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.

Roger Clemens, Congressional Privilege, and the Right to a Fair Trial

The House Committee on Oversight and Government Reform (COGR) has moved to quash the Clemens subpoena on the grounds that the investigative documents sought are protected by Speech or Debate.  I will discuss COGR’s substantive Speech or Debate argument in a future post; for now I want to focus on the relationship between the Speech or Debate privilege and a criminal defendant’s right to a fair trial.

When it asked the Justice Department to investigate Clemens for lying to Congress, COGR produced a number of relevant documents.  COGR asserts that it “strove to provide the Department with all relevant factual information, regardless of which way that information might cut.”  However, it also acknowledges that it generally has not provided “internal Committee notes, memoranda, and communications.”

COGR goes on to argue that “[i]n light of [the] nature and the substantial volume of documents that the Committee has already produced, and the fact that all those documents are in the hands of Mr. Clemens’s attorneys, Mr. Clemens will not be disadvantaged by the quashing of his subpoena duces tecum to the Committee.”  However, “even if the Court were to conclude otherwise, it would not matter” because the Speech or Debate Clause “‘was designed neither to assure fair trials nor to avoid coercion.'” (quoting US v. Helstoski, 442 US at 491).  In other words, the congressional privilege trumps the right to a fair trial.

Because the protections of Speech or Debate are absolute, COGR is correct that the privilege cannot be overcome by a showing that the evidence is needed to assure a fair trial.  It does not follow, however, that a criminal defendant’s right to a fair trial must give way to the privilege.  Instead, if a congressional committee refuses to produce evidence that a court believes may be needed to assure the defendant a fair trial, the court may ask the committee for an opportunity to review the material in camera.  If the court cannot assure itself that the defense has access to all material evidence, it may dismiss the relevant counts.

This conclusion is consistent with the approach followed by other courts that have addressed this issue.  In U.S. v. Ehrlichman, 389 F. Supp. 95 (DDC 1974), Judge Gesell acknowledged that congressional transcripts sought by defendant G. Gordon Liddy were protected by Speech or Debate; nonetheless, the judge asked the House to “produce the subpoenaed testimony for in camera inspection by the Court on the assurance that only those questions and answers, if any, which prove significant and material to the defense would be disclosed.”

In the court-martial of Lieutenant Calley, the military judge requested that the House produce certain evidence requested by the defense.  The House failed to do so.  A federal district judge subsequently granted Calley’s habeas petition on the grounds that the House’s failure to release the requested information violated Calley’s due process rights.  In Calley v. Calloway, 519 F.2d 184 (5th Cir. 1975), the Fifth Circuit, sitting en banc, reversed.  The majority found that the information withheld was not so highly significant or material so as to rise to the level of a constitutional violation.  Five judges (including Judge Clark) dissented, finding that the House’s refusal to provide the information amounted to a denial of due process to the defendant.  Both the majority and dissenters appeared to agree that a withholding of information by Congress could, under proper circumstances, constitute a violation of due process.

The Clemens case, it must be said, would provide particularly strong circumstances for finding a due process violation.  Here the House of Representatives (or a committee thereof) is both the victim and the complaining witness against Clemens.  The case against Clemens presumably could not proceed unless COGR cooperated and provided access to materials otherwise protected by Speech or Debate.  It seems unthinkable that COGR could select which evidence will be available for the trier of fact to consider.

It very well may be that COGR has already produced all of the evidence material to Clemens’s case.  But a federal court need not (and I suspect will not) simply rely on COGR’s assurances to that effect.

House Subpoena Notices

As we have previously discussed, House Rule VIII requires that upon being properly served with a subpoena relating to the official functions of the House, a member, officer or employee shall “promptly notify the Speaker of its receipt in writing” and “[s]uch notification shall promptly be laid before the House by the Speaker.”  On February 10, 2011, attorneys for Roger Clemens served the House Committee on Oversight and Government Reform (COGR) with a subpoena for documents.  The parties have agreed that COGR will have until March 18 to respond to or move to quash the subpoena.

As far as I can tell, the only Rule VIII notice this year from COGR was given on March 3.  The notice informs the House that COGR “has been served with a subpoena for documents issued by the United States District Court for the District of Columbia in a civil case now pending before that Court.”  The notice further states that COGR will consult with the House General Counsel and make the determinations required by Rule VIII.  This suggests that the subpoena raises some substantial legal issue (otherwise the notice would simply state that compliance was consistent with Rule VIII).

Does this notice refer to the Clemens subpoena?  One would tend to think so, except that Clemens’s case, while pending in the United States District Court for the District of Columbia, is a criminal, not a civil, case.  Perhaps this was just a typographical error.  Or possibly the notice refers to another subpoena (in which case there has been no notice filed for the Clemens subpoena).

One might expect the mystery to be cleared up by March 18.  By that time COGR will have to make the determinations required by Rule VIII regarding the Clemens subpoena.  According to clause 5 of Rule VIII, “[t]he Speaker shall inform the House of [the determinations required by the rule],” and, in so doing, “shall generally describe the records or information sought.”  Thus, there should be an additional notice that will clarify the nature of the subpoena in question.

In actual House practice, however, the notification required by clause 5 is seldom, if ever, made.  In all likelihood there will be no further notice to the House regarding the subpoena, what documents were sought, what determinations were made, or anything else that might allow the House to make a judgment regarding the propriety of the response.  The Speaker and the Bipartisan Legal Advisory Group will have this information, but no one else will.  While this practice offers the advantage of protecting the confidentiality of sensitive legal proceedings, it is rather far from the transparency promised by the language of Rule VIII.

Incidentally, in searching for the notice for the Clemens subpoena, I came across this notice from yesterday’s Congressional Record.  The Archivist of the House notifies the Speaker of receipt of a civil subpoena for documents “issued before the Evidentiary Panel for the State Bar of Texas.”  The Archivist states that “compliance with the subpoena is inconsistent with the precedents and privileges of the House.” It would be interesting to know what this subpoena involved and why compliance was inconsistent with House precedents and privileges.  But under House practice there is no way to know this.

Clemens Plays Hard(in) Ball with Congress

I know what you’re thinking.  How long did it take me to come up with that title?  (Couple hours, tops).

Anyway, as has been widely reported, Roger Clemens and his attorney, Rusty Hardin, have subpoenaed the House Committee on Oversight and Government Reform (COGR) in relation to the upcoming criminal case against Clemens for congressional perjury, false statements and obstruction.  The subpoena seeks not only records relating directly to Clemens’s own statements to COGR, but documents relating to 20 other named individuals (including Chuck Knoblauch, Jose Canseco and Andy Pettitte) involved in COGR’s investigation of steroids in professional baseball.

So what happens now?  Under House Rule VIII, COGR is required to notify the Speaker of the subpoena.  This notification will be placed in the Congressional Record. COGR is further required to determine whether the subpoena represents “a proper exercise of jurisdiction by the court,” seeks information that is “material and relevant,” and “is consistent with the privileges and rights of the House.”  If these determinations are made in the affirmative, COGR is required to comply with the subpoena (absent an order from the House to the contrary).

In this case it seems highly likely that the materials sought by the subpoena, consisting of information compiled in the course of a committee investigation, are protected by the Speech or Debate Clause.  Indeed, Hardin should be well aware of this fact.  He represented Arthur Andersen in its criminal trial, during which the company subpoenaed records from the House Committee on Energy and Commerce, which successfully moved to quash the subpoena on Speech or Debate grounds.

Clemens, however, is in a somewhat different situation.  He is being prosecuted for crimes committed before Congress, and it would be impossible to prosecute him without putting on evidence relating directly to legislative proceedings.  Moreover, COGR referred him to the Justice Department for prosecution, so one might argue that this waived the privilege, at least for evidence directly bearing on the issues in the case.  Alternatively (and more likely), COGR would remain free to assert the Speech or Debate privilege, but Clemens could seek to have the charges dismissed on the grounds that COGR’s refusal to provide critical evidence violated his due process rights.

For this reason I think that there is a good chance that COGR may conclude that producing some of the records requested by the subpoena is “consistent with the rights and privileges of the House.”  After all, the House wants congressional perjury to be punished.  It is less likely, however, that COGR would agree to produce records having only a tangential relevance to the case against Clemens.

Legislative Privilege and the Courts in America

At the time that the Constitution was ratified, it was unclear to what extent the Congress would enjoy the inherent privileges of the British Parliament.  Writing around 1800, Thomas Jefferson noted the arguments for and against recognizing congressional privileges beyond those explicitly conferred by the Constitution (such as the Speech or Debate privilege).  In favor of such recognition, it was argued “that all public functionaries are essentially invested with the powers of self-preservation; that they have an inherent right to do all acts necessary to keep themselves in a condition to discharge the trusts confided to them; that whenever authorities are given, the means of carrying them into execution are given by necessary implication; that thus we see the British Parliament exercise the right of punishing contempts; all the State Legislatures exercise the same power, and every court does the same.” 

On the other side, it was argued “that Congress have no such natural or necessary power, nor any powers but such as are given them by the Constitution; that that has given them, directly, exemption from personal arrest, exemption from question elsewhere for what is said in their House, and power over their own members and proceedings; for these no further law is necessary, the Constitution being the law.”  For any other protections Congress might deem necessary, however, it would have to enact a new law in the manner provided for by the Constitution.  In the interim, Congress would not be unprotected as “the ordinary magistrates and courts of law [were] open and competent to punish all unjustifiable disturbances or defamations.”

As this latter argument suggests, the idea that the legislature might have to rely on the courts for protection or assistance was more acceptable in the United States than it traditionally had been in Britain (see post of April 8).  For example, in 1798 the Congress enacted a law permitting a person who wished to contest a congressional election to make application to any federal, state or local court for assistance in obtaining evidence.  Under this statute, the judge or magistrate was required to issue his warrant or summons to witnesses designated by the applicant, question the summoned witnesses, and then transmit the transcription of the witness’s testimony to the Clerk of the House.  Thus, the law gave the courts a direct role in obtaining evidence for the House to use in fulfilling its constitutional responsibilities in judging elections.

               The question of whether the House and Senate could exercise inherent but unenumerated privileges was settled by the Supreme Court in Anderson v. Dunn, 19 U.S. 204 (1821), in which the Court held that the House could exercise its contempt power to punish a private citizen who attempted to bribe a Member.  Echoing the pro-privilege position articulated by Jefferson, the Court stated that failure to recognize the House’s inherent power to punish for contempt would result in “the total annihilation of the power of the House of Representatives to guard itself from contempts, and leave[] it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument from which it is derived.”           

The Anderson Cout noted, however, that the House’s power to punish was not unlimited; thus, it could not imprison a contumacious individual beyond the time of legislative adjournment.  The Court acknowledged that the exercise of legislative privilege entailed a risk of the “caprice which has sometimes disgraced deliberative assemblies, when under the influence of strong passions or wicked leaders” but observed that “American legislative bodies have never possessed, or pretended to the omnipotence which constitutes the leading feature in the legislative assembly of Great Britain, and which may have led occasionally to the exercise of caprice, under the specious appearance of merited resentment.”  

In Kilbourn v. Thompson, 103 U.S. 168 (1881), the House exercised its inherent contempt powers to arrest and imprison a witness who refused to respond to questions posed by a committee investigating a real estate financing partnership that had gone bankrupt.  The witness brought a false imprisonment suit against the Sergeant at Arms of the House, as well as several members.  The Supreme Court rejected the argument that Congress enjoyed the same powers to judge its own privileges as the British Parliament, holding instead that the House’s claim of legislative privilege could be reviewed by the courts.  (It concluded that the House had exceeded its authority because the investigation in question was beyond its jurisdiction). Although much of Kilbourn’s reasoning (which reads much like Jefferson’s anti-privilege argument) has been overruled by later cases, its holding that the courts may review the exercise of the contempt power by Congress remains the law, and has not been seriously challenged since. 

Anderson, Kilbourn and later cases establish that the House and Senate may exercise the inherent power to punish for contempt, including contempt by witnesses who refuse to testify or provide information demanded by either body, but that this power is subject to judicial review.  In Britain, each House of Parliament was, at least historically, the sole judge of its own privileges, and the courts had no role to play with regard legislative contempt proceedings.  In the United States, however, the courts have the final say with regard to the scope of inherent legislative privilege and the exercise of the power to enforce such privilege may be challenged by way of an application for a writ of habeas corpus or an action for false imprisonment.   

Legislative Privilege in Britain

Legislative privilege is a concept that long pre-dates the Constitution, and was inherited from the British Parliament by the colonial legislatures, then by the state legislatures and finally by the Congress.  As Jefferson wrote in opening the discussion of privilege in his Manual of Parliamentary Practice (a work he prepared for his own guidance as President of the Senate from 1797 to 1801): “The privileges of members of Parliament, from small and obscure beginnings, have been advancing for centuries with a firm and never yielding pace.”                


          In Britain, questions of parliamentary privilege were considered separate and apart from the common law.Although breaches of parliamentary privilege were initially punished by application to the King, by the sixteenth century the Houses of Parliament themselves began punishing contempt.By the seventeenth century, Parliament had rejected the notion that the common law courts had any proper role with regard to matters of parliamentary privilege.For example, in 1604 a committee of the House of Commons declared the House to be a court with regard to issues of parliamentary privilege and opined that the common law courts cannot “bring any prejudice to this High Court of Parliament, whose power being above the law, is not founded on the Common Law, but have their Rights and Privileges peculiar to themselves.”Similarly, one of the grievances set forth by Parliament in the preamble to the 1689 English Bill of Rights was that of “prosecutions in the court of Kings bench, for matters and causes cognizable only in parliament.”

         When the courts attempted to interfere in matters of parliamentary privilege, the Houses of Parliament would typically respond with a forceful—in a literal sense—defense of their prerogatives.As described in J.Chafetz, Democracy’s Privileged Few, not only would the Houses imprison litigants who attempted to seek judicial redress with regard to matters the Houses considered to involve parliamentary privilege, they would imprison officials carrying out court orders and, on occasion, even the judges themselves.With regard to the House of Commons, Chafetz explains that the theory of legislative privilege “denied that the courts (whose judges were royally appointed and whose highest court of appeals was the entire body of the House of Lords) could have any say as to the content, or even the extent, of the House’s privileges; [and] it allowed the House to use its punitive powers to attack anyone who threatened its power and prestige. . . .”Democracy’s Privileged Few 237.

         It is difficult to translate this recognition of a nearly unlimited right of Parliament to define its own privileges into a limitation on the legislature’s ability to seek judicial relief or assistance if it is so inclined.Certainly the purpose of the doctrine was to protect Parliament from the courts and other outsiders, not to protect the courts from Parliament.

         Nor was there any relationship between the doctrine of legislative privilege and the concreteness of the injury that was suffered.Chafetz describes, for example, how Parliament maintained that legislative privilege prohibited the courts from punishing several Members who assaulted the Speaker of the House of Commons on the floor in 1629.Democracy’s Privileged Few73-74.Needless to say, the assault produced a concrete, not an abstract, injury, but this was not thought to have any bearing on the application of legislative privilege.

          Nevertheless, it remains the case that questions of legislative privilege were, by the late eighteenth century, viewed as beyond the province of the British courts. But, as I will discuss in a future post, this broad separation between legislative privilege and the courts, which might be described as a kind of political question doctrine on steroids, was never transplanted to American soil.