Is the Pay Czar Unconstitutional?

           Professor (and former judge) Michael McConnell has written this Wall Street Journal op-ed arguing that Kenneth Feinberg, the “pay czar,” is an officer of the United States and therefore subject to the Appointments Clause.   Under the Appointments Clause, all officers must be appointed by the President, with the advice and consent of the Senate, unless Congress has by law provided for a different method of appointment.  Since Congress has not done so, McConnell contends, Feinberg was unconstitutionally appointed and his decisions regarding executive compensation were without legal authority. 

            This appears to be a very powerful argument.  The authority to cap executive compensation, which was given to the Secretary of the Treasury as part of the TARP legislation, would clearly seem to be the type of significant legal authority that can only be exercised by an officer of the United States.  As I have noted before, officers of the United States have included ministerial officials with little, if any, discretionary authority (eg, deputy postmasters or deputy clerks of court),  It is hard to imagine that the authority to limit private sector compensation, even for a limited group of individuals, would not qualify. 

            I can think of only two plausible arguments that the administration might make in response.  First, it might claim that Feinberg has no authority to act on his own and merely makes recommendations to the Secretary of the Treasury.  However, according to McConnell, Feinberg actually signed orders on executive compensation.  If this be true, it would be very hard to argue that his role is purely advisory, even if his orders were subject to review by the Secretary of the Treasury. 

            Second, the administration might argue that Feinberg’s functions are not “continuing” because they only relate to TARP, which is a temporary program.  The Office of Legal Counsel has opined that an officer of the United States must exercise “continuing” legal authority so that being sent on a special diplomatic mission, for example, is not enough to make one an officer.  I tend to doubt that Feinberg’s role is of such a limited and temporary nature so that he would not qualify as an officer, but there is no bright line test that would enable one to make that judgment with complete confidence. 

            This could be the subject of some interesting litigation.    

Could the Nobel Peace Prize Violate the Illegal Gratuities Statute?

           At the Volokh Conspiracy, David Kopel discusses whether President Obama needs congressional consent to accept the Nobel Peace Prize, including a check in the amount of more than $1 million (which Obama has said will be donated to charity).  Kopel concludes that the matter is governed by the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342, which provides the congressional consent needed to accept a “present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” under Article I, § 9, cl. 8 of the Constitution.  Under Kopel’s analysis, Obama may accept the prize without further congressional consent, but only if he signs the check over the government, as the statute requires. 

            Kopel’s analysis seems correct, but only if one assumes that the Nobel Peace Prize Committee constitutes a “foreign government” as defined by the Act.  This is by no means obvious because, while the members of the committee are appointed by the Norwegian Parliament, their acts in awarding the prize would seem to be essentially private in nature and are conducted on behalf of the Alfred Nobel Foundation, rather than on behalf of the Norwegian Government.   

            If, in fact, the Nobel Peace Prize Committee is not a foreign government, however, the legal situation gets even messier.  18 U.S.C. § 201 (c), generally known as the illegal gratuities statute, provides that it is a crime if someone: 

            (1) otherwise than as provided by law for the proper discharge of official duty—  

(A) directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official; or  

(B) being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person. 

It might be argued that the prize was not given to the President “for or because of any official act,” but only because of the general pro-peace tone of his campaign and/or presidency. This would be a factual question, but I believe that members of the committee have suggested that the prize was given, in part, on account of particular acts taken by Obama as president, including steps to de-nuclearize Europe. In any event, for purposes of this analysis, I will assume that there is evidence to show that the prize was given, in part, for or because of an official act.

This may not be a legal problem for Obama, however, because federal regulations issued by the Office of Government Ethics provide for a number of circumstances under which a federal employee may accept a gift and explicitly declare that such a gift “shall not constitute an illegal gratuity otherwise prohibited by 18 U.S.C. 201(c)(1)(B).”

There are at least two regulatory exceptions that would seem to help Obama here. First, 5 C.F.R. § 2635.204 (d) permits employees to accept gifts “if such gifts are a bona fide award or incident to a bona fide award that is given for meritorious public service or achievement by a person who does not have interests that may be substantially affected by the performance or nonperformance of the employee’s official duties or by an association or other organization the majority of whose members do not have such interests.” If the award is worth more than $200, acceptance requires written authorization from an agency ethics official. The regulations then give the following example: “Based on a determination by an agency ethics official that the prize meets the criteria set for this in § 2635.204 (d)(1), an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH.”

This provision would seem to authorize Obama’s acceptance of the prize, assuming that he obtains the required written authorization. I suppose one could argue, as Kopel does, that the Nobel Peace Prize Committee has an “interest” in influencing U.S. foreign policy, but I doubt that this is the type of interest referred to by the regulation.

Moreover, a second regulatory exception, 5 C.F.R. § 2635.204 (j), provides that “[b]ecause of considerations relating to the conduct of their offices, including those of protocol and etiquette, the President or Vice President may accept any gift on his own behalf or on behalf of any family member, provided that such acceptance does § 2635.202 (c)(1) or (2), 18 U.S.C. 201 (b) or 201 (c) (3), or the Constitution of the United States.” Since the illegal gratuities provision is not mentioned in paragraph (j), this paragraph evidently purports to exempt the President and Vice President from the illegal gratuities statute altogether.

Of course, one might wonder where the Office of Government Ethics got the authority to exempt anyone from a federal criminal law. The Supreme Court has wondered the same thing. See United States v. Sun-Diamond Growers, 526 U.S. 398 (1999) (“We are unaware of any law empowering OGE to decriminalize acts prohibited by Title 18 of the United States Code.”) Nevertheless, these exceptions are recognized by the executive branch and for all practical purposes qualify the prohibitions of the illegal gratuities statute.

It is worth noting, however, that the regulations only purport to exempt certain gifts from the prohibition against receipt of illegal gratuities under 18 U.S.C. § 201(c)(1)(B). They do not address the giving of illegal gratuities under 18 U.S.C. § 201(c)(1)(A). Thus, one could still argue that the Nobel Peace Prize Committee, by offering Obama a gift for or because of an official act, violated the illegal gratuities statute.

Yes We Kant

           Yesterday Norm Eisen, the White House Special Counsel for Ethics and Government Reform, addressed the 2009 Administrative Law Conference sponsored by the ABA Section on Administrative Law and Regulatory Practice.  Eisen gave an energetic and engaging defense of the Obama administration’s ethics policies, particularly as regards to the activities of registered lobbyists, but I don’t think he convinced many of the skeptics in his audience. 

            Many of the questions Eisen received focused on the administration’s differential treatment of “registered lobbyists” (those who have registered under the Lobbying Disclosure Act) as opposed to non-lobbyists who may (1) engage in lobbying but are not required to register (or simply fail to do so) and/or (2) represent “special interests” just as much as lobbyists do.  As to the first category, Section Chair Bill Luneburg pointed out that the definition of a lobbyist under the LDA is “quite arbitrary” and even if one happens to qualify under the definition, there is virtually no enforcement with regard to those who fail to register.  As to the second category, a questioner from the audience asked why the Obama E.O. would prohibit a registered lobbyist for a trade union from working for the administration while it would not prevent the lobbyist’s client (e.g., the president of that union) from taking the same job.  (I have made similar points here, here and here). 

            Eisen acknowledged that these were legitimate issues, and pointed out that in some areas (e.g., TARP and stimulus lobbying) the administration had ultimately come to the conclusion that everyone, whether or not a registered lobbyist, should be treated the same.  However, he could not really explain why there was a need for distinguishing between lobbyists and non-lobbyists for purposes of the E.O.  He did on a couple of occasions cite Immanuel Kant’s “categorical imperative” (really) as a justification for the decision to utilize the LDA’s definition of “lobbyist,” although I think this was in the context of explaining why the administration had not tried to distinguish between corporate and non-profit lobbyists.   

            Unfortunately, the categorical imperative does not explain why “lobbyists” are a category that merits more hostile treatment than the special interests that the lobbyists represent.  Nor does it explain why lobbyists are not in included in the same category as lawyers, who may represent clients just as odious (if not more so). 

            One might think that the Obama administration’s anti-lobbyist policy is simply an attempt to score political points at the expense of an unpopular profession.  As Eisen repeatedly noted, the President campaigned on promises of curbing the influence of lobbyists and the administration is fulfilling those promises with its actions, including the most recent move to bar lobbyists from serving on agency advisory boards and commissions. 

            Another, and more ominous, possibility presented itself toward the end of Eisen’s presentation, however.  In the context of noting this letter he wrote decrying the role of lobbyists who oppose the administration’s health care, banking and energy agenda, Eisen  adverted to the fact that the administration would like the lobbying community to “step up” to address the ways in which the current system causes the “public interest to be thwarted.”  One could infer from this that the administration is seeking to pressure lobbyists to support the administration’s agenda, regardless of the views or interests of the industries they represent.    

Lobbying Related Programs Today

           The 2009 Administrative Law Conference starts today at the Washington Convention Center, and there are several programs of interest to those who follow lobbying-related legal issues.  First, at 10:45 am today is a panel on “Lobbying in the Obama Administration: What Practitioners Need to Know.”  This panel, which I helped organize, will consist of Stu Pierson (Troutman Sanders), Daniel Schuman (Sunlight Foundation), and Jim Christian (Patton Boggs).  The panel will examine the January 2009 Executive Order on Ethics Commitments by Executive Branch Personnel, the March 2009 Presidential Memorandum on lobbying on Recovery Act funding and revisions of that Memorandum, and will discuss the relationship between those regulations and the requirements of the Lobbying Disclosure Act. 

            Second, in the afternoon at 2 pm is a panel organized by Trevor Potter entitled “What’s Next for Lobbying Regulation?”  Charles Fried (Harvard Law School), Melanie Sloan (CREW), and Nick Allard (Patton Boggs) will discuss the ABA’s new Task Force on Lobbying Regulation, proposals for new lobbying regulations and the constitutional issues associated with current and proposed lobbying restrictions. 

            Both of these panels are co-sponsored by the D.C. Bar Administrative Law and Agency Practice Section, which I co-chair, and its Legislative Practice Committee.   

            Finally, between the two panels will be a luncheon presentation by Norm Eisen, White House Special Counsel for Ethics and Government Reform. 

            All of which should be very interesting to those who follow this area.

 

 

 

 

 

More on White House Czars and the Appointments Clause

            As noted in a prior post , WH Counsel Greg Craig maintains that none of the White House or National Security Council “czars” are officers of the United States within the meaning of the Appointments Clause because they “exercise[] [no] independent authority or sovereign power.”  Instead, Craig argues, they perform solely advisory functions.  For example, he asserts that the “sole function” of the Information Sharing, Central Region, Cybersecurity and WMD Policy “czars” on the NSC staff is “to advise the President, often through recommendations that are formulated by NSC principals and deputies committees.” 

            The three constitutional law experts who testified last week before the Senate Judiciary  Subcommittee on the Constitution seemed to share Craig’s general views regarding what constitutes an officer of the United States.  T.J. Halstead of CRS noted “the Supreme Court’s determination that the “strictures of the Appointments Clause only apply to persons exercising ‘significant authority pursuant to the laws of the United States.’”  Professor John Harrison of UVA Law School similarly testified that many persons who work for the federal government do not exercise “significant authority” and therefore are not officers, but mere employees.  Professor Tuan Samahon of Villanova Law School also adverted to the “significant authority” test as marking the line between officer and non-officer and indicated that “purely advisory positions” are not deemed to be offices within the meaning of the Appointments Clause.  

These experts rely largely on the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1, 125-26 (1976), as well as the 2007 OLC opinion cited by Craig.  But does Buckley really stand for the proposition that only individuals exercising “significant authority” are officers of the United States?

Buckley involved the question of whether the members of the Federal Election Commission were required to be appointed in conformity with the Appointments Clause. The FEC was charged by statute with a number of executive and administrative functions of the sort typically found in administrative agencies, such as engaging in rulemaking, issuing advisory opinions, and filing civil suits to enforce the law.

There was no contention in Buckley that the FEC commissioners were functioning as mere employees, rather than as officers. The Court’s entire discussion of this possibility is contained in footnote 162, which states: “’Officers of the United States’ does not include all employees of the United States, but there is no claim made that the Commissioners are employees of the United States rather than officers. Employees are lesser functionaries subordinate to officers of the United States, see Auffmordt v. Hedden, 137 U.S. 310, 327 (1890); United States v. Germaine, 99 U.S. 508 (1879), whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.”

Neither of the cases cited by the Court, however, involved “employees” in the modern sense. Auffmordt held that a merchant appraiser, selected on a temporary basis by the collector of customs to conduct a reappraisal of particular goods, did not hold an office under the Constitution. Germaine held that a civil surgeon, appointed by the Commissioner of Pensions to make occasional and periodic examinations of pensioners (for which he was paid on a per examination basis), was likewise not an officer. These cases stand for little more than the proposition that a contractor who provides goods or services to the government does not thereby become an officer.

It is true that the Buckley Court states that any appointee “exercising significant authority pursuant to the laws of the United States” is an officer of the United States and must be appointed in accordance with the Appointments Clause, a formulation that it repeats at several points. But nowhere does the Court state that only individuals exercising “significant authority” qualify as officers, nor does it give any explanation or example (other than the two cases cited above) of what would constitute “insignificant authority” for purposes of the Appointments Clause.

The Court did does affirm that Congress can create “offices” in the “generic sense” without requiring that those offices be filled in accordance with the Appointments Clause, but only so long as the occupants “perform duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not ‘Officers of the United States.’” (emphasis added) Moreover, the Court states that the Framers viewed the concept of “officers of the United States” as “embrac[ing] all appointed officials exercising responsibility under the public laws of the Nation.” These broader formulations suggest that the Court’s observations regarding the exercise of “significant authority” were not intended to mark the precise line between officer and non-officer, but merely to establish that the FEC was well on the officer side of that line.

The 2007 OLC opinion, in fact, notes that the “significant authority” phrase used in Buckley “does vary somewhat from the well established historical formulation, but nothing in the Court’s opinion suggests any intention to break with the longstanding understanding of a public office or fashion a new term of art.” OLC points out that the Buckley Court cites with approval several nineteenth century cases that treated “arguably insignificant positions as offices.” As OLC notes, the original understanding of officer included persons holding ministerial offices such as “registers of land offices, masters and mates of revenue cutters, inspectors of customs, deputy collectors of customs, deputy postmasters, and district court clerks.” Accordingly, OLC opines that Buckley merely adopted a “shorthand for the full historical understanding of the essential elements of a public office.”

The problem is that this “historical understanding” does not go very far in establishing whether or not White House or NSC officials are officers for purposes of the Appointments Clause. These officials do not have the types of functions that are most typically and obviously associated with being an officer, such as law enforcement, rulemaking or formal military command, but they are certainly nothing like the independent contractors providing commercially available services as in Auffmordt or Germaine.

The OLC opinion notes that “[t]he mere authority to advise or inform” does not constitute “delegated sovereign authority” so as to create an office within the meaning of the Appointments Clause. But this observation is rooted in historical examples of advisory or investigative commissions performing functions analogous to congressional committees. See, e.g., Buckley, 424 U.S. at 137 (“Insofar as the powers confided in the [FEC] are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress may delegate to one of its own committees, there can be no question that . . . [the FEC] may exercise them [without complying with the Appointments Clause]”).

While WH and NSC officials, including the various “czars,” clearly have advisory functions, it is a bit of a stretch to say that their roles are “purely advisory” or comparable to a commission established to make a report and recommendations on a particular subject. When the Brownlow committee first proposed an expansion of “presidential assistants” in 1937, it described their roles as follows: “These aides would have no power to make decisions or issue instructions in their own right. They would not be interposed between the Presidents and the heads of his departments. They would not be assistant presidents in any sense. Their function would be, when any matter was presented to the President for action affecting any part of the administrative work of the Government, to assist him in obtaining quickly and without delay all pertinent information possessed by any of the executive departments so as to guide him in making his responsible decision; and then . . . ‘to assist him in [informing departments and agencies of the decision]. . . . They would remain in the background, issue no orders, make no decisions, emit no public statements.”

It is questionable whether this modest conception of the role of presidential advisors reflected reality even when the Executive Office of the President was formally organized several years later. Brownlow himself described the newly created office as “the institutional realization of administrative management and ‘the effective coordination of the tremendously wide-spread federal machinery.’” These are functions which go beyond merely providing information, advice and recommendations to the President.

In any event, there is a significant gulf between the “purely advisory” conception of presidential advisors and the actual role that they have played over the past 70 years. This legal history of the NSC, for example, describes how it has “evolved from a limited advisory council to a vast network of interagency groups that are deeply involved in integrating national security policy development, oversight of implementation, and crisis management.” While the authority and role of the National Security Advisor has differed depending on the administration, it has never been a purely advisory position.

It may be true that the National Security Advisor and other WH aides are not supposed to have operational responsibilities or authority. The line between policy making/coordinating and operations, however, may sometimes be less than clear. For example, the 9/11 Commission (a truly advisory body) described how Richard Clarke, who served on the NSC staff as “national coordinator for security, infrastructure protection and counterterrorism,” became the “manager of the U.S. counterterrorism effort.”

Even if it is assumed, however, that WH or NSC officials do not exercise operational authority (or that any authority they do exercise is ultra vires), it is by no means clear that their policymaking and coordinating functions are insufficient to qualify them as officers of the United States. One would have to analyze the actual functions and authorities of each WH or NSC “czar” to make such a determination.

To take just one example, the report recommending the establishment of a WH “cybersecurity policy official” (popularly referred to as the “cyberczar”) describes that official’s functions “to coordinate the Nation’s cybersecurity-related policies and activities.” Although the cyberczar should have no operational responsibility or authority, the report says, he or she “should harmonize cybersecurity-related policy and technology efforts across the Federal government, ensure that the President’s budget reflects federal priorities for cybersecurity, and develop a legislative agenda.” Moreover, the cyberczar is to serve “as the White House action officer for cyber incident response.”

These do not seem like “purely advisory” duties. Indeed, one might argue that the cyberczar’s budgetary responsibilities sound a lot like the “preparatory plans of finance,” described in Federalist No. 72 as one of the key functions of an executive officer.

Are these functions nonetheless “sufficiently removed from the administration and enforcement of the public law” to be performed by a non-officer under Buckley? Perhaps. But there is nothing in Buckley or any other controlling precedent to answer the question, which appears to be far murkier than suggested by Craig’s letter.

Lobbying and the Honest Services Statute

           The trial of Kevin Ring, a former lobbying associate of Jack Abramoff, ended in a mistrial this week when the jury was unable to reach a verdict.  Ring was charged with conspiring with Abramoff and others to deprive the United States and its citizens of the “honest services” of certain executive and legislative officials by providing those officials with various things of value, such as meals and tickets to sporting events.   

A former prosecutor, Peter Zeidenberg, tells TPM Muckraker that the prosecution was “extremely problematic” due to the fact that the gifts provided by Ring did not in themselves violate any law.  Zeidenberg has argued previously that the expansive use of the honest services statute is chilling the lobbying profession’s exercise of its First Amendment rights by, for example, causing many lobbyists to reduce or cease giving campaign contributions out of fear that such contributions could be used by an aggressive prosecutor as the basis for an honest services charge. 

The vagueness of the honest services statute, and its potential application to any conduct that a prosecutor might deem unethical, has long been a source of concern.  Justice Scalia, in dissenting from the denial of certiorari in an honest services case earlier this year, noted that “[i]t is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail.”  The Supreme Court has now agreed to hear three separate honest services cases, which may result in a substantial narrowing, or a complete invalidation, of the statute.  The outcome of those cases may determine whether Ring is retried.

Obama’s Czars and the Appointments Clause

           Gregory Craig, counsel to the President, sent a letter to Senator Feingold last week regarding the various “czars” employed by the Obama administration.  Among other things, Craig responds to concerns raised by Senator Collins (my former boss) that some of the positions may violate the Appointments Clause, which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” 

            Only “principal” officers of the United States need be appointed with advice and consent of the Senate.  However, all “officers of the United States” need to be appointed in accordance with the Appointments Clause.  Craig, however, evidently denies that any of the czars are officers at all.  This is what he says: 

Moreover, none of the new White House or NSC positions violates the Appointments Clause.  The Constitution requires that “Officers of the United States” be nominated by the President “by and with the Advice and Consent of the Senate.”  U.S. Const. art. II, § 2, cl. 2.  The Department of Justice has concluded, in an opinion drafted during the prior Administration, that a position is a “federal office” if it is “invested by legal authority with a portion of the sovereign powers of the federal government.”  Officers of the United States within the Meaning of the Appointments Clause, 2007 WL 1405459 (Apr. 16, 2007).  As described above, none of the White House or NSC positions identified by Senator Collins exercises any independent authority or sovereign power.  Their one and only role is to advise the President.  Similarly, I am confident that none of the agency positions identified exercises any authority or sovereign power independent of their respective Senate-confirmed officials.  In order to resolve the issue definitively, however, I have asked the general counsels of the various agencies at issue—the Departments of State, Treasury, Homeland Security, and Labor, as well as the EPA—to respond directly to this concern. 

            Craig’s position that the White House and National Security czars are not officers raises some difficult and unsettled issues (about which more in a future post).  His claim that none of the agency czars are officers, however, seems untenable.  For example, the     OLC opinion on which Craig relies makes clear that individuals engaging in diplomatic functions, such as “[t]he actual conduct of foreign negotiations,” hold federal offices within the meaning of the Appointments Clause.  See OLC Opinion at 15-17.  The OLC notes that “the power of a diplomatic office is peculiarly delegated directly by the President, who makes such officers ‘the unquestionable representatives pro tanto of the sovereignty of the United States.’”  In fact, it points out that ‘[t]o the Founders, the proper exercise of such sovereign authority by officers abroad was critical for the security of the Nation,” as illustrated by the fact that the Foreign Emoluments Clause (art. I, § 9, cl. 8-) “was adopted with particular reference to preventing foreign corruption of such officers.” 

            These views would seem to contradict Craig’s contention that certain diplomatic czars are not officers subject to the Appointments Clause.  For example, Craig mentions Todd Stern (no relation), who serves as the “Special Envoy for Climate Change.”  According to the State Department’s website, in this position Stern “plays a central role in developing the U.S. international policy on climate and is the Administration’s chief climate negotiator, representing the United States internationally at the Ministerial level in all bilateral and multilateral negotiations regarding climate change.”  This position would seem to fall squarely within OLC’s definition of a federal office subject to the Appointments Clause. 

            It will be interesting to hear whether the State Department Legal Adviser agrees that Stern is not an officer of the United States.  One would also expect that OLC would be asked for its views on this matter.

Tillman and Bailey on Federalist No. 77

Seth Barrett Tillman has written a new article entitled “The Puzzle of Hamilton’s Federalist No. 77” [forthcoming 2010 in the Harvard Journal of Law and Public Policy], in which he takes a fresh look at Hamilton’s statement that “[t]he consent of [the Senate] is necessary to displace [an officer] as well as to appoint.”  This statement, Tillman explains, has been “the rallying cry of those who oppose the unitary executive position” because it suggests that even Hamilton, the most prominent supporter of a strong executive, believed that the President lacked the power to remove officers without the Senate’s consent.  Tillman argues, however, that this view misapprehends Hamilton’s meaning because when Hamilton referred to “displac[ing]” an officer he meant “replacing” rather than “removing.” 

Responding to Tillman, Jeremy Bailey argues that Hamilton meant to oppose unilateral presidential removal powers in Federalist No. 77 and in fact maintained this view thereafter.  Although Bailey takes issue with Tillman’s interpretation of the term “displace,” the focus of his argument is that Hamilton’s statement reflected the belief that unilateral presidential removal of officers was undesirable because it would undermine stability in the government.  Hamilton, in Bailey’s view, wanted to “institutionalize a steady and expert administration of the laws.”  This position, Bailey notes, is not necessarily incompatible with Tillman’s interpretation of Federalist No. 77. 

FWIW, it seems to me that the context of the first paragraph of Federalist No. 77 indicates that Hamilton was addressing the situation in which a new President might be interested in replacing, rather than simply removing, an officer.  His argument is that if the President had the exclusive authority to appoint officers, a new President would be likely to make wholesale changes (ie, bring in new people whom he knows or likes better than the old people).  However, the shared appointment power makes this less likely because (1) the President cannot replace an existing officer without the consent of the Senate and (2) the President knows that the existing officer, assuming that he has performed reasonably well, is likely to have the support of the Senate.  This argument doesn’t necessarily say anything about the situation where the President simply wants to remove a troublesome officer and is less concerned about who the replacement might be.  As Tillman suggests, Hamilton may have assumed that the President would ordinarily be unwilling to remove an officer until a replacement had been confirmed.

           

I don’t know that this necessarily settles the question of what Hamilton meant by the word “displace.”  He could have meant “replace” rather than “remove,” as Tillman argues.  Or  perhaps he meant “displace” in a general sense, but meant “necessary” in a practical, rather than legal, sense.  In other words, because he thought that the President would normally want to replace, rather than remove, he meant that it would be practically necessary to get the Senate’s consent in order to do so.  Or possibly he simply was not thinking about the situation in which the President wanted to remove, rather than replace.  Or possibly he assumed that replacement was the only way, apart from impeachment, to remove an officer (as Justice Story seems to have thought).  Regardless, it seems to me that this paragraph doesn’t say much about Hamilton’s normative views regarding whether the Senate’s consent ought to be necessary in the pure removal situation. 

On the other hand, it does suggest that Hamilton thought it a good thing that Presidents would be restrained by the Senate in replacing officers who were performing well.  Therefore, Bailey has a point when he suggests that Hamilton was no “simple unitarian,” at least if a simple unitarian is someone who believes that energy in the executive necessarily outweighs all other values, including stability in government.  It may not be huge point, but it seems valid regardless of whether Hamilton believed, either before or after he wrote Federalist No. 77, that the President lacked unilateral removal authority.      

Tomorrow’s Just Your Future Yesterday

           In the course of his most recent ruling on Speech or Debate, the Magistrate addressed whether certain specific pieces of evidence protected by the privilege and would therefore be inadmissible in Renzi’s trial.  The Magistrate, it may be recalled, has relied heavily on the proposition that discussions of future legislative acts are not protected by Speech or Debate, while evidence of past legislative acts are.  Applying this proposition, however, proves to be difficult. 

            For example, in one instance a private land exchange proponent states that he “was told by Renzi that Renzi had spoken with Congressman Richard Pombo, Chairman of the House Committee on Resources, and he had garnered Pombo’s support for [the] land exchange proposal . . . .”  One might think that this statement would be unprotected since Pombo’s “support” for the legislation is merely a statement about a future legislative act.  The Magistrate, however, found that Renzi’s act of “garnering support” from Pombo was a “past legislative act” and therefore protected.  On the other hand, Renzi’s statements about his own support for the legislation are deemed to be merely claims about future legislative acts.

           

            Similarly, the Magistrate found that telephone calls in which “Members discuss who they plan on voting for in upcoming election to fill House Republican leadership positions” to be protected, even though these seem to be statements about future legislative acts. 

            One gets the impression that the distinction between “past” and “future” legislative acts is rather illusory.  The determination that a piece of evidence relates solely to a future legislative act may simply mean that, for reasons the court cannot quite explain, the privilege does not apply.  

The Renzi Wiretap and FBI Interviews

           Last month the Magistrate Judge issued a ruling recommending denial of Renzi’s motions to suppress certain evidence, including the results of wiretaps and FBI interviews of Renzi’s legislative aides, based on the Speech or Debate Clause.  As I have suggested before, the wiretap ruling was foreshadowed by the Magistrate’s previous ruling on the Kastigar issue.  Moreover, because the district court agreed with the Magistrate’s reasoning on the Kastigar issue, it is likely that the wiretap ruling will also be upheld. 

            Both the Magistrate and the District Judge have held that the Speech or Debate privilege is one of “non-evidentiary use,” rather than of non-disclosure.  As the Magistrate notes in the latest ruling, the Supreme Court “has never extended the privilege under the Clause to protection from discovery of communications merely because they are confidential.”  In reaching this conclusion, they have explicitly disagreed with a line of cases to the contrary in the D.C. Circuit, most recently the case involving the search of former Representative Jefferson’s congressional office (United States v. Rayburn House Office Building, 497 F.3d 654 (D.C. Cir. 2007)). 

            From this premise it follows that the interception of Renzi’s telephone calls could not violate the Speech or Debate Clause.  While some of the intercepted conversations may have involved information protected by the Speech or Debate Clause from evidentiary use, the mere interception of the calls did not violate any privilege.  Moreover, although the Speech or Debate privilege also protects against forcing legislators (or their aides) to testify about legislative acts, the Magistrate correctly noted that “[t]here is no testimonial privilege implicated” by a wiretap. 

            Somewhat surprisingly, however, the Magistrate did not treat the FBI interviews of congressional staff in the same way.  Since these interviews are voluntary, one could argue that they do not violate the testimonial aspect of the privilege (any more than, say, a media interview would).  However, the Magistrate suggests that the Speech or Debate Clause, while not prohibiting such interviews, does bar the government from questioning congressional staff about legislative acts. 

            As a practical matter, this distinction may be of little benefit to Renzi.  The Magistrate indicates that the remedy for any inadvertent violation of the Speech or Debate Clause during interviews of Renzi’s staff would be for Renzi to move to exclude such information from the trial.  Of course, Renzi could object to the admission of this evidence under the “non-evidentiary use” aspect of the privilege anyway, so it is immaterial whether the interviews themselves violated the privilege. 

            It could be more significant, however, with regard to future FBI interviews of congressional staff.  If the Speech or Debate Clause restricts the questioning that can take place during voluntary interviews, House and Senate counsel can argue that it is improper for the FBI to conduct such interviews outside the presence of counsel who can object to questioning that violates the privilege.  Of course, the House counsel’s office has long argued that the FBI should notify it in advance before interviewing congressional staff, but the FBI has often ignored that admonition.