limitations on the Power of Investigation, 40 Harv. L. Rev. 153, 161-68 (1926); C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. Pa. L. Rev. 691, 708-15 (1926). While this power was usually provided in connection with a specific investigation, in 1781 the Virginia House of Delegates provided four standing committees (on religion, privileges and elections, courts of justice, and trade) with general power to “send for persons, papers, and records for their information.” Potts, 74 U. Pa. L. Rev. at 716.

The dissent apparently would view this ample historical precedent to be of little weight in the absence of evidence that any of these committees actually subpoenaed private papers or that any witness was punished for withholding them. But given the large number of these investigations and the wide variety of subjects they covered, it is not credible to suggest the term “papers” was understood to be limited to “official papers.” The dissent cites no evidence to suggest that anyone at the time understood these authorizations to be so limited, nor do any of the scholars who have studied these investigations advance such an interpretation.

The dissent’s narrow reading of precedent extends to early congressional practice. Take, for example, the House’s 1792 investigation into General St. Clair’s failed military expedition, which the McGrain Court viewed as significant evidence that the founders understood the power to compel the production of information as an inherent attribute of the legislative power. See McGrain, 273 U.S. at 161, 174. The House empowered the investigating committee “to call for such persons, papers and records as may be necessary to assist their inquiries.” As the McGrain Court understood (and Justice Thomas does not dispute), this language authorized the committee to demand the production of evidence with the implicit backing of the House’s compulsory powers.

According to the dissent, the St. Clair committee “never subpoenaed private, nonofficial documents, which is telling.” Dissent at 7. However, there is nothing in the language of the House’s resolution or in the contemporaneous congressional debates to suggest that the committee’s compulsory authority did not extent to private persons or papers. To the contrary, a significant part of the committee’s investigation involved evaluating the performance of private contractors and the quality of goods they supplied to General St. Clair’s army. See, e.g., I Arthur M. Schlesinger, Jr. & Roger Bruns, eds., Congress Investigates: A Documented History 1792-1974 39 (1983) (committee report of May 8, 1792 noting complaints “as to tents, knapsacks, camp kettles, cartridge boxes, packsaddles, &c. all of which were deficient in quantity and bad in quality”). If the committee were precluded from obtaining information from the contractors or compelling the production of their records, this seems like a significant limitation that would have attracted attention, particularly since the House debated at length whether the inquiry should be conducted by a congressional committee or a military tribunal. See id. at 9-10.

While it may be true that the St. Clair committee never subpoenaed “private, nonofficial documents” (a conclusion that cannot be reached with confidence given that many of the relevant records were not preserved, see id. at 17, 101), there is nothing “telling” about this fact. There is no indication that the committee lacked access to private documents it believed relevant; to the contrary, it reviewed St. Clair’s personal papers as well as information from the private contractors. See id. at 10, 95. There is simply nothing to suggest that the committee doubted its authority to subpoena private papers if necessary.

The overall effect of Justice Thomas’s approach is to narrow the scope of relevant precedent to a very small subset. In order to qualify, a precedent must involve an actual subpoena or document demand (not merely an authorization) by Congress (not by Parliament or a colonial/state legislature) for clearly private papers (not official or arguably official records) in connection with a legislative investigation (not the exercise of a judicial power such as impeachment or discipline of members). Using these restrictive criteria, Thomas contends that when in 1827 COM sought the power to subpoena documents in connection with a proposed bill to raise tariffs, its request was “unprecedented.” Dissent at 8.

Even so, Justice Thomas is wrong. About a year before the committee’s request, another House committee investigating John Calhoun’s prior administration of the War Department subpoenaed documents from an unsuccessful bidder on a government contract. See 3 Reg. of Debates in Cong. 1124 (Feb. 13, 1827). Moreover, the House’s 1810 investigation of General James Wilkinson also obtained testimony and documents from a number of private individuals, at least some of which was obtained from a number of private individuals, at least some of which was obtained by compulsory process. I Schlesinger & Bruns, Congress Investigates at 119 & 170. Thus, even by Thomas’s own standards, COM’s request was not “unprecedented.”

That being said, in my next post we will take a closer look at the 1827 debate precipitated by COM’s request for compulsory powers.

 

 

 

Applicability of Federal Criminal Laws to OCE Investigations

In one of his last opinions on the D.C. Circuit, Judge Griffith resolved another congressional case, United States v. Bowser, No. 18-3055 (D.C. Cir. June 30, 2020), albeit one less consequential than McGahn. David Bowser, a former chief of staff to Representative Paul Broun (R-Ga), was convicted of obstructing an investigation by the Office of Congressional Ethics (OCE) into whether Broun had improperly used funds from his “Members Representational Allowance” (MRA) to pay for campaign related expenses.  Specifically, OCE in 2014 launched an inquiry into whether a “messaging consultant” hired by Broun’s office had been paid out of the MRA for time spent on Broun’s congressional and senate campaigns.

In response to OCE’s preliminary review of these allegations, Bowser coached witnesses to provide false or misleading information to OCE, encouraged them to withhold responsive and relevant documents, and did the same himself. As a consequence, he was indicted and convicted of obstructing Congress, concealing material facts from OCE, and making false statements.

On appeal, there were two principal legal issues presented. First, the court addressed whether the obstruction of Congress statute, 18 U.S.C. § 1505, applies to OCE investigations. The statute applies to any investigation or inquiry by “either House, or any committee of either House or any joint committee of the Congress.” As the court noted (and the government conceded), this language on its face does not encompass OCE. It stressed that Congress knows how to draft statutes to cover offices such as OCE when it wishes to do so, contrasting the limited scope of § 1505 with the False Statements Act, which “applies to ‘any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress.'” Bowser, slip op. at 8 (quoting 18 U.S.C. § 1001(c)(2)) (emphasis added by court).

The government argued, however, that OCE conducts investigations as an agent for the House and/or the House ethics committee. The court was not persuaded. It pointed out that the statute defines which “agents” it covers, i.e., committees and joint committees, and therefore other entities could not be covered simply because they act in some general sense as agents for one house or Congress as a whole. It also found that OCE’s functions under the House rules undercut the government’s argument because OCE merely has the limited power of conducting reviews and issuing recommendations to the ethics committee, which then determines whether to undertake the actual “investigation.”

Accordingly, the D.C. Circuit found the obstruction statute inapplicable to OCE’s inquiry and affirmed the district court’s grant of Bowser’s post-trial motion for acquittal on the obstruction charge.

The second major issue was Bowser’s claim that the district court should have also granted his motion for acquittal on the charge of concealment under the False Statements Act. While he did not dispute that OCE was an “office of the Congress” within the meaning of that statute, he argued there could be no concealment because OCE’s preliminary reviews are voluntary and therefore impose no duty on witnesses to disclose information. The court, however, held that a voluntary ethics investigation or review may impose a duty to disclose as long as witnesses are given fair notice of this fact. Under the circumstances of this case, Bowser was under such a duty because he had certified in writing that he had fully complied with OCE’s request for information and had been advised that his disclosure was subject to the False Statements Act.

Bowser is a fairly straightforward statutory interpretation case which is probably not all that interesting to anyone except lawyers who represent clients in House ethics matters. Its most immediate impact, I suspect, will be to give such lawyers cover for advising their clients not to cooperate voluntarily with OCE.

Presidential Electors and the Article V Convention: An Update

A few years ago I wrote a post explaining why the failure of the “Hamilton electors” in the 2016 presidential election demonstrated that it would be equally impossible for an Article V convention to “run away,” i.e., to propose amendments beyond the scope of the convention applied for by the state legislatures. Among other things, I argued that the constitutional case for allowing state legislatures to control their delegates to an Article V convention was stronger than that for exercising such control over their presidential electors. Accordingly, the deterrent and coercive effect of “delegate limitation laws” (DLAs) enacted by various states to control delegates to a potential Article V convention should be as least as great as that of faithless elector laws upon which they were in part modeled.

The Supreme Court’s recent decision upholding the constitutionality of faithless elector laws shows that it will be difficult to challenge DLAs and may encourage additional states to enact such laws. In Chiafolo v. Washington, 591 U.S. __ (2020), the Court unanimously held that states may not only require presidential electors to pledge to support a particular candidate but they may penalize electors who violate this pledge. Writing for seven justices, Justice Kagan acknowledged that the framers may have expected that the electors would exercise their own judgment and discretion in voting for president, but the “barebones” constitutional text regarding the electoral college failed to constitutionalize that requirement. Chiafolo, slip op. at 12-13. In contrast, the Constitution expressly gives state legislatures power over the appointment of presidential electors, and “the power to appoint an elector (in any manner) includes the power to condition his appointment– that is, to say what the elector must do for the appointment to take effect.” Id. at 9. The constitutional text and the longstanding practice of treating electors as mere instruments of the voters’ will persuaded the Court to uphold faithless elector laws.

Justice Thomas, writing for himself and Justice Gorsuch, concurred on different grounds. While he found “highly questionable” the majority’s conclusion that the Constitution affirmatively grants states the power to limit the discretion of presidential electors, he concluded that faithless elector laws were valid under the Tenth Amendment’s reservation of powers to the states and the people.

The Chiafolo ruling provides strong support for the constitutionality of DLAs. The Constitution is even more “barebones” about an Article V convention than about the electoral college. It does not expressly address how an Article V convention is constituted, who selects the delegates, or how they vote. (These omissions did not escape James Madison’s attention. See Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 768 n.27 (2011)). Nonetheless, assuming that convention delegates are to be appointed by or in a manner directed by the state legislatures (as virtually everyone agrees would be the case), Chiafolo strongly suggests that these legislatures would have the power to condition the appointment by limiting the discretion of delegates and to impose legal consequences for violations of such condition. Continue reading “Presidential Electors and the Article V Convention: An Update”

Will the D.C. Circuit’s “Unusual Moves” Allow it to Evade Supreme Court Review in the McGahn and Mnuchin Cases?

On Friday the D.C. Circuit, sitting en banc, held that the House Judiciary committee has standing to enforce its testimonial subpoena to former White House counsel Don McGahn. See Comm. on the Judiciary, U.S. House of Representatives, v. McGahn, No. 19-5331 (D.C. Cir. Aug. 7, 2020) (en banc). In so doing, the court rejected both the administration’s broad argument that Congress lacks Article III standing to sue anybody for anything and its narrower position that Congress lacks standing to bring an interbranch dispute to court. This is an important decision that, if it stands, will form the legal backdrop of executive-legislative disputes for years to come.

The court’s reasoning and that of the dissenters is not my focus today. (Professor Adler has a good summary of the various opinions here). Rather I want to focus on what happens next in these cases, and whether the majority has successfully insulated its decision from Supreme Court review.

The vote in McGahn was 7-2. The two dissenters were Judges Henderson and Griffith, who were the majority on the original panel to hear the McGahn case. They were also the only Republican appointees to participate in the en banc court because the two other Republicans on the court (Judges Katsas and Rao) were recused.

Although the McGahn en banc decision resolved the standing issue, it did not deal with other issues that had been raised on appeal. Instead, the full court ordered that the remaining appellate issues be “remanded to the panel to address in the first instance.” the issues remanded are (1) whether there is subject matter jurisdiction with respect to this lawsuit; (2) whether there is a cause of action for failure to comply with a congressional subpoena; and (3) assuming the Judiciary committee prevails on the first two issues, the merits of McGahn’s “absolute immunity” defense.

In addition to rejecting the majority’s standing analysis, Judge Griffith (but not Judge Henderson) protested the majority’s failure to decide all the issues in the case, noting that “the full court hurdles over Article III barriers only to decline to resolve the case.” In Griffith’s view, the court should have addressed the remaining issues and concluded, as he does, that there is no subject matter jurisdiction and no cause of action for the committee’s grievance against McGahn.

The original McGahn panel consisted of Judges Rogers, Henderson and Griffith. I assume the case will be remanded to the same panel. Judge Griffith, however, is retiring effective September 1 and therefore (I assume) will have to be replaced. Presumably this is why Griffith felt compelled/able to give his views on the issues the panel will now have to consider.

Separately, the en banc court remanded to a different panel the case of U.S. House of Representatives v. Mnuchin, No. 19-5176, in which the House is suing the Trump administration for violating the Appropriations Clause by constructing a border wall without congressional authorization. Although the en banc court initially agreed to consider the standing issue in Mnuchin (even before the original three-judge panel had ruled on it), it has now decided to send that issue back to the panel to consider the House’s standing under the principles set forth in its McGahn decision.

Judges Henderson and Griffith also dissented from the decision to remand Mnuchin, arguing that it makes no sense to have sua sponte agreed to hear the Mnuchin case en banc, requested and received supplemental briefing and argument, and then simply punted the issue back to the three-judge panel.  As Judge Henderson puts it, “[t]he majority points to no case– nor am I aware of any– in which we sua sponte consolidated two appeals for en banc rehearing and then addressed only one of them in the resulting opinion.” Mnuchin, slip op. at 2 (Henderson, J., dissenting).

Judge Griffith had some even more pointed remarks for his soon to be former colleagues. He accuses the full court of repeatedly departing from regular order by first determining that the standing question in Mnuchin was not only of such “exceptional importance” to justify rehearing en banc, but making this determination sua sponte before the three-judge panel had even issued an opinion, and then “sending the case back to the panel without answering the ‘question of exceptional importance’ that triggered rehearing in the first place.” Mnuchin, slip op. at 3 (Griffith, J., dissenting). He then asks: “What accounts for this extraordinary departure? The court offers no explanation for this unusual move, and I can think of none.” Id.

Well, I can think of an explanation (and I suspect Griffith can too). By failing to issue a final decision in either McGahn or Mnuchin, the D.C. Circuit has made it much less likely that the Supreme Court will have an opportunity to grant certiorari prior to the election. And if these cases drag on past the election, there is a good chance the Court will never hear them at all.

Let’s begin with McGahn. As everyone concedes, it is highly unlikely now that McGahn will be testifying in this congress (and certainly not before the election). Thus, there will be little urgency for the reconstituted panel to issue a final decision (and consider how slowly things moved when there was urgency). Possibly a final decision might issue before the election, but the longer it takes, the less reason the Supreme Court will have to grant review. In the first place, the expiration of the congress terminates the subpoena and therefore arguably moots the case. Furthermore, if the election changes the occupant of the White House, it is entirely possible the incoming Justice Department will not be interested in pursuing Supreme Court review.

Now consider Mnuchin. As in the case of McGahn, if the full D.C. Circuit had found in favor of the House now, the Justice Department would have undoubtedly sought Supreme Court review on an expedited basis. Even if the court found against the House (which frankly I think is more likely), the House might have felt politically that it needed to seek further review. However, if the Democrats win the White House, the House will probably lose interest in the case regardless of which way the panel decision goes, and the case will go away without Supreme Court review. Only if the House wins the panel decision and Trump retains the White House does it seem likely that the parties would pursue further review.

Note, however, that if there is a new administration, its interests will not necessarily align with those of the House. While it may not wish to take a case on congressional standing to the Supreme Court, it probably would prefer not to have the D.C. Circuit’s standing decision in McGahn as the controlling law either. Just as the Obama administration reportedly tried (unsuccessfully) to get the House to agree to dismissal of the Miers case on grounds of mootness, the issue in an incoming Biden administration may not be Supreme Court review, but whether the D.C. Circuit’s en banc decision in McGahn is rendered moot by the expiration of the congress or otherwise.

In short, the big issue in McGahn and Mnuchin is no longer whether the House will get the relief it initially sought, but whether the D. C. Circuit’s standing decision will be preserved as the law of the circuit. Interested parties should plan accordingly.

 

 

Justice Thomas and Judge Rao: A Tale of Two Mazars Dissents

Justice Thomas’s dissent in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), has been compared to Judge Rao’s dissent in the D.C. Circuit below, with the implication that this somewhat vindicates Rao’s widely panned opinion. However, the two dissents are in fact quite different, and it seems pretty clear that Justice Thomas was not persuaded by his former clerk’s opinion.

To be sure, there are similarities between the two dissents. Both ignore the presidency-centered arguments offered by President Trump’s personal legal team and the Department of Justice in favor of broader theories not raised by any party or amicus. Both evince skepticism if not outright hostility toward legislative investigations generally and clearly prefer the stance taken by the Court in Kilbourn v. Thompson, 103 U.S. 168 (1881) to that of McGrain v. Daugherty, 273 U.S. 135 (1927). Both indicate that these congressional subpoenas seeking the president’s personal financial information would be valid, if at all, only through the exercise of the impeachment power. Both rely to a great extent on historical practice, particularly a kind of negative historical practice (i.e., drawing conclusions from things that allegedly did not happen).

Despite these similarities, the two dissents employ different reasoning, rely on different “precedents,” and reach very different conclusions. The textual and structural lynchpin of Judge Rao’s analysis is the impeachment power, which she claims “provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process.” Trump v. Mazars USA, LLP, 940 F.3d 710, 751 (D.C. Cir. 2019) (Rao, J., dissenting). While Rao acknowledges Congress’s general legislative power to conduct investigations, this power in her view does not extend to matters within the “impeachment zone” (my term, not hers). How one determines what falls within the impeachment zone is somewhat unclear, but Rao finds that the subpoenas for Trump’s financial information are ones that can only be pursued through the impeachment power.

Much of Rao’s opinion is devoted to her contention that “consistent historical practice” supports her conclusion. Id. at 753. To wit, she endeavors to show that Congress has never investigated matters within the impeachment zone except through the use of the impeachment power. Id. at 758-67.

Thomas takes a different approach. Although he agrees with Rao that the personal financial records at issue may be obtained by Congress, if at all, only through the exercise of the impeachment power, he reaches this result because he believes Congress lacks the power to subpoena private, nonofficial documents in any legislative investigation. Unlike Rao, he does not claim that the impeachment power somehow displaces otherwise available legislative power to investigate.

A simple illustration of the difference between the two dissents is to imagine Donald Trump had never been elected president. (It’s easy if you try). Under Rao’s theory, Congress would be able to subpoena his financial records for legislative purposes, such as to investigate the operation of money-laundering laws (which was the asserted purpose of the subpoena issued by the Committee on Financial Services). Under Thomas’s theory, on the other hand, these records could never be subpoenaed for a legislative purpose.

Put another way, Thomas would proscribe a particular legislative tool (subpoenas for private documents) for all legislative investigations, while Rao would proscribe the use of any compulsory process for certain investigative subjects (legislative investigations of matters falling within the impeachment zone). Thus, Rao would allow subpoenas for private documents in legislative investigations outside the impeachment zone; Thomas would not. Thomas would allow subpoenas for testimony or official documents in legislative investigations within the impeachment zone; Rao would not. Though they produce the same result in this particular case, the two theories are entirely different.

Furthermore, Thomas evidently rejects Rao’s interpretation of historical practice. While Rao claims that investigations of wrongdoing by impeachable officials have occurred exclusively through the exercise of the impeachment power, Thomas makes this observation:

     For nearly two centuries, until the 1970s, Congress never attempted to subpoena documents to investigate wrongdoing by the President outside the context of impeachment. Congress investigated Presidents without opening impeachment proceedings. But it never issued a subpoena for private, nonofficial documents as part of those non-impeachment inquiries.

Trump v. Mazars USA, LLP, 591 U.S. __, slip op. at 20-21 (2020) (Thomas, J., dissenting) (citation omitted) (emphasis added).

As Thomas acknowledges, Congress has investigated wrongdoing by presidents (not to mention other impeachable officials) in “non-impeachment inquiries” both before and after the 1970s. Whatever the factual accuracy or legal significance of the claim that these non-impeachment inquiries did not subpoena private, nonofficial documents “until the 1970s,” Thomas clearly does not see the historical pattern asserted by Rao as the key to her dissent.

None of this is to say that Justice Thomas’s dissent is correct (it is not) or even more plausible than Judge Rao’s (we will leave that to another day). It is fair to say, though, that Thomas was unpersuaded by Rao’s analysis and finds his own to be more plausible.