More on the Clemens Subpoena

As promised in my last post, I want to follow up on the Speech or Debate argument made by COGR in support of its motion to quash the Clemens subpoena.

At first blush, there would not seem to be much to discuss.  There is little question that the type of oversight and investigative committee records sought by Clemens are generally protected by Speech or Debate.  This is black-letter law, particularly in the D.C. Circuit.

Yet COGR devotes considerable effort to demonstrating that Speech or Debate applies.  It focuses particularly on persuading the court that the committee’s investigation of steroid use in baseball fell “well within the scope of the Committee’s legitimate legislative functions.”  Indeed, it says, “this is not even remotely a close question.”

In its enthusiasm to make this point, COGR goes a bit far.  For example, it asserts that the steroid investigation was “integral to Congress’ power to legislate on a number of subjects, including, but not limited to, public health, education, crime and interstate commerce. (emphasis added).  My copy of Article I gives Congress power to regulate commerce among the several states, but says nothing about public health, education or crime.

Be that as it may, the standard of judicial review here is extremely forgiving.  So long as the inquiry is within the committee’s jurisdiction and involves matters on which legislation may be had, the court should not second guess the committee’s investigative choices.  The baseball steroid investigation would seem to satisfy this standard.

Of course, many people would dispute that the actual motive of this investigation was to obtain information for legislative purposes.  Some people (less charitable than myself) may suggest that it was designed more for glorified infotainment, if not outright grandstanding.  Fortunately for COGR, however, the courts have forsworn inquiry into actual congressional motives.

Moreover, if the court were to find that the steroid investigation was improper or beyond COGR’s authority, the remedy in all likelihood would not be to enforce the subpoena.  Instead, it seems that the court would have to dismiss the case altogether since the charges (perjury, false statements and obstruction) all depend on the existence of a proper congressional investigation.

There is, however, a distinct but related issue regarding the investigation.  This is the question of whether any of Clemens’s (alleged) false statements to COGR was material to the investigation.  Materiality in turn depends on the purpose of the investigation and the relationship between Clemens’s answers and any potential legislation.

Here there would seem to be a serious question as to the materiality of Clemens’s statements.  COGR did not call Clemens as a witness until several years after its initial hearing on steroid use, after pertinent legislation had been drafted and introduced, and after former Senator George Mitchell had issued a comprehensive report on steroid use in baseball.  One might well ask how the accuracy of the Mitchell report with respect to Clemens’s personal steroid use was “material” to any proper subject of legislative inquiry.

COGR may hope that if the court believes there is “not even remotely a close question” with regard to the legitimacy of the committee’s investigation, it will be less inclined to inquire into materiality.  But while it is up to the court to determine the legitimacy of the investigation, materiality is a question of fact for the jury.  Clemens may argue that he needs internal committee documents in order to challenge the materiality of the statements made to COGR.  This should not affect the Speech or Debate analysis, but, as suggested in my last post, it bears on whether the documents are needed to ensure that Clemens receives a fair trial.

Roger Clemens, Congressional Privilege, and the Right to a Fair Trial

The House Committee on Oversight and Government Reform (COGR) has moved to quash the Clemens subpoena on the grounds that the investigative documents sought are protected by Speech or Debate.  I will discuss COGR’s substantive Speech or Debate argument in a future post; for now I want to focus on the relationship between the Speech or Debate privilege and a criminal defendant’s right to a fair trial.

When it asked the Justice Department to investigate Clemens for lying to Congress, COGR produced a number of relevant documents.  COGR asserts that it “strove to provide the Department with all relevant factual information, regardless of which way that information might cut.”  However, it also acknowledges that it generally has not provided “internal Committee notes, memoranda, and communications.”

COGR goes on to argue that “[i]n light of [the] nature and the substantial volume of documents that the Committee has already produced, and the fact that all those documents are in the hands of Mr. Clemens’s attorneys, Mr. Clemens will not be disadvantaged by the quashing of his subpoena duces tecum to the Committee.”  However, “even if the Court were to conclude otherwise, it would not matter” because the Speech or Debate Clause “‘was designed neither to assure fair trials nor to avoid coercion.'” (quoting US v. Helstoski, 442 US at 491).  In other words, the congressional privilege trumps the right to a fair trial.

Because the protections of Speech or Debate are absolute, COGR is correct that the privilege cannot be overcome by a showing that the evidence is needed to assure a fair trial.  It does not follow, however, that a criminal defendant’s right to a fair trial must give way to the privilege.  Instead, if a congressional committee refuses to produce evidence that a court believes may be needed to assure the defendant a fair trial, the court may ask the committee for an opportunity to review the material in camera.  If the court cannot assure itself that the defense has access to all material evidence, it may dismiss the relevant counts.

This conclusion is consistent with the approach followed by other courts that have addressed this issue.  In U.S. v. Ehrlichman, 389 F. Supp. 95 (DDC 1974), Judge Gesell acknowledged that congressional transcripts sought by defendant G. Gordon Liddy were protected by Speech or Debate; nonetheless, the judge asked the House to “produce the subpoenaed testimony for in camera inspection by the Court on the assurance that only those questions and answers, if any, which prove significant and material to the defense would be disclosed.”

In the court-martial of Lieutenant Calley, the military judge requested that the House produce certain evidence requested by the defense.  The House failed to do so.  A federal district judge subsequently granted Calley’s habeas petition on the grounds that the House’s failure to release the requested information violated Calley’s due process rights.  In Calley v. Calloway, 519 F.2d 184 (5th Cir. 1975), the Fifth Circuit, sitting en banc, reversed.  The majority found that the information withheld was not so highly significant or material so as to rise to the level of a constitutional violation.  Five judges (including Judge Clark) dissented, finding that the House’s refusal to provide the information amounted to a denial of due process to the defendant.  Both the majority and dissenters appeared to agree that a withholding of information by Congress could, under proper circumstances, constitute a violation of due process.

The Clemens case, it must be said, would provide particularly strong circumstances for finding a due process violation.  Here the House of Representatives (or a committee thereof) is both the victim and the complaining witness against Clemens.  The case against Clemens presumably could not proceed unless COGR cooperated and provided access to materials otherwise protected by Speech or Debate.  It seems unthinkable that COGR could select which evidence will be available for the trier of fact to consider.

It very well may be that COGR has already produced all of the evidence material to Clemens’s case.  But a federal court need not (and I suspect will not) simply rely on COGR’s assurances to that effect.

Somin and Whelan on Defending DOMA

On St. Patrick’s Day, the Federalist Society sponsored a debate on the Hill regarding the Defense of Marriage Act (DOMA) and the President’s duty to defend federal statutes.  Generally speaking, the participants, (Ilya Somin, Ed Whelan and moderator Neomi Rao) were in agreement that the President may properly refuse to defend an unconstitutional statute under certain circumstances, while not necessarily agreeing (or, in Whelan’s case, emphatically disagreeing) with the President’s decision in this case.

With regard to Congress’s ability to intervene and defend the law, both Somin and Whelan thought that the courts would allow the House to participate in the case and make legal arguments in support of DOMA. This, they felt, would be sufficient to assure that the merits of the constitutional issue were addressed by the courts.  However, with respect to the issue of whether the House could intervene as a party, participate in discovery or the presentation of evidence, or, if necessary, appeal an adverse decision, neither were sure whether this would be allowed.  Whelan did remark that he hoped that the House would be permitted to revive arguments that the Justice Department had previously abandoned; he also recommended that the House insist that any dollars spent on its legal fees be taken out of the Justice Department’s budget, preferably with an appropriate multiple.

The Honorable Charles Clark

Charles Clark was nominated to the U.S. Court of Appeals for the Fifth Circuit on October 7, 1969, and he was confirmed eight days later.  Such a speedy confirmation would be unthinkable today, although legend has it that Senator Eastland helped the process along by scheduling the vote when potential opponents were otherwise occupied.  The story as I heard it was that the more liberal members of the Senate were attending an Earth Day event on the day of the vote, but it is more likely (assuming the story is true) that they were participating in Moratorium Day, a Vietnam War protest that took place on October 15, 1969.

Judge Clark became the chief judge of the Fifth Circuit in 1981, and served in that capacity until 1992, when he retired from the bench.  Upon the occasion of his retirement, Rodney Smolla, Dean of the William & Mary Law School and one of the Judge’s former clerks, wrote this fitting tribute: “At a time in the history of the profession in which lawyers and laymen alike are tempted to dismiss our judicial system as corrupt and cynical, Judge Clark stood out as immediate and irrefutable evidence that all is not hopeless:  Here is a lawyer in a position of power and influence who is compassionate, diligent, honest and thoroughly professional.  Here is a lawyer’s lawyer, a judge’s judge, a clerk’s judge.”

I had the privilege of clerking for Judge Clark during the 1985-86 term.  This probably was not the Judge’s favorite clerkship year, as none of his clerks were hunting or fishing enthusiasts.  But for me the year is full of warm memories of Judge Clark: sitting around the conference table as we discussed cases, observing the Judge’s incisive but unfailingly courteous questioning of counsel at oral argument, driving him back to Jackson from New Orleans in my Dodge Daytona (which was thankfully able to make it without one of its too frequent breakdowns).  Everything that Dean Smolla wrote was very true.  Judge Clark was the very model not only of a judge but of a Southern gentleman.

Judge Clark passed away on March 6, 2011.  He will be sorely missed on earth, but we can take comfort that he was a man of faith, who today is reaping the rewards of that faith.

House Subpoena Notices

As we have previously discussed, House Rule VIII requires that upon being properly served with a subpoena relating to the official functions of the House, a member, officer or employee shall “promptly notify the Speaker of its receipt in writing” and “[s]uch notification shall promptly be laid before the House by the Speaker.”  On February 10, 2011, attorneys for Roger Clemens served the House Committee on Oversight and Government Reform (COGR) with a subpoena for documents.  The parties have agreed that COGR will have until March 18 to respond to or move to quash the subpoena.

As far as I can tell, the only Rule VIII notice this year from COGR was given on March 3.  The notice informs the House that COGR “has been served with a subpoena for documents issued by the United States District Court for the District of Columbia in a civil case now pending before that Court.”  The notice further states that COGR will consult with the House General Counsel and make the determinations required by Rule VIII.  This suggests that the subpoena raises some substantial legal issue (otherwise the notice would simply state that compliance was consistent with Rule VIII).

Does this notice refer to the Clemens subpoena?  One would tend to think so, except that Clemens’s case, while pending in the United States District Court for the District of Columbia, is a criminal, not a civil, case.  Perhaps this was just a typographical error.  Or possibly the notice refers to another subpoena (in which case there has been no notice filed for the Clemens subpoena).

One might expect the mystery to be cleared up by March 18.  By that time COGR will have to make the determinations required by Rule VIII regarding the Clemens subpoena.  According to clause 5 of Rule VIII, “[t]he Speaker shall inform the House of [the determinations required by the rule],” and, in so doing, “shall generally describe the records or information sought.”  Thus, there should be an additional notice that will clarify the nature of the subpoena in question.

In actual House practice, however, the notification required by clause 5 is seldom, if ever, made.  In all likelihood there will be no further notice to the House regarding the subpoena, what documents were sought, what determinations were made, or anything else that might allow the House to make a judgment regarding the propriety of the response.  The Speaker and the Bipartisan Legal Advisory Group will have this information, but no one else will.  While this practice offers the advantage of protecting the confidentiality of sensitive legal proceedings, it is rather far from the transparency promised by the language of Rule VIII.

Incidentally, in searching for the notice for the Clemens subpoena, I came across this notice from yesterday’s Congressional Record.  The Archivist of the House notifies the Speaker of receipt of a civil subpoena for documents “issued before the Evidentiary Panel for the State Bar of Texas.”  The Archivist states that “compliance with the subpoena is inconsistent with the precedents and privileges of the House.” It would be interesting to know what this subpoena involved and why compliance was inconsistent with House precedents and privileges.  But under House practice there is no way to know this.

Dellinger and Eastman on Defending DOMA

I just finished listening to an interesting Federalist Society debate between Professors Walter Dellinger and John Eastman relating to the Obama Administration’s refusal to defend the Defense of Marriage Act (DOMA). Two takeaways stand out.  First, in response to my question, Dellinger acknowledged that the decision could not be justified on the grounds that there was no reasonable basis for defending DOMA within the meaning of the Justice Department’s traditional policy for defending the constitutionality of federal statutes.  As he noted, there are numerous federal appellate court decisions supporting the constitutionality of DOMA. Instead, Dellinger would justify the administration’s position based on the President’s personal decision on a matter of “constitutional policy.”

Second, I asked Dellinger and Eastman whether they thought that Congress would have standing to defend the constitutionality of DOMA.  Dellinger said that it would not.  In his view, Congress can only participate in the litigation as an amicus.  He said this was not a problem because there exists a case or controversy due to the fact that the administration is still enforcing the law.  Moreover, he is certain that the administration would appeal any court decision striking down the law (the basis for this confidence was not apparent). However, in response to another question, he acknowledged that it may be “quite tricky” for an amicus to build a proper trial court record to defend the constitutionality of a law.

Eastman disagreed on this point.  He contends that there are circumstances in which legislators would have standing to defend the constitutionality of a law such as DOMA (citing Karcher v. May).  He noted that standing would be based on the fact that the legislators had been authorized to represent the institutional interests of the legislative body, and were not merely asserting their own interests as individual legislators. 

Wisconsin and the Meaning of the Arrest Clause

The Wisconsin Senate has passed a resolution that requires the majority leader to “issue an order to the sergeant at arms that he take any and all necessary steps, with or without force, and with or without the assistance of law enforcement officers by warrant or other legal process as he may deem necessary in order to bring [an absent] senator to the senate chambers so that the senate may convene with a quorum of no less than 20 senators.”  This action has led to some highly misinformed speculation regarding the meaning of the arrest clause, a feature of both the U.S. and Wisconsin constitutions.

The arrest privilege protects members of a legislature from arrest, except for “treason, felony and breach of the peace,” during the session of the legislature and the time during in which they are traveling to and from such session.  The privilege is an ancient one– Josh Chafetz dates it back to at least 1340, when it was asserted by the House of Commons to gain release of a member imprisoned by royal authority.  As Chafetz notes, “the function of the privilege was to protect the Houses against all outsiders” so as to ensure that they “could properly fulfill their constitutional role.”  See Democracy’s Privileged Few 111-12.  In other words, it is designed to ensure that legislators are not prevented by courts or other outside parties from attending and participating in legislative sessions.

As Akil Amar and Neal Katyal note in a 1995 law review article, modern cases have given the arrest clause such a narrow construction as to make it a “virtual nullity.”  They suggest, however, that a broader interpretation of the clause that once prevailed may be more consistent with the original understanding. Specifically, they argue that “arrest” may be “understood more functionally as extending to various civil cases that interfere with– that arrest– a person’s performance of her duties in public office.”  In support of this view, they cite, among other things, an 1840 decision of the Wisconsin Supreme Court which held that the privilege should be given a “liberal construction” to ensure “the protection of the rights of the people that their representative should be relieved from absenting himself from his public duties during the session of congress.”

Even at the time when the privilege was given its broadest reading, however, there appears to be no case or commentator suggesting that the privilege would in any way inhibit a legislature from arresting its own members.  Among other things, such an interpretation would render unconstitutional longstanding rules and practices of both the U.S. House and Senate.  For example, a House rule provides that in the absence of a quorum, “a majority of those present may order the Sergeant-at-Arms to send officers appointed by him to arrest those Members for whom no sufficient excuse is made and shall secure and retain their attendance.”

Moreover, applying the arrest privilege to arrest by the legislature would stand the purpose of the privilege on its head.  Rather than protecting against interference by outsiders that might prevent the legislature from fulfilling its functions, or prevent individual legislators from performing their constitutional duties at a session of the legislature, it would now prevent the legislature itself from ensuring that it has a quorum to conduct its business and would empower individual legislators who wished to absent themselves from performing their duties.  It would also fly directly in the face of the quorum clauses of the U.S. and Wisconsin constitutions, which authorize each house to “compel the attendance of absent members, in such manner, and under such penalties, as each house may provide.”  There is simply no warrant (so to speak) for such an interpretation.