Author: Michael Stern

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Renzi Making Progress on Speech or Debate?

  

           The Renzi case involves, broadly speaking, three distinct types of Speech or Debate issues.  The first involves the question of whether the government violated the Speech or Debate Clause when it wiretapped Renzi’s cell phone.  The Magistrate appears to have largely rejected that theory in an order issued several weeks ago. 

            The second issue involves whether the activities for which Renzi was indicted were themselves protected by Speech or Debate.  Principally, these activities involved Renzi’s negotiations and discussions with private parties about the land exchange legislation that lies at the center of the case.  Renzi argues that these activities are protected as part of the legislative process, while the government contends that these activities only involve communications about future legislative activity and are therefore unprotected.   

The third issue concerns whether the grand jury relied on Speech or Debate information in deciding to indict Renzi.  In other words, even if the activities for which Renzi was indicted are not protected, the indictment could be dismissed on the grounds that the grand jury relied on privileged evidence to make its indictment decision.  (Renzi argues that there were materials presented to the grand jury that clearly refer to past legislative acts and therefore, even under the government’s theory, are protected under Speech or Debate.).   In the Magistrate’s previous order, he indicated that dismissal on this ground would be warranted only if it were shown that “privileged materials were essential to the grand jury’s decision to indict.”  

            The Magistrate has now issued an order requiring the government to disclose to Renzi’s defense team portions of the grand jury transcript and the instructions given to the grand jury regarding the Speech or Debate Clause.  The order finds that Renzi “has sufficiently demonstrated a particularized need to review the grand jury transcripts because grounds may exist to dismiss the indictment because protected material may have been presented to the grand jury.”  The judge also set oral arguments for April 30 and May 1 on various motions, including Renzi’s motion to dismiss the indictment on Speech or Debate grounds.   

            It is unclear how much should be read into this new order.  If the Magistrate agrees with Renzi regarding the second issue (or is leaning in that direction), disclosure of additional grand jury materials would seem to be irrelevant because it is clear that the indictment on its face charges Renzi with activities that are protected under Renzi’s theory.  On the other hand, if the Magistrate sides with the government on this issue, it seems unlikely (though not impossible) that Renzi could prove that other materials presented to the grand jury were “essential” to its decision.  It may be that the Magistrate is merely developing a full record for the district court’s consideration.  Still this shows that the Magistrate understands the seriousness of the Speech or Debate questions presented in the case. 

            One thing seems certain.  The Speech or Debate litigation in this case is going to drag on for quite a while.  It also seems unlikely that Renzi’s trial, which was originally scheduled for this spring, will happen anytime soon.

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Burris’s Options if a Special Election is Called

          

            Senator Burris, through his attorney, has indicated that he believes it would be illegal for the Illinois legislature to change the date of the special election to fill the remainder of the Senate term.  It is also apparent that he is willing to mount a vigorous legal challenge. 

             If Illinois enacts a law requiring a special election, Burris may seek relief in either state or federal court (or both) seeking to prevent the election from being held.  It is possible, perhaps likely, that he will be unable to obtain a ruling on the merits, however.  I imagine that the courts would be reluctant to enjoin an election, and they may be inclined to dismiss Burris’s challenge on standing, ripeness or other threshold grounds.  After all, it is always possible that Burris could win the special election or that the Senate would refuse to seat the winner. 

            Assuming that the special election was held (and someone other than Burris prevailed), Burris might also seek to enjoin the issuance of a certificate of election.  At that stage, however, it seems likely that the courts would defer to the Senate, which has the constitutional power to judge the election of its members.   

            Burris’s next option would be to ask the Senate to refuse to seat the winner of the special election.  (This request in itself might create a difficult question for the Senate, because Burris’s right to challenge the credentials of a Senator-elect would be dependent on his being a member of the Senate, but it could be argued that once the certificate of election issued, Burris ceased to be a member of the Senate.)  The Senate would either refer the matter to the Committee on Rules and Administration, or proceed to have the full Senate vote on whether to seat the winner.  Either way, the Senate would have to confront the difficult constitutional issue posed by Illinois’s changing of the special election date. 

            Assuming that the Senate decides to seat the special election winner and unseat Burris (which, politically, seems like a virtual certainty), Burris could proceed to challenge his exclusion from the Senate in federal court.  It is possible that this issue would be deemed a political question unreviewable by a court.  But it is also possible that a court would view the political question doctrine as inapplicable to the issue at hand, since the question presented is a pure legal issue under the Seventeenth Amendment which involves no exercise of discretion or judgment by the Senate. 

            All of this is a long way of saying that the attempt to remove Burris by means of a special election is likely to result in a long legal fight, probably on multiple fronts, and present a major distraction to the Senate.   A special election is by no means an easy way out for the Senate.  To the contrary, an ethics investigation, culminating in a decision on Burris’s expulsion, is the cleanest and most constitutionally appropriate way of resolving this vexing problem.

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Can the Illinois Legislature Change the Date of the Special Election to Replace Senator Burris?

As noted in the previous post, Lisa Madigan, the Attorney General of Illinois, issued this opinion dated February 25, 2009 regarding the proposal to set a date for an earlier special election to fill the vacant Senate seat of Barack Obama, the seat currently filled on a temporary basis by Roland Burris.  She concludes that “[i]t is well within the Legislature’s power to consider and enact changes to the current law to specify an earlier date for the election.”  

While this conclusion may or may not be correct, the opinion fails to support the conclusion and, in fact, largely ignores the real issue here.  At the time that then-Governor Blagojevich appointed Burris, Illinois law authorized the Governor to make a temporary appointment to fill a vacant Senate seat until the time of the next general election (ie, in November 2010), at which time a special election will be held to finish out the term (ie, the remaining two months).  The Illinois legislature is now considering moving up the time of the special election.   

            The Seventeenth Amendment 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.”  The question is whether the legislature must direct the time, place and manner of the election at the time it empowers the executive to make temporary appointments. 

            Under one reading, the legislature may direct the conduct of the special election at any time.  Thus, for example, the legislature could empower the executive to make temporary appointments and leave open the time for the special election, which the legislature would establish after the appointment on a case-by-case basis. 

            This reading, though, runs into some problems.  Black’s Law Dictionary defines “temporary” as “that which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration.”  If the executive makes an appointment without a specified date for a special election (or one where the specified date is subject to change), the appointment is arguably indefinite, rather than temporary.  Put another way, the power which the Seventeenth Amendment authorizes the legislature to delegate arguably requires the appointment be made with a definite time limit (as opposed to a time limit which can subsequently be shortened or lengthened). 

            Another problem with this reading of the Seventeenth Amendment is that it gives the state legislature the power to punish or reward a Senator based on performance in office.   If an appointed Senator votes in a way that displeases the legislature, it could move up the date of the special election.  Conversely, if the legislature approves of his or her votes, it could move back the special election.  It seems unlikely that the Seventeenth Amendment was intended to give the legislature such control. 

            Two other observations.  First, the historic practice of the states in carrying out the Seventeenth Amendment has some bearing here.  If there are examples of states changing the time of the special election after appointment, Madigan doesn’t cite them.  Second, the issue here is analogous to one that arose in the 2000 presidential election when it was argued that the Florida legislature could, under its Article II power to direct the manner in which presidential electors are appointed, change the law to take the election contest away from the courts and itself determine the correct slate of electors.   

            Rather than deal with the complexities of this issue, the Madigan opinion largely focuses on irrelevancies, such as whether Burris has a property interest in his Senate seat.  This may have a bearing on the question of whether or when Burris could challenge the legality of a special election, but it doesn’t have anything to do with the legality itself.  If Burris has no property interest in his Senate seat, neither does his colleague, Senator Durbin.  Clearly, however, the Illinois legislature could not constitutionally authorize a special election to replace Durbin before the end of his term.  

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When Does Senator Burris’s Term End?

Lisa Madigan, the Attorney General of Illinois, has issued this opinion regarding the proposal to set a date for an earlier special election to fill the vacant Senate seat of Barack Obama, the seat currently filled on a temporary basis by Roland Burris.  (Hat tip to Rick Hasen’s Election Law Blog and this post on Law Dork). Madigan concludes that “[i]t is well within the Legislature’s power to consider and enact changes to the current law to specify an earlier date for the election.”  

In a later post I will discuss the substance of the issue, but first I would note this peculiar sentence in Madigan’s opinion (also discussed in the Law Dork post): “Under the current language of section 25-8, U.S. Senator Burris’s temporary appointment will conclude in January 2011 following an election in November 2010, the next election of representatives in Congress.” 

This seems quite wrong.  The Illinois statute (section 25-8) provides: “When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.”  This law is clear that an election to fill the vacancy takes place at the next general election and that the Senator-elect then fills the vacancy as soon as the certificate issues.  Burris’s term would therefore end immediately after the November election. 

The fact that Obama’s original term will expire in January 2011 is of no moment.  The general election will choose both the person who will fill the remaining two months of the unexpired term and the person who will succeed to the Senate seat for a full term beginning on January 3, 2011.  This would hardly be the first time that a House or Senate vacancy has been filled in the same election as chose the successor for the next term.  At least some states have done this with a single ballot line that chooses both offices (which, I suppose, means that you have two elections on one line).  In one case in 1994 (involving JC Watts, I believe) the state law provided that the winner of the general election would be automatically appointed by the governor to fill the House vacancy, which raised some constitutional questions.  The House did seat the Member-elect to fill the vacancy, however. 

Even if Illinois attempted to extend Burris’s current term until January 2011, I am not sure that it would be valid.  Riddick’s Senate Procedure (p. 710) contains this entry:  “The action of the Governor of a State in certifying that the term of a person, chosen at a general election to fill the unexpired term, should begin on the following January 3, was challenged in 1939 as being beyond his power.  The contention was made that the Senate fixes the time at which the service of a Senator begins, and that the Governor had only the right to certify the fact of election.  In that year, the Senate also decided that the term of service and compensation of a Senator appointed by the Governor of a State to fill a vacancy ended on the day of the election of his successor by the people when the Senate was in sine die adjournment.”  

Thus, Burris’s term will end in November 2010, not in January 2011 as suggested by the Madigan opinion.       

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What Would Johnsen Do On the DC Voting Rights Act?

            Dawn Johnsen, the President’s nominee to head the Office of Legal Counsel, has been highly critical of OLC’s performance during the last administration.  For example, she has accused John Yoo of “devis[ing] bogus constitutional arguments for outlandishly expansive presidential power” and has characterized Yoo’s defense of his own legal reasoning as “not merely false, but irresponsibly and dangerously false in a way that impugns OLC’s integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law.” 

            On December 21, 2004, Johnsen, along with other former OLC lawyers, issued a manifesto entitled “Principles to Guide the Office of Legal Counsel” to ensure that OLC adheres to “the rule of law” in the future.  At the core of these principles is the concept that OLC should not engage in results-oriented legal analysis in order to support policies of the incumbent administration.  For example, the first principle is  

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. 

            Similarly, Johnsen and her colleagues advise that OLC “should maintain internal systems and practices to help ensure that OLC’s legal advice is of the highest possible quality and represents the best possible view of the law.”  Not surprisingly, this principle requires that “OLC should afford due respect for the precedential value of OLC  opinions from administrations of both parties; although OLC’s current best view of the law sometimes will require repudiation of OLC precedent, OLC should never disregard precedent without careful consideration and detailed explanation.”

            Given these principles, it is inconceivable that Johnsen would advise the President to sign legislation that OLC has previously declared to be unconstitutional without “careful consideration and detailed explanation” from OLC as to why it has changed its mind.  This is particularly true if the proposed legislation would do violence to both the text and structure of the Constitution, conflict with the understanding and intent of the framers of both the original Constitution and the Fourteenth Amendment, contravene historical practice since the founding of the Republic and be inconsistent with controlling judicial precedent.  

            I refer, of course, to the District of Columbia House Voting Rights Act of 2009, which the Senate is scheduled to consider this week.  Less than two years ago the OLC analyzed the question of whether Congress could provide by statute for D.C. to have a voting representative in the House of Representatives, and found that “[i]n the absence of a constitutional amendment . . . the explicit provisions of the Constitution do not permit Congress to grant congressional representation to the District through legislation.”

 

This conclusion should not be, to put it mildly, controversial. The Constitution provides that “[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States,” and, as the Constitution makes clear and virtually everyone concedes, D.C. is not a state. Indeed, in the 2000 case of Adams v. Clinton, a three judge panel, in a decision affirmed by the Supreme Court, rejected the argument that D.C. could be treated as a state for purposes of granting representation in Congress: “Defendants argue that . . . the Constitution leaves no doubt that only the residents of actual states are entitled to representation. An examination of the Constitution’s language and history, and of the relevant judicial precedents, persuades us that defendants are correct and that the District-as-state theory is untenable.”

One would think, if one were unfamiliar with the ingenuity of lawyers, that this would be the end of the matter. Nevertheless, there are some lawyers and legal scholars who argue that Congress does have the power to enact the proposed legislation. Most prominent among them is Professor Viet Dinh, a former high-ranking official of the Bush Justice Department, who, interestingly, is also closely associated with the theories of executive power that Johnsen has so vigorously denounced.

It would be charitable to say that the arguments put forth by Dinh and others in favor of the constitutionality of the D.C. House Voting Rights Act are even plausible. As Professor Mark Scarberry suggests in a forthcoming article, the only “somewhat plausible” aspect of the arguments is the assumption that the lack of voting rights for D.C. was an oversight on the part of the framers, an assumption that he tries to lay to rest. Professor Jonathan Turley describes the proposed legislation as “one of most premeditated unconstitutional acts by Congress in decades.” Even some who favor the legislation, like Professor Rick Hasen, acknowledge that it is “probably unconstitutional.”

In any event, we know that Johnsen would never permit OLC to “craft merely plausible legal arguments” to support the President’s desired policy goals. She would never advise the President to sign legislation that was unconstitutional under OLC’s best appraisal of the law, even if there are plausible arguments to the contrary. And she would certainly never permit OLC to overrule its prior opinion without “careful consideration and detailed explanation.”

Would she?

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Jefferson’s Cert Petition on Speech or Debate

          Former Congressman William Jefferson is seeking a writ of certiorari on the question of “whether the indictment of a Member of Congress, although facially valid, should be dismissed when evidence privileged under the Speech or Debate Clause was used in the grand jury to obtain the indictment.”   Jefferson contends that the Fourth Circuit erred in refusing to consider whether Speech or Debate privileged evidence was presented to the grand jury and that its decision conflicts with the law of other circuits, including the D.C. Circuit, the Third Circuit and the Eleventh Circuit. 

            In Jefferson’s case, the district court conducted a review of all the allegedly privileged evidence presented to the grand jury and concluded that no violation of the Speech or Debate Clause had occurred.  The most problematic instance involved a former staffer whose testimony made reference to Jefferson’s role in passing a particular piece of legislation.  However, the district court found that this reference was not material or relevant to the allegations of the indictment and, moreover, was volunteered by the witness without prompting.  Therefore, the judge refused to dismiss the indictment. 

            Jefferson appealed, and the Fourth Circuit affirmed.  The panel stated that “[u]nder [Jefferson’s] interpretation of the Clause, any mention of Speech or Debate Clause material in a grand jury proceeding mandates the dismissal of all charged offenses which relate to such evidence.”  The court, however, rejected this view of the law.  Instead, the court concluded that under Fourth Circuit precedent “a grand jury will not be deemed biased solely because it heard some evidence relating to congressional speech.”   

            This aspect of the Fourth Circuit’s decision does not appear to be in conflict with any other circuit.  No court has held that an incidental reference to legislative activity before the grand jury requires dismissal of the indictment.  The Eleventh Circuit, for example, has stated that “[i]f reference to a legislative act is irrelevant to the decision to indict, the improper reference has not subjected the member to criminal liability [and the] case can proceed to trial with the improper references expunged.”  U.S. v. Swindall, 971 F.2d 1531, 1548 (11th Cir. 1992).    Other courts have suggested that dismissal is required only if the privileged evidence was a “factor” or a “substantial factor” in the grand jury’s decision to indict.  Just last week in the Renzi case, the Magistrate Judge suggested that the standard for dismissing an indictment was whether the “privileged materials were essential to the grand jury’s decision to indict.” 

            Jefferson bases his cert petition on language in the Fourth Circuit opinion suggesting the court is barred from ever going behind a facially valid indictment to assess whether the grand jury relied on Speech or Debate material.  In a footnote, however, the court leaves open the possibility that it could go behind the indictment under some circumstances, such as where there were a pervasive violation of the Speech or Debate Clause before a grand jury.  Moreover, although the Fourth Circuit indicates that the trial judge performed a more “comprehensive review” of the grand jury transcript than was required by precedent, it also states that “[u]nder the facts of this case . . . the [trial] court’s decision to act as it did in assessing Jefferson’s Speech or Debate Clause Claim was within its discretion and entirely appropriate.”  At the end of the day, therefore, Jefferson’s claim was rejected because the trial court properly found that the grand jury did not consider any Speech or Debate material, rather than because of any distinctive legal standard followed in the Fourth Circuit. 

            In short, while there are some important Speech or Debate issues percolating in the lower courts, it seems unlikely that the Supreme Court will take up this particular issue.   

 

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What to Do About Senator Burris?

Roland Burris, the junior Senator from Illinois, has a problem.  Actually, he has many problems.  After being appointed to the U.S. Senate by then-Governor Rod Blagojevich, Burris testified about the circumstances of his appointment before the Illinois legislature, which was considering Blagojevich’s impeachment for, among other things, attempting to sell that very same Senate seat.  Based in part on Burris’s assurances that his appointment had no hint of the corruption that had allegedly marked Blagojevich’s earlier attempts to fill the vacancy, the U.S. Senate decided to seat Burris. 

Since then, Blagojevich has been impeached and removed from office and, it turns out, Burris’s testimony regarding the circumstances of his appointment was, at best, incomplete.  Specifically, Burris now admits that he spoke three times in October and November of last year with Rob Blagojevich, the Governor’s brother, who solicited campaign contributions on his brother’s behalf.  Burris says that he decided to make this additional disclosure “because he recently reviewed the full transcript of the proceedings and saw that it wasn’t clear that he disclosed all his contacts” to the state legislature.  Others, less charitably, have suggested that Burris lied to the legislature or knowingly failed to disclose information that was clearly relevant to the proceedings.   

Burris now faces the possibility of a state criminal investigation for perjury.  In addition, the state legislature might conduct further investigation, possibly with an eye toward holding Burris in contempt.  Burris could also face an investigation by the Senate Ethics Committee.  It is also possible that the Senate’s decision to seat Burris could be re-opened, and the matter could be referred to the Senate Rules Committee to investigate the validity of the appointment.  Finally, there is a possibility that Illinois could change the law regarding Senate vacancies and provide for an immediate special election to fill out the remainder of the Senate term.

There are several reasons why state proceedings here would be inadequate. State proceedings could only address the question of whether Burris made an intentionally false statement material to the issue of Blagojevich’s impeachment. They could not address the question of deliberate omission, nor could they address the question of whether Burris made false or incomplete statements to the U.S. Senate (such as in his “interview” with Majority Leader Reid). Moreover, state proceedings could not address the real question of interest to the U.S. Senate and the general public, i.e., whether Burris made misrepresentations or omissions material to the validity of his appointment.

An investigation by the U.S. Senate is therefore in order. The matter could be referred to the Senate Rules and Administration Committee because that committee had jurisdiction over the issue of whether Burris should have been seated in the first place. However, it is unclear whether that issue can be re-opened at this stage. Under Senate precedent, Burris could have been seated “without prejudice” to the Senate’s right to review the validity of his appointment at a later time. Despite the controversy surrounding Burris’s appointment, the Senate did not, as far as I know, attempt to limit or condition Burris’s seating in this fashion. Therefore, it is arguable that it is too late to review the validity of the appointment.

In any event, this matter seems more appropriate for investigation by the Senate Ethics Committee. Even if Burris’s appointment is still a live issue, the new information provided by Burris would not, in itself, necessarily be sufficient to invalidate the appointment. On the other hand, if Burris lied about or intentionally failed to disclose this information, he certainly failed to comply with the Senate’s standards of conduct and engaged in conduct tending to bring the Senate into disrepute. This is a matter that falls squarely within the jurisdiction of the Ethics Committee.

The Ethics Committee should therefore commence an investigation to determine whether Burris made misrepresentations or deliberate omissions regarding the circumstances of his appointment, including in his testimony to the state legislature and his communications to the Senate. If the question of the validity of the appointment itself remains an issue, the Senate should also adopt a resolution empowering the Ethics Committee to investigate that question and to report its findings to the Rules Committee and/or the Senate.

Finally, the possibility that the Illinois legislature may change the law to require an immediate special election is not a reason for the Ethics Committee to hold off action. Even if a special election is held and a replacement for Burris is elected, it is likely that Burris would challenge the constitutionality of applying this new law to him since at the time of his appointment the law provided that he would serve until the general election of 2010. Thus, there is no guarantee that waiting for a special election will make this matter go away.

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Renzi Loses a Round on Speech or Debate

           On Feb. 13, the Magistrate Judge in the Renzi case issued a significant order denying Renzi’s motion to (a) hold a Kastigar-type hearing to determine whether the Government used protected Speech or Debate material during the course of Renzi’s prosecution and (b) disqualify the prosecution team because it has been exposed to such protected material. 

            First, the Magistrate finds that “Renzi is mistaken in his argument that the [Speech or Debate] privilege extends to requiring the prosecution to demonstrate, in a Kastigar hearing, that its case against Renzi is based upon evidence completely independent of the evidence it obtained in violation of the Speech or Debate Clause.”  [note: Kastigar hearings are held when a defendant has received immunity to testify after asserting the Fifth Amendment, and the Government must demonstrate that it made neither direct nor derivative use of the immunized testimony against the defendant].   The Magistrate points out that much protected Speech or Debate information is public in nature, and it would make no sense to prohibit the Government from reviewing such information, so long as it does not use it against a Member of Congress.  Moreover, even if some Speech or Debate material is used before the grand jury, this does not require dismissal of the indictment unless the defendant can demonstrate that the “privileged materials were essential to the grand jury’s decision to indict.” 

            Second, and more importantly, the Magistrate rejects Renzi’s argument that the prosecution team be disqualified for exposure to protected Speech or Debate information, particularly information obtained from the wiretap on Renzi’s cell phone.  Although the court does not rule directly on the legality of the wiretap, its reasoning clearly rejects the theory which Renzi (and the House) advanced on that issue.  On the key question of whether the Speech or Debate privilege is one of non-disclosure, the court agrees with the Third Circuit (and disagrees with the D.C. Circuit) that it is not.   Moreover, the court expressly concurs with Judge Henderson’s separate opinion in the Rayburn case that the “execution of a search warrant on a congressional office—with its unavoidable but minimal exposure to records of legislative acts—does not constitute questioning within the meaning of the Speech or Debate Clause.”  Therefore, it appears that the wiretap, involving neither evidentiary use nor questioning, but merely disclosure of legislative information, could not have violated the privilege. 

            This is merely the first round of the case.  Renzi will undoubtedly appeal to the district court judge.  This case continues to set up as the most important Speech or Debate case in a generation (not only on the wiretap issue, but on the question of whether the indictment on its face violates the Speech or Debate Clause), one that seems increasingly likely to wind up in the Supreme Court.

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More on Section 3 of the Ethics EO

Laura Rozen at Foreign Policy has an interesting article about the impact of the Ethics Executive Order on individuals who have lobbied for public interest groups.  It highlights the arbitrary and unfair impact of Section 3, which applies only to those registered under the Lobbying Disclosure Act.  As one source quoted in the article notes: 

The former Clinton administration official added that this just becomes a perverse disincentive not to register. “LDA is entirely unenforceable and I believe has [almost] never been enforced,” she said. “So, good people who believed in disclosure now have a disincentive.” 

            While the unfairness of Section 3 is not limited to “activist lobbying,” it does seem particularly silly that someone like Tom Malinowski, who was registered to lobby for Human Rights Watch, is effectively barred from a job in the administration, while Eric Holder, who represented Chiquita Brands in matters relating to its payments to and support of Columbian death squads, is not. 

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Senator Gregg’s Recusal

         Senator Judd Gregg (R-NH), nominated by President Obama to be Secretary of Commerce, has announced that he will not be voting on the stimulus bill or other legislation while his nomination is pending.  This decision has been criticized, as the linked article suggests: “Gregg’s decision to recuse himself from voting is bound to raise questions about why he is remaining in office if he won’t perform such an essential duty of a senator — voting on legislation. It also may raise questions about whether he is seeking to avoid putting himself in the embarrassing position of voting against Obama’s top economic priority.” 

            I would suggest that the criticism is misplaced.  It is true that Senate rules do not prohibit Gregg from voting.  Senate Rule 37(4) provides that “[n]o Member, officer, or employee shall knowingly use his official position to introduce or aid the progress or passage of legislation, a principal purpose of which is to further only his pecuniary interest, only the pecuniary interest of his immediate family, or only the pecuniary interest of a limited class of persons or enterprises, when he, or his immediate family, or enterprises controlled by them, are members of the affected class.”  This very limited restriction is not applicable to Gregg’s (or possibly any) situation. 

            On the other hand, Gregg clearly has a serious conflict of interest with respect to voting on the stimulus bill or any other legislation that is a high priority for the President, his prospective boss and employer.  As the Senate Ethics Manual notes, “because of the unique nature of their responsibilities to the Senate, including the influence which they exercise over the legislative process, and because all their actions are open to public scrutiny, Members and employees seeking future employment are under a substantial obligation to avoid not only an actual conflict of interest, but also the appearance of a conflict between their duties to the Senate and the interests of the prospective employers with whom they are negotiating.”  The Manual goes on to state flatly that “[i]t would be improper to permit the prospect of future employment to influence official actions.” 

            These strictures are aimed primarily, if not exclusively, at prospective private employment.  The conflict of interest is no less, however, where the prospective employment is in the executive branch.  At least this was the view of the Framers of the Constitution, who, while placing no limitation on ability of a Member of Congress to be employed in either the private sector or state government, provided that “no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office.”  In Federalist No. 76, Hamilton described this provision (the Incompatible Offices Clause), along with the Emoluments Clause, as an “important guard[] against the danger of executive influence on the legislative body.” 

            The Incompatible Offices Clause does not, by its literal terms, prevent Gregg from serving in the Senate and voting on legislation while his nomination is pending.  Nevertheless, the danger of executive influence and the appearance and/or reality of a conflict of interest is just as great, or very nearly so.  No matter how much Gregg attempts to be independent and objective in judging the merits of the stimulus bill, for example, it would seem virtually impossible for him to put entirely to one side the fact that he is about to join the cabinet of the President for whom this bill is the most important domestic priority. 

           

             In a perfect world, perhaps, Gregg would decline to accept the nomination as Secretary of Commerce on the grounds that he is ineligible for that position under the Emoluments Clause (see “Is Hillary Clinton Unconstitutional?”).   Gregg, like his fellow members of Congress, apparently has little interest in following the letter of the Constitution in that regard, but his recusal is at least an attempt to comply with its spirit.