The Berman Firing, Congressional Oversight, and (Lack of) Presidential Accountability for the Exercise of the Removal Power

I don’t envy Andrew McCarthy, the National Review contributing editor who writes about legal affairs. McCarthy is a smart and experienced lawyer who clearly thinks of himself as intellectually honest. But he also seems to conceive his job as explaining the constitutional operation of our government while minimizing references to the president’s massive unfitness for office. This makes intellectual honesty challenging. It’s a bit like submitting a detailed report on the crash of a passenger jet and only causally mentioning that the pilot was a kangaroo.

A case in point is McCarthy’s take on the dismissal of Geoffrey Berman, the interim U.S. attorney for the Southern District of New York (USA-SDNY). In case you had not heard, late Friday, June 19, the Justice Department issued a press release with three announcements by Attorney General Bill Barr: (1) President Trump “intends to nominate” Jay Clayton (currently the SEC chairman) as the permanent USA-SDNY; (2) Trump “has appointed” Craig Carpenito (currently the interim U.S. attorney for the District of New Jersey) to be the “acting” USA-SDNY effective July 3; and (3) Berman would “stepping down” from his position as the interim USA-SDNY.

Berman responded immediately by denying that he was stepping down and implying that he needed to stay on to protect the integrity of the SDNY’s investigations (which include politically sensitive investigations that could implicate the president’s personal or political interests). The next day, June 20, Barr wrote to Berman advising him that “[b]ecause you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so.”

Noticeably absent from Barr’s letter was any claim that the president had asked for Berman’s resignation or had been involved at all prior to that day. Also unmentioned was any reference to the president’s alleged “appointment” of Carpenito that DOJ had announced the day before. Instead, Barr stated that by “operation of law” Berman’s deputy, Audrey Strauss, would become acting USA-SDNY, noting that “I anticipate that she will serve in that capacity until a permanent successor is in place.” The assurance regarding Strauss’s tenure was reportedly given as a concession for Berman to agree to leave quietly.

To add to the chaos, when asked about Berman’s departure, Trump told the press that he was “not involved.” The White House later “clarified” this statement to acknowledge that Trump had “signed off” on Barr’s recommendation that Berman be terminated. Whether this sign off occurred only after Berman refused to leave is unclear. There has been no other official or unofficial indication that Trump was involved in either Berman’s departure or the botched attempt to appoint Carpenito.

In two columns (June 20 and June 23), McCarthy defends the Trump administration against critics who conceive Berman’s firing to be part of an effort by the president and the attorney general to obstruct justice by derailing particular investigations that threaten Trump in some way. About this he is probably right, but he glosses over the incompetence, dysfunction and lack of accountability that have been so typical of this administration’s “personnel” actions. Continue reading “The Berman Firing, Congressional Oversight, and (Lack of) Presidential Accountability for the Exercise of the Removal Power”

Will the Mazars Court Overrule McGrain? (Part Two)

As suggested in my last post, the May 12, 2020 oral argument in Trump v. Mazars USA, LLP did not go well for the House, to put it mildly. Most of the tough questions for the House Counsel clustered around a single idea: what is the limiting principle that prevents Congress from prying into whatever it wants, whenever it wants? Before getting to that, however, let’s consider an even more fundamental issue raised by Justice Thomas.

Justice Thomas began his questioning of House Counsel Doug Letter by essentially asking what the constitutional basis is for recognizing the power to issue legislative subpoenas at all. Tr. 54-55. Letter responded by pointing to the long line of Supreme Court cases (which began with McGrain) holding that the power to conduct investigations and issue compulsory process is an inherent and integral part of the legislative power conferred by the Constitution.

Justice Thomas did not appear entirely satisfied with this answer, and he followed up by asking “can you give me the earliest example you have of Congress issuing a legislative subpoena?” Tr. 56. Letter pointed to the House’s 1792 investigation of General St. Clair’s failed expedition. This investigation was viewed by the McGrain Court as significant historical evidence of the existence of a constitutional power to issue legislative subpoenas. As the Court explained:

This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition and authorized the committee to send for necessary persons, papers and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work, were members of the House of Representatives at the time, and all voted for the inquiry.

*           *          *

We are of opinion that the power of inquiry– with process to enforce it– is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history– the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action– and both houses have employed the power accordingly up to the present time.

McGrain v. Daugherty, 273 U.S. 135, 161, 174 (1927).

Still not satisfied, Thomas pressed further: “What’s the first example of Congress issuing a legislative subpoena to a private party for documents?” Tr. 56. Letter could not answer him directly, but referred him to the discussion of congressional investigatory history in Watkins v. United States, 354 U.S. 178 (1957).

The referenced passage in Watkins, I think, is the following:

Most of the instances of use of compulsory process by the first Congresses concerned matters affecting the qualification or integrity of their members or came about in inquiries dealing with suspected corruption or mismanagement of government officials. [Note: here the Court cites to Landis’s article]. Unlike the English practice, from the very outset, the use of contempt power by the legislature was deemed subject to judicial review.

     There was very little use of the power of compulsory process in early years to enable the Congress to obtain facts pertinent to the enactment of new statutes or the administration of existing laws. The first occasion for such an investigation arose in 1827, when the House of Representatives was considering a revision of the tariff laws. In the Senate, there was no use of a factfinding investigation in aid of legislation until 1859.

Watkins, 354 U.S. at 192-93.

This passage does not specifically answer Justice Thomas’s question, but it suggests why it may not have been exactly the right question. While courts pass on the validity of specific subpoenas, the scope of Congress’s investigatory authority is determined by reference to the investigation that is being conducted, not by the nature of an individual subpoena (e.g., whether it is directed to a private party or seeks documents).

Thus, for example, the investigation of the St. Clair expedition would be one of the inquiries involving “suspected corruption or mismanagement of government officials” referred to in Watkins, but that does not  mean the investigation lacked the power to compel the production of documents or other information from private parties. Indeed, one of the issues in the St. Clair investigation was the quality of military supplies provided by private contractors, and the committee received affidavits and other evidence from these contractors. See I Arthur M. Schlesinger, Jr. & Roger Bruns, eds., Congress Investigates: A Documented History: 1792-1974 95 (1983). Whether or not the committee actually issued compulsory process to a private party, there seems little doubt it had the authority to do so.

When was the first occasion on which a congressional committee actually issued a legislative subpoena to a private party for documents? The earliest I can verify is that in 1827 a House committee investigating John Calhoun’s prior administration of the War Department subpoenaed documents from an unsuccessful bidder on a government contract. See 3 Reg. of Debates in Cong. 1124 (Feb. 13, 1827). However, the House’s 1810 investigation of General James Wilkinson also obtained testimony and documents from a number of private individuals, at least some of which was obtained by compulsory process. I Congress Investigates at 119 & 170.

The passage quoted from Watkins does not distinguish between subpoenas directed to private parties and government officials, but it does suggest a distinction between (1) investigations of suspected government corruption or mismanagement (what would often be referred to as congressional oversight) and (2) inquiries to obtain facts relevant to enacting or amending legislation. Although both are “legislative” in nature, the Court implies that the latter requires more vigorous scrutiny to ensure that the information sought is pertinent to the investigation, particularly when the information sought would implicate the constitutional rights of private citizens.

This interpretation is consistent with the holding of Watkins, where a labor organizer summoned to testify before the House Un-American Activities Committee testified freely about his own activities and associations, but refused to answer questions about individuals whom he believed may have once been but no longer were members of the Communist Party. The Court reversed his conviction for contempt of Congress, holding that the committee violated his rights under the contempt statute and the due process clause by failing to clearly explain to him the pertinency of the questions to its investigation. It did not dispute that political opinions and associations protected by the Bill of Rights could nonetheless be a proper subject of congressional investigation, but “[p]rotected freedoms should not be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a specific legislative need.” Watkins, 354 U.S. at 198, 205.

The Court emphasized that it was not dealing with congressional oversight, noting that “[t]he public is, of course, entitled to be informed concerning the workings of its government.” Id. at 198. It explained:

     We are not concerned with the power of Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. That was the only kind of activity described by Woodrow Wilson in Congressional Government when he wrote: “The informing function of Congress should be preferred even to its legislative function.” From the earliest times in its history, Congress has assiduously performed an “informing function” of this nature. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 168-194.

Watkins, 354 U.S. at 200 n.33 (citation omitted). The Court thus distinguishes the inquiry in Watkins from the type of congressional oversight involved in McGrain.

This distinction may help point the way to an answer to the question asked by many of the justices at the May 12 argument in Mazars, i.e., what stops Congress from investigating virtually anything on the basis that it has some connection to a subject on which legislation could potentially be had. See, e.g., Tr. 52-54 (Chief Justice Roberts); 57 (Justice Ginsburg); 64 (Justice Alito); 74 (Justice Kavanaugh). Letter had some difficulty answering this question, perhaps because judicial doctrine since McGrain has in fact been extremely deferential to Congress on this score. As the district judge in Mazars pointed out, the governing legal standards are so deferential that they “do not substantially constrain Congress.”

However, the real constraint on Congress is that enforcing a subpoena is extremely cumbersome and therefore legal sanctions for contempt are virtually never imposed. This is in part because the Court in cases like Watkins has imposed technical and procedural requirements for criminal contempt to address the very issue raised in the Mazars argument. See Watkins,  354 U.S. at 204 (expressing concern that the committee “can radiate outward infinitely to any topic thought to be related in some way” to its mandate, that “[r]emoteness of subject can be aggravated by a probe for a depth of detail even farther removed from any basis of legislative action,” and further that “investigators [can] turn their attention to the past to collect minutiae on remote topics, on the hypothesis that the past may reflect upon the present”).

As a consequence, any witness who wishes to contest a congressional subpoena has far more leverage than the formal legal standards would imply. In addition, witnesses have the right to assert privileges, including the privilege against self-incrimination. Congress also has political incentives which further constrain its exercise of the subpoena power. Thus, the hypotheticals advanced by the justices are, for the most part, very unlikely to occur. See, e.g., Tr. 85-86 (Justice Alito) (suggesting the possibility that one house of Congress might subpoena personal records relating to a member of the other house).

Of course, some of these safeguards are inoperative in the Mazars case because it presents the fairly rare scenario of Congress seeking non-privileged records from third parties with no interest in contesting the subpoenas. Whether this  creates a significant potential of congressional abuse is debatable. After all, if Congress were to attempt to exercise this authority in an excessive or abusive manner, banks and other third party record keepers would have an incentive to contest subpoenas to protect the interests of their clients. (This is why the Court would have been wise to consider this blog’s suggestion that only the third parties themselves should have standing to contest the validity of the subpoenas).

Nonetheless, there are undoubtedly instances where Congress investigates particular factual questions which seem tenuously related to a legislative need. It is difficult to see, for example, why Congress would need to know whether a particular baseball player used steroids in order to legislate on the general subject. One could reasonably argue that if Congress is merely seeking information as a case study of a particular social, economic or national security problem, it ought to explain not only how the information is pertinent to potential legislation but why there is a legislative need to explore one specific example out of many. This should be more than adequate to protect against some of the other hypotheticals raised in the May 12 argument, such as the idea that Congress could subpoena an individual’s medical records on the ground it was considering healthcare legislation. See Tr. 65 (Justice Sotomayor).

On the other hand, there is no need for Congress to provide any additional justification for conducting oversight of government agencies and officials. As explained in McGrain and Watkins (and detailed in Professor Landis’s article, among other places), Congress has conducted searching probes into the conduct of government officials and operations since its earliest days. Such investigations are inherently justified by the need to inform itself and the public as to the working of the federal government and to uncover corruption, maladministration and inefficiency of every kind.

This distinction is reflected in Justice Kagan’s suggestion that there may be reasons for treating differently the three congressional subpoenas involved in the consolidated Mazars and Deustche Bank cases. See Tr. 88. Although all three seek similar types of information (financial records relating to President Trump’s private business interests), there are significant differences in the nature of the investigation to which each subpoena relates. The investigation by the Financial Services committee seeks the information simply to use it as a case study of a much more general problem (money laundering) in the financial sector. By contrast, the subpoena from the Intelligence committee is for the purpose of determining whether the president has financial ties to Russia or other foreign actors that might create a conflict of interest or give such actors leverage over his official decision making. The latter falls squarely within the province of congressional oversight while the former constitutes a pure case study investigation that may require additional justification.

The subpoena from the House Oversight committee falls somewhere in the middle. It is defended in part on the ground that it will assist the committee in determining whether to recommend changes to disclosure laws applying to federal officials generally. This is arguably closer to a case study approach, although it seems self-evident why the committee would focus on the highest-ranking federal official, particularly when it has gathered substantial evidence that he has been less than truthful in his private financial disclosures. In addition, the subpoena can be justified on the pure oversight grounds of determining whether the president has financial conflicts of interest or is in violation of the Foreign Emoluments Clause.

The line suggested by Justice Kagan would allow the Court to uphold at least one and likely two of the congressional subpoenas, while sending the other(s) back for further proceedings. It seems to me this would be a reasonable compromise that would satisfy the concerns expressed by the justices (with the possible exception of Justice Thomas) without fundamentally disturbing the legal standards established by McGrain and applied in subsequent cases.

Unlike Kagan (and several of her colleagues), however, I would be loathe to establish a special protection applicable only to the president. Historically the Court’s concerns about over broad congressional investigations focus on protecting the affairs of private citizens from arbitrary scrutiny. Even Judge Cochran, who would have applied these principles to an inquiry into the conduct of (then former) Attorney General Daugherty, claimed only that these principles applied as much to federal officials as to private citizens, not that the former were entitled to additional protection. (To date only Judge Rao, in her Mazars dissent in the D.C. Circuit, has advanced the remarkable proposition that impeachable officials enjoy an immunity from legislative investigation that is unavailable to private citizens). If the Court believes that changes are needed to the doctrine governing congressional case study investigations to avoid arbitrary intrusions into private affairs, such should apply to all citizens, not just the one who happens to sit in the Oval Office.

Whatever the Court ends up deciding in Mazars, let us hope they emulate the McGrain Court in one way but not another: the first by achieving unanimity or something close to it; and the second by not taking more than two years to issue a decision.

Will the Mazars Court Overrule McGrain? (Part One)

Nearly a century ago the Supreme Court decided the landmark case of McGrain v. Daugherty, 273 U.S. 135, 174 (1927), in which the Court declared that “the power of inquiry– with process to enforce it– is an essential and appropriate auxiliary to the legislative function.” In so holding, the Court dispelled doubts raised by Kilbourn v. Thompson, 103 U.S. 168 (1880), where, as we discussed here, the Court had expressed skepticism whether Congress could issue compulsory process outside the context of its judicial functions (such as impeachment and disciplining its members). McGrain settled this issue in Congress’s favor and, along with subsequent cases, established such a deferential judicial stance toward the validity of congressional investigations  that no congressional investigation since has been held to exceed Congress’s legislative powers. After listening to the oral argument in Trump v. Mazars USA, LLP, however, one has to wonder whether this will soon change.

The McGrain case arose from a Senate resolution calling for a broad investigation into the activities of Attorney General Harry Daugherty (our old friend) and his associates at the Department of Justice, including, but by no means limited to, Daugherty’s failure to pursue legal actions against individuals linked to the Teapot Dome scandal. Suspicions regarding Daugherty’s negligence or favoritism with regard to Teapot Dome, however, were the least of the attorney general’s troubles. Senate hearings in March 1924 featured blockbuster testimony from witnesses who claimed Daugherty and his associates had received large amounts of illicit cash which were deposited in a small Ohio bank run by Daugherty’s brother, Mally (“Mal”) Daugherty. The hearings led to Attorney General Daugherty’s forced resignation on March 28, 1924 and to a subsequent testimonial subpoena requiring Mal to appear before the Senate committee investigating his brother. When Mal refused to appear, the Senate ordered him taken into custody, and he immediately petitioned for a writ of habeas corpus in the federal district court for the Southern District of Ohio. (Fun fact: the judge who initially received the habeas petition was Smith Hickenlooper grandfather of the former Colorado governor and presidential candidate).

At this point matters stood at something of a crossroads. With Daugherty’s resignation, the major figures in the scandals of the Harding administration were out of office, and the new Coolidge administration (President Harding having passed away in 1923) was eager to disassociate itself from them. On the other hand, many Republicans argued that the congressional investigations into these scandals were political and excessive, and members of the bar warned that such investigations threatened civil liberties. Chief Justice Taft and Senator George Pepper, a well regarded Republican lawyer, were among the luminaries expressing skepticism about the investigations. See J. Leonard Bates, The Teapot Dome Scandal and the Election of 1924, 60 Am. Hist. Rev. 303, 317 (Jan. 1955).

While Mal Daugherty’s case was pending in the district court, a Harvard law professor named Felix Frankfurter wrote an article in the New Republic entitled “Hands off the Investigations,” which was reprinted in the Congressional Record on the day it was published. See 65 Cong. Rec. 9080-82 (May 21, 1924) (introduced by Senator Ashurst). Professor Frankfurter “came out squarely for the unlimited power of congressional investigations.” Louis B. Boudin, Congressional and Agency Investigations: Their Uses and Abuses, 35 Va. L. Rev. 143, 146 (Feb. 1949).

Frankfurter proclaimed “[i]t is safe to say that never in the history of this country have congressional investigations had to contend with such powerful odds, never have they so quickly revealed wrongdoing, incompetence, and low public standards on such a wide scale, and never have such investigations resulted so effectively in compelling correction through the dismissal of derelict officials.” 65 Cong. Rec. 9081. He sniggered at the suggestion that the Daugherty hearings were unfair because the witnesses who  testified were disreputable (sound familiar?), noting “[i]t is the essence of the whole Daugherty affair that the Attorney General of the United States was involved in questionable association with disreputable characters.” He also rejected the notion that congressional investigations should be subject to rules of evidence or other technical limitations applicable in court, asserting that “[t]he procedure of congressional investigation should remain as it is.” 65 Cong. Rec. 9082.

Just ten days later (May 31, 1924), Mal Daugherty’s habeas petition was granted by US District Judge Cochran (to whom the case for some reason had been reassigned). The court found that the Senate investigation of the (now former) attorney general was beyond the Senate’s constitutional power. See Ex Parte Daugherty, 299 Fed. 620 (S.D. Ohio 1924). Following the reasoning of Kilbourn, Judge Cochran expressed “very serious doubt” whether the Senate had the power to issue compulsory process in any legislative investigation, but he found it unnecessary to rest his decision on that ground. Instead, he reasoned that the Senate was not conducting a proper legislative investigation, but rather it was making an improper attempt to put Harry Daugherty on trial. See id. at __ (“What the Senate is engaged in is not investigating the Attorney General’s office; it is investigating the former Attorney General.”). This was a judicial function that could only be performed by a court or by the House of Representatives pursuant to its impeachment power. The court explained:

[T]he Senate has no power to impeach any Federal officer at the bar of public opinion, no matter what possible good may come of it. It is not within its province to harass, annoy, put in fear, render unfit, or possibly drive from office any such officer, high or low, by instituting such impeachment proceedings against him. The power to impeach under the Federal Constitution resides solely in the House of Representatives, and it has power to impeach solely at the bar of the Senate.

Id. at __.

Judge Cochran’s analysis in many respects mirrors that of Judge Rao in her Mazars dissent in the D.C. Circuit. Indeed, Judge Rao makes a point of identifying her position with that of Judge Cochran. See Trump v. Mazars USA LLP, No. 19-5142, slip op. at 49-50 n. 16 (D.C. Cir. Oct. 11, 2019). She claims that the Supreme Court did not disagree with the district judge on legal principle, but “simply disagreed with the district court’s characterization of the proceedings, which were not about the wrongdoing of the Attorney General but the administration of the Department of Justice as a whole.” Id. This betrays a lack of familiarity with the McGrain case since Mal Daugherty had no connection to the Department of Justice other than his knowledge of his brother’s wrongdoing.

In any event, Judge Cochran’s decision was music to the ears of Harry Daugherty’s defenders and critics of the congressional investigations. One can easily imagine that the Coolidge administration was tempted to endorse the decision (which would have undermined future congressional oversight) or at least to decline to get involved on the Senate’s side. Instead, however, Harlan F. Stone, Daugherty’s successor as attorney general, undertook to represent the Senate on appeal to the Supreme Court, thereby putting both political branches squarely on the side of congressional investigatory authority. Conveniently, though, briefing and oral argument did not take place until after the presidential election of 1924. (Stone’s opening brief was filed six days after the election).

Meanwhile, Frankfurter’s camp was preparing legal scholarship to support the Senate. In December 1924, as the McGrain case was being argued, the Harvard Law Review published a student note critical of Judge Cochran’s decision. See Note, The Power of Congress to Subpoena Witnesses for Non-Judicial Investigations, 38 Harv. L. Rev. 234 (Dec. 1924). Among other things, the note took issue with Cochran’s conclusion that the impeachment power implicitly limited the Senate’s power to conduct legislative investigations of executive wrongdoing. See id. at 238 (“Impeachment is a ponderous method of rectifying gross misconduct and consequently has been seldom employed.  By limiting the exercise of this extraordinary remedy, the Constitution could not have intended to restrict more common powers of investigation shown by experience to be necessary to the practical exercise of a federal power.”).

Although the note is unsigned, there is little doubt it reflects Frankfurter’s influence. The articles editor was Thomas G. Corcoran, a Frankfurter protege who would go on to clerk for Justice Oliver Wendell Holmes at Frankfurter’s recommendation during the 1926-27 term. (Another fun fact: Corcoran in later life became a lobbyist who notoriously once “lobbied” the Supreme Court on behalf of a client. See Bob Woodward & Scott Armstrong, The Brethren 79-86 (1979)).

A more significant piece of scholarship came from Professor Landis, Frankfurter’s Harvard colleague and frequent co-author. See James M. Landis, Constitutional Limitations on the Congressional Power of Investigations, 40 Harv. L. Rev. 153 (Dec. 1926). Landis argued that the meaning of the legislative power conveyed by the Constitution could only be understood in light of historical experience; he then marshaled British and colonial history to demonstrate that “[a] legislative committee of inquiry vested with power to summon witnesses and compel the production of records and papers is an institution rivaling most legislative institutions in the antiquity of its origin.” Id. at 159. When combined with the unbroken practice of legislative investigations since the adoption of the Constitution, he concluded that “[t]he Daugherty inquiry of 1924 is thus a direct descendant of a more ancient lineage, ancient enough, when constitutional history begins for the United States in 1789, to demand recognition as a convention entitled to constitutional standing.” Id. at 193-94.

Many years later, during the conference in Watkins v. United States, 354 U.S. 178 (1957), then Justice Frankfurter remarked that “Landis’s article on investigations turned the trick in the Daugherty case in this Court and led it to uphold the powers of Congress.” The Supreme Court in Conference (1940-1985) 299 (Del Dickinson, ed. 2001). Whether this is exactly true or not (see below), Landis’s article seems to have had a powerful effect on legal thinking about the subject of congressional investigations by “completely demolish[ing]” the historical and logical foundations of Kilbourn‘s cramped reading of the legislative power of inquiry. Boudin, 35 Va. L. Rev. at 147; see also id. at 165-66.

Several factors thus converged to support the Senate’s position before the Supreme Court in McGrain. Politically, there was little motivation for anyone to defend the conduct of the Harding administration, particularly after President Coolidge won reelection in 1924. The fact that both the executive and legislative branches agreed on a common legal position likely weighed heavily in the Senate’s favor. The intellectual firepower of Harvard law school surely did not hurt either.

Nonetheless, it appears that the outcome in McGrain was, like Waterloo, a damn close run thing. Although it was argued in December 1924, it was not decided until January 1927. (Another strike against Professor Jonathan Turley’s theory that the courts will resolve such issues quickly). This in itself suggests more internal dissension than betrayed by the ultimate unanimous decision (Harlan Stone, who was appointed to the Court during the intervening period, did not for obvious reasons participate). Cf. McGrain, 273 U.S. at 154 (“We have given the case earnest and prolonged consideration because the principal questions involved are of unusual importance and delicacy.”).

According to this March 1927 letter to Frankfurter from John Gorham Palfrey, a longtime aide to Justice Holmes, in an earlier vote on the case Justices Holmes and Brandeis were “standing out against the whole bunch,” apparently meaning that the other justices would have affirmed the district court. Although Palfrey indicated that Holmes had read “Jim’s article” and that Brandeis had distributed it to other justices including Justice Van Devanter, who was assigned the opinion, he did not believe that was the real reason for the majority switch. Instead, “Van Devanter, who has been away behind on his opinions, go around to writing the opinion for the majority a couple months ago– and found he couldn’t do it to reach the majority result.”

Whatever the true reason, Van Devanter ultimately produced a strong and unanimous opinion in support of a broad congressional investigatory authority, one that has driven a largely deferential judicial attitude toward congressional investigations ever since.

Until now. We will turn to that in our next post.

Questions about OLC’s Role in Responding to House Subpoenas in the Impeachment Inquiry

On Monday I am participating in a Transparency Caucus program entitled “Shedding Light on the DOJ’s Office of Legal Counsel Opinions.” (It will take place at 2pm in Longworth; email Hannah.Mansbach@mail.house.gov if you would like to attend). In that connection, I want to raise an issue regarding OLC’s role in the administration’s decision not to cooperate with the House’s Ukraine investigation and the president’s defense with regard to the second article of impeachment (obstruction of Congress) which resulted from that decision.

The president’s trial brief in the Senate impeachment trial attached an OLC memorandum on “House’s Committees’ Authority to Investigate for Impeachment.” This memorandum, dated January 19, 2020, purported to memorialize oral advice previously given to the White House counsel regarding whether House committees “could compel the production of documents in furtherance of an asserted impeachment inquiry.” OLC Memorandum of 1-19-20 at 2. OLC “advised that the committees lacked such authority because, at the time the subpoenas were issued, the House had not adopted any resolution authorizing the committees to conduct an impeachment inquiry.” Id.

The OLC memorandum is a little fuzzy, however, as to when this advice was given. It is clear that the request for advice came sometime after the issuance of a series of subpoenas issued by House committees in late September and early October 2019. See OLC Memorandum of 1-19-20 at 2 (“Upon the issuance of these subpoenas, you asked whether these committees could compel the production of documents and testimony in furtherance of an asserted impeachment inquiry”): id. at 8  (“Following service of these subpoenas, you and other officials within the Executive Branch requested our advice . . .). The earliest of the subpoenas specifically referenced was on September 27 (to the Secretary of State), the second was on October 4 (to the Acting White House Chief of Staff), and the latest was October 10 (to the Secretary of Energy). See OLC Memorandum of 1-19-20 at 1-2.

The most plausible reading of the OLC memorandum is that the request for advice was made on or after October 10 or, at the earliest, on or after October 4, when the second subpoena was issued. Of course, it is possible that the memorandum refers inaccurately to “subpoenas” when the request was actually made after the issuance of the first subpoena on September 27. This seems unlikely, however, because OLC was undoubtedly aware of the significance of this issue and had no reason to suggest that the request was made later than it actually was.

The OLC memorandum indicates that it provided its initial advice sometime on or before October 31, when the House adopted Resolution 660, formally authorizing an impeachment inquiry. See OLC Memorandum of 1-19-20 at 39. It does not, however, provide any greater specificity on when it first advised the White House counsel and/or other executive officials of its legal conclusion that the subpoenas were invalid.

Why does this matter? Because on October 8, the White House counsel sent a  letter to the House flatly refusing to cooperate with the House’s impeachment inquiry. This letter raises a number of objections, many of which are political rather than legal in nature, to the impeachment inquiry. One of those objections, stated in a single conclusory paragraph, is that the inquiry is “constitutionally invalid”  because of the lack of any formal House vote on the matter. See Letter of Oct. 8, 2019 at 2-3. There is nothing in the letter, however, to suggest that the administration would provide information to the House even if such a vote were to occur; to the contrary, it indicates that the only way the administration would even discuss the possibility of providing information is if the House dropped its impeachment inquiry  and agreed “to return to the regular order of oversight requests.” Id. at 8.

For at least three reasons it seems highly unlikely that OLC had provided even its initial advice to White House counsel as of October 8. First, as already noted OLC probably had not even received a request at that point. Second, even if OLC had received the request as early as September 27, it hardly seems possible that it could have formed a responsible legal opinion by October 8, given that it purported to rest that opinion on an exhaustive historical survey of judicial, executive and legislative statements and practice, including nearly 100 House impeachment inquiries. See OLC Memorandum of 1-19-20 at 13-39; id. at 21 (referring to the “weighty historical record, which involves nearly 100 authorized impeachment investigations”). Third, there is no reference in the October 8 letter to any OLC advice on this issue, though it refers to OLC opinions on other issues it raises.

If the October 8 letter was sent before OLC had advised on this issue, it certainly undercuts the White House’s argument that the president was acting in good faith to protect the legitimate confidentiality interests of the executive branch and that he was relying on legal advice from OLC in doing so. See Senate trial brief of Donald J. Trump at 36 (“the legal principles invoked by the President and other Administration officials are critical for preserving the separation of powers– and based on advice from the Department of Justice’s Office of Legal Counsel”). It also raises the question whether OLC could provide independent legal advice when the president had already formally asserted a position on the issue.

Even if OLC did weigh in before the October 8 letter, it would be important to know how long it spent formulating its opinion before providing that advice. It is also important to find out whether OLC reviewed and approved the October 8 letter. Did OLC advise the White House counsel that the House should be informed that its objection to the impeachment inquiry was curable through a properly worded resolution? Is it consistent with the executive branch’s obligation of negotiating in good faith over information requests to conceal or misrepresent objections that could otherwise have been easily satisfied by the House?

Ventilating these issues would be a great first step toward transparency for OLC.

The Justice Department’s “Interesting” Comments on the Chief Justice’s Role in an Impeachment Trial

The Constitution mentions the chief justice for one purpose only, and apparently it is so he can serve as Charlie McCarthy to Liz McDonough’s Edgar Bergen. Or so one would understand from the Department of Justice’s brief in In re Application of the Committee on the Judiciary, United States House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, currently pending before the D.C. Circuit.

Continue reading “The Justice Department’s “Interesting” Comments on the Chief Justice’s Role in an Impeachment Trial”

Roger Cramton’s Memorandum Surfaces

Remember the Roger Cramton memorandum we discussed a few months ago? (Of course you do, scarcely a waking moment goes by when you don’t think “I wonder what ever happened with that Roger Cramton memorandum?”). This was one of the memoranda cited by the Office of Legal Counsel in footnote 1 of its opinion declaring that former White House counsel Don McGahn was absolutely immune from having to appear in response to a congressional subpoena.

As we have discussed, OLC’s argument for absolute immunity is based in large part on “precedent” consisting of its own prior statements on the subject. But, as two federal judges have now pointed out, OLC cannot create precedent simply on its own say-so. Last month Judge Ketanji Brown Jackson wrote, in her scathing rejection of McGahn’s claim of immunity, that OLC’s initial theory of absolute immunity set forth in the 1971 Rehnquist memorandum “was seemingly formed out of nothing” and “it appears that an endorsement of the principles that OLC espouses would amount to adopting the absolute testimonial immunity for senior-level presidential aides by ipse dixit.” Comm. on the Judiciary, U.S. House of Representatives v. McGahn, No. 19-cv-2379, slip op. at 99, 102 (D.D.C. Nov. 25, 2019); see also Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp.2d 53, 86 (D.D.C. 2008) (rejecting OLC’s opinions on absolute immunity as “conclusory and recursive”). Furthermore, as both Judge Jackson and Judge Bates noted, the original justification for immunity set forth in the Rehnquist memorandum would not apply to former White House officials at all. See McGahn, slip op. at 100; Miers, 558 F. Supp.2d at 88 n. 36.

Enter the aforementioned Cramton memorandum of December 21, 1972 to “the Honorable John W. Dean, III,” Counsel to the President. Although OLC cited this memorandum in its opinion on McGahn, it did not make it public at the time, nor did it bother to mention that this memorandum differed in an important respect from the argument that it was making. We know this now because OLC has just posted it on its website. Hat tip: @kpolantz and @EricColumbus.

To wit, the Cramton memorandum concludes that former White House officials should not be entitled to the same absolute immunity as current officials. It states:

We have one caveat with respect to our conclusion. While we believe that an assertion of Executive privilege with respect to specific testimony on the subject of advice given by the former staff member to the President is entirely proper, we have some reservations about the propriety of invoking the privilege to direct the former staff member not to appear at all. This aspect of the Executive privilege has in the past been claimed only for the President and his most intimate, immediate advisers. One of the justifications that has been advanced for an immediate adviser declining to appear is that he is presumptively available to the President 24 hours a day; the necessity to appear before congressional committees therefore could impair that availability. This consideration would obviously not justify a refusal to appear by a former staff member. However, this justification is in our view neither the only nor the best one. An immediate assistant to the President may be said to serve as his alter ego in implementing Presidential policies. On this theory, the same considerations that were persuasive to former President Truman would apply to justify a refusal to appear by such a former staff member, if the scope of his testimony is to be limited to his activities while serving in that capacity.

In conclusion, we believe that an invocation of the privilege with respect to particular testimony by a former staff member on the subject of advice given the President is quite clearly proper; on the other hand, we believe an invocation of the privilege as a basis for refusal to appear at all is a closer question. An intention to invoke the privilege with respect to particular testimony could certainly be announced. This as a practical matter may solve the problem. If, however, the interrogation is expected to extend to non-privileged matters, a decision that the former staff member should not appear at all would not, in our opinion, be justified.

Memorandum of 12-21-1972 at 6-7 (emphasis added).

To be sure, this language does not foreclose a refusal to appear by a former White House official if the testimony is expected to involve only privileged matters (though it suggests this is a “closer question”). If, on the other hand, non-privileged matters are involved, it indicates that such a refusal would not be justified. This position is inconsistent with OLC’s current stance, which is that former officials are absolutely immune from any questioning about their official activities, regardless whether they are privileged. As OLC “explained” in its McGahn opinion, “the concept of immunity is distinct from, and broader than, the question whether executive privilege would protect a witness’s response to any particular question.” 5-20-19 Opinion at 17. Moreover, it asserted that “consistent with our prior precedents, we find no material distinction between the compelled congressional testimony of current and former senior advisers to the President.” Id. at 16. This again is inconsistent with the Cramton memorandum.

Furthermore, the Cramton memorandum implicitly rejects OLC rationales for extending immunity to former officials. If allowing such officials to testify about non-privileged matters will not impair the president’s ability to obtain confidential advice, there is no reason why they should not appear and invoke the privilege on a question by question basis (like every other executive official outside the White House). Moreover, Cramton obviously did not believe that allowing former officials to appear would adversely impact the president’s “autonomy.”

It seems to me that if you are going to rest an argument on ipse dixit, you ought at least to be honest about the ipse.  Maybe the D.C. Circuit will have some questions about this too.

D.C. Circuit Panel Issues Expedited Briefing Schedule for In re Application of the Committee on the Judiciary

Late yesterday the DC Circuit panel hearing In re: Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials issued a scheduling order for briefing on the merits. The expedited schedule evidently reflects the compromise that the three judges came up with after yesterday’s argument. The merits will be heard by the same panel (Rogers, Griffith and Rao) which heard the stay application and an administrative stay will remain in place during that time.

The schedule is as follows:

DOJ brief to be filed on December 2, 2019

House brief to be filed on December 16, 2019

DOJ reply brief to be filed on December 23, 2019

Oral argument is on January 3, 2020 at 9:30 am.

Note that the oral argument will take place two and a half hours before the start of the second session of the 116th Congress. Not sure what that means, but I thought it was interesting.

Oral Argument: In Re Application of the Committee on the Judiciary

The D.C. Circuit panel (Rogers, Griffith and Rao) heard arguments this morning on whether to stay Chief Judge Howell’s order granting the House Judiciary Committee access to certain grand jury material related to the Mueller report. The three issues discussed were (1) whether the district court erred in holding that impeachment was a “judicial proceeding” within the meaning of Fed. R. Crim. P. 6(e); (2) whether the committee had made an adequate showing of particularized need with respect to the materials in question; and (3) whether there would be irreparable harm from disclosing the material to the committee. It is hard to say what the panel is likely to do, though my guess is that it will probably not deny a stay outright.

On the first issue, Judge Griffith seemed to believe that existing D.C. Circuit precedent establishes that impeachment is a judicial proceeding within the meaning of Rule 6(e), and that only the en banc court would be able to revisit that issue. Although Griffith did not tip his hand as to whether he would ultimately side with the House on the merits of that issue, I did not hear anything in the argument to suggest he had changed his mind on existing precedent. Given that Judge Rogers was clearly sympathetic to the House’s position, this suggests that a majority of the panel is unlikely to grant a stay based on this argument.

Judge Rao questioned whether any court involvement in impeachment would run afoul of Supreme Court precedent that impeachment is solely a question for the Congress. Her theory seemed to be that this precedent prohibited the courts from even assisting the House or Senate in obtaining information for impeachment purposes. Although Judge Griffith expressed some interest in this theory, I think House Counsel Doug Letter did a nice job at the opening of his argument in shooting it down. In any event, I assume that Griffith would view that also as something that would have to be addressed by the en banc court.

The second issue appeared to be stronger for the Justice Department. All three judges had some concerns about whether the district court had adequately determined whether the committee had a particularized need for each piece of grand jury evidence that the court had ordered released. While there was not a clear consensus on how the court should go about that task, it appeared that there was enough uncertainty about it that the court would be reluctant to let the district court’s ruling proceed without further scrutiny.

The Justice Department lawyer, Mark Freeman, also seemed to make some headway on the third issue. While Griffith initially expressed some skepticism that there would be any irreparable harm in allowing the committee to gain access to the grand jury material, Freeman argued that once the material was disclosed, it would be impossible for the courts to enforce any restrictions on what the committee did with it (Letter more or less conceded that this was the case).

Although it is possible that the panel will simply deny the stay, my impression is that this is less likely. Instead, it will probably either grant the stay pending a decision on the merits (which would be heard by a different panel) or itself immediately proceed to address the merits, which would obviate the need for a stay. (The latter possibility was suggested by Letter). If the panel itself reaches the merits, my guess is that it will either affirm Chief Judge Howell’s ruling or remand for more specific findings with regard to the committee’s need for the information in question.

One final possibility was raised by Judge Griffith. He suggested that the problem with regard to controlling further dissemination of the grand jury material could be addressed by limiting access to “counsel” (by which he meant lawyers in the House Counsel’s office). Letter agreed with this suggestion but noted that it would have to include committee counsel as well, as they are the ones with the relevant substantive knowledge regarding what material is relevant to the impeachment inquiry.

This is of course exactly the Freeh-LaBella procedure that I suggested seven months ago (see here and here). Allowing access to a limited number of congressional counsel, who will fully understand that any further disclosure without the court’s permission will subject them to serious sanctions, allows the committee to identify any information for which it has a particularized need without jeopardizing the confidentiality of the information. This approach makes the most sense, which is why it probably won’t happen. But kudos to Judge Griffith, the former senate legal counsel, for proposing a solution that would actually meet the legitimate needs of all three branches.

Congress in Court: Where Things Stand Today

Charlie Savage of the NY Times wrote an article over the summer which flagged the sheer volume of litigation in which the House has been involved this year. His count at the time was nine separate lawsuits in which the House was a party, plus four others in which it had filed amicus briefs. The cases in which the House is a party include three suits initiated by President Trump in his personal capacity to block Congress’s access to his financial records (Mazars, Deutsche Bank, and the effort to stop New York state authorities from providing his tax records to House committees), three initiated by the House to obtain information (the suit to require the Treasury Department to produce Trump’s tax records, the application for access to grand jury material, and the action to force Don McGahn to testify), plus the House’s effort to enjoin the border wall and its attempt to intervene in support of the constitutionality of the female genital mutilation statute.  The ninth, I think, would be the litigation over the Affordable Care Act. (I haven’t kept track of the cases in which the House has appeared as an amicus, but one was the census litigation).

Now the House is party to at least one more case (Kupperman), and it appears that Mick Mulvaney, his motion to intervene in the Kupperman case having been withdrawn, will be filing his own separate suit, which will bring the grand total of cases in which the House is a party to 11. In addition, there are several other ongoing cases that could affect the House’s institutional interests, including Blumenthal v. Trump, where members of Congress are suing the president for alleged violations of the emoluments clauses.

One of these cases has already produced a significant appellate court decision  (Mazars) and there are likely to be a number of important decisions coming out of the district and appellate courts in the next couple of months. The Supreme Court will be asked to weigh in and it seems very likely it will agree to hear at least one of these cases, if for no other reason than to decide questions of legislative standing. In the meantime, the House has decided, probably wisely, that further litigation is pointless in light of its determination to conclude impeachment proceedings in the near future (presumably by the end of the year).

We are therefore entering into a period in which there will be (1) a highly unusual amount of judicial precedent generated with potentially enormous impact on the balance of congressional and executive power and (2) an extremely difficult to predict interaction between these judicial opinions and ongoing impeachment proceedings (possibly including, if President Trump’s past statements are credited, an effort to directly challenge these proceedings in court). We cannot rule out the possibility that the chief justice of the United States will  be presiding over an impeachment trial in the Senate while the Supreme Court is being asked to consider directly or indirectly related issues at the same time.

In addition to all this, the very fact that Congress and the executive have taken so many of their disputes to court could itself have major effects on how our constitutional system functions in the future. As former House deputy general counsel Charlie Tiefer told Savage, “this is like nothing else in history.” It is probably not too early to start thinking about the consequences.

I’ll Take My Grand Jury Materials with a Hint of Impeachment

Last Friday, July 26, the House Judiciary Committee filed an application with the U.S. District Court for the District of Columbia seeking release of certain grand jury materials related to the report and investigation of former Special Counsel Robert S. Mueller III. The committee contends that the Mueller report “provided Members of Congress with substantial evidence that the President of the United States repeatedly attempted to undermine and derail a criminal investigation of the utmost importance to the nation.” Application at 1. Accordingly, “the House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity– approval of articles of impeachment.” Id. 

Some may view this, from a political perspective, as “impeachment lite” (Twitter wags had a variety of other terms like “impeachment-tinged” and “impeachment-infused”). From a legal perspective, however, I think this is probably good enough, at least for this particular controversy. Here’s why.

The committee’s primary argument is that the court should authorize the release of the grand jury information pursuant to Fed. R. Crim. P. 6(e)(3)(E), which provides “[t]he court may authorize disclosure of a grand jury matter . . . (i) preliminarily to or in connection with a judicial proceeding.” This provision is applicable here, the committee contends, because it is conducting an investigation to determine whether to recommend articles of impeachment with respect to the president. Application at 30-31. It bears emphasis that the committee does not contend this provision applies to congressional investigations outside the context of impeachment, nor would there be any basis for it to do so.

As we have discussed, controlling authority in the D.C. Circuit establishes that an impeachment proceeding qualifies as a “judicial proceeding” within the meaning of Fed. R. Crim. P. 6(e)(3)(E)(i). Specifically, a Senate impeachment trial is judicial in character and a House impeachment inquiry is therefor preliminary to or in connection with a judicial proceeding for these purposes. Application at 28-29.

To be sure, there is no Supreme Court authority on point, and it is possible that the Court would conclude that the term “judicial proceeding” refers to a proceeding conducted by the judiciary, not merely a proceeding that is judicial in character. (Of course, a Senate impeachment trial of the president is presided over by the chief justice, somewhat blurring this distinction.). However, if the Court were to reject the committee’s position in this respect, I strongly suspect that it would accept its alternative argument (currently foreclosed in the D.C. Circuit) that a federal court retains inherent authority to disclose grand jury materials under these circumstances. See Application at 40-41. I do not believe the Supreme Court would hold that there is no legal mechanism by which grand jury material relevant to impeachment can be transmitted to the House (or Senate), a conclusion that would be in considerable tension with the Constitution’s preference (at least) for impeachment rather than indictment of a sitting president. See, e.g., Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2158 (1998) (citing with approval President Nixon’s argument that “[w]hatever the grand jury may claim about a President, its only possible proper recourse is to refer such facts, with the consent of the court, to the House and leave the conclusions of criminality to the body which is constitutionally empowered to make them”); see also id. at 2156 (“any information gathered with respect to executive branch officials that could reflect negatively on their fitness for office should be disclosed to Congress”).

The more difficult issue for the committee is establishing that disclosure of grand jury materials in these circumstances would be for purposes of impeachment, rather than simply for general oversight. As I have written elsewhere, the committee would clearly be in a stronger position if the House had formally initiated an impeachment inquiry. That being said, nothing in the language of Rule 6(e)(3)(E)(i) expressly requires the formal initiation of any particular proceeding and to the contrary the rule suggests that the disclosure may occur before (“preliminarily to”) such initiation.

Here it is worth noting that while it is the Senate impeachment trial that has been held to be a “judicial proceeding” for these purposes, there is also a strong argument that the House’s exercise of its power of impeachment likewise constitutes a judicial proceeding. Certainly the House’s power is judicial, rather than legislative, in nature. It is possible, however, to argue that the House’s proceeding are less judicial than the Senate’s because the latter performs the adjudicative function of a criminal court while the former performs the investigative function of a grand jury. In any event, it probably makes little difference to the outcome of the committee’s application because in either case the committee must persuade the court that its current investigation is sufficiently tied to the impeachment process.

To meet this burden, the committee points to the following: (1) impeachment falls within the committee’s jurisdiction and articles of impeachment (including in the current congress H. Res. 13, a resolution calling for the impeachment of President Trump) are invariably referred to the committee; (2) the committee has repeatedly indicated in various ways, such as statements by the chairman and a contempt report adopted by vote fo the committee, that it is assessing whether to recommend articles of impeachment with respect to the president; (3) the House Rules Committee, in its report accompanying H. Res. 430, similarly explained that the committee was considering whether to recommend such articles of impeachment; and (4) the full House voted to adopt H. Res. 430, which confirms the committee’s investigatory authority with regard to the Mueller report and related matters and expressly authorizes it to continue its efforts to obtain information, including by filing an application for grand jury material pursuant to Fed. R. Crim. P. 6(e)(3)(E). This authorization by the House implicitly recognizes that the committee is seeking grand jury information for impeachment purposes since, as mentioned previously, there is no other basis upon which the committee could avail itself of this provision.

While there are no guarantees in litigation, in my view this is a pretty strong case. Given the language of the rule and the past flexible practice in the context of impeachment, the committee should prevail in its application. Whatever the outcome, though, it will be interesting to see how the Justice Department responds.