Stevens Jury Instructions

          For those interested in the Stevens case, the Anchorage Daily News has posted the jury instructions 

            One issue that the jury instructions deal with is the relevance of public disclosure to the case.  As discussed by Taxpayers for Common Sense, the defense argued that the duty of disclosure to the public is irrelevant because Stevens is charged with violating the False Statements Act, which applies only to false statements made to the government, not to the public.  The prosecution argued that the duty of public disclosure is relevant to the case because one of the purposes of the financial disclosure requirement is to inform the public.

           

            Jury Instruction No. 65 says: “You have heard reference during the trial to a public interest in disclosure.  Senator Stevens is charged with making false statements to the government, not to the public, and public disclosure is not an element of the charges in this case.” 

            My first reaction to this instruction was that appeared that the judge had accepted the defense’s position.  On reflection, I guess it is not so clear.  The defense wanted all references to public disclosure stricken.  This instruction says that public disclosure is not an element of the charges, which is clearly correct, but it doesn’t say that the duty of public disclosure couldn’t be considered for other purposes (like motive or intent).

Renzi’s Speech or Debate Defense

 

            Congressman Rick Renzi, currently facing federal trial on corruption charges, moved this week to dismiss the indictment based on the Speech or Debate Clause of the Constitution.  Renzi argues that the indictment is flawed because the grand jury relied on two types of information privileged under the Clause.  First, the grand jury relied on documents “referencing, describing, and directly involving the development of legislation” and “describing Members’ motivations for and performance of legislative acts.”  For example, the grand jury was presented with an email from one of Renzi’s aides to House Legislative Counsel stating: “[t]his is a very rough draft of a bill put together by an individual I am working with on a land exchange.  My boss wants to get this finalized and introduced next week.”  The grand jury was also presented with the actual draft legislation circulated between Renzi’s office and House Legislative Counsel. 

            Second, Renzi argues that the grand jury heard testimony from his former aides regarding matters protected by the Speech or Debate Clause.  For example, Joanne Keene, Renzi’s former Legislative Director, testified regarding the development of the “Resolution Copper land exchange” legislation, which Renzi introduced in May 2005.  Among other things, she described a communication with Renzi in which he expressed a reluctance to move forward with the legislation at that particular time.  Keene and another former aide also testified about internal congressional discussions regarding strategies for advancing land exchange legislation, such as whether Renzi or other Members would sponsor or co-sponsor particular bills, which Member should take the lead in moving a particular bill, and whether a bill should be scheduled for hearings first in the House or Senate. 

            One can anticipate that the government’s response to Renzi’s Speech or Debate argument will be similar to the position it has taken in the Ted Stevens case, where it has argued for a narrow construction of the Speech or Debate Clause.  The key legal issue would seem to be the applicability of the Clause to conduct and communications relating to future legislative acts.  In United States v. Helstoski, 442 U.S. 477, 490 (1979), the Supreme Court enunciated the following limitation on the protection of the Clause: “[I]t is clear from the language of the Clause that protection extends only to an act that has already been performed.  A promise to deliver a speech, to vote, or to solicit other votes at some future date is not ‘speech or debate.’  Likewise, a promise to introduce a bill is not a legislative act.” 

            Read broadly, as the government is likely to do, this language may suggest that all activities and discussions preliminary to actual introduction of legislation are unprotected because they merely relate to future legislative acts.  However, Helstoski was referring specifically to a Member’s promise to perform a legislative act in exchange for a bribe.  Because the “compact” between the bribe-giver and the bribe-receiver is not part of the legislative process protected by Speech or Debate, the Helstoki Court reasoned that Speech or Debate could not protect the bribe-taker’s promise to perform a legislative act, which promise is, after all, merely half of the unprotected “compact.”

            In the Stevens case, the government argued that Helstoski leaves unprotected any discussions between a Member and constituents regarding potential legislation.  This assumes, however, that such discussions are not in themselves part of the legislative process.  As Josh Chafetz has asked, since other Supreme Court precedent suggests that preparatory research for a hearing or vote is protected by Speech or Debate, “why [should] not preparatory meetings or correspondence with constituents also be protected?”  J. Chafetz, Democracy’s Privileged Few 108 (2007). 

            The Speech or Debate Clause protects activities that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.”  Gravel v. United States,  408 U.S. 606, 624 (1972).  Surely this legislative sphere must encompass activities and discussions prior to the actual introduction of legislation.  Indeed, in the Stevens case, even the government itself acknowledged  that Speech or Debate covers activities “integral to the Member’s participation in the drafting, consideration, debate, and passage or defeat of legislation.”  (emphasis added). 

            Legislation does not appear out of thin air and deposit itself in the legislator’s hand, ready to be dropped in the hopper (the box on the House floor where legislation is introduced).  The need for the legislation may be the subject of hearings and informal fact-gathering by the Member and his or her staff.  The legislative language must be drafted, normally with the assistance of House Legislative Counsel.  Co-sponsors may be sought, and they, along with other interested parties, consulted about the proposed legislation.   

            At a minimum, internal congressional activities preparatory to the introduction of legislation, such as communications with House Legislative Counsel (which also may be attorney-client privileged, see 2 U.S.C. § 281a), would seem to be covered by the Speech or Debate privilege.  The same should be true of actual legislative drafting, discussions regarding the timing and manner of introducing legislation, and bargaining regarding sponsorship of or support for particular measures.  Since the Renzi grand jury was evidently exposed to a significant amount of such information (as well as to some information regarding the actual introduction of legislation), I think there is a substantial possibility that the Renzi case could be dismissed, in whole or in part, on Speech or Debate grounds.

             

 

DC Circuit Grants Stay in Miers Case

 

            The D.C. Circuit has at last ruled on the stay motion in the Miers case.  In a brief per curium opinion, the court grants the motion to stay and denies the motion for an expedited briefing schedule. 

The court first holds that there is appellate jurisdiction, noting that the declaratory judgment that Miers must testify is the “functional equivalent” of an injunction, and thus appealable, because the court presumes that executive officials (or, in Miers’s case, former executive officials) will act in accordance with the court’s declaration.   

            The rest of the opinion is very peculiar because it makes no reference to the four factors that the court is required to consider in ruling on a stay.  There is in fact no explicit discussion of any kind regarding the merits of the stay application.  Instead the court first notes that this is a “case of potentially great significance for the balance of power between the Legislative and Executive Branches.”  It then explains that “the Committee recognizes that, even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch—including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court—before the 110th Congress ends on January 3, 2009.”  Accordingly, it concludes that there is no reason to expedite the case. 

            Somewhere, though, the court seems to have missed the step of explaining why the stay should be granted.  The question of expediting the case only becomes relevant if one assumes that the case is stayed.  One gets the impression that there may have been some additional discussion that was deleted at the last moment. 

Judge Tatel’s concurring opinion does discuss the stay issue. He suggests that an appellant who will suffer irreparable injury need only make a “modest” showing of probable success on the merits. He then indicates that issues before the court satisfy this standard, “[e]xcept for the executive’s assertion of absolute immunity from congressional process.”

Of course, that is a very big exception, seeing as how absolute immunity is the main issue in the case. (Presumably, the other issues Judge Tatel refers to are the threshold jurisdictional issues raised by the Executive). Moreover, while Judge Tatel apparently accepts that the Executive would suffer “irreparable injury” if a stay were not granted, he does not explain why that would be the case. The Executive’s argument with regard to irreparable injury was simply that Judge Bates’s order “negates” Miers’s asserted absolute immunity by requiring Miers to appear and testify before the Committee. But how could Judge Tatel find that to be irreparable injury if the absolute immunity is meritless?

The real point of Judge Tatel’s concurrence, though, was to state that he was “perplexed” by the majority’s willingness to grant a stay without definitively rejecting the possibility that “the expiration of the 110th Congress would moot the case before it is heard on the merits.” “Never before have we granted a stay that would have the effect of irrevocably depriving a party of its victory in the district court.” Nonetheless, because Judge Tatel believes that the case would not be moot (and therefore that a stay will not greatly harm the Committee), he concurred in the court’s judgment.

The one thing that seems clear from both the majority and concurring opinions is that the panel hopes that a new President and new Congress will find a way to resolve this dispute without the need for further judicial intervention. I think that the court would have been better served if it had simply expressed this view directly, rather than reaching the result through dubious (or entirely absent) legal reasoning.

GAO Audit of Lobbying Disclosure

GAO has released its audit of lobbying disclosure filings (Lobbying Disclosure: Observations on Lobbyists’ Compliance with New Disclosure Requirements).  The audit was required by the Honest Leadership and Open Government Act of 2007 (HLOGA).  GAO randomly selected 100 lobbying disclosure reports and then asked the lobbyists to provide support for eight “key elements” of the reports, to wit:  

            1.  The amount of money received for lobbying activities

            2.   The amount of money spent on lobbying activities

            3.  The specific issues on which they lobbies

            4.  The Houses of Congress and agencies which they lobbied

      5.  The names of individuals who acted as lobbyists for the client

      6.  The names of foreign entities with interest in the client

      7.  The names of lobbyists no longer acting for the client

8.  The names of any member organizations of a coalition or association that actively participated in lobbying activities on behalf of the client     

            The audit uncovered no earthshaking revelations.  This should not be surprising, given the limited scope of GAO’s work.  As GAO explained, “our work to examine lobbyists’ compliance was limited to reviewing support provided by the lobbyists, which included both documentation and oral explanations.”  Moreover, “our work did not include identifying lobbyists that failed to register and report in accordance with HLOGA requirements, or whether for those lobbyists that did register and report, all lobbying activity was disclosed.” 

            One cannot escape the impression that the Lobbying Disclosure Act works largely on the honor system.  Given that the information presented to GAO was limited to documentation and verbal explanations that the lobbyists chose to present,  and that GAO did not do any investigation to determine whether lobbyists were disclosing all lobbying activity, it is somewhat difficult to see how GAO could have uncovered anything that the lobbyists did not want it to see.   

            Even so, GAO did determine that in one case the documentation provided was inconsistent with the amount of lobbying expenses reported.  As a result of discussions with GAO these lobbyists realized that they had been reporting their lobbying expenses incorrectly and filed an amended report.  GAO did not identify the lobbyists in question, but the Clerk’s database shows that one of the audited lobbyists, Intuit, filed an amended disclosure in August that increased the amount of reported lobbying expenses for the first quarter of 2008 by approximately $250,000.

           

 

 

 

OFFICE OF CONGRESSIONAL ETHICS BOARD HOLDS FIRST MEETING

Press Release from  David Skaggs, Chair, and Porter Goss, Co-Chair, of the board of the Office of Congressional Ethics established by House Resolution 895: 

The board of the Office of Congressional Ethics held its first meeting together this Thursday and Friday, September 25 and 26, 2008. Our agenda was designed to provide context and background for the new Office and included productive and informative discussions with House leadership, the leadership of the Committee on Standards of Official Conduct and the leadership of the Bipartisan Ethics Task Force, as well as briefings by various House staff members concerned with the ethics process and the administration of the new Office. We also had very useful meetings with several outside experts in the field who are not affiliated with the House. 

The board hopes soon to select an individual for the senior staff position to serve as Staff Director & Chief Counsel in the new Office. It will then proceed to draft and adopt its rules of procedure. Having some staff capacity and having rules for its operation in place are essential conditions for the Office properly to receive and act on any submissions concerning alleged violations of the ethical standards of the House.  House Resolution 895 prohibits the Office from considering such matters until after the November election, and as a practical matter, we do not expect staffing and adoption of rules to permit the Office to be in operation until early in 2009.

 

The members of the board of the Office of Congressional Ethics were jointly appointed by Speaker Pelosi and Minority Leader Boehner as announced by them on July 24, 2008. The members, in addition to former Congressmen Skaggs (D-CO) and Goss (R-FL), are: former Congresswomen Yvonne B. Burke (D-CA) and Karan English (D-AZ), former House Chief Administrative Officer Jay Eagen, and Professor Allison Hayward. Alternates are: former Federal Judge and former Congressman Abner Mikva (D-IL) and former Congressman Bill Frenzel (R-MN).

Voting Procedure in the House

       The Select Committee to Investigate the Voting Irregularities of August 2, 2007 (commonly referred to as the “Stolen Vote” committee) has released its final report dated September 25, 2008.    The report describes in some detail the process of voting in the House, which I summarize below:

  1. Votes in the House are conducted by the “tally clerks” at the direction of the Chair. Under House Rule XX, clause 2(a), the preferred method for conducting a record vote is by electronic device. In most cases, the rule requires that the minimum time for such a vote be 15 minutes.
  2. The process of voting is controlled by the Chair (the Member who has been designated by the Speaker to preside over the House proceedings at that particular time and who is referred to as “Mr. or Madam Speaker” during that time). The Chair acts in a “non-partisan capacity” and receives guidance and advice from the Parliamentarian as to how to comport with the rules, precedents and best practices of the House. The Parliamentarian, as an agent of the Chair, may also provide advice to the tally clerks on the proper conduct of the vote.
  3. The Electronic Voting System (EVS) is operated by the “seated tally clerk,” who sits at the primary EVS terminal on the Speaker’s Dais. The seated tally clerk is assisted by a standing tally clerk, while a third tally clerk monitors the vote from a terminal in the Office of Legislative Operations.
  4. The seated tally clerk will initiate the EVS when the Chair states “The yeas and nays are ordered. Members will record their vote by electronic device.”
  5. The EVS includes a clock that tracks the minimum amount of time for the vote, 46 voting stations located on the House floor, and display boards. Two display boards, located above the east and west doors of the House chamber, display the time remaining in the vote and the running tally. A third display board, located behind the Chair, displays the vote of each Member.
  6. Members may cast or change their votes by using their personal voting card at one of the voting stations and pushing one of three buttons- a green button for “yea,” a red button for “nay,” or an amber button for “present.”
  7. Members may also cast their votes manually in the area in front of the rostrum known as the “well.” Well votes are received by the standing tally clerk, who verifies the information on the “well card” and hands it to the seated tally clerk for entry into the EVS.
  8. A Member may change his or her vote any number of times during a record vote. However, after the first 10 minutes of a 15-minute vote, a Member can change his or her vote only by manual voting in the well, unless the Member voted “present,” in which case the vote can still be changed electronically as long as the voting stations remain open.
  9. The seated tally clerk keeps a handwritten list of Members who change their votes after the first 10 minutes.
  10. Members are responsible during electronic votes for verifying that their votes are recorded accurately.
  11. The process of closing the vote begins when the Chair asks whether any Members wish to vote or change their vote. The Chair will ask this question sometime after the first 10 minutes of a 15-minute vote, and this signals the seated tally clerk to turn off the 46 voting stations (thus requiring that all remaining votes be cast or changed at the well). However, if the seated tally clerk perceives that there are a number of Members still seeking to vote, the tally clerk may leave the voting stations open for some period.
  12. When the Chair asks whether any Members wish to vote or change their vote, the seated tally clerk gives the handwritten list of Members who changed their vote to the reading clerk, who proceeds to announce that information to the House. Any changes to votes thereafter are announced immediately by the reading clerk.
  13. Once the minimum time for a vote is expired, the Chair determines when to close the vote. This decision is to be made on the “totality of the circumstances,” based on the Chair’s balancing of the obligation to conduct the vote efficiently (which means closing the vote at the earliest opportunity after the minimum time has expired) and the obligation to protect a Member’s right to vote (which counsels keeping the vote open when the Chair sees that there are Members who have yet to vote).
  14. Generally, the practice of the Chair has been to delay closing the vote until there are no more Members in the chamber who are seeking to vote. It is commonplace, at the end of a vote, for latecomers to straggle into the chamber while the Chair is attempting to close the vote. It can take the Chair several minutes, and several attempted announcements, to close the vote, long after the minimum time for voting has expired.
  15. With one exception, the Chair has complete discretion as to when to close the vote. That exception is the rule, adopted for the first time in the current Congress, that prohibits a vote from being held open for the sole purpose of reversing the outcome of a vote.
  16. When the Chair is ready to terminate the vote, the gavel is brought down. Operating pursuant to the Chair’s direction, the seated tally clerk determines when all votes have been entered into the EVS and reflected on the display boards. At that time, the seated tally clerk indicates to the standing tally clerk that the tally displayed is reliable and selects the option on the EVS to “terminate the vote.”
  17. At the same time the standing tally clerk prepares the “tally slip” (a small slip of white paper containing the vote tally) and hands it to the Parliamentarian, who in turn hands it to the Chair.
  18. At this point the Chair will usually take the tally slip and read the vote tally aloud. As the Chair does so, the seated tally clerk will typically select the option on the EVS called “setting the vote to final” (doing so causes the word “FINAL” to appear on the display boards). However, this in itself does not end the vote, and if additional Members enter the chamber, the Chair may still allow them to vote, requiring the EVS to be reopened and another tally slip to be prepared.
  19. It is only when the Chair makes an “unequivocal announcement of result” that the vote is final under House rules. Thus, when the Chair states “the amendment is adopted” or “the bill is passed,” the vote is concluded and cannot be reopened. Even this has some wiggle room, as House Parliamentarian John Sullivan explained: “I can recall on occasion when a Chair uttered what in a transcript would look like an unequivocal statement of result, but it is just because the last syllable was coming out of his mouth he wanted to pull up because a Member was running down the aisle. . . . We rationalize that the Chair hadn’t put the period on the end of the sentence in that circumstance.”
  20. As the “unequivocal announcement of result” is announced, the seated tally clerk selects the “releasing the displays” option on the EVS. The EVS then asks for “verification of the release.” While the earlier steps in releasing the EVS are reversible, the verification of the release clears the display board and shuts down the vote as a technical matter.
  21. After the vote is closed, the tally clerks on the rostrum proof the well cards with the tally clerk located in the Office of Legislative Operations. After this is done, the vote totals are released to the Clerk’s public website.
  22. Data for each vote taken by electronic device is collected in several files: transaction logs, checkpoint file, vote journal log, and hardware and software error logs. These files are only available internally and not to the public. The transaction logs record all voting transactions by each Member during a particular vote, including every vote cast, the time each vote is cast, any changes, and the manner in which the vote is cast (ie, from a voting station or a well card).

People Who Live in Glass Houses (Revised)

         

          A federal judge has ruled that the Library of Congress violated Title VII when it refused to hire a prospective employee who was a male-to-female transsexual.  Specifically, the plaintiff, who applied for a position with the Congressional Research Service (part of the LOC) while having the appearance and dress of a man, was made a job offer prior to CRS learning of the plaintiff’s intent to undergo surgery for “transitioning from male to female.”  The job offer was then withdrawn.  Judge Robertson ruled that by taking this action in response to the prospective employee’s “decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII’s prohibition on sex discrimination.” 

            The LOC, of course, is a legislative branch entity and falls under the jurisdiction of the Committee on House Administration.  The chairman of that committee, Robert Brady, has issued a statement which reads in part that “I applaud the Court’s decision, which should serve as a wake-up call to organizations that fail to include gender identity in their employee non-discrimination policies.” 

            It turns out, though, that one of those organizations is the U.S. House of Representatives.  Specifically, the Committee on House Administration, which has jurisdiction over employment of persons by the House, publishes a Model Employee Handbook which contains no mention of gender identity. 

After reviewing his own website, Chairman Brady might want to check the Rules of the House, which provide that a member, officer or employee of the House “may not discharge and may not refuse to hire an individual, or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the race, color, religion, sex (including marital or parental status), disability, age, or national origin of such individual, but may take into consideration the domicile or political affiliation of such individual.”

Note that the language relating to sex specifically includes marital or parental status, but says nothing about gender identity. This omission was most definitely not unintentional, as the House was well aware, at the time that it adopted its rules in January 2007, that neither sexual orientation nor gender identity have generally been considered to be included under the federal employment laws. In fact, the House was aware of this specific dispute regarding the LOC. Surely, then, the House’s failure to include gender identity (or sexual orientation) in its rules was far from inadvertent.

Indeed, as noted in Judge Robertson’s opinion, a bill that would have banned employment discrimination on the basis of both sexual orientation and gender identity (H.R. 2015) was introduced in the House during this very Congress. However, Representative Barney Frank, the principal sponsor of the bill, withdrew the gender identity provisions on the grounds that they were too controversial to pass the House. The revised version of the bill, entitled the Employment Non-discrimination Act of 2007 (H.R. 3685), banning discrimination on grounds of sexual orientation only, passed the House but has not been enacted into law.

If Chairman Brady thinks it important for organizations to include gender identity in their employment discrimination policies, perhaps he should start with his own organization. He should not impose new employment discrimination laws on the LOC that the House refuses to adopt for itself.

D.C. Circuit Considers a Stay in the Miers Case

           I attended yesterday’s D.C. Circuit argument on the Justice Department’s stay application in the Miers case.  The panel consisted of Judges Randolph, Ginsburg and Tatel.  A few takeaways: 

            Despite having asked the parties to brief appellate jurisdiction, the court didn’t seem interested in that subject.  The sense I got was that the judges are satisfied that they have jurisdiction over at least some part of the case. 

            It seemed as if the judges were interested in granting a stay, but it was not clear why.  The judges did not give much indication of disagreement with the rulings of the court below.  Judge Randolph made a point of noting, in response to House Counsel’s assertion that the Justice Department’s position on absolute immunity was “bogus” and “frivolous,” that this was the position of every administration since the Nixon Administration.  However, while the panel may believe that absolute immunity is a question of first impression, I did not detect any indication that the judges disagreed with how Judge Bates resolved that question.  Toward the end of the argument, Judge Tatel asked DOJ attorney Carl Nichols what was his “best case” in support of the absolute immunity position.  Nichols cited Nixon v. Fitzgerald (holding that the President is immune from civil suits) but acknowledged that Harlow v. Fitzgerald (denying the same immunity to presidential aides) “would be difficult for us.”  I am probably biased here (as I don’t think much of the absolute immunity argument myself), but I don’t think the judges found that very convincing.

With regard to the Justice Department’s threshold arguments, standing and cause of action, there was no discussion of the latter and the former did not come up until the very end of the argument, when Judge Randolph pointed out that if the House were to exercise its “self-help” remedy by arresting an executive official for contempt, the court would have to hear the same issues in the form of a habeas petition brought by the detained official. None of the panel seemed to understand why this would be a more appropriate way to resolve the dispute than the declaratory judgment action brought by the House.

(Judge Randolph asked Nichols whether the House had ever arrested an executive official for contempt. Nichols stated that he was not aware of any such case. In fact, at least two executive officials have been arrested for contempt, but in neither case were they asserting executive branch privileges or refusing to testify on the direction of the President.)

Most of the argument focused on the how much harm the House would suffer if a stay were granted. This is a tricky question because, although both parties agreed that the subpoenas here would “expire” at the conclusion of the Congress (i.e., in the first week of January 2009), the parties themselves seemed unsure as to what that would mean for the case. Nichols argued that the case would “likely” be moot at the expiration of the Congress, but suggested that this might depend on several factors that he did not identify. He also argued that the only legitimate purpose for the subpoena was to obtain information in aid of legislation, and that there was no possibility, even if the case were not stayed, that the House would be able to get any useful information and use it for legislative purposes in this Congress. In other words, a stay would not really matter because the clock will run out either way. (For that very reason the Justice Department has previously taken the position that congressional subpoenas expire upon adjournment sine die, another position that it has apparently altered for the purposes of this case.)

House Counsel Irv Nathan acknowledged that the subpoena would expire at the end of the Congress, but suggested that this might not moot the case because it would fall within the mootness exception for cases capable of repetition but evading review. Judge Tatel pointed out, however, that this exception only applies if the case is capable of repetition for the same plaintiff, and is therefore arguably inapplicable because the House Judiciary Committee itself (along with the House as a whole) expires at the end of the Congress.

It is not clear to me that the case should be mooted by the expiration of the Congress. As both parties acknowledged at the argument, the court of appeals in the AT&T case apparently did not view the expiration of the Congress as mooting the controversy before it. Moreover, in the census litigation, the three-judge district court (which included Judge Ginsberg) rejected the Justice Department’s argument that the House lacked standing to assert the injuries of a future Congress. The court gave two reasons for its conclusion (1) it noted that the House is in some respects a continuing institution (such as for owning property) and (2) it found that in any event the House had a “special relationship” with its successors so as to allow it to vindicate the rights of the latter. It seems to me that similar reasoning would allow the 111th Congress to continue to litigate the rights of the 110th.

In the final analysis, I suspect that the D.C. Circuit’s decision here will turn on some fairly practical considerations. I think that the court may be nervous about letting the case go forward in the district court because of the possibility that the court will get further embroiled in this political dispute. On the other hand, the judges (particularly, but not solely, Judge Tatel) were clearly concerned about depriving the House of the opportunity (to which Judge Bates found it was entitled) to get the evidence needed for its investigation.

This suggests the possibility that the court will issue some sort of creative order (not unlike what happened in the AT&T case) designed to resolve the matter without the need for further judicial proceedings. For example, the court might give the parties a limited period of time, say a week, to reach a settlement of the matter. If the White House/Justice Department failed to make a reasonable offer to resolve the dispute, the stay would be lifted. As I have indicated before, I think that the offer of a private (preferably transcribed) interview with Miers would be a reasonable offer, if the White House dropped the condition that the House waive its right to seek additional information from Miers.

More on Sunny Isle

Today’s Roll Call discusses Chairman Rangel’s reporting of his Sunny Isle condo transactions.  The article notes “the inconsistent reports are myriad errors, discrepancies and unexplained entries on Rangel’s personal disclosure forms over the past eight years that make it almost impossible to get a clear picture of the Ways and Means chairman’s financial dealings over time.” 

I remain puzzled as to how these discrepancies, which are evident on the face of the disclosure forms, escaped notice by the House Ethics Committee for so many years.

DC Circuit to hear argument in Miers Case

The U.S. Court of Appeals for the D.C. Circuit today set oral argument in the White House subpoena case for September 16th at 2:30 p.m. before Circuit Judges Douglas Ginsburg, David Tatel, and Raymond Randolph. The sides each have 15 minutes.