At legbranch.com, the website of the Legislative Branch Capacity Working Group, I have a post regarding the House Judiciary Committee staffers who allegedly worked on the Trump travel/immigration executive order during the transition.
On Balkinization, Abbe Gluck and Dakota Rudesill announce that a group of senators, including Ted Cruz and Mike Lee, have revived the idea of a congressional clerkship program:
In this era of gridlock and difficult politics, a bipartisan group of Senators has done something worth celebrating. On Monday, with the introduction of the Daniel Webster Congressional Clerkship Act, S. 3499, the Senate has taken the first step not only toward busting the judicial clerkship monopoly on mentoring fresh young law graduates but also toward bridging the enormous gap–a gap in both information and respect–between Congress and the courts.
The bill, sponsored by Sen. Mike Lee (R-UT), Sen. Patrick Leahy (D-VT), Sen. John Hoeven (R-ND), and Sen. Ted Cruz (R-TX), would create a dozen clerkship positions in Congress for recent law school graduates, equally divided across chambers and political parties. The bill envisions them competitively funded at the same level as their federal judicial counterparts.
We have discussed before the benefits that such a program would provide, particularly with respect to evening the legal playing field between the legislative and executive branches. It is a start toward, as they say in the LBCWG, “making Congress great again.”
If nothing concentrates the mind like the prospect of being hanged, there should be quite a few members of Congress, particularly but not exclusively Democrats, who are having a moment of clarity about the lamentable state of the legislative branch in our constitutional system. These are not new concerns. As I pointed out two years ago, following an otherwise partisan and contentious hearing before the House Rules Committee, “every witness and member who spoke to the issue seemed to agree that there has been a serious erosion of congressional power in recent decades and that Congress has failed to act in self defense when faced with presidents who seek to aggrandize their power at the expense of the legislative branch.”
There are, of course, institutional and structural reasons why it is hard for Congress to push back against executive overreach. Congressional Democrats may have agreed in theory about the dangers of an “uber presidency” (as Professor Jonathan Turley puts it), but for the last 8 years they have had little or no interest in doing anything about it. Congressional Republicans, on the other hand, have advanced various proposals for restoring legislative authority, but they have lacked either the ability or the will to put them into effect.
Contrary to popular belief, this is not the result simply of moral failings on the part of our elected representatives. Since at least the end of the Second World War, Congress has been at a substantial disadvantage in advancing its institutional prerogatives vis a vis the executive. Modern presidents “sit atop a vast executive branch and are able to take a wide variety of actions unilaterally.” Bradley & Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 440 (2012). Congress, on the other hand, as a plural body has a serious collective action problem in attempting to respond: “each individual member has relatively little incentive to expend resources trying to increase or defend congressional power, since he or she will not be able to capture most of the gains.” Id. Moreover, the “modern party system further reduces the incentives of individual members of Congress to act systematically in constraining executive power or resisting executive aggrandizement.” Id. at 443. Because “individual members of Congress tend overwhelmingly to act in accord with the preferences of their party,” the president’s co-partisans rarely will cooperate in any effort to constrain his power. Id.
These problems are exacerbated by an imbalance of resources between the two branches. One example, near and dear to the heart of this blog, relates to executive branch’s advantage in the sheer number of lawyers dedicated to advancing its institutional interests. This is perhaps both a cause and a symptom of the legislature’s disadvantage: “The fact that Congress lacks an institutional counterpart to the Office of Legal Counsel (which, among other things, monitors congressional inroads on executive authority) is an illustration of the executive’s greater institutional focus.” Bradley & Morrison, 126 Harv. L. Rev. at 443.
A noted OLC veteran once summarized Congress’s problem thusly:
In any controversy between the political branches over a separation-of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch. All Presidents have a high interest in expanding the powers of their office, since the more power the President can wield, the more effectively he can implement his political agenda; whereas individual Senators may have little interest in opposing Presidential encroachment on legislative prerogatives, especially when the encroacher is a President who is the leader of their own party.
NLRB v. Noel Canning, 134 S.Ct. 2550, 2606 (2014) (Scalia, J., concurring) (citing Bradley & Morrison).
These observations suggest that expectations for renewed assertions of congressional authority should be low. Congressional Democrats may find a new urgency in aggressive assertion of such authority, but congressional Republicans are just as likely to go in the opposite direction, seeing it to be in their political interest to cooperate with the incoming administration. They may continue in theory to support many of the ideas that have been put forward (establishing and enforcing limits on agency authority, strengthening its exercise of the power of the purse, conducting more robust oversight of the executive branch, and enforcing congressional subpoenas and demands for information), but in practice these goals will be secondary to the political expediency of supporting the new president.
Yet, as Bradley and Morrison note, the weakness and passivity of Congress is historically contingent. 126 Harv. L. Rev. at 446. The “obstacles to effective congressional checks on executive power—including members’ tendency to think more in terms of party than branch, and the President’s greater ability to appeal to the national electorate—are not fixed features of our constitutional order.” Id. at 447. Perhaps the unique qualities of the president-elect, including but not limited to his historically unprecedented disapproval ratings, will change congressional behavior.
Some observers suggest reasons for optimism. George Will writes: “For constitutional conservatives, the challenge is exactly what it would have been had Clinton won: to strengthen the rule of law by restoring institutional equilibrium. This requires a Republican Congress to claw back from a Republican executive the legislative powers that Congress has ceded to the administrative state, and to overreaching executives like Obama, whose executive unilateralism the president-elect admires.” Ben Domenech says of the president-elect, “his attitude and character are so abrasive to the sentiments of the American elites that it almost has to result in a reassertion of the powers of the other branches of government, particularly the Congress.”
We will see. If Congress is going to act, it must do so quickly. After all, the president-elect (probably) doesn’t even know what the OLC is yet.
In the meantime, they will soon be erecting the scaffolding on Capitol Hill. For the inauguration, of course.
Writing in Slate last week, Professor Neal Devins, a noted expert on the Constitution and Congress, had several complaints about how Congress presents its legal positions in court. Devins is unhappy that the House, because it operates on a majoritarian basis, may present legal views that are held only by the majority, but he is equally unhappy that the Senate, because it requires bipartisan consensus, may present no legal views at all. And he is particularly unhappy that in the Noel Canning recess appointments case the Supreme Court heard “only from the Senate minority and not from the Senate itself.” As Devins asks plaintively, “why would the Senate’s own lawyer sit on his hands while the minority leader purports to speak for the Senate?”
Why indeed. Let’s begin by reviewing how “the Senate’s own lawyer,” aka the Senate Legal Counsel, operates. As Devins notes, Senate Legal Counsel must, by statute, receive specific authorization before filing any brief on behalf of the Senate. Devins says that “counsel representation of the Senate requires two-thirds support of a leadership group made up of four members of the majority party and three members of the minority party,” but this is incorrect. Appearance as amicus curiae is authorized by Senate resolution, not by the Joint Leadership Group. See 2 U.S.C. § 288b(c). Nothing in the statute requires that such a resolution be bipartisan.
According to this Legal Times piece, Dickstein Shapiro has a problem with the House Committee on Oversight and Government Reform. Does it also have a legal ethics problem? The Legal Times relates:
Before beginning to question the five witnesses, committee chair Darrell Issa (R-Calif.) paused to criticize a Dickstein employee’s activities prior to the hearing. The employee—who was not identified, except as a female member of the firm’s lobbying group—“made multiple contacts to committee members and specifically asked them not to ask you questions,” Issa said.
Issa produced a copy of what he termed “a disturbing” email, with the sender’s name blacked out. It read: “If possible, please do not direct questions to Jonathan Silver…He’s a client of my firm. :)”
Issa said, “From the committee’s standpoint, the question is whether to refer this to the bar association, whether it’s an interference with Congress, which I find it to be.”
Rule 3.9 of the D.C. Bar Rules of Professional Conduct provides that “a lawyer representing a client before a legislative or administrative body in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3, 3.4(a) through (c), and 3.5.” The comments state that “[a] lawyer appearing before such a body should deal with it honestly and in conformity with applicable rules of procedure,” and “legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.”
Rule 3.5(a) provides that a lawyer shall not “seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.”
Rule 3.5(b) prohibits ex parte communications “during the proceeding unless authorized to do so by law or court order.”
Finally, Rule 3.5(d) prohibits a lawyer from “engag[ing] in conduct intended to disrupt any proceeding of a tribunal, including a deposition.”
Exactly how these provisions apply in the context of a congressional proceeding is a question that Bar Counsel has probably never faced before. In fact, my impression (confirmed by Jack Marshall at a recent seminar) is that even most legal ethics experts have never heard of Rule 3.9. But if the Dickstein employee is a member of the D.C. bar, or is supervised by a member of the D.C. bar responsible for her conduct, there would seem to be some serious ethics questions raised.
At the June 28 meeting of the House Committee on Oversight and Government Reform, a question arose about the role of House Counsel in providing legal advice to COGR and its members. Chairman Issa had requested and received a House Counsel opinion on whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory opening statement at a prior COGR hearing. Issa took the position that this opinion was attorney-client privileged. Although he shared the opinion with Ranking Member Cummings prior to the June 28 meeting, he had asked Cummings to limit distribution of the document to prevent public disclosure.
Specifically, Issa requested that Cummings not distribute the opinion to “all of your members,” presumably because he feared that such wide distribution would inevitably lead to its being leaked. Committee Democrats protested that every member of COGR had an equal right to the opinion because House Counsel is charged with representing the House as a whole. Issa countered that each member of COGR was free to obtain his or her own opinion from House Counsel. He maintained, however, that this opinion was given to the committee majority and had been shared with the minority only as a “courtesy.”
This debate reflects some confusion about the function of House Counsel. It may also reflect the fact that the role of congressional lawyers in general, and House Counsel in particular, is, as the law professors like to say, “under-theorized.” (Which, admittedly, is a bit like your State Farm agent saying you are “under-insured”). As I noted a few years ago:
House Rule II(8), which establishes OHC [the Office of House Counsel], provides that the office exists,
for the purpose of providing legal assistance and representation to the House. Legal assistance and representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships.
This language, which constitutes essentially all of the legal authority defining the scope of the OHC’s functions and obligations, provides only limited guidance as to the OHC’s ethical responsibilities. It could be read to suggest that OHC’s responsibilities run primarily, if not exclusively, to the House as an institution, rather than to individual members or offices. On the other hand, it requires that OHC provide assistance and representation without regard to political affiliation, a directive that seems unintelligible except in the context of providing advice or representation to particular members. Finally, it implies that questions about the OHC’s responsibilities, including issues relating to the House’s institutional legal interests and positions, are to be resolved by the Speaker of the House after consultation with the Bipartisan Legal Advisory Group (BLAG).
Michael L. Stern, Ethical Obligations of Congressional Lawyers, 63 NYU Ann. Survey of Am. L. 191, 199 (2007).
A few years ago I came up with what I thought was a brilliant and original idea. Well, at least an original idea. Establish a congressional clerkship program, in which recent law school graduates could work for a year providing legal research and advice to Congress. It would be something of a cross between a judicial clerkship and the DOJ Honors Program, and the basic idea would be to give the clerks the same type of experience from a congressional perspective. Congress would get the benefit of top quality legal talent and, equally importantly, would have the opportunity to educate these new lawyers on congressional legal issues that are often overlooked in law schools.
It turns out that a lot of people were way ahead of me. In 2005, 145 Law School Deans, led by Stanford Dean Larry Kramer, had sent a letter to Congress urging the creation of a congressional clerkship program (the letter may be read at the Congressional Clerkship Initiative website). The Deans wrote: “Following the judicial clerkship model, we would propose that a Congressional Clerk serve for one or two years, either for an individual legislator or for a legislative committee, and be comparably compensated.” They predict that “legislative clerks could and would rapidly learn the ropes and become invaluable assistants on tasks ranging from research to crafting positions and writing speeches to the actual drafting of legislation and legislative reports.”
The Deans point out that judicial clerks are top law school graduates and “go on disproportionately to assume leadership positions in the bar and in the profession.” The fact that many such leaders have had judicial clerkship experience, but no comparable degree of congressional experience, explains “in part why the legal profession in this country tends to emphasize litigation and the judiciary over legislation and the lawmaking process.” A robust congressional clerkship program “would do much to improve understanding and appreciation of the legislative process within the legal profession and, through the profession, in the country as a whole.”
As mentioned in my last post, D.C. Bar Legal Ethics Opinion No. 358 amplifies the 1977 opinion in a couple ways that are of interest. First, the Legal Ethics Committee (LEC) states that a prosecutor holds “a position akin to counsel for an investigative congressional committee” for purposes of the legal ethics rules. Although the 1977 opinion partly relied on decisions that prohibited prosecutors from requiring witnesses to assert the Fifth before a grand jury, it did not generally equate the positions of prosector and committee counsel.
One can only imagine how lawyers for clients investigated by congressional committees might use this language. For example, Rule 3.8(a) of the DC Bar Rules of Professional Conduct states that a prosecutor shall not “in exercising discretion to investigate or to prosecute, improperly favor or invidiously discriminate against any person.” Could this provision be used to file a complaint against a committee counsel who investigates wrongdoing solely when it is associated with the other political party (or, conversely, opposes investigations against persons associated with his own political party)?
Rule 3.8(f) also sharply limits the prosecutor’s ability to make extrajudicial statements prejudicial to the accused. The LEC specifically cites Comment 2 to Rule 3.8, which states that “a prosecutor should use special care to avoid publicity, such as through televised press conferences, which would unnecessarily heighten condemnation of the accused.” The logic of this position would not seem to be limited to requiring witnesses to take the Fifth in an open hearing, but could apply to any negative or prejudicial comments regarding persons who are subject to congressional investigation.
Opinion No. 358 also provides some guidance on the types of conduct that might cause a lawyer to violate the ethical rules. Committee lawyers, of course, do not have the power to issue subpoenas or to decide whether hearings should be closed. These powers belong to the committee (or, in some cases, to the chairman). The LEC suggests, however, that a staff lawyer might be guilty of “assisting another in violating the rules.” It is not clear exactly what that means, but one could infer that committee lawyers have some sort of duty to refuse to assist the committee in activities that would violate the rules.
The LEC also notes that “[i]n addition to participation in the hearing itself, such related activities as preparing subpoenas also could subject a lawyer to sanctions, although we note that Rule 5.2 protects a subordinate lawyer who acts as the direction of a supervising attorney so long as there a reasonable argument that calling the witness is permitted by the Rules.”
How would this work in the congressional context? Suppose, for example, a committee chair directs counsel to prepare a subpoena for a witness. Can the counsel rely on this instruction as a defense? Probably not, if the chair is not a lawyer (or a member of the DC bar). What about the House General Counsel’s office, which reviews all subpoenas under House practice? Can the committee counsel rely on the General Counsel’s determination as to whether the subpoena is permitted under the DC Bar ethics rules? Perhaps, but the House Counsel is not a “supervising attorney” of the committee lawyer. The House Counsel, however, may need to ensure that the subpoena complies with the legal ethics rules, to avoid a potential charge that he or she has “assisted” the committee in violating those rules.
Opinion No. 358 may open up an interesting can of worms on the Hill.
In 1977, the Legal Ethics Committee (LEC) of the D.C. Bar, interpreting the Code of Professional Responsibility (the predecessor to the Rules of Professional Conduct), opined that an attorney serving as counsel to a congressional committee was prohibited by the disciplinary rules from requiring a witness to appear at televised hearings when the committee had been notified in advance that the witness would refuse to answer questions based on the Fifth Amendment right against self-incrimination. See Michael Stern, Ethical Obligations of Congressional Lawyers, 63 N.Y.U. Annual Survey of American Law 191, 192, 207-08 (2007).
This opinion has long caused consternation among congressional committees and their lawyers. Among the objections to it: (1) there are legitimate reasons why a committee may wish to call a witness to testify notwithstanding an indication that he or she will assert the privilege against self-incrimination; (2) the D.C. Bar has no authority to regulate the proceedings of congressional committees; and (3) the decision of whether or not to subpoena a witness, or to close a hearing, belongs to the committee, not to staff lawyers.
The LEC has now issued Opinion No. 358 (Jan. 2011), which responds to a request to vacate the 1977 opinion. (Although the source of the request is not identified, I believe it was former House Counsel Irv Nathan). The LEC analyzes the issue under the current rules and concludes that there is no basis to vacate the prior opinion. In doing so, however, it both qualifies and perhaps extends the reach of the opinion in notable ways.
Opinion No. 358 acknowledges, as did the 1977 opinion, that the LEC’s “jurisdiction is confined to rendering opinions on the applicability of the ethics rules to the conduct of staff attorneys acting in their capacities as attorneys.” Thus, the opinion presumably does not apply to Members of Congress, even though many are lawyers and some may be members of the D.C. Bar.
Nevertheless, the LEC reiterates that a committee staff lawyer may violate the ethical rules if he or she participates in calling a witness who has asserted an intention to plead the Fifth. According to Opinion No. 358, such conduct potentially violates Rule 4.4(a), which states that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person,” and Rule 8.4(d), which prohibits a lawyer from “engag[ing] in conduct that seriously interferes with the administration of justice.”
According to Opinion No. 358, the rules are not violated simply by the fact that a witness who intends to assert the Fifth is subpoenaed to do so in an open hearing. Instead, a violation occurs only if the sole purpose of calling the witness is to degrade or harass. The opinion implicitly acknowledges that there are circumstances in which this is not the sole purpose of calling the witness to appear in public, although it does not provide much guidance on what those circumstances may be.
This is a significant qualification to the 1977 opinion, which has generally been understood to hold that it is per se improper to require a witness to appear in a public hearing if he or she has stated an intention to plead the Fifth. Thus, while Opinion No. 358 purports to reaffirm the 1977 opinion, it arguably makes it more difficult for a witness to use it as a basis for refusing to appear (the LEC expressly declines to opine on whether it is ever appropriate for a witness to invoke the opinion as a basis for refusing to comply with a congressional subpoena).
On the other hand, there are aspects of Opinion No. 358 which could raise new problems for congressional lawyers. I will discuss those in my next post.