The Berman Firing, Congressional Oversight, and (Lack of) Presidential Accountability for the Exercise of the Removal Power

I don’t envy Andrew McCarthy, the National Review contributing editor who writes about legal affairs. McCarthy is a smart and experienced lawyer who clearly thinks of himself as intellectually honest. But he also seems to conceive his job as explaining the constitutional operation of our government while minimizing references to the president’s massive unfitness for office. This makes intellectual honesty challenging. It’s a bit like submitting a detailed report on the crash of a passenger jet and only causally mentioning that the pilot was a kangaroo.

A case in point is McCarthy’s take on the dismissal of Geoffrey Berman, the interim U.S. attorney for the Southern District of New York (USA-SDNY). In case you had not heard, late Friday, June 19, the Justice Department issued a press release with three announcements by Attorney General Bill Barr: (1) President Trump “intends to nominate” Jay Clayton (currently the SEC chairman) as the permanent USA-SDNY; (2) Trump “has appointed” Craig Carpenito (currently the interim U.S. attorney for the District of New Jersey) to be the “acting” USA-SDNY effective July 3; and (3) Berman would “stepping down” from his position as the interim USA-SDNY.

Berman responded immediately by denying that he was stepping down and implying that he needed to stay on to protect the integrity of the SDNY’s investigations (which include politically sensitive investigations that could implicate the president’s personal or political interests). The next day, June 20, Barr wrote to Berman advising him that “[b]ecause you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so.”

Noticeably absent from Barr’s letter was any claim that the president had asked for Berman’s resignation or had been involved at all prior to that day. Also unmentioned was any reference to the president’s alleged “appointment” of Carpenito that DOJ had announced the day before. Instead, Barr stated that by “operation of law” Berman’s deputy, Audrey Strauss, would become acting USA-SDNY, noting that “I anticipate that she will serve in that capacity until a permanent successor is in place.” The assurance regarding Strauss’s tenure was reportedly given as a concession for Berman to agree to leave quietly.

To add to the chaos, when asked about Berman’s departure, Trump told the press that he was “not involved.” The White House later “clarified” this statement to acknowledge that Trump had “signed off” on Barr’s recommendation that Berman be terminated. Whether this sign off occurred only after Berman refused to leave is unclear. There has been no other official or unofficial indication that Trump was involved in either Berman’s departure or the botched attempt to appoint Carpenito.

In two columns (June 20 and June 23), McCarthy defends the Trump administration against critics who conceive Berman’s firing to be part of an effort by the president and the attorney general to obstruct justice by derailing particular investigations that threaten Trump in some way. About this he is probably right, but he glosses over the incompetence, dysfunction and lack of accountability that have been so typical of this administration’s “personnel” actions. Continue reading “The Berman Firing, Congressional Oversight, and (Lack of) Presidential Accountability for the Exercise of the Removal Power”

Will the Mazars Court Overrule McGrain? (Part Two)

As suggested in my last post, the May 12, 2020 oral argument in Trump v. Mazars USA, LLP did not go well for the House, to put it mildly. Most of the tough questions for the House Counsel clustered around a single idea: what is the limiting principle that prevents Congress from prying into whatever it wants, whenever it wants? Before getting to that, however, let’s consider an even more fundamental issue raised by Justice Thomas.

Justice Thomas began his questioning of House Counsel Doug Letter by essentially asking what the constitutional basis is for recognizing the power to issue legislative subpoenas at all. Tr. 54-55. Letter responded by pointing to the long line of Supreme Court cases (which began with McGrain) holding that the power to conduct investigations and issue compulsory process is an inherent and integral part of the legislative power conferred by the Constitution.

Justice Thomas did not appear entirely satisfied with this answer, and he followed up by asking “can you give me the earliest example you have of Congress issuing a legislative subpoena?” Tr. 56. Letter pointed to the House’s 1792 investigation of General St. Clair’s failed expedition. This investigation was viewed by the McGrain Court as significant historical evidence of the existence of a constitutional power to issue legislative subpoenas. As the Court explained:

This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition and authorized the committee to send for necessary persons, papers and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work, were members of the House of Representatives at the time, and all voted for the inquiry.

*           *          *

We are of opinion that the power of inquiry– with process to enforce it– is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history– the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action– and both houses have employed the power accordingly up to the present time.

McGrain v. Daugherty, 273 U.S. 135, 161, 174 (1927).

Still not satisfied, Thomas pressed further: “What’s the first example of Congress issuing a legislative subpoena to a private party for documents?” Tr. 56. Letter could not answer him directly, but referred him to the discussion of congressional investigatory history in Watkins v. United States, 354 U.S. 178 (1957).

The referenced passage in Watkins, I think, is the following:

Most of the instances of use of compulsory process by the first Congresses concerned matters affecting the qualification or integrity of their members or came about in inquiries dealing with suspected corruption or mismanagement of government officials. [Note: here the Court cites to Landis’s article]. Unlike the English practice, from the very outset, the use of contempt power by the legislature was deemed subject to judicial review.

     There was very little use of the power of compulsory process in early years to enable the Congress to obtain facts pertinent to the enactment of new statutes or the administration of existing laws. The first occasion for such an investigation arose in 1827, when the House of Representatives was considering a revision of the tariff laws. In the Senate, there was no use of a factfinding investigation in aid of legislation until 1859.

Watkins, 354 U.S. at 192-93.

This passage does not specifically answer Justice Thomas’s question, but it suggests why it may not have been exactly the right question. While courts pass on the validity of specific subpoenas, the scope of Congress’s investigatory authority is determined by reference to the investigation that is being conducted, not by the nature of an individual subpoena (e.g., whether it is directed to a private party or seeks documents).

Thus, for example, the investigation of the St. Clair expedition would be one of the inquiries involving “suspected corruption or mismanagement of government officials” referred to in Watkins, but that does not  mean the investigation lacked the power to compel the production of documents or other information from private parties. Indeed, one of the issues in the St. Clair investigation was the quality of military supplies provided by private contractors, and the committee received affidavits and other evidence from these contractors. See I Arthur M. Schlesinger, Jr. & Roger Bruns, eds., Congress Investigates: A Documented History: 1792-1974 95 (1983). Whether or not the committee actually issued compulsory process to a private party, there seems little doubt it had the authority to do so.

When was the first occasion on which a congressional committee actually issued a legislative subpoena to a private party for documents? The earliest I can verify is that in 1827 a House committee investigating John Calhoun’s prior administration of the War Department subpoenaed documents from an unsuccessful bidder on a government contract. See 3 Reg. of Debates in Cong. 1124 (Feb. 13, 1827). However, the House’s 1810 investigation of General James Wilkinson also obtained testimony and documents from a number of private individuals, at least some of which was obtained by compulsory process. I Congress Investigates at 119 & 170.

The passage quoted from Watkins does not distinguish between subpoenas directed to private parties and government officials, but it does suggest a distinction between (1) investigations of suspected government corruption or mismanagement (what would often be referred to as congressional oversight) and (2) inquiries to obtain facts relevant to enacting or amending legislation. Although both are “legislative” in nature, the Court implies that the latter requires more vigorous scrutiny to ensure that the information sought is pertinent to the investigation, particularly when the information sought would implicate the constitutional rights of private citizens.

This interpretation is consistent with the holding of Watkins, where a labor organizer summoned to testify before the House Un-American Activities Committee testified freely about his own activities and associations, but refused to answer questions about individuals whom he believed may have once been but no longer were members of the Communist Party. The Court reversed his conviction for contempt of Congress, holding that the committee violated his rights under the contempt statute and the due process clause by failing to clearly explain to him the pertinency of the questions to its investigation. It did not dispute that political opinions and associations protected by the Bill of Rights could nonetheless be a proper subject of congressional investigation, but “[p]rotected freedoms should not be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a specific legislative need.” Watkins, 354 U.S. at 198, 205.

The Court emphasized that it was not dealing with congressional oversight, noting that “[t]he public is, of course, entitled to be informed concerning the workings of its government.” Id. at 198. It explained:

     We are not concerned with the power of Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. That was the only kind of activity described by Woodrow Wilson in Congressional Government when he wrote: “The informing function of Congress should be preferred even to its legislative function.” From the earliest times in its history, Congress has assiduously performed an “informing function” of this nature. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 168-194.

Watkins, 354 U.S. at 200 n.33 (citation omitted). The Court thus distinguishes the inquiry in Watkins from the type of congressional oversight involved in McGrain.

This distinction may help point the way to an answer to the question asked by many of the justices at the May 12 argument in Mazars, i.e., what stops Congress from investigating virtually anything on the basis that it has some connection to a subject on which legislation could potentially be had. See, e.g., Tr. 52-54 (Chief Justice Roberts); 57 (Justice Ginsburg); 64 (Justice Alito); 74 (Justice Kavanaugh). Letter had some difficulty answering this question, perhaps because judicial doctrine since McGrain has in fact been extremely deferential to Congress on this score. As the district judge in Mazars pointed out, the governing legal standards are so deferential that they “do not substantially constrain Congress.”

However, the real constraint on Congress is that enforcing a subpoena is extremely cumbersome and therefore legal sanctions for contempt are virtually never imposed. This is in part because the Court in cases like Watkins has imposed technical and procedural requirements for criminal contempt to address the very issue raised in the Mazars argument. See Watkins,  354 U.S. at 204 (expressing concern that the committee “can radiate outward infinitely to any topic thought to be related in some way” to its mandate, that “[r]emoteness of subject can be aggravated by a probe for a depth of detail even farther removed from any basis of legislative action,” and further that “investigators [can] turn their attention to the past to collect minutiae on remote topics, on the hypothesis that the past may reflect upon the present”).

As a consequence, any witness who wishes to contest a congressional subpoena has far more leverage than the formal legal standards would imply. In addition, witnesses have the right to assert privileges, including the privilege against self-incrimination. Congress also has political incentives which further constrain its exercise of the subpoena power. Thus, the hypotheticals advanced by the justices are, for the most part, very unlikely to occur. See, e.g., Tr. 85-86 (Justice Alito) (suggesting the possibility that one house of Congress might subpoena personal records relating to a member of the other house).

Of course, some of these safeguards are inoperative in the Mazars case because it presents the fairly rare scenario of Congress seeking non-privileged records from third parties with no interest in contesting the subpoenas. Whether this  creates a significant potential of congressional abuse is debatable. After all, if Congress were to attempt to exercise this authority in an excessive or abusive manner, banks and other third party record keepers would have an incentive to contest subpoenas to protect the interests of their clients. (This is why the Court would have been wise to consider this blog’s suggestion that only the third parties themselves should have standing to contest the validity of the subpoenas).

Nonetheless, there are undoubtedly instances where Congress investigates particular factual questions which seem tenuously related to a legislative need. It is difficult to see, for example, why Congress would need to know whether a particular baseball player used steroids in order to legislate on the general subject. One could reasonably argue that if Congress is merely seeking information as a case study of a particular social, economic or national security problem, it ought to explain not only how the information is pertinent to potential legislation but why there is a legislative need to explore one specific example out of many. This should be more than adequate to protect against some of the other hypotheticals raised in the May 12 argument, such as the idea that Congress could subpoena an individual’s medical records on the ground it was considering healthcare legislation. See Tr. 65 (Justice Sotomayor).

On the other hand, there is no need for Congress to provide any additional justification for conducting oversight of government agencies and officials. As explained in McGrain and Watkins (and detailed in Professor Landis’s article, among other places), Congress has conducted searching probes into the conduct of government officials and operations since its earliest days. Such investigations are inherently justified by the need to inform itself and the public as to the working of the federal government and to uncover corruption, maladministration and inefficiency of every kind.

This distinction is reflected in Justice Kagan’s suggestion that there may be reasons for treating differently the three congressional subpoenas involved in the consolidated Mazars and Deustche Bank cases. See Tr. 88. Although all three seek similar types of information (financial records relating to President Trump’s private business interests), there are significant differences in the nature of the investigation to which each subpoena relates. The investigation by the Financial Services committee seeks the information simply to use it as a case study of a much more general problem (money laundering) in the financial sector. By contrast, the subpoena from the Intelligence committee is for the purpose of determining whether the president has financial ties to Russia or other foreign actors that might create a conflict of interest or give such actors leverage over his official decision making. The latter falls squarely within the province of congressional oversight while the former constitutes a pure case study investigation that may require additional justification.

The subpoena from the House Oversight committee falls somewhere in the middle. It is defended in part on the ground that it will assist the committee in determining whether to recommend changes to disclosure laws applying to federal officials generally. This is arguably closer to a case study approach, although it seems self-evident why the committee would focus on the highest-ranking federal official, particularly when it has gathered substantial evidence that he has been less than truthful in his private financial disclosures. In addition, the subpoena can be justified on the pure oversight grounds of determining whether the president has financial conflicts of interest or is in violation of the Foreign Emoluments Clause.

The line suggested by Justice Kagan would allow the Court to uphold at least one and likely two of the congressional subpoenas, while sending the other(s) back for further proceedings. It seems to me this would be a reasonable compromise that would satisfy the concerns expressed by the justices (with the possible exception of Justice Thomas) without fundamentally disturbing the legal standards established by McGrain and applied in subsequent cases.

Unlike Kagan (and several of her colleagues), however, I would be loathe to establish a special protection applicable only to the president. Historically the Court’s concerns about over broad congressional investigations focus on protecting the affairs of private citizens from arbitrary scrutiny. Even Judge Cochran, who would have applied these principles to an inquiry into the conduct of (then former) Attorney General Daugherty, claimed only that these principles applied as much to federal officials as to private citizens, not that the former were entitled to additional protection. (To date only Judge Rao, in her Mazars dissent in the D.C. Circuit, has advanced the remarkable proposition that impeachable officials enjoy an immunity from legislative investigation that is unavailable to private citizens). If the Court believes that changes are needed to the doctrine governing congressional case study investigations to avoid arbitrary intrusions into private affairs, such should apply to all citizens, not just the one who happens to sit in the Oval Office.

Whatever the Court ends up deciding in Mazars, let us hope they emulate the McGrain Court in one way but not another: the first by achieving unanimity or something close to it; and the second by not taking more than two years to issue a decision.

Will the Mazars Court Overrule McGrain? (Part One)

Nearly a century ago the Supreme Court decided the landmark case of McGrain v. Daugherty, 273 U.S. 135, 174 (1927), in which the Court declared that “the power of inquiry– with process to enforce it– is an essential and appropriate auxiliary to the legislative function.” In so holding, the Court dispelled doubts raised by Kilbourn v. Thompson, 103 U.S. 168 (1880), where, as we discussed here, the Court had expressed skepticism whether Congress could issue compulsory process outside the context of its judicial functions (such as impeachment and disciplining its members). McGrain settled this issue in Congress’s favor and, along with subsequent cases, established such a deferential judicial stance toward the validity of congressional investigations  that no congressional investigation since has been held to exceed Congress’s legislative powers. After listening to the oral argument in Trump v. Mazars USA, LLP, however, one has to wonder whether this will soon change.

The McGrain case arose from a Senate resolution calling for a broad investigation into the activities of Attorney General Harry Daugherty (our old friend) and his associates at the Department of Justice, including, but by no means limited to, Daugherty’s failure to pursue legal actions against individuals linked to the Teapot Dome scandal. Suspicions regarding Daugherty’s negligence or favoritism with regard to Teapot Dome, however, were the least of the attorney general’s troubles. Senate hearings in March 1924 featured blockbuster testimony from witnesses who claimed Daugherty and his associates had received large amounts of illicit cash which were deposited in a small Ohio bank run by Daugherty’s brother, Mally (“Mal”) Daugherty. The hearings led to Attorney General Daugherty’s forced resignation on March 28, 1924 and to a subsequent testimonial subpoena requiring Mal to appear before the Senate committee investigating his brother. When Mal refused to appear, the Senate ordered him taken into custody, and he immediately petitioned for a writ of habeas corpus in the federal district court for the Southern District of Ohio. (Fun fact: the judge who initially received the habeas petition was Smith Hickenlooper grandfather of the former Colorado governor and presidential candidate).

At this point matters stood at something of a crossroads. With Daugherty’s resignation, the major figures in the scandals of the Harding administration were out of office, and the new Coolidge administration (President Harding having passed away in 1923) was eager to disassociate itself from them. On the other hand, many Republicans argued that the congressional investigations into these scandals were political and excessive, and members of the bar warned that such investigations threatened civil liberties. Chief Justice Taft and Senator George Pepper, a well regarded Republican lawyer, were among the luminaries expressing skepticism about the investigations. See J. Leonard Bates, The Teapot Dome Scandal and the Election of 1924, 60 Am. Hist. Rev. 303, 317 (Jan. 1955).

While Mal Daugherty’s case was pending in the district court, a Harvard law professor named Felix Frankfurter wrote an article in the New Republic entitled “Hands off the Investigations,” which was reprinted in the Congressional Record on the day it was published. See 65 Cong. Rec. 9080-82 (May 21, 1924) (introduced by Senator Ashurst). Professor Frankfurter “came out squarely for the unlimited power of congressional investigations.” Louis B. Boudin, Congressional and Agency Investigations: Their Uses and Abuses, 35 Va. L. Rev. 143, 146 (Feb. 1949).

Frankfurter proclaimed “[i]t is safe to say that never in the history of this country have congressional investigations had to contend with such powerful odds, never have they so quickly revealed wrongdoing, incompetence, and low public standards on such a wide scale, and never have such investigations resulted so effectively in compelling correction through the dismissal of derelict officials.” 65 Cong. Rec. 9081. He sniggered at the suggestion that the Daugherty hearings were unfair because the witnesses who  testified were disreputable (sound familiar?), noting “[i]t is the essence of the whole Daugherty affair that the Attorney General of the United States was involved in questionable association with disreputable characters.” He also rejected the notion that congressional investigations should be subject to rules of evidence or other technical limitations applicable in court, asserting that “[t]he procedure of congressional investigation should remain as it is.” 65 Cong. Rec. 9082.

Just ten days later (May 31, 1924), Mal Daugherty’s habeas petition was granted by US District Judge Cochran (to whom the case for some reason had been reassigned). The court found that the Senate investigation of the (now former) attorney general was beyond the Senate’s constitutional power. See Ex Parte Daugherty, 299 Fed. 620 (S.D. Ohio 1924). Following the reasoning of Kilbourn, Judge Cochran expressed “very serious doubt” whether the Senate had the power to issue compulsory process in any legislative investigation, but he found it unnecessary to rest his decision on that ground. Instead, he reasoned that the Senate was not conducting a proper legislative investigation, but rather it was making an improper attempt to put Harry Daugherty on trial. See id. at __ (“What the Senate is engaged in is not investigating the Attorney General’s office; it is investigating the former Attorney General.”). This was a judicial function that could only be performed by a court or by the House of Representatives pursuant to its impeachment power. The court explained:

[T]he Senate has no power to impeach any Federal officer at the bar of public opinion, no matter what possible good may come of it. It is not within its province to harass, annoy, put in fear, render unfit, or possibly drive from office any such officer, high or low, by instituting such impeachment proceedings against him. The power to impeach under the Federal Constitution resides solely in the House of Representatives, and it has power to impeach solely at the bar of the Senate.

Id. at __.

Judge Cochran’s analysis in many respects mirrors that of Judge Rao in her Mazars dissent in the D.C. Circuit. Indeed, Judge Rao makes a point of identifying her position with that of Judge Cochran. See Trump v. Mazars USA LLP, No. 19-5142, slip op. at 49-50 n. 16 (D.C. Cir. Oct. 11, 2019). She claims that the Supreme Court did not disagree with the district judge on legal principle, but “simply disagreed with the district court’s characterization of the proceedings, which were not about the wrongdoing of the Attorney General but the administration of the Department of Justice as a whole.” Id. This betrays a lack of familiarity with the McGrain case since Mal Daugherty had no connection to the Department of Justice other than his knowledge of his brother’s wrongdoing.

In any event, Judge Cochran’s decision was music to the ears of Harry Daugherty’s defenders and critics of the congressional investigations. One can easily imagine that the Coolidge administration was tempted to endorse the decision (which would have undermined future congressional oversight) or at least to decline to get involved on the Senate’s side. Instead, however, Harlan F. Stone, Daugherty’s successor as attorney general, undertook to represent the Senate on appeal to the Supreme Court, thereby putting both political branches squarely on the side of congressional investigatory authority. Conveniently, though, briefing and oral argument did not take place until after the presidential election of 1924. (Stone’s opening brief was filed six days after the election).

Meanwhile, Frankfurter’s camp was preparing legal scholarship to support the Senate. In December 1924, as the McGrain case was being argued, the Harvard Law Review published a student note critical of Judge Cochran’s decision. See Note, The Power of Congress to Subpoena Witnesses for Non-Judicial Investigations, 38 Harv. L. Rev. 234 (Dec. 1924). Among other things, the note took issue with Cochran’s conclusion that the impeachment power implicitly limited the Senate’s power to conduct legislative investigations of executive wrongdoing. See id. at 238 (“Impeachment is a ponderous method of rectifying gross misconduct and consequently has been seldom employed.  By limiting the exercise of this extraordinary remedy, the Constitution could not have intended to restrict more common powers of investigation shown by experience to be necessary to the practical exercise of a federal power.”).

Although the note is unsigned, there is little doubt it reflects Frankfurter’s influence. The articles editor was Thomas G. Corcoran, a Frankfurter protege who would go on to clerk for Justice Oliver Wendell Holmes at Frankfurter’s recommendation during the 1926-27 term. (Another fun fact: Corcoran in later life became a lobbyist who notoriously once “lobbied” the Supreme Court on behalf of a client. See Bob Woodward & Scott Armstrong, The Brethren 79-86 (1979)).

A more significant piece of scholarship came from Professor Landis, Frankfurter’s Harvard colleague and frequent co-author. See James M. Landis, Constitutional Limitations on the Congressional Power of Investigations, 40 Harv. L. Rev. 153 (Dec. 1926). Landis argued that the meaning of the legislative power conveyed by the Constitution could only be understood in light of historical experience; he then marshaled British and colonial history to demonstrate that “[a] legislative committee of inquiry vested with power to summon witnesses and compel the production of records and papers is an institution rivaling most legislative institutions in the antiquity of its origin.” Id. at 159. When combined with the unbroken practice of legislative investigations since the adoption of the Constitution, he concluded that “[t]he Daugherty inquiry of 1924 is thus a direct descendant of a more ancient lineage, ancient enough, when constitutional history begins for the United States in 1789, to demand recognition as a convention entitled to constitutional standing.” Id. at 193-94.

Many years later, during the conference in Watkins v. United States, 354 U.S. 178 (1957), then Justice Frankfurter remarked that “Landis’s article on investigations turned the trick in the Daugherty case in this Court and led it to uphold the powers of Congress.” The Supreme Court in Conference (1940-1985) 299 (Del Dickinson, ed. 2001). Whether this is exactly true or not (see below), Landis’s article seems to have had a powerful effect on legal thinking about the subject of congressional investigations by “completely demolish[ing]” the historical and logical foundations of Kilbourn‘s cramped reading of the legislative power of inquiry. Boudin, 35 Va. L. Rev. at 147; see also id. at 165-66.

Several factors thus converged to support the Senate’s position before the Supreme Court in McGrain. Politically, there was little motivation for anyone to defend the conduct of the Harding administration, particularly after President Coolidge won reelection in 1924. The fact that both the executive and legislative branches agreed on a common legal position likely weighed heavily in the Senate’s favor. The intellectual firepower of Harvard law school surely did not hurt either.

Nonetheless, it appears that the outcome in McGrain was, like Waterloo, a damn close run thing. Although it was argued in December 1924, it was not decided until January 1927. (Another strike against Professor Jonathan Turley’s theory that the courts will resolve such issues quickly). This in itself suggests more internal dissension than betrayed by the ultimate unanimous decision (Harlan Stone, who was appointed to the Court during the intervening period, did not for obvious reasons participate). Cf. McGrain, 273 U.S. at 154 (“We have given the case earnest and prolonged consideration because the principal questions involved are of unusual importance and delicacy.”).

According to this March 1927 letter to Frankfurter from John Gorham Palfrey, a longtime aide to Justice Holmes, in an earlier vote on the case Justices Holmes and Brandeis were “standing out against the whole bunch,” apparently meaning that the other justices would have affirmed the district court. Although Palfrey indicated that Holmes had read “Jim’s article” and that Brandeis had distributed it to other justices including Justice Van Devanter, who was assigned the opinion, he did not believe that was the real reason for the majority switch. Instead, “Van Devanter, who has been away behind on his opinions, go around to writing the opinion for the majority a couple months ago– and found he couldn’t do it to reach the majority result.”

Whatever the true reason, Van Devanter ultimately produced a strong and unanimous opinion in support of a broad congressional investigatory authority, one that has driven a largely deferential judicial attitude toward congressional investigations ever since.

Until now. We will turn to that in our next post.