Author: Michael Stern

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Who is the House Ethics Committee Actually Investigating?

The Hill reported yesterday that “[t]he House Ethics Committee has launched a formal investigation of sexual harassment allegations against Rep. Eric Massa (D-N.Y.)”  

One can understand how the Hill reached this conclusion.  The resolution adopted by the House Ethics Committee states that the Chair and Ranking Member “have been jointly engaged in an investigation concerning alleged or actual misconduct on the part of former Representative Eric Massa including actions that were offensive, inappropriate, created a hostile work environment, or were otherwise in violation of laws, rules, regulations or other standards of conduct.”  It goes on to note that “the conduct of a current or former Member, officer, or employee of the House . . . may have violated one or more laws, rules, regulations, or other standards of conduct . . . .”  (emphasis added).  This certainly sounds as if the Committee is investigating Massa and the sexual harassment allegations against him. 

The problem is that Massa resigned in March, and the Committee has consistently taken the position that it loses jurisdiction over a Member once he or she resigns.  See, e.g.,  Statement of the Committee on Standards of Official Conduct in the Matter of Representative Vito Fossella (Dec. 19, 2008) (“Representative Fossella did not seek re-election, and the Committee will lose jurisdiction over him when his term expires on January 3, 2009.”); Investigation of Allegations Related to Improper Conduct Involving Members and Current or Former House Pages 78 (Dec. 8, 2006) (“Rep. Kolbe is retiring from the House at the end of his term, and will no longer be within the Committee’s jurisdiction after his retirement.”);   Investigation of Certain Allegations Related to Voting on the Medicare Prescription Drug Improvement and Modernization Act of 2003 57 n. 158 (Sept. 30, 2004) (“Due to Representative Smith’s retirement, the Committee will lose jurisdiction over Representative Smith at the end of this Congress.”). 

Moreover, the language quoted from the resolution above was all contained in the “Whereas” clauses.  When one gets to the “Resolved” Clauses, which actually establish the Investigative Subcommittee, there is no language conferring jurisdiction on the subcommittee to investigate former Members, officers or employees.  The resolution states simply that the subcommittee is established “with jurisdiction to conduct a full and complete inquiry into whether the conduct of any Member, officer, or employee violated any law, rule, regulation or other standard of conduct applicable to the performance of their duties with respect to the allegations of misconduct recited above.”  Given the resolution’s previous express reference to “former” Members and the Committee’s historical position with regard to its jurisdiction, it seems unlikely that this language was intended to confer jurisdiction over Massa himself. 

Thus, despite the (perhaps intentional) ambiguity of the Committee’s resolution, it is probably not conducting an investigation of Massa or his alleged misconduct, except to the extent that such misconduct is relevant to any violations by the real targets of the investigation—those hapless individuals who may be found, as in the Mark Foley investigation, to have been insufficiently vigorous in reporting or otherwise acting on their knowledge of the former congressman’s misconduct.

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What’s Good for the United Nations . . .

           In perusing the Office of Government Ethics report on Executive Order 13490 (the “Ethics Pledge”), I was struck by one waiver that the administration has granted.  Under Section 2 of the E.O., all covered appointees are prohibited from participating in certain matters related to their former employers or clients.  In the case of Stephen J. Rapp, appointed by President Obama as Ambassador at Large for War Crimes Issues, this turns out to be a problem.  Ambassador Rapp’s previous employment was with the United Nations, where he had been appointed by the Secretary General to serve as independent prosecutor for the Special Court for Sierra Leone, a tribunal set up to address war crimes in that country. 

            As explained in a September 8, 2009 memorandum from the State Department’s designated ethics official, Rapp’s ambassadorial duties would involve participation in many matters prohibited by Section 2.  He is expected to be in “constant contact with United Nations and Sierra Leone Court officials at all levels regarding particular matters [such as] communications with respect to operations of the Sierra Leone Court and other United Nations-affiliated courts; oversight of those institutions on behalf of the United States Government on such matters as appointment of judges, prosecutors, and other senior officials and on personnel and budgetary matters; information sharing; cooperation of member-states; arrests of fugitives; ongoing cases for violation of International Humanitarian Law; disposition of prisoners; U.S. diplomatic efforts on behalf of the tribunals; and other issues related to U.S. support for the courts.”  Accordingly, application of Section 2 would prevent Rapp from adequately performing his duties as Ambassador at Large. 

            To solve this problem, the State Department granted Rapp a waiver from the strictures of Section 2, allowing him to participate in matters related to the United Nations and the Sierra Leone Court.  The designated agency official explained: 

It is my determination that the literal application of the restriction in this situation would be inconsistent with the purposes of the restriction.  Because the United Nations is an international organization consisting of many countries, including the United States, and the Sierra Leone Court is a tribunal tasked with creating a forum for the trial of violations of international humanitarian law, the interests of these organizations are generally consistent with the interests of the United States.  The United States provides significant funding to both the United Nations and the Sierra Leone Court and is the largest single contributor to both.  Also, because neither organization is organized for the purpose of generating a monetary profit, there is no concern that you would take official action motivated to increase the revenues of either of these organizations.  I therefore believe that as Ambassador at Large for War Crimes Issues, you will not leave the public with the appearance that your actions are influenced by the interests of your former employers, rather than by the interests of the United States. 

            There are at least two fundamental problems with this reasoning.  First, if one accepts the asserted premise, namely that the interests of the United States and the United Nations are “generally consistent,” the conclusion would be that the United Nations should not be considered a “former employer” within the meaning of the Executive Order.  However, the Executive Order excludes only entities of “the Federal Government, State or local government, the District of Columbia, Native American tribe, or any United States territory or possession.”  It noticeably does not exclude international organizations, foreign governments or nonprofits.  It is presumably not within the purview of the designated ethics officer to substitute his determination about what former employers present a conflict issue for that of the Executive Order. 

            Second, the notion that the interests of the United States are more “generally consistent” with those of the United Nations than with the interests of the typical former employer is ludicrous.  It is true that the United States is a member of the United Nations, but so are Iran, Venezuela, Cuba, Libya, and North Korea, just to name a few countries whose interests have been known to diverge from ours.  Even our closest allies have potential conflicts of interest which in some respects may be more serious than those of any domestic U.S. employer.  (This is why, for example, lobbyists for Canada still have to register under the Foreign Agents Registration Act and British citizens are prohibited from contributing to U.S. political campaigns).  Needless to say, there have been numerous historical examples of conflicts between the United States and the United Nations, including on issues relating to war crimes and the International Criminal Court. 

            During his 1953 confirmation hearing for Secretary of Defense, the then-President of General Motors was quoted (not quite accurately) as saying “what’s good for General Motors is good for the country.”   Surely the statement that “what’s good for the United Nations is good for the country” is no more defensible.

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A Court Challenge to the “Slaughter Solution”

           This Politico article  provides a good overview of the possibility of a court challenge to healthcare reform legislation if it is enacted through the “Slaughter Solution.”  The article notes that “[n]o lawyer interviewed by POLITICO thought the constitutionality of the ‘deem and pass’ approach being considered by House Democrats was an open-and-shut case either way. But most agreed that it could raise constitutional issues sufficiently credible that the Supreme Court might get interested, as it has in the past.”

            This is important, from a practical perspective, because it provides fair warning to the congressional leadership of what may happen should the “Slaughter Solution” be employed.  The takeaway, even from lawyers on the left side of the political spectrum, is that the constitutional issues involved need to be taken seriously by the leadership, and that it is inadvisable to use this procedure if it can be avoided.  As Alan Morrison puts it, “’If I were advising somebody,’ on whether deem and pass would run into constitutional trouble, ‘I would say to them, ‘Don’t do it.’”

            Whether or not this persuades the House to use more traditional means of passing healthcare reform remains to be seen.  If it persists in using the “Slaughter Solution,” the leadership will have only itself to blame for any resulting court challenge.   

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Does the “Slaughter Solution” Comply with the Constitution’s Lawmaking Requirements?

The latest procedural furor in the healthcare reform debate has been over something dubbed the “Slaughter Solution,” so-named after the Chair of the House Rules Committee.  To understand this procedure, one must recall that the Democratic leadership intends for the House to pass two separate bills.  The first is the bill that previously passed the Senate in December.  The second is the “reconciliation fix” bill, which is a new bill that will embody the changes to the Senate bill agreed upon by the leadership.

Once passed by the House, the Senate bill would go to the President and presumably become law.  The reconciliation fix, on the other hand, would still need to be passed by the Senate before it can become law.  (The hope is that the reconciliation fix can be passed by the Senate under reconciliation procedures, which will enable it to avoid a filibuster).  It is possible that only the Senate bill would ultimately become law (theoretically, although not practically, it is also possible that the President could veto the Senate bill, so that neither bill, or only the reconciliation fix, would ultimately become law).

The House could take up and pass the Senate and reconciliation fix bills separately.  For reasons that are somewhat unclear (but apparently relate to the unwillingness of House Members to take a specific vote in favor of the Senate bill), however, the House is reluctant to proceed in this manner.  The Slaughter Solution is designed to allow the House instead to pass both bills in a single vote.  To achieve this goal, the House would first vote to approve a rule that states that passage of the reconciliation fix will be “deemed” to also represent passage of the Senate bill.  The House would then vote to pass the reconciliation fix and, voila, two bills for the price of one.

There is a long, but interesting, thread at the Volokh Conspiracy regarding potential constitutional problems with the Slaughter Solution.  Professor (and former judge) Michael McConnell has also weighed in with his view that the Slaughter Solution is unconstitutional.

There are basically two objections to the Slaughter Solution.  The first is simply to the concept that the House would “deem” a bill to be passed without taking a vote on the bill itself.  It is argued that the Constitution implicitly requires that every bill be actually passed by the House (and Senate) with a vote that is, or could be, separately recorded (Article I, section 5, cl. 3 requires that the “yeas and nays” on “any question” be entered in the Journal if one fifth of either House so request).  Bills that are merely “deemed” passed, therefore, cannot become law.

Although this objection has some plausibility, it also seems artificial, in that there is arguably no substantive difference between voting to pass a bill and voting to pass a rule that “deems” the bill to be passed.  Thus, assuming that there is a constitutional violation, it would seem to be de minimis (and thus no different than other congressional mechanisms like passing bills by unanimous consent despite the absence of a quorum).  Moreover, as commenters have pointed out, the House has used “self executing rules”  for a number of years, and these rules also can “deem” a bill to have passed.  Finally, the Constitution’s recorded vote requirement does not, at least expressly, prohibit conducting a vote on a rule rather than a bill.

A more substantial objection, however, is that the Slaughter Solution requires the House to conduct a single vote on passage of two separate bills.  This is highly unusual, and perhaps completely unprecedented.  Contrary to some claims, the “Gephardt Rule” is not the same because that procedure involves only one bill (a statutory increase in the public debt limit) and one congressional concurrent resolution, which is not presented to the President and does not become law.

What is the constitutional problem with having one vote to pass multiple bills?  The answer can be found in the Supreme Court’s jurisprudence on the line item veto act, which allowed the President to “rescind” individual spending items in an appropriations act passed by Congress.  Members opposed to the line item veto argued that the line item veto unconstitutionally deprived them of their right to vote on the actual legislation that would become law by allowing the President to pick and choose which parts of the appropriations act would be given legal effect.  In Clinton v. New York, the Supreme Court held the line item veto to be unconstitutional, finding that it effectively allowed the President to create a new law different from the one actually passed by Congress.

The Slaughter Solution raises constitutional issues similar to the line item veto.  By requiring Members to vote on multiple bills at the same time, it deprives them of the opportunity to make discrete decisions on each bill.  Members are forced to make an up-or-down decision on a package of bills, but without knowing which of the bills will ultimately become law.  As Judge McConnell points out, it also deprives voters of the opportunity to hold Members accountable for their votes on each bill.  If the House votes for Bill A and Bill B together, and only Bill B becomes law, Members who voted in favor of the package can claim that they only wanted Bill B to become law on the condition that Bill A also became law.

The Slaughter Solution is most closely analogous to the “separate enrollment” version of the line item veto.  Under this proposal, a bill passed by Congress would be “deemed” to consist of multiple individual bills, which would be separately enrolled, and which could then be individually vetoed by the President.  The constitutionality of this version of the line item veto was debated in Congress in the 1990s, but Congress ultimately chose to pass the “enhanced rescission” version instead, which was eventually struck down by the Supreme Court.

It could be argued that the “separate enrollment” device could survive constitutional scrutiny because it better complies with the formal requirements of Article I than the enhanced rescission version.  On the other hand, Elizabeth Garrett notes that the “extended debate in the Senate may reflect the reality that separate enrollment was really no less constitutionally problematic than enhanced rescission, and, given, its deeming provision that allowed all the little bills to pass without separate votes on each, its constitutionality was perhaps more dubious.” In short, the Slaughter Solution raises serious constitutional issues in that it permits the passage of multiple bills with a single vote.

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The Role of Reconciliation Instructions

For those who are trying to follow the nearly incomprehensible debate over reconciliation, it is worthwhile keeping in mind the controlling reconciliation instructions, which are contained in Sections 201 and 202 of the Concurrent Budget Resolution for Fiscal Year 2010.  The exact language of these instructions turns out, it appears, to be critically important. For example, the reconciliation instructions instruct the Senate Health, Education, Labor and Pensions Committee to report changes in laws within its jurisdiction to reduce the deficit by $1 billion for FYs 2009-2014.  But the heathcare “fix” bill, which the House and Senate leadership wishes to pass through reconciliation in order to bypass a Senate filibuster, would not contain such savings.  According to this article in the Hill, the solution to this problem is to combine the healthcare fix with a completely unrelated bill regarding student loans, which is scored as achieving net savings for the government. The article states: “A Senate Democratic aide noted that the student lending measure would be necessary for the HELP Committee to craft a reconciliation bill that produced the required savings. Without piggybacking on the lending bill, it would become more difficult to use reconciliation to pass healthcare fixes under the HELP Committee’s jurisdiction.” As Dave Barry would say, I am not making this up. The 2010 reconciliation instructions are set forth below: SEC. 201. RECONCILIATION IN THE SENATE. (a) COMMITTEE ON FINANCE.—The Senate Committee on Finance shall report changes in laws within its jurisdiction to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (b) COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS.— The Senate Committee on Health, Education, Labor, and Pensions shall report changes in laws within its jurisdiction to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (c) SUBMISSIONS.—In the Senate, not later than October 15, 2009, the Senate committees named in subsections (a) and (b) shall submit their recommendations to the Senate Committee on the Budget. Upon receiving all such recommendations, the Senate Committee on the Budget shall report to the Senate a reconciliation bill carrying out all such recommendations without any substantive revision. SEC. 202. RECONCILIATION IN THE HOUSE. (a) HEALTH CARE REFORM.— (1) The House Committee on Energy and Commerce shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (2) The House Committee on Ways and Means shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (3) The House Committee on Education and Labor shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (b) INVESTING IN EDUCATION.—The House Committee on Education and Labor shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (c) SUBMISSIONS.—In the House, not later than October 15, 2009, the House committees named in subsections (a) and (b) shall submit their recommendations to the House Committee on the Budget. Upon receiving all such recommendations, the House Committee on the Budget shall report to the House a reconciliation bill carrying out all such changes without any substantive revision..

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Should He Stay or Should He Go?

Congressman Eric Massa (D-NY) has announced that he intends to resign from Congress effective 5 pm today.  Massa had announced last Wednesday that he would not seek re-election for health reasons, but his decision on Friday to resign immediately was apparently prompted by revelations that the House Ethics Committee is investigating him for “sexually harassing” a male staffer.

It would be a natural assumption that Massa’s resignation reflects some consciousness of guilt.  Massa, however, has come forward publicly and detailed the basis for the sexual harassment allegation, which he says was based on a single remark made to a staffer at a wedding reception.  If one credits Massa’s account, his remark, although juvenile, would seem to fall well short of conduct that would merit discipline, much less expulsion, by the House.

O.k., then why is Massa resigning?  According to Massa: “Mine is now the deciding vote on the health care bill, and this administration and this House leadership have said, ‘they will stop at nothing to pass this health care bill, and now they’ve gotten rid of me and it will pass.’ You connect the dots.”

With all due respect to Congressman Massa, I am having a hard time connecting the dots.  I understand that he is suggesting that the House leadership somehow orchestrated the ethics investigation against him, but I don’t see how that explains his decision to resign.  If he is innocent, one would think that he would want to stay and fight the allegations.  And while one can understand the distaste for public airing of such allegations, resignation doesn’t make much sense if he is going to be publicly discussing them anyway.

More importantly, Massa’s resignation is not, or should not be, simply a personal matter.  Professor Josh Chafetz argues in Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L. J. 177 (2008), that Members of the House have no constitutional right to resign their positions, and that at the time of the framing of the Constitution, it was anticipated that Representatives would not be able to resign their seats without permission from the House, as was the tradition in the British House of Commons.  (By contrast, the Constitution expressly acknowledges the possibility that Senators may resign, a distinction that Chafetz explains as reflecting the differing structure and purpose of the Senate).

It is true that the House historically has not exercised any authority to prevent Members from resigning, and I think it would be incorrect, even if one largely agrees with Chafetz’s argument, to suggest that Members currently need permission to resign from the House.  Nevertheless, there is merit in Chafetz’s proposal that the House consider restricting resignation as of right.  As he puts it:

Is it really so onerous to tell people who ran for House seats that they must remain there for two years?  Members are well compensated, in both financial and psychic wages, and for that compensation we have a right to demand that they commit to putting the public interest above their own for a short period.  Allowing resignation as a matter of right sends the message that House service is a job like any other, a job that one takes because it suits one’s ends, rather than a trust one holds to serve a greater good.  In contrast, when leaving the House is a matter of legislative grace, rather than individual right, the message is sent that devotion to the public weal is held above desire for personal gain.  This, I suggest, is closer to our aspirational conception of the House of Representatives.

 

As Chafetz notes, the two situations in which Member resignation seems most inappropriate are (1) resignation to escape punishment by the House and (2) resignation for personal advantage or convenience.  Massa’s case involves both of these situations.  He is either leaving to escape punishment or to avoid the inconvenience of fighting false allegations.  Or both.  But in any event, he is leaving his constituents without representation during what is, by his own admission, a time in which the House will be making critical and historic decisions affecting their interests.

Put another way, if Massa is innocent, he should stay and fight for his constituents.  If he is guilty, he should stay and face the music.

 

 

 

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Renzi Update

In a recent series of opinion/orders, the federal district court (Judge Bury) denied former Congressman Renzi’s various Speech or Debate claims, upholding the Magistrate’s previous rulings on those subjects.  (see here, here and here).  The judge, however, recognized that the Speech or Debate claims are likely to be the subject of an interlocutory appeal, thus delaying the trial with respect to the land exchange charges against Renzi and one of his co-defendants. There are also a number of insurance fraud counts against Renzi and various co-defendants.  Because these charges do not involve Speech or Debate or other congressional privileges, I haven’t paid too much attention to them.  It is worth noting, however, that these counts will go forward separately from the land exchange counts.

As expected, the court rejected Renzi’s arguments for suppressing the results of the FBI wiretap.  The court also refused to hold a Kastigar hearing to determine whether prosecution evidence was either protected by the Speech or Debate privilege or derived from privileged evidence.  The court reiterated its view that the Speech or Debate Clause is one of non-use, not nondisclosure.  It suggested that the Clause places no limits on the executive branch’s authority to investigate criminal conduct, but merely prevents the prosecution from introducing privileged evidence against a member of congress.  Finally, the court firmly rejected the D.C. Circuit’s opinion in United States v. Rayburn House Office Building, agreeing with Judge Henderson that the Rayburn majority’s reasoning would inappropriately jeopardize law enforcement tools such as search warrants, wiretaps and voluntary interviews of congressional staffers.

With respect to Renzi’s motion to dismiss the indictment on Speech or Debate, the court found that the privilege does not apply to Renzi’s negotiations and other communications with private landowners regarding the development of land exchange legislation.  According to the court, such communications “were not an integral part of any deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed land exchange information.”

Like the Magistrate, on whom it heavily relied, the court’s reasons for reaching this conclusion are obscure.  It states that “it is not enough that a private constituent comes to a member of Congress with proposed legislation or to discuss proposed legislation, or to ask the congressman or woman for support of certain legislation.”  This, according to the court, would merely involve unprotected discussion of a future legislative act.  The “legislative acts protected by the Speech or Debate Clause occur subsequent to such meetings and discussions . . . when in fact the congressman acts to promote, support and pass the land exchange legislation in either House or undertakes an act that is an integral part of such an endeavor.”

The court does not deny that negotiations with private landowners are sometimes protected.  In fact, it states that “after the introduction of the land exchange legislation, negotiations with land exchange proponents, investigations and fact finding conducted for the purposes of preparing for hearings or amending the legislation or preparing speeches, or preparing to vote, etc., will clearly be protected.”

Why distinguish between negotiations conducted before and those conducted after the introduction of legislation?  The court doesn’t say. Since both types of negotiations would seem to involve discussions of future legislative acts, it is hard to see why they would be treated differently on that basis.  To make things more confusing, the court expressly denies that it is making the introduction of legislation a prerequisite for the application of Speech or Debate.

The court itself appears to have difficulty applying the line it has drawn.  In a footnote, the court declares that the “definition of a legislative act does not reach activities such as political wrangling over which congressional member should sponsor the land exchange legislation, Renzi’s insistence that land exchange proponents offer to build a detox center as part of their project, or that they obtain a letter of commendation to him from the Nature Conservatory (sic).”  Yet elsewhere in the opinion the court approves the Magistrate’s decision to grant Speech or Debate protection to documents that concern precisely those subjects.  See, e.g., Exhibit 15 (email concerning Renzi’s request for a letter from the Nature Conservancy); Exhibit 16 (same); and Exhibit 29 (memo explaining how “political maneuvering” was delaying introduction of land exchange legislation).

Perhaps the court of appeals will have a more coherent approach to the Speech or Debate Clause.

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Issa to Towns: Just the Facts, Man

           A recent post suggested the possibility that Toyota could seek to prevent its former attorney, Dimitrios Biller, from disclosing attorney-client privileged documents to Congress in response to a subpoena.  Toyota, however, apparently did not attempt to do so, and the House Committee on Oversight and Government Reform has obtained the responsive documents.   

            Now a dispute has broken out between the majority and minority regarding the proper interpretation of the documents.  Specifically, Republican Ranking Member Darrell Issa has sent this letter to Chairman Edolphus Towns, identifying four specific areas in which Towns and his staff have allegedly mischaracterized the documents received from Biller.  Issa’s staff contends that a letter sent by Towns “frequently misquotes and mischaracterizes the underlying material, in one extreme case, actually altering the subject of the underlying document.” 

            It is not unusual for the majority and minority to find themselves on opposite sides of an investigation, with the majority acting as “prosecutors” and the minority as “defense counsel.”  This investigation, however, has been, in Issa’s words, a “successful bipartisan effort” up to this point, and Issa has been just as critical of Toyota as Towns.  Issa’s objection is not based on a differing perspective on Toyota’s culpability, but simply on the notion that congressional committees have an obligation to ground their conclusions in a fair reading of the evidence presented to them. 

            Having no access to the underlying documents, I have no opinion on whether Issa is correct on these specific criticisms.  Given the incentives for congressional committees to use investigations as sound-bite generating machines, however, Issa’s admonition is worth highlighting.

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Toyota and Lobbying Disclosure

There has been a good deal of buzz regarding this Toyota internal document, which purports to show the various “wins” of the company’s Public Policy and Governmental/Regulatory Affairs office in Washington, D.C.   In particular, the media has focused the document’s claim that Toyota saved $100 million by negotiating a limited recall with respect to the sudden acceleration problem in the Toyota Camry. A different aspect of the document caught my attention, however.  Many of Toyota’s “wins,” including the recall issue and various rulemakings cited in the internal document, involve dealings with the National Highway Traffic Safety Administration (NHTSA), yet Toyota’s lobbying disclosure filings do not show any lobbying of NHTSA. This might be because Toyota’s communications with NHTSA did not involve “covered executive branch officials” under the Lobbying Disclosure Act.  Only a small number of officials at NHTSA, such as the Administrator, Deputy Administrator and other high-ranking officials, would qualify as “covered executive branch officials” under the LDA.  Communications with other NHTSA officials do not qualify as “lobbying contacts” and therefore may not trigger a reporting requirement.  To make matters more confusing, in some cases it may not be clear whether a particular official is covered or not. Even if Toyota communicated with a covered official, moreover, the communication still may not qualify as a lobbying contact.  The LDA exempts certain types of communications related to administrative proceedings from the definition of lobbying contact.  For example, communications in formal administrative hearings are exempted if they are made in accordance with written agency procedures.  In addition, written communications in public rulemaking proceedings are exempted (on the theory that these communications are available to the public anyway).  In many cases the applicability of these exceptions to particular communications may be less than clear, leaving it up to the judgment of the filer as to whether they need to be reported. Regardless of why Toyota’s filings fail to disclose its communications with NHTSA, this is another example of the disconnect between what the LDA identifies as “lobbying” and what the general public may perceive that term to mean.

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Will Toyota Sue to Prevent Congress from Getting its Attorney-Client Privileged Documents?

           The National Law Journal reports that the U.S. House Committee on Oversight and Government Reform has subpoenaed a former Toyota attorney named Dimitrios Biller, seeking internal documents relating to Biller’s defense of Toyota in rollover litigation from 2003 to 2007.  Biller left the company on bad terms in 2007.  Subsequently, he accused it of concealing or destroying evidence in personal injury cases, and Toyota sued him for divulging information protected by the attorney-client privilege.  Last September a California state court judge referred Biller to the California State Bar for improperly publicizing Toyota’s privileged information.   

This raises some interesting issues about the role of the attorney-client privilege in congressional proceedings.  In a previous post, I explained that Congress has generally asserted a right to disregard the attorney-client privilege (and other common law privileges).  This claim is not one that sits well with the American Bar Association or the legal profession in general.  Nevertheless, it is extremely difficult, as a practical matter, to contest Congress’s position.  A lawyer who receives a congressional subpoena for privileged information cannot challenge it in court (because the Speech or Debate Clause precludes a suit against the congressional committee that issued the subpoena).  Thus, he or she must either comply with the subpoena or risk being held in contempt, with the possibility of facing criminal fines or prison.   

            In 1999 a legal ethics panel of the D.C. Bar ruled that a lawyer who was subpoenaed to provide privileged information to a congressional subcommittee had “a professional responsibility to seek to quash or limit the subpoena on all available legitimate grounds to protect confidential documents and client secrets.”  Once, however, the congressional subcommittee overruled these objections and threatened to hold the lawyer in contempt, there was no longer a professional obligation to resist.   The panel found that “[a] lawyer has satisfied his or her professional obligation to maintain client confidences once all objections have been made and exhausted and is not required by the Rules to stand in contempt of Congress if the subcommittee overrules the objections.”  Importantly, however, there is an exception to this rule if the client obtains a court order forbidding the lawyer from complying with the congressional subpoena. 

            In most cases the lawyer and the client have aligned interests, and a judge might be reluctant to intervene in a congressional matter simply because client files a collusive lawsuit against the lawyer.  In the current situation, however, there is a genuine adversarial relationship between Toyota and Biller, and Toyota can plausibly argue that Biller cannot be expected to make all reasonable efforts to limit the disclosure of its privileged information.  Therefore, if Toyota were to file a lawsuit seeking an injuction or declaratory judgment to prevent Biller from complying with the congressional subpoena, it would be in an unusually strong position to convince a court to reach the merits of the case.  Then the judge would have to decide whether the attorney-client privilege is fully applicable in congressional proceedings, a question which, as the D.C. Bar panel noted, has never been definitively resolved by the courts.