Must Congress Allow Agency Counsel to Attend Depositions?

Last week I wrote a piece for Just Security regarding the State Department’s refusal to produce certain officials for depositions requested by several House  committees (relating, of course, to the Ukraine affair). Among other things, I addressed the question of whether Congress is required to allow government counsel to attend depositions of the current or former officials of their department or agency. OLC (surprise!) says the answer is yes. In my view, the correct answer is no.

Anyway, I thought it would be helpful to collect the materials in one place. Here is the link to the piece. And here are the relevant House rules and regulations.

Just Security Piece on Enforcement of Congressional Subpoenas

As I have mentioned before, I have proposed a reform to House rules that would facilitate enforcement of committee subpoenas to the executive branch. Just Security has now published this piece in which I explain the justification for the rule and how it would work using the example of the House Judiciary committee’s efforts to obtain the Mueller report and underlying documents.

Can BLAG Authorize a Subpoena Enforcement Action?

According to this CNN report, the House Ways & Means committee, which had previously requested President Trump’s tax returns pursuant to 26 U.S.C. § 6103(f), has now issued subpoenas to the Treasury Department and IRS for the same information. Although the committee believes that it can sue to enforce the statutory duty to provide information under § 6103(f), it was advised by House counsel that issuing subpoenas would bolster its case in court.

There are interesting questions about the scope of the committee’s authority under § 6103(f), which we have previously discussed, and whether the issuance of subpoenas will help or hurt the committee’s chances in court. However, what I want to highlight now is an issue that may be more consequential than these. According to CNN, the speaker is considering whether to authorize a civil action to enforce the subpoenas (and, presumably, the committee’s statutory right of access) through the Bipartisan Legal Advisory Group, rather than a vote of the House. Back in February, I raised the possibility that language added to House Rule II(8)(B) in the 114th congress could be used in this fashion.

The new language in question provides that “[u]nless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.” There are two potential problems with using this language to allow BLAG to authorize a lawsuit by the Ways & Means committee. The first is that the language does not explicitly authorize BLAG to initiate litigation on the House’s behalf. The purpose of the rule change was “to conform to current practice.” As explained in my February post, this referred to the practice of BLAG intervening in existing litigation to defend the constitutionality of statutes (in particular, the Defense of Marriage Act) the Justice Department refused to defend. There was not, and as far as I know has never been, a practice of BLAG initiating litigation.

There is a second problem with respect to litigation to enforce subpoenas. House Rule XI(2)(m)(3)(C) provides “[c]ompliance with a subpoena issued by a committee or subcommittee . . . may be enforced only as authorized or directed by the House.” This provision seems to override Rule II(8)(B), which only applies “[u]nless otherwise provided by the House.” One would have to argue, somewhat circularly, that Rule II(8)(B) allows BLAG to authorize or direct subpoena enforcement on behalf of the House, in order to prevent Rule XI(2)(m)(3)(C) from overriding Rule II(8)(B). I am somewhat skeptical that the parliamentarians would agree with this argument, but . . . (this is where I would insert the shruggie emoji if we were on Twitter).

In any event, if BLAG claims the authority to authorize subpoena enforcement actions, this could improve the efficiency of the “subpoena cannon” considerably. On the other hand, it will almost certainly lead the minority to challenge both BLAG’s interpretation of the rules and its decisions to authorize particular actions on the House floor.

“Its Weird Being in an Organization that is Less Popular than Colonoscopies and Nickelback”

So said yesterday Representative Derek Kilmer (D-WA), the chair of the Select Committee on the Modernization of Congress, a new House committee  created at the beginning of the 116th Congress by a vote of 418-12. It is a bipartisan committee with 12 members equally divided between Democrats and Republicans. Kilmer’s vice-chair is Representative Tom Graves (R-GA).

The select committee’s mission is to fix Congress so that it can be at least as popular as Nickelback and as useful as colonoscopies. More precisely, the House charged it with studying and developing “recommendations on modernizing Congress,” including recommendations on seven specific topics:

      1. rules to promote a more modern and efficient Congress:
      2. procedures, including the schedule and calendar;
      3. policies to develop the next generation of leaders;
      4. staff recruitment, diversity, retention, and compensation and benefits;
      5. administrative efficiencies, including purchasing, travel, outside services, and shared administrative staff;
      6. technology and innovation; and
      7. the work of the House Commission on Congressional Mailing Standards.

In order to formally adopt a recommendation, two-thirds of the select committee’s members must agree to it.

The select committee has a limited lifespan. It is required to issue a final report by the end of the year and will end its existence (barring further action by the House) on February 1, 2020. It is authorized to make recommendations on a rolling basis and is supposed to issue interim status reports every 90 days.

There is no shortage of ideas for the select committee to consider. LegBranch.org has created this page with an excellent compilation of  proposals and resources that will be useful for the committee and others interested in congressional reform. I have a few ideas myself (see, for example, here and here). But first the committee has to get started. As of yet, it has not held or scheduled any hearings, nor has it apparently hired any staff.

Chairman Kilmer made his remarks at a Bipartisan Policy Center event yesterday (his discussion with Michele Stockwell of BPC starts at about the 12 and a half minute mark on the video). Not a great deal of news in the discussion. I was interested to know that he wants to look at best practices from the state legislatures. He is also not a big fan of the motion to recommit, though I doubt there will be any bipartisan agreement on reforming that procedure.

But in any event, nothing can happen until the select committee gets going. Until then, colonoscopies and Nickelback will keep extending their lead.

BLAG’s Authority to Represent the House in Court

 

See Update Here

On February 11, 2019, the new General Counsel of the House, Douglas N. Letter, filed an amicus brief in U.S. Dept of Commerce v. State of New York, the case that challenges the Trump administration’s decision to add a citizenship question to the 2020 census. A federal district court ruled that the addition of the question violated the Administrative Procedure Act, and the Solicitor General sought a writ of certiorari before judgment from the Supreme Court. Letter’s brief argues that the district court’s decision is correct and urges the Court, should it decide to hear the case, to do so promptly in order to avoid disruption or delay in the census. (The Court has now agreed to hear the case on an expedited basis, with argument scheduled for late April).

I have nothing to say, at least at the moment, about the merits of this dispute, but I do have an observation about the caption of the brief, which is styled “Brief of Amicus Curiae United States House of Representatives in Support of Respondents.” This caption took me by surprise because during my time in the House General Counsel’s Office amicus briefs reflecting House institutional positions were filed in the name of the Bipartisan Legal Advisory Group (BLAG), rather than in the name of the House itself (unless the House actually voted on the matter, which rarely if ever happened).

It turns out that I had somehow overlooked a small but potentially important change to House rules which took place in 2015 at the outset of the 114th Congress. House Rule II(8), which provides the authority for the House Office of General Counsel, was amended to include the following subparagraph (b):

There is established a Bipartisan Legal Advisory Group composed of the Speaker and the majority and minority leaderships. Unless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.

Continue reading “BLAG’s Authority to Represent the House in Court”

Who is a “Constituent”?: Lessons from the Menendez Case

A significant portion of a congressional office’s resources are devoted to performing “casework,” which the Congressional Research Service defines as “the response or services that Members of Congress provide to constituents who request assistance.” While this seems like a noncontroversial definition, it raises two more difficult questions: (1) who are the “constituents” for whom a Member of Congress may perform casework; and (2) when, if ever, is it appropriate for Members to perform casework for non-constituents. The House and Senate answer these questions somewhat differently. See CRS Report for Congress, Casework in a Congressional Office: Background, Rules, Laws, and Resources 3-4 n.13 (Jan. 3, 2017).

The House Ethics Manual notes that “[a]s a general matter . . .  a Member should not devote official resources to casework for individuals who live outside the district.” This admonition is based partly on the statute authorizing funding of the Members’ Representational Allowance, which provides that the MRA “’is to support the conduct of the official and representational duties of a Member of the House of Representatives with respect to the district from which the Member is elected.’” House Ethics Manual at 310 (quoting 2 U.S.C. §57b, now codified at 2 U.S.C. §5341(a)) (emphasis added by House Manual). The House Manual thus provides both a definition of “constituent” (one residing in the Member’s district) and an admonition against performing casework for non-constituents. See also Dennis F. Thompson, Ethics in Congress 91-92 (1995) (noting that the House Manual’s “sensible discussion” of casework is not explicitly endorsed in House or committee rules).

To be sure, the House guidance does not categorically prohibit providing assistance to non-constituents. The House Manual notes that there are circumstances in which it might be appropriate to do so, such as where “working for non-constituents on matters that are similar to those facing constituents may enable the Member better to serve his or her district.” House Ethics Manual at 310. Members may also vary on how they interpret this guidance. For example, the website of Representative Sean Duffy states flatly that “Members of Congress are prevented from assisting constituents residing outside their Congressional District.” Others may take a more nuanced view. Members are advised, however, that there is at least a strong presumption against performing casework for non-constituents.

In contrast, the Senate’s guidance on this issue is less clear. Senate Rule 43(2) provides that senators and staff may provide certain assistance with matters pending before government agencies “at the request of a petitioner.” The Senate Ethics Manual notes that “petitioners . . . may or may not be constituents,” but it does not elaborate on this observation or explain if or when it is appropriate for senators to provide assistance to non-constituents. See Senate Ethics Manual at 178. The Senate Manual discusses Rule 43 in the course of a chapter on “Constituent Service,” and its discussion largely assumes that senators will be providing assistance to constituents. Id. at 177-86. Nonetheless, CRS suggests the Senate guidance provides greater leeway to assist “nonconstituents who might seek congressional intervention in administrative proceedings [such as] foreign-born individuals seeking to emigrate to the United States, or a family or other interested party who live outside a Member’s constituency on behalf of a resident constituent.”

During the course of Senator Robert Menendez’s bribery trial, the prosecution argued that Menendez’s assistance to Dr. Melgen, a personal friend who resided in Florida, was improper or irregular because Melgen was not a constituent of the New Jersey senator. The court directed the parties to brief the meaning of “constituent” for purposes of instructing the jury.

Prosecutors filed a brief response stating that “Senator Menendez’s constituents are the New Jerseyans that he was elected to represent in the United States Senate.” Menendez’s lawyers, however, argued that there was not a single definition of “constituent.” They acknowledged “Dr. Melgen was a citizen of Florida, not New Jersey, and [therefore] was not Senator Melendez’s electoral constituent.” (emphasis in original). They contended, however, that Menendez’s “constituents” were not limited to electoral constituents.

According to Menendez’s legal team, “no law, custom, or congressional precedent supports the prosecution’s suggestion that a legislator cannot advocate on behalf of someone outside the legislator’s electoral constituency.” Moreover, “as advances in technology, travel, and communication (particularly the Internet) have created greater interconnectedness throughout the citizenry, political constituencies based on ideology, cultural ties, and other criteria—as well as these constituencies’ financial support—have outstripped the geographic boundaries of any given State or District.” Thus, it is increasingly common, they suggest, for legislators to represent “political constituencies” and not merely electoral ones.

In particular, “[r]acial and ethnic constituencies have . . . long played a key role in nationalized, non-electoral constituencies.” Thus, because Senator Menendez is “one of the only Senators of Latino heritage,” he regularly “advocates for Latinos across the country on a range of issues from immigration reform to discrimination.” He also “has felt a special obligation to help Hispanic-Americans—no matter where they live.” (This obligation apparently extended to helping Dr. Melgen, a Hispanic-American, with respect to his personal and business interests, such as intervening on his behalf when a federal agency found the doctor had overbilled Medicare by $8.9 million.)

Finally, Menendez’s lawyers contended that “Senate Rules do not support the view that a Senator’s duties are confined to electoral constituencies.” Pointing to Rule 43’s broad reference to “petitioners,” they note that nothing in the rule “defines ‘constituent’ or restricts a Senator’s duties to geographic constituents.”

For purposes of the criminal trial, the defense’s ultimate point was that the meaning of “constituent” only mattered to the extent it was relevant to the senator’s state of mind, and therefore it was a question of fact for the jury to decide whether Menendez believed he was assisting a constituent (as opposed to providing favors in exchange for the personal gifts and campaign contributions he had received from Melgen). Thus, it really did not matter whether Menendez’s understanding of Senate rules on constituent service was accurate so long as it was what he believed.

However, Menendez’s conduct was subsequently considered by the Senate Ethics Committee, which issued this letter of admonition to the senator on April 26, 2018. Somewhat surprisingly, though, the committee did not criticize Menendez’s understanding of constituent service. Instead, it stated:

[T]he Committee understands that you are committed to assisting constituents. Indeed, the Committee has long recognized that “[r]esponding to inquiries of petitioners and assisting them before executive or independent government officials and agencies” is an “appropriate exercise of the representational function of each Member of Congress, as well as an important function of congressional oversight.” Your assistance to Dr. Melgen, however, went well beyond Senate norms. You took action, over the course of several years, on behalf of one specific individual who repeatedly gave you many valuable gifts and who was also among your closest friends, which included direct contact with officials at the highest levels of government.

Letter of Admonition at 3 (citation omitted). This passage does not make any reference to the fact that Melgen did not reside in New Jersey. Arguably, therefore, it implicitly suggests that the committee accepted Senator Menendez’s theory of “political constituencies,” including the idea that a senator may appropriately choose to provide assistance to out-of-state individuals based on race or ethnicity (even with respect to issues unrelated to either).  If this is an accurate interpretation of the Senate Ethics Committee’s position, it suggests that the gulf between House and Senate “norms” on this question has grown even wider.

 

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?”

Some Concluding Thoughts on House Delegates

Our review of the House’s treatment of delegates shows (1) the House has traditionally seen the line between debating and voting as the demarcation of appropriate delegate participation; (2) the proper role of delegates has also been described as merely advisory in nature; (3) participation in select and later standing committees has been viewed as falling within the proper debating/advisory function of delegates; (4) since 1970 the House has also permitted delegates to vote on committees and this practice no longer appears to be controversial; and (5) with respect to the constitutional limits of delegate participation, the House has never articulated or recognized a distinction between delegates and other non-members.

The issue of delegate voting in the Committee of the Whole remains a flashpoint of constitutional controversy. The House first permitted such voting in 1993 at the start of the 103d Congress, when the Democrats were in the majority, and has allowed it in subsequent congresses when the Democrats were in control. The Republicans, on the other hand, maintain that such voting is unconstitutional, and it has not been permitted during periods when they were in control.

As the Michel v. Anderson litigation made apparent, the constitutional disagreement between the two parties is actually quite narrow. Because the House Democrats recognized the new rule “came perilously close” to “granting delegates a vote in the House,” they provided for a revote in situations where the delegates would otherwise determine the outcome, and the House Counsel in Michel argued that the revote made the rule “only symbolic.” 14 F.3d at 632. In other words, because the delegates could not influence the outcome directly, their votes were merely advisory.

The Michel litigants vigorously disputed whether the new rule actually gave the delegates some influence over legislative outcomes greater than what they had before. But this was the wrong issue to focus on. Nothing in the Constitution prohibits either house from giving non-members significant influence over the shaping of legislation, and in some cases congressional rules give non-members (e.g., the president in fast track legislation) greater influence than that enjoyed by any individual member.

The real question in Michel should have been whether the Constitution prohibits giving a formal, even if meaningless, vote to non-members in the Committee of the Whole. All parties and the court seemed to agree that the Constitution bars giving any non-member, including delegates, a formal vote in the House itself, even if that vote were purely symbolic. And they also agreed that no non-member other than delegates could be given such a symbolic vote even in the Committee of the Whole.

The notion that there is some unwritten constitutional principle that embodies these distinctions seems faintly ridiculous, and, as we have discussed, the D.C. Circuit offered no real justification for them. So while there is no definitive answer to the question of whether the Constitution prohibits giving delegates a vote in the Committee of the Whole (subject to a revote), we can say with confidence the following: (1) such a vote is contrary to House precedent prior to 1993, including the 1794 precedent that sheds direct light on the intent of the Framers; (2) given the fact that the Committee of the Whole includes all members of the House and is largely indistinguishable from the House itself in its operation, a delegate vote involves different and more significant constitutional concerns than such a vote in a standing committee; and (3) any principled resolution of the issue would have to apply to any non-member, so that allowing delegates to vote in Committee of the Whole would open the door to a rule allowing mayors to vote as well.

In light of these conclusions, one has to wonder whether this game is worth the candle. Is it worth rending the constitutional fabric to give the delegates a symbolic vote that, at the end of the day, does nothing to benefit their constituents? Surely the House could find a way to increase the influence of delegates on issues of importance to DC and the territories without raising this type of constitutional doubt. Although Judge Greene’s claim that delegates traded their right to vote on committees for other concessions in 1871 appears apocryphal, it’s not a bad suggestion for how the House should proceed today.

Delegate Norton’s idea of taking a fresh look at this controversy would be a good start. The House should do so.

The D.C. Circuit and the “Would-be Congressmen”

Delegate Norton cites the D.C. Circuit’s decision in Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994), for the proposition that delegates may be authorized to vote in the Committee of the Whole, but a close examination of this decision reveals it to be poorly reasoned and internally incoherent.

The court advances the following propositions: (1) delegates may serve and vote on House standing committees; (2) non-members other than delegates may not serve or vote on House standing committees; (3) it would likely be unconstitutional to give delegates a true vote in the Committee of the Whole; (4) because the revote provision in House rules makes the delegate vote in the Committee of the Whole largely symbolic, it is not unconstitutional; (5) nevertheless, giving even such a symbolic vote in the Committee of the Whole to non-members other than delegates would violate the Constitution; and (6) giving a symbolic vote in the House itself to anyone, including delegates, would violate the Constitution.

As Professor Currie notes, these propositions are supported by little more than fiat.

Continue reading “The D.C. Circuit and the “Would-be Congressmen””