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.

More Standing Confusion in Mazars/Deutsche Bank

Since my last post on standing in Mazars/Deustche Bank, the Supreme Court ordered the parties to file supplemental briefs on the question whether the political question doctrine or “related justiciability principles” bear on the Court’s consideration of these cases. These letter briefs have now been filed and, not surprisingly, none of the parties have changed their position that the case is justiciable and the Court should decide it on the merits.

It is important to note that the Court’s order was specifically focused on political question-type issues, which presumably means the Court wants to know whether there is a problem in deciding what is in substance, if not form, a dispute between the legislative and executive branches. In my interpretation, the Court was asking the Solicitor General in particular how to explain the Justice Department’s position that Article III does not permit the Court to adjudicate subpoena disputes between the branches, yet somehow allows the Court to decide exactly the same type of separation of powers issue raised by President Trump’s attack on the congressional subpoenas to third parties here.

That is a good question and the Solicitor General’s answer, IMHO, amounted to gobbledygook. Hopefully this question will be pursued in oral argument and we may discuss it further in due course. For today, however, I want to focus on the logically antecedent question of what gives Trump standing to complain about the congressional subpoenas in the first place. Although this was not the focus of the Court’s order, Trump’s lawyers spent the first page and a half of their letter brief attempting to explain why such standing exists. Their argument, however, did nothing to assuage my skepticism.

They begin by asserting that the disclosure of Trump’s “private records” or “private papers” is a “tangible” and “concrete” injury. The nature of the injury is not further explained. Is it based upon the premise that Trump owns the records or information in question? As discussed in my prior post, it is not apparent that the records in question necessarily belong to Trump personally. Indeed, the letter brief refers to “Petitioners’ private records,” but “petitioners” include corporate entities which are legally distinct from Trump. Similarly, to the extent that standing is premised on an alleged legal right to prohibit the third party accountant and banks from disclosing the information in question, such right may belong to various business entities, only some of which are even parties to the lawsuit.

The brief cites no authority for the proposition that an individual generally has standing to object to a subpoena for his private papers or financial information in the hands of a third party. It does cite Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which holds that Congress’s effort to curb the dissemination of false personal information in the Fair Credit Reporting Act does not establish that such dissemination results in a concrete harm to an individual whose information was so disclosed. How this case supports Trump’s standing is left to the imagination.

The brief also quotes United States v. Nixon, 418 U.S. 683, 696 (1974), for the proposition that “‘resistance to [a] subpoena present[s] an obvious controversy in the ordinary sense.'” Hopefully, however, an enterprising Supreme Court clerk will look up the full quote, which goes like this:

The demands of and the resistance to the subpoena present an obvious controversy in the ordinary sense, but that alone is not sufficient to meet constitutional standards. In the constitutional sense, controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve. Here [the matter is justiciable because] at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one official of the Executive Branch within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communications of the President.

Id. at 696-97. In Trump’s case, of course, he is not “resisting” a subpoena at all; instead, he is attempting to enlist the assistance of the courts to prohibit third parties from complying with subpoenas. Moreover, he is not claiming that those subpoenas violate either an official privilege (as President Nixon did) or a personal privilege. Instead, he argues that the subpoenas exceed the authority of the committees that issued them because those committees lack a legitimate legislative need for the information sought. True, he bases this argument in part on the idea that Congress lacks the power to enact certain legislation relating to the presidency, but he does not claim that the production of the information itself violates some legal right or privilege belonging to him.

To see the difference, consider the congressional hearing at which Trump’s former personal lawyer, Michael Cohen, testified about various legal and ethical improprieties in the conduct of Trump’s personal and financial affairs. Trump undoubtedly would have had standing to sue Cohen to prevent him from testifying as to information protected by the attorney-client privilege (why he chose not to do so is something of a mystery). But I don’t see why he would have standing to object to Cohen’s testimony on the ground that the committee’s investigation lacked a legislative purpose, any more than he could complain that the subject of the investigation fell within the jurisdiction of a different committee under the House rules. These are objections that Cohen himself could have raised, but third parties would not, at least ordinarily, be permitted to do so.

Finally, Trump’s brief cites Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975), which suggests that a third party may be able challenge a congressional subpoena for lack of a legitimate legislative purpose. As we have discussed before, however, the language in Eastland was dicta in the context of a claim that the subpoena violated the third party’s constitutional rights. As explained by another case cited in Trump’s brief, “[t]he plaintiffs have standing to challenge the legality of [congressional] subpoenas on the ground that the forced disclosure of the materials requested would allegedly violate their federal constitutional rights . . .” Bergman v. Senate Special Comm. on Aging, 389 F. Supp. 1127, 1130 (S.D.N.Y. 1975).

There are undoubtedly many cases in which an individual would be injured by a subpoena to a third party seeking private or personal information about that individual. The fact that Trump cannot identify any authority for applying the Eastland dicta outside the context of a claimed violation of constitutional right or privilege is reason to be skeptical that it applies to mere attacks on the validity of a subpoena to a third party.

 

The Room Where it Sort of Happens

Since I last mused about the issue of remote voting, the House floated, and then dropped, this proposal to allow both remote voting by proxy and remote committee proceedings during a “pandemic emergency.” Among other things, the resolution would have authorized a member to submit to the Clerk a signed letter specifying another member to act as her proxy. This would allow the proxyholder to cast the member’s vote and to record her presence for purposes of a quorum call, provided that the proxyholder obtain the member’s “exact instruction” prior to casting the vote or recording her presence.

The proxy voting procedure raises a number of questions and concerns. Would a large group or majority of members be able to give their proxies to a single leader  or other member? How “exact” do exact instructions need to be? Could the instructions give the proxyholder discretion as to how to vote? Could they direct the proxyholder to vote in accordance with the directions of the speaker or the minority leader? Could they direct the proxyholder how to vote on a bill that had not yet been finalized?

That the drafters of the resolution had some of these same questions is suggested by section 6, which states that “[t]o the greatest extent practicable, sections 1, 2, and 3 of this resolution shall be carried out in accordance with regulations submitted for printing in the Congressional Record by the chair of the Committee on Rules.” However, giving the committee (or the chair alone?) the power to make decisions regarding the very essence of the legislative process is not reassuring and, to coin a phrase, could be a cure worse than the disease. And the qualification “to the greatest extent practicable,” which implies that under some undefined circumstances the hypothetical regulations could be disregarded, adds to the impression of a half baked concept.

Presumably the House resolution was premised on the idea that proxy voting is less of a constitutional/institutional innovation than “pure” remote voting. However, although proxy voting has been traditionally used in committee proceedings, proxy voting has never been permitted in floor proceedings, nor in particular for votes on final passage of legislation or other measures. See William McKay & Charles W. Johnson, Parliament & Congress 212 (2010) (“Proxy voting has never been permitted in either House, and becomes an ethics issue when a Member’s votes is cast in his absence.”).

Even in committees, the idea of proxy voting is not uncontroversial, which is why it has been banned in the House (though not the Senate) since 1995. See id. Jefferson’s Manual describes the rule of Parliament that “[a] committee meet when and where they please, if the House has not ordered time and place for them; but they can only act when together , and not by separate consultation and consent– nothing being the report of the committee but what has been agreed to in committee actually assembled.” House Rules and Manual § 407 (citation omitted). Thus, there is a difference between collective deliberation and agreement on a matter and mere “separate consultation and consent” reflected by proxy voting.

To be clear, the constitutional quorum requirement does not apply to the work of committees (or for that matter to other legislative work that is short of final action by the full legislative body). Nor is there any constitutional obligation that committees conduct their business at the seat of government or in any particular location. As far as I can see, the question whether committees should operate remotely, e.g., by conducting meetings or hearings by videoconference, is  a matter of institutional policy, not constitutional law.

Nonetheless, the idea that legislative action requires more than “separate consultation and consent” is arguably embedded in the constitutional provisions that apply to the full legislative body. These include not only the quorum clause, but the mandate that Congress “assemble” for its annual meeting, and the restriction on either house unilaterally adjourning to “any other place” during the session. For reasons noted by Tim LaPira and James Wallner, constitutional text, historical practice, and the nature of the legislative process itself argue in favor of the physical, not merely virtual, assembly of both houses for the congressional session. And as Wallner observed in this podcast, the framers were aware of the possibility of legislative action by physically remote actors (such as the use of circular letters by committees of correspondence), but did not provide for Congress to act in such a manner. (By contrast, the constitutional amendment process involves what Professor Paulsen has called “concurrent legislation” by geographically dispersed legislative bodies).

This does not necessarily mean, however, that a majority of either house must be physically present in the same room at the same time in order to satisfy constitutional quorum requirements. While physical presence has always been the touchstone of determining a quorum in both houses, it seems to have been flexibly applied to ensure that members are present in the general vicinity of the chamber at roughly contemporaneous times. Thus, members traditionally can be counted toward a quorum even while outside the chamber or if they depart after voting or being counted. See, e.g., 5 Deschler’s Precedents ch. 20 § 3 (“In practice, the Speaker counts all Members he can see, including those leaving the chamber and those behind the railing.”); see also id. § 3.19 (in Senate, chair may use the last roll call as the basis for finding a quorum).

In modern practice, House votes are generally conducted by electronic voting that is conducted over a minimum period of 15 minutes during which members drift in and out. The chair has the discretion to hold the vote open for far longer if need be to allow absent members to make it to the floor. See Hearing Before the House Select Comm. to Investigate the Voting Irregularities of Aug. 2, 2007 at 17 (Oct. 25, 2007) (testimony of former House parliamentarian Charles Johnson) (“Through the early nineties, votes were held open interminably because Members could signal through the cloakrooms that they were on their way and the Chair– a tradition grew that the Chair would honor Members who had asked that the vote be held open and the business of the House was to be impacted adversely.”). The process followed by the House in voting on April 23, 2020, in which there was staggered voting by different groups of members in order to maintain social distancing, further illustrates the absence of any requirement under House rules or practice that a quorum be physically present in the chamber at any one time.

Particularly in light of this historical practice, it seems difficult to contend that the Constitution requires a majority of members to vote in the same room at the same time, and therefore no reason they should be prohibited from voting from locations outside the legislative chamber itself. On the other hand, as I suggested in my prior post, this proposition does not mean that the constitutional requirements have no physical component at all. Absent some degree of proximity among its members, the legislative body arguably is not assembled in a constitutional sense, is not sitting at the same place as the other chamber, and lacks a sufficient number of members in attendance to constitute a quorum. Furthermore, if members are simply voting remotely without the opportunity for collective discussion, debate and negotiation, this is not a mere technical problem, but potentially undermines the deliberative nature of the institution.

A measure introduced in the Senate by Senators Portman and Durbin, S. Res. 548, would allow senators “to cast their votes from outside of the Senate Chamber” during “an extraordinary crisis of national extent.” Like the House resolution, this proposal is not a “pure” remote voting process in that the Senate would still conduct a proceeding in the Senate chamber (though presumably there could be as few as one senator physically present, as in a pro forma session). Unlike the House proposal, however, senators would cast their own remote votes, which avoids some of the practical and potential constitutional problems with proxy voting suggested earlier.

To the extent that a majority of senators are casting their votes from remote locations within the seat of government, it seems to me that S. Res. 548 would very likely pass constitutional muster. The Senate would be assembled for constitutional purposes, the senators would be present at the seat of government, and they would retain the same ability to conduct collaborative legislative activities as during ordinary congressional sessions. To the extent that the need for social distancing inhibits such activities, this would not be result of the remote voting procedure.

Even if there were not a majority of senators present at the seat of government, it is probably unlikely the process could be successfully challenged in court. As suggested by this CRS report, a court might decline to reach the merits of the case under the the enrolled bill rule or other justiciability principles and, even it did reach the merits, would likely in any event be inclined to defer to congressional judgment regarding the propriety of remote voting, particularly under the extraordinary circumstances presented.

Nonetheless, Congress should be concerned not only with the possibility of judicial review, but whether a remote voting procedure complies with the letter and spirit of the Constitution and its potential ramifications from an institutional perspective. With this perspective in mind, I would suggest a tweak to S. Res. 548. When a vote in which senators may participate remotely is scheduled, there should be an opportunity for any senator to ask for an ascertainment of a quorum in connection with the vote. If no such request is made within a set period of time, any objection to the absence of a quorum would be untimely, and the result of the vote would in effect be accepted by unanimous consent. If, on the other hand, a request for a quorum call is made, the determination should be whether a majority of the senators are present within the seat of government at the time they cast their votes. This would have the effect of encouraging senators to be present in Washington D.C. if at all possible, and avoid any institutional slippage toward remote participation as a normal practice. Finally, whether in conjunction with a remote voting procedure or otherwise, the House and Senate should also use technology to maximize the ability of members to communicate and deliberate together during this period.

This may not be a perfect solution, but it seems to me the best that can be achieved under these difficult circumstances.

Could Standing Still be an Issue in Mazars/Deutsche Bank?

When we first discussed the Mazars case (almost one year ago), I suggested that one of the issues would be whether President Trump had standing to object to congressional document subpoenas directed to third parties when he was not claiming constitutional or other privilege in the subpoenaed documents. While Trump and his companies objected to the subpoenas on the grounds that the underlying investigation lacked a legitimate legislative purpose, it was not clear that anyone other than the subpoena recipients should be able to challenge them on that basis.

However, the House did not raise standing as an issue in either the Mazars (involving a subpoena to Trump’s accounting firm) or Deutsche Bank (involving subpoenas to two banks for records relating to Trump’s finances) cases. Nor did any of the judges in those cases question standing. In her Mazars dissent, Judge Rao asserts “[a] subpoena’s force extends beyond its recipient, which the majority has implicitly acknowledged by declining to question President Trump’s standing to challenge the subpoena’s validity.” In Deutsche Bank, the Second Circuit notes “there is no dispute that Plaintiffs had standing in the District Court to challenge the lawfulness of the Committees’ subpoenas by seeking injunctive relief against the Banks as custodians of the documents. See United States Servicemen’s Fund v. Eastland, 488 F.2d 1252, 1260 (D.C. Cir. 1973) (‘[T]he plaintiffs have no alternative means to vindicate their rights.’) (italics omitted), rev’d on other grounds without questioning plaintiffs’ standing, 421 U.S. 491 (1975).” In their Supreme Court brief, Trump’s counsel simply observe that neither the DC Circuit nor Second Circuit  questioned standing and cite a footnote in the Supreme Court’s Eastland decision for the proposition that third parties can challenge legislative purpose. Brief for Petitioners at 59 n.7 (filed Jan. 27, 2020); see Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 n. 14 (1975).

Eastland, however, involved a claim that the subpoena to a bank for an organization’s financial records violated its First Amendment rights. Here there is no claim that the subpoena violates any constitutional privilege or right; Trump simply objects to the validity of the investigation in which the subpoena was issued. As I noted in my original post, I would not read the footnote in Eastland as allowing third parties to challenge the legislative purpose of a congressional subpoena when that purpose is not relevant to an asserted constitutional privilege. And the conclusory references to Eastland  suggest that there is no other caselaw supporting the argument for standing.

In any event, Trump’s standing is premised on the idea, suggested by the Second Circuit, that the subpoenaed records belong to him, and the banks (and the accounting firm) are merely “custodians.” But it is not at all clear that this is true for many of the documents in question. As the House points out       “[m]any of the subpoenaed documents are internal bank records that the President may never have seen or even known about.” Brief for Respondents at 65 (filed Feb. 26, 2020). 

Furthermore, an amicus brief filed by two Boston University law professors points out that most of the records at issue are not Trump’s personal financial records but records of various business entities that are legally separate from him. Indeed, in many cases these entities no longer exist, no longer are owned by Trump and/or are not parties to the litigation. They argue that Trump has no rights in these corporate records and cannot assert any of his legal objections with respect to them. See Brief of Boston University School of Law Professors Sean J. Kealy and James J. Wheaton as Amici Curiae in Support of Respondents at 23-26 (filed Mar. 3, 2020). They also argue that even those entities which are parties to the litigation cannot assert claims based on alleged lack of legitimate legislative purpose because those claims are founded in separation of powers concerns which have no possible application to these business organizations. Id. at 27-29; see also Brief for Respondents at 65 (“The fact that the President is the principal owner of the Trump Organization cannot provide it immunity from Congressional investigation.”).

All of which suggests to me it remains possible that the Court could dispose of this case for lack of standing (which, of course, is a non-waivable jurisdictional requirement). The chief justice will undoubtedly want the Court to speak with one voice if at all possible, and standing might be the way to achieve that result. I suspect, moreover, that the justices will have qualms about opening up the federal courts to litigants seeking to delay and disrupt congressional investigations, a point that was well argued by an amicus brief filed on behalf of former House general counsels and congressional staff. See Brief of Former House General Counsels and Former Congressional Staff as Amici Curiae Supporting Respondents (filed Mar. 4, 2020).

We will see if standing comes up in the (telephonic) oral argument now scheduled for May 12.

 

 

 

The Constitutionality of Remote Voting

As you may have heard, there is a virus going around and as a consequence Congress, and everything else, is shut down. Some (such as @danielschuman) have advocated Congress establish a process for remote voting in the event that members are unable to return to Washington in the near future. One idea is to allow members to deliberate and vote by online video conference.

In a staff report on the subject, the House Rules Committee briefly considered the constitutionality of a remote voting procedure, observing that it would be a “novel question for a court and there is no guarantee of a favorable ruling affirming its constitutionality.” Majority Staff Report Examining Voting Options During the COVID-19 Pandemic (Mar. 23, 2020). To my knowledge there has been no in depth analysis of this question so I am posting a few thoughts.

The relevant constitutional provisions begin with the requirement for Congress annually to assemble and remain assembled until both houses agree to end the session. The Constitution provides that “Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January.” U.S. Const., amend. XX, § 2; see also id., art. I, § 4, cl. 2. The term “assemble” (according to Johnson’s Dictionary) means “to bring together in one place” or “to meet together.”

Further, Article I provides that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn . . . to any other Place than that in which the two Houses shall be sitting.” U.S. const., art. I, § 5, cl. 4. Thus each house must normally sit in the same “place” as the other while Congress is in “session.”

Although the Constitution does not expressly define the “place” at which both houses normally sit, longstanding interpretation and practice establishes it to be the seat of government. See 1 Deschler’s Precedents, ch. 1, § 4. Since November 17, 1800, Congress has assembled and sat in the District of Columbia, which it had designated as the permanent seat of government. Id.; see also U.S. const., art. I, § 8, cl. 17 (authorizing Congress to acquire a District to “become the Seat of the Government of the United States”). As long as each house continues to sit within the seat of government, it does not need the permission of the other body to meet in a different physical location. See 1 Deschler’s Precedents, ch. 1, § 4 (“a simple House resolution suffices to adjourn the House to meet in another structure at the seat of government”); see also id., ch. 1, § 4.1; House Rule I (12) (d) (“The Speaker may convene the House in a place at the seat of government other than the Hall of the House if, in the opinion of the Speaker, the public interest shall warrant it.”).

The Constitution does not have any express requirements for where or how members must vote, but it provides that “a Majority of each [house] shall constitute a Quorum to do Business” and “a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members.”  U.S. const., art. I, § 5, cl. 1. This empowers each house to require the attendance of absent members at a specific location for purposes of “doing business” (e.g., voting). See House Rule III (1) (“Every Member shall be present within the Hall of the House during its sittings, unless excused or necessarily prevented, and shall vote on each question put, unless having a direct personal or pecuniary interest in the event of such question.”).

As a general rule, the question of a quorum is an internal matter for each house and does not concern the other. However, at the commencement of a congressional session “Congress is not ‘assembled’ until a quorum is present in both Houses, and each House has been notified of the quorum in the other.” 1 Deschler’s Precedents, ch. 1, § 2. Furthermore, while each house can adjourn from day to day, for the duration of the congressional session neither may adjourn for more than three days without the consent of the other. U.S. const., art. I, § 5, cl. 4. This has given rise to the practice of each house conducting “pro forma sessions” (performed by a single member who conducts a brief ceremonial session in the House/Senate chamber) every three days when Congress is effectively in recess.

One final provision of note is the president’s authority on “extraordinary Occasions” to “convene both Houses or either of them.” U.S. const., art. II, § 3. The authority to “convene” (defined by Johnson as “to call together; to assemble”) empowers the president to require the assembly of either or both houses at the seat of government as at the commencement of an ordinary congressional session.

What do these various provisions mean for remote voting? My tentative thinking is that nothing in the Constitution prevents either house from determining that a quorum exists when, for example, a majority of members are gathered on the Capitol grounds, rather than in the House or Senate chamber. Similarly, if either house wanted to allow members to vote from their offices, rather than on the floor, it is hard to see what provision would be violated. So long as the house is assembled at the seat of government and there is a reasonable method for determining the existence of a quorum if its absence is suggested, such a procedure appears to violate no constitutional prohibition.

True, the longstanding tradition is for members to deliberate and vote in a single room (with some exceptions, such as proxy voting), but it is hard to see why the quorum clause would be read to prohibit a majority from doing business while they are acting in concert (say while connected by videoconference) at the seat of government, rather than independently voting in the same room at different times. Thus, for example, if during the pandemic either house wanted to keep its members physically separated in one or more structures in the District of Columbia, they should be able to debate and vote electronically. Members would retain the ability to physically congregate if they chose, to access the chamber, and, with the agreement of a sufficient number, to commence an in-person session.

It gets dicier if members (or at least a majority of members) are not physically located in the District of Columbia. One problem is that the house has arguably adjourned to “another place,” though this concern could be resolved by obtaining the consent of the other body. A more difficult issue is that the house may not be  “assembled” or “convened” at all because it has not come together in any particular place. This may seem like a technicality in the context of virtual meetings, but I am not (entirely) sure that it is. Not having at least a majority of the body present at the seat of government, with the option of congregating personally, arguably changes the nature of legislative deliberations in a way that violates the spirit, as well as the letter, of Article I.

There is a possible workaround, however. If members vote to approve a particular measure by videoconference, this could be treated not as final passage , but as an interim step in the legislative process (sort of like the House Committee of the Whole). Final passage would occur at the pro forma session, when the measure would be deemed to be passed without objection. The downside of this procedure is that any member could show up and object, but that is also what ensures the process does not become a permanent virtual Congress.

I have not considered here the likelihood that courts would intervene if these procedures were challenged (presumably by someone injured as a consequence of legislation passed pursuant to the new process). Even assuming a constitutionally defective process, it is likely that the courts would show their customary deference to Congress in these sorts of procedural matters. I assume, however, that members of Congress wish to adhere as closely as possible to the letter and spirit of the Constitution regardless of judicial intervention.

 

 

You Can Take this to the (En) Banc

If we can say one thing for certain in this crazy mixed up world, it is that the full D.C. Circuit will soon be considering whether or when a chamber of Congress may bring suit or otherwise seek assistance of a federal court. There are currently at least three cases before D.C. Circuit panels in which this issue is presented and they do not, to put it mildly, seem to be producing a consensus as to the proper approach or result.

McGahn

In Comm. on the Judiciary v. McGahn (which presented the question whether the Judiciary committee could sue a former White House counsel to require his compliance with a testimonial subpoena), three separate opinions were written. Judge Griffith wrote the “majority” opinion which held that “Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.” Griffith op. at 2.

Of critical importance to Griffith was that the lawsuit “has no bearing on the ‘rights of individuals’ or some entity beyond the federal government.” Griffith op. at 8. This assertion is puzzling because the case in fact revolves around whether an individual (McGahn) has the right to ignore a congressional subpoena and whether his failure to obey the subpoena would subject him to criminal penalties and coercive sanctions for contempt of Congress. As the court acknowledges, either a criminal proceeding against McGahn or a habeas proceeding brought by McGahn after the House imprisoned him for contempt would constitute a justiciable case or controversy under Article III. Griffith op. at 22. Presumably, moreover, McGahn would have standing to sue the committee for a declaratory judgment invalidating the subpoena (though such a suit would be barred by the Speech or Debate Clause). In Judge Griffith’s view, however, the committee’s lawsuit against McGahn constitutes an “interbranch information dispute” while these other proceedings, though presenting precisely the same legal issue (whether McGahn was required to comply with the subpoena), would not.

A major element of Griffith’s reasoning is that courts do not want to be dragged into disputes between the political branches. As he notes, if courts are routinely placed in this position, “we risk seeming less like neutral magistrates and more like pawns on politicians’ chess boards.” Griffith op. at 10. This is a reasonable concern, though its relevance to the legal question before the court is debatable. Moreover, courts would be in an even more difficult position if Congress begins arresting recalcitrant witnesses; Judge Griffith is just gambling this won’t happen.

Apart from the reluctance to become involved in politically charged interbranch disputes, Griffith’s decision is founded essentially on “historical analysis,” meaning his view that “[n]either interbranch disputes (in general) nor interbranch information disputes (in particular) have traditionally been resolved by federal courts.” Griffith op. at 14-15. This approach, he contends, is compelled by Raines v. Byrd, 521 U.S. 811 (1997), where the Court based its refusal to recognize standing for individual members of Congress in their challenge to the constitutionality of the Line Item Veto Act in part based on the fact analogous historical disputes had not given rise to lawsuits between the branches.

It is beyond the scope of this post to fully critique Judge Griffith’s opinion, but I will make two observations here. First, his reliance on Raines ignores the numerous distinctions between that case and McGahn, distinctions which are laid out by the dissent (as well as in a prior post here), any one of which, according to the Raines Court itself, could change the outcome.

Second, the historical approach is extremely vulnerable to “looking over a crowd and picking out your friends,” to use an expression often employed to show the uselessness of legislative history. For example, Griffith analogizes the McGahn suit to historical interbranch information disputes, but the latter overwhelmingly were disputes between Congress and the president about access to documents in the president’s control, not disputes over testimony by a private citizen who once was a government official. He observes that “we do not address whether a chamber of Congress may bring a civil suit against private citizens to enforce a subpoena,” Griffith op. at 35, but fails to explain why that is not precisely the case before the court. He also distinguishes United States v. Nixon, 418 U.S. 683 (1974), on the ground that it involved a judicial, not a congressional, subpoena, but prior to 1974 there was no historical precedent for a court ordering the president to comply with either type of subpoena (a point President Nixon unsuccessfully made in attempting to resist the subpoena in that case). In short, “historical analysis” seems to pretty much allow the court to pick out whatever analogy fits with the result it wishes to reach.

Finally, Judge Griffith states “we do not decide whether a congressional statute authorizing a suit like the Committee’s would be constitutional.” Griffith op. at 35. As the dissent points out, this statement seems entirely inconsistent with his claim that Article III bars courts from hearing this type of dispute. It makes one wonder whether Judge Griffith fully believes the rationale he has advanced for rejecting the committee’s standing.

This brings us to Judge Henderson’s unusual concurring opinion. She begins her opinion by rejecting the Justice Department’s position that would “foreclose Article III standing when the Congress, or a House thereof, asserts any institutional injury in any interbranch dispute,” explaining that she “do[es] not believe . . . Supreme Court precedent supports a holding of that scope.” Henderson op. at 1. Since this is precisely the position that Judge Griffith accepts (apart from the possible caveat should a statute expressly authorize suit), it appears Judge Henderson does not agree with his reasoning.

Judge Henderson elaborates that existing Supreme Court precedent does not decide the question of whether the Judiciary committee has standing to enforce a subpoena. See Henderson op. at 1 (“[T]he issues [here] are far from being on all fours with Raines.”); id. at 7 (“[T]he Supreme Court’s post-Raines precedent does not categorically foreclose the possibility that the Committee’s asserted injury could support Article III standing.”). Nonetheless, she reads this precedent as being generally hostile to congressional standing. Therefore, rather than identifying which interbranch disputes Congress may bring to the federal courts, Judge Henderson says that task must be left to the Supreme Court. See Henderson op. at 8 (“judicial restraint counsels that we find the Committee lacks standing for want of a cognizable injury”); id. at 9 (“If federal legislative standing is to be given new life, it must be the Supreme Court– not an inferior court– that resuscitates it.”). This seems like an odd approach to take (the judicial equivalent of voting “present”) and leaves me wondering whether the judge might change her vote if the case is reheard en banc.

Judge Rogers issued a vigorous dissent which explains in detail why Raines does not control the case. See Rogers op. at 5 (“each factor that in Raines counseled against the existence of standing is absent here”); id. at 6-13; id. at 14 (“Raines does not support, much less dictate, that the Committee lacks standing here.”). As she points out, the committee’s standing is supported not only by the D.C. Circuit’s pre-Raines precedent, but every court to consider the issue since. See Rogers op. at 19 (“McGahn can point to no federal court that has accepted the argument that Congress lacks standing to file a subpoena-enforcement action in federal court against an Executive Branch official; to the contrary, every court to have taken up the question has determined that the is standing in such a case.”). Moreover, she argues, contrary to Judge Griffith, that rejecting the committee’s standing will reduce rather than increase the chances that the political branches will be able to work out information disputes through negotiation and accommodation. Id. at 24-25 (“Future Presidents may direct widescale noncompliance with lawful Congressional inquiries, secure in the knowledge that Congress can do little to enforce a subpoena short of directing a Sergeant at Arms to physically arrest an Executive Branch officer.”). Continue reading “You Can Take this to the (En) Banc”

Can McGahn be Prosecuted for Contempt of Congress?

In a fractured decision, a D.C. Circuit panel has held that the House lacks standing to civilly enforce a testimonial subpoena to former White House counsel Don McGahn. The lead opinion by Judge Griffith concludes, with some caveats, that “Article III of the Constitution forbids federal courts from resolving this kind of inter branch information dispute.” Griffith op. at 2. The problem, he explains, is not that the underlying legal issue (whether McGahn is absolutely immune from congressional subpoenas) is nonjusticiable; a court could resolve that issue in a proper proceeding, such as a prosecution for contempt of Congress or a habeas proceeding arising out of Congress’s exercise of the inherent contempt power. Id. at 22. This type of proceeding, however, does not present a case or controversy that may be adjudicated by a federal court. Id. at 8-9.

Judge Griffith denies that this holding would render Congress “powerless” in its disputes with the executive branch because Congress retains “a series of political tools to bring the Executive Branch to heel.” Griffith op. at 13. He explains that “Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President’s nominees, harness public opinion, delay or derail the President’s legislative agenda, or impeach recalcitrant officers.” Id.

The conflation of purely political remedies, such as withholding appropriations or harnessing public opinion, with those founded on legal right is some confounding. True, Congress is often able to use such political leverage to obtain information needed to conduct routine oversight of executive agencies. But such tools are hardly adequate when the president is personally motivated to withhold information from Congress. One might as well argue that members of Congress suspected of criminal wrongdoing can be persuaded to turn over potentially incriminating evidence by the president’s threat to veto their pet projects.

Impeachment is also an inadequate remedy, particularly where the president is withholding evidence of impeachable offenses. Threats of impeaching the president for withholding information are unlikely to convince him to turn over incriminating evidence he believes will lead to his impeachment anyway. Moreover, as recent experience demonstrates, the Senate is unlikely to convict the president for withholding evidence, at least as long as his lawyers can advance any legal theory, no matter how tenuous, to support his action.

As Judge Griffith notes, Congress may hold executive officers in contempt if they fail to comply with subpoenas. This, however, constitutes a remedy only if some consequences flow (or at least potentially flow) from the finding of contempt. Otherwise Congress might as well send a strongly worded letter. Continue reading “Can McGahn be Prosecuted for Contempt of Congress?”

Questions about OLC’s Role in Responding to House Subpoenas in the Impeachment Inquiry

On Monday I am participating in a Transparency Caucus program entitled “Shedding Light on the DOJ’s Office of Legal Counsel Opinions.” (It will take place at 2pm in Longworth; email Hannah.Mansbach@mail.house.gov if you would like to attend). In that connection, I want to raise an issue regarding OLC’s role in the administration’s decision not to cooperate with the House’s Ukraine investigation and the president’s defense with regard to the second article of impeachment (obstruction of Congress) which resulted from that decision.

The president’s trial brief in the Senate impeachment trial attached an OLC memorandum on “House’s Committees’ Authority to Investigate for Impeachment.” This memorandum, dated January 19, 2020, purported to memorialize oral advice previously given to the White House counsel regarding whether House committees “could compel the production of documents in furtherance of an asserted impeachment inquiry.” OLC Memorandum of 1-19-20 at 2. OLC “advised that the committees lacked such authority because, at the time the subpoenas were issued, the House had not adopted any resolution authorizing the committees to conduct an impeachment inquiry.” Id.

The OLC memorandum is a little fuzzy, however, as to when this advice was given. It is clear that the request for advice came sometime after the issuance of a series of subpoenas issued by House committees in late September and early October 2019. See OLC Memorandum of 1-19-20 at 2 (“Upon the issuance of these subpoenas, you asked whether these committees could compel the production of documents and testimony in furtherance of an asserted impeachment inquiry”): id. at 8  (“Following service of these subpoenas, you and other officials within the Executive Branch requested our advice . . .). The earliest of the subpoenas specifically referenced was on September 27 (to the Secretary of State), the second was on October 4 (to the Acting White House Chief of Staff), and the latest was October 10 (to the Secretary of Energy). See OLC Memorandum of 1-19-20 at 1-2.

The most plausible reading of the OLC memorandum is that the request for advice was made on or after October 10 or, at the earliest, on or after October 4, when the second subpoena was issued. Of course, it is possible that the memorandum refers inaccurately to “subpoenas” when the request was actually made after the issuance of the first subpoena on September 27. This seems unlikely, however, because OLC was undoubtedly aware of the significance of this issue and had no reason to suggest that the request was made later than it actually was.

The OLC memorandum indicates that it provided its initial advice sometime on or before October 31, when the House adopted Resolution 660, formally authorizing an impeachment inquiry. See OLC Memorandum of 1-19-20 at 39. It does not, however, provide any greater specificity on when it first advised the White House counsel and/or other executive officials of its legal conclusion that the subpoenas were invalid.

Why does this matter? Because on October 8, the White House counsel sent a  letter to the House flatly refusing to cooperate with the House’s impeachment inquiry. This letter raises a number of objections, many of which are political rather than legal in nature, to the impeachment inquiry. One of those objections, stated in a single conclusory paragraph, is that the inquiry is “constitutionally invalid”  because of the lack of any formal House vote on the matter. See Letter of Oct. 8, 2019 at 2-3. There is nothing in the letter, however, to suggest that the administration would provide information to the House even if such a vote were to occur; to the contrary, it indicates that the only way the administration would even discuss the possibility of providing information is if the House dropped its impeachment inquiry  and agreed “to return to the regular order of oversight requests.” Id. at 8.

For at least three reasons it seems highly unlikely that OLC had provided even its initial advice to White House counsel as of October 8. First, as already noted OLC probably had not even received a request at that point. Second, even if OLC had received the request as early as September 27, it hardly seems possible that it could have formed a responsible legal opinion by October 8, given that it purported to rest that opinion on an exhaustive historical survey of judicial, executive and legislative statements and practice, including nearly 100 House impeachment inquiries. See OLC Memorandum of 1-19-20 at 13-39; id. at 21 (referring to the “weighty historical record, which involves nearly 100 authorized impeachment investigations”). Third, there is no reference in the October 8 letter to any OLC advice on this issue, though it refers to OLC opinions on other issues it raises.

If the October 8 letter was sent before OLC had advised on this issue, it certainly undercuts the White House’s argument that the president was acting in good faith to protect the legitimate confidentiality interests of the executive branch and that he was relying on legal advice from OLC in doing so. See Senate trial brief of Donald J. Trump at 36 (“the legal principles invoked by the President and other Administration officials are critical for preserving the separation of powers– and based on advice from the Department of Justice’s Office of Legal Counsel”). It also raises the question whether OLC could provide independent legal advice when the president had already formally asserted a position on the issue.

Even if OLC did weigh in before the October 8 letter, it would be important to know how long it spent formulating its opinion before providing that advice. It is also important to find out whether OLC reviewed and approved the October 8 letter. Did OLC advise the White House counsel that the House should be informed that its objection to the impeachment inquiry was curable through a properly worded resolution? Is it consistent with the executive branch’s obligation of negotiating in good faith over information requests to conceal or misrepresent objections that could otherwise have been easily satisfied by the House?

Ventilating these issues would be a great first step toward transparency for OLC.