Author: Michael Stern

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Why It is Pointless to Sue a Member of Congress for Defamation

        The D.C. Circuit just threw out the defamation suit filed by U.S. Marine Sergeant Frank Wuterich against Congressman John Murtha.  Wuterich alleged that Murtha, in a series of interviews with the media, made false and defamatory comments regarding the conduct of the squad led by Wuterich in Haditha, Iraq, in 2005.  Specifically, Murtha, according to the complaint, suggested that Wuterich and his squad were responsible for the “cold-blooded massacre” of Iraqi civilians.  

            Those familiar with a Supreme Court case called Hutchinson v. Proxmire, 442 U.S. 111 (1979), might assume that Wuterich would be entitled to his day in court.  In Hutchinson, the Court considered whether Senator Proxmire enjoyed constitutional immunity from a tort action brought by a research scientist who alleged that Proxmire had injured his reputation by disparaging, through a speech and press release, the scientist’s federally-funded research (into certain animal behaviors) as a waste of taxpayer money.

            The Court concluded that the Speech or Debate Clause did not protect Proxmire from the lawsuit.  The protections of the Clause are limited to “legislative activities,” and the Court found that “[w]hatever imprecision there may be in the term ‘legislative activities,’ it is clear that nothing in history or in the explicit language of the Clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber.”   In reaching this conclusion, the Court relied heavily on the fact that Members of the British Parliament, at the time the Constitution was drafted, were privileged for remarks made in Parliament, but not for the republication of those same remarks elsewhere.

            The Court also quoted the following from Justice Story’s Commentaries on the Constitution:  “No man ought to have a right to defame others under the colour of a performance of the duties of his office.  And if he does so in the actual discharge of his duties in congress, that furnishes no reason why he should be enabled, through the medium of the press, to destroy the reputation, and invade the repose of other citizens.  It is neither within the scope of his duty nor in furtherance of public rights or public policy.  Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory imputations, as a member of congress has to utter them in his seat.” 

            After Hutchinson, a Member of Congress was entitled to immunity for statements made “in his seat,” i.e., on the floor or in committee proceedings, but was liable as other citizens for defamatory remarks in the press or elsewhere outside of the legislative body.  This state of affairs changed, however, in 1989 when Congress passed the Westfall Act, which among other things extended existing tort protection for executive branch officials to “officers and employees” of the “the judicial and legislative branches.” 

           As a result of this legislative change (apparently made without much notice or discussion), Members of Congress were made immune from liability for torts committed within the scope of their office or employment.  The key question becomes whether an alleged tort was within the scope.  The initial decision on this question is made by the Attorney General (which presents some interesting separation of powers questions).  The Attorney General’s certification that the Member was acting within the scope constitutes prima facie, but not conclusive, evidence in a judicial proceeding.  If the court finds in accordance with the certification, the Member is dismissed as a defendant and the United States is substituted.  For defamation and similar torts, this is fatal to the plaintiff’s case because such torts cannot be prosecuted against the United States. 

            One might think, per Justice Story, that a Member of Congress is not acting within the scope of his or her office when making “false charges” or “defamatory imputations” to the press.  The courts, however, have found otherwise, finding that a Member’s communications with the press are generally within the scope of employment.  See, e.g. Operation Rescue Nat’l v. United States, 147 F.3d 68 (1st Cir. 1998) (Senator’s  remarks to a group of reporters following a campaign fundraiser); Williams v. United States, 71 F.3d 502 (5th Cir. 1995) (Representative’s interview on a local television station); Chapman v. Rahall, 399 F.Supp.2d 711 (W.D. Va. 2005) (same). 

            It is very difficult to define the outer boundaries of the “job” of a Member of Congress.  Almost anything the Member does may have an impact on his relationship with his constituents.  Even matters which are indisputably personal, if they become a matter of media inquiry, can impact the Member’s image and thus affect his ability to effectively represent his constituents.  This, at least, was the reasoning of Council on Am Islamic Relations v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006), where the court stated: “A Member’s ability to do his job as a legislator effectively is tied, as in this case, to the Member’s relationship with the public and in particular his constituents in the Congress.  In other words, there was a clear nexus between the congressman answering a reporter’s question about the congressman’s personal life and the congressman’s ability to carry out his representative responsibilities effectively.” 

            Given this precedent, there was never a realistic possibility that Wuterich would be able to maintain his lawsuit against Murtha.  Although the public may be surprised to learn that Members of Congress have, in effect, a license to defame private individuals, such is the current state of the law.  There are, moreover, good reasons why.  If Members of Congress feared constant lawsuits from individuals whom they criticized, there would be a significant chilling effect on their communications with constituents and the general public. 

            On the other hand, there ought to be some mechanism by which individuals who have truly been defamed can obtain a measure of redress and restore their reputations.  The House, for example, should allow plaintiffs who are unable to pursue defamation lawsuits against Members of Congress because of the operation of federal tort immunity to file complaints with the Office of Congressional Ethics.  This would be an appropriate forum for the plaintiff to prove the falsity of alleged defamatory statements and to obtain redress for the reputational injury. 

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What Holder Did on DC Voting Rights

          In February I wrote to suggest that the DC Voting Rights Act poses a significant challenge to the view expressed by many regarding the need to “de-politicize” the Justice Department and the Office of Legal Counsel in particular.  The reason is that this view squarely conflicts with the political imperative of supporting the Act, which is, to put it mildly, of dubious constitutionality. 

            Today’s Washington Post reveals that Attorney General Holder consulted with OLC regarding the DC Voting Rights Act and, to my pleasant surprise, OLC adhered to its previously expressed view that the Act is indeed unconstitutional.  More unpleasantly but less surprisingly, Holder then proceeded to get an answer that he liked better:   

“In deciding that the measure is unconstitutional, lawyers in the department’s Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.

Holder rejected the advice and sought the opinion of the solicitor general’s office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.”

Here it should be noted that there is a big difference between asking whether a law is constitutional and asking whether the Solicitor General’s office can defend it. The longstanding position of the Justice Department and the SG’s office is that “[t]he Department appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.”  Letter of Attorney General William French Smith to the Honorable Strom Thurmond and the Honorable Joseph R. Biden, Jr., 5 O.L.C. 25 (Apr. 6, 1981).  Unless the statute infringes on executive power (which is not an issue regarding the DC Voting Rights Act), the “Department has the duty to defend an act of Congress whenever a reasonable argument can be made in its support, even if the Attorney General and the lawyers examining the case conclude that the argument may ultimately be unsuccessful in the courts.”  Id.

            Whether or not the DC Voting Rights Act meets this deferential standard, this is not the standard that applies (or should apply) when the Justice Department is asked for its actual opinion on the constitutionality of proposed legislation.  This made clear by the “Principles to Guide the Office of Legal Counsel” issued in 2004 by a number of former OLC lawyers, including Dawn Johnsen, President Obama’s nominee to head OLC.  The first principle states: 

           

When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.  

By rejecting OLC’s advice, Holder is clearly signaling that the Obama Administration is no more interested in getting legal opinions inconsistent with its policy preferences than was the Bush Administration.  Indeed, his actions compare unfavorably with those of former Attorney General Ashcroft, who famously refused to overrule OLC and other Justice Department lawyers on the issue of warrantless wiretapping, despite intense pressure from the White House to do so. 

As for those who believed that the Obama Justice Department would base its decisions on “the rule of law” rather than politics, today’s news provides the following clarification:  April Fool!        

 

 

 

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Will the Minnesota Courts “Report” to the Senate on the Coleman/Franken Election?

        Eric Black at MinnPost (hat tip, Rick Hasen’s Election Law Blog) suggests that the three-judge panel hearing the Coleman/Franken election contest might, after resolving the question of which candidate received the greater number of lawful votes, file a separate report with the Senate on Coleman’s contention regarding the use of different standards for counting votes in different Minnesota counties.  (The essence of Coleman’s argument, as I understand it, is that the Minnesota counties that are not involved in the election contest counted certain votes which should not have counted under the standards set forth by the three-judge panel and, because these votes are no longer identifiable, it is impossible to say who received more votes under a uniform standard throughout the state.) 

            Black bases his suggestion on the text of Minnesota Election Statute 209.12, which provides:

           

    When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election. The judge trying the proceedings shall make findings of fact and conclusions of law upon that question. Evidence on any other points specified in the notice of contest, including but not limited to the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest, or by some person appointed by the judge for that purpose; but the judge shall make no findings or conclusion on those points.

After the time for appeal has expired, or in case of an appeal, after the final judicial determination of the contest, upon application of either party to the contest, the court administrator of the district court shall promptly certify and forward the files and records of the proceedings, with all the evidence taken, to the presiding officer of the Senate or the House of Representatives of the United States.

(emphasis added). 

            The statute thus provides that the sole function of the Minnesota courts is to determine “which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election.”  The statute clearly contemplates that there will be other points on which evidence must be taken and preserved and that, following the conclusion of the case, the entire record, including but not limited to evidence relating to points which the court was not permitted to resolve, shall be transmitted to the Senate.

            In making its ruling, therefore, the court will have to resolve the question of whether Coleman’s argument falls within the category of issues that it is permitted to address in the first place.  The answer to this question is by no means obvious, at least based on the face of the statute.  One could make a plausible argument that this issue goes directly to the determination that the court is supposed to make, ie, who received the most lawful votes, and therefore is one that the court may resolve.  On the other hand, one could make an equally plausible argument that this is one of the other points that the court is supposed to leave to the Senate to answer because the statute does not contemplate a judicial determination that no one is entitled to the certificate of election. 

            Assuming that the court decides to award the certificate of election to Franken, I agree with Black’s intuition that the manner in which it treats Coleman’s argument could be quite important to the course of future Senate proceedings.  At one extreme, the court might consider Coleman’s argument on the merits and make findings of fact against him (eg, that even if the other counties had counted in accordance with the proper standard, Franken would still have received more votes).  At the other extreme, the court might find that it was without power to consider Coleman’s argument, but urge the Senate to do so. 

            I do not, however, see anything in the Minnesota statute that would authorize the courts to make a separate report to the Senate.  The only thing that the statute says should be transmitted to the Senate (assuming that one party so requests) is the evidentiary record.  Any views that the courts (either the trial court or the Minnesota Supreme Court) wish the Senate to consider will have to be included in their opinions resolving the case before them.

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Unintentionally Revealing Quote of the Day

The first line in an article from The Hill on the Citizens United case: “The Supreme Court on Tuesday heard arguments in a case that could further erode the government’s control over electioneering communications in the days leading up to elections.” 

First they came for the government’s right to ban advertisements critical of Members of Congress and I did not speak, because I was not a Member of Congress.  Then they came for  the government’s control over electioneering communications and I did not speak, because I did not work for the FEC. . . .

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AIG Executives, Dodd Donations and the Connecticut Legislative Hearing

          What do Joseph Rooney, Chris Phole, Steven Pike, Greg Ruffa, Leonid Shekhtman, Christian Todd, Joseph Cassano, Steven Wagar, Doug Poling, and Jonathan Liebergall have in common?  Well, first, they are all AIG executives who received bonuses that are now the subject of more or less universal outrage.  Second, they have all been subpoenaed to testify about these bonuses next week before the Banks Committee of the Connecticut General Assembly.  Third, sometime between November 21 and December 16, 2006, each of them made the maximum contribution ($2,100) to Friends of Chris Dodd and, at the same time, an identical $2,100 contribution to Chris Dodd for President.   

            A few of these executives, namely Cassano, Wagar, Poling, and Liebergall, have occasionally made other political donations (including, in the cases of Cassano and Poling, past donations to Dodd),  But for Rooney, Phole, Pike, Ruffa, Shekhman and Todd, the 2006 donations to Friends of Chris Dodd and Chris Dodd for President are the only political donations disclosed by the FEC’s online database, which goes back to the 1990s.   

            It is not exactly surprising that AIG executives would want to make a contribution to their home-state Senator, particularly right after the 2006 election that elevated that Senator to the chairmanship of the Senate Banking Committee.  Still, this level of participation by people who are not generally inclined to make political contributions suggests a pretty concerted effort on AIG’s part.   

I wonder whether this has any connection to the involvement of Attorney General Blumenthal, who is said to be interested in Dodd’s Senate seat, in next week’s hearing.

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Whats Blumenthal Got To Do With It?

         According to a press release yesterday entitled “Bank Committee Chairs, Attorney General Issue Subpoenas for A.I.G. Employees”:  “State Senator Bob Duff (D-Norwalk) and Representative Ryan Barry (D-Manchester), co-chairs of the General Assembly’s Banks Committee, with Attorney General Richard Blumenthal today issued subpoenas commanding several A.I.G. employees, including CEO Edward M. Liddy, to appear at a legislative hearing on Thursday, March 26.” 

            Wait a second.  Why would the Attorney General of Connecticut be involved in issuing subpoenas for a legislative hearing?   As an executive branch official, the Attorney General has no authority to call a legislative hearing, to decide who will testify, or to subpoena witnesses to attend.    

            The Connecticut Statute which governs subpoenas for legislative hearings (and which is cited in the press release) provides that “the president of the Senate, the speaker of the House of Representatives, or a chairman of the whole, or of any committee of either house, of the General Assembly, or either of the chairmen of the Legislative Program Review and Investigations Committee shall have the power to compel the attendance and testimony of witnesses by subpoena and capias issued by any of them . . . .”  The persons authorized to issue subpoenas are all legislative officials, and there is no suggestion that the Attorney General or any other executive official has any role. 

            Well, you might say, the press release may misleadingly suggest that Blumenthal is involved in issuing the subpoenas, but a really close reading would reveal the truth.  For example, the photograph accompanying the press release shows the two committee chairs, pens in hand, in the act of signing the subpoenas, while Blumenthal, sans pen, sits evidently drumming his fingers.  The caption says “Senator Duff and Representative Ryan Barry, with Attorney General Richard Blumenthal, sign subpoenas ordering several employees of the insurance company, AIG, to testify at a Banks Committee investigative hearing.”   

            So why is Blumenthal there at all?  The release quotes Blumenthal as saying that “these A.I.G. employees have a moral and legal obligation to appear at this legislative hearing.”  He further states: “I will enforce these subpoenas through prompt and aggressive court action.  We are preparing to do so.” 

            Leaving aside the Attorney General’s authority to decide who has a “moral” obligation to appear at legislative hearings, one might think that the Attorney General would have a role in enforcing the “legal” obligation to appear.  But does he?  Under federal law, the U.S. Attorney General has no authority to enforce congressional subpoenas.  Only if the failure to comply with a congressional subpoena results in a contempt finding by the full House of Congress does the executive branch become involved, and then the matter is referred to the U.S. Attorney, not the Attorney General. 

            Is Connecticut law different?  According to Conn. Code 2-48: “Whenever a witness summoned fails to testify and the fact is reported to either house, the president of the Senate or the speaker of the House, as the case may be, shall certify to the fact under the seal of the state to the state’s attorney for the judicial district of Hartford, who shall prosecute therefor.”   

            This language is quite similar to that contained in federal law, and suggests that a witness may be prosecuted only after the committee which issued the subpoena reports his or her contempt to the full house, and the house then votes to refer the matter for prosecution.  Moreover, even when such referral occurs, it goes not to the Attorney General, but to the state’s attorney for the judicial district of Hartford. 

            Now I am no expert on Connecticut law, and it is possible that the Attorney General is allowed to end run this statutory scheme by bringing a direct enforcement action when a witness refuses to testify.  I can only say that this would be impermissible, and quite likely unconstitutional, under federal law.  Given the extraordinary and publicity-driven nature of these Connecticut proceedings, however, there is ample reason to question whether the Attorney General is overstepping his bounds.  

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The Constitutionality of the ELECT Act

 

           As an alternative to the constitutional amendment proposed by Senator Feingold (which would eliminate temporary appointment of Senators to fill vacancies), Congressman Aaron Schock of Illinois has proposed H.R. 899, the Ethical and Legal Elections for Congressional Transitions (or ELECT Act), which would require that special elections to fill senatorial vacancies be held within 90 days.  While the ELECT Act would not prevent Governors from making temporary appointments (something that can only be achieved through constitutional amendment), it would greatly diminish the potential significance of such appointments. 

            Over at Election Law Blog, Rick Hasen questions the constitutionality of the ELECT Act.  He argues that it conflicts with the text of the 17th Amendment, which provides that “the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”  (emphasis added) 

            While I initially had some concern along the lines expressed by Professor Hasen, a closer examination of the constitutional text, structure and history reveals a compelling case for the legislation’s constitutionality.  This case is laid out below (drawing in part on Professor Vikram Amar’s testimony to Congress this week): 

1.   Article I, § 4, cl. 1, of the Constitution states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.” 

2.   It seems clear that this provision applies to special elections to fill vacancies. 
This is shown not only by the text, but by historical precedent and understanding.   For example, in 1804 the House Committee on Elections noted with regard to a special election to fill a vacant House seat in Pennsylvania, “it is the duty of the executive authority of the respective States to issue writs of election to fill vacancies, yet, by the fourth section of [Article I], it is made the duty of the legislature of each State to prescribe the times, places, and manner of holding such elections.” I Hind’s Precedents of the House of Representatives, § 517. 

3.  Congress has used this authority in recent years to regulate the timing of House special elections.  After the September 11 attacks, concerns about a potential catastrophic attack led Congress to amend 2 USC 8 to set a time limit for House elections under extraordinary circumstances, ie, where a large number of House seats were vacant at the same time. 

4.   Moreover, as Amar points out, Congress used its power under Article I, section 4, prior to enactment of the 17th Amendment, to regulate the filling of Senate vacancies.   Amar states: “Congress in 1866 passed an Act that regulated the manner and timing of all state legislative elections of U.S. Senators. The Act said that whenever there was a Senate vacancy of any kind, both houses of a state legislature, on the second Tuesday they were in session, must vote to fill the vacancy, and if no person was elected, both houses must continue to vote at least once each and every day thereafter of the legislative session.” 

5.  The question then becomes whether the 17th Amendment repealed by implication this congressional authority, and left the state legislatures in sole control of the timing of special elections to fill Senatorial vacancies.  Repeals by implication, however, are highly disfavored, and there are several reasons to believe that no such repeal was intended. 

6.  Certainly the 17th Amendment did not repeal congressional authority over general Senate elections.  Otherwise, Congress would have no power to set a uniform date for Senate elections. 

7.  Moreover, the first clause of the second paragraph of the 17th Amendment, which provides for special elections to fill Senate vacancies, contains no suggestion of an intent to displace congressional authority in this regard.  On the contrary, the language of this provision (“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies”) is substantially identical to that used in the House Vacancies Clause.  If by using the phrase “as the legislature may direct” they had intended to displace such congressional authority,  it would have been logical to place this phrase at the end of the first clause.    

8.  Instead, the phrase was placed at the end of the second clause, which authorizes the state legislature to empower the Governor to make temporary appointments to fill vacancies.   Since this clause is only applicable to special elections conducted after temporary appointments, it seems unlikely that the phrase was intended to displace congressional authority as to all Senate special elections.   

9.  It is not evident why the framers of the 17th Amendment would have wanted Senate special elections to be treated differently than Senate general elections and House special elections for purposes of congressional authority.  Nor is it evident why they would have wanted to deprive Congress of the authority to regulate only those special elections conducted after a temporary appointment. 

10.  There are several more plausible explanations for why the Temporary Appointments Clause concludes with the phrase “as the legislature may direct.”  The phrase can be explained in one or more of the following ways: (1) it substitutes for the time limitation on temporary appointments, ie, “until the next meeting of the legislature,” contained in the original Constitution; (2) it clarifies that the state legislature has the obligation to set the time of special elections, as the House had concluded with regard to its special elections and (3) it ensures that the legislature will only empower the Governor to make temporary appointments that are truly temporary, ie, that have a specific time limit.  

11.  This still leaves the question of why the Temporary Appointments Clause does not say “as the legislature or Congress may direct.”  Other than inadvertence, the absence of a reference to Congress may be explained by the fact that it is the state legislature alone which may empower the Governor to make temporary appointments, and the drafters wanted to ensure that the legislature directed the time and manner of the special election in conjunction with any delegation of the temporary appointment power.  The fact that Congress might use its authority to regulate elections to circumscribe the state legislature’s discretion in the matter is not inconsistent with the language used in the Temporary Appointments Clause. 

12.  These textual, structural and historical arguments might be overcome if there were evidence that the framers of the 17th Amendment actually intended to displace congressional authority.  According to Amar, however, the evidence is to the contrary.   He indicates that the Members of Congress who debated the amendment evidenced an understanding that Congress would retain the authority to regulate all Senate elections. 

            Given the novelty of the issue, there remains the possibility that a persuasive case against the constitutionality of the ELECT Act could be made.  At the moment, though, I have not heard such a case, and the arguments in support of the Act’s constitutionality seem quite compelling. 

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Obama’s First Signing Statement and the Grassley Rider

President Obama has issued his first signing statement with regard to the Omnibus Appropriations Act for FY2009.  Professor Eric Posner, at the Volokh Conspiracy, observes that Obama’s signing statement contains many of the “same old Reagan/Bush/Clinton/Bush theories” about executive power and prerogatives. 

Professor Peter Strauss, on the other hand, responds that Obama’s signing statement was in fact narrower in its claims with regard to certain whistleblower protections contained in Part D, Section 714 of the Act (which I will refer to as the “Grassley Rider” after its principal proponent in the Senate).  The Grassley Rider prevents funds from being used for the salary of any federal officer or employee who attempts to prevent “any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress” or retaliates against such officer or employee.  In short, it protects federal whistleblowers who wish to communicate with Congress about matters relating to their jobs or agencies. 

With regard to the Grassley Rider, Obama says “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.” 

Strauss claims that “[t]his is so much less of a reservation than President Bush (and his predecessors) asserted as to give hope that he is serious about transparency, and about taking the muzzle off government personnel. They would simply have ended the sentence at ‘Congress.'”  [note: Strauss’s email, along with Posner’s initial post, may be found among the VC posts for March 12]. 

Strauss is simply wrong.  Because the Grassley Rider is not a new provision, but has been included in annual appropriations measures since FY1997, one can compare Bush’s signing statements on this exact issue.  For example, in a December 10, 2004 signing statement, Bush stated that he would construe the Grassley Rider “in a manner consistent with the President’s constitutional authority to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.”   

Like Obama, Bush purported to authorize the withholding only of certain categories of information.  In reality, however, these categories are extremely broad.  Indeed, if Bush had stopped after “deliberative processes of the Executive,” his statement would have arguably covered pretty much anything the executive wanted to withhold.  As anyone who has performed congressional oversight will tell you, the deliberative process privilege can be and has been (not necessarily properly) used to withhold a great deal of information that the executive prefers not to share with Congress.  The words “or the performance of the Executive’s constitutional duties” I translate as meaning “just in case there is something that we can’t justify withholding under deliberative process or other privilege, we will still withhold it if we think it appropriate to do so.” 

How is Obama’s statement any different from Bush’s, though?  Although it uses different phrases, it amounts to exactly the same thing.  “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”  If Obama had stopped at “properly privileged,” his statement would still cover anything under Bush’s foreign relations and national security categories (executive privilege) and Bush’s deliberative process category (deliberative process privilege).  As a practical matter, this is enough to give the executive flexibility to withhold information in virtually all circumstances.  (Needless to say, the word “properly” is meaningless because it is the executive that will decide what is “properly” privileged).   

By adding “or otherwise confidential,” Obama, like Bush, leaves himself a catchall category that can be used to justify the withholding of any information that might be difficult or impossible to withhold under a deliberative process theory.  It is hard to imagine any information (other than that which is already public) that couldn’t be withheld under this catchall provision.  

The only possible difference between Bush and Obama would be if one could say that the “performance of the Executive’s constitutional duties” is somehow broader than the “otherwise confidential” category.  However, if anything, the reverse would seem to be true.  The term “confidential” could arguably cover any non-public information of any kind.  And certainly any information that the administration thought would impair the performance of its constitutional duties could be claimed to be confidential (even if it somehow could not be argued to fall within the deliberative process privilege). 

Bottom line, both Bush and Obama claim an executive branch prerogative to withhold any information from Congress when it is (allegedly) in the public interest to do so.   

So how do we know that it is really in the public interest?  Bush and Obama have the same answer—trust us.

 

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Federal Prosecutors Push Boundaries of Illegal Gratuities Statute

 Justice Scalia’s opinion for a unanimous Court in U.S. v. Sun-Diamond Growers, 526 U.S. 398 (1999), begins dryly with the observation: “Talmudic sages believed that judges who accepted bribes would be punished by eventually losing all knowledge of the divine law.  The Federal Government, dealing with many public officials who are not judges, and with at least some judges for whom this sanction holds no terror, has constructed a framework of human laws and regulations defining various sorts of impermissible gifts, and punishing those who give or receive them with administrative sanctions, fines and incarceration.” 

Sun-Diamond involved a trade association which was convicted of having provided former Secretary of Agriculture Mike Espy “approximately $5,900 in illegal gratuities,” including tickets to the U.S. Open tennis tournament, luggage, meals and a crystal bowl.  These gifts were alleged to have violated the illegal gratuities statute, which prohibits giving anything of value to a public official “for or because of any official act performed or to be performed by such public official.” 

The Supreme Court reversed the conviction.  Although the indictment alleged that there were two matters in which the trade association had an interest pending before Espy at the time the gifts were given, there was no allegation of a specific connection between either of them and the gifts.  Instead, the instructions permitted the jury to convict if it found merely that the gifts were because of Espy’s official position.  As the Court noted, these instructions would permit conviction if the jury found the gifts were designed “to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future.”  Moreover, the prosecution’s theory would lead to ridiculous results, such as “criminalize[ing] a high school principal’s gift of a school baseball cap to the Secretary of Education, by reason of his office, on the occasion of the latter’s visit to the school.”  The Court therefore rejected the government’s position in favor of a narrow reading of the statute.  

After Sun-Diamond, prosecutors could only charge under the illegal gratuities statute if they could prove a link between a thing of value conferred on a public official and a specific “official act” for or because of which it was given.  Combined with a subsequent decision of the D.C. Circuit, Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007) (en banc), which narrowed the definition of “official act” to mean only formal actions connected to a “class of questions or matters whose answer or disposition is determined by the government,” Sun-Diamond made it extremely difficult to prosecute under the illegal gratuities statute.  Indeed, the Campaign Legal Center recently described the law as “toothless.” 

One consequence of these judicial decisions is that prosecutors have increasingly turned to “honest services fraud” as an alternative to charging illegal gratuities.  Without getting into the details of an honest services case (a controversial issue which may be the subject of a future post), an honest services count will typically allege that a public official received a stream of things of value in order to deprive the public of its right to the honest services of that official.  For example, last year’s indictment of Abramoff associate Kevin Ring alleged that Ring and other Abramoff conspirators “attempted to groom . . . public officials by offering and providing things of value with the intent of making those public officials more receptive to requests for official actions on behalf of their clients in the future.”  In other words, the honest services charge can be used to accomplish exactly what the Supreme Court said in Sun-Diamond could not be accomplished with the illegal gratuities statute. 

However, last week’s indictment of former congressional staffer named Frasier Verrusio, who worked for Representative Don Young as the Policy Director of the House Transportation Committee, contains no honest fraud count.  Perhaps this is because Verrusio is not alleged to have received a stream of things of value over time.  All of the gifts that Verrusio is alleged to have received were in the course of one all-expenses paid trip to New York for Game One of the 2003 World Series.   The indictment charges instead that Verrusio violated the illegal gratuities statute by accepting these gifts.

The indictment alleges that on October 17, 2003, Verrusio accepted an invitation from James Hirni, a lobbyist, to attend the World Series game.Hirni arranged for Verrusio to fly to New York on October 18 (cost $228.50), attend the game (cost $110) and stay overnight at a hotel (cost $300).During this trip, Verrusio and a Senate staffer named Trevor Blackann were entertained by Hirni and one of Hirni’s clients, an official from an unidentified “Equipment Rental Company” which had an interest in the Federal Highway Bill then pending before Verrusio’s committee.They were transported in a chauffeured SUV (cost $275 per person), taken to dinner ($115 per person) and a strip club ($150 per person), and Verrusio received a souvenir baseball jersey ($130).The indictment values all of the gifts received by Verrusio at about $1,300.

                                                                                                                                                                                                                                                     

So how does the indictment establish that these gifts were “for or because of” an official act by Verrusio?The answer is somewhat murky.Equipment Rental Company had hired Hirni and his firm to seek three amendments to the Federal Highway Bill in August 2003, but the fact that Verrusio’s committee had a matter pending before it in which Equipment Rental Company had an interest does not make this case any different than Sun-Diamond.Indeed, it is not even clear from the indictment that Verrusio knew of this interest prior to accepting the invitation to the World Series game.The indictment does not allege any communication to Verrusio about the matter prior to the dinner in New York on October 18, when Verrusio, Blackann, Hirni, and the Equipment Rental official “discussed the Federal Highway Bill and Equipment Rental Company.”The indictment does not allege, however, that Verrusio was asked to take any particular action at that time.

To be sure, a reasonable person can infer from the circumstances that the gifts to Verrusio were for one or more of the following purposes: (1) to gain access to Verrusio (and Blackann) during the trip so that the interests of Equipment Rental Company could be discussed; (2) to build goodwill on Verrusio’s part toward Hirni and Equipment Rental Company; and (3) to encourage Verrusio to take favorable actions on the amendments desired by Equipment Rental Company during consideration of the Federal Highway Bill.However, none of these purposes (and certainly not the first two) appear to be sufficient under Sun-Diamond to violate the gratuities law.

Moreover, the allegations regarding Verrusio’s actions after the trip do not tend to establish any connection between the trip and a specific official act.The indictment alleges that on October 22, “Hirni emailed to [Verrusio] information about the three amendments that Equipment Rental Company was seeking to insert in the Federal Highway Bill.”On October 27, Verrusio replied, “apologizing for not responding sooner to Hirni’s October 22 email . . . [and] telling him that the amendments needed more work ‘for anyone to be able to help with progress . . . .’”This sounds more like a polite blow-off than anything else.

The indictment does not suggest that Verrusio ever did “help with progress” on the amendments.The three amendments were inserted into the Senate version of the Federal Highway Bill, but Verrusio, according to the indictment, did not play a role in this.The indictment does allege that Verrusio played a role in “protecting” the amendments after they had been inserted, but the only acts attributed to Verrusio in this regard was that he “suggested” to Hirni and his lobbying partner that they organize a letter writing campaign to counter the efforts of a rival industry group to strip the amendments out of the bill. It seems highly dubious that this “suggestion” qualifies as an “official act” under Valdes or that the gifts received by Verrusio were “for or because of” this act within the meaning of Sun-Diamond.

Legal analysis aside, there is something troubling about Verrusio’s prosecution here.There can be no question that Verrusio exercised extremely poor judgment, at best, in deciding to accept Hirni’s offer of a trip to the World Series.But in the absence of any evidence that Verrusio was asked to perform any official acts in connection with the gifts, or that he actually did perform any official acts for the benefit of Hirni or Equipment Rental Company, it seems hard to understand why prosecutors would treat this single incident as a criminal matter.

As Justice Scalia recognized in Sun-Diamond, federal law provides an intricate set of rules regarding permissible and impermissible gifts, and it would be contrary to this scheme to construe the illegal gratuities statute so broadly as to subsume all of these rules within it.Moreover, a broad reading of the statute would mean that nothing but the government’s discretion would prevent prosecutions of any Member of Congress or staff who received a gift from persons with interests in legislation before them.

As federal prosecutors have no special knowledge of the divine law, it is best not to tempt them with such discretion.

 

 

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Minnesota Supreme Court Rebuffs Franken

            The Minnesota Supreme Court has rejected Al Franken’s petition to direct the Governor and Secretary of State to issue an election certificate prior to resolution of the election contest for U.S. Senate.  First, the court found that “[t]he plain language of [the Minnesota statute] provides that no election certificate can be issued in this Senate race until the state courts have finally decided the election contest.”   

The court then turned to Franken’s argument that the Minnesota law in this regard conflicted with the federal constitution, particularly the Senate’s authority to judge its own elections.  As I have previously explained, however, this argument makes no sense because the Senate clearly has the authority to seat Franken, or his opponent for that matter, regardless of whether a certificate has issued.  The Minnesota court made this same point, noting that “if the Senate believes delay in seating the second Senator from Minnesota adversely affects the Senate, it has the authority to remedy the situation and needs no certificate of election from the Governor to do so.” 

Finally, the court dealt with Franken’s contention that “the state should not put the Senate in the position of abrogating its own rules in order to provide Minnesota with the full and timely representation that the Constitution and federal statutes contemplate.”  The court also rejected this argument, holding essentially that accommodating the Senate’s rules as a matter of comity was not a function of the court when the Minnesota legislature had made a different policy choice.