Senate Enforcement Action against Backpage CEO

I am a little late on this, but last month the Senate authorized a rare civil action to enforce a subpoena, utilizing a statutory mechanism for enforcement of Senate (but not House) subpoenas. See 28 U.S.C. § 1365. Under this mechanism, if a subpoena recipient fails to comply with a subpoena from a Senate committee or subcommittee, the committee reports a contempt resolution to the Senate, which may then adopt a resolution directing the Senate Legal Counsel to bring an enforcement action in federal court. See 2 U.S.C. §§ 288b, 288d.

The subpoena in question was issued by the Senate Permanent Subcommittee on Investigations (affectionately known as “PSI”) to the CEO of a company called Backpage.com, which runs an online classified advertising website. PSI opened an investigation of internet sex trafficking in April 2015, and, according to its opening brief in the enforcement case, its “research and investigation have shown that Backpage is a dominant presence in the online market for commercial sex and that numerous instances of child sex trafficking have occurred through its website.” The PSI subpoena sought documents related to Backpage’s practices in this regard, particularly with respect to screening of advertisements and other measures designed to prevent sex traffickers from using its website.

According to PSI, Backpage’s CEO refused to produce or even to search for documents responsive to the subpoena, claiming that “the subpoena is outside the Subcommittee’s jurisdiction, intrudes on his First Amendment rights, and seeks materials not pertinent to the Subcommittee’s investigation.” We will see what Backpage (represented by former House Counsel Steve Ross) has to say in response, but those do not sound like winning objections to me.

The Senate unanimously adopted a resolution authorizing enforcement on March 17, and on March 29 Senate Legal Counsel filed the action on PSI’s behalf in DC federal court. When I say this action is “rare,” the last time Senate Legal Counsel brought such a case was in 1993, when the Ethics Committee sought to force Senator Packwood to produce his diary.

 

 

The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?

The Court’s Decision

Judge Amy Berman Jackson recently issued her decision in the subpoena enforcement action brought by the House Committee on Oversight and Government Reform (COGR) against the Attorney General. The case arose out of an October 11, 2011 subpoena from COGR to then-Attorney General Holder seeking documents in the “Fast and Furious” investigation. Holder refused to produce certain responsive documents on the ground that they were protected by the deliberative process privilege.

On June 19, 2012, the day before COGR was to vote on a resolution holding him in contempt, Holder asked President Obama to assert executive privilege with regard to the disputed documents. The next day Deputy Attorney General Cole informed COGR that Obama had done so. COGR and the House then proceeded to find Holder in contempt, and COGR was authorized to bring a civil enforcement action in federal court.

Continue reading “The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?”

Can a House Committee Subpoena Clinton’s Server?

On the Megyn Kelly show last night, Judge Napolitano stated that Secretary Clinton’s server could not be subpoenaed by a House committee, but only by the House itself, because the committee lacks the power to subpoena “tangible things.” This echoes views expressed by Trey Gowdy, chairman of the Benghazi select committee, who claimed that his committee could not subpoena the server and suggested that whether even the House could subpoena it is an “open constitutional question.”

The Napolitano/Gowdy position strikes me as overly cautious. Admittedly, the question of whether a congressional subpoena can reach “tangible things” very rarely arises, and I am not aware of any precedent or even internal congressional guidance on the point. The quite comprehensive Congressional Oversight Manual, for example, does not seem to mention the issue. However, as described below, it is not necessary to resolve this general question to conclude confidently in favor of a House committee’s authority in the circumstances presented.

Continue reading “Can a House Committee Subpoena Clinton’s Server?”

Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation

Following up on my last post, the House Committee on Oversight and Government Reform advances several grounds for rejecting the Justice Department’s assertion of deliberative process privilege. The broadest argument is that deliberative process is a common law, not a constitutional, privilege and therefore must give way to Congress’s constitutional power of oversight. As COGR puts it, “[d]eliberative process, a common law evidentiary privilege designed to protect the confidentiality of some intra-agency deliberations in the context of adjudicatory proceedings (and FOIA), simply is not consistent with an overarching constitutional principle that requires the Congress to oversee Executive Branch agencies precisely by peering inside them.” Motion at 27. We have encountered a similar argument before in connection with whether Congress is bound to respect the attorney-client privilege, another common law privilege.

Continue reading “Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation”

The Fast and Furious Litigation: High Stakes for Congressional Oversight?

In its recently-filed motion for summary judgment before Judge Amy Berman Jackson, the House Committee on Oversight and Government Reform asks the court to reject the Attorney General’s claims of deliberative process privilege and to order the Justice Department to turn over documents responsive to a committee subpoena in the Fast and Furious investigation.

COGR v. Holder is a bit of a sleeper case. Although it has not received much press coverage, the outcome could have significant consequences for congressional oversight of the executive branch. A broad ruling that deliberative process and other common law privileges are inapplicable to congressional proceedings (or that the decision whether or not to accept these privileges is solely within congressional discretion) could deprive the executive branch of one of the principal tools it uses to slow down or thwart entirely congressional demands for information. On the other hand, if the courts were to endorse the executive’s right to assert such privileges, it could embolden federal agencies to resist congressional oversight, making it even more difficult than it is today for congressional committees to pry information from these agencies.

Continue reading “The Fast and Furious Litigation: High Stakes for Congressional Oversight?”

More on Fast and Furious

As mentioned last month, a federal district court has denied Attorney General Holder’s motion to dismiss a lawsuit, brought by the House Committee on Oversight and Government Reform, in which the committee seeks to enforce a subpoena for Justice Department documents related to the “Fast and Furious” investigation. The motion to dismiss advanced a number of grounds for declining jurisdiction, but they all more or less came down to a claim that the court should not intervene in a political dispute between the executive and legislative branches.

Judge Amy Berman Jackson decisively rejected these arguments in her opinion (summarized in more detail below). The court not only found the Justice Department’s arguments to be contrary to longstanding precedent, but inconsistent with the executive branch’s own prior practice. As the court pointed out, the executive branch has “itself invoked the jurisdiction of the courts when it sought to enjoin compliance with a Congressional subpoena” (during the AT&T case in the 1970s) and when it sought “a declaration concerning the validity of a claim of executive privilege asserted in response to a House request” (during the Gorsuch case in the 1980s). Quoting Judge Bates in the Miers litigation, Judge Jackson commented that “[t]he Court does not understand why separation of powers principles are more offended when the Article I branch sues the Article II branch than when the Article II branch sues the Article I branch.”

Reading Jackson’s original decision, it is evident that she did not think this is a particularly close case or difficult legal question. That impression is confirmed by her order yesterday with respect to the Attorney General’s request to certify the decision for interlocutory appeal. Granting such a request requires finding a “substantial ground for difference of opinion” with respect to the question of law, and the court found that the Attorney General had failed to provide any authority or other ground for such a difference of opinion. Accordingly, it declined to certify the question for appeal.

For those who are interested, a summary of the earlier opinion follows.

Continue reading “More on Fast and Furious”

Judge Jackson’s “Fast” and Furious Decision

Though it might seem like a distant memory (what with everything else going on), the House’s civil contempt lawsuit against Attorney General Eric Holder still percolates in the courts. The House is investigating “Fast and Furious,” but the resulting litigation is more like “Slow and Cranky.”

On September 30, Judge Amy Berman Jackson issued a long-awaited ruling on the Attorney General’s motion to dismiss the complaint on jurisdictional grounds. Her opinion does not reach the merits of the case (which involves the question of whether the President validly invoked executive privilege over certain internal Justice Department documents subpoenaed by the House Committee on Oversight and Government Reform), but it decisively rejects the Attorney General’s argument that the court lacks the power to decide the case at all.

I will summarize the court’s ruling in another post, but the bottom line is this. The Obama Justice Department made almost exactly the same jurisdictional arguments that the Bush Justice Department made in House Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (D.D.C. 2008), and they left Judge Jackson every bit as unimpressed as Judge Bates was in Miers.

One interesting point to note in Judge Jackson’s ruling. She emphasizes that the House’s complaint “raises a narrow legal question: can the executive properly assert executive privilege to shield an agency’s deliberative processes when the records in dispute do not reveal advice provided to the President himself or address his core constitutional functions?” (slip op. at 27 n.7). She contrasts this “purely legal question” with the messier function of weighing COGR’s need for the documents it seeks against DOJ’s interest in protecting its internal deliberations. Slip op. at 40-41.

But the Fast and Furious lawsuit is limited to a “purely legal question” only if Judge Jackson decides that question in favor of the House. If she concludes that the President may invoke executive privilege with regard to the documents in question, then it would be necessary for the court to engage in the kind of weighing of interests that raise some of the hallmarks of a political question.

This in turn suggests that Jackson may be leaning toward deciding the merits of the legal question in the House’s favor, which would end the litigation and require DOJ to produce the documents. Alternatively, should she decide that the President did properly invoke executive privilege, she may be inclined to send the parties back to the negotiating table before trying to “wad[e] into the murk” of the political wrangling between the parties.

 

Could Congress Subpoena Snowden?

So let’s say a congressional committee wanted to take evidence from fugitive extraordinaire Edward Snowden. What options would it have?

First, the committee could issue a subpoena to Snowden, just as it would any witness. Although I don’t know of any case directly on point, it seems to me that a congressional subpoena to a U.S. citizen would be effective regardless of where the citizen is located. See generally Blackmer v. United States, 284 U.S. 421, 437 (1932)  (“Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal.”). If Snowden were properly served with a subpoena to testify at a congressional hearing, he could be held in contempt if he failed to appear.

Legally, I don’t think the committee would need any special authority to subpoena Snowden in a foreign jurisdiction as long as it could figure out a way to serve him with the subpoena. Although personal service is the traditional method of serving congressional subpoenas, one might argue that electronic service is adequate under these extraordinary circumstances. But even if service can be accomplished, the committee would still have the practical problem that Snowden could not be punished for contempt until he returns to the United States.

This brings us to another option. As discussed in this CRS memo from 1997, congressional committees have from time to time been authorized to take depositions abroad and seek other means of international assistance in gathering information abroad. The memo, which was written as the House was considering a resolution authorizing extraterritorial investigative activity in connection with the investigation of campaign finance irregularities, explains:

The Committee and its staff are not going to be able to barge into Jakarta or Beijing, set up shop and start subpoenaing foreign nationals or foreign government officials to testify under oath. Rather, the Committee will be given the opportunity to use the various international channels of access to foreign-held information. In the end, the degree of legal formality and difficulty encountered by the Committee if it seeks to hold hearings in a foreign country or to have depositions taken or written interrogation answered, will depend on the nature and sensitivity of the inquiry sought to be conducted which, in turn, will often determine the extent of international comity that will be accorded.

One procedure for obtaining international assistance in obtaining information is the use of letters rogatory, which ask a foreign court to use its own compulsory process to obtain testimony or documents from a witness. At least one congressional committee, the House Select Committee on Assassinations in the 1970s, successfully used letters rogatory to obtain evidence overseas. Other committees, such as the Iran-Contra select committee, have been authorized to use them but did not actually do so. See George W. Van Cleve & Charles Tiefer, International Enterprises in Major Congressional Investigations: Lessons of the Iran-Contra Affair, 55 Mo. L. Rev. 43, 92 (1990).

Other methods of obtaining foreign assistance rely on treaty obligations to facilitate the service of process or the taking of evidence. A congressional committee can also seek a foreign government’s assistance as a matter of comity. The CRS memo describes how the October Surprise Task Force was able to obtain the cooperation of a number of foreign governments in obtaining documents and testimony relevant to its investigation, although, shockingly, “[t]he Government of Iran, contacted on numerous occasions through its Permanent Mission to the United Nations, denied the Task Force’s request to travel to Iran to conduct interviews.” The House Ethics Committee also found it difficult to obtain evidence during its “Korea-gate” investigation:

Key to the investigation was the role played by one witness, Kim Dong Jo, a former ROK official, who was not subject to compulsory committee process. In addition to the ROK’s reluctance to make the witness available, the Committee encountered difficulties with our Justice Department and the State Department, through which formal communications and negotiations with the ROK Government had to be channelled. Over a period of a year, the Committee, with the assistance of the House leadership, engaged in public education, Congressional pressure, negotiation, and finally Congressional reprisal.

As these examples illustrate, the key variable in these efforts in the cooperation of the foreign government. In the case of Russia, this is going to be a problem. The State Department website reports:

In July 2003, Russia unilaterally suspended all judicial cooperation with the United States in civil and commercial matters. The Russian Federation refuses to serve letters of request from the United States for service of process presented under the terms of the 1965 Hague Service Convention or to execute letters rogatory requesting service of process transmitted via diplomatic channels. The Russian Federation also declines to give consideration to U.S. requests to obtain evidence. While the Department of State is prepared to transmit letters rogatory for service or evidence to Russian authorities via diplomatic channels, in the Department’s experience, all such requests are returned unexecuted. Likewise requests sent directly by litigants to the Russian Central Authority under the Hague Service Convention are returned unexecuted.

This certainly raises questions whether a congressional committee could obtain Russian assistance to question Snowden. But it is at least conceivable that Russia, and its erratic president, would see advantage in cooperating with a congressional investigation into Snowden’s activities. They might prefer a congressional deposition of Snowden to permitting the executive branch to interview him.

In any event, you can’t know unless you ask.

Privileged Communications in Congressional Investigations

Michael Bopp and DeLisa Lay of Gibson Dunn have recently published an article, “The Availability of Common Law Privilege for Witnesses in Congressional Investigations” in the Harvard Journal of Law & Public Policy. It provides a helpful overview of congressional authority and practice with regard to assertions of attorney-client and other common law privileges in congressional investigations.

The article also focuses on a more unusual topic: the extent to which communications by lawyers and others involved in representing private parties in congressional investigations or other proceedings will themselves be protected by privilege. In other words, if a company hires lawyers, lobbyists or media consultants to represent it in connection with a congressional investigation, will it be able to claim privilege over its communications with these professionals, if for example they should be sought by adversaries in a future civil or criminal proceeding?

Not surprisingly, the answer turns out to be complicated. But it got me to wondering whether congressional committees could bolster future claims of privilege by, for example, allowing attorneys for congressional witnesses to “enter an appearance” in an investigation. In exchange for counsel adhering to certain ground rules established by the committee (eg, counsel could be required to acknowledge that the committee is a “tribunal” within the meaning of the legal ethics rules), it could recognize the privileged nature of the representation, which might (or might not) have an influence on courts or other tribunals considering future claims of privilege.

Does anyone know of committees doing this or something similar?

That Didn’t Take Long

Even before the Speaker had certified the contempt, this letter arrived from Deputy Attorney General James Cole informing him that “the Department has determined that the Attorney General’s response to the subpoena issued by the Committee on Oversight and Government Reform does not constitute a crime, and therefore the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General.”

It should be noted that the statute, 2 U.S.C. § 194, assigns a duty to the United States Attorney, not to the “Department.” It is interesting that the letter comes from the Deputy Attorney General, not from the United States Attorney for District of Columbia, who is the official charged with the responsibility for presenting the congressional contempt case to the grand jury.

Presumably the Department would point to the fact that Attorney General Mukasey sent a similar letter in the case of the congressional contempt certifications for Josh Bolten and Harriet Miers. But the fact that something was done before doesn’t make it right, and I cannot understand why the Attorney General (or the Deputy Attorney General), rather than the U.S. Attorney, would be responsible for making the decision that the statute clearly assigns to the latter.

Presumably, in this case the letter did not come from Attorney General Holder because it would look like a conflict of interest for Holder to declare that he would not prosecute himself. But this doesn’t look much better.

 

Update: here is Senator Grassley’s letter to U.S. Attorney Machen questioning whether he has made an independent determination regarding the scope of the executive privilege claim and whether the case should be submitted to the grand jury.