Will the Mazars Court Overrule McGrain? (Part One)

Nearly a century ago the Supreme Court decided the landmark case of McGrain v. Daugherty, 273 U.S. 135, 174 (1927), in which the Court declared that “the power of inquiry– with process to enforce it– is an essential and appropriate auxiliary to the legislative function.” In so holding, the Court dispelled doubts raised by Kilbourn v. Thompson, 103 U.S. 168 (1880), where, as we discussed here, the Court had expressed skepticism whether Congress could issue compulsory process outside the context of its judicial functions (such as impeachment and disciplining its members). McGrain settled this issue in Congress’s favor and, along with subsequent cases, established such a deferential judicial stance toward the validity of congressional investigations  that no congressional investigation since has been held to exceed Congress’s legislative powers. After listening to the oral argument in Trump v. Mazars USA, LLP, however, one has to wonder whether this will soon change.

The McGrain case arose from a Senate resolution calling for a broad investigation into the activities of Attorney General Harry Daugherty (our old friend) and his associates at the Department of Justice, including, but by no means limited to, Daugherty’s failure to pursue legal actions against individuals linked to the Teapot Dome scandal. Suspicions regarding Daugherty’s negligence or favoritism with regard to Teapot Dome, however, were the least of the attorney general’s troubles. Senate hearings in March 1924 featured blockbuster testimony from witnesses who claimed Daugherty and his associates had received large amounts of illicit cash which were deposited in a small Ohio bank run by Daugherty’s brother, Mally (“Mal”) Daugherty. The hearings led to Attorney General Daugherty’s forced resignation on March 28, 1924 and to a subsequent testimonial subpoena requiring Mal to appear before the Senate committee investigating his brother. When Mal refused to appear, the Senate ordered him taken into custody, and he immediately petitioned for a writ of habeas corpus in the federal district court for the Southern District of Ohio. (Fun fact: the judge who initially received the habeas petition was Smith Hickenlooper grandfather of the former Colorado governor and presidential candidate).

At this point matters stood at something of a crossroads. With Daugherty’s resignation, the major figures in the scandals of the Harding administration were out of office, and the new Coolidge administration (President Harding having passed away in 1923) was eager to disassociate itself from them. On the other hand, many Republicans argued that the congressional investigations into these scandals were political and excessive, and members of the bar warned that such investigations threatened civil liberties. Chief Justice Taft and Senator George Pepper, a well regarded Republican lawyer, were among the luminaries expressing skepticism about the investigations. See J. Leonard Bates, The Teapot Dome Scandal and the Election of 1924, 60 Am. Hist. Rev. 303, 317 (Jan. 1955).

While Mal Daugherty’s case was pending in the district court, a Harvard law professor named Felix Frankfurter wrote an article in the New Republic entitled “Hands off the Investigations,” which was reprinted in the Congressional Record on the day it was published. See 65 Cong. Rec. 9080-82 (May 21, 1924) (introduced by Senator Ashurst). Professor Frankfurter “came out squarely for the unlimited power of congressional investigations.” Louis B. Boudin, Congressional and Agency Investigations: Their Uses and Abuses, 35 Va. L. Rev. 143, 146 (Feb. 1949).

Frankfurter proclaimed “[i]t is safe to say that never in the history of this country have congressional investigations had to contend with such powerful odds, never have they so quickly revealed wrongdoing, incompetence, and low public standards on such a wide scale, and never have such investigations resulted so effectively in compelling correction through the dismissal of derelict officials.” 65 Cong. Rec. 9081. He sniggered at the suggestion that the Daugherty hearings were unfair because the witnesses who  testified were disreputable (sound familiar?), noting “[i]t is the essence of the whole Daugherty affair that the Attorney General of the United States was involved in questionable association with disreputable characters.” He also rejected the notion that congressional investigations should be subject to rules of evidence or other technical limitations applicable in court, asserting that “[t]he procedure of congressional investigation should remain as it is.” 65 Cong. Rec. 9082.

Just ten days later (May 31, 1924), Mal Daugherty’s habeas petition was granted by US District Judge Cochran (to whom the case for some reason had been reassigned). The court found that the Senate investigation of the (now former) attorney general was beyond the Senate’s constitutional power. See Ex Parte Daugherty, 299 Fed. 620 (S.D. Ohio 1924). Following the reasoning of Kilbourn, Judge Cochran expressed “very serious doubt” whether the Senate had the power to issue compulsory process in any legislative investigation, but he found it unnecessary to rest his decision on that ground. Instead, he reasoned that the Senate was not conducting a proper legislative investigation, but rather it was making an improper attempt to put Harry Daugherty on trial. See id. at __ (“What the Senate is engaged in is not investigating the Attorney General’s office; it is investigating the former Attorney General.”). This was a judicial function that could only be performed by a court or by the House of Representatives pursuant to its impeachment power. The court explained:

[T]he Senate has no power to impeach any Federal officer at the bar of public opinion, no matter what possible good may come of it. It is not within its province to harass, annoy, put in fear, render unfit, or possibly drive from office any such officer, high or low, by instituting such impeachment proceedings against him. The power to impeach under the Federal Constitution resides solely in the House of Representatives, and it has power to impeach solely at the bar of the Senate.

Id. at __.

Judge Cochran’s analysis in many respects mirrors that of Judge Rao in her Mazars dissent in the D.C. Circuit. Indeed, Judge Rao makes a point of identifying her position with that of Judge Cochran. See Trump v. Mazars USA LLP, No. 19-5142, slip op. at 49-50 n. 16 (D.C. Cir. Oct. 11, 2019). She claims that the Supreme Court did not disagree with the district judge on legal principle, but “simply disagreed with the district court’s characterization of the proceedings, which were not about the wrongdoing of the Attorney General but the administration of the Department of Justice as a whole.” Id. This betrays a lack of familiarity with the McGrain case since Mal Daugherty had no connection to the Department of Justice other than his knowledge of his brother’s wrongdoing.

In any event, Judge Cochran’s decision was music to the ears of Harry Daugherty’s defenders and critics of the congressional investigations. One can easily imagine that the Coolidge administration was tempted to endorse the decision (which would have undermined future congressional oversight) or at least to decline to get involved on the Senate’s side. Instead, however, Harlan F. Stone, Daugherty’s successor as attorney general, undertook to represent the Senate on appeal to the Supreme Court, thereby putting both political branches squarely on the side of congressional investigatory authority. Conveniently, though, briefing and oral argument did not take place until after the presidential election of 1924. (Stone’s opening brief was filed six days after the election).

Meanwhile, Frankfurter’s camp was preparing legal scholarship to support the Senate. In December 1924, as the McGrain case was being argued, the Harvard Law Review published a student note critical of Judge Cochran’s decision. See Note, The Power of Congress to Subpoena Witnesses for Non-Judicial Investigations, 38 Harv. L. Rev. 234 (Dec. 1924). Among other things, the note took issue with Cochran’s conclusion that the impeachment power implicitly limited the Senate’s power to conduct legislative investigations of executive wrongdoing. See id. at 238 (“Impeachment is a ponderous method of rectifying gross misconduct and consequently has been seldom employed.  By limiting the exercise of this extraordinary remedy, the Constitution could not have intended to restrict more common powers of investigation shown by experience to be necessary to the practical exercise of a federal power.”).

Although the note is unsigned, there is little doubt it reflects Frankfurter’s influence. The articles editor was Thomas G. Corcoran, a Frankfurter protege who would go on to clerk for Justice Oliver Wendell Holmes at Frankfurter’s recommendation during the 1926-27 term. (Another fun fact: Corcoran in later life became a lobbyist who notoriously once “lobbied” the Supreme Court on behalf of a client. See Bob Woodward & Scott Armstrong, The Brethren 79-86 (1979)).

A more significant piece of scholarship came from Professor Landis, Frankfurter’s Harvard colleague and frequent co-author. See James M. Landis, Constitutional Limitations on the Congressional Power of Investigations, 40 Harv. L. Rev. 153 (Dec. 1926). Landis argued that the meaning of the legislative power conveyed by the Constitution could only be understood in light of historical experience; he then marshaled British and colonial history to demonstrate that “[a] legislative committee of inquiry vested with power to summon witnesses and compel the production of records and papers is an institution rivaling most legislative institutions in the antiquity of its origin.” Id. at 159. When combined with the unbroken practice of legislative investigations since the adoption of the Constitution, he concluded that “[t]he Daugherty inquiry of 1924 is thus a direct descendant of a more ancient lineage, ancient enough, when constitutional history begins for the United States in 1789, to demand recognition as a convention entitled to constitutional standing.” Id. at 193-94.

Many years later, during the conference in Watkins v. United States, 354 U.S. 178 (1957), then Justice Frankfurter remarked that “Landis’s article on investigations turned the trick in the Daugherty case in this Court and led it to uphold the powers of Congress.” The Supreme Court in Conference (1940-1985) 299 (Del Dickinson, ed. 2001). Whether this is exactly true or not (see below), Landis’s article seems to have had a powerful effect on legal thinking about the subject of congressional investigations by “completely demolish[ing]” the historical and logical foundations of Kilbourn‘s cramped reading of the legislative power of inquiry. Boudin, 35 Va. L. Rev. at 147; see also id. at 165-66.

Several factors thus converged to support the Senate’s position before the Supreme Court in McGrain. Politically, there was little motivation for anyone to defend the conduct of the Harding administration, particularly after President Coolidge won reelection in 1924. The fact that both the executive and legislative branches agreed on a common legal position likely weighed heavily in the Senate’s favor. The intellectual firepower of Harvard law school surely did not hurt either.

Nonetheless, it appears that the outcome in McGrain was, like Waterloo, a damn close run thing. Although it was argued in December 1924, it was not decided until January 1927. (Another strike against Professor Jonathan Turley’s theory that the courts will resolve such issues quickly). This in itself suggests more internal dissension than betrayed by the ultimate unanimous decision (Harlan Stone, who was appointed to the Court during the intervening period, did not for obvious reasons participate). Cf. McGrain, 273 U.S. at 154 (“We have given the case earnest and prolonged consideration because the principal questions involved are of unusual importance and delicacy.”).

According to this March 1927 letter to Frankfurter from John Gorham Palfrey, a longtime aide to Justice Holmes, in an earlier vote on the case Justices Holmes and Brandeis were “standing out against the whole bunch,” apparently meaning that the other justices would have affirmed the district court. Although Palfrey indicated that Holmes had read “Jim’s article” and that Brandeis had distributed it to other justices including Justice Van Devanter, who was assigned the opinion, he did not believe that was the real reason for the majority switch. Instead, “Van Devanter, who has been away behind on his opinions, go around to writing the opinion for the majority a couple months ago– and found he couldn’t do it to reach the majority result.”

Whatever the true reason, Van Devanter ultimately produced a strong and unanimous opinion in support of a broad congressional investigatory authority, one that has driven a largely deferential judicial attitude toward congressional investigations ever since.

Until now. We will turn to that in our next post.

The Justice Department’s Broad New Attack on Congressional Standing

Ever since the January 3 D.C. Circuit oral argument in Committee on the Judiciary v. McGahn (which you can listen to here), I have been puzzling over the Justice Department’s position with regard to the issue of congressional standing. (I mean, that’s not the only thing I’ve been doing, in case you were worrying about my mental health.)

The Justice Department lawyer, Hashim Mooppan, made a point of stressing DOJ’s view that Congress lacks standing to sue anybody for anything, including suing private parties to enforce subpoenas or redress other informational injuries. As an alternative to this broader position, he offered the “narrower” view that Congress lacks standing to bring suits against the executive branch, arguing that history establishes that such interbranch disputes are to be resolved through the political process.

Judge Griffith, in particular, seemed somewhat taken aback by the broad position. As he pointed out, the Senate has long had statutory authority specifically authorizing it to enforce its subpoenas in court (though there is an exception for federal executive officials asserting authorized governmental privileges). See 28 U.S.C. § 1365; 2 U.S.C. §§ 288b(b), 288d. Mooppan said the Justice Department believes that statute to be unconstitutional, though he added it would be “more unconstitutional” if there were no exception.

Judge Griffith, of course, is intimately familiar with the Senate statute, having served as Senate Legal Counsel from 1995-99. While the Senate infrequently exercises this statutory authority, it has done so  on at least seven occasions since the statute was enacted in 1978. See Morton Rosenberg, When Congress Comes Calling 27-28 (2017). It does not appear that on any of these occasions, the most recent of which occurred in 2016, was the Senate’s standing challenged. See Senate Perm. Subcomm. on Investigations v. Ferrer, No. 16-5232 (D.C. Cir. May 16, 2017). That might be one reason why Judge Griffith was surprised by DOJ’s broad position.

Another reason he might have been surprised is that the Justice Department has not, as far as I can tell, ever taken this position before. This includes the briefs submitted in the McGahn case itself, which appear to advance only the narrower theory that “the Committee lacks Article III standing to seek judicial resolution of this interbranch dispute.” Br. for Defendant-Appellant at 14 (Dec. 9, 2019); Reply Br. for Defendant-Appellant at 2 (Dec. 19, 2019), Comm. on the Judiciary v. McGahn (D.C. Cir.) (No. 19-5331). Although at least one element of DOJ’s argument (relating to the nature of the injury) would be applicable to any subpoena enforcement, the overwhelming focus is on the interbranch nature of the dispute. See Br. of Defendant-Appellant, supra, at 14-33; Reply Br. of Defendant-Appellant, supra, at 2-12. More importantly, nowhere in its McGahn papers does DOJ explicitly state that congressional committees lack standing to enforce subpoenas against parties other than the executive branch.

This surely was not an accident. For more than two decades, the Justice Department has danced around the question of congressional standing to enforce subpoenas,  and in particular whether Congress has standing to enforce subpoenas against private parties and other non-executive branch actors. For example, in 2008 the Justice Department discussed the Senate’s statutory authority to enforce subpoenas and observed in a footnote that “[w]hether the Senate would have Article III standing for an action brought pursuant to 2 U.S.C. § 288 is, of course, a separate question.” Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and in Opposition to Plaintiff’s Motion for Partial Summary Judgment on Counts I and II (May 9, 2008), Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008). But as far as I know DOJ never attempted to answer this question in Miers or any other case up until January 3, 2020.

So why, then, has DOJ chosen this moment to take a definitive stand on this issue?

I have a theory. But, first, some history will be helpful. I will cover that in my next post.

I’ll Take My Grand Jury Materials with a Hint of Impeachment

Last Friday, July 26, the House Judiciary Committee filed an application with the U.S. District Court for the District of Columbia seeking release of certain grand jury materials related to the report and investigation of former Special Counsel Robert S. Mueller III. The committee contends that the Mueller report “provided Members of Congress with substantial evidence that the President of the United States repeatedly attempted to undermine and derail a criminal investigation of the utmost importance to the nation.” Application at 1. Accordingly, “the House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity– approval of articles of impeachment.” Id. 

Some may view this, from a political perspective, as “impeachment lite” (Twitter wags had a variety of other terms like “impeachment-tinged” and “impeachment-infused”). From a legal perspective, however, I think this is probably good enough, at least for this particular controversy. Here’s why.

The committee’s primary argument is that the court should authorize the release of the grand jury information pursuant to Fed. R. Crim. P. 6(e)(3)(E), which provides “[t]he court may authorize disclosure of a grand jury matter . . . (i) preliminarily to or in connection with a judicial proceeding.” This provision is applicable here, the committee contends, because it is conducting an investigation to determine whether to recommend articles of impeachment with respect to the president. Application at 30-31. It bears emphasis that the committee does not contend this provision applies to congressional investigations outside the context of impeachment, nor would there be any basis for it to do so.

As we have discussed, controlling authority in the D.C. Circuit establishes that an impeachment proceeding qualifies as a “judicial proceeding” within the meaning of Fed. R. Crim. P. 6(e)(3)(E)(i). Specifically, a Senate impeachment trial is judicial in character and a House impeachment inquiry is therefor preliminary to or in connection with a judicial proceeding for these purposes. Application at 28-29.

To be sure, there is no Supreme Court authority on point, and it is possible that the Court would conclude that the term “judicial proceeding” refers to a proceeding conducted by the judiciary, not merely a proceeding that is judicial in character. (Of course, a Senate impeachment trial of the president is presided over by the chief justice, somewhat blurring this distinction.). However, if the Court were to reject the committee’s position in this respect, I strongly suspect that it would accept its alternative argument (currently foreclosed in the D.C. Circuit) that a federal court retains inherent authority to disclose grand jury materials under these circumstances. See Application at 40-41. I do not believe the Supreme Court would hold that there is no legal mechanism by which grand jury material relevant to impeachment can be transmitted to the House (or Senate), a conclusion that would be in considerable tension with the Constitution’s preference (at least) for impeachment rather than indictment of a sitting president. See, e.g., Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2158 (1998) (citing with approval President Nixon’s argument that “[w]hatever the grand jury may claim about a President, its only possible proper recourse is to refer such facts, with the consent of the court, to the House and leave the conclusions of criminality to the body which is constitutionally empowered to make them”); see also id. at 2156 (“any information gathered with respect to executive branch officials that could reflect negatively on their fitness for office should be disclosed to Congress”).

The more difficult issue for the committee is establishing that disclosure of grand jury materials in these circumstances would be for purposes of impeachment, rather than simply for general oversight. As I have written elsewhere, the committee would clearly be in a stronger position if the House had formally initiated an impeachment inquiry. That being said, nothing in the language of Rule 6(e)(3)(E)(i) expressly requires the formal initiation of any particular proceeding and to the contrary the rule suggests that the disclosure may occur before (“preliminarily to”) such initiation.

Here it is worth noting that while it is the Senate impeachment trial that has been held to be a “judicial proceeding” for these purposes, there is also a strong argument that the House’s exercise of its power of impeachment likewise constitutes a judicial proceeding. Certainly the House’s power is judicial, rather than legislative, in nature. It is possible, however, to argue that the House’s proceeding are less judicial than the Senate’s because the latter performs the adjudicative function of a criminal court while the former performs the investigative function of a grand jury. In any event, it probably makes little difference to the outcome of the committee’s application because in either case the committee must persuade the court that its current investigation is sufficiently tied to the impeachment process.

To meet this burden, the committee points to the following: (1) impeachment falls within the committee’s jurisdiction and articles of impeachment (including in the current congress H. Res. 13, a resolution calling for the impeachment of President Trump) are invariably referred to the committee; (2) the committee has repeatedly indicated in various ways, such as statements by the chairman and a contempt report adopted by vote fo the committee, that it is assessing whether to recommend articles of impeachment with respect to the president; (3) the House Rules Committee, in its report accompanying H. Res. 430, similarly explained that the committee was considering whether to recommend such articles of impeachment; and (4) the full House voted to adopt H. Res. 430, which confirms the committee’s investigatory authority with regard to the Mueller report and related matters and expressly authorizes it to continue its efforts to obtain information, including by filing an application for grand jury material pursuant to Fed. R. Crim. P. 6(e)(3)(E). This authorization by the House implicitly recognizes that the committee is seeking grand jury information for impeachment purposes since, as mentioned previously, there is no other basis upon which the committee could avail itself of this provision.

While there are no guarantees in litigation, in my view this is a pretty strong case. Given the language of the rule and the past flexible practice in the context of impeachment, the committee should prevail in its application. Whatever the outcome, though, it will be interesting to see how the Justice Department responds.

Emoluments Suits Status: Keep an Eye on Blumenthal v. Trump

The Fourth Circuit recently issued its decision in District of Columbia v. Trump (the emoluments lawsuit brought by DC and Maryland against President Trump) and, not surprisingly, the court ordered the case dismissed for lack of standing. Equally unsurprising was the court’s criticism of the district judge, who it found had committed a “clear abuse of discretion” in refusing to certify the case for appeal.

The court’s reasoning with respect to the plaintiffs’ standing theory (namely that these jurisdictions or their citizens are suffering competitive injury from the Trump Hotel in DC) largely tracks my earlier observations. This standing theory fails because (1) it is sheer speculation whether Trump’s alleged violations of the emoluments clauses inflict any injury at all, i.e., Trump’s relationship with the Trump Hotel may help its competitors as much or more than it hurts them; and (2) these competitive interests are not in any event within the zone of interests protected by the emoluments clauses.

The court gives short shrift, however, to one theory that seemed more plausible to me. The domestics emoluments clause appears designed to ensure that no state exercises undue influence over the president. To the extent Trump has accepted prohibited emoluments from certain states, it is arguable that other states (such as Maryland) have suffered an injury within the zone of interests protected by the clause. The Fourth Circuit rejected this theory as an attempt to assert a “generalized grievance,” but it did not directly confront the proposition that the clause protects the states qua states, not just the general public.

What does this mean for the prospects for the three emoluments lawsuits against Trump? Although the plaintiffs may seek further review, D.C. v. Trump is unlikely to go anywhere now. The other suit predicated on a competitive injury theory, CREW v. Trump, was dismissed by the district court and is now pending before the Second Circuit. It seems unlikely to make it to the discovery stage either, at least anytime soon.

The case to keep an eye on is Blumenthal v. Trump, which was filed by Democratic members of Congress in federal court in D.C. It presents distinct standing issues. The plaintiffs claim that they have suffered an institutional injury due to Trump’s failure to present (alleged) foreign emoluments to Congress for its consent under the Foreign Emoluments Clause. Judge Sullivan accepted this theory and refused to dismiss the case for lack of standing. This decision, however, is questionable at best under existing Supreme Court precedent, particularly in light of the Court’s most recent ruling on legislative standing.

The Justice Department has sought a writ of mandamus from the D.C. Circuit to prevent Judge Sullivan from moving forward with discovery in the Blumenthal case. It has indicated that if it does not receive a decision from the appellate court by July 22, it may seek relief from the Supreme Court, (hat tip: Seth Barrett Tillman). Should the Supreme Court agree to hear the case, it could use the opportunity to address broader questions of legislative standing that remain unresolved, which could affect the Ways and Means committee lawsuit to obtain Trump’s tax returns and other contemplated House litigation against the administration.

What Does OLC Really Mean By “Testimonial Immunity”?

Following up on my first post on the Office of Legal Counsel’s May 20, 2019 opinion regarding the “testimonial immunity” of senior presidential advisers, let’s turn to OLC’s claim that “for nearly five decades” it has advised that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.” See 5-20-19 OLC Opinion at 1.

Today I want to ask what this advice actually means. After all, it is not at all clear that OLC believes Congress may “constitutionally compel” anyone in the executive branch to provide any information, whether in the form of testimony or documents, regarding their official duties or anything else. Although it would concede that Congress has the constitutional right to demand information needed for legislative and oversight purposes, OLC would deny that Congress ever has the right to “compel” the executive branch to produce such information, at least where the president has asserted executive privilege.

Perhaps OLC would offer the distinction that the president is constitutionally obligated to provide information to Congress unless a valid constitutional basis exists for withholding it; thus, he is “compelled” to provide information where no such basis exists, even though he is the final decisionmaker as to whether or not information should be withheld. In the case of senior presidential advisers, however, the president has complete discretion as to whether to allow them to testify and thus is never “compelled” to do so.

There are a couple problems with this distinction. First, even in OLC’s theory, the immunity of presidential advisers is limited. It does not apply to everyone who works in the White House, but only the president’s “senior” or “immediate” advisers. It does not apply to those with statutory or operational responsibilities. It does not apply to testimony about “personal affairs,” a term which OLC does not define but which, we will see, includes at least matters involving misuse of the adviser’s public position. Thus, even under OLC’s theory, it would seem the president is “compelled” to provide testimony of his advisers under certain circumstances.

More fundamentally, however, OLC and the executive branch maintain that all congressional demands for information are subject to a constitutionally-mandated accommodation process, which consists of a “back-and-forth process under which each branch is constitutionally obligated to negotiate in good faith, articulate with particularity their legitimate institutional needs and interests, and weigh the legitimate needs and interests of the other branch.” This is “not simply an exchange of concessions or a test of political strength” but “an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”

Congressional demands for testimony from senior presidential advisers are not exempt from this accommodation process. OLC acknowledges that “Presidents have occasionally made senior advisers available to accommodate congressional requests, even while defending their legal authority to decline such requests.” 5-20-19 OLC Opinion at 12. During the 2008 litigation in which the House Judiciary Committee attempted to compel former White House counsel Harriet Miers to testify, the Justice Department stressed that the committee was trying to end run the accommodation process. See, e.g., Reply in Support of Defendants’ Motion to Dismiss at 47 (June 12, 2008) (“rather than relying on good faith negotiations and cooperation (including the President’s offer that Ms. Miers appear for an interview), the Committee has invoked this Court’s jurisdiction to judicially compel Ms. Miers’s attendance and sworn testimony at a public hearing”).

It is hard to see how one can square OLC’s understanding of the accommodation process with a claim that presidential advisers are “absolutely immune” from testifying before Congress. If Congress has a “legitimate need” for the testimony of a senior presidential adviser (e.g., because the adviser is an essential fact witness to wrongdoing) and there is no principled reason to withhold the information (e.g., because of the executive’s longstanding position that executive privilege will not be invoked to conceal evidence of criminal or unlawful wrongdoing by executive officials), it would seem that the president would be obligated to permit the adviser to testify. Thus, when Presidents Nixon and Reagan permitted senior advisers to testify about Watergate and Iran-Contra, respectively, they were not merely engaging in acts of presidential grace but carrying out their constitutional obligations.

Any other interpretation would create bizarre inconsistencies in the executive branch position. For example, suppose Congress has a legitimate legislative need for information known only to a senior presidential adviser. If the adviser wrote the information down in a document, the executive branch would have a constitutional obligation (under some circumstances) to provide the document to Congress. But if the same information were only in the adviser’s head, there would be no constitutional obligation to acknowledge the legislative need for the information and any accommodation would be purely a matter of political bargaining. This simply makes no sense.

To be sure, OLC would deny that Congress can use the methods of testimonial compulsion (inherent contempt, criminal contempt or civil litigation) to force senior presidential advisers to testify. However, as already noted, OLC would take the same position with regard to any other type of testimony or evidence if the president has invoked executive privilege. This was made clear in the government’s briefs in the Miers case:

At no time during the long history of interbranch negotiations and accommodations has a court ordered an Executive Branch official—let alone one of the President’s senior advisers—to testify before Congress, nor has the Executive Branch been required by court order to produce documents or a privilege log to Congress. This uniform past practice also has been followed with respect to congressional demands that senior White House advisers appear before congressional committees to justify the President’s decisions. Although such advisers have, from time-to-time, appeared before Congress, at no time in the Nation’s history has a court ordered a senior White House adviser to testify as a result of a congressional subpoena.

Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and in Opposition to Plaintiff’s Motion for Partial Summary Judgment on Counts I and II at 9 (May 9, 2008).

Of course, if the executive branch is wrong about the justiciability of executive-legislative information disputes, OLC would want its absolute immunity argument available as a backup. But the justification for absolute immunity is premised on the notion that without such immunity Congress would routinely use its power to compel the appearance of key White House officials. If the argument is only relevant in judicial proceedings to compel appearance, it is not necessary because courts will prevent any abuse and will not order senior White House aides to testify unless there is a legitimate legislative need for the information.

In short, the only way OLC’s position makes sense is if one understands the “immunity” of senior presidential advisers to be a prophylactic rule or policy asserted by the executive branch in order to keep senior White House officials from having to testify before Congress as a routine matter. Because in most cases their testimony will be largely if not entirely protected by executive privilege, such a policy protects legitimate executive branch interests and is generally accepted by Congress as a matter of comity.

As we will see in my next post on this subject, this is also the best way to interpret OLC’s position on this issue for most of the “nearly five decades” it has offered advice on it.

 

“Its Weird Being in an Organization that is Less Popular than Colonoscopies and Nickelback”

So said yesterday Representative Derek Kilmer (D-WA), the chair of the Select Committee on the Modernization of Congress, a new House committee  created at the beginning of the 116th Congress by a vote of 418-12. It is a bipartisan committee with 12 members equally divided between Democrats and Republicans. Kilmer’s vice-chair is Representative Tom Graves (R-GA).

The select committee’s mission is to fix Congress so that it can be at least as popular as Nickelback and as useful as colonoscopies. More precisely, the House charged it with studying and developing “recommendations on modernizing Congress,” including recommendations on seven specific topics:

      1. rules to promote a more modern and efficient Congress:
      2. procedures, including the schedule and calendar;
      3. policies to develop the next generation of leaders;
      4. staff recruitment, diversity, retention, and compensation and benefits;
      5. administrative efficiencies, including purchasing, travel, outside services, and shared administrative staff;
      6. technology and innovation; and
      7. the work of the House Commission on Congressional Mailing Standards.

In order to formally adopt a recommendation, two-thirds of the select committee’s members must agree to it.

The select committee has a limited lifespan. It is required to issue a final report by the end of the year and will end its existence (barring further action by the House) on February 1, 2020. It is authorized to make recommendations on a rolling basis and is supposed to issue interim status reports every 90 days.

There is no shortage of ideas for the select committee to consider. LegBranch.org has created this page with an excellent compilation of  proposals and resources that will be useful for the committee and others interested in congressional reform. I have a few ideas myself (see, for example, here and here). But first the committee has to get started. As of yet, it has not held or scheduled any hearings, nor has it apparently hired any staff.

Chairman Kilmer made his remarks at a Bipartisan Policy Center event yesterday (his discussion with Michele Stockwell of BPC starts at about the 12 and a half minute mark on the video). Not a great deal of news in the discussion. I was interested to know that he wants to look at best practices from the state legislatures. He is also not a big fan of the motion to recommit, though I doubt there will be any bipartisan agreement on reforming that procedure.

But in any event, nothing can happen until the select committee gets going. Until then, colonoscopies and Nickelback will keep extending their lead.

Impeachment or Indictment: What If the President Actually Shoots Someone on Fifth Avenue?

Since the subject of my last post turns out to be somewhat hypothetical, let’s turn to another hypothetical that is often invoked to show that it must be possible to indict (and prosecute) a sitting president for some crimes. Here is how Professor Larry Tribe put it recently:

Nearly everyone concedes [a prohibition on indicting the president] would have to permit exceptions. The familiar hypothetical of a president who shoots and kills someone in plain view clinches the point. Surely, there must be an exception for that kind of a case: Having to wait until the House of Representatives impeaches the alleged murderer and the Senate removes him from office before prosecuting and sentencing him would be crazy.

CNN Anchor Erin Burnett also raised the hypothetical of a murderous president during a January 3, 2019 debate between Norm Eisen (representing the “pro-indictment” or “anti-immunity” position) and David Rivkin (representing the “pro-immunity” position):

BURNETT: Let me interject. The president once famously said I could shoot somebody on Fifth Avenue, we’re not even talking about Russian conspiracy. I could shoot someone on Fifth Avenue. You’re saying if he did that, if he murdered somebody he still above the law, still can’t indict him?

RIVKIN: No, he’s not above the law. He can’t be indicted for murder. There’s only one Constitution proper way to deal with an aberrant president. And that’s what the framers intended, beside from elections. And between elections, you got the impeachment process which features political accountability.

* * *
BURNETT: Norm, you heard David. Even in murder, he would put it to the political process of impeachment. Not indict somebody for murder?

EISEN: The murder example explains why this is so wrong, Erin.

You can watch the video here.

This is not a new hypothetical. In fact, it was raised as early as September 26, 1789, when Senator William Maclay entered into an argument with Vice-President John Adams, Senator Oliver Ellsworth and others who believed the president could only be impeached, not indicted. Maclay summarized the discussion:

I put the case: “Suppose the President committed murder in the street. Impeach him? But you can only remove him from office on impeachment. Why, when he is no longer President you can indict him. But in the meantime he runs away. But I will put up another case. Suppose he continues his murders daily, and neither House is willing to impeach him?” Oh, the people would arise and restrain him. “Very well, you will allow the mob to do what legal justice must abstain from.” Mr. Adams said I was arguing from cases nearly impossible. There had been some hundreds of crowned heads within these two centuries in Europe, and there was no instance of any of them having committed murder. Very true, in the retail way, Charles IX of France excepted. They generally do these things on a great scale. I am, however, certainly within the bounds of possibility, though it may be improbable.

William Maclay, Journal of William Maclay 166-67 (E. Maclay ed. 1890), quoted in Impeachment or Indictment: Is a Sitting President Subject to Compulsory Criminal Process?, Hearing Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Senate. Comm. on the Judiciary, 105thCong., 2d Sess., at 41-42 (1998) (hereinafter the “1998 Hearing”) (testimony of Eric M. Freedman).

You can imagine this passage being read by Erin Burnett, complete with furrowed brow and skeptical expression. (What can I say? I’m easily amused.)  Continue reading “Impeachment or Indictment: What If the President Actually Shoots Someone on Fifth Avenue?”

Congressional Liaison Offices of Selected Federal Agencies

So I am cleaning out my papers and come across a CRS report from 2005 entitled “Congressional Liaison Offices of Selected Federal Agencies.” This isn’t something that I am likely to have use for, but I still feel obligated to make sure that there is a current version available on the internet before I throw it away. And guess what? There is. Even better, its dated August 10, 2017. So on the off-chance that I ever need to find the number for a congressional liaison office, I am bookmarking it here.

And now you can throw away your hard copy too.

Seth Barrett Tillman on the Relationship Between the Origination Clause and Recess Appointment Clause Cases

Professor Tillman sends the following thoughts:

I expect one or more, if not all of the Supreme Court’s four liberal members to affirm the DC Circuit’s decision in Noel Canning. The primary issue in Noel Canning is not whether or not the Senate was in recess – but who or what institution gets to decide whether or not the Senate was in recess. Does the Senate make that call or do the President and the courts? In other words, once the Senate has flagged in the traditional way in its traditional records whether or not it is in session or in recess, does anyone (including the President) get to look beyond or behind the record created by the Senate. The President’s position is that the President and the courts are in a better position to make the call than the Senate.

The Origination Clause challenge to the PPACA, which is now making its way through the lower courts, poses a very similar (if not precisely the same) issue. The enrolled bill enacting the PPACA expressly records that the bill originated in the House, not the Senate. The plaintiffs in the Origination Clause case take the position that the courts should ignore the joint determination of the House and Senate in regard to house of origin, in spite of the fact that the relevant constitutional actors have made a final determination using their traditional records in the traditional way. Here too, plaintiffs say the courts could and should look behind the official House-Senate-created-and-verified record.

When is the Senate in recess?

      When the Senate’s records state that the Senate was in recess.

When has a bill originated in the House?

      When the enrolled bill enacting the statute records that the bill originated in the House.

After all, with the demise of the filibuster, the scope of the President’s recess appointment power matters much less. So if the Supreme Court wants to reverse Noel Canning, then “Go ahead, make my day.”

 

Judge Griffith Will Be Delivering The Leventhal Lecture This Tuesday

This Tuesday, November 15, from 12 pm to 2 pm, the Administrative Law and Agency Practice Section of the D.C. Bar will host the Annual Harold Leventhal Lecture. Our speaker will be the Honorable Thomas B. Griffith of the U.S. Court of Appeals for the D.C. Circuit. Judge Griffith will speak on “Congress in the D.C. Circuit.”

Judge Griffith brings a unique perspective to this topic. As we have discussed, relatively few federal judges have had prior legislative experience. Judge Griffith, however, is certainly the only federal judge to have served as the chief legal officer of either chamber of Congress. From 1995 to 1999, he served as Senate Legal Counsel, during which he advised the Senate on numerous legal matters of great significance, including the impeachment trial of President William J. Clinton.

I will be introducing Judge Griffith on behalf of the Administrative Law Section. Further details and registration information may be found here.