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”

(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”

Can Schock Turn the Tables (and Mirrors, Chandeliers, etc.) on the Government?

So last night I am at Costco and I get a tweet from @danielschuman directing my attention to two new filings by the legal team for former Congressman Aaron Schock, who is facing federal charges arising from, among other things, the allegedly improper use of his Members Representational Allowance to decorate his congressional office in a lavish “Downton Abbey” style. Schock’s attorneys maintain that the government’s allegations are built on a “house of cards” (heh) and are demanding discovery regarding certain aspects of the prosecution case, including whether prosecutors gave erroneous legal instructions to the grand jury about the House Ethics Manual and other House guidelines for official conduct by members of Congress.

The real blockbuster in the Schock motions, though, was the revelation that the FBI had recruited a congressional staffer in Schock’s district office to act as a confidential informant and, get this, wear a wire while having conversations with Schock and other members of his staff. The CI also allegedly seized or attempted to seize various documents from Schock’s office for the government’s benefit.

Schock’s team is livid, and I can’t say that I blame them. Bear in mind that the House Counsel has long taken the position that the FBI should go through its office to request or schedule interviews with members, officers or employees of the House related to official conduct. (The FBI supposedly agreed to this in the early 1990s, but, if so, this agreement has often been honored in the breach). The purpose of this procedure is to ensure that interviewees have the opportunity to be represented by counsel and that they understand the rights and obligations arising from their congressional service. For the FBI to not merely conduct an ex parte interview (which it has done before), but to turn a congressional staffer into an informant who secretly records conversations with his boss and colleagues, seems like a flagrant violation of the norms of conduct that have guided executive-legislative branch relations in the post-Watergate era. It is different, for example, than Abscam (controversial itself at the time), which involved third parties who were not subject to congressional rules and who did not enjoy a legislative relationship of trust and confidence with their targets.

A more difficult question is whether this breach of norms amounts to a legal violation that can be enforced in Schock’s criminal case. Schock’s lawyers argue that the government’s actions may constitute “violations of separation of powers principles, including those embodied in Speech or Debate jurisprudence” and assert that “the CI presented a direct threat to Mr. Schock’s Speech or Debate privilege.” They also contend, somewhat more directly, that by “us[ing] the CI to intrude upon Mr. Schock’s Office, to listen to and record conversations with Mr. Schock and his staffers, and to seize documents from with Mr. Schock’s Congressional Office,” the government “violated the Constitutional privilege against executive interference granted to all Members of Congress by the Speech or Debate Clause.”

The government’s alleged actions (and I should note my comments are based solely on what Schock’s lawyers have represented) certainly implicate fundamental concerns of the Speech or Debate Clause, but for reasons I have discussed before (see here for example), I am not sure they constituted violations of the Clause itself, at least as it has been interpreted by the courts. A Speech or Debate analysis would ask whether the government was prohibited from capturing, whether through the testimony of the CI, the secret recordings or pilfered documents, discussions of a legislative nature. But I don’t think that is the primary issue here. The bigger issue is the government’s improper use of a legislator’s “alter ego” (as legislative aides are called in the Speech or Debate jurisprudence) to act as a tool of the prosecution (i.e., the executive branch) without any contemplation of how this conflicted with his duties to the congressman and the House (i.e., the legislative branch).

The irony is that Schock’s prosecution rests in part on House rules, guidelines and norms of conduct (many of which his lawyers claim are not so clear). I am not aware of any specific House rule or guideline that prohibits a staffer from secretly recording his boss or stealing office documents to hand over to the government, but I think there is a decent chance the Ethics Committee would find this to be conduct not reflecting creditably on the House. Maybe the prosecutors should have sought an advisory opinion before they started down this path.

I may have further comments on this as things progress, but these are my initial reactions.

Would Speech or Debate Protect Attorney General Sessions from Prosecution?

It is being alleged that Attorney General Sessions gave untruthful testimony in his confirmation hearing. Specifically, in response to a question from Senator Franken about communications between Trump surrogates and representatives of the Russian government in the course of the 2016 presidential campaign, Sessions responded: “Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians, and I’m unable to comment on it.” In fact, Sessions apparently did have two discussions with the Russian ambassador during 2016, although it is unclear whether they discussed anything regarding the election.

For present purposes, we will skip the (serious) issue of whether there is a plausible basis for viewing this testimony as perjury or a material false statement that could be the basis of a criminal prosecution. Assuming that such a basis exists, there is an interesting legal question that arises. Would Sessions be immune from prosecution under the Speech or Debate Clause? For the reasons set forth below, the answer is probably no.

Continue reading “Would Speech or Debate Protect Attorney General Sessions from Prosecution?”

Virginia Supreme Court Takes on Speech or Debate

The Virginia Supreme Court recently issued a decision in Edwards v. Vesilind, No. 160643 (Va. Sept. 15, 2016), a case involving the application of the Virginia constitution’s speech or debate clause to a subpoena for documents directed to Virginia state senators and the Division of Legislative Services (DLS), a legislative agency that provides legal and other research services to the Virginia General Assembly. The subpoena, which arose from a lawsuit alleging that certain state house and senate districts violated the Virginia constitution, sought written communications and other documents related to the legislature’s formation of these districts, including documents that discussed (1) compactness, population and other criteria used to form the districts; (2) the role played by partisan or incumbent-protection considerations; and (3) the process of preclearance through the Virginia attorney general.

The Virginia senators and DLS objected to the subpoenas based on the Virginia speech or debate clause, which provides “Members of the General Assembly . . . for any speech or debate in either house shall not be questioned in any other place.” The trial court, however, narrowly construed this privilege as applying only to “purely internal legislative communications solely among legislators, and between legislators and legislative staff.” Moreover, it defined “legislative staff” as “legislative assistants and/or aides who are employed and paid by the individual legislators, a legislative committee, or the legislature as a whole.” It found DLS and its employees to fall outside these parameters and therefore held that agency entirely unprotected by legislative privilege. It further found that the senators could not withhold communications with DLS, political consultants or other third parties.

The trial court’s ruling was certified for direct appeal to the Virginia supreme court because of the importance of the questions presented, which were ones of first impression concerning the scope of the Virginia speech or debate clause. The supreme court’s ruling as to the scope of the privilege and who may invoke it is also of wider interest because it construed the Virginia clause as co-extensive with the federal Speech or Debate Clause. As the court noted, the language in the Virginia constitution is derived from the federal Clause, and “[b]oth provisions afford similar protections because they are based on the same historical and public policy considerations.” Slip op. at 8.

Continue reading “Virginia Supreme Court Takes on Speech or Debate”

Should SCOTUS Hear Senator Menendez’s Speech or Debate Case?

A Third Circuit panel recently rejected Senator Menendez’s Speech or Debate appeal, thereby clearing the way for his corruption trial to proceed. United States v. Menendez, No. 15-3459 (3d Cir. July 29, 2016) (slip opinion). Menendez, it is reported, may seek further review from the full Third Circuit and/or file a petition for certiorari with the Supreme Court. While the court’s conclusion is no surprise, its reasoning raises some questions which could be fodder for Supreme Court review.

To briefly recap the facts, Menendez is accused of having intervened with the executive branch on behalf of one Dr. Salmen Melgen in exchange for personal gifts and campaign contributions. For example, Menendez allegedly sought to persuade/pressure executive officials to drop a Medicare fraud investigation into Melgen’s billing practices.

Continue reading “Should SCOTUS Hear Senator Menendez’s Speech or Debate Case?”

Update on SEC v. Ways & Means

Judge Gardephe has granted the House’s motion for a state pending appeal of his order enforcing the SEC’s administrative subpoenas to the House Ways & Means Committee and its former staffer. In addition to finding that the balance of hardships weighed in the House’s favor (which seems fair), the court found there to be a “serious question” going to the merits of the legal dispute between the parties.

As far as one can tell from the stay ruling, this “serious question” relates to how the court applied the Speech or Debate privilege to the information sought by the subpoenas. The only specific issue mentioned, however, is “whether the Speech or Debate Clause provides a non-disclosure privilege for ‘legislative act’ documents.” Since the court resolved that issue in the House’s favor, it seems odd it would count as a serious question justifying a stay of the court’s ruling.

In any event, it looks like the Second Circuit will get a crack at this interesting case.

House Mulls Appeal of SEC Subpoena Decision

Judge Gardephe of the federal district court for the Southern District of New York has issued his long-awaited ruling in SEC v. Committee on Ways & Means, an enforcement action by the SEC to require the House committee and its former subcommittee staff director to comply with administrative subpoenas. The court rejected the House’s broadest arguments (by which it sought to avoid compliance with the subpoenas entirely), but it issued guidelines allowing the House to withhold certain information pursuant to the Speech or Debate Clause. The House was initially given ten days to comply with the subpoenas as limited by the court’s ruling (which would have meant complying during the week of Thanksgiving).

Personally, I think the decision was about as favorable to the House as reasonably could be expected (with one exception, which I will get to in a minute). It should have been no surprise that the court rejected the House’s sovereign immunity argument (see here and here). Judge Gardephe surveyed prior case law on inter-branch subpoenas and flagged House Rule VIII, which expressly mandates compliance with administrative subpoenas. See op. at 12-18. He concluded: “Given that no court has ever held that sovereign immunity applies to an inter-branch subpoena, and given that House rules appear to acknowledge that no blanket sovereign immunity applies to an administrative subpoena issued by a Federal agency to the House, a House member, or House staff, this Court concludes that sovereign immunity has no application here.” Id. at 18. Moreover, even if sovereign immunity applied, the court found that Congress waived it for these purposes by passing the STOCK Act. Id. at 21.

On Speech or Debate, the court agreed with the House on two key issues. First, it agreed that the Clause provides a non-disclosure privilege for documents reflecting legislative acts, disagreeing with the Third and Ninth Circuit position that Speech or Debate is merely a non-use privilege with regard to documentary evidence. Op. at 63. The court noted: “Whether an Executive Branch subpoena seeks testimony from a Member concerning a ‘legislative act’ or documents that fall ‘within the sphere of legitimate legislative activity’ is, in this Court’s view, immaterial under the Speech or Debate Clause. . . . The issuance of such subpoenas, and a judicial practice of enforcing them, also presents a significant risk of intimidation, and upsets the checks and balances the Framers envisioned, and put in place.” Id. at 58.

Second, the court agreed that the Speech or Debate Clause protects both formal and informal legislative information gathering. Op. at 58. Although the court did not define precisely the outer boundaries of informal information gathering, it seemed to take a broad view of this activity, explicitly noting that it would “extend to a legislator’s gathering of information from federal agencies and from lobbyists.” Id. at 49. Thus, for example, communications from the Greenberg law firm to Brian Sutter, the committee staffer, could be protected if they were part of the committee’s “informal information gathering concerning a matter that might be the subject of legislation.” Id. at 64.

These victories may not benefit the House much in the short term because the court’s opinion allows the SEC to obtain the information it primarily seeks, i.e., whether Sutter tipped off a Greenburg lobbyist as to a pending decision on Medicare reimbursement rates. (This result is not surprising either.) But over the longer term the court’s language and reasoning provide a useful precedent for House lawyers seeking to protect the institution from intrusive subpoenas.

There is, however, one exception. The court ordered the House to provide a privilege log for any documents that it withheld on the basis of the Speech or Debate privilege. House and Senate lawyers have always resisted providing such logs, arguing that requiring them itself intrudes on the privilege. As far as I know, neither the House nor Senate has provided such a log in the past. Requiring them as a routine matter, at least, would place a burden on Congress’s exercise of the privilege that its counsel would rather avoid.

In any event, the House has requested an extension of time to comply with the court’s order, stating that it needs to consider whether or not to appeal. Citing both the sovereign immunity and privilege log issues in particular, the House explains that the court’s ruling presents “multiple issues of tremendous institutional importance to the U.S. House of Representatives, and our structure of government in general.”

In response to the House’s request, Judge Gardephe has extended the deadline to December 7. Stay tuned.

Government Not Impressed by Menendez’s “Policy” Approach to Speech or Debate

The government has filed its brief in opposition to Senator Menendez’s Speech or Debate arguments. A fuller analysis will have to wait, but the arguments look to be pretty much as I expected.

From the brief’s conclusion:

Defendant Menendez’s broad, unprincipled interpretation of the Speech or Debate Clause is a blueprint for immunizing criminal activity on Capitol Hill. Under defendant Menendez’s interpretation, all a Member of Congress—or staffer—would have to do in order to shield his illegal activity from criminal prosecution is insert the word “policy” into a corrupt conversation, mention an unrelated bill in an unlawful email, write something legislative on a calendar entry for an illicit gathering, threaten to hold a hearing at the conclusion of a meeting, or ask for a briefing at the end of an effort to influence the Executive Branch.

Will Senator Menendez’s Speech or Debate Gambit Work?

Last week Senator Menendez’s legal team moved to dismiss all of the charges against him on the ground that they depend on evidence protected by the Speech or Debate Clause. The key issue is whether the Clause’s protection applies to certain meetings and communications between Menendez (and/or his staff) and executive branch officials, including Secretary of HHS Kathleen Sebelius and Marilyn Tavenner, the head of the Center for Medicare and Medicaid Services (CMS).

The prosecution alleges that Menendez was attempting to pressure the executive branch into making policy changes for the benefit of Dr. Salomen Melgen, a close personal friend who had given the senator significant campaign contributions and personal gifts. In the case of Sebelius and Tavenner, for example, Menendez questioned CMS’s prohibition on multi-dosing of the drug Lucentis, a policy that exposed Melgen to significant legal and financial jeopardy.

Menendez does not dispute that Melgen brought the Lucentis issue to his attention, but he argues that this does not prevent his communications with the executive branch from constituting protected legislative oversight. His brief states:

Senator Menendez serves as a member of the Committee on Finance, which oversees HHS and CMS. In June 2009, Senator Menendez alerted his staff to a Medicare issue concerning his “close personal friend,” Dr. Melgen, and his staff then began investigating the issue. Throughout their entire investigation, the prosecutors failed to grasp the policy issues at stake and wrongly concluded that because Dr. Melgen was using facts personally known to him in his administrative matter that he must have been asking for his friend to intervene in his case. Nothing could be further from the truth, and discovery bears out that Senator Menendez made no effort to ever intervene in Dr. Melgen’s pending matters. The issues from Dr. Melgen’s case highlight a broader policy question of this Administration’s actions that benefit pharmaceutical companies while discounting issues experienced by practicing physicians—a policy question that falls squarely within Senator Menendez’s oversight responsibilities as a member of the Senate Finance Committee.

Menendez Br. at 13-15 (citations omitted).

To prevail on this motion, Menendez will likely have to persuade the court of two propositions, each of which is fairly considered a long shot. The first is a procedural/evidentiary point about how the court should evaluate whether the senator’s executive branch communications were protected legislative activity, on the one hand, or unprotected “constituent service,” on the other. Menendez seems to argue that so long as his communications were ostensibly about policy issues, rather than a particular individual or case, they are protected even if they were actually motivated by a desire to help that individual (and, presumably, even if the executive branch officials understood this to be the senator’s primary or sole objective). See Menendez Br. at 8 (“Courts must examine the substance of the communications themselves to determine whether the communications are apparently legislative activity and thus immunized by the Speech or Debate Clause.”) (emphasis in original); id. at 9 (“An errand on behalf of an individual that does not require a change in policy would be unprotected case work . . ., but the appearance of a broader policy issue changes the Speech or Debate analysis entirely.”) (emphasis added).

This position seems to me to be more lenient toward the assertion of Speech or Debate than previously enunciated in the caselaw, including by the Third Circuit’s interlocutory opinion in the Menendez investigation itself. There the court seemed to think that the actual purpose of the communications, not merely their ostensible policy content, was relevant to the Speech or Debate analysis. See In re Grand Jury Invest. (Menendez), slip op. at 4-5 & n. 3 (3d Cir. Feb. 27, 2015). Because Menendez’s communications were not “manifestly legislative acts,” the Third Circuit held, the district court must make specific factual findings about the legislative or non-legislative character of the communications. To the extent the communications had both a legislative component (e.g., gathering information for legislative purposes) and a non-legislative component (e.g., attempting to influence how the agencies treated Melgen’s case), the court instructed that these components should be separated, if possible, and if not the district court “must ascertain the nature of the act or communication by assessing its predominant purpose.” Id. at 5.

This language suggests that Menendez’s communications will not be protected if their predominant purpose was to benefit Melgen, even if they were phrased in purely policy terms. Put another way, a member cannot obtain Speech or Debate protection for his otherwise unprotected constituent service merely by avoiding any explicit reference to the actions he wants the agency to take. Cf. U.S. v. Blagojevich, slip op. at 12 (7th Cir. July 21, 2015) (“’Nudge, nudge, wink, wink, you know what I mean’ can amount to extortion under the Hobbs Act, just as it can furnish the gist of a Monty Python sketch.”).

The second questionable part of Menendez’s argument is the proposition that attempts to influence executive agencies are protected by Speech or Debate if they qualify as legislative oversight. As I noted in a previous post, and as the Third Circuit explained in U.S. v. McDade, 28 F.3d 283, 300 (3d Cir. 1994), the Supreme Court has often stated that attempts to influence the executive branch do not fall within the Speech or Debate Clause. Menendez does not explicitly refer to this caselaw, but he presumably will argue that the Court’s broad language should be read as applying only to routine casework for constituents, not to efforts to monitor or guide an agency on matters of policy, particularly by a member of a committee with jurisdiction over the subject.

The court found it unnecessary to resolve this issue in McDade and the recent Menendez panel did not address it directly. It seems unlikely to me that the facts of the Menendez case provide a good vehicle for establishing a “legislative oversight” exception to the general rule laid down by the Supreme Court. But it is somewhat difficult to disentangle this issue from the first question of whether Menendez’s predominant purpose was to assist Melgen rather than to advance a legislative objective.

All in all, I would rate Menendez’s chances of prevailing on his Speech or Debate motion as slim. As noted in footnote 6 of the senator’s brief, however, an order denying his motion can be immediately appealed. Thus, win or lose at the district court level, Menendez will be able to delay his trial, possibly through the end of the Obama administration, if he so chooses.