The Attorney-Client Privilege in Congressional Proceedings

Congressional practitioners will be interested in this article in the Journal of Law and Politics on the attorney-client privilege and work product doctrine in congressional proceedings.  (Bradley Bondi, “No Secrets Allowed: Congress’s Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings”).  As the title implies, Bondi is critical of Congress’s assertion of the authority to disregard the attorney-client or other common law privileges.  While he concedes that Congress, like the British Parliament, may have the power to disregard privileges in inherent contempt proceedings (ie, where Congress uses its own contempt authority to try and imprison a contumacious witness), he argues that the situation is different with respect to statutory contempt proceedings under 2 U.S.C. § 192.

Bondi uses the legislative history of the statute, which was enacted in 1857, to show that Congress itself was uncertain of the default rule that applied in congressional proceedings.  Some legislators assumed that Congress was bound to respect common-law privileges, while others believed that it had the power to overrule them.  He also points to the fact that Congress has generally respected the attorney-client privilege since the enactment of the statute, although the relevance of this practice to the interpretation of the statute is unclear.

If a court were faced with the question of whether the statute permits prosecution of a witness who asserts an otherwise valid attorney-client privilege (ie, a claim of privilege that would be recognized at common law or in judicial proceedings), its conclusion would likely be dictated by the presumption that it starts with.  Since the statute itself is silent on its applicability to claims of attorney-client privilege, the court might hold that the statute should not be construed in derogation of a firmly established common law privilege.  Alternatively, the court might start with the presumption that the statute was intended to preserve the traditional legislative authority to overrule privileges and therefore reach the opposite conclusion.

Given the difficulty of this question, however, a court is likely to look for ways to avoid deciding it.  And there is likely to be an easy way for it to do so.  Under current congressional procedures, while a witness can argue his privilege claim to a congressional committee, there is no way to present the claim to the full House or Senate prior to being held in contempt.  But if the power to disregard privileges exists, it certainly inheres in the full legislative body, not in committees.  Thus, if a witness has a judicially valid claim of privilege, he can argue that it was a violation of due process to hold him in contempt without first giving him an opportunity to argue the claim before the full legislative body.

A Code of Lobbying Ethics

Tom Spulak, a well-respected congressional lawyer and a former House General Counsel (as well as a former colleague of mine at Shaw Pittman), wrote this recent piece on the “assault on lobbyists.”   Of particular interest to me is his suggestion that lobbyists could adopt a voluntary code of conduct that would prohibit questionable and/or controversial practices, such as providing campaign contributions to elected officials.

I think that this is a promising idea which is worthy of more public discussion.  It should be noted that Section 214 of the Honest Leadership and Open Government Act of 2007 expresses the sense of Congress that the lobbying community develop “proposals for multiple self-regulatory organizations” to, among other things, develop standards for lobbying and provide ethics training to the lobbying community.   Other than some occasional discussion over the last couple of years, there has been little response to date from the lobbying community to Congress’s call for action.

One possible objection to a voluntary code of ethics is that those who subscribe to it will be subject to a competitive disadvantage.  To alleviate this fear, there needs to be some formal recognition of the code.  For example, suppose the House and Senate Ethics Committees were to recognize a code of ethics for lobbying that would apply to both lawyers and non-lawyers. The ethical code for lawyers would be enforced by the bar, and for non-lawyers it could be enforced by a separate professional organization.  Under this regime, lobbyists who agreed to comply with the ethical requirements would be certified by the Ethics Committees as “professional policy advocates” and could so represent themselves in the course of their practice.  The Ethics Committees could de-certify individuals upon notification from the bar or professional organization of a rules violation.

No one would be prohibited from lobbying for failure to subscribe to this ethical regime, but both Members and executive agencies might think twice before dealing with uncertified lobbyists (and perhaps registered lobbyists who were not certified would be required to so state when they made lobbying contacts).  This regime would be consistent with the sense of Congress expressed in HLOGA.  It would also seem to mitigate the potential competitive advantage that would otherwise be enjoyed by unethical lobbyists.  Finally, it might cause some rethinking in the administration about the wisdom of branding all registered lobbyists as inherently unethical.

Who is the House Ethics Committee Actually Investigating?

The Hill reported yesterday that “[t]he House Ethics Committee has launched a formal investigation of sexual harassment allegations against Rep. Eric Massa (D-N.Y.)”  

One can understand how the Hill reached this conclusion.  The resolution adopted by the House Ethics Committee states that the Chair and Ranking Member “have been jointly engaged in an investigation concerning alleged or actual misconduct on the part of former Representative Eric Massa including actions that were offensive, inappropriate, created a hostile work environment, or were otherwise in violation of laws, rules, regulations or other standards of conduct.”  It goes on to note that “the conduct of a current or former Member, officer, or employee of the House . . . may have violated one or more laws, rules, regulations, or other standards of conduct . . . .”  (emphasis added).  This certainly sounds as if the Committee is investigating Massa and the sexual harassment allegations against him. 

The problem is that Massa resigned in March, and the Committee has consistently taken the position that it loses jurisdiction over a Member once he or she resigns.  See, e.g.,  Statement of the Committee on Standards of Official Conduct in the Matter of Representative Vito Fossella (Dec. 19, 2008) (“Representative Fossella did not seek re-election, and the Committee will lose jurisdiction over him when his term expires on January 3, 2009.”); Investigation of Allegations Related to Improper Conduct Involving Members and Current or Former House Pages 78 (Dec. 8, 2006) (“Rep. Kolbe is retiring from the House at the end of his term, and will no longer be within the Committee’s jurisdiction after his retirement.”);   Investigation of Certain Allegations Related to Voting on the Medicare Prescription Drug Improvement and Modernization Act of 2003 57 n. 158 (Sept. 30, 2004) (“Due to Representative Smith’s retirement, the Committee will lose jurisdiction over Representative Smith at the end of this Congress.”). 

Moreover, the language quoted from the resolution above was all contained in the “Whereas” clauses.  When one gets to the “Resolved” Clauses, which actually establish the Investigative Subcommittee, there is no language conferring jurisdiction on the subcommittee to investigate former Members, officers or employees.  The resolution states simply that the subcommittee is established “with jurisdiction to conduct a full and complete inquiry into whether the conduct of any Member, officer, or employee violated any law, rule, regulation or other standard of conduct applicable to the performance of their duties with respect to the allegations of misconduct recited above.”  Given the resolution’s previous express reference to “former” Members and the Committee’s historical position with regard to its jurisdiction, it seems unlikely that this language was intended to confer jurisdiction over Massa himself. 

Thus, despite the (perhaps intentional) ambiguity of the Committee’s resolution, it is probably not conducting an investigation of Massa or his alleged misconduct, except to the extent that such misconduct is relevant to any violations by the real targets of the investigation—those hapless individuals who may be found, as in the Mark Foley investigation, to have been insufficiently vigorous in reporting or otherwise acting on their knowledge of the former congressman’s misconduct.

What’s Good for the United Nations . . .

           In perusing the Office of Government Ethics report on Executive Order 13490 (the “Ethics Pledge”), I was struck by one waiver that the administration has granted.  Under Section 2 of the E.O., all covered appointees are prohibited from participating in certain matters related to their former employers or clients.  In the case of Stephen J. Rapp, appointed by President Obama as Ambassador at Large for War Crimes Issues, this turns out to be a problem.  Ambassador Rapp’s previous employment was with the United Nations, where he had been appointed by the Secretary General to serve as independent prosecutor for the Special Court for Sierra Leone, a tribunal set up to address war crimes in that country. 

            As explained in a September 8, 2009 memorandum from the State Department’s designated ethics official, Rapp’s ambassadorial duties would involve participation in many matters prohibited by Section 2.  He is expected to be in “constant contact with United Nations and Sierra Leone Court officials at all levels regarding particular matters [such as] communications with respect to operations of the Sierra Leone Court and other United Nations-affiliated courts; oversight of those institutions on behalf of the United States Government on such matters as appointment of judges, prosecutors, and other senior officials and on personnel and budgetary matters; information sharing; cooperation of member-states; arrests of fugitives; ongoing cases for violation of International Humanitarian Law; disposition of prisoners; U.S. diplomatic efforts on behalf of the tribunals; and other issues related to U.S. support for the courts.”  Accordingly, application of Section 2 would prevent Rapp from adequately performing his duties as Ambassador at Large. 

            To solve this problem, the State Department granted Rapp a waiver from the strictures of Section 2, allowing him to participate in matters related to the United Nations and the Sierra Leone Court.  The designated agency official explained: 

It is my determination that the literal application of the restriction in this situation would be inconsistent with the purposes of the restriction.  Because the United Nations is an international organization consisting of many countries, including the United States, and the Sierra Leone Court is a tribunal tasked with creating a forum for the trial of violations of international humanitarian law, the interests of these organizations are generally consistent with the interests of the United States.  The United States provides significant funding to both the United Nations and the Sierra Leone Court and is the largest single contributor to both.  Also, because neither organization is organized for the purpose of generating a monetary profit, there is no concern that you would take official action motivated to increase the revenues of either of these organizations.  I therefore believe that as Ambassador at Large for War Crimes Issues, you will not leave the public with the appearance that your actions are influenced by the interests of your former employers, rather than by the interests of the United States

            There are at least two fundamental problems with this reasoning.  First, if one accepts the asserted premise, namely that the interests of the United States and the United Nations are “generally consistent,” the conclusion would be that the United Nations should not be considered a “former employer” within the meaning of the Executive Order.  However, the Executive Order excludes only entities of “the Federal Government, State or local government, the District of Columbia, Native American tribe, or any United States territory or possession.”  It noticeably does not exclude international organizations, foreign governments or nonprofits.  It is presumably not within the purview of the designated ethics officer to substitute his determination about what former employers present a conflict issue for that of the Executive Order. 

            Second, the notion that the interests of the United States are more “generally consistent” with those of the United Nations than with the interests of the typical former employer is ludicrous.  It is true that the United States is a member of the United Nations, but so are Iran, Venezuela, Cuba, Libya, and North Korea, just to name a few countries whose interests have been known to diverge from ours.  Even our closest allies have potential conflicts of interest which in some respects may be more serious than those of any domestic U.S. employer.  (This is why, for example, lobbyists for Canada still have to register under the Foreign Agents Registration Act and British citizens are prohibited from contributing to U.S. political campaigns).  Needless to say, there have been numerous historical examples of conflicts between the United States and the United Nations, including on issues relating to war crimes and the International Criminal Court

            During his 1953 confirmation hearing for Secretary of Defense, the then-President of General Motors was quoted (not quite accurately) as saying “what’s good for General Motors is good for the country.”   Surely the statement that “what’s good for the United Nations is good for the country” is no more defensible.