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?”

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.

Continue reading “More on Fast and Furious”

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.

Continue reading “The Holder Contempt- A Procedural Primer”

More Legal Misinformation About Congress

If there were an award for cramming the most amount of legal misinformation into the shortest segment, Friday’s edition of “Nightly Scoreboard” would surely earn a nomination. The subject was a potential congressional subpoena for White House emails concerning Solyndra, and the discussion took place between host David Asman and former federal prosecutor Annmarie McAvoy.

The premise of the piece was that a congressional subpoena for presidential emails would be “unprecedented” and would raise novel issues of executive privilege and separation of powers. McAvoy explained that “[t]here are certain communications that are not available to the Congress.” The following colloquy ensued:

 McAvoy: The argument will be made that the President has to be able to have full and free and open communications with those who are advising him, be those his senior staffers or be those other people in the industries that he is looking at who can come to him and openly talk to him and that he can communicate with them without having to worry about those communications going over to Congress.

 Asman: But have those statutes even been written- about emails- because this is new territory we’re in?

 McAvoy: It is and it raises a very interesting question because what happens is as we have new technologies essentially the law has to eventually catch up with the technology and it hasn’t as of yet. So they’ll be looking at your basic laws relating—and cases relating—to executive privilege in trying to figure out where this would fit in but there really isn’t a statute that directly applies to emails because it didn’t exist beforehand and none of the presidents before Obama had ever used email.

  Continue reading “More Legal Misinformation About Congress”

The Strange Case of Scott Bloch

Scott Bloch, the former head of the Office of Special Counsel, the office charged with protecting government whistleblowers against retaliation, wasn’t very popular with the employees in his former office, and they went to Congress to complain. Among other things, they accused him of retaliating against those who voiced concerns about his policies. You get the irony.

Anyway, by and by this attracted the attention of congressional investigators, who requested a transcribed interview with Bloch. During the interview, they asked Bloch about an incident where he had used an outside service, Geeks on Call, to perform something called a “seven level wipe” on certain computers at the Office of Special Counsel, including his own. The suspicion was that he wanted to remove evidence that would substantiate some of the allegations against him.

According to a later information filed against him, Bloch, “having been requested by the House Oversight Committee to provide information upon a matter of pertinent inquiry before the Committee, unlawfully and willfully did make default by refusing and failing to state fully and completely the nature and extent of his instructions that Geeks on Call perform ‘seven level wipes’ on [the computers in question].”

Bloch entered into a plea agreement, in which he agreed to plead guilty to a single misdemeanor count of contempt of Congress, 2 U.S.C. § 192. Under the plea agreement, the prosecution would not oppose “a sentence at the low end of the applicable Guidelines range,” which the agreement calculates as “0 to 6 months.” In other words, the prosecutors promised that they would not object to Bloch’s position that he should serve no jail time (although the actual sentence would be up to the court).

After Bloch pled guilty, however, the U.S. Probation Office prepared a presentence report that noted the minimum sentence for contempt of Congress is one month in jail. This did not require any lengthy legal research; the statute provides on its face that the offense is punishable by “imprisonment in a common jail for not less than one month nor more than twelve months.”

Nevertheless, both Bloch’s lawyers and the prosecution objected. They pointed out that the last two prosecutions for contempt of Congress had resulted in sentences of probation. In the most recent case, United States v. Miguel Tejada, 09-mj-077, the defendant, who pled guilty just a year before Bloch, was given probation and the Probation Office did not raise any objection.

The magistrate judge did not buy it. Not only did she conclude that the statute was clear on its face in requiring a one month minimum sentence, but she refused to allow Bloch to withdraw his guilty plea. She was clearly irked by the joint position of the prosecution and defense that Bloch should be allowed to negotiate a new plea deal in which he would plead guilty to a different offense (presumably one that would permit no jail time). Responding to this suggestion, she stated “[c]onfidence in the fair and orderly administration of justice is undermined by the suggestion that the court should participate in a process by which a sentence is first determined by Defendant and the government, and then an offense expected to guarantee such sentence is alleged.”

Maybe so, but it seems to have escaped notice that Bloch could not have committed the offense to which he pled guilty. The contempt of Congress statute provides that “[e]very person who having been summoned as a witness . . . to give testimony . . .  upon any matter under inquiry before . . .  any committee of either House of Congress, willfully makes default, or who having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor. . . .”

Bloch was not “summoned as a witness.” He was asked to provide a voluntary interview. He did not appear before a committee. He met with congressional staff. He did not “willfully make default” (ie, fail to appear). If he had refused to answer one or more questions posed by the staff, it does not seem that he would have violated the statute (and it is not apparent from the information whether he actually did refuse to answer questions). What Bloch apparently did was to fail to provide accurate or complete answers to questions regarding the computer incident. This may have violated the False Statements Act, but it is hard to see how it constituted contempt of Congress.

This is not the first time that the contempt of Congress statute has been used to convert the felony of lying to or obstructing Congress into a misdemeanor charge. Nor has it been a secret. In 1988, when Robert McFarlane pled guilty to contempt of Congress, the New York Times pointed out that what McFarlane did was not actually contempt of Congress, but lying to Congress. Nevertheless, it noted that prosecutors used the “euphemism” of equating lying to Congress with a refusal to answer questions as a means of reducing the charge from felony to misdemeanor. This technique was also used in the plea bargains of Richard Kleindienst and Richard Helms.

Furthermore, even if Bloch had committed the offense to which he pled guilty, the court would not have had jurisdiction to convict him. The D.C. Circuit has held that a conviction for contempt of Congress is invalid unless the contempt has first been properly certified by the House or Senate (or, during adjournment, by the Speaker or President of the Senate) to the U.S. Attorney under 2 U.S.C. § 194.  Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966). (Indeed, the reason that there is a minimum sentence for contempt is undoubtedly to ensure that the U.S. Attorney is sufficiently vigorous in acting on such a congressional certification). No such certification was made here.

In short, it appears that Bloch pled guilty to a crime that he didn’t commit in order to get a sentence to which he was not entitled from a court that was not empowered to pronounce one. Chief Judge Lamberth has now reversed the magistrate judge, finding that Bloch should have been allowed to withdraw his guilty plea. Judge Lamberth seems to have accepted the view that contempt requires a minimum one month sentence, however. Thus, it will be harder for this provision to be used as the basis for plea bargains in the future.

Rove Seeks Legal Advice of Noted Constitutional Scholar

             The House Judiciary Committee has subpoenaed Karl Rove to appear and testify at a hearing on Monday, February 2.  Rove’s attorney has responded by forwarding the subpoena to the Obama White House and asking, in essence, whether President Obama agrees that Rove should continue to abide by former President Bush’s instruction not to appear.  Obama Press Secretary Robert Gibbs says that the matter has been turned over to the White House Counsel for consideration. 

            Some have asked why Rove should be entitled to an advisory opinion from the Obama Administration on whether he must comply with a congressional subpoena.  After all, the ordinary witness does not have that option, but must choose between complying with a congressional subpoena or facing a possible criminal prosecution for contempt. 

            Rove, however, is not in the position of an ordinary witness.  The former president has directed him not to appear before Congress based on an asserted absolute immunity.  This immunity has been claimed by the Office of Legal Counsel not only in the Bush 43 Administration, but in the Clinton and previous administrations.  Moreover, there is a case currently pending before the D.C. Circuit (Miers v. House Judiciary Committee)  in which the court may rule on the existence of the immunity.  Up to this point, the Justice Department has argued in favor of the immunity in Miers, and the Obama Administration will have to decide whether to change this position.  

            Given this state of affairs, the Obama Administration has several possible responses.  First, it could tell Rove that it does not recognize the existence of the immunity.  In that case, Rove could choose to ignore this advice and refuse to testify anyway, taking the risk that he might ultimately be prosecuted for contempt of Congress.  More likely, Rove will tell former President Bush that he intends to appear unless Bush brings a legal action to vindicate the claimed immunity.  Otherwise, Rove would appear on Monday and invoke executive privilege on a question-by-question basis.  

            Second, the Obama Administration could tell Rove that it has not yet decided on what position it intends to take in the Miers case and that the matter is under review by the Department of Justice.  In addition, or in the alternative, it might tell Rove that to the extent the immunity is controlled by the current president, Obama declines to assert it.  Such a response would give Rove somewhat more cover to refuse to appear before the House Judiciary Committee.  Rove could argue to the committee that the question of whether the immunity exists is an unresolved legal question and that the committee should either bring a declaratory judgment action against him (as it did for Miers and Bolten) or should await the outcome of the case pending in the D.C. Circuit. 

            Third, the Obama Administration could tell Rove that the immunity belongs to the current president, not the former president, and inform him that Obama waives it.  I think this response is less likely than the first two.  If one accepts for sake of argument that the immunity exists in the first place (IMHO, a very dubious proposition), it would not make much sense to allow the current president to waive the immunity for aides of former presidents.  The whole idea of the immunity is that a presidential aide acts as the “alter ego” of the president for whom he or she works.  Allowing a different president to control the assertion of the immunity would be like allowing the assertion of Speech or Debate privilege for a congressional aide to be controlled by the successor to the congressman whom the aide served. 

            Finally, the Obama Administration could tell Rove that he should abide by the instructions of the former president, at least for the time being.  In that case Rove is off the hook for the moment. 

            Of course, the Obama Administration might not respond at all.  In that case, Rove and his attorney will probably construe the non-response as meaning that the current administration adheres to the previously expressed views of the Justice Department, and decline to appear on that basis.     

             My bet would be on some variant of the second response.  But we shall see.

DC Circuit Grants Stay in Miers Case


            The D.C. Circuit has at last ruled on the stay motion in the Miers case.  In a brief per curium opinion, the court grants the motion to stay and denies the motion for an expedited briefing schedule. 

The court first holds that there is appellate jurisdiction, noting that the declaratory judgment that Miers must testify is the “functional equivalent” of an injunction, and thus appealable, because the court presumes that executive officials (or, in Miers’s case, former executive officials) will act in accordance with the court’s declaration.   

            The rest of the opinion is very peculiar because it makes no reference to the four factors that the court is required to consider in ruling on a stay.  There is in fact no explicit discussion of any kind regarding the merits of the stay application.  Instead the court first notes that this is a “case of potentially great significance for the balance of power between the Legislative and Executive Branches.”  It then explains that “the Committee recognizes that, even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch—including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court—before the 110th Congress ends on January 3, 2009.”  Accordingly, it concludes that there is no reason to expedite the case. 

            Somewhere, though, the court seems to have missed the step of explaining why the stay should be granted.  The question of expediting the case only becomes relevant if one assumes that the case is stayed.  One gets the impression that there may have been some additional discussion that was deleted at the last moment. 

Judge Tatel’s concurring opinion does discuss the stay issue. He suggests that an appellant who will suffer irreparable injury need only make a “modest” showing of probable success on the merits. He then indicates that issues before the court satisfy this standard, “[e]xcept for the executive’s assertion of absolute immunity from congressional process.”

Of course, that is a very big exception, seeing as how absolute immunity is the main issue in the case. (Presumably, the other issues Judge Tatel refers to are the threshold jurisdictional issues raised by the Executive). Moreover, while Judge Tatel apparently accepts that the Executive would suffer “irreparable injury” if a stay were not granted, he does not explain why that would be the case. The Executive’s argument with regard to irreparable injury was simply that Judge Bates’s order “negates” Miers’s asserted absolute immunity by requiring Miers to appear and testify before the Committee. But how could Judge Tatel find that to be irreparable injury if the absolute immunity is meritless?

The real point of Judge Tatel’s concurrence, though, was to state that he was “perplexed” by the majority’s willingness to grant a stay without definitively rejecting the possibility that “the expiration of the 110th Congress would moot the case before it is heard on the merits.” “Never before have we granted a stay that would have the effect of irrevocably depriving a party of its victory in the district court.” Nonetheless, because Judge Tatel believes that the case would not be moot (and therefore that a stay will not greatly harm the Committee), he concurred in the court’s judgment.

The one thing that seems clear from both the majority and concurring opinions is that the panel hopes that a new President and new Congress will find a way to resolve this dispute without the need for further judicial intervention. I think that the court would have been better served if it had simply expressed this view directly, rather than reaching the result through dubious (or entirely absent) legal reasoning.