Category: Speech or Debate

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The Unitary Executive is Watching You

A few months ago a group of six Democratic members of Congress, including Senator Mark Kelly, released a video reminding members of the military that they have a duty to “refuse illegal orders.” The senators and representatives, each of whom has a military or intelligence background, did not identify any particular orders that should be disobeyed, but it was generally assumed that that they were referring to the Trump administration’s legally questionable Venezuelan boat strikes and possibly also the president’s actual or threatened deployment of regular military and National Guard forces in American cities.

The video was subject to reasonable criticism by non-insane people on the ground that it was pointless at best, as servicemembers are well-trained on their duty to disobey unlawful orders, and at worst disruptive to military cohesion and discipline. Among the less mentally balanced, however, the Democrats were labeled the “seditious six” and accused of a “direct attack on this republic.” The latter category included the commander in chief, who fired off the following social media post on November 20, 2025:

It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL. Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand – We won’t have a Country anymore!!! An example MUST BE SET.

In case this take was too nuanced, President Trump followed up with another post shortly thereafter: “SEDITIOUS BEHAVIOR, punishable by DEATH!”

By incredible coincidence, a few days after Trump declared these opposition lawmakers to be enemies of the state his administration announced that it was reviewing “serious allegations of misconduct” against Senator Kelly in his capacity as a retired naval captain. According to a social media post from the Department of “War” (not its actual name), “a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures.” It then explained:

This matter will be handled in compliance with military law, ensuring due process and impartiality. Further official comments will be limited, to preserve the integrity of the proceedings.

At this point you might be thinking that an investigation launched by the executive branch after the president has already publicly declared the guilt of the target doesn’t exactly scream “due process and impartiality,” but at least we can rely upon the military to conduct the actual investigation in a serious and professional manner, as well as to avoid inflammatory public comment, just as it promised to do. Right?

You poor naive sap. TWENTY-SEVEN minutes after the announcement of the investigation, the secretary of “war” reposted the announcement with his own commentary:

The video made by the “Seditious Six” was despicable, reckless, and false. Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of “good order and discipline.” Their foolish screed sows doubt and confusion — which only puts our warriors in danger.

He went on to explain that the investigation was only of Kelly because he alone of the “seditious six” remained subject to the Uniform Code of Military Justice. He closed by vowing that “Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately.”

This doesn’t seem all that impartial, to be honest. But wait, you say. That post wasn’t from the official X account of the secretary of “war.” It was from the personal X account of some guy named “Pete Hegseth.”  So actually there was no violation of the promise to limit “official comments.” And the fact that Hegseth has a personal opinion about Kelly’s conduct should have no bearing on the “impartiality” and “due process” that Senator/Captain Kelly will receive. Right?

Good point!  I jumped the gun in equating Pete Hegseth in his official capacity and Pete Hegseth in his personal capacity. The fact that Hegseth has prejudged Kelly’s guilt in his personal capacity says nothing about whether he can be impartial in his official capacity! Also, war is peace, freedom is slavery, and sycophancy is due process. With thinking like that, you could be the next White House press secretary! (Assuming you meet the physical requirements, of course).

Anyway, the “investigation” was conducted and a few weeks later the secretary, in his official capacity, announced the results. You will be shocked to find out that it did not go well for Kelly. After all that impartiality and due process, Secretary Hegseth (not to be confused with Pete Hegseth the rando with personal opinions) issued a letter of censure to Kelly “for conduct that I have determined to be prejudicial to good order and discipline in the Armed Forces of the United States, conduct which brings discredit upon the same and conduct unbecoming an officer.” In addition to issuing this formal censure, Hegseth stated:

I believe good cause exists to reopen the determination of your retired grade under the provisions of 10 U.S.C. §1370. Accordingly, I will direct the Secretary of the Navy to recommend whether a reduction in grade is appropriate in your case.

After receiving the Secretary of the Navy’s recommendation, I will determine if a reduction is warranted. Any reduction in retired grade would result in a corresponding reduction in retired pay.

The censure letter closes with the observation that “[y]our status as a sitting United States Senator does not exempt you from accountability for conduct that undermines good order and discipline in our Armed Forces.”

Personally, I was on pins and needles waiting to see what the impartial recommendation from the secretary of the navy would be. And what Secretary Hegseth would decide to do about what he had already described on X as “the totality of Captain (for now) Kelly’s reckless misconduct.”

Unfortunately, Kelly short-circuited all this due process by bringing suit in federal court against Secretary Hegseth, as well as the Department of Defense (the actual name of the department Hegseth leads), the secretary of the navy (who I will not name since he has recently had all the publicity he needs), and the Department of the Navy. Kelly asked for a temporary restraining order and preliminary injunction with regard to the administrative proceedings against him, alleging that they, among other things, violated the First Amendment, the Speech or Debate Clause, the separation of powers and his due process rights. The case was assigned to Judge Richard Leon, who in a January 2026 hearing expressed some skepticism about the legal and constitutional basis for the proceedings against Kelly but declined to rule immediately.

The Trump administration then doubled down (another shock). Not content with administrative proceedings against Kelly based on the (highly debatable) legal theory that his status as a retired military officer restricts his First Amendment rights to criticize the government, it sought to criminally indict Kelly and the other Democratic senators and representatives on charges related to the making of the video. It has been reported that the proposed indictments, which have not been made public, charged the defendants with seditious conspiracy. In any event, notwithstanding the (mostly deserved) reputation of grand juries as rubber stamps for the prosecution, on Tuesday, February 10, the federal grand jury to which these charges were presented refused to issue any indictments. (It has been reported that this decision was unanimous).

Two days later (i.e., yesterday) Judge Leon ruled that Kelly was likely to succeed on the merits of his First Amendment claim (therefore rendering it unnecessary to consider the remaining claims) and issued a preliminary injunction in his favor. In a Leonesque opinion filled with too many exclamation marks, the court blasted the government’s actions as textbook retaliation for protected political speech. The court rejected the government’s argument that retired military officers were entitled to reduced First Amendment rights, and it found that argument particularly troubling in the case of a sitting senator. As Leon puts it, “if legislators do not feel free to express their views and the views of their constituents without fear of reprisal by the Executive, our representative system of Government cannot function!” Slip op. at 22 (emphasis in original). The judge closed with the (forlorn) hope that his opinion will enable Secretary Hegseth and his fellow defendants to “more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!” Slip op. at 29 (emphasis in original) (warned you about the exclamation marks).

One point made by the court is noteworthy. It states that “Defendants rest their entire First Amendment defense on the argument that the more limited First Amendment protection for active-duty members of the military extends to a retired naval captain.” Slip op. at 19 (emphasis in original). If this accurately characterizes the government’s position, it suggests that even under the government’s own theory there could not possibly be a constitutional basis for indicting the lawmakers who were not retired military officers. And even as to Kelly himself, the government’s position would not seem to provide a basis for criminal, as opposed to administrative, action. See Slip op. at 23 n.5 (noting that the government does not press an argument that Kelly’s speech falls into an unprotected category like incitement). Continue reading “The Unitary Executive is Watching You”

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Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity

In the Supreme Court argument on Donald Trump’s claim of absolute presidential immunity from criminal liability for “official acts,” Trump’s counsel, John Sauer, relied heavily on the Court’s Speech or Debate jurisprudence. See Transcript at 6-8, 31, 34, 36 & 46. Sauer did not go so far as to claim the president was literally entitled to protection under the Speech or Debate Clause, but he contended the issues addressed in the Speech or Debate Clause were “very analogous” to those presented by the criminal prosecution of a (former) president, Tr. at 34, and he argued for the creation of a parallel immunity for the president. Tr. at 36. For the reasons explained below, this argument should be rejected and, even if it were accepted, provides little if any protection for Sauer’s client in this case. Continue reading “Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity”

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Can Trump be Prosecuted for Violating the Speech or Debate Clause?

According to media reports, the target letter received by former President Donald Trump on July 16, 2023, indicates that he may be charged by the grand jury with violating 18 U.S.C. §241, a Reconstruction-era law that criminalizes the following conduct:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;

This provision has not been previously discussed as a possible charge arising out of the January 6 attack on the Capitol, and its inclusion in the target letter seems to have taken many observers by surprise. In what way could Trump’s conduct be said to violate this statute?

One possibility is that Trump conspired to “injure” the “free exercise or enjoyment” of the right to vote of those persons who elected Joe Biden as president by seeking to overturn the results of the election. Another is that he conspired to injure the rights of those voters who voted for Biden electors in the seven states where he sought to replace them with the “fake electors.” On its face, though, this seems like a somewhat strained reading of the statutory language, which is more naturally read to apply to direct interference with someone’s rights, rather than with the benefits that might ordinarily flow from the exercise of such rights. (Another possible problem is that the right to vote for president is initially granted by state, rather than federal, law).

Perhaps Trump conspired to “injure” or “oppress” the free exercise of the right to vote by presidential electors in those states where he sought to replace them. The Constitution  grants electors appointed by the states the right to vote for president and, while Trump did not directly interfere with their right to cast their votes, he clearly attempted to prevent their votes from being either opened or counted. This seems to me like a better fit with the statutory language, but it is still somewhat problematic. An attempt, even by fraud or other illegal means, to influence Congress or the vice president in how they treat the certificates of presidential electors  arguably does not implicate any personal right or interest of the electors themselves and is awkwardly described as an attempt to injure or oppress the rights of the electors.

This leaves one other possibility (that I can think of). Perhaps Trump conspired to “injure, oppress, threaten or intimidate” the vice president and/or members of Congress in the free exercise of their rights to participate and vote in the electoral count on January 6, 2021. Indeed, that seems like a fairly straightforward description of some of Trump’s actions. There can be little doubt, for example, that Trump openly tried to threaten and intimidate Vice President Pence with regard to his role in the electoral count process. (Whether some or all of that conduct is protected by the First Amendment is a separate question.).

There is a possible objection here too. The vice president’s role in the electoral count is arguably of a purely ministerial nature (indeed that is what Pence said in declining the invitation to disregard Biden electors) and thus might not involve any “right or privilege” secured by the Constitution or federal law. Furthermore, while federal law purports to give members of Congress the authority to vote on certain objections to presidential electors, it is also debatable whether this (constitutionally questionable) authority constitutes the kind of “right or privilege” that section 751 is intended to protect.

Here, however, Special Counsel Jack Smith may have some ammunition in the Speech or Debate Clause, which (as we all know) provides that “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.” This protection is typically described as a privilege or immunity of members of Congress, and the Supreme Court has explained that it “was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch.” Gravel v. United States, 408 U.S. 606, 616 (1972) (emphasis added). To the extent that Trump used threats or intimidation (beyond the protection of the First Amendment) to interfere with the electoral count process, he arguably sought to “threaten” or “intimidate” the vice president and/or members of Congress in the free exercise of the right and privilege of speech, debate, and deliberation protected by the Speech or Debate Clause (as well as the 12th amendment and Electoral Count Act).

It could be argued that the Speech or Debate Clause applies to debates and deliberation over legislation and other matters which the Constitution places within the jurisdiction of either House, but not to the ministerial and ceremonial electoral count, which ordinarily involves no debate or deliberation of any kind. However, this argument is substantially undercut by the fact that the chief judge of the US District Court for DC recently agreed with former Vice President Pence that the Clause applies to the electoral count proceeding and the vice president’s role therein. Furthermore, in a separate case, currently pending before the DC Circuit, Representative Scott Perry is similarly arguing that the Clause should protect his activities related to the electoral count. While the district court in Perry’s case did not agree with his views on the extent to which the Clause would protect him from compelled production of his cell phone records, it did agree that the Clause applied to the electoral count proceeding:  “Given that certification of the Electoral College vote is a matter which the Constitution places within the jurisdiction of both Houses of Congress, activities necessary and integral to fulfilling that task are entitled to Clause protection.”

Indeed, if this turns out to be the theory that the special counsel is using to support a charge under section 451, it would not be surprising if he got the idea from the litigation initiated by Pence (who quoted the above-referenced language from Gravel in his motion to quash) and Perry.

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More on Mike Pence and the Speech or Debate Clause

In case you missed it, I have a piece on Lawfare with further analysis of former Vice President Pence’s Speech or Debate argument.  To bottom line it: (1) I think it is very unlikely that Pence will be able to get the subpoena quashed in its entirety; (2) Pence has a reasonable chance of succeeding on the threshold question of whether he is protected by the Speech or Debate Clause at all: (3) if so, there are likely areas where a court would hold he is protected from questioning (e.g., his communications internal to Congress related to the performance of his role as president of the Senate); (4) for the most important communications at issue (namely Pence’s communications with former President Trump and others outside Congress who were attempting to influence how he would exercise his role during the Jan. 6 electoral vote count), the Speech or Debate question is a close one that could go either way; and (5) in any event, the Senate has the power here to waive Pence’s Speech or Debate privilege and/or demand that he testify before the Senate regarding these matters.

And if you want to hear even more about this subject (and given that you are the sort of person who reads Point of Order, I assume you do), you can listen to me and Eric Columbus on the Lawfare podcast with hosts Quinta Jurecic and Molly Reynolds.

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What is a Vice President?

This is not in fact the title of a Valentine’s Day poem for Kamala Harris, but of some preliminary thoughts in response to a Politico article revealing that former Vice President Mike Pence intends to resist a grand jury subpoena from Special Counsel Jack Smith on grounds that it violates the Speech or Debate Clause.

That raises a boatload of novel constitutional questions, but the most basic is just what exactly, constitutionally speaking, is the vice presidency? One “expert” answered the question this way in 2008 (hat tip: Derek Muller):

Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. He has the idea — he doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States. That’s the executive — he works in the executive branch. He should understand that. Everyone should understand that.

And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate only in a time when in fact there’s a tie vote. The Constitution is explicit. The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress.

The idea he’s part of the legislative branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive, and look where it’s gotten us. It has been very dangerous.

Actually, Article I, which of course deals with the legislative branch, says nothing about the vice president working in the executive branch. And Article II, which is probably what then-Senator Biden meant to reference, does not say anything about the vice president supporting, reporting to, or advising the president. In fact, as the Office of Legal Counsel has explained, “[t]he Constitution allots specific functions to the Vice President in the transaction of business by the Legislative Branch (art. I, §3) but neither grants nor forbids him functions in the conduct of affairs of the Executive Branch.” Participation of the Vice President in the Affairs of the Executive Branch, I Op. O.L.C. Supp. 214 (1961).

Biden’s claims about the vice presidency, made during the 2008 presidential election, related to then-Vice President Dick Cheney’s contention that the vice president was not part of the executive branch for purposes of an executive order granting the National Archives oversight authority over certain national security information in the executive branch. While this position elicited widespread outrage and mockery, Cheney’s view was not without some legal and historical substance. See, e.g, James D. Myers, Bringing the Vice President into the Fold: Executive Immunity and the Vice Presidency, 50 Boston Coll. L. Rev. 897, 901 (2009) (“Cheney’s claims reflect the reality that the constitutional and political status of the Vice President is still somewhat amorphous.”); Glenn Harlan Reynolds, Is Dick Cheney Unconstitutional?, 102 Nw. U. L. Rev. 1539, 1540 (2008) (“Despite the unfriendly political response, the argument that the Vice President is a legislative official is not inherently absurd.”). Furthermore, though Cheney’s argument may have been inconsistent with his assertions on other occasions of executive privilege for the office of vice president, it may have been the latter that should have given way. Reynolds, 102 Nw. U. L. Rev. at 1540 (“[T]he positioning of the vice presidency within the legislative branch—or, at any rate, outside the executive—may be appropriate. Such a reading, however, would render Cheney’s role within the Bush Administration, as well as the modern notion of Vice Presidents as junior versions of the commander-in-chief, unconstitutional.”).

A few years ago Roy Brownell, a lawyer in Washington, D.C., wrote an article arguing (persuasively imho) that while the vice president is popularly considered a subordinate of the president, and often (though not always) acts as such, “as a constitutional matter, the Vice President is independent from the President and can and does take actions and public positions that are contrary to the latter’s wishes.” Roy E. Brownell II, The Independence of the Vice Presidency, 17 Leg. & Pub. Pol’y 297, 300-01 (2014). The vice president’s independence is founded, first and foremost, on the fact that she cannot be removed by the president. Id. at 303. Moreover, contrary to Biden’s suggestion, the Opinion Clause, which authorizes the president to require the opinion in writing of the principal officer in each of the executive departments, does not apply to the vice president. Id. at 314-16. Thus, while the president can ask the vice president for her advice or opinion, he has no constitutional authority to require her to provide it.

In addition, the Twenty-Fifth Amendment, while it to some degree reflects modern assumptions about the vice president’s role in the executive branch, further cements the vice president’s autonomy from the president. Indeed, by giving the vice president the primary responsibility to determine when the president is unable to discharge the powers and duties of his office, even contrary to the president’s wishes, section four of that amendment “underscores the Vice President’s independence” and the fact that the president has no power to remove her from office. Id. at 308-10.

Finally, and most relevantly to the issue at hand, the vice president serves as the president of the Senate, where she has a number of functions, including recognizing senators on the floor, making rulings from the chair, and breaking tie votes. Id. at 316-17. Other functions including presiding at impeachment trials and, of course, presiding over the counting and certification of electoral votes. All of these functions are legislative in nature and are exercised by the vice president independently of the president. Id. at 316-17 & nn. 93 & 97. As Brownell observes presciently: “To permit the President, as a constitutional matter, to order the Vice President to preside a certain way or to vote a certain way would undercut the freedom of the Senate to carry out its own constitutional functions.” Id. at 317.

 None of this proves that the vice president is necessarily covered by the Speech or Debate Clause, much less that the specific questions that the grand jury wishes to ask of the former vice president would violate that clause. It does, however, suggest that Pence’s legal argument is not implausible on its face. See Myers, 50 Boston College L. Rev. at 936-37 & n. 307 (suggesting the possibility of limited legislative immunity for the vice president). Furthermore, Pence’s decision to invoke legislative privilege, rather than executive privilege, is interesting in its own right. It underscores that on the matters at issue Pence was fulfilling his own independent constitutional duties, not exercising executive branch functions delegated to him by the president. As a politically loyal vice president, Pence listened to what former President Trump and his minions had to say, but as a constitutionally independent officeholder, he made his own decisions based on the Constitution and the oath he took to defend it. This framing of the matter may have both political and legal ramifications in the months to come.

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Some Thoughts on the January 6 Committee Subpoena to Former President Trump

As you may have heard, the January 6 select committee has adopted a resolution authorizing its chair to issue a subpoena for documents and testimony under oath to former President Donald Trump. This action raises some legal, political and practical issues, which are considered below.

Is a former president immune from a congressional subpoena? The answer to this question is pretty clearly no. It has been well-established since Watergate that even sitting presidents are subject to judicial subpoena and, as the D.C. Circuit recently observed, its own precedent from that era “strongly implies that [sitting] Presidents enjoy no blanket immunity from congressional subpoenas.” Trump v. Mazars U.S., LLP, 940 F.3d 710, 722 (D.C. Cir. 2019), rev’d and remanded on other grounds, 140 S.Ct. 2019 (2020). It is therefore very unlikely that former presidents would be found to enjoy such blanket immunity.

Is a former president absolutely immune from compelled congressional testimony about his official activities? For reasons I have discussed before, the answer to this question should be no, although I acknowledge there are good reasons why Congress should be (and historically has been) reluctant to compel the appearance of former presidents except in extraordinary circumstances. Continue reading “Some Thoughts on the January 6 Committee Subpoena to Former President Trump”

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SHOULD THERE BE A SENATE RESOLUTION FOR LINDSEY GRAHAM’S GRAND JURY SUBPOENA?

State prosecutors in Georgia are seeking to subpoena Senator Lindsey Graham of South Carolina to testify in a grand jury investigation of alleged efforts to unlawfully alter the outcome of the 2020 presidential election in Georgia. Prosecutors want to question Graham about telephone calls he made to Georgia election officials in the weeks following the November election. Graham has moved to quash the process issued by the Georgia judge supervising the grand jury on three grounds: (1) compelling his testimony would violate the Speech or Debate Clause; (2) sovereign immunity precludes state court process against a U.S. senator for acts occurring in his official capacity; and (3) requiring Graham to testify would unduly interfere with his legislative responsibilities in the Senate.

Today I do not want to focus on the merits of these legal arguments, but on the Senate’s role in this process. Although the Senate (unlike the House) does not have a rule providing explicit procedures for handling incoming subpoenas, Senate precedent and practice require authorization from the chamber before senators, officers or staff may comply with such subpoenas.

For example, on June 8, 2022, the Senate agreed to a resolution submitted by Majority Leader Schumer for himself and Minority Leader McConnell authorizing the former general counsel to the Secretary of the Senate to testify in a criminal case involving a January 6 defendant. The resolution recited the Senate’s longstanding (if debatable) position that “by the privileges of the Senate of the United States and Rule XI of the Standing Rules of the Senate, no evidence under the control or in the possession of the Senate may, by the judicial or administrative process, be taken from such control or possession but by permission of the Senate.” In other words, evidence which the Senate regards as under its control or in its possession may not be provided to a court unless the Senate decides that providing permission “will promote the ends of justice consistent with the privileges of the Senate.”

Does the evidence sought from Graham fall into this category? The answer seems to be yes, at least if one accepts Graham’s characterization of it. According to his motion to quash, the purpose of his contact with Georgia officials was “to gather information relevant to his oversight responsibilities as Chairman of the Senate Judiciary Committee” and “his obligations under the Electoral Count Act of 1887.” Whether or not such activity falls within the legislative sphere protected by Speech or Debate (as Graham contends), it certainly would be sufficiently official in nature to trigger the requirement that the Senate grant permission before testimony may be given.

Graham, of course, does not want to testify and therefore has little incentive to seek a Senate resolution authorizing him to do so. Moreover, although he has not raised lack of Senate permission as a basis for quashing the Georgia process in his initial filing (perhaps for tactical reasons or perhaps because his private lawyers are unaware of this aspect of Senate practice), he may seek to do so at a later date.

This leaves the possibility that another senator will introduce a resolution authorizing Graham to provide the requested testimony. Clearly such a resolution would not receive unanimous consent, which is the way that such resolutions are invariably passed. Furthermore, even if the resolution were adopted, it would not prevent Graham from asserting the Speech or Debate privilege as to some or all of his testimony. It would, however, preclude him from refusing to comply based on the lack of Senate permission and it would likely undermine his sovereign immunity argument because (I think, though I am not sure) any such immunity would belong to the Senate as a whole rather than the individual member.

Finally, a Senate resolution would deal with Graham’s third objection relating to potential conflicts between the Senate’s legislative schedule and a potential grand jury appearance. When the Senate authorizes testimony by a sitting senator, it insists that any court appearance must be consistent with Senate Rule VI, which provides that senators must not absent themselves from the service of the Senate without leave, and therefore that any testimony may not occur when the senator’s attendance at the Senate is necessary for the performance of his or her legislative duties.

Of course, whether or not such a resolution is introduced will depend less on the legal technicalities than whether one or more senators believe that the subject of Graham’s potential testimony is sufficiently important to merit the Senate’s attention. We shall see

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Trump v. Cummings May Not Be a Slam Dunk for Congress

 

See update below:

On Monday Donald J. Trump (in his personal capacity) and several of his businesses sued Elijah Cummings (chair of the House Committee on Oversight and Reform), the committee’s chief counsel, and Mazars, an accounting firm that had provided services to Trump and his companies. The suit aims to prevent Mazars from complying with a committee subpoena seeking financial statements and similar records related to Trump and his business activities.

Many immediately dismissed this as a nuisance suit designed solely to delay the committee’s investigation. To be honest, this was my first reaction as well. Upon closer inspection, while I still think Trump will lose, the case is somewhat stronger than expected.

While there may well be issues I have not considered, I see the case unfolding in three stages. First, there is the question whether the suit is barred by the Speech or Debate Clause. The answer is yes as to the congressional defendants, but no as to the third party accounting firm. Although the court cannot grant relief against the congressional defendants, it can enjoin Mazars from complying with the congressional subpoena without offending the Speech or Debate Clause. See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 n. 14 (1975) (suggesting a court may inquire into the validity of a subpoena directed to a third party even though a subpoena recipient cannot bring a challenge directly against Congress itself); id. at 516 (“The Speech or Debate Clause cannot be used to avoid meaningful review of constitutional objections to a subpoena simply because the subpoena is served on a third party.”) (Marshall, J., concurring); United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977) (relying on Justice Marshall’s concurrence in Eastland for the proposition that “the fortuity that documents sought by a congressional subpoena are not in the hands of a party claiming injury from the subpoena should not immunize that subpoena from challenge by that party.”). Nor should it matter if the court dismisses the congressional defendants form the case; indeed, Chairman Cummings may want to remain a party so that he can defend the validity of the subpoena.

The second question is whether Trump has asserted a facially valid objection to the subpoena. In my view, a third party challenge to a congressional subpoena must assert a constitutional privilege or some other constitutionally protected right. Here Trump has asserted neither a constitutional privilege nor a statutory/common law privilege (he cites the duty of accounting firms to maintain confidentiality but stops short of claiming, at least as I read the complaint, a legally cognizable privilege).

Instead, Trump claims that the subpoena is invalid because it lacks a legitimate legislative purpose. This is an objection that can be made by the subpoena recipient, but the absence of such purpose does not violate any constitutionally protected right of a third party who may be inconvenienced by or simply opposed to the congressional investigation. Trump relies on the aforementioned footnote 14 in Eastland for the proposition that a third party can challenge the legitimate legislative purpose of a subpoena, but the Court’s reference there was in the context of a First Amendment challenge to a subpoena. I would not read it as allowing a challenge to the legislative purpose by a third party where that purpose was not relevant to an asserted constitutional privilege. Nonetheless, the Eastland footnote is ambiguous on this point and one cannot rule out the possibility a court could agree with Trump’s interpretation.

If a court is willing to scrutinize the legislative purpose here, that would bring us to the third question in the case. Is there a legitimate legislative purpose for the subpoena at issue? The immediate purpose of the subpoena, of course, is to obtain evidence to support allegations by former Trump lawyer Michael Cohen that Trump engaged in dishonest business practices (such as overstating or understating his net worth) in violation of federal law. But what legislative purpose is served by such information?

There are two arguments I can think of in support of Congress’s interest in obtaining the information in question. One would be that the evidence is potentially relevant to impeachment. This, however, is a weak argument. Even if sleazy and illegal business conduct that precedes the president’s time in office is a basis for impeachment, there is no impeachment inquiry in the House and the oversight committee would not have jurisdiction over such an inquiry anyway.

The stronger argument would be that the information is potentially relevant to matters on which legislation may be had. Because Congress’s authority to legislate is broad, and the courts are deferential to congressional judgments about what information may be needed for legislative purposes, this is normally a fairly easy standard to meet. It would probably be enough if the committee had jurisdiction over the federal laws Trump is alleged to have violated. However, it likely does not.

The committee does have broad jurisdiction over matters relating to federal government personnel and agency management and operations generally. Presumably the committee will be able to identify some link between the matters it is investigating and that jurisdiction, but let’s say that it doesn’t jump off the page. And, as Trump’s lawyers can be expected to stress repeatedly, the Supreme Court  has said “[t]here is no congressional power to expose for the sake of exposure.” Watkins v. United States, 354 U.S. 178, 200 (1957).

In short, I think the committee probably wins this case at stage two. If it gets to stage three, the committee still probably has the edge, but it is not a slam dunk.

The good news is that even if the committee were to lose, it should not be on a ground that would compromise Congress’s ability to get information it truly needs. Moreover, by bringing this matter to court, Trump may have undercut arguments that his administration will want to make in the future against judicial involvement in enforcement of congressional subpoenas. This case therefore may inadvertently assist Congress’s forthcoming efforts to bring civil enforcement actions to secure compliance with its subpoenas and demands for information.

Update: Margaret Taylor (@MargLTaylor) points out that Chairman Cummings described the ostensible purpose of the Mazars subpoena in an April 12, 2019 memorandum to committee members. The memo states the committee “has full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.”

The first claim, that the committee is looking into potential illegal conduct by the president, has the advantage of reflecting the actual purpose of the subpoena. On the other hand, it is not true (in my judgment) that the House or the committee has the authority to look into illegality by President Trump for its own sake, particularly with regard to his activities prior to taking office.

The other claims may strike the court as more pretextual, but they are probably close enough for government work. The House undoubtedly has the authority to investigate financial conflicts of interest and potential emoluments violations by the president. It is also plausible, if less than completely clear, that such an inquiry would fall within the committee’s general good government jurisdiction. Whether the committee is actually pursuing such an inquiry, and whether the subpoena to Mazars can reasonably be seen as a first step in pursuing that inquiry, may be more debatable, however.

To me the strongest claim of a legitimate legislative purpose is the last one. If Trump was falsifying his financial statements as a private businessman, it stands to reason that he might also have done so as public official. This seems like a legitimate reason to follow up on Michael Cohen’s allegations of falsified statements. It might not be the committee’s actual reason, but the courts are not suppose to probe the actual motives of members in evaluating legitimate legislative purpose.

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Me Too’s Privileged Few

If you are interested in the law and custom of Parliament (lex et consuetude parliamenti), you should follow Jack Simson Caird on twitter (@jasimsoncaird). Had you done so, you too would have learned of a recent controversy involving parliamentary privilege and legislative self-discipline that caught my attention.

The story begins on October 24, 2018, when the Daily Telegraph, a British newspaper, charged that a “leading businessman” had engaged in “alleged sexual harassment and racial abuse of staff.” This reporting followed an eight month investigation by the Telegraph of the allegations in question. However, the newspaper was unable to reveal the identity of the businessman and other details of its findings because of an injunction issued by a three-judge appellate court at the request of the businessman and his companies. This ruling was widely criticized (at least according to the Telegraph) by MPs and others as a violation of press freedom and an inappropriate attempt to gag harassment victims.

The British court’s opinion explains that five employees had made allegations of “discreditable conduct” against the businessman in question, but all of these claims had been settled by agreements in which the employees had received “substantial payments” and the parties had entered into nondisclosure agreements. The court found that the claimants had made a showing sufficient to establish the likelihood “a substantial part of the [Telegraph’s] information was obtained through breach of duty of confidentiality to the Claimants, either in breach of the NDAs, or by those with knowledge of the NDAs, and that the Telegraph acquired the information with knowledge both of the NDAs and the breach of confidence.” Accordingly, the court issued a temporary injunction prohibiting the newspaper from publishing the businessman’s identity or other details about the alleged misconduct until a full trial on the merits.

Needless to say, the substantive law in the U.K. is quite different from that of the United States, where the First Amendment presumably would prevent a judicial order of this kind. The divergence is illustrated by the British court’s quote of the following from an earlier case:

To take an extreme example, the content of a budget speech is a matter of great public interest. But if a disloyal typist were to seek to sell a copy to a newspaper in advance of the speech in Parliament, there can be no doubt that the newspaper would be in breach of duty if it purchased and published the speech.

The notion that the advance leaking of a budget speech is an “extreme example” potentially justifying a prior restraint against publication would strike Americans as outlandish (though, to be fair, bribery of a government official to provide confidential information might well have other civil or criminal consequences in the U.S.).

What is interesting for our purposes, however, is not the substantive law on press freedom, but what happened next. On October 25, 2018, immediately following the issuance of the injunction, Lord Peter Hain revealed in the House of Lords some of the confidential information covered by the court’s order, including the identity of the businessman in question. This in turn allowed the British media, which otherwise would have been risking contempt of court, to report the information to the general public. (See this blog post by Professor Jelena Gligorijevic for further details). Hain’s action has been widely condemned as an abuse of parliamentary privilege.  Continue reading “Me Too’s Privileged Few”

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(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”