Wright on Executive Privilege with Some Additional Thoughts Hazarded by Stern

Steve Bannon, the former chief strategist in the Trump White House, has refused to answer questions from the House Permanent Select Committee on Intelligence (HPSCI) regarding his time in the White House and on the presidential transition team. Bannon claims these subjects may implicate executive privilege and is deferring to the White House counsel’s office as to whether the privilege will be invoked.

I was going to post some comments on this issue, but almost everything I was going to say is admirably covered by Professor Andy Wright here. Wright’s key points are (1) Bannon’s status as a former government official is irrelevant to the legal merits of the privilege claim, though it could impact how the matter is resolved procedurally (more on that in a minute); (2) the privilege belongs to the president, not to the subordinate official; (3) it is thus appropriate to provide the president, with the advice of White House counsel and other executive branch lawyers, an opportunity to decide whether to invoke the privilege formally; (4) if negotiations do not resolve the issue, HPSCI must move forward with a formal contempt process; (5) while it may ultimately be decided that executive privilege does not attach to presidential transitions, the question at this point is an open one; and (6) even if the privilege does apply, HPSCI will still have strong arguments in favor of requiring Bannon to answer some or all of its questions.

One point of qualification. While I agree with Wright that issues of executive privilege have to be decided on a question-by-question basis, the burden is not on Bannon to make sure that specific questions get asked. In other words, if Bannon issued a “blanket refusal [to answer] about all swaths of time during his transition and White House roles,” as Wright indicates, it is still incumbent on HPSCI to make a record of the specific questions it wants answered. Failure to do so could undermine its legal position or delay resolution of the merits should the dispute reach the courts.

This brings us to the procedure HPSCI should employ to resolve this matter. As Wright notes, there are three avenues available (criminal contempt, civil litigation and inherent contempt). Each has its drawbacks and none is guaranteed to work (or work in a timely fashion) even if one assumes HPSCI would win the executive privilege issue on the merits.

As we discussed in connection with the Comey matter, however, the procedure followed with regard to a former official might differ from the norm. If Bannon takes the position that he will abide by HPSCI’s rulings on executive privilege unless otherwise directed by a federal court, the burden would be on the executive branch to bring a civil action and obtain a speedy order (presumably a TRO) directing Bannon not to testify.

On the other hand, Bannon might say that he will abide by the president’s instructions even if it means being held in contempt by HPSCI and the House. If so, the House could consider employing the rarest form of testimonial compulsion, inherent contempt. In this procedure, Bannon would be arrested by the Sergeant at Arms and brought before the bar of the House. If he continues to refuse to testify, the House could remand him into the custody of the Sergeant at Arms until he changes his mind (or convinces a court to release him on a habeas petition). This is a drastic remedy, which has not been employed by the House in about a century. But if the House is serious about reasserting its institutional prerogatives, there could hardly be a more inviting target than Mr. Bannon.

Anyway, there is something about incarcerating Bannon in the basement of the Capitol that seems like where 2018 is going, don’t you think?

P.S. RIP Geoffrey Hazard.

 

 

Comey and Executive Privilege (with Update)

[See Update below]

Former FBI Director Jim Comey is scheduled to testify before the Senate Select Committee on Intelligence (SSCI) next week. He is expected to be asked questions about certain subjects, including his personal conversations with the president, that might be the subject of executive privilege claims. However, because Comey is testifying voluntarily and presumably would like to share this information with the committee, the question arises whether there is any effective method for the administration to stop him from answering questions it believes to be invasive of executive privilege.

In a Twitter thread, Eric Columbus, a former lawyer in the Obama administration, argues that the answer is no. He contends that the privilege only protects a witness from being compelled to provide information. It does not apply, he suggests, to the voluntary testimony of a former government official, just as it does not prevent former officials from writing books or giving interviews in which they discuss conversations with the president or other communications that might fall within the scope of executive privilege. As Columbus puts it, “I know of no precedent for blocking a FORMER official who WANTS to testify.” (all caps in original; its Twitter after all).

To the extent Columbus is suggesting that the applicability of executive privilege turns on whether the former official wants to testify, this seems wrong. The privilege belongs to the president, not to the subordinate official, and it is hard to see why the availability of the privilege should turn on the subordinate’s preferences.

Columbus makes an interesting point about the fact that former officials often write books or make other public disclosures about matters that could be covered by executive privilege. It could be that executive privilege, having developed as an evidentiary doctrine in formal proceedings, simply does not apply to such situations or, alternatively, that it does apply but there is no method of enforcing it. Broad gag orders against former executive branch officials (e.g, requiring them to get preclearance before speaking about their time in office, or threatening sanctions if they make public disclosures that in the judgment of the president or his lawyers violate executive privilege) would raise some tricky First Amendment issues, which we have discussed in the context of analogous prohibitions on congressional staffers. But these issues do not have much bearing on Comey’s testimony in a formal congressional proceeding.

The real problem here is procedural. Assuming for the sake of argument that the president has a valid or at least plausible executive privilege objection, how can that objection be raised in this situation?

The most straightforward answer would be for the executive branch to communicate to Comey (presumably through a lawyer who would attend the hearing) which questions it believes intrude upon executive privilege. Comey would then inform the committee of this objection, and it would then be up to the chairman to decide how to proceed. Comey might refuse to play this role, but I doubt he would do so. It is in his interest to remain above the fray to the extent possible, and to let the real parties in interest (the committee and the executive branch) battle it out.

Even if Comey declines to cooperate, the committee would probably allow the executive branch to raise its objections directly (presumably by having its lawyer stand up and object on a question by question basis). This would be a highly unusual procedure, and it might be contended that the committee’s rules do not permit it. SSCI Rule 8.6 provides that “[a]ny objection raised by a witness or counsel shall be ruled upon by the Chairman or other presiding member, and such ruling shall be the ruling of the Committee unless a majority of the Committee present overrules the ruling of the chair.” The “counsel” referred to here is counsel for the witness, and in this case the government counsel would not be appearing in that capacity. I suspect, though, that SSCI would make an allowance for this unusual situation.

Assuming the executive branch has the opportunity to raise the objection, it is up to the chairman to rule on the objection in the first instance. I imagine there could be some dispute as to whether Rule 8.6 requires the chair to rule immediately or permits him to take the matter under advisement, but let’s assume eventually there is a final ruling from the chair/committee. At that point I expect that Comey would comply with the ruling, as he is under no obligation to risk being held in contempt. This procedure would therefore leave the resolution of the issue ultimately in the control of the committee.

The administration’s only alternative would seem to be to bring an action in federal court against Comey (the Speech or Debate Clause prohibits it from suing the committee). The suit would ask for declaratory and injunctive relief prohibiting Comey from testifying on certain subjects or providing certain information to Congress. The executive branch used this method in the 1970s in an attempt to prevent AT&T from complying with a congressional subpoena. See United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977). Although that case involved national security information, there is no reason in principle why the same method could not be used to resolve a different type of executive privilege issue. Whether the Trump administration wants to take the political heat from bringing such a suit, or whether it is confident that its legal position would ultimately be vindicated in court, are different questions.

UPDATE:

In a follow up exchange on Twitter, Columbus expresses doubt that a court could grant a remedy to the executive branch under the circumstances here. His argument is that the court could not enjoin Comey from discussing the same matters outside of Congress (e.g., it couldn’t stop him from going on the Sunday talk shows to discuss his conversations with the president) so logically it could not enjoin him from talking to Congress either. Essentially he is arguing that because the court cannot grant effective relief, it should dismiss the executive branch’s (hypothetical) lawsuit against Comey for lack of standing.

I agree that a court might accept this argument, but I don’t think it is a slam dunk. To begin with, it assumes that a court would take as a given that a former executive official cannot be enjoined from publicly disclosing confidential (but non-classified) presidential communications contrary to POTUS’s instructions. As far as I know, no such case has been brought, much less decided. While I tend to agree with Columbus that there would be serious problems with such a suit (including First Amendment prior restraint issues), the matter is not so clear that a court would necessarily want to predicate its decision in our hypothetical suit on a prediction about the outcome of this different and more novel case.

Moreover, even if we assume Comey could not be enjoined from disclosing presidential communications outside Congress, it does not follow that such disclosures would be legal or proper. Nor is it guaranteed they would be without consequence. For example, a former official might find his security clearance in jeopardy or face a bar complaint (if, like Comey, he is a lawyer). These potential consequences make it less likely a court can simply assume that Comey (or any former official) would be free to divulge presidential communications in a public setting.

Finally, a court’s view of this issue may very well depend on the position Comey himself takes in our (hypothetical) litigation. As a long time executive branch lawyer, Comey would probably be reluctant to suggest it is generally appropriate for former officials to divulge confidential presidential communications. Such a stance would be at least in tension with the executive branch’s approach to executive privilege, and it might have ramifications for the ability of future presidents to have candid discussions with their FBI directors. I am also not sure Comey would want to open himself up to questioning generally about his discussions with Presidents Trump, Obama or Bush. So I would guess he would be cautious about asserting any general right (much less intent) to make public disclosures about these matters.

I would note that in the course of my exchange with Columbus, a number of tweeters chirped in with comments along the lines of: “If Comey can’t testify before Congress, why wouldn’t he just go on Rachel Maddow or some other cable show and spill the beans there? That’s what I would do!”

The short answer to this is: “Because he’s Comey, not you.” The somewhat longer answer is that I don’t know what Comey might do, but I think he has a number of personal and institutional incentives, alluded to above, not to do that.

In any event, I agree with Columbus that there is a risk that the hypothetical lawsuit against Comey could be dismissed on jurisdictional grounds, but I don’t assess this risk as being as high as he does. If I were advising the president, I would be more concerned with the political cost of bringing such a lawsuit in the first place, as well as the distinct possibility that the executive branch could lose on the merits.

Based on the latest news, though, it sounds like the administration is backing away from asserting executive privilege at all with respect to Comey’s testimony before SSCI.

 

 

 

 

 

 

 

 

 

 

The Senate’s Options in the Flynn Matter

Just got back from a trip abroad. Did I miss anything? I thought my law school classmate Jim Comey could fill me in on the latest, but for some reason my emails to him keep bouncing back . . .

I know, I’m hilarious. Ok, let’s take a look at the controversy du jour, namely former National Security Advisor Michael Flynn’s decision to invoke the Fifth Amendment in response to a document subpoena from the Senate Select Committee on Intelligence (SSCI). This has led to a flurry of speculation as to what SSCI or the Senate might do next.

For regular readers of Point of Order, the issues here should be pretty familiar. There is no Fifth Amendment right to refuse to produce documents based on their potentially incriminating content, but under certain circumstances a subpoena recipient can refuse to comply on the ground that the act of producing the documents would itself be testimonial in nature. This “act of production” doctrine applies when the subpoena implicitly compels the recipient to communicate that the responsive documents exist, are authentic and are in the recipient’s possession or control.

The committee’s subpoena requires General Flynn to produce, among other things, “all communications records, including electronic communications records such as e-mail or text messages, written correspondence, and phone records, of communications that took place between June 16, 2015, and 12pm on January 20 2017, to which you and any Russian official or representative of Russian business interests was a party.” Flynn’s lawyers contend that the broad sweep of this request shows that the committee lacks prior knowledge of “whether responsive exist, who may possess them, or where they are located.” Thus, by producing documents Flynn would be testifying regarding the existence and authenticity of these records. Moreover, Flynn’s production of responsive documents would require him to testify implicitly regarding his knowledge of who is a “Russian official or representative of Russian business interests.”

Without having studied the matter in any detail, it strikes me that Flynn seems to have at least a plausible act of production objection here. This does not necessarily mean, however, that he would ultimately prevail in litigation. The act of production doctrine is technical and fact specific, and its contours have yet to be clearly spelled out in the case law. Furthermore, to the extent that Flynn has responsive documents that belong to a collective entity and are not simply his own individual documents, the privilege would be inapplicable. Thus, SSCI might reasonably conclude that Flynn’s objection should be rejected on the merits, in whole or in part, or at least that its validity should be tested in court.

What, then, would the committee’s options be? One possibility would be for the committee and the Senate to hold Flynn in criminal contempt, and refer the contempt citation to the U.S. Attorney for the District of Columbia for presentation to the grand jury pursuant to 2 U.S.C. § 194. This law on its face requires the U.S. Attorney to present the contempt matter to a grand jury, but the executive branch has long taken the position that it may disregard this mandatory language, at least in cases where Congress seeks to obtain information which the president has determined to be protected by executive privilege. An unfortunate precedent set in the last administration extends this position to cases where the U.S. Attorney simply believes Congress’s legal position is wrong, even if no question of executive privilege is presented. As I explained in that case (involving the contempt charge against Lois Lerner): “Essentially the U.S. Attorney’s office is reserving the right to make its own independent judgment about the legitimacy of a congressional contempt citation, even if that means resolving a close legal question in a way that protects a witness in an investigation that could embarrass the administration he serves.” Based on that precedent, the executive could refuse to present the Flynn contempt to a grand jury.

The matter is further complicated by the appointment of a special counsel (it turns out that quite a bit happened while I was gone) to investigate the Russia matter. One would think that the special counsel, Robert Mueller, would exercise jurisdiction over any Flynn contempt referral or, at the least, would have to sign off on how the case was handled. This makes it less likely that the Flynn prosecution would simply be dropped like the Lerner case. On the other hand, it may not make it more likely that SSCI will get the documents it is seeking, particularly in a timely fashion. Mueller’s incentive would be to use the possibility of a Flynn indictment for congressional contempt as leverage to advance the priorities of his own criminal investigation. He may have little interest in helping the committee with its investigation (or may actually prefer that the committee’s investigation be halted so as not to interfere with his own).

SSCI may prefer, therefore, to look to an alternative method of enforcing its subpoena. Under 28 U.S.C. § 1365, a Senate committee can bring a civil enforcement action to enforce a subpoena. Under this mechanism, if a subpoena recipient fails to comply with a subpoena from a Senate committee or subcommittee, the committee reports a contempt resolution to the Senate, which may then adopt a resolution directing the Senate Legal Counsel to bring the enforcement action in federal court. See 2 U.S.C. §§ 288b, 288d.

The Senate rarely uses this civil enforcement method, in part because there is an exemption for subpoenas directed to executive branch officials who assert a governmental privilege or objection. That exemption, however, is inapplicable to Flynn’s case, and thus the Senate is free to use it to obtain a federal court ruling on the validity of his Fifth Amendment objection. One downside to this method of enforcement is that it will take some time (e.g., it almost certainly could not be resolved before 2018). A civil enforcement action the Senate brought last year, however, was resolved relatively quickly, within about 6 months of the action being filed by Senate Legal Counsel. (Here is a good summary, ironically written by Flynn’s counsel, of the court’s decision in that case). There is no way to guarantee that a case against Flynn would proceed that quickly (in fact, it probably wouldn’t), but there is no also reason to believe that a criminal contempt proceeding would move any faster. And civil contempt is generally a better method of resolving good faith legal disputes than is criminal contempt. Thus, all in all, it seems to me that a civil enforcement action would be the better method of enforcement here.

In a saner world, there would be another option that the Senate should seriously consider. Any Senate committee can grant immunity by a two-thirds vote of its members (or the Senate as a whole can grant immunity by a simple majority). Although there is a procedure that must be followed to complete the grant of immunity (see 18 U.S.C. §§ 6002, 6005), ultimately SSCI has the power to overcome Flynn’s Fifth Amendment privilege if a bipartisan supermajority of the committee wishes to do so. Although the committee could grant immunity just for the act of production, under current law the consequences would probably be little different than granting Flynn full testimonial immunity (in either case it would be nearly impossible to prosecute him for crimes related to the subject of the committee’s investigation, though he could still be prosecuted for perjury or contempt were he to fail to fully and truthfully respond to the committee’s inquiries). If one believes that obtaining the full truth regarding the Russia investigation is a matter of the highest national priority, it is worth considering whether getting General Flynn’s documents and testimony is more important than preserving the option of prosecuting him.

As a practical matter, however, the Senate almost certainly will not give this serious consideration. The special counsel, whose mission is focused solely on criminal enforcement, would vigorously object to the Senate granting immunity to Flynn. Senators would not want to be seen as responsible for letting Flynn escape criminal punishment, even if this means that SSCI’s investigation is substantially slowed or halted. One of the unfortunate consequences of appointing a special counsel in these circumstances (not the only one, to be sure) is that the public’s interest in a full and expeditious investigation of the Russia matter will take a back seat to the needs and inclinations of the special counsel and the criminal justice system.

So with regard to General Flynn’s refusal to comply with SSCI’s document subpoena, it is likely to be a civil enforcement action or nothing.

(Not So) Desperately Seeking Trump’s Tax Returns

Despite the great deal of chatter (marches even) about the need for President Trump to release his tax returns, there has been relatively little discussion of Congress’s statutory authority to obtain these materials. Two exceptions are these comments by Professors Andy Grewal and George Yin. Grewal and Yin agree that Congress has the authority to request and obtain Trump’s tax returns for a legitimate legislative purpose, and they also agree that the executive branch could disregard a congressional request for these returns on certain grounds (e.g., Congress does not in fact have a legitimate legislative need for the information or, in Grewal’s words, “the request is supported only by personal animus and not a proper legislative purpose”).

Though the matter is not free from doubt, I take a somewhat different view of the law here. I argue below that the Secretary of the Treasury (to whom Congress directs requests for tax return information) and the executive branch in general do not have the legal right to refuse congressional requests for tax return information based on an assessment of the legislative need or motive that underlies such requests. I also suggest that Congress can minimize the likelihood that the executive branch will assert a right to refuse its request by adopting a careful and disciplined approach to making the request in the first place.

Continue reading “(Not So) Desperately Seeking Trump’s Tax Returns”

Pagliano’s Contumacious Failure to Appear

Last night the House Committee on Oversight and Government Reform (COGR) voted to approve a contempt resolution for Bryan Pagliano, who failed to appear before the committee in response to a subpoena to testify. Pagliano, you may recall, is the IT specialist who was in charge of setting up Secretary of State Clinton’s private email server. Pagliano previously asserted his Fifth Amendment privilege against self-incrimination in both congressional and Justice Department/FBI investigations. He was given use immunity by DOJ/FBI to provide information regarding their investigation into whether the use of the email server by Clinton or others violated laws against the disclosure or mishandling of classified information.

Although the criminal investigation into Clinton’s handling of classified information terminated with FBI Director Comey’s public statement a couple of months ago, COGR says it is continuing to investigate this issue as well as other matters that the FBI investigation did not address. Specifically, the contempt report indicates that COGR’s ongoing investigation includes:

(1) seeking information about former Secretary Hillary Clinton’s use of a private, non-secure email server during her time at the Department of State, as well as the transmittal of classified national security information on that server; (2) examining the circumstances that resulted in the failure to preserve federal records arising during Secretary Clinton’s tenure, as required by the Federal Records Act, and to produce such records pursuant to Congressional requests or request made pursuant to the Freedom of Information and; (3) determining what, if any, changes to the Federal Records Act of 1950, Freedom of Information Act of 1966, Ethics in Government Act of 1978, or any other federal law(s) may be necessary to prevent these or similar circumstances from recurring.

No one, I think, would seriously dispute that these are proper matters for the committee to investigate, nor that Pagliano is a witness with information relevant to them.

Instead, the question is whether Pagliano, having informed COGR through his attorney that he will continue to assert his Fifth Amendment privilege with respect to any questions that the committee asks him about these issues, was required to appear at a hearing to assert the privilege in person. Citing legal ethics opinions, Pagliano’s attorneys at Akin Gump contend that Pagliano is not required to appear at an open hearing, although they said that he was willing to appear at a closed session. Backed by committee Democrats, they argue that requiring Pagliano to appear “in front of video cameras six weeks before the presidential election, betrays a naked political agenda and furthers no valid legislative aim.”

This is not a new issue. Congressional committees have been faced with such objections for decades, at least since a 1977 DC Bar opinion that an attorney serving as counsel to a congressional committee was prohibited by the disciplinary rules from requiring a witness to appear at televised hearings when the committee had been notified in advance that the witness would refuse to answer questions based on the Fifth Amendment right against self-incrimination.

Continue reading “Pagliano’s Contumacious Failure to Appear”

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

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

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

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

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

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

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

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

 

Senate Enforcement Action against Backpage CEO

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

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

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

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

 

 

Martin Shkreli’s Contempt for Congress

I have never seen anything like the deportment of this witness, who smirked and made various faces while taking the Fifth before the House Committee on Oversight and Government Reform. At least his lawyer did not allow him to make an opening statement. Instead, the lawyer gave an impromptu press conference afterwards, in which he made various exculpatory claims on his client’s behalf and claimed (ludicrously) that his client’s demeanor was not intended to show any disrespect for the committee.

 Update: apparently this conduct shouldn’t have been unexpected.

Why Wouldn’t Congress Give Pagliano Immunity?

Bryan Pagliano, a former State Department staffer who helped to set up Hillary Clinton’s private e-mail server, has informed several congressional committees, including the House Select Committee on Benghazi and the Senate Judiciary Committee, that he will invoke the Fifth Amendment privilege against self-incrimination if forced to appear before those committees to answer questions about that subject. Pagliano’s attorney cited “the ongoing FBI inquiry into the security of Clinton’s e-mail system” as the basis for his fear of possible incrimination.

In connection with the Lois Lerner matter, we have discussed the various legal issues related to a former government official’s invocation of the Fifth Amendment before Congress. One of the possible responses to such invocation is for the congressional committee to grant the witness immunity, thereby preventing his congressional testimony from being used against him in a future prosecution. Once such immunity is granted, the witness no longer has the legal right to refuse to answer questions before the committee based on the Fifth Amendment.

In theory, the immunity granted extends only to the actual use of the congressional testimony, but in practice it becomes nearly impossible to prosecute the congressional witness for any crime related to the subject of that testimony. Thus, if the committee believes that the witness may truly face the possibility of prosecution, it may be reluctant to grant immunity. This is one of the primary reasons that congressional grants of immunity are fairly rare (the last one given was to Monica Goodling in 2007 by the House Judiciary Committee).

With respect to Pagliano, however, this would hardly seem to be a serious issue. Unlike Lerner, he is not a senior or central figure in the investigation. The chances of his facing any kind of criminal jeopardy for setting up a private e-mail server (which by definition had to have occurred before any classified e-mails were sent through that server) would seem extremely remote.

In any event, the process of granting immunity allows the executive branch, in the person of the Attorney General, to express any concerns about the grant of immunity that it may have. The congressional committee must notify the Attorney General of its intent to seek the immunity order and thus the Attorney General has the opportunity to inform the committee of any objections to the grant of immunity. However, while the Attorney General has the power to delay the grant of immunity by up to 20 days, see 18 U.S.C. § 6005 (c), she has no power to veto or ultimately stop it from being granted. See Application of U.S. Senate Sel. Comm. on Pres. Campaign Activities, 361 F.Supp. 1270, 1276 (D.D.C. 1973).

Applying for immunity requires a vote of either two-thirds of the congressional committee or a majority of the full House or Senate. Thus, while the Attorney General cannot stop the grant of immunity, the committee minority can at least force the matter to full body if it objects to the grant. In the circumstances of this case, it seems to me it would be difficult to make a credible argument as to why Pagliano shouldn’t receive immunity. But the process gives everyone an ample opportunity to express their views.

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

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

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

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

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

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

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