SHOULD THERE BE A SENATE RESOLUTION FOR LINDSEY GRAHAM’S GRAND JURY SUBPOENA?

State prosecutors in Georgia are seeking to subpoena Senator Lindsey Graham of South Carolina to testify in a grand jury investigation of alleged efforts to unlawfully alter the outcome of the 2020 presidential election in Georgia. Prosecutors want to question Graham about telephone calls he made to Georgia election officials in the weeks following the November election. Graham has moved to quash the process issued by the Georgia judge supervising the grand jury on three grounds: (1) compelling his testimony would violate the Speech or Debate Clause; (2) sovereign immunity precludes state court process against a U.S. senator for acts occurring in his official capacity; and (3) requiring Graham to testify would unduly interfere with his legislative responsibilities in the Senate.

Today I do not want to focus on the merits of these legal arguments, but on the Senate’s role in this process. Although the Senate (unlike the House) does not have a rule providing explicit procedures for handling incoming subpoenas, Senate precedent and practice require authorization from the chamber before senators, officers or staff may comply with such subpoenas.

For example, on June 8, 2022, the Senate agreed to a resolution submitted by Majority Leader Schumer for himself and Minority Leader McConnell authorizing the former general counsel to the Secretary of the Senate to testify in a criminal case involving a January 6 defendant. The resolution recited the Senate’s longstanding (if debatable) position that “by the privileges of the Senate of the United States and Rule XI of the Standing Rules of the Senate, no evidence under the control or in the possession of the Senate may, by the judicial or administrative process, be taken from such control or possession but by permission of the Senate.” In other words, evidence which the Senate regards as under its control or in its possession may not be provided to a court unless the Senate decides that providing permission “will promote the ends of justice consistent with the privileges of the Senate.”

Does the evidence sought from Graham fall into this category? The answer seems to be yes, at least if one accepts Graham’s characterization of it. According to his motion to quash, the purpose of his contact with Georgia officials was “to gather information relevant to his oversight responsibilities as Chairman of the Senate Judiciary Committee” and “his obligations under the Electoral Count Act of 1887.” Whether or not such activity falls within the legislative sphere protected by Speech or Debate (as Graham contends), it certainly would be sufficiently official in nature to trigger the requirement that the Senate grant permission before testimony may be given.

Graham, of course, does not want to testify and therefore has little incentive to seek a Senate resolution authorizing him to do so. Moreover, although he has not raised lack of Senate permission as a basis for quashing the Georgia process in his initial filing (perhaps for tactical reasons or perhaps because his private lawyers are unaware of this aspect of Senate practice), he may seek to do so at a later date.

This leaves the possibility that another senator will introduce a resolution authorizing Graham to provide the requested testimony. Clearly such a resolution would not receive unanimous consent, which is the way that such resolutions are invariably passed. Furthermore, even if the resolution were adopted, it would not prevent Graham from asserting the Speech or Debate privilege as to some or all of his testimony. It would, however, preclude him from refusing to comply based on the lack of Senate permission and it would likely undermine his sovereign immunity argument because (I think, though I am not sure) any such immunity would belong to the Senate as a whole rather than the individual member.

Finally, a Senate resolution would deal with Graham’s third objection relating to potential conflicts between the Senate’s legislative schedule and a potential grand jury appearance. When the Senate authorizes testimony by a sitting senator, it insists that any court appearance must be consistent with Senate Rule VI, which provides that senators must not absent themselves from the service of the Senate without leave, and therefore that any testimony may not occur when the senator’s attendance at the Senate is necessary for the performance of his or her legislative duties.

Of course, whether or not such a resolution is introduced will depend less on the legal technicalities than whether one or more senators believe that the subject of Graham’s potential testimony is sufficiently important to merit the Senate’s attention. We shall see

Lawfare Podcast on January 6 Committee and Potential Subpoenas of Members

In today’s Lawfare podcast, Quinta Jurecic hosts Molly Reynolds and me to talk about the January 6 committee’s efforts to question House members about matters pertinent to its investigation.

The more I think about it, the more I lean toward the view that if the committee decides to subpoena members, it will pursue enforcement by means of a civil lawsuit, rather than a criminal contempt referral or some sort of internal disciplinary proceeding. This will allow the committee to keep attention focused on the fact that these members are refusing to provide information (as well as require them to explain their reasons for doing so in court), while minimizing their ability to claim political martyrdom. It also will allow the committee to avoid bringing the matter to the floor; a civil action can be authorized by the Bipartisan Legal Advisory Group without forcing rank and file members to vote on a politically charged matter. The committee can also point to some precedent for such an action; the Senate Ethics Committee brought suit against Senator Packwood to enforce its subpoena for his diary.

The downside is that the case will probably take too long for the committee to get any useful information this year. That’s why the committee has refrained from using this method of enforcement for other witnesses. But here the committee is more concerned with the potential political consequences and the internal precedent regarding subpoena of members; recognizing that they may soon be in the minority, Democrats do not want it to be too easy for House committees to subpoena members in the future.

BLAG, the Act of Production Doctrine and the Schock Case

Recent filings in the criminal case against former congressman Aaron Schock (see my last post) brought to my attention that a number of pleadings in the Schock grand jury proceedings have been unsealed. Among these were two briefs filed by the House Counsel on behalf of the Bipartisan Legal Advisory Group (BLAG) as amicus curiae in support of Schock’s right to assert a Fifth Amendment act of production privilege in response to grand jury subpoenas for Schock’s congressional records.

The Act of Production Privilege and the Records of a Congressional Office

The grand jury subpoenas in question seek documents from Schock’s “congressional office.” As used here, a “congressional office,” also sometimes referred to as the member’s “personal office,” means the offices that each member of the House maintains in Washington, D.C. and the congressional district for the conduct of official business as a representative from that district.

As we have discussed before, the House has long taken the position, for reasons unrelated to the Fifth Amendment, that such documents are the personal property of the individual member, not the property of the House itself or the U.S. government. Thus, these records are not archived under House Rule VII (as are documents such as committee records, which belong to the House and are periodically sent to the National Archives for archiving and eventual release to the public). Instead, upon a member’s departure from the House, the member is expected to take custody of her congressional office records or to arrange for their disposal (e.g., by having them destroyed, put in storage or donated to a university or other institution). See Declaration of Farar P. Elliott, Chief of the Office of Art and Archives (7-24-15).

Here we should step back and explain the Fifth Amendment “act of production” privilege and its relationship to the House’s stance on who owns congressional documents. As Judge Myerscough explained in an opinion issued in the course of the Schock investigation:

A person may be compelled to produce documents even though the documents contain incriminating assertions of fact or belief because the creation of the documents was not compelled. United States v. Hubbell, 530 U.S. 27, 35 (2000); Fisher v. United States, 425 U.S. 391, 410 (1976) (“The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else”). Nonetheless, “the act of producing documents in response to a subpoena may have a compelled testimonial aspect.” Hubbell, 530 U.S. at 36. That is, by producing the documents, the witness admits that the papers exist, that the papers were in his possession or control, and that the papers are authentic. Whether a particular act is testimonial and self-incriminating is largely a factual issue to be decided in each case.

The act-of-production privilege does not, however, apply to collective entities, such as corporations. Consequently, an individual cannot rely on the Fifth Amendment privilege to avoid producing a collective entity’s records that are in his possession in a representative capacity, even if the records may incriminate him personally.

Opinion of June 25, 2015 at 14-16 (some citations omitted).

Thus, if documents from a member’s congressional office belonged to a collective entity, such as the House itself, or the U.S. government, or the “Office of Congressman X or Congressional District Y,” the act of production privilege would not apply, and a member could be compelled to produce such documents in response to a subpoena.

On the other hand, the converse is not necessarily true. The government argued that documents which of their essential nature are public or official records are not subject to the act of production privilege even if the House treats them for some purposes as the member’s personal property. Moreover, it contended that the “collective entity” doctrine was applicable because a congressional office, while it differs from a government agency or private corporation with respect to the ownership of documents, is still more like these collective entities than it is like a “sole proprietorship” or the home or business of a private individual.

BLAG responded that the formal ownership of documents was dispositive for purposes of the Fifth Amendment analysis. Furthermore, to the extent that a “collective entity” analysis was appropriate, it maintained that the legal nature of a congressional office was like that of a sole proprietorship, as distinguished from a collective entity such as a government agency or corporation. Continue reading “BLAG, the Act of Production Doctrine and the Schock Case”

Some Schocking Information About Congressional Records

Former congressman Aaron Schock, under investigation for financial misconduct while in office, has been in various disputes with the Justice Department about documents prosecutors are seeking from him. One of those disputes involves the somewhat peculiar legal status of documents from a Member’s personal congressional office. So the blog having been on hiatus for a couple of months, I will ease back into things with a discussion of this obscure topic.

You may be aware, unless you happen to be former Secretary of State Hillary Clinton, that the records of federal agencies and the executive branch generally are subject to extensive regulation and control by various statutes, including the Federal Records Act, the Freedom of Information Act and the Presidential Records Act. You may or may not be surprised to know, however, that few if any of these laws apply to Congress. As the House Rules Committee observed in this 1988 report, the Privacy Act and FOIA explicitly exempt Congress from their coverage, and “[n]o statute comparable to the Presidential Recordings and Materials Preservation Act has ever been enacted with respect to congressional records.” Hmm, I wonder how that happened.

Continue reading “Some Schocking Information About Congressional Records”

Would the House’s Sovereign Immunity Position Bar its Suit against the President?

This is a question that should have, but didn’t, occur to me even as I sat through a good portion of yesterday’s House Rules Committee hearing, in which members and witnesses spent five hours arguing over when, if ever, it was permissible for one branch of the government to sue another. Professor Walter Dellinger testified that the federal courts could not and would not hear an action brought by the House against the president for failing to perform his duties under the laws and Constitution. Dellinger based his conclusion on the House’s lack of standing, but I did not hear him or anyone else raise sovereign immunity as an issue.

But yesterday the SEC also filed its reply brief in its subpoena enforcement action against the House Ways & Means Committee and, as I was reading it, the light bulb went on. If the House were correct in the sovereign immunity position taken in that case, its proposed lawsuit against President Obama would seem to be barred by its own position unless it could take advantage of a express waiver in existing law. It is not at all obvious that any such waiver exists.

Of course, the same could be said of lawsuits that the House has already filed. The SEC notes in its brief that courts “have not applied (let alone discussed) federal sovereign immunity in the myriad cases where one branch of government (sometimes Congress) acting in a sovereign capacity sues another branch of government (sometimes to enforce a subpoena).” In a footnote, it cites two House-initiated suits, Comm. on Oversight and Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013), and Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008), which would have been barred by sovereign immunity if it were applicable.  SEC Reply Br. 3 & n.1. In neither case, however, did any party or the court raise sovereign immunity as an issue.

The SEC’s position is that sovereign immunity is simply inapplicable to suits by one part of the federal sovereign against another. The fact that neither party can identify any case in which sovereign immunity was discussed in the context of inter-branch (or intra-branch) lawsuits cuts against the House’s position, not the SEC’s. The House, it argues, is seeking an extension of the sovereign immunity doctrine with no foundation in the case law. See SEC Reply Br. 4 (“While [the House] attack[s] the Commission for not identifying any cases in which a court has rejected such an extension, the Commission should not bear the burden of proving a negative.”).

In light of the consequences for any lawsuit against the president, maybe the House should hope the SEC is right.

 

The House All In on Sovereign Immunity

The House Ways & Means Committee has filed its response to the SEC’s enforcement action (see here and here). The House’s brief sheds some, though not much, light on its argument that the doctrine of sovereign immunity bars the subpoenas in question.

The House relies primarily on a Second Circuit case, In re SEC ex rel Glotzer, 374 F.3d 184 (2d Cir. 2004), which held that “a party seeking judicial review of an agency’s non-compliance with a subpoena must first exhaust his or her administrative remedies pursuant to APA § 704.” Glotzer involved two subpoenas issued by a party (specifically Martha Stewart) in a federal civil lawsuit to (ironically) SEC attorneys. An SEC official considered the subpoenas in accordance with the agency regulations and determined that the attorneys should not be authorized to testify. Rather than seeking further agency review, as required by the regulations, Stewart sought direct judicial enforcement by the district court in which the civil case was pending.

The Second Circuit found that the district court lacked jurisdiction to enforce the subpoenas. It relied on circuit precedent establishing that a motion to compel an agency to comply with a subpoena implicates the doctrine of sovereign immunity and therefore such compulsion may take place only in accordance with the federal government’s waiver of sovereign immunity in the APA. Because the APA requires exhaustion of administrative remedies before judicial review may occur, the Second Circuit concluded that the jurisdictional pre-requisite for judicial review had not been met.

The House’s application of this decision is straightforward. The doctrine of sovereign immunity applies to Congress (several circuits have so held) and therefore subpoenas cannot be enforced against Congress absent a waiver. The APA does not apply to Congress and so does not waive its sovereign immunity. The SEC having identified no other valid waiver, the House argues, the subpoenas cannot be enforced, period. Notably, the House brief does not discuss the possibility that Rule VIII constitutes a waiver and, in fact, does not mention the rule at all.

It seems to me unlikely that the Second Circuit, which purported to be addressing a narrow question of first impression, would take its decision as far as the House would. The court mostly seemed concerned that a litigant not be able to circumvent an agency’s established procedures for responding to subpoenas. This is not an issue with Rule VIII, where the administrative procedures have already been exhausted. Moreover, the Second Circuit construed Stewart’s motion as one to compel the agency itself, rather than merely the subpoena recipients, see footnote 7, which may provide a ground for distinguishing two cases. In any event, nothing in the Glotzer decision suggests that the court expected it to have the far-reaching implications that are entailed by the House’s interpretation.

If the House were correct, it would mean that no subpoena, administrative or judicial, could be enforced against any legislative entity or a legislative official acting in an official capacity. It would seem, for example, that the grand jury subpoena to a Senate aide in Gravel v. United States, 408 U.S. 606 (1972), would have been barred by sovereign immunity. The same would be true, presumably, of the civil subpoena in Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995), as well as the subpoenas in many of the other Speech or Debate cases discussed in the House’s brief. None of these cases even discuss sovereign immunity, which, if a substantial jurisdictional question, should have been considered by the courts even if not raised by the parties.

There are other implications of the House’s position which are, to put it mildly, surprising. What about subpoenas to executive branch officials not covered by the APA, such as the criminal trial subpoena to President Nixon? See United States v. Nixon, 418 U.S. 683 (1974). For that matter, what about congressional subpoenas to executive branch officials? Are they barred by sovereign immunity as well?

Perhaps there is a limiting principle in the House’s brief that is not apparent to me. For the moment, lets just say that nothing has changed my deep skepticism about this argument.

 

The House’s Sovereign Immunity Objection to the SEC Subpoenas

As discussed in my last post, the SEC is suing the House Committee on Ways & Means and Brian Sutter, a committee staffer, to enforce two administrative subpoenas, one to the committee seeking documents and one to Sutter seeking both documents and testimony.

A May 19 letter from the House General Counsel lays out 11 objections to the subpoenas. The first objection, which I want to address today, is that “[e]ach of the subpoenas is barred by the sovereign immunity, never waived, that attaches to the Committee and Mr. Sutter in their official capacities.”

If I understand this objection correctly, it means that the House is asserting that the SEC is barred from compelling the production of official House documents or testimony related to the official functions of the House, even if that information is not constitutionally privileged and no matter how relevant it might be to the SEC’s investigation.

What might be the basis of such an objection? Well, during my time in the House Counsel’s office, we dealt with administrative subpoenas from several different federal agencies. We objected to these subpoenas based on the fact that House Rule VIII, which authorized compliance with subpoenas issued by courts, did not apply to administrative subpoenas. One aspect of this argument (I think) was that Rule VIII’s silence meant the House had not waived its sovereign immunity with regard to administrative subpoenas.

Now frankly sovereign immunity never struck me as exactly the right rubric for this argument. Historically the House (like the Senate) has maintained that its consent is needed before another branch of government can obtain documents from its files or testimony regarding its official functions, but this position has been grounded in the separation of powers. Thus, Deschler explains that the attempt by “another coordinate and coequal branch of government” to exercise authority over the House by serving process upon it “has historically been perceived by the House as a matter intimately related to its dignity and the integrity of its proceedings, and as constituting an occasion for the raising of the question of the privilege of the House.” 3 Deschler’s Precedents § 14. This view held that each branch of government had the constitutional authority to make the final determination regarding the disposition of its own documents and information. See Nixon v. Sirica, 487 F.2d 700, 742 (D.C. Cir. 1973) (MacKinnon, J., concurring in part and dissenting in part) (“It thus appears that the judiciary, as well as the Congress and past Presidents, believes that a protected independence is vital to the proper performance of its specified constitutional duties.”)

Be that as it may, in 1977 the House first adopted the predecessor to Rule VIII, providing standing authority to comply with judicial subpoenas. This rule obviated the need for the House to authorize compliance with such subpoenas on a case-by-case basis (which remains the practice in the Senate to this day). To the extent that the doctrine of sovereign immunity applies, the rule also presumably acts as a waiver of this defense so long as a subpoena meets the criteria set forth in the rule.

As noted, there remained a problem with respect to administrative subpoenas because Rule VIII did not address them. Thus, whether viewed as a question of sovereign immunity, separation of powers, or both, administrative subpoenas to the House were arguably barred and could not be complied with absent a specific House resolution authorizing compliance. (The merit of this position was never tested in court, to my recollection).

In the 107th Congress, however, Rule VIII was broadened to cover administrative subpoenas. This was done at the suggestion of the House Counsel’s office precisely because there seemed to be little sense from a policy standpoint (as well as some legal risk) in maintaining that administrative subpoenas were categorically barred.

Given that Rule VIII now expressly authorizes (and indeed requires, if the rule’s prerequisites are satisfied) compliance with administrative subpoenas, it is a little difficult to understand how the House could sustain a sovereign immunity objection. Perhaps a clue is the citation in the May 19 letter to Lane v. Pena, 518 187, 192 (1996), which it describes as holding “any waiver of sovereign immunity must be ‘unequivocally expressed in statutory text.’” Rule VIII, of course, is not a “statute” and thus, it might be argued, its language does not count for determining whether sovereign immunity has been waived.

If that’s the argument, it does not strike me as a winner.

The Office of Compliance and a Mysterious Rule VIII Notice

In case you forgot, Rule VIII is the House rule that governs when a judicial or administrative subpoena is served on a member, officer or employee for documents or testimony relating to the official functions of the House.  The rule requires that notice be given to the House, through the Speaker, whenever such a subpoena is properly served. Under paragraph 3 of the rule, the subpoena recipient is required to make three determinations regarding the subpoena: (1) whether it is a proper exercise of jurisdiction; (2) whether it seeks information that is material and relevant; and (3) whether it is consistent with the rights and privileges of the House. These determinations are also supposed to be provided to the Speaker and spread upon the Congressional Record.

Sometime this spring a subpoena from the Office of Compliance was served upon the “House Office of Payroll and Benefits” in the Chief Administrative Officer’s office. The OOC is the entity established to administer and enforce the employment laws as they apply to Congress under the Congressional Accountability Act. OOC administrative proceedings are confidential so there is no publicly available information as to the case that precipitated this subpoena. Nor is there any publicly available information as to what documents were sought by the subpoena.

Although Rule VIII provides that the Speaker “shall generally describe the records or information sought” when informing the House of a subpoena, this provision is routinely ignored. Instead, when a subpoena is initially received, it is forwarded to the House Counsel’s office, which provides written notice to the Speaker, the Minority Leader and the Parliamentarian. When the subpoena was addressed to a House officer, the notice (known as a “3 amigos,” don’t ask me why) will attach a copy of the subpoena. Thus, while the bipartisan House leadership will be informed of the nature of the documents requested, the House at large is not.

We can surmise that the subpoena in question stemmed from an administrative proceeding brought against a House employing office under the CAA. Such proceedings are fairly rare. According to the most recent OOC report, for example, there were a total of 14 requests for administrative hearings in FY 2012. That total includes complaints filed against both House and Senate employing offices, as well as congressional support agencies like the Capitol Police and the Architect of the Capitol. There are probably only a handful of administrative complaints filed each year against a House employing office.

Continue reading “The Office of Compliance and a Mysterious Rule VIII Notice”

A Point of Order Final Exam

Consider the following facts:

Jeffrey Sterling served as a CIA officer from 1993 to January 31, 2002. During that time, he became acquainted with a clandestine operational program that was designed to disrupt the nuclear development activities of Iran. According to a book later written by James Risen, this program involved a “botched attempt under the Clinton administration to sabotage Iran’s nuclear program by giving flawed blueprints for key components to a Russian nuclear scientist who had defected. The idea was that the Russian scientist, who was covertly working for the CIA, would feed the flawed designs to the Iranians. But according to the book, the CIA’s efforts went awry when the scientist got nervous and instead tipped off the Iranians to the flaws in the designs.”

The operation, codenamed “Merlin,” was sort of like a nuclear “Fast and Furious.”

Following his less than amicable separation from the CIA in 2002, Sterling approached the Senate Select Committee on Intelligence (SSCI) with information about Operation Merlin in March 2003. He met with SSCI staffers Don Stone and Vicki Divoll and told them that the program had not only been a failure, but may have assisted the Iranians in advancing their nuclear program.

Continue reading “A Point of Order Final Exam”

More on the Clemens Subpoena

As promised in my last post, I want to follow up on the Speech or Debate argument made by COGR in support of its motion to quash the Clemens subpoena.

At first blush, there would not seem to be much to discuss.  There is little question that the type of oversight and investigative committee records sought by Clemens are generally protected by Speech or Debate.  This is black-letter law, particularly in the D.C. Circuit.

Yet COGR devotes considerable effort to demonstrating that Speech or Debate applies.  It focuses particularly on persuading the court that the committee’s investigation of steroid use in baseball fell “well within the scope of the Committee’s legitimate legislative functions.”  Indeed, it says, “this is not even remotely a close question.”

In its enthusiasm to make this point, COGR goes a bit far.  For example, it asserts that the steroid investigation was “integral to Congress’ power to legislate on a number of subjects, including, but not limited to, public health, education, crime and interstate commerce. (emphasis added).  My copy of Article I gives Congress power to regulate commerce among the several states, but says nothing about public health, education or crime.

Be that as it may, the standard of judicial review here is extremely forgiving.  So long as the inquiry is within the committee’s jurisdiction and involves matters on which legislation may be had, the court should not second guess the committee’s investigative choices.  The baseball steroid investigation would seem to satisfy this standard.

Of course, many people would dispute that the actual motive of this investigation was to obtain information for legislative purposes.  Some people (less charitable than myself) may suggest that it was designed more for glorified infotainment, if not outright grandstanding.  Fortunately for COGR, however, the courts have forsworn inquiry into actual congressional motives.

Moreover, if the court were to find that the steroid investigation was improper or beyond COGR’s authority, the remedy in all likelihood would not be to enforce the subpoena.  Instead, it seems that the court would have to dismiss the case altogether since the charges (perjury, false statements and obstruction) all depend on the existence of a proper congressional investigation.

There is, however, a distinct but related issue regarding the investigation.  This is the question of whether any of Clemens’s (alleged) false statements to COGR was material to the investigation.  Materiality in turn depends on the purpose of the investigation and the relationship between Clemens’s answers and any potential legislation.

Here there would seem to be a serious question as to the materiality of Clemens’s statements.  COGR did not call Clemens as a witness until several years after its initial hearing on steroid use, after pertinent legislation had been drafted and introduced, and after former Senator George Mitchell had issued a comprehensive report on steroid use in baseball.  One might well ask how the accuracy of the Mitchell report with respect to Clemens’s personal steroid use was “material” to any proper subject of legislative inquiry.

COGR may hope that if the court believes there is “not even remotely a close question” with regard to the legitimacy of the committee’s investigation, it will be less inclined to inquire into materiality.  But while it is up to the court to determine the legitimacy of the investigation, materiality is a question of fact for the jury.  Clemens may argue that he needs internal committee documents in order to challenge the materiality of the statements made to COGR.  This should not affect the Speech or Debate analysis, but, as suggested in my last post, it bears on whether the documents are needed to ensure that Clemens receives a fair trial.