Category: Contempt of Congress

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An Urgent Need to Combat Executive Privilege after COGR v. Lynch

In the Federalist Society Review, Chris Armstrong, the Deputy Chief Oversight Counsel for Chairman Hatch at the Senate Finance Committee, has written an article entitled “A Costly Victory for Congress: Executive Privilege after Committee on Oversight and Government Reform v. Lynch.” (Actually, he wrote this in June, but I am a little behind on everything, as you may have noticed).

Although the House committee mostly “won” this case at the district court level because Judge Amy Berman Jackson ordered DOJ to turn over many of the Fast and Furious related documents the committee was seeking, Armstrong points out the the court’s reasoning actually “lay[s] out a vision of an expansive deliberative process privilege that—if it stands—may diminish Congress’s powers to investigate the Executive Branch.” Specifically, by allowing the assertion of a constitutional privilege against Congress for any records that would reveal aspects of the executive branch’s deliberations with respect to policies or decisions it makes, the court opened the door to a privilege that “can be invoked against producing nearly any record the President chooses.”

Armstrong is right to be concerned about the implications of the district court’s ruling. As I pointed out earlier this year, Congress can expect that agencies will seize upon Judge Jackson’s opinion to resist congressional oversight. Armstrong suggests this is already happening, noting a recent “marked increase” in deliberative process claims “across agencies and to a wide range of congressional committees conducting active investigations.” He further expresses the concern that “we may be entering an era in which fewer disputes are resolved through good faith negotiation and the federal judiciary becomes the primary venue for settling these disputes,” a result that “may not bode well for Congress.”

This would indeed be an unfortunate development. However, as I wrote in my post on this topic, Congress can avoid this result by taking action to limit the types of subpoena enforcement cases that come before the judiciary. Essentially, such cases should be limited to situations where the president has not invoked executive privilege, thereby leaving the courts without any constitutional dispute to resolve (there still could be non-constitutional issues such as the committee’s jurisdiction and the relevance of the information sought).

So how should congressional committees go about enforcing their subpoenas when the president invokes executive privilege? A number of ideas have been floated, including using the appropriations process to restrict funding for agencies that refuse to comply with congressional subpoenas. The Select Committee on Benghazi, for example, recommends that “House and Senate rules should be amended to provide for mandatory reductions in appropriations to the salaries of federal officials held in contempt of Congress.” (see section IV, p. 66 of the Select Committee report). Other ideas include reinvigorating inherent contempt (in which the legislative body itself punishes the recalcitrant official), amending the criminal contempt statute to provide for appointment of a special counsel to prosecute contempt by executive officials (another recommendation of the Select Committee), and impeachment.

Whatever mechanism(s) Congress (and/or the House and Senate individually) settle on, the time to act is now. With the two leading presidential contenders not exactly known for their commitment to transparency, there can be no doubt that the next administration will see a continuation, if not an escalation, of these problems.

Neither is there any reason to wait on the outcome of the appellate process in COGR v. Lynch. The briefing schedule is rather leisurely: appellant’s brief is due October 6, appellee’s brief is due December 20, and any reply brief is not due until January 17, 2017. By the time briefing is complete, it seems likely that the case may be overtaken by events, and I would guess that the D.C. Circuit will never reach the merits of the case. In any event, Congress cannot afford to leave its institutional prerogatives in the hands of the courts.

 

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Senate Enforcement Action against Backpage CEO

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

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

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

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

 

 

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

The Court’s Decision

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

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

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

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Shkreli and the House’s Power of Inherent Contempt

Although the congressional contempt statute only applies to witnesses who fail to provide information demanded by Congress, a broader range of misbehavior is subject to Congress’s so-called inherent contempt power. This is the process by which Congress itself, just like a court, can punish witnesses and other individuals who appear before it or attend its proceedings. As the Supreme Court observed long ago, each house of Congress must have this power “to guard itself from contempts” or else be “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.” Anderson v. Dunn, 19 U.S. 204, 228 (1821). That “such an assembly should not possess the power to suppress rudeness, or repel insult is a supposition too wild to be suggested.” Id. at 229.

I mention this because it turns out that Mr. Shkreli followed up his antics before the House committee today by tweeting: “Hard to accept that these imbeciles represent the people in our government.” Interestingly, he also tweeted: “I had prior counsel produce a memo on facial expressions during congressional testimony if anyone wants to see it. Interesting precedence.”

Well, I would love to see this “precedence” (I told him as much via Twitter, but so far he has not sent me the memo). But in any event it seems clear that his facial expressions were not the result of nervousness (as his counsel claimed), but were pre-planned expressions of rudeness and insult to the committee. At the very least, there would seem to be a firm basis for the House to direct the Sergeant at Arms to take Shkreli into custody and bring him before the bar of the House to explain himself.

I realize this isn’t likely to happen, but in my view the House would be within its constitutional powers if it did.

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The U.S. Attorney’s Troubling Decision in the Lois Lerner Case

Here is a link to US Attorney Ronald Machen’s letter to Speaker Boehner declining to submit the Lois Lerner contempt to the grand jury. Machen makes three points in this letter. First, he rejects the argument that the Committee on Oversight and Government Reform failed to follow proper procedures in notifying Lerner that her Fifth Amendment privilege claim had been overruled. Instead, he agrees with the COGR majority that “Ms. Lerner was given notice that her claim of privilege had been rejected and sufficient opportunity to answer the Committee’s questions after receiving that notice,” and he points out that the three Supreme Court cases relied on by Lerner’s defense (and the COGR minority) are clearly distinguishable. This conclusion is in accord with my views. See Can Lois Lerner Skate on a Technicality?

Second, Machen contends, contrary to the COGR majority, that Lerner did not waive her Fifth Amendment privilege. He concludes because Lerner only made general assertions of innocence “lacking substantive content,” her exculpatory opening statement did not constitute a waiver of the privilege. He relies primarily on two court of appeals decisions and one D.C. district court decision, all from the 1950s and none representing controlling precedent in his jurisdiction.

Moreover, it is not clear that these cases would dictate a finding in Lerner’s favor if followed. For example, even the parenthetical Machen uses for one of the cases, Ballantyne v. United States, 237 F.2d 657 (5th Cir. 1956), suggests that it is distinguishable. Ballantyne says that “the United States Attorney could not, by thus skillfully securing from appellant a general claim of innocence, preclude him from thereafter relying upon his constitutional privilege when confronted with specific withdrawals.” But the whole point of the Lerner waiver is that no one elicited her claim of innocence, skillfully or otherwise; her opening statement was entirely voluntary. Manchen obliquely acknowledges this point, but offers little more than the bare assertion that it is “doubtful” this would be sufficient to support a waiver.

This is not to say that Machen’s conclusion on waiver is unreasonable. As I have said, this is a close legal question, and reasonable people can disagree on the outcome. The issue is whether the decision should be made by the U.S. Attorney or by a court.

This brings us to Machen’s third point. Notwithstanding the apparently clear language of the statute requiring that a congressional contempt be presented to a grand jury (see, for example, then-Speaker Pelosi’s position in the Miers case), Machen contends that the decision is within his discretion. He further maintains that under DOJ policies that it is not proper to bring the matter before a grand jury unless he is convinced that Lerner’s privilege claim is invalid. Machen’s position here conflicts with both statutory text and congressional intent, IMHO, although I am not particularly surprised that he has taken this stance.

Essentially the U.S. Attorney’s office is reserving the right to make its own independent judgment about the legitimacy of a congressional contempt citation, even if that means resolving a close legal question in a way that protects a witness in an investigation that could embarrass the administration he serves. It is another in a long line of examples demonstrating Congress’s institutional weakness in controlling the executive.

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Can a House Committee Subpoena Clinton’s Server?

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

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

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

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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.”

Continue reading “Is the U.S. Attorney Required to Present the Lois Lerner Contempt to the 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.

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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.

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