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.

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Is the U.S. Attorney Required to Present the Lois Lerner Contempt to the Grand Jury?

The House has now voted to hold Lois Lerner in contempt for her refusal to testify before the House Committee on Oversight and Government Reform. According to the process established by 2 U.S.C. § 194, the Speaker must now certify the statement of facts reflecting the contempt to the U.S. Attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

The House has consistently viewed this language as requiring the U.S. Attorney to present the contempt matter to the grand jury. (By “the House,” I mean the House leadership, majority and institutional counsel at any particular time. I would not be surprised if particular members have taken different positions when they were not in the majority.). See, for example, this 2008 letter from then-Speaker Pelosi regarding the contempt citations for Josh Bolten and Harriet Miers, explaining that “[u]nder section 194, [the U.S. Attorney] is now required ‘to bring the matter before the grand jury for its action.’” (emphasis added)

The ordinary meaning of “duty” supports the House’s position. Any dictionary will tell you that “duty” refers to an obligation, not an option. See, e.g., Black’s Law Dictionary (5th ed. 1979) (“A human action which is exactly comformable to the laws which require us to obey them. Legal or moral obligation. Obligatory conduct or service. Moral obligation to perform.”). Moreover, it seems highly unlikely that Congress used this term loosely or inadvertently. There can be little doubt that Congress wanted to ensure that its contempt citations were actually presented to the grand jury.

Nevertheless, the executive branch has declined to read section 194 as imposing a mandatory obligation. In this 1984 OLC opinion, then-Assistant Attorney General Ted Olson explained that while the language of the statute “might suggest a mandatory obligation,” the statute must be read in light of the common law doctrine of prosecutorial discretion and separation of powers considerations that preclude Congress from directing that a particular individual be prosecuted. Based on these factors, he concluded “that the United States Attorney and the Attorney General, to whom the United States Attorney is responsible, retain their discretion not to refer a contempt of Congress citation to a grand jury.”

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House Counsel on the Lerner Contempt

The House Counsel has issued this memorandum addressing the argument that Lois Lerner cannot be held in contempt because the Committee on Government Oversight and Reform failed to follow the proper procedures in overruling her objections. The memo provides additional factual detail regarding the committee’s actions and communications with Lerner and her counsel. House Counsel states that “the factual record overwhelmingly supports the conclusion that Ms. Lerner would ‘ha[ve] no cause to complain’ if she were to be indicted and prosecuted under 2 U.S.C. § 192 because she was ‘not forced to guess the [C]ommittee’s ruling’ on her Fifth Amendment claim.” Memorandum at 12. Thus, “we think it highly unlikely a district court would dismiss a section 192 indictment of Ms. Lerner on the ground that she was insufficiently apprised that the Committee demanded her answers to its questions, notwithstanding her Fifth Amendment objection.” Id. at 15.

House Counsel also points out that there is no reason at all to believe that the alleged infirmities in the committee’s procedures would have any bearing on a civil enforcement action. Id. at 18-19.

Can Lois Lerner Skate on a Technicality?

Updated: Mort Rosenberg’s response follows

On a snowy day, what could be better than snuggling up with some 1950s Supreme Court cases and getting deep into the technicalities of congressional contempt procedure? If your answer is “just about anything,” you would not have enjoyed John Filamor’s going-away party.

As it happens, I had a reason for doing this. My friend and congressional legal expert extraordinaire Mort Rosenberg, with some assistance from former House Counsel Stan Brand, wrote this memo last week to Elijah Cummings, ranking member of the House Committee on Oversight and Government Reform (COGR). The memo concludes, based on Supreme Court precedent, that Lois Lerner cannot be held in contempt for her refusal to answer questions at a recent COGR hearing, explaining that “at no stage in this proceeding did the witness receive the clear rejections of her constitutional objections and direct demand for answers nor was it made unequivocally certain that her failure to respond would result in a criminal contempt prosecution.”

For the reasons set forth below, I don’t think the Supreme Court cases relied on by Rosenberg and Brand support their conclusion. It is unlikely, in my opinion, that Lerner could escape criminal conviction on the grounds set forth in their memo. Moreover, as far as I can tell there is no basis for the suggestion that Lerner would be able to successfully defend a civil suit on this basis.

Perhaps more importantly, I do not think it appropriate for Representative Cummings to endorse this position. Lerner has skilled defense counsel who is more than capable of deciding whether it is in her interest to raise this hyper-technical defense should she be charged with criminal contempt. There are legitimate institutional reasons why Cummings might object to holding Lerner in contempt, but this is not one of them.

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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.

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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.

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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.

 

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.

The Holder Contempt- Civil Enforcement Edition

The House is scheduled to vote today on holding the Attorney General in contempt for his failure to comply with congressional subpoenas seeking documents in the Fast and Furious investigation. Since my last post on this subject, the House leadership has decided in addition to voting on the resolution to certify the contempt to the U.S. Attorney, the House will vote on H. Res. 706, which would authorize the Chairman of the Committee on Oversight and Governmental Reform to initiate judicial proceedings “to seek declaratory judgments affirming the duty of Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, to comply with any subpoena [covered by the contempt resolution].”

H.Res. 706 provides COGR an alternative mechanism to attempt to enforce the subpoena. Assuming that the U.S Attorney refuses to present the contempt certification to the grand jury, COGR can file suit in federal court seeking a declaratory judgment that Holder is required to produce some or all of the documents covered by the subpoenas.

Indeed, the U.S. Attorney may look on the availability of the civil enforcement mechanism as a ground for refusing to present the matter to a grand jury, at least until there is a resolution of the civil enforcement case. He may contend that a civil suit is the most appropriate means for resolving disputes between the executive and legislative branches regarding the applicability of executive privilege. This would be consistent with the position taken by the Department of Justice during the Reagan Administration.

However, during the Bush 43 Administration, the Department took a different position. It not only flatly refused to present a congressional contempt case against White House officials to the grand jury, but it also raised numerous jurisdictional objections to the House’s attempt to have the privilege issues resolved in a civil declaratory judgment action. Instead, the Department suggested that the only way the House could enforce a subpoena against an executive branch official would be to send the Sergeant-at-Arms to arrest him or her. Fortunately, Judge Bates did not find this to be a compelling argument.

So the question is- which Department of Justice will show up this time? Will it acknowledge the jurisdiction of the federal courts to resolve a declaratory judgment action regarding executive privilege? If so, a civil enforcement suit may be a relatively attractive and expeditious way of settling the dispute here. But if the Department intends to raise standing, subject-matter jurisdiction and political question issues (and the like), the House may be better off demanding that the U.S. Attorney comply with his statutory duty to present the matter to the grand jury.

Of course, if all else fails, there is always the nuclear option of sending the Sergeant-at-Arms to arrest the Attorney General. Professor Chafetz notwithstanding, however, I think this should be a really last resort.

David Laufman has more here.

The Holder Contempt- A Procedural Primer

As you may have heard, President Obama has asserted executive privilege with regard to Department of Justice documents sought by the House Committee on Oversight and Government Reform as part of its investigation of the “Fast and Furious” program, and COGR has voted to hold Attorney General Holder in contempt for failing to produce them. Rather than delving into the merits (on that subject see commentary by Todd Gaziano at Heritage’s The Foundry, John Hinderaker at PowerLine and Andrew Rudalevige at the Monkey Cage), I will lay out the procedural posture of the case in this post.

The Statutory Contempt Process

There are several ways that Congress can attempt to compel the production of information, but it appears that the House will follow the ordinary procedure, which may be referred to as criminal or statutory contempt, Understanding this process begins with a federal statute, 2 U.S.C. § 192, that states “[e]very person who having been summoned . . .  to produce papers upon any matter under inquiry before . . . any committee of either House of Congress, willfully makes default . . . shall be deemed guilty of a misdemeanor . . . .”

This provision in turn must be read in conjunction with another section, 2 U.S.C. § 194, which provides:

Whenever a witness summoned as mentioned in section 192 of this title fails . . . to produce any books, papers, records, or documents, as required . . . and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.

A person relying on a literal reading of these provisions could be led seriously astray. In the first place, although nothing in the language of these sections indicates that certification by the presiding officer is a necessary prerequisite to prosecution under section 192, legislative, judicial and executive precedent clearly establishes that this is the case.

In the second place, although section 194 literally seems to require certification whenever “the fact of such failure or failures” is reported to the House or Senate, this is not the case. Before certification takes place, the House or Senate, as the case may be, must vote to hold the witness in contempt. Only then does it become the “duty” of the presiding officer to certify the contempt.

Even more perplexingly, if the House (for example) is not in session, and the “statement of fact” is presented to the Speaker, it is not the automatic duty of the Speaker to certify the contempt, although this is what section 194 seems to say. Instead, the D.C. Circuit held in Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966), that the Speaker cannot automatically certify the contempt, but must exercise some sort of discretionary review akin to that which the House would exercise if it were in session.

Finally, although the statute seems clear that the United States attorney to whom a certification is made must bring it before the grand jury for its action, this is also controversial. The executive branch has maintained that the statute cannot be interpreted to interfere with its prosecutorial discretion or with its authority to assert executive privilege. Specifically, in the one case in history where the House voted, and the Speaker certified, contempt against an executive branch official who withheld documents from a congressional committee on grounds of executive privilege, the Office of Legal Counsel opined that the United States Attorney for the District of Columbia was not required to refer the matter to the grand jury (or to initiate a prosecution). See 8 O.L.C. 101 (May 30, 1984). Although OLC’s reasoning would seem to apply to any case where an executive official asserted executive privilege at the President’s direction, it declined to announce a general rule, limiting its opinion to the specific facts of that case.

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