Category: Privilege Assertions Before Congress

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Taking the Fifth Before Congress

In a letter to the House Committee on Oversight and Government Reform yesterday, Lois Lerner’s attorney (veteran DC lawyer William Taylor) informed the committee of her intention to invoke her Fifth Amendment rights at today’s committee hearing. Taylor said that she should not be required to appear at the hearing because to do so would serve “no purpose other than to embarrass or burden her.” COGR required Lerner to appear, but dismissed her after she refused to answer questions, though not before she made an exculpatory  statement in which she denied any wrongdoing.

This raises a number of legal questions, which we will proceed to consider.

1. Why can a witness invoke the Fifth Amendment before Congress when the privilege against self-incrimination applies only to criminal cases? With surprisingly little controversy (but see here for an academic view to the contrary), it has long been accepted by Congress and the courts that a congressional witness may invoke the Fifth. The theory is that if a witness were forced to testify in a congressional hearing, that testimony could be used against her in a subsequent criminal case. Note that this theory only holds if in fact the testimony could be used in court.

2. When can the witness invoke the Fifth? The witness must have a reasonable belief that her testimony might be used against her in a criminal prosecution. This does not mean that the witness must believe that she has actually committed a crime or that her truthful testimony would lead to her conviction. It just means that there is some realistic possibility that the witness may be criminally prosecuted for a matter to which her testimony might be relevant. This is a fairly low bar.

3. Can government officials invoke the Fifth before Congress and keep their jobs? Although I personally find it difficult to understand how a government official (particularly a senior official like Lerner) can refuse to testify before Congress, which is constitutionally responsible for overseeing the activities of her agency, it is fairly clear that she cannot be fired for doing so. My view is that at the least the President should be able to fire cabinet officials and others who serve at his pleasure for invoking the Fifth, but even this view was controversial when the issue arose during my tenure on the Hill. In any event, Lerner is a career employee, and my understanding is that she cannot be subjected to adverse employment consequences (unlike a private employee) for invoking her self-incrimination privilege.

4. Does Lerner have a colorable basis for invoking the Fifth? Yes. As mentioned earlier, there is a fairly low bar. The Justice Department has commenced a criminal investigation of the matter, and Lerner has reason to believe that she could be the target of investigation and ultimately of prosecution. In particular, it is conceivable that she could be prosecuted for making false or misleading statements to Congress. For example, this letter that she received from Chairman Darrell Issa and Representative Jim Jordan on May 14, 2013 points to various discrepancies between the facts as Lerner knew them and various statements that she made to Congress.

5. Can Congress require a witness to appear at a public hearing to invoke her Fifth Amendment rights? The short answer to this is yes. However, as we have discussed before (see here and here), the D.C. Bar has opined that a committee staff lawyer may violate the legal ethics rules if he or she participates in calling a witness to appear at a public hearing when the witness has asserted an intent to invoke the Fifth. By claiming that there was no legitimate purpose in requiring his client to appear, Taylor probably intended to suggest that committee lawyers participating in the hearing could run afoul of this legal ethics opinion. Perhaps this is why the committee was willing to excuse Lerner so quickly.

6. Does a witness waive her Fifth Amendment privilege when she voluntarily makes an exculpatory statement at a congressional hearing? You would think so, and apparently Representative Trey Gowdy made just that argument after Lerner made her statement. Unfortunately, witnesses at congressional hearings have been getting away with this for years. For example, when Bernie Ebbers, prior to taking the Fifth at a July 8, 2002 hearing before the House Committee on Financial Services, made an opening statement in which he denied all wrongdoing, a number of members argued that this statement waived the self-incrimination privilege. His lawyer (Reid Weingarten), however, argued that a “brief, non-incriminatory statement” did not waive the privilege. This was (and, as far as I know, still is) a debatable position, but the House has not seen fit to challenge it up to this point.

7. Can Congress require Lerner to testify notwithstanding her invocation of privilege? Yes. Recall that the privilege only prevents testimony that can be used in a criminal trial. By statute (see 18 U.S.C. 6002, 6005), a congressional committee may grant a witness immunity so that her statements may not be used against her; once such immunity is granted, the witness can be compelled before the committee. Initiating the process requires a two-thirds vote of the committee. Although in theory the witness receives only “use immunity” (meaning that she can still be prosecuted so long as her compelled statements are not used), the case law (in the D.C. Circuit at least) makes prosecution nearly impossible.

8. Would Lerner be a good candidate for immunity? Maybe. In part that depends on how likely one thinks it is that she would be prosecuted if immunity is not granted. Based on what is known today, by far the most likely criminal charge against her would relate to misleading Congress. But it would be difficult to prosecute her unless one can point to an unambiguous false statement and prove that she knew it was false when she made it. Even if a case could theoretically be made, one has to consider how likely it would be that the Department of Justice would prosecute her for misleading Congress, particularly on a theory that could ensnare many other senior administration officials.

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Privileged Communications in Congressional Investigations

Michael Bopp and DeLisa Lay of Gibson Dunn have recently published an article, “The Availability of Common Law Privilege for Witnesses in Congressional Investigations” in the Harvard Journal of Law & Public Policy. It provides a helpful overview of congressional authority and practice with regard to assertions of attorney-client and other common law privileges in congressional investigations.

The article also focuses on a more unusual topic: the extent to which communications by lawyers and others involved in representing private parties in congressional investigations or other proceedings will themselves be protected by privilege. In other words, if a company hires lawyers, lobbyists or media consultants to represent it in connection with a congressional investigation, will it be able to claim privilege over its communications with these professionals, if for example they should be sought by adversaries in a future civil or criminal proceeding?

Not surprisingly, the answer turns out to be complicated. But it got me to wondering whether congressional committees could bolster future claims of privilege by, for example, allowing attorneys for congressional witnesses to “enter an appearance” in an investigation. In exchange for counsel adhering to certain ground rules established by the committee (eg, counsel could be required to acknowledge that the committee is a “tribunal” within the meaning of the legal ethics rules), it could recognize the privileged nature of the representation, which might (or might not) have an influence on courts or other tribunals considering future claims of privilege.

Does anyone know of committees doing this or something similar?

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Ethical Dilemma

Friday’s letter from the House Ethics Committee indicates that Billy Martin was asked “to review allegations that this Committee violated due process rights or rules attaching to Representative Waters.” Martin was also asked “to address whether recusal of any Members of the Committee should be considered and when would be the most appropriate time for his recommendations regarding recusal.” Martin apparently advised initially that recusal decisions should wait until he completed his due process review.

For reasons I suggested in August, I think this was the wrong approach. Whatever “due process violations” may have occurred, they should not prevent the Committee from moving forward with the Waters case so long as appropriate steps are taken to remove the taint of any past violations. Most obviously:

As a practical matter, it seems almost inevitable that Martin will recommend that some members of the Committee be recused from future involvement in the Waters case. Whether or not Martin agrees with or can substantiate Chisam’s allegations, recusal would help to ensure public confidence in the process and remove any potential taint from the prior proceedings. Rather than further delaying the Waters proceeding while he tries to untangle the legal and factual aspects of the alleged ex parte communications, it would make more sense for Martin to figure out who ought to be recused in order for the matter to move forward.

Because Martin’s due process review has been stymied by a “necessary witness” taking the Fifth, he has decided that now would be a good time to make recusal decisions after all. Accordingly, six current Committee members (all five Republicans plus Ranking Member Sanchez) have decided to recuse themselves from the Waters matter, and substitutes have been appointed from outside of the Committee. These six substitutes, plus the four other Democrats who are currently on the Committee (but did not serve on the Committee in the last Congress), will form a kind of substitute committee for purposes of the Waters case.

Does this mean that the Committee is going to take my advice and move forward with the Waters matter? Maybe . . . but I wouldn’t count on it. If they try to advance the Waters case without resolving the due process issues, Stan Brand (Waters’s counsel) will raise holy hell. And if the Committee tries to argue now that the due process issues do not need to be resolved, it will be a little hard to explain why more than six months and hundreds of thousands of tax dollars were spent trying to resolve them.

The other option is for the Committee to try to force the “necessary witness” to testify. It could do this by obtaining a grant of immunity under 18 U.S.C. § 6005. But there is a problem with this too. A grant of immunity requires a two-thirds vote of the full Committee. Who would be counted for purposes of the vote? Do the recused members count?

Even worse, there would seem to be a serious question as to the legality of the substitute appointments. The appointments were made under House Rule XI, clause 3(b)(5), and Committee Rule 9(e), which state that a member of the Ethics Committee may disqualify himself or herself “upon the submission in writing and under oath of an affidavit of disqualification stating that the member cannot render an impartial and unbiased decision in the case in which the member seeks to be disqualified.” One assumes that no such affidavits were submitted here because the Committee’s letter states that the recused members “believe that they each can render an impartial and unbiased decision in any proceeding related to this matter.”

Maybe there is another way around the problem, but I think the substitute committee will eventually need either (1) agreement from Waters and/or the necessary witness not to object to the composition of the committee or (2) a resolution of the House approving the appointment of the substitute committee. Otherwise any way forward is going to face even more procedural obstacles.

So what happens now? I am not sure, but the path of least resistance may be for the substitute committee to use other tools to pressure the necessary witness to cooperate. If the witness is whom I think, there are such tools available. But its going to be difficult road however they proceed.

Its another fine mess you’ve gotten us into, Stanley.

 

 

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A Useful Resource on the Attorney-Client Privilege in Congressional Investigations

The American College of Trial Lawyers has issued this paper on the attorney-client privilege in congressional investigations. The ACTL is, not surprisingly, highly skeptical of Congress’s traditional claim not to be bound by the privilege, and it makes some forceful arguments on the other side. It also provides some helpful guidance for practitioners who wish to preserve the privilege in congressional investigations, as well as for committees that wish to avoid unnecessarily trampling upon it.

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Law Professors Lecture Congress on Stuff They Know Nothing About

A group of law professors and labor policy experts have written this letter to Darrell Issa, Chairman of the House Oversight and Government Reform Committee (COGR), expressing their grave concerns over “threats to compel disclosure of privileged documents” from the National Labor Relations Board. COGR is investigating the NLRB’s decision to bring an action against Boeing for shifting work from a union plant in Washington State to a new non-union facility in South Carolina. Yesterday COGR issued a subpoena to the NLRB, seeking a broad range of documents relating to the agency’s investigation of Boeing in order to obtain “complete facts about the NLRB’s rationale and its decision making process in this matter.”

The letter asserts that the documents COGR is seeking will likely include some relating to settlement discussions, litigation strategy and “other key factors in deciding to file the Complaint.” It suggests that these documents are privileged, and that the privileged nature of the documents is illustrated by the Administrative Law Judge’s refusal to order that they be produced in the pending litigation.

The law professors claim that “[u]nder current law, Congress must look to how the courts would handle the assertion of attorney-client and work product privilege claims when determining whether to press for these documents.” In support of this proposition, they cite Mort Rosenberg’s “Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry” 32-37(1995). No other support is provided.

If you go to page 32 of the cited Rosenberg report (which evidently none of the professors did), you will see the following: “The precedents of the Senate and the House of Representatives, which are founded on Congress’ inherent constitutional prerogative to investigate, establish that the acceptance of a claim of attorney-client or work product privilege rests in the sound discretion of a congressional committee regardless of whether a court would uphold the claim in the context of litigation.” (emphasis added)

Hmm, that sounds like the exact opposite of what the professors said.

As anyone who knows Mort Rosenberg would realize, he does not support the proposition that the courts can dictate, even indirectly, how Congress conducts its oversight activities. As he explains on page 36 of the same report: “the suggestion that the investigatory authority of the legislative branch of government is subject to non-constitutional, common-law rules developed by the judicial branch to govern its proceedings is arguably contrary to the concept of separation of powers. It would, in effect, permit the judiciary to determine congressional procedures and is therefore difficult to reconcile with the constitutional authority granted each House of Congress to determine its own rules.”

Moreover, while it is true that Congress will normally follow judicial precedents with respect to determining the contours of the attorney-client privilege with respect to private parties, it is not at all clear that government agencies like NLRB even have the right to assert attorney-client privilege as against Congress. Cf. In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998), cert. denied 525 U.S. 996 (1998) (government attorney may not invoke attorney-client privilege in a grand jury proceeding). There is no reason why the advice given by executive branch lawyers should be entitled to special protection in a congressional investigation.

When a government agency wishes to withhold information from Congress regarding a pending litigation or investigation, the matter is typically evaluated under the deliberative process privilege. The issues raised by the professors with regard to the NLRB proceeding, such as the potential for interference with an ongoing proceeding and the disclosure of litigation strategy, etc., must be weighed against considerations that militate in favor of immediate congressional action, such as the need to consider a legislative fix to resolve the economic hardship caused by Boeing’s inability to commence operations in South Carolina. Ultimately the weighing of these competing considerations is in the discretion of the committee.

Again to quote Rosenberg, “[d]espite objections by an agency, either house of Congress, or its committees or subcommittees, may obtain and publish information it considers essential for the proper performance of its constitutional functions. There is no court precedent that requires committees to demonstrate a substantial reason to believe that wrongdoing occurred before seeking disclosures with respect to the conduct of specific criminal and civil cases, whether open or closed. Indeed, the case law is quite to the contrary.”

If these labor law professors want to opine on congressional procedure, perhaps they should learn a little about it first.

 

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DC Bar Opinion on the Ethics of Congressional Lawyers

In 1977, the Legal Ethics Committee (LEC) of the D.C. Bar, interpreting the Code of Professional Responsibility (the predecessor to the Rules of Professional Conduct), opined 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.  See Michael Stern, Ethical Obligations of Congressional Lawyers, 63 N.Y.U. Annual Survey of American Law 191, 192, 207-08 (2007).

This opinion has long caused consternation among congressional committees and their lawyers.  Among the objections to it: (1) there are legitimate reasons why a committee may wish to call a witness to testify notwithstanding an indication that he or she will assert the privilege against self-incrimination; (2) the D.C. Bar has no authority to regulate the proceedings of congressional committees; and (3) the decision of whether or not to subpoena a witness, or to close a hearing, belongs to the committee, not to staff lawyers.

The LEC has now issued Opinion No. 358 (Jan. 2011), which responds to a request to vacate the 1977 opinion.  (Although the source of the request is not identified, I believe it was former House Counsel Irv Nathan).  The LEC analyzes the issue under the current rules and concludes that there is no basis to vacate the prior opinion.  In doing so, however, it both qualifies and perhaps extends the reach of the opinion in notable ways.

Opinion No. 358 acknowledges, as did the 1977 opinion, that the LEC’s “jurisdiction is confined to rendering opinions on the applicability of the ethics rules to the conduct of staff attorneys acting in their capacities as attorneys.”  Thus, the opinion presumably does not apply to Members of Congress, even though many are lawyers and some may be members of the D.C. Bar.

Nevertheless, the LEC reiterates that a committee staff lawyer may violate the ethical rules if he or she participates in calling a witness who has asserted an intention to plead the Fifth.  According to Opinion No. 358, such conduct potentially violates Rule 4.4(a), which states that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person,” and Rule 8.4(d), which prohibits a lawyer from “engag[ing] in conduct that seriously interferes with the administration of justice.”

According to Opinion No. 358, the rules are not violated simply by the fact that a witness who intends to assert the Fifth is subpoenaed to do so in an open hearing.  Instead, a violation occurs only if the sole purpose of calling the witness is to degrade or harass.  The opinion implicitly acknowledges that there are circumstances in which this is not the sole purpose of calling the witness to appear in public, although it does not provide much guidance on what those circumstances may be.

This is a significant qualification to the 1977 opinion, which has generally been understood to hold that it is per se improper to require a witness to appear in a public hearing if he or she has stated an intention to plead the Fifth.  Thus, while Opinion No. 358 purports to reaffirm the 1977 opinion, it arguably makes it more difficult for a witness to use it as a basis for refusing to appear (the LEC expressly declines to opine on whether it is ever appropriate for a witness to invoke the opinion as a basis for refusing to comply with a congressional subpoena).

On the other hand, there are aspects of Opinion No. 358 which could raise new problems for congressional lawyers.  I will discuss those in my next post.

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The Attorney-Client Privilege in Congressional Proceedings

Congressional practitioners will be interested in this article in the Journal of Law and Politics on the attorney-client privilege and work product doctrine in congressional proceedings.  (Bradley Bondi, “No Secrets Allowed: Congress’s Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings”).  As the title implies, Bondi is critical of Congress’s assertion of the authority to disregard the attorney-client or other common law privileges.  While he concedes that Congress, like the British Parliament, may have the power to disregard privileges in inherent contempt proceedings (ie, where Congress uses its own contempt authority to try and imprison a contumacious witness), he argues that the situation is different with respect to statutory contempt proceedings under 2 U.S.C. § 192.

Bondi uses the legislative history of the statute, which was enacted in 1857, to show that Congress itself was uncertain of the default rule that applied in congressional proceedings.  Some legislators assumed that Congress was bound to respect common-law privileges, while others believed that it had the power to overrule them.  He also points to the fact that Congress has generally respected the attorney-client privilege since the enactment of the statute, although the relevance of this practice to the interpretation of the statute is unclear.

If a court were faced with the question of whether the statute permits prosecution of a witness who asserts an otherwise valid attorney-client privilege (ie, a claim of privilege that would be recognized at common law or in judicial proceedings), its conclusion would likely be dictated by the presumption that it starts with.  Since the statute itself is silent on its applicability to claims of attorney-client privilege, the court might hold that the statute should not be construed in derogation of a firmly established common law privilege.  Alternatively, the court might start with the presumption that the statute was intended to preserve the traditional legislative authority to overrule privileges and therefore reach the opposite conclusion.

Given the difficulty of this question, however, a court is likely to look for ways to avoid deciding it.  And there is likely to be an easy way for it to do so.  Under current congressional procedures, while a witness can argue his privilege claim to a congressional committee, there is no way to present the claim to the full House or Senate prior to being held in contempt.  But if the power to disregard privileges exists, it certainly inheres in the full legislative body, not in committees.  Thus, if a witness has a judicially valid claim of privilege, he can argue that it was a violation of due process to hold him in contempt without first giving him an opportunity to argue the claim before the full legislative body.