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.

Speech or Debate issues in the Menendez investigation

According to a sealed opinion inadvertently and briefly posted on the Third Circuit’s website, two aides to Senator Robert Menendez are refusing to answer certain grand jury questions based on the Speech or Debate privilege. The opinion is no longer available online, but this New Jersey Law Journal article summarizes the issue before the court.

The investigation concerns Menendez’s relationship with a Dr. Melgen, a Florida eye doctor accused of overbilling Medicare by millions of dollars. Melgen also owns a company that contracted to provide x-ray inspection services for shipping containers in the Dominican Republic. The Justice Department is apparently seeking to determine if Menendez intervened with government agencies on behalf of Melgen’s business interests and whether any such actions were related to campaign contributions and personal gifts Melgen provided to the senator. (For more on the investigation, including a quote from me, see this Washington Post article).

The more interesting Speech or Debate issue relates to meetings and discussions that Menendez had with executive branch officials and agencies regarding Melgen’s Medicare billings. The NJLJ article explains:

The government alleges that Menendez and his staff advocated on behalf of Melgen in a June 7, 2012 meeting with Marilyn Tavenner, then acting administrator of CMS; that Menendez later had a follow-up call with Tavenner; and that Menendez and Sen. Harry Reid, D-Nevada, met on August 2, 2012, with Secretary of Health and Human Services Kathleen Sebelius.

The government wants to question a Menendez staffer, Michael Bernard, about these conversations and “other communications between the senator’s office and Alan Reider, Melgen’s lawyer and lobbyist, about the conversations with those officials.” Bernard refused to answer some 50 questions about these subjects based on the Speech or Debate privilege.

It is easy to understand why the district court would have looked askance at this privilege assertion. In Hutchinson v. Proximire, 443 U.S. 111, 121 n. 10 (1979), the Supreme Court stated that “[r]egardless of whether and to what extent the Speech or Debate Clause may protect calls to federal agencies seeking information, it does not protect attempts to influence the conduct of executive agencies….”; see also Doe v. McMillan, 412 U.S. at 313, 93 S.Ct. at 2025 (“Members of Congress may frequently be in touch with and seek to influence the Executive Branch of Government, but this conduct `though generally done, is not protected legislative activity.'” (quoting Gravel v. United States, 408 U.S. 606, 625 (1972))).

On its face, a conversation between Senator Menendez and executive branch agencies about Dr. Melgen’s case sounds a lot more like an attempt to influence or cajole the agencies than like an attempt to gather information for use in the legislative process. Moreover, even if the conversation could be characterized as partially for the purpose of informal information-gathering, this alone may not be enough to protect the conversation, for reasons that we have discussed before. Unless every conversation that might conceivably produce useful information is protected, there has to be some more specific showing to tie the conversation to a particular legislative activity, such as a committee investigation. Finally, the attempt to protect discussions with Melgen’s lobbyist seems even more far-fetched. Accordingly, it is not surprising that the district court rejected the privilege assertion.

Nevertheless, Menendez’s lawyer, Abbe Lowell, was able to convince the Third Circuit that there was at least a chance that these conversations were protected by Speech or Debate. The appellate panel distinguished between manifestly legislative acts protected by the privilege and “others, such as informal fact-finding and oversight, [which] are not manifestly legislative and can look like unprotected political acts.” If Menendez can prove that the “predominant purpose” of the conversations in question was to gather information for legislative purposes, rather than to get the agencies to act on Melgen’s behalf, his privilege claim should be sustained. Accordingly, the court remanded the case to the lower court for more specific findings as to the content and purpose of each disputed communication.

It still seems to me to be a long shot that Speech or Debate would protect against disclosure of these communications. But note that if Menendez persuades the court that particular communications are protected by the privilege, the government would be precluded from putting on evidence about these communications at trial, even from executive branch witnesses. This could significantly complicate any prosecution.

The other Speech or Debate issue relates to the government’s attempt to take testimony from Menendez’s former chief counsel, Kerri Talbot as to whether the senator would invoke the Speech or Debate privilege with respect to certain emails sent to CBP regarding Melgen’s business in the Dominican Republic. Talbot refused to answer these questions on the basis of Speech or Debate privilege. This refusal seems to me to be proper, and, even if it isn’t, it is hard to understand what legitimate interest the government has in asking a staffer about this subject. If it wants to know what Menendez’s legal position is, it can ask Abbe Lowell.


The Speech or Debate Clause and Protection of Informal Information Gathering

A couple months ago we discussed the question of whether informal information gathering is a legislative activity protected by the Speech or Debate Clause. As I noted at the time, there is case law suggesting that some informal information gathering is protected, but significant uncertainty as to how one defines the type of information gathering meriting such protection.

An easy case would be a witness interview conducted by committee investigators. Such an interview would be informal in the sense that the witness’s attendance is voluntary, there would (probably) be no transcript of the interview, and there would be no formal procedures for asking questions and making objections. Yet in function and substance such an interview is very similar to a committee deposition, and thus a strong case can be made that it warrants the same level of protection.

Now extend that to a telephone conversation in which a committee investigator calls a witness to ask the same sort of questions. This is even more informal than a scheduled, in-person interview, but if it is clear from the circumstances that the investigator is gathering information for use in a committee investigation, it would make sense to treat it the same way.

The problem comes in trying to extend this principle to the myriad conversations and meetings that a typical committee staffer (or any congressional staffer) would have during the course of a day. These could include discussions with agency officials, constituents, lobbyists, interest groups, government contractors, legislative support staff and many others. During any one of these conversations a staffer might gather some information of potential use to the committee’s investigatory and oversight activities, but the same conversation might cover many other matters, such as constituent complaints, efforts by lobbyists and others to obtain contracts, favors or other benefits from the legislative or executive branches, or “cajoling” of agencies by members of Congress. One might also distinguish between the type of general background information that might be covered in a typical agency briefing and specific information that might be obtained from a fact witness on a matter the committee is investigating.

One question that might be asked is whether any statements made by the outside individual to the congressional staffer would be covered by the False Statements Act, 18 U.S.C. 1001, which criminalizes false statements to Congress in the course of “any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.” That section would seem to presume some sort of structure or formality to connect the false statement to the investigation or review, as opposed to statements that might be made in the course of impromptu conversations with congressional staff.

An interesting recent case on this issue is Williams v. Johnson, Civ. Action No. 06-2076, in which the plaintiff, an employee of the DC Department of Health, sued the DC Government for allegedly retaliating against her for remarks she made in testimony before the DC Council Committee on Health and in a separate meeting with the chairman of that committee, David Catania, and two of his aides. She subpoenaed Catania and one of his aides to testify and produce documents related to these events, and they moved to quash on the basis of DC’s Speech or Debate statute, which has been interpreted to provide the same protection as the federal Speech or Debate Clause. Continue reading “The Speech or Debate Clause and Protection of Informal Information Gathering”

Senator Ervin on Congressional Discipline and Speech or Debate

I have previously explained that the Speech or Debate Clause does not protect members from discipline by their legislative body, up to and including expulsion. Since the subject arose again in the last couple of days (in the course of a Glenn Greenwald initiated thread on Twitter), it may be worth adverting to Senator Ervin’s argument before the Supreme Court in Gravel v. United States.

Senators Ervin and Saxbe represented the Senate as amicus curiae in the case, and the Court gave the Senate time during oral argument. Ervin’s argument stressed that the Senate “holds no brief” for Senator Gravel or his actions (i.e., reading of the classified Pentagon Papers in a subcommittee meeting). He acknowledged that Gravel’s actions may have been improper and/or in violation of Senate rules, but he contended that the Constitution places these questions exclusively within the jurisdiction of the Senate.

Senator Ervin stressed that a member of Congress is “not accountable” to the executive or judicial branches for his legislative activity, whether that activity is “regular or irregular under the rules of the legislative body of which he is a member.” In Gravel’s case, those questions were the business only of the Senate itself. In response to a justice who asked “That inquiry or discipline or both is something exclusively for the Senate?,” Ervin responded, “That’s right.”

Pointing out that the Rules of Proceedings and Discipline Clauses are in the section of Article I immediately preceding the section in which the Speech or Debate Clause appears, Ervin reiterated: “Our position is that . . . even though Senator Gravel may have violated Senate rules and even though he may have acted improperly, that is a matter for the judgment of the Senate and no other power in our government has the right to make any official pronouncement on that subject.”

Greenwald and his ilk argue that senators who believe (or claim to believe) that classified information should be released should put their money where their mouth is by reading the information on the floor of the Senate, where they would be protected by Speech or Debate immunity from legal punishment (though not from congressional discipline). Whatever one thinks about such congressional “civil disobedience” as a normative matter, I am puzzled that anyone would advocate it when the senators have not yet used, or attempted to use, the established Senate procedure for releasing classified information.

Renzi Loses Coming and Going on Speech or Debate

As the Ninth Circuit helpfully explained yesterday (hat tip: Zoe Tillman) in affirming former congressman Rick Renzi’s conviction on various corruption charges, “Congressmen may write the law, but they are not above the law.” In doing so, the panel rejected two Speech or Debate arguments Renzi raised on appeal. (For Renzi’s prior unsuccessful trip to the Ninth Circuit on Speech or Debate, see here).

The first issue revolved around two pieces of testimony the prosecution elicited from Joanne Keene, Renzi’s former district director. Keene testified that (1) Renzi’s interest in a potential land exchange bill seemed to depend on whether the tract of land belonging to his secret business partner was included and (2) Renzi indicated to her that he was having second thoughts about the land exchange legislation because of the news about Duke Cunningham’s indictment on corruption charges. The prosecution contended that this testimony did not violate the Speech or Debate Clause because it directly rebutted evidence Renzi had offered to show that his actions in the legislative process were taken for legitimate reasons.

The Ninth Circuit agreed, holding “if a member of Congress offers evidence of his own legislative acts at trial, the government is entitled to introduce rebuttal evidence narrowly confined to the same legislative acts, and such rebuttal evidence does not constitute questioning the member of Congress in violation of the Clause.” This sounds likes a waiver analysis, but the court declined to characterize it as such (in order to avoid Supreme Court caselaw setting a very high bar for waiver of Speech or Debate). Instead, the court concluded somehow that Renzi was not being “questioned” within the meaning of the Clause. Nevertheless, the court’s basic approach, which accords with that of other circuits, seems to make sense. After all, it is hard to see how a member of Congress can introduce exculpatory evidence of legislative acts and not have that evidence subject to some degree of rebuttal or cross-examination. (On the other hand, the D.C. Circuit appears to have adopted something akin to a no cross-examination rule in the context of congressional employment cases).

The more interesting language from the court’s opinion, though, appears in footnote 24, where the Ninth Circuit indicates that the evidence challenged by Renzi would in any event not violate the Speech or Debate Clause because it concerned only Renzi’s performance of future legislative acts. The footnote suggests there is no protection for discussion of potential legislation that has not actually been introduced, while discussion of introduced legislation may be considered part of the legislative process and therefore protected.

As far as I know, this is the first time a court has suggested that the formal introduction of legislation is key to determining the applicability of the Speech or Debate Clause. This would mean, for example, that if Renzi had drafted a land exchange bill, but told his staff to hold off introducing it because of the Duke Cunningham investigation there would be no protection. On the other hand, if Renzi actually introduced the legislation, but told his staff to hold off seeking co-sponsors for the same reason, the Clause would apply. It is hard to see how this distinction makes sense as a matter of constitutional text or purpose. If taken seriously, it would call into question whether legislative activities such as fact-gathering or bill-drafting would be protected.

But the Ninth Circuit panel itself may not take the distinction that seriously. This is shown by the court’s disposition of Renzi’s second Speech or Debate argument. Renzi had wanted to call the former chief of staff to Congressman Kolbe to testify about “conversations between Kolbe and Renzi regarding the proposed [land exchange] bill.” However, “[b]ecause this testimony directly implicated Kolbe’s legislative activities,” the appellate panel concluded that this testimony was properly excluded as violating Kolbe’s Speech or Debate privilege.

The land exchange bill in question, however, was never actually introduced: thus it would seem that Kolbe’s discussions with Renzi should have been unprotected under the court’s own reasoning. It appears that the trial and appellate courts applied the Clause inconsistently to allow evidence the prosecution wanted to introduce but block evidence that Renzi wanted to introduce. Perhaps there is an explanation for this discrepancy, but it is not obvious to me.

Maybe they just don’t like congressmen who think they are above the law.

Two lobbyists and a congressional staffer walk into a strip club called Privilege

This is surely the start of an awesome joke. Email me when you come up with the rest.

Ok, I could have entitled this “D.C. Circuit issues mildly interesting decision on the Speech or Debate Privilege,” but then you wouldn’t be reading it, would you?

Anyway, the court just issued this decision upholding the conviction of Frasier Verrusio, the hapless former policy director for the House Committee on Transportation and Infrastructure, who somehow managed to parlay a night of boring Washington-style debauchery into three felony counts of receiving illegal gratuities.

Basically, there were two lobbyists, Todd Boulanger and James Hirni, who were scheming to get some language inserted into the federal highway bill at the last minute on behalf of a client called United Rentals. They sought assistance from Verrusio and a Senate staffer named Trevor Blackann for this so-called “airmail strategy.” Then the client representative, Todd Ehrlich, snagged some tickets to the first game of the 2003 World Series, and the rest was history:

Hirni invited Blackann and Verrusio to the World Series game and made clear that United Rentals would cover the costs. Both men accepted the invitation. Hirni and Blackann flew to New York together and met Ehrlich there. Over drinks, Blackann described the airmail strategy that he, Verrusio, and the two lobbyists had agreed was “the best course of action.” Shortly thereafter, Verrusio joined them for dinner. According to Hirni, the four men “talked a lot about United Rentals” and “got into a conversation about concepts and ideas United Rentals had for federal legislation.” Verrusio was “the senior guy at the table,” Blackann testified, and was “leading the conversation.” Verrusio “walked them through” the airmail strategy, indicating that it had “the best chance for ultimate success.” Ehrlich paid for the dinner and drinks.

On the way to Yankee Stadium, the chauffeured car carrying the four men stopped at a convenience store, where Hirni bought several small bottles of liquor for the group. The men then went on to the game. On their way out of the stadium, Verrusio signaled to Hirni that he and Blackann wanted souvenir jerseys. Hirni paid for them with his corporate credit card.

After leaving the stadium, the group went to a strip club called Privilege. Hirni paid the cover charge and the cost of drinks, while Ehrlich paid for several lap dances. Hirni also bought Verrusio and Blackann t-shirts from the club. When the group left, they stopped for pizza before returning to their hotel. The next morning, Hirni paid the hotel expenses, and Verrusio, Blackann, and Hirni took a car to the airport and flew to Washington, D.C.

Slip op. at 5-6 (citations omitted).

None of that is particularly important, but I wanted you to know that I didn’t make up the part about the strip club.

So on to the Speech or Debate issue.

Continue reading “Two lobbyists and a congressional staffer walk into a strip club called Privilege”

Who is Responsible for the Employer Mandate Delay?

There were a couple of things missing from the testimony regarding the legal merits of the employer mandate delay at Wednesday’s Rules Committee hearing. The first was any reference to the legal authority claimed by the administration when it announced the initial delay of the employer mandate under the Affordable Care Act. This is surprising because Mark Mazur, Assistant Secretary of the Treasury for Tax Policy, was very specific in explaining the legal basis claimed for the administration’s action.

Mazur’s letter of July 9, 2013 to the Honorable Fred Upton, Chairman of the House Energy and Commerce Committee, explains the decision “to provide transition relief with respect to three provisions of the ACA: reporting by certain employers under section 6056 of the Internal Revenue Code (“the Code”); reporting by insurance companies, self-insuring employers, and other entities that provide health coverage under section 6055 of the Code; and the employer shared responsibility provisions under section 4980H of the Code.” This “transition relief” meant “no employer shared responsibility payments will be assessed for 2014,” although employers were “encouraged” to “maintain or expand health coverage for 2014.” IRS Notice 2013-45. In effect, the Treasury Department waived the legal obligation of the employer mandate, which under the ACA was to take effect January 1, 2014, for a one-year period.

Mazur’s letter is succinct with regard to the legal authority for this action: “The Notice is an exercise of the Treasury Department’s longstanding administrative authority to grant transition relief when implementing new legislation like the ACA. Administrative authority is granted by section 7805(a) of the Internal Revenue Code.”

That’s it. That’s the entire claimed legal justification for the employer mandate delay: section 7805(a) of the Internal Revenue Code. But I did not hear that code section mentioned once during all of the Wednesday’s testimony. Instead, there was a good deal of discussion, much of it in fairly vague terms, about general principles of administrative law that recognize some agency discretion to adjust statutory deadlines in a “reasonable” fashion. Whatever the merits of that legal position, it was not the justification offered by the Obama administration to Congress.

Section 7805(a) provides, in its entirety, as follows:

Except where such authority is expressly given by this title to any person other than an officer or employee of the Treasury Department, the Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.

The one thing that is very clear from this language is the identity of the person empowered to prescribe the regulations referred to by the section. It is the Secretary of the Treasury. Not the President. Not the Assistant Secretary for Tax Policy. Not anyone the Secretary might care to designate. Indeed, one might plausibly read the section as not providing substantive regulatory authority at all, but simply as identifying the Secretary as the default authority for issuing all rules and regulations not expressly delegated to another official.

Yet during the entire Rules Committee hearing, I do not believe I heard a single reference to the Secretary, either by name or title. In contrast, there were many, many statements from both the majority and minority side ascribing the relevant decisions to the President.  See, e.g., Written Statement of Simon Lazarus (“[T]he President has authorized a minor temporary course correction regarding individual ACA provisions, necessary in his Administration’s judgment to faithfully execute the overall statute, other related laws, and the purposes of the ACA’s framers. As a legal as well as a practical matter, that’s well within his job description.”).

This is very peculiar. Whatever the scope of the authority provided by Section 7805(a), that authority clearly falls within the Secretary’s job description, not the President’s. Constitutional scholars, of course, have long argued the extent to which department heads and other executive officials can be given legal duties and authorities insulated from presidential oversight (the “unitary executive” debate), but that is a far cry from treating the Secretary of the Treasury as if he were the Charlie McCarthy to the President’s Edgar Bergen (yeah, I know, I’m old).  Hamilton must be turning in his grave.

Moreover, there is no indication in Mazur’s letter to Chairman Upton that President Obama had anything to do with the decision to extend the employer mandate. The letter is rather sketchy on the details of the decision-making process, but it clearly indicates that the impetus for the decision were “concerns about complying with the reporting requirements and the time needed to implement them effectively.” The Treasury Department evidently felt that there was not enough time to implement the reporting obligations of the law in a way that would avoid imposing burdensome or impractical requirements on the business community.  Moreover, Mazur makes it clear that the decision to extend the employer mandate was simply a necessary result of delaying the reporting requirements. See 7-7-13 Letter at 2 (“We recognize that this transition relief will make it impractical to determine which employers owe shared responsibility payments (under section 4980H) for 2014.”).

If Mazur’s explanation is even close to being true, it is apparent that President Obama could not have played a prominent role in making the decision to extend the employer mandate. Surely no one thinks that Obama was involved in drafting or evaluating the reporting requirements for employers and insurance companies, any more than he was writing code for healthcare.gov. The idea of extending the reporting deadlines, and as a consequence the employer mandate, would have had to originate with the Treasury officials directly responsible for these aspects of the law, and those officials presumably conducted a policy and legal analysis of this alternative among others for consideration by the Secretary of the Treasury. No doubt, given the policy and political importance of the issue, the Secretary presented his decision or proposed decision to the White House for approval, but this should have occurred well after the Treasury Department had thoroughly vetted the issue.

From this it should be apparent that the official accountable to Congress, at least in the first instance, for the decision to delay the employer mandate is Jacob Lew, the Secretary of the Treasury. Any analysis of the House’s remedies with regard to this decision must begin with that understanding.

The Legislator-Lobbyist Privilege?

We all know that there are certain confidential and intimate relationships that the law deems worthy of special protection. These include the clerical privilege (also known as priest-penitent), the attorney-client privilege, the doctor-patient privilege and of course the spousal privilege. The House of Representatives would like to expand that list to include the legislator-lobbyist relationship, which involves the kind of “pillow talk” that DC considers most precious.

OK, I exaggerate, but not by that much. In its opposition to the SEC subpoena enforcement action, the House argues all the information sought by the SEC, including information about conversations between members or staff of the Ways & Means Committee and private lobbyists, is protected by the Speech or Debate Clause. See House Brief at 30, 34-37.

Continue reading “The Legislator-Lobbyist Privilege?”

SEC v. Ways and Means

As reported by the Wall Street Journal, the Securities and Exchange Commission has filed suit against the House Committee on Ways and Means to enforce subpoenas seeking documents as well as the testimony of Brian Sutter, the committee’s staff director. The subpoenas were issued in the course of the SEC’s “investigating whether material nonpublic information concerning the April 1, 2013 announcement by the U.S. Centers for Medicare and Medicaid Services of 2014 reimbursement rates for the Medicare Advantage program was leaked improperly to certain members of the public in advance of CMS’s announcement, and whether such action resulted in insider trading in violation of the federal securities laws.” Apparently the SEC believes that Sutter may have been one source of information relied on by a Greenberg Traurig lobbyist (presumably Mark Hayes, although he is not named in the complaint) who provided advance notice of the rate announcement to a securities firm.

This has the potential to be a really big deal, both from a legal perspective (the House is resisting the subpoenas on Speech or Debate grounds, among other things) and as a political headache for the House and its leadership. For now, I will just post a copy of the complaint, which is pretty interesting.

Judge Bates Dismisses Rangel’s Lawsuit

Last week, as expected, Judge Bates dismissed Representative Rangel’s lawsuit against the Speaker, the Clerk and various former members and staff of the Ethics Committee. As the court notes in conclusion, “everything on Rangel’s wish list implicates insurmountable separation-of-powers barriers to the Court’s exercise of authority,” with the “most problematic [being] Rangel’s unprecedented view that this Court may order the House to, in effect, un-censure him.”

This is certainly correct, and I think the court’s 49-page opinion gives Rangel’s arguments rather more attention than they deserve. Dismissal was more than justified by the following points made in the opinion:

  1. Rangel sued the wrong party. The court points out that “Rangel’s reputational harm was not caused by any of the defendants but by the House as an independent body- and it is not a party to this action.” (slip op. at 11)
  2. An order against these defendants would not have redressed Rangel’s alleged injuries because the defendants have no power to alter the House’s Journal (the relief requested by Rangel) on their own. (slip op. at 35)
  3. Even if the House had been a party, the court lacks the power to order the House to take any action that would redress Rangel’s alleged injuries. “This Court has the same ability to order the House to edit its own Journal as it does to order the House to discipline one of its Members or to promulgate a particular Rule- none.” (slip op. at 35-36)
  4. All of the defendants were in any event immune under the Speech or Debate Clause. (slip op. at 36-44)

Unfortunately, Judge Bates was not content to rest his opinion on these points but also engaged in an extensive, unnecessary and rather confusing discussion of the political question doctrine. He concludes that Rangel’s claims are barred by the political question doctrine, but only because Rangel failed to state a viable constitutional claim in the first place. The political question doctrine, however, is designed to identify situations in which a non-judicial body has the final say on a constitutional issue. If it applies only because the court finds no constitutional issue to resolve, invoking the doctrine seems pointless. The court seems to think that directly reviewing Rangel’s claims on the merits, rather than as part of the political question analysis, would evince a “lack of disrespect” (I think it means lack of respect) for the House, but the price of this politeness is to make the political question doctrine even murkier than it is already.

On balance, though, this opinion should stand as a caution against challenging House disciplinary proceedings in court, and that’s a good thing. One final note—someone should bring to the court’s attention that Nixon v. United States, 506 U.S. 224 (1993) involved Judge Nixon, not former President Nixon. See slip op. at 33 (referring to “an ex-President challenging his impeachment in the courts.”).