BLAG’s Authority to Represent the House in Court

On February 11, 2019, the new General Counsel of the House, Douglas N. Letter, filed an amicus brief in U.S. Dept of Commerce v. State of New York, the case that challenges the Trump administration’s decision to add a citizenship question to the 2020 census. A federal district court ruled that the addition of the question violated the Administrative Procedure Act, and the Solicitor General sought a writ of certiorari before judgment from the Supreme Court. Letter’s brief argues that the district court’s decision is correct and urges the Court, should it decide to hear the case, to do so promptly in order to avoid disruption or delay in the census. (The Court has now agreed to hear the case on an expedited basis, with argument scheduled for late April).

I have nothing to say, at least at the moment, about the merits of this dispute, but I do have an observation about the caption of the brief, which is styled “Brief of Amicus Curiae United States House of Representatives in Support of Respondents.” This caption took me by surprise because during my time in the House General Counsel’s Office amicus briefs reflecting House institutional positions were filed in the name of the Bipartisan Legal Advisory Group (BLAG), rather than in the name of the House itself (unless the House actually voted on the matter, which rarely if ever happened).

It turns out that I had somehow overlooked a small but potentially important change to House rules which took place in 2015 at the outset of the 114th Congress. House Rule II(8), which provides the authority for the House Office of General Counsel, was amended to include the following subparagraph (b):

There is established a Bipartisan Legal Advisory Group composed of the Speaker and the majority and minority leaderships. Unless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.

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Is Senator McSally Unconstitutional?

An interesting Seventeenth Amendment issue is raised by this Atlantic article by Professor Garrett Epps.  Epps contends that the Arizona law which permitted the governor to appoint Martha McSally to fill the vacant senate seat arising from the death of Senator John McCain is unconstitutional. A new lawsuit filed in Arizona federal court, Tedards v. Ducey, seeks to force the governor to call an immediate special election to fill the vacancy.

To understand the issue, we should begin with the text of the Seventeenth Amendment:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This seemingly straightforward language turns out to be more complicated on closer inspection. For example, what happens if a vacancy arises so close to the end of a senate term it is impossible or impractical to call a special election to fill the remainder of the term? A literal reading of the constitutional language might suggest that in such instances the governor is disabled from making an appointment at all because such an appointment would not be a “temporary” one lasting only until the people fill the vacancy by election.

Perhaps not surprisingly, the constitutional text has not been so interpreted, presumably because it makes little or no sense to deprive the governor of the authority to fill a vacancy in such circumstances and because to do so would contravene the important goal of ensuring that each state is fully represented in the Senate. See U.S. const., art. v (“no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”). Indeed, there have been at least 27 instances since the ratification of the Seventeenth Amendment where the governor’s appointee served out the balance of the senate term rather than being replaced at some point by a senator popularly elected to fill the vacancy. See Judge v. Quinn, 612 F.3d 537, 556 (7th Cir. 2010) (“Judge I“). This practice is at least some evidence that the Constitution does not require a special election in all circumstances when a senate vacancy is filled by executive appointment.

What about vacancies at the opposite extreme, namely those that arise relatively early in a senate term? The Seventeenth Amendment does not specify when the special election to fill a vacancy must take place. Thus, if a state were to provide that the special election to fill the vacancy take place at the time of the general election immediately preceding the expiration of the senate term, the election could theoretically take place more than five years after the vacancy arose. Although such a state law would not violate the literal terms of the Seventeenth Amendment, it arguably conflicts with the spirit of the amendment’s “primary objective of guaranteeing that senators are selected by the people of the states in popular elections.” Judge I, 612 F.3d at 555.

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Can Virginia Lieutenant Governor Fairfax Be Impeached? It’s Complicated.

As I wrote a post recently regarding whether Virginia governor Ralph Northam could be impeached for a racist photo that appeared on his medical school yearbook page decades earlier (I said no), I temporized regarding a more difficult hypothetical. Suppose that after an individual has assumed office, it comes to light that he committed a serious crime, such as murder or rape, years before taking office and completely unrelated to his political life? Note that this question has implications for whether a president can be indicted because, if a president can neither be indicted nor impeached for some serious criminal offenses preceding his time in office, it means that he would be effectively immune from accountability for the remainder of his term.

Thanks to Virginia lieutenant governor Justin Fairfax (good job, Virginia), this hypothetical has come to life. Fairfax is accused of two separate sexual assaults, both of which long preceded his time in office. Fairfax denies the allegations. A member of the Virginia House of Delegates has announced that if Fairfax does not resign, he will introduce an impeachment resolution as early as Monday. This raises the question whether the allegations against Fairfax are grounds for impeachment.

This is not an easy question. In his recent book, Professor Michael Gerhardt, one of the leading scholars on impeachment, discusses the hypothetical of a presidential candidate “who lied about committing a murder during the campaign but then later is discovered to have been responsible for that crime.” Michael J. Gerhardt, Impeachment: What Everyone Needs to Know 56 (Oxford U. Press 2018). Gerhardt notes the recent case of federal judge Thomas Porteous, who was impeached by the House and convicted by the Senate in part based upon lying during the confirmation process about corrupt behavior as a state judge. (We also discussed the Porteous case here).

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The Justice Department’s Inventive New Process for (Not) Responding to Congressional Questions

Acting Attorney General Matthew Whitaker was scheduled to appear before the House Committee on the Judiciary tomorrow. According to the latest communication by the Department of Justice, however, he may refuse to appear because the committee has authorized a subpoena for his testimony (even though the subpoena has not actually been served on him). [Update: it seems he will appear after all].

This unusual chain of events began in early January, when Judiciary Committee Chair Jerry Nadler invited Whitaker to testify before the committee at a general oversight hearing regarding the Department of Justice’s operations. Nadler identified a broad range of areas regarding which the committee would likely have questions. Some of these areas related specifically to the investigation of Special Counsel Robert Mueller; others involved completely unrelated areas. The former included questions about Whitaker’s decision not to recuse himself from matters involving the investigation and the question of how the investigation is currently being supervised at the Department of Justice. In addition, Nadler notes “[w]e must discuss the impact of the President’s near-daily statements attacking the integrity of the Department of Justice, the FBI, and Special Counsel Robert Mueller’s investigation.”

After some back and forth over scheduling, Whitaker agreed to testify at a February 8 hearing. On January 22, Nadler sent him a follow-up letter listing a series of specific questions Whitaker could expect to be asked at the hearing. Some of these questions fell clearly within the subjects delineated in Nadler’s earlier letter; others were arguably beyond the scope. For example, some of the questions focused on discussions with President Trump about the investigation by the U.S. Attorney for the Southern District of New York, something that was not specifically mentioned in Nadler’s first letter but is closely related the Special Counsel’s investigation as well as Trump’s general attacks on the Department of Justice.

In any event, Nadler explained that he was sending these questions because “your responses may implicate communications with the President of the United States.” Nadler directed Whitaker to “take any steps that may be necessary for the White House to consider these communications and for the President to determine whether he will invoke executive privilege.” Absent such a formal invocation of privilege by the president, Nadler stated “I will expect you to answer these questions fully and to the best of your knowledge.”

Earlier today, the committee held a business meeting for the purpose of authorizing a testimonial subpoena to Whitaker. According to Nadler, this was necessary “[i]n an abundance of caution to ensure Mr. Whitaker both appears in the hearing room on Friday morning and answers our questions cleanly . . . .”

As a legal matter, it is not clear why this step was deemed necessary. If Whitaker had simply failed to show up at the hearing after saying that he would (which seems unlikely), the committee would presumably have had to subpoena him for a future hearing, which could be easily done whether or not a subpoena had previously been authorized. On the other hand, if Whitaker showed up voluntarily, he would be under the same obligation to answer questions as he would have been under subpoena. See Sinclair v. United States, 279 U.S. 263, 291 (1929) (holding that the congressional contempt statute’s penalty for refusing to answer questions “plainly extends to a case where a person voluntarily appears as a witness without being summoned as well as to the case of one being required to attend.”).

In any event, the Department of Justice (through Assistant Attorney General for Legislative Affairs Stephen E. Boyd) responded to the committee’s authorization of a subpoena by demanding a written assurance “that the Committee will not issue a subpoena to the Acting Attorney General on or before February 8, and that the Committee will engage in good faith negotiations with the Department before issuing a subpoena.”

The first part of this demand is simply the flip side of the committee’s position and is rather silly. If Whitaker shows up at the hearing, there is no reason for the committee to serve him with a subpoena. Conversely, there is no reason to demand that the committee not serve him with a subpoena if he shows up. It really does not matter.

The second part of the demand, however, is different. The Department is using the committee’s theatrical and unnecessary authorization of a subpoena as an opportunity to establish a new and (as far as I know) unprecedented position regarding the process for responding to congressional questions at a hearing. According to Boyd’s letter, the appropriate process for responding to questions that may implicate executive privilege is that first the committee must ask the questions at a hearing in which the witness appears voluntarily, then there must be a period of negotiation in which the parties attempt to resolve differences and, only then, if an accommodation cannot be reached, the committee may issue a subpoena and the president may choose to formally invoke executive privilege.

This is ridiculous. In support of this theory, Boyd quotes an opinion by the once (and presumably future) Attorney General, Bill Barr. But Barr’s opinion related to the process for producing documents, not oral testimony. Although there is nothing prohibiting a committee from issuing a document subpoena in the first instance, the ordinary process is to begin with a document request, have a period of negotiation and the proceed to a subpoena. Indeed, my proposed House rule would formalize that process and add deadlines to ensure that committees are able to get a final response (including a decision by the president whether or not to invoke executive privilege) within a timeframe that is useful for fulfilling their oversight functions.

The proposed rule does not address oral testimony, however, because there the process is different. A committee is free to ask witnesses any questions pertinent to a matter within the committee’s jurisdiction. If the witness declines to answer on grounds of executive privilege (or, more precisely, that the question is one on which the president might decide to invoke executive privilege), theoretically the committee could move immediately to hold the witness in contempt. There is no need to issue a subsequent subpoena because, as we have already seen, the witness is under a legal obligation to answer at the time the questions are asked. As a matter both of practice and practicality, however, the committee should give the witness an opportunity to consult with White House counsel and others to determine whether the president intends to formally invoke the privilege before moving forward with contempt.

The problem is that there is no deadline within which the president must make this decision. The executive branch can (and does) drag the process out indefinitely, often citing the layers of legal counsel that must be consulted before a decision is reached (agency counsel, if applicable, then the Office of Legal Counsel, then the Attorney General, then the White House counsel, etc.). If Congress proceeds with contempt in the meantime, the president can invoke executive privilege immediately before the final contempt vote or even thereafter. And there is little Congress can do about it.

By informing Whitaker of the specific questions before the hearing, Chairman Nadler is cleverly trying to speed up this process (in a manner analogous to my proposed rule on document subpoenas). Whitaker is clearly on notice as to the types of questions that will be asked and has had an opportunity to consult with others in the Department and the White House as to where to draw the lines. But it would not be advisable to press this too far. Until the hearing is actually held, there is no way to say for sure what questions will be asked, whether the committee will be satisfied with Whitaker’s answers to particular questions, what follow up questions might be asked, etc. So assuming that the president does not formally invoke executive privilege before the hearing, the committee should provide Whitaker with a limited but reasonable period of time to determine whether the privilege will be invoked. If the time period expires without any invocation, the committee will be in as strong a position as possible to move forward with contempt.

Of course, the committee still has the problem of how to enforce the contempt. But we will leave that problem for another day.

Can Governor Northam be Impeached?

No.

Perhaps I should elaborate. Article IV, section 17 of the Virginia Constitution (adopted in 1971) provides: “The Governor, Lieutenant Governor, Attorney General, judges, members of the State Corporation Commission, and all officers appointed by the Governor or elected by the General Assembly, offending against the Commonwealth by malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor may be impeached by the House of Delegates and prosecuted before the Senate, which shall have the sole power to try impeachments.”

This language is identical to that contained in the Virginia Constitution of 1902, except that the latter referred to the “State” rather than the “Commonwealth.” The reference to “high crimes and misdemeanors,” language also contained in the U.S. Constitution, dates back to the Virginia Constitution of 1830, which provided: “The Governor, the Judges of the Court of Appeals and Superior Courts, and all others offending against the State, either by maladministration, corruption, neglect of duty, or any other high crime or misdemeanor, shall be impeachable by the House of Delegates; such impeachment to be prosecuted before the Senate, which shall have the sole power to try all impeachments.”

It is clear that Governor Northam has not committed “malfeasance in office, corruption or neglect of duty.” This leaves “other high crime or misdemeanor” as the only charge that conceivably could be brought against him for the offending conduct (which, in case you have been under a rock for the past 48 hours, consists of offensive and racist photos on his medical school yearbook page in 1984).

The term “high crime and misdemeanor” as used in the U.S. Constitution is broad and, as we have discussed before, not necessarily limited to conduct while in office. There is precedent for the proposition (again, at the federal level) that conduct predating the office in question may constitute a high crime or misdemeanor if the misconduct related to a different office and/or can be causally linked to the gaining of the current office. Thus, for example, if an officeholder were to attain office by corruptly rigging an election, there is a strong argument that this could provide the basis for impeachment and removal.

In Northam’s case, one would have to argue that his failure to reveal his prior misbehavior, decades prior to his election as governor, constituted a fraud on the electorate that resulted in his attaining the governorship. Not only would that mean that every untruth told during a political campaign would be potentially impeachable, but that an officeholder could be impeached simply for failing to volunteer damaging information.

To be sure, impeachment has both legal/judicial and political attributes, and the latter is reflected in the “awful discretion which a court of impeachments must necessarily have” such that it “can never be tied down by such strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favour of personal security.” The Federalist No. 65 (Hamilton). But to extend that discretion so far as to encompass any distasteful behavior at any point in an officeholder’s life would be to disregard entirely the judicial aspects of the proceeding and to make impeachment little more than a measure of political popularity.

It is difficult to draw a precise line as to when conduct preceding an officeholder’s tenure should be considered potentially impeachable. But non-criminal conduct that occurred decades before taking office cannot be close to that line.