Author: Michael Stern

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I’m Not Dead . . . . I’m Just in Congress.

In Impeachment and Assassination, Professor Josh Chafetz makes the inventive argument that impeachment, at least presidential impeachment, is best viewed as a metaphorical form of political assassination.  Chafetz argues that impeachable offenses should be viewed as “assassinable” offenses, by which he means the type of offenses that warranted assassination in historical instances known to the Framers.  To illustrate the scope of such offenses, he provides a fascinating description of two examples that were foremost in the mind of Benjamin Franklin– the assassination of Julius Caesar and the execution of Charles I.

Chafetz’s provocative theory is challenged by Seth Tillman in The Originalist Who Came In From The Cold: A “New” View of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination.  Tillman focuses on Chafetz’s claim that impeachment (and conviction) is the equivalent of “political death.”  Tillman argues that impeachment is unlike death, even metaphorically speaking.

I tend to agree with Tillman on this.  To begin, being a former president, even one who is a private citizen, is not quite political death.  How much like political death it is will depend on a variety of circumstances, of which impeachment is only one.  No president, of course, has ever been impeached and removed, but former President Clinton (impeached but not removed) seems to be enjoying quite an influential post-presidency, although he holds no formal office.

Moreover, as Chafetz acknowledges, the Constitution does not empower the Senate to disqualify anyone from holding state office.  Tillman points out that this means a disqualified official can serve in positions such as Governor or state legislator, offices which are not only significant in themselves but may involve the exercise of powers that affect the federal government (such as a Governor’s appointment of an interim US senator to fill a vacancy).  While the fact that disqualification is not applicable to state officers is understandable on federalism grounds, it tends to attenuate the “impeachment as political death” metaphor.

Tillman points to a number of other positions that a disqualified officer might hold; these include White House advisor (at least if one accepts the proposition that such an advisor is not an “officer” under the Appointments Clause), presidential elector, and delegate to an Article V convention to propose amendments (or to a state ratifying convention).  And, President Clinton might add, First Spouse.

Even more tellingly, as discussed in a prior post, a disqualified officer is still eligible to serve in Congress.  Indeed, a current Member of Congress, Representative Alcee Hastings, was formerly a federal judge who was impeached and removed from office (though not disqualified).  Hastings’ post-impeachment experience can hardly be called a political death.

Perhaps most importantly, the Constitution does not require that the Senate disqualify those who are impeached and convicted.  Thus, if the Senate were ever to remove a sitting President, it is free to decide that his “high crimes and misdemeanors” do not merit disqualification at all.  In that case, the former president would clearly suffer no “political death.”

All of which suggests that the “impeachment as political death” metaphor is considerably  overstated.  Tillman, however, is not content to stop there.  He contends that the Disqualification Clause does not authorize the Senate to disqualify anyone from future service as president (or vice president).  This contention I will address another day.

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Why Is Tomorrow Different From All Other Days?

In today’s Washington Post, Senator Tom Udall asserts that the Senate rules can be changed by a simple majority, notwithstanding Senate Rule XXII, which requires a two-thirds vote in order to bring debate to a close on a motion to amend the Senate rules.  According to Udall, “[o]n the first day of the new session, the rules can be changed under a simple, rather than two-thirds, majority.”

What is Udall’s basis for saying that the rules can be changed on the first day?  He doesn’t say.  But his colleague, Senator Jeff Merkley, attempted to explain this in an MSNBC interview last night.  Merkley says that “according to the Constitution, a majority can set up the Senate, they can do that at any time, but, according to precedent, it has been done at the start of a two year cycle.”  He later reiterates that a majority can, under the Constitution, amend the rules “at any time,” but that “by precedent, by tradition, which weighs heavily in the Senate,” it is supposed to be done at the beginning of a new Congress.

Unfortunately for Senator Merkley, there is no Senate precedent for amending the Senate rules by a simple majority at the beginning of a new Congress.  None at all.  Senate practice does not even support using the first day to consider amendments to the Senate rules.  This CRS report explains that “the Senate follows a well-established routine on the opening day of a new Congress” and describes in detail the activities, such as swearing in new members, which the Senate performs.  There is no mention of amending the Senate rules.

It is true that there is precedent for claiming that the Senate rules can be changed by a simple majority on the first day of a new Congress.  This claim is based on the theory, apparently originated by Senator Walsh in 1917, that the Senate’s rules expire at the end of a Congress and that it operates, at the beginning of a new Congress, under general parliamentary law.  This claim is contrary to unbroken Senate practice as well as the explicit provisions of Senate Rule V (which provides that the Senate rules “continue from one Congress to the next Congress”).  As discussed in my last post, accepting this claim would also have unsettling consequences for the legitimacy of the Senate itself.

For present purposes, however, what is significant is that there is no Senate precedent which accepts this claim.  To the contrary, as explained in a 2005 CRS report (written when Senate Republicans were threatening the “nuclear option” to eliminate filibusters of judicial nominations), the Senate has clearly rejected it on at least two occasions.  In 1957, Senator Anderson used this argument to support his motion to adopt a new package of rules on opening day.  The Senate voted to table his motion (despite a favorable ruling from Vice President Nixon).  Again, in 1967, Senator McGovern made the same argument, which Vice President Humphrey submitted to the Senate for a vote.     The Senate again voted to reject the argument, sustaining a point of order against McGovern’s motion.  As CRS notes, if the Senate were to adopt the claim that a simple majority can amend the rules at the beginning of a new Congress, it “would have to overturn these two precedents, perhaps among others.”

There is, therefore, no existing precedent supporting the Udall/Merkley theory.  But suppose the Senators are successful in convincing the Senate to establish a new precedent?  It would be utterly impossible to limit that precedent to the opening day of a new Congress.  The only possible justification for ignoring the explicit provisions of the Senate rules would be that the Constitution itself prohibits entrenching Senate rules in the manner set forth in those rules.  But, as Senator Merkley himself acknowledges, that  position means that the Senate rules can be amended by a simple majority “at any time.”  The first day of a Congress is no different in that regard than any other.

Even if the Senate were to declare that the rules can be amended (by simple majority)only on opening day, this new precedent would be worthless.  After all, if the Senate is going to disregard prior precedents and two hundred years of unbroken practice, it seems unlikely that any new precedent would constrain a majority from amending the Senate rules at any time.  As the 2005 CRS report suggests, it is difficult to see how the Senate could resist becoming like the House, “in which debate and deliberation can be terminated at the option of the majority,”  or to avoid “a chaotic environment in which a temporary majority could change precedents any time it wanted to.”

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The Radical Implications of Rejecting the Senate’s Continuity

As discussed in my last post, the effort to repeal the Senate filibuster rule is premised on the proposition that the Senate is not a continuing body.  Professor Aaron Bruhl (see “Burying the ‘Continuing Body’ Theory of the Senate”) and others contend that the Senate, like the House, is a temporary body that “dies” at the end of each Congress.  By longstanding tradition and precedent, the House’s rules, along with its officers and organization, expire when the Congress ends every two years (at noon on January 3, pursuant to the 20th Amendment).  When the newly elected House convenes (this year on January 5), it will proceed to elect a new Speaker, adopt new rules and choose new officers.  (Until it adopts new rules, it will act under general parliamentary law, not under the rules of the prior House).

In contrast, as Professor Bruhl acknowledges, the Senate has never operated in this fashion.  He explains:

“Ten days after the Senate first achieved a quorum, in April 1789, it adopted a short set of rules.  Unlike the House, the Senate did not adopt rules at the beginning of the second or subsequent Congresses.  The old rules simply remained in effect. . . .  The Senate changes individual rules from time to time, but it has readopted or made general revisions to the rules on only a few occasions throughout its history.”

Despite this seemingly powerful constitutional history, Bruhl argues that the Senate is not a continuing body, and that its rules therefore do not continue from Congress to Congress.  Specifically, he contends that the Senate is not continuous in any meaningful way that differs from the House, and that therefore the continuity rules for both should be the same.

The potential implications of this position would seem to be enormous.  It would mean that for the vast majority of its history the Senate has acted pursuant to rules that were not validly adopted.  This would probably not affect ordinary legislation, but it could impact individuals who have been subjects of the Senate’s confirmation, contempt or impeachment powers.  For example, the Senate just convicted and disqualified Judge Porteous in accordance with rules that (allegedly) expired long ago.

Perhaps to avoid these implications, Bruhl suggests that perhaps the Senate’s rules are continuing in a “weak sense,” namely that they continue until the next Congress, when the Senate can choose to either change or readopt them.  As he points out, the House for a time in the late 19th century adopted this version of continuity for its own rules.  

This suggestion, however, would not save the Senate’s rules.  The Senate has not continued its rules from Congress to Congress because it voted to readopt them, as occurred in the case of the House.  It believed that the rules remained in effect unless changed in accordance with specified procedures, regardless of whether a majority of the Senate wanted them to do so.  One cannot construe this belief as an implicit approval of the rules as they have existed at any particular point in time.

In addition, even this weak version of continuity would destroy the symmetry between the House and the Senate because the former has rejected the notion that its rules can continue even until the new Congress can explicitly vote to re-adopt or change them.  Instead, the House believes, apparently as a matter of constitutional theory, that it is required to operate under general parliamentary law rather than the old rules.  Thus, acknowledging even the “weak continuity” of the Senate’s rules would seem inconsistent with Bruhl’s theory.

At the end of the day, Bruhl makes clear that his real objection is to the “entrenchment” of Senate rules (ie, the requirement that a supermajority act in order to change them), rather than to the continuity of those rules.  But entrenchment is an entirely separate issue from continuity.  Bruhl himself recognizes this– noting that the objection to entrenchment is the same regardless of whether the Senate is a continuing body.  This makes the attack on the Senate’s continuity particularly perplexing.

It is true, of course, that those who have wished to challenge the Senate’s rules, beginning with Senator Thomas Walsh in the early 20th century, have seized upon the non-continuity theory as a means of achieving their goals.  The fact that it is the best argument the reformers could think of, however, does not make it a good argument, and does not obscure its utter inconsistency with the Senate’s unbroken history and precedents.  

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Is the Senate a Continuing Body?

The main page of the U.S. Senate website today explains to visitors “What Happens When a New Congress Begins?”  Presumably, this informative blurb, probably written by the Senate historian, is not intended to delve into controversial and bitterly divisive topics.  Yet the author asserts that “the Senate is a continuing body” which “does not have to reorganize itself each new Congress.”

These may appear to be simple statements of established principles (and indeed they are), but they are also hotly disputed by at least some Senators and academics.  The theory on which Senators Udall and Merkley, among others, will attempt to overturn the filibuster rule in the next Congress depends on the Senate not being a continuing body.  The argument for this position is laid out in Professor Aaron Bruhl’s “Burying the ‘Continuing Body’ Theory of the Senate.”  (More on which later.)

In the meantime, one wonders if the Senators read their own website.

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IS FORMER JUDGE PORTEOUS ELIGIBLE TO SERVE IN CONGRESS?

Article I provides that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”  It has long been held by the Senate that disqualification is not an automatic consequence of conviction and removal, but an additional punishment that the Senate may impose in its discretion.  In the case of Judge Porteous, the Senate imposed disqualification for only the third time in history (the other instances were Judge Humphreys in 1862 and Judge Archbald in 1913).

Porteous, therefore, is disqualified from ever holding an “Office of honor, Trust or Profit under the United States.”  But what constitutes such an office?  Over at the Volokh Conspiracy, Professor Somin expresses the view that Porteous is prohibited from serving in Congress, while Professor Volokh maintains that a Senator or Representative does not hold an office of “honor, trust, or profit under the United States.”

Volokh’s position is supported by Article II, section 1, clause 2, which prohibits any “Senator or Representative, or Person holding an Office of Trust or Profit under the United States” from serving as a presidential elector.  This suggests that a Member of Congress does not in fact hold a office of trust or profit as the Constitution uses that term.  More significantly, the Incompatible Offices Clause (Article I, section 6, clause 2) provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  As a textual matter, it is difficult to see how one could hold an office of honor, trust or profit under the United States (within the meaning of the Disqualification Clause) without simultaneously holding an “Office under the United States” within the meaning of the Incompatible Offices Clause.  The logical conclusion, therefore, would seem to be that a Member of Congress holds neither.

Somin’s position, on the other hand, seems to be based on the instinct that it simply would make no sense to disqualify an impeached and convicted official from serving in any executive or judicial position in the federal government, no matter how minor, but not to disqualify him or her from serving in Congress.  Somin does not offer a textual defense of this position, and, although other scholars seem to believe as he does, in most cases they appear to be making an assumption, rather than grappling with the actual text of the Disqualification Clause.  See, for example, Michael Gerhardt, The Federal Impeachment Process 60 (1996) (suggesting that impeached and removed federal judge Alcee Hastings was able to subsequently serve in Congress only because the Senate had failed to disqualify him) and William McKay & Charles W. Johnson, Parliament and Congress 515 n.43 (2010) (same).  

In Democracy’s Privileged Few 280-81 n.68 (2007), Professor Josh Chafetz endorses the Volokh view and contends that those who read the Disqualification Clause as extending to congressional seats are guilty of a “sloppy” reading of the Constitution.  Seth Tillman, in his recent paper, The Originalist Who Came in From the Cold: A “New” View of the Incompatibility Clause, the Removal and Disqualification Clause, and the Religious Test Clause– A Response to Professor Josh Chafetz’s Impeachment and Assassination 17 n.35, indicates that the Volokh/Chafetz position “appears to be the majority view in legal academia today,” a view Tillman evidently shares.

There are a couple of possible arguments against the Volokh/Chafetz view.  The first is that it leads to a result that the Framers could not have intended.  Why allow the Senate to disqualify an officer from serving in any judicial or executive branch position, but not from serving in Congress?  

I think there are quite plausible responses to this question.  I would begin with the fact that the Constitution specifically empowers each house of Congress to expel its own members, but does not authorize it to disqualify the member from future service in Congress.  This was no accident– the Framers were well aware of the John Wilkes case in England, where a Member of Parliament was repeatedly expelled and then re-elected by his constituents.  The Framers were sympathetic to Wilkes and would not have wanted to foreclose an expelled Member of Congress from seeking to regain his seat (in fact, they considered, but ultimately did not adopt, a provision prohibiting expelling a member twice for the same offense).  See Chafetz, Democracy’s Privileged Few 210-11.

Given this, it makes sense that the Disqualification Clause would not extend to congressional seats.  After all, if an expelled member cannot be disqualified despite having committed misconduct while in Congress, it would seem incongruous to disqualify a former executive or judicial officer from running for a congressional seat.  Moreover, the same democratic logic would argue in favor of allowing a state or local constituency to make the final determination as to whether it wanted to be represented by the former officer, with full knowledge of the fact that he (or she) had been impeached and removed.  Just as the particular constituency might disagree with the House or Senate’s expulsion decision, so it might disagree with the House’s decision to impeach and the Senate’s to convict.

Note that this argument is, if anything, even stronger if one accepts the minority view that Members of Congress themselves are subject to impeachment.  If the Framers did not want to prohibit a member from running for re-election after being expelled, it hardly makes sense that they would have a different view regarding impeachment.  Moreover, regardless of whether impeachment is available for Members or not, it seems unlikely that the Framers would have given the Senate the final word on whether a removed officer could run for a seat in the House.

A stronger argument against the Volokh/Chafetz position may be that it is inconsistent with how Congress has interpreted another provision of Article I, which provides that “no Person holding any Office of Profit or Trust [under the United States], shall without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Price, or foreign State.”  This provision has been interpreted to apply to Members of Congress, and the Foreign Gifts and Decorations Act, 5 USC 342, which sets forth how foreign gifts and decorations may be accepted, applies to Members.

This interpretation of the Foreign Emoluments Clause does appear to be inconsistent with the Volokh/Chafetz position.  But the textual inferences discussed earlier still strongly suggest that a Member does not hold an “office of honor, trust or profit” under the United States.  Thus, it may simply be that the traditional interpretation of the Foreign Emoluments Clause has been mistaken.

In my judgment, Volokh and Chafetz appear to be correct.  A disqualified officer is not prohibited from running for Congress.  If former Judge Porteous can convince the voters to elect him, he could join former Judge Hastings on Capitol Hill. 

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Judge Porteous and Impeachment for Conduct Prior to Federal Appointment

On December 8, the Senate voted to convict and remove from office U.S. District Judge Thomas Porteous, who became only the eighth official (all of whom have been federal judges) in history to be impeached and convicted.  Porteous’s offenses stemmed from a corrupt relationship he developed while serving as a state judge before his appointment to the federal bench.  His conviction therefore constitutes a significant precedent with respect to an open question (previously discussed here) regarding the applicability of impeachment proceedings to conduct that pre-dates appointment.

Porteous’s lawyers argued that the charges against him should be rejected because they were largely based on “pre-federal conduct,” ie, activities which took place  before the judge was appointed to the federal bench.  They contended that “[i]n the history of this Republic, the United States Senate has never before removed a federal official, through the impeachment process, for ‘pre-federal’ conduct.”   The House Impeachment Managers, on the other hand, argued that “conduct which occurs prior to assuming federal office, particularly when the officeholder concealed such conduct during the confirmation process, is an appropriate basis for impeachment and removal from office.”  

There were four articles of impeachment against Porteous.  Articles I and II involved both Porteous’s conduct as a state judge and his conduct after his nomination and appointment to the federal bench.  However, it seems fair to note that Article II, in particular, appears to be predominantly based on pre-federal conduct.  Article IV, moreover, is entirely based on Porteous’s deception and/or failure to disclose information during the confirmation process.

The final vote on conviction was 96-0 on Article I, 69-27 on Article II, and 90-6 on Article IV (Article III is not relevant for present purposes).  Because Senators are not required to give reasons for their votes, one must be cautious in drawing conclusions about the legal precedent established by the conviction.  It seems clear, however, that the Porteous conviction stands, at a minimum, for the proposition that misconduct during the confirmation process, such as lying to or deceiving the Senate, may constitute a “high crime or misdemeanor.”  Moreover, it appears likely that those Senators who voted to convict on Article II believed that Porteous’s pre-federal conduct itself constituted, at least under the circumstances of that case, a high crime or misdemeanor.

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Can Joe Miller Win?

To recap briefly, Joe Miller successfully challenged incumbent Senator Lisa Murkowski in the 2010 Republican primary for a U.S. Senate seat from Alaska.  Murkowski then launched a write-in campaign for the general election, and it appears that there were many more write-ins than votes cast for Miller (or for the Democratic nominee, who has conceded).  Alaska is now going through the process of determining for whom the write-ins were cast, though it is presumed that the overwhelming majority were intended to be for Murkowski. 

            For present purposes, we will assume that the number of write-in votes cast for “Lisa Murkowski,” or some reasonable variant thereof, will clearly exceed the number of votes cast for Miller.  Miller contends, however, that the state can legally count only those ballots that correctly reflect the spelling of Murkowski’s name.  He has brought a civil suit seeking to enjoin the state from counting misspelled ballots.   

            Miller may be correct about Alaska law, and it is possible (though unlikely) that he will be able to get enough write-in ballots thrown out so as to be certified the winner of the election.  That, however, is not the end of the matter.  Murkowski will still have the option (which she would almost certainly exercise) to contest Miller’s election in the U.S. Senate.  And the odds are very good that she would prevail in such a contest. 

             To begin with, the Senate enjoys a good deal of flexibility in how it handles an election contest, having established no fixed or formal procedures as exist in the House.  As one commentator notes, “the relatively informal nature of the process results in contestants having wide discretion to bring a case and the Senate having a wide discretion as to how it will handle such a contest.” 

            Moreover, Murkowski has at least one closely analogous Senate precedent that she could cite in support of her challenge.  In a 1924 U.S. Senate race in Iowa between Daniel Steck and Smith Brookhart, Brookhart was certified as the winner by 755 votes.  Steck, however, contested the election on the grounds that Iowa had rejected so-called “arrow ballots,” in which voters had marked Steck’s name but had drawn in an arrow (mimicking a sample ballot they had received); this marking required the disqualification of the ballot under Iowa law.  The contest was referred to a Senate committee, which decided to count those “arrow ballots” which clearly indicated an intent to vote for Steck, notwithstanding the Iowa law.  Although Brookhart’s supporters objected that “no precedent existed for the Senate to overrule a state’s election law” in this fashion, Steck’s supporters argued that “Iowa voters’ preferences, when clearly conveyed on their ballots should be honored, lest their voting rights be denied.”  Ultimately, the Senate decided to count the arrow ballots and seat Steck. 

            Murkowski’s position would be further bolstered by the political realities.  The Democratic majority in the Senate has no incentive to seat Miller, and it would have every reason to take a Murkowski challenge seriously (thereby prolonging a Republican internal battle).  It is reasonable to assume that some Senate Republicans would also be sympathetic to Murkowski, a former colleague who has indicated she would continue to caucus with the Republicans.  Finally, most Senators are likely to be uncomfortable with disregarding the apparent will of the voters, regardless of the legal niceties. 

            In short, even if Miller prevails on his claims under Alaskan law and is certified the winner of the election, he is likely to lose the Senate seat in the long run.

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A Question of “Impartiality”

An article this morning in The Hill is entitled “Some question whether lawmaker trying Waters can be impartial.”  The premise of the story is that Representative Ben Chandler (D-Ky.), one of the Democratic members of the adjudicatory panel that will be hearing the ethics case against Representative Maxine Waters (D-Ca.), may be compromised in some way because he won re-election by a “razor-thin margin in an increasingly red district.”  There is also a possibility (though likely remote) that Chandler’s victory could be overturned on a recount or through an election contest. 

            So how do these facts bring Chandler’s “impartiality” into question?   The article makes three suggestions.  First, it quotes unnamed sources as suggesting that, after a “hard-fought election in a majority-Republican state,” Chandler might want to prove that “he is capable of taking a hard stance against a member of his own party.”  If anything, however, this suggests that Chandler is likely to be more impartial than the average member of the panel.  If he appears unduly harsh toward Waters, he will alienate his Democratic base, not to mention his colleagues in the Democratic Caucus.  On the other hand, he will also want to avoid the appearance of being overly favorable to Waters so as to avoid alienating the more moderate or conservative swing voters in his district.  Chandler’s incentives, therefore, would seem to push him toward impartiality. 

            Second, the article quotes Charles Tiefer, a former counsel to the House and Senate, as suggesting that Chandler will more likely to be influenced by political considerations during the lame-duck session.  This makes no sense at all.  Since he will not face the voters for another two years, Chandler would seem to be as insulated from their views as he is ever likely to be.  To the extent that he is vulnerable to political influence, it would seem to come from his Democratic colleagues, who may play a role in determining his committee assignments and other congressional perks.  This would tend to push him in the direction of favoring Waters, not opposing her. 

            Finally, there is a suggestion that Chandler’s impartiality is compromised by the possibility that he could ultimately be declared to have lost his re-election race, or that he could wind up in an election contest before the Committee on House Administration.  These are remote and speculative possibilities, but even if they should occur, it is not apparent why they should adversely impact Chandler’s impartiality.  A defeated member would seem to have little reason to be partial to either side, while a member facing a possible election contest would seem to have more to lose than gain through injudicious behavior in conducting his obligations as a member of the Ethics Committee. 

              In short, the real charge against Chandler seems to be that he will not be partial enough in judging Waters’ case.  Perhaps this is why Waters’ counsel have not filed a recusal motion against Chandler, but prefer to try the issue in the newspapers.

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Does BLAG Believe that Members of Congress are Immune from Federal Wiretaps?

In a little-noticed amicus brief filed in June with the U.S. Court of Appeals for the Ninth Circuit, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives argued that the Justice Department’s wiretap of former Representative Rick Renzi was unconstitutional.  BLAG contends:  “The Wiretap Order clearly permitted the executive branch to seize communications concerning constitutionally protected legislative activities, and specifically concerning information related to a particular piece of legislation.  Such interception- especially of a purposeful, sustained nature—is patently inconsistent with the [Speech or Debate] Clause.”

BLAG’s argument begins with the premise that the “core purpose” of the Speech or Debate Clause “is to protect legislative independence from the encroachment of the executive and judicial branches.”  It then seeks to show that executive branch abuse of wiretaps threatens legislative independence, citing historical examples such as FBI wiretapping during the J. Edgar Hoover era and a 1961 case in which the Kennedy administration wiretapped a congressman’s meeting with a foreign representative in order to gain a political advantage over the congressman.  From this BLAG concludes that the Speech or Debate Clause should protect against executive branch interception of legislative communications.

In an amicus brief supporting the Justice Department, CREW accuses BLAG of “advocat[ing] a total ban on wiretapping the telephones of members of Congress.”  In theory, this accusation is overstated.  BLAG asserts in its brief that it is not claiming that Members of Congress are immune “from a properly authorized and administered wiretap.”  Instead, BLAG believes that this immunity only extends to interception of communications regarding “legislative information,” such as Renzi’s conversations with his staffers regarding the very land exchange legislation that lies at the heart of the allegations against him.

As a practical matter, however, it is not clear how BLAG’s position differs from a complete ban on wiretapping Members of Congress (and, for that matter, congressional staffers).  A wiretap of a Member of Congress is virtually certain to intercept some legislative information, and it is difficult to see how the Justice Department could screen out such information without first recording and analyzing it.  In the Rayburn case (involving the search and seizure of documents from a congressman’s office), BLAG contended that it would violate the Speech or Debate Clause for the Justice Department to use filter teams to review and separate privileged from non-privileged documents.  Similarly, BLAG objects here to the Justice Department conducting “spot checks” of potentially privileged conversations to determine if they in fact involve legislative matters.  Thus, there would seem to be no way that the Justice Department could intercept any conversations by a Member of Congress if there were any possibility that legislative matters might be discussed.

As a logical matter, moreover, BLAG’s rationale for constitutional protection would seem to apply to any wiretap of a Member of Congress.  After all, there would seem to be little relationship between the potential for abuse or intimidation, on the one hand, and the legislative nature of an intercepted conversation, on the other.  A Member’s conversations regarding non-legislative matters, such as political strategy, campaign fundraising or purely personal affairs, could surely be just as useful to an executive branch that was up to no good.

It is also worth noting that BLAG’s brief fails to mention the most famous example of executive surveillance of Members of Congress—the ABSCAM case.  In that case the Justice Department conducted a sting operation in which undercover agents purported to be foreign citizens offering bribes to Members of Congress in exchange for the Members agreeing to sponsor private immigration bills.  Would BLAG view these discussions as “legislative information” protected by the Speech or Debate Clause?   The answer is not entirely clear, but nothing in BLAG’s brief suggests otherwise.  Certainly the ABSCAM tapes would seem to be just as legislative in nature as the 1961 conversation between a Member of Congress and a foreign representative.

In short, if BLAG is not arguing for de jure legislative immunity from wiretapping, it is arguing for something very close to de facto immunity.

 

 

 

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Student Note on Speech or Debate

Devotees of the Speech or Debate Clause will want to check out Jack Raffetto’s note, “Balancing the Legislative Shield: The Scope of the Speech or Debate Clause,” which appears in the Spring 2010 issue of the Catholic University Law Review.  Focusing on the D.C. Circuit’s decision in In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009) (quashing grand jury subpoenas seeking former Representative Tom Feeney’s communications with the ethics committee), Raffetto argues that Speech or Debate protection for testimony or information submitted to a congressional ethics committee should turn, not on whether ethics case relates to a personal or official matter, but whether the case or investigation for which the subpoena was issued relates to a matter outside the member’s legislative capacity. 

As far as I know, this is the first law review article not written by me which cites Point of Order.