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.

House Counsel on the Lerner Contempt

The House Counsel has issued this memorandum addressing the argument that Lois Lerner cannot be held in contempt because the Committee on Government Oversight and Reform failed to follow the proper procedures in overruling her objections. The memo provides additional factual detail regarding the committee’s actions and communications with Lerner and her counsel. House Counsel states that “the factual record overwhelmingly supports the conclusion that Ms. Lerner would ‘ha[ve] no cause to complain’ if she were to be indicted and prosecuted under 2 U.S.C. § 192 because she was ‘not forced to guess the [C]ommittee’s ruling’ on her Fifth Amendment claim.” Memorandum at 12. Thus, “we think it highly unlikely a district court would dismiss a section 192 indictment of Ms. Lerner on the ground that she was insufficiently apprised that the Committee demanded her answers to its questions, notwithstanding her Fifth Amendment objection.” Id. at 15.

House Counsel also points out that there is no reason at all to believe that the alleged infirmities in the committee’s procedures would have any bearing on a civil enforcement action. Id. at 18-19.

Can Lois Lerner Skate on a Technicality?

Updated: Mort Rosenberg’s response follows

On a snowy day, what could be better than snuggling up with some 1950s Supreme Court cases and getting deep into the technicalities of congressional contempt procedure? If your answer is “just about anything,” you would not have enjoyed John Filamor’s going-away party.

As it happens, I had a reason for doing this. My friend and congressional legal expert extraordinaire Mort Rosenberg, with some assistance from former House Counsel Stan Brand, wrote this memo last week to Elijah Cummings, ranking member of the House Committee on Oversight and Government Reform (COGR). The memo concludes, based on Supreme Court precedent, that Lois Lerner cannot be held in contempt for her refusal to answer questions at a recent COGR hearing, explaining that “at no stage in this proceeding did the witness receive the clear rejections of her constitutional objections and direct demand for answers nor was it made unequivocally certain that her failure to respond would result in a criminal contempt prosecution.”

For the reasons set forth below, I don’t think the Supreme Court cases relied on by Rosenberg and Brand support their conclusion. It is unlikely, in my opinion, that Lerner could escape criminal conviction on the grounds set forth in their memo. Moreover, as far as I can tell there is no basis for the suggestion that Lerner would be able to successfully defend a civil suit on this basis.

Perhaps more importantly, I do not think it appropriate for Representative Cummings to endorse this position. Lerner has skilled defense counsel who is more than capable of deciding whether it is in her interest to raise this hyper-technical defense should she be charged with criminal contempt. There are legitimate institutional reasons why Cummings might object to holding Lerner in contempt, but this is not one of them.

Continue reading “Can Lois Lerner Skate on a Technicality?”

But Other Than That, the CIA Has Been Very Cooperative With SSCI’s Investigation

Senator Feinstein’s bill of particulars against the CIA, set forth in her speech this morning:

Between 2002 and 2006, the CIA failed to brief the Members of the Senate Select Committee on Intelligence, other than the Chairman and Vice Chairman, regarding its detention and interrogation program.

In 2007 the CIA destroyed videotapes, over the objections of White House Counsel and the DNI, of certain enhanced interrogations.

In early 2009, SSCI staffers provided an initial report indicating that “[t]he interrogations and conditions of confinement at the CIA detention sites were far different and far more harsh than the way the CIA had described them to us.”

After SSCI initiated a full investigation, SSCI agreed, at the request of then- CIA Director Panetta, that it would review CIA documents relevant to its investigation at a secure CIA facility in Northern Virginia. A process was agreed to under which SSCI would be provided with a “stand-alone computer system” that would not be accessed by CIA personnel, other than IT, without SSCI’s permission.

The CIA sent up a laborious and expensive document review process under which every responsive document was reviewed by outside contractors to make sure that SSCI did not receive documents that were either beyond the scope of its requests or potentially subject to a claim of executive privilege.

Beginning in mid-2009, the CIA began producing documents, eventually running into millions of pages, without index or organizational structure, a “document dump.”

SSCI asked the CIA to provide an electronic search tool so it could sort through these documents.  The CIA provided this tool, and SSCI staff used it to identify important documents, which they would then print out or copy to a separate folder on the computer. Eventually the staff identified thousands of such documents in the committee’s secure space at the CIA facility.

In May 2010, SSCI staff noticed that certain documents that had previously been made available for their review were no longer accessible on the SSCI computer at the CIA facility. It later turned out that CIA personnel, without the knowledge or approval of SSCI, had removed 870 documents or pages of documents in February 2010 and another 50 in May 2010. These actions violated the written agreements between SSCI and the CIA and represented the exact sort of CIA interference in the investigation that SSCI had sought to avoid at the outset.

When confronted by SSCI staff, CIA personnel first blamed IT contractors. Then the CIA stated that the removal of the documents was ordered by the White House. This claim was denied by the White House.

The White House Counsel and the CIA gave Senator Feinstein a renewed commitment that there would no further unauthorized access to the committee’s network or removal of CIA documents already provided to the committee. On May 17, 2010, the CIA director of congressional affairs apologized on behalf of the CIA for the removal of the documents.

Sometime during 2010, SSCI staff located draft versions of the “Internal Panetta Review” among the documents made available to the committee at the CIA facility. These documents reached the same conclusions as the committee did with regard to certain “troubling matters” uncovered in its investigation. These documents were identified by SSCI staff as important and were printed out and electronically copied in accordance with their normal practice.

Some, though not all, of the IPR documents were marked as “deliberative” or “privileged.” This was not considered noteworthy because many documents provided to SSCI by the CIA have such markings. Senate Legal Counsel has also advised that these claims of privilege are not recognized by Congress.

Sometime after SSCI staff identified and reviewed the IPR documents, most likely in 2010, the CIA removed access to the vast majority of them. This violated both the CIA’s initial agreements and later assurances by the White House and the CIA that there would be no further removal of documents.

In December 2012, SSCI produced a 6,300 page study of the CIA’s Detention and Interrogation Program and sent it to the CIA for comment.

On July 27, 2013, the CIA provided SSCI with its response. Although the CIA agreed with some parts of the SSCI study, it disagrees with and disputes important parts of it. Importantly, “[s]ome of these important parts that the CIA now disputes in our committee study are clearly acknowledged in the CIA’s own Internal Panetta Review.”

After noting the disparity between the official CIA response and the draft IPR, SSCI staff “securely transported a printed portion of the draft Internal Panetta Review from the committee’s secure room at the CIA-leased facility to the secure committee spaces in the Hart Senate Office Building.” This complied with the spirit (if not the letter) of SSCI’s agreements with the CIA because SSCI redacted from these documents the kind of information (names of CIA non-supervisory personnel and names of specific countries in which CIA detention sites were operated) that the CIA was trying to protect. There is no legal prohibition against what SSCI staff did.

Given the CIA’s past practice of removing or destroying information related to the detention and interrogation program, “there was a need to preserve and protect the Internal Panetta Review in the committee’s own secure spaces.”

In late 2013, Senator Feinstein requested a final and complete version of the IPR be provided to the committee. In early 2014, the CIA refused this request, citing the deliberative nature of the document.

On January 15, 2014, CIA Director Brennan informed Chairman Feinstein and Vice Chairman Chambliss that, without prior notification or approval, the CIA had conducted a search of the SSCI computers at the CIA facility. This search was conducted in response to indications that SSCI staff had already obtained access to the IPR. The CIA did not, either prior to the search or thereafter, ask SSCI how it acquired information regarding the IPR. Despite this, someone has made anonymous allegations in the press “that the committee staff had somehow obtained the document through unauthorized or criminal means, perhaps to include hacking into the CIA’s computer network.”

On January 17, 2014, Senator Feinstein wrote to Director Brennan objecting to any further CIA investigation regarding the activities of SSCI staff due to separation of powers concerns about the search and any further investigation. She followed up with a letter on January 23 asking 12 specific questions about the CIA’s actions. The CIA has refused to answer these questions.

Senator Feinstein believes that the CIA’s search may well have violated basic separation of powers principles, the Speech or Debate Clause and the Fourth Amendment, as well as the Computer Fraud and Abuse Act and Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance. Senator Feinstein has demanded an apology from the CIA and a recognition that the search was inappropriate. She has received neither.

The CIA Inspector General has initiated an investigation of the CIA search and has referred the matter to the Department of Justice for possible criminal investigation.

Senator Feinstein has also learned that the CIA’s acting General Counsel has “filed a crimes report with the Department of Justice concerning the committee’s staff actions.” This apparently took place after the IG made his referral to the Justice Department. Senator Feinstein believes that there is no legitimate reason for the acting General Counsel (who she notes was heavily involved in the activities covered by the committee’s study of the detention and interrogation program) to have taken this action. She “view[s] the acting general counsel’s referral as a potential effort to intimidate this staff.”

She says “this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.”

Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation

Following up on my last post, the House Committee on Oversight and Government Reform advances several grounds for rejecting the Justice Department’s assertion of deliberative process privilege. The broadest argument is that deliberative process is a common law, not a constitutional, privilege and therefore must give way to Congress’s constitutional power of oversight. As COGR puts it, “[d]eliberative process, a common law evidentiary privilege designed to protect the confidentiality of some intra-agency deliberations in the context of adjudicatory proceedings (and FOIA), simply is not consistent with an overarching constitutional principle that requires the Congress to oversee Executive Branch agencies precisely by peering inside them.” Motion at 27. We have encountered a similar argument before in connection with whether Congress is bound to respect the attorney-client privilege, another common law privilege.

Continue reading “Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation”

The Fast and Furious Litigation: High Stakes for Congressional Oversight?

In its recently-filed motion for summary judgment before Judge Amy Berman Jackson, the House Committee on Oversight and Government Reform asks the court to reject the Attorney General’s claims of deliberative process privilege and to order the Justice Department to turn over documents responsive to a committee subpoena in the Fast and Furious investigation.

COGR v. Holder is a bit of a sleeper case. Although it has not received much press coverage, the outcome could have significant consequences for congressional oversight of the executive branch. A broad ruling that deliberative process and other common law privileges are inapplicable to congressional proceedings (or that the decision whether or not to accept these privileges is solely within congressional discretion) could deprive the executive branch of one of the principal tools it uses to slow down or thwart entirely congressional demands for information. On the other hand, if the courts were to endorse the executive’s right to assert such privileges, it could embolden federal agencies to resist congressional oversight, making it even more difficult than it is today for congressional committees to pry information from these agencies.

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

More on Fast and Furious

As mentioned last month, a federal district court has denied Attorney General Holder’s motion to dismiss a lawsuit, brought by the House Committee on Oversight and Government Reform, in which the committee seeks to enforce a subpoena for Justice Department documents related to the “Fast and Furious” investigation. The motion to dismiss advanced a number of grounds for declining jurisdiction, but they all more or less came down to a claim that the court should not intervene in a political dispute between the executive and legislative branches.

Judge Amy Berman Jackson decisively rejected these arguments in her opinion (summarized in more detail below). The court not only found the Justice Department’s arguments to be contrary to longstanding precedent, but inconsistent with the executive branch’s own prior practice. As the court pointed out, the executive branch has “itself invoked the jurisdiction of the courts when it sought to enjoin compliance with a Congressional subpoena” (during the AT&T case in the 1970s) and when it sought “a declaration concerning the validity of a claim of executive privilege asserted in response to a House request” (during the Gorsuch case in the 1980s). Quoting Judge Bates in the Miers litigation, Judge Jackson commented that “[t]he Court does not understand why separation of powers principles are more offended when the Article I branch sues the Article II branch than when the Article II branch sues the Article I branch.”

Reading Jackson’s original decision, it is evident that she did not think this is a particularly close case or difficult legal question. That impression is confirmed by her order yesterday with respect to the Attorney General’s request to certify the decision for interlocutory appeal. Granting such a request requires finding a “substantial ground for difference of opinion” with respect to the question of law, and the court found that the Attorney General had failed to provide any authority or other ground for such a difference of opinion. Accordingly, it declined to certify the question for appeal.

For those who are interested, a summary of the earlier opinion follows.

Continue reading “More on Fast and Furious”

Judge Jackson’s “Fast” and Furious Decision

Though it might seem like a distant memory (what with everything else going on), the House’s civil contempt lawsuit against Attorney General Eric Holder still percolates in the courts. The House is investigating “Fast and Furious,” but the resulting litigation is more like “Slow and Cranky.”

On September 30, Judge Amy Berman Jackson issued a long-awaited ruling on the Attorney General’s motion to dismiss the complaint on jurisdictional grounds. Her opinion does not reach the merits of the case (which involves the question of whether the President validly invoked executive privilege over certain internal Justice Department documents subpoenaed by the House Committee on Oversight and Government Reform), but it decisively rejects the Attorney General’s argument that the court lacks the power to decide the case at all.

I will summarize the court’s ruling in another post, but the bottom line is this. The Obama Justice Department made almost exactly the same jurisdictional arguments that the Bush Justice Department made in House Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (D.D.C. 2008), and they left Judge Jackson every bit as unimpressed as Judge Bates was in Miers.

One interesting point to note in Judge Jackson’s ruling. She emphasizes that the House’s complaint “raises a narrow legal question: can the executive properly assert executive privilege to shield an agency’s deliberative processes when the records in dispute do not reveal advice provided to the President himself or address his core constitutional functions?” (slip op. at 27 n.7). She contrasts this “purely legal question” with the messier function of weighing COGR’s need for the documents it seeks against DOJ’s interest in protecting its internal deliberations. Slip op. at 40-41.

But the Fast and Furious lawsuit is limited to a “purely legal question” only if Judge Jackson decides that question in favor of the House. If she concludes that the President may invoke executive privilege with regard to the documents in question, then it would be necessary for the court to engage in the kind of weighing of interests that raise some of the hallmarks of a political question.

This in turn suggests that Jackson may be leaning toward deciding the merits of the legal question in the House’s favor, which would end the litigation and require DOJ to produce the documents. Alternatively, should she decide that the President did properly invoke executive privilege, she may be inclined to send the parties back to the negotiating table before trying to “wad[e] into the murk” of the political wrangling between the parties.

 

Lois Lerner and Waiver of Fifth Amendment Privilege

Everybody is talking about whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory opening statement at yesterday’s hearing of the House Committee on Oversight and Government Reform (eg, these posts at Hot Air and the Volokh Conspiracy). As Juliet Eilperin notes, “[l]ike a lot of legal questions, it depends on whom you ask.”

It also depends on how you approach the question. Chairman Issa has indicated that he is consulting with counsel, and counsel (presumably the House Counsel’s office) will give him an answer based on reading the case law and advising on how the courts would likely react to the waiver issue if the committee and the House were to hold Lerner in contempt for refusing to answer questions. As I mentioned yesterday, this issue arose when I was at the House Counsel’s office in 2002 after Bernie Ebbers, the former CEO of WorldCom, made an exculpatory opening statement before taking the Fifth at a House hearing.

At the time, Ebbers’ lawyer (Reid Weingarten) argued that there was no waiver because Ebbers had made an exculpatory statement, but had not testified to any incriminating fact. He relied on cases where witnesses in judicial proceedings had been held not to waive the privilege when they answered questions but had not provided an incriminating response. There is, however, a strong argument that these cases are distinguishable because they involve witnesses who were compelled to answer questions and had no right to refuse to answer unless their responses would in fact incriminate them. They might apply to a congressional witness who answered preliminary questions before taking the Fifth, but they arguably do not apply to a congressional witness who voluntarily makes an opening statement. The latter situation (again, arguably) would be controlled by the principle that “a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.” Mitchell v. United States, 526 U.S. 314, 321 (1999).

For present purposes, let’s assume that the House Counsel advises Issa that it is likely (not certain) that the courts would hold that Lerner had waived her self-incrimination privilege under the facts presented. Let’s further assume that the law has not changed materially since 2002. Finally, let’s assume that there have been at least a few other congressional witnesses since then who have pulled similar stunts, but the House has not previously held any of them in contempt.

Under these circumstances, COGR could move forward with holding Lerner in contempt, but I would argue that it would be unwise to do so from the perspective of the House’s institutional interest. Instead, I would encourage the committee to declare prospectively that witnesses who make voluntary opening statements will be presumptively considered to have waived their privilege against self-incrimination with respect to questions within the subject matter of those statements (i.e., questions that would be within the scope of cross examination of an opening statement).

It is undoubtedly in the House’s institutional interest to discourage witnesses from making a self-serving opening statement and then refusing to answer a committee’s questions about it. On the other hand, it is also in the House’s institutional interest to turn square corners and maximize the chances that its legal position will be upheld in court. If COGR holds Lerner in contempt for the same conduct that Ebbers and other congressional witnesses have been allowed to get away with, its action will be tainted by the perception of unfairness and selective enforcement, and a court will be more likely to find that no waiver occurred. By contrast, if the committee puts witnesses clearly on notice that voluntary opening statements will be deemed to waive the privilege, any future enforcement action is far more likely to be successful.

Consistent with this position, Chairman Issa and Ranking Member Elijah Cummings could write to Lerner’s attorney and give him an opportunity to formally withdraw her opening statement. If he refuses to do so, it would be appropriate for the committee to move forward with contempt.