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# Point of Order

A Discussion of Congressional Legal Issues

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## Posts

- [George Santos, the Expulsion Power, and Fun with Textualism](https://www.pointoforder.com/2023/05/10/george-santos-the-expulsion-power-and-fun-with-textualism/) - The Constitution provides that “[e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” This raises a question of interpretation. Does the power to expel turn upon a finding that the Member has engaged in disorderly behavior? In other words,
- [The Chief Justice's Inartful Dodging](https://www.pointoforder.com/2023/04/27/the-chief-justices-inartful-dodging/) - “When Congress seeks information needed for intelligent legislative action, it unquestionably is the duty of all citizens to cooperate.” Trump v. Mazars, 140 S.Ct. 2019, 2036 (2020) (internal quotations omitted). So spoke the Supreme Court in an opinion by Chief Justice Roberts less than three years ago. Mazars involved congressional subpoenas for the financial records
- [Is there a House Jail?](https://www.pointoforder.com/2023/03/02/6549/) - A few weeks ago the Levin Center had a very interesting program, which you can watch here, entitled “How the Courts are Shaping Congress’ Power to Investigate.” If you are interested in congressional oversight and investigations, it is definitely worth watching because there have been a lot of cases arising out of the Trump presidency
- [More on Mike Pence and the Speech or Debate Clause](https://www.pointoforder.com/2023/02/28/more-on-mike-pence-and-the-speech-or-debate-clause/) - In case you missed it, I have a piece on Lawfare with further analysis of former Vice President Pence's Speech or Debate argument. To bottom line it: (1) I think it is very unlikely that Pence will be able to get the subpoena quashed in its entirety; (2) Pence has a reasonable chance of succeeding
- [What is a Vice President?](https://www.pointoforder.com/2023/02/14/what-is-a-vice-president/) - This is not in fact the title of a Valentine’s Day poem for Kamala Harris, but of some preliminary thoughts in response to a Politico article revealing that former Vice President Mike Pence intends to resist a grand jury subpoena from Special Counsel Jack Smith on grounds that it violates the Speech or Debate Clause.
- [Why It is Pointless to Sue a Member of Congress for Defamation](https://www.pointoforder.com/2009/04/16/why-it-is-pointless-to-sue-a-member-of-congress-for-defamation/) - The D.C. Circuit just threw out the defamation suit filed by U.S. Marine Sergeant Frank Wuterich against Congressman John Murtha. Wuterich alleged that Murtha, in a series of interviews with the media, made false and defamatory comments regarding the conduct of the squad led by Wuterich in Haditha, Iraq, in 2005. Specifically, Murtha, according
- [Levin Center Program on "How Courts Are Shaping Congress' Power to Investigate"](https://www.pointoforder.com/2023/01/26/levin-center-program-on-how-courts-are-shaping-congress-power-to-investigate/) - On Wednesday, February 8, 2023, from noon to 1:30pm, Elise Bean of the Levin Center will be moderating a virtual program on "How Courts are Shaping Congress' Power to Investigate." The participants include former House Counsel Doug Letter, as well as law professors Emily Berman, Andy Grewal and William Ortman. (Grewal's title should also include
- [Potential Roadblocks to a Congressional Investigation of the Dobbs leak](https://www.pointoforder.com/2023/01/24/potential-roadblocks-to-a-congressional-investigation-of-the-dobbs-leak/) - The Supreme Court recently released its report on the leaking of the draft Dobbs decision. Spoiler alert: they don’t know who did it. I have to admit I have not actually read the report, though I have read or listened to the opinions of many people who (may) have. The main takeaway for me is that
- [The Attorney-Client Privilege in Congressional Investigations after Mazars](https://www.pointoforder.com/2022/12/17/the-attorney-client-privilege-in-congressional-investigations-after-mazars/) - I have been meaning to blog about a new article by Dave Rapallo entitled House Rules: Congress and the Attorney-Client Privilege, 100 Wash. U. L. Rev. 455 (2022), which analyzes the Supreme Court’s dicta in Trump v. Mazars that recipients of congressional subpoenas “have long been understood” to retain common law privileges such as the
- [Will the Appointment of a Special Counsel Affect a Congressional Referral of Donald Trump for Contempt of Congress?](https://www.pointoforder.com/2022/11/25/will-the-appointment-of-a-special-counsel-affect-a-congressional-referral-of-donald-trump-for-contempt-of-congress/) - The Attorney General has appointed Jack Smith to serve as Special Counsel to conduct an investigation of certain matters relating to former President Donald Trump, including "whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of
- [How Should the January 6 Committee Respond to Trump's Lawsuit?](https://www.pointoforder.com/2022/11/13/how-should-the-january-6-committee-respond-to-trumps-lawsuit/) - On Friday, November 11, former President Trump filed suit against the January 6 committee to prevent enforcement of the subpoena for documents and testimony the committee issued to him on October 21. The complaint asserts that as a former president Trump is absolutely immune from compelled congressional testimony (at least outside the realm of impeachment).
- [Some Thoughts on the January 6 Committee Subpoena to Former President Trump](https://www.pointoforder.com/2022/10/18/some-thoughts-on-the-january-6-committee-subpoena-to-former-president-trump/) - As you may have heard, the January 6 select committee has adopted a resolution authorizing its chair to issue a subpoena for documents and testimony under oath to former President Donald Trump. This action raises some legal, political and practical issues, which are considered below. Is a former president immune from a congressional subpoena? The
- [Who Loves Testimonial Immunity? Just Us.](https://www.pointoforder.com/2022/07/23/who-loves-testimonial-immunity-just-us/) - The Department of Justice, at the invitation of presiding judge Carl Nichols, has filed a statement of its views regarding whether former Trump chief of staff Mark Meadows is entitled to assert testimonial immunity in response to a subpoena from the House select committee investigating the January 6 attack on the Capitol. Because the DOJ
- [SHOULD THERE BE A SENATE RESOLUTION FOR LINDSEY GRAHAM'S GRAND JURY SUBPOENA?](https://www.pointoforder.com/2022/07/15/should-there-be-a-senate-resolution-for-lindsey-grahams-grand-jury-subpoena/) - State prosecutors in Georgia are seeking to subpoena Senator Lindsey Graham of South Carolina to testify in a grand jury investigation of alleged efforts to unlawfully alter the outcome of the 2020 presidential election in Georgia. Prosecutors want to question Graham about telephone calls he made to Georgia election officials in the weeks following the
- [A Former President's Authority to Assert Executive Privilege is Incompatible with Executive Branch Doctrine](https://www.pointoforder.com/2022/06/04/a-former-presidents-authority-to-assert-executive-privilege-is-incompatible-with-executive-branch-doctrine/) - Last week the Gray Center for the Study of the Administrative State held a programentitled “Congress’s Interbranch Role: The Executive, the Court, and Dobbs.” The first panel focused on conflicts between Congress and the executive, particularly disputes over congressional access to information and executive privilege. The panel, consisting of three DOJ/OLC veterans (Professor Josh Chafetz,
- [Checking the Office of Legal Counsel](https://www.pointoforder.com/2022/05/26/6500/) - As discussed in this Lawfare article by William Ford of Protect Democracy, the House Select Committee on the Modernization of Congress has asked GAO to study the feasibility of establishing a Congressional Office of Legal Counsel (COLC) to act as a congressional analogue to the Office of Legal Counsel (OLC) in the Department of Justice.
- [Some thoughts on the January 6 committee subpoenas to House Republicans](https://www.pointoforder.com/2022/05/16/some-thoughts-on-the-january-6-committee-subpoenas-to-house-republicans/) - At Lawfare, I have a piece discussing the subpoenas issued by the January 6 committee to House Republican members and the complexities it will face in trying to enforce them.
- [January 6 Litigation and Federal Court Authority to Resolve Congressional Subpoena Disputes](https://www.pointoforder.com/2022/05/06/january-6-litigation-and-federal-court-authority-to-resolve-congressional-subpoena-disputes/) - As litigation regarding the subpoena and investigatory authority of the January 6 select committee proliferates, it is worth stepping back and asking a question that apparently is not being asked in any of these cases: do federal courts have the authority to adjudicate the merits of these disputes? When a congressional committee first sought the
- [Two Lees, One Jackson, and Some Stonewalling](https://www.pointoforder.com/2022/04/15/two-lees-one-jackson-and-some-stonewalling/) - During the confirmation hearings for Judge (soon to be Justice) Ketanji Brown Jackson, she answered written questions for the record from a number of senators, including Senator Mike Lee. One of Senator Lee’s questions (hat tip: Ira Goldman) struck me as odd: In Committee on the Judiciary v. McGahn, you took an extremely broad view
- [More on Bannon and OLC](https://www.pointoforder.com/2022/04/01/more-on-bannon-and-olc/) - In connection with my last post, I want to elaborate on Steve Bannon’s advice of counsel defense. The essence of this defense is that legal advice from his counsel that he was not obligated to comply with the select committee’s subpoena negated the “willfulness” required to violate the contempt of Congress statute (2 U.S.C. §192).
- [Should Judge Nichols Recuse Himself in the Bannon Case?](https://www.pointoforder.com/2022/03/23/should-judge-nichols-recuse-himself-in-the-bannon-case/) - Many moons ago the Justice Department first presented in court its legal theory that senior White House aides are absolutely immune from compelled congressional testimony with regard to their official duties. Although the DOJ attorney who argued the case did a pretty good job, he was unsuccessful in persuading the district court, which rejected the
- [What Exactly is a Congressional Criminal Referral?](https://www.pointoforder.com/2022/03/09/what-exactly-is-a-congressional-criminal-referral/) - As discussed in my last post, the January 6 select committee has argued in federal court that there is sufficient evidence of misconduct by former President Trump to potentially warrant application of the crime/fraud exception to attorney-client privilege with respect to otherwise privileged communications he may have had with John Eastman. This in turn has
- [The Eastman Emails, the Attorney Client Privilege, and the Mazars Overhang](https://www.pointoforder.com/2022/03/05/the-eastman-emails-the-attorney-client-privilege-and-the-mazars-overhand/) - In a recent Lawfare piece, Quinta Jurecic and Molly Reynolds argue that the Supreme Court’s 2020 decision in Trump v. Mazars, though limited by its terms to congressional subpoenas for the personal records of a sitting president, is having a profound effect on the broader legal landscape for the January 6 select committee and other
- [Why the Courts Have NOT Decided the Constitutionality of Proxy Voting](https://www.pointoforder.com/2022/02/11/why-the-courts-have-not-decided-the-constitutionality-of-proxy-voting/) - A few weeks ago the Supreme Court denied certiorari in a case brought by House Republicans to challenge the constitutionality of the House’s proxy voting rule, which allows members, during a period of “public health emergency,” to vote on legislation and other matters without being physically present. The effect of the Court’s decision was to
- [Dr. Fauci, Senator Paul, and the Congressional Contempt Process](https://www.pointoforder.com/2026/08/06/dr-fauci-senator-paul-and-the-congressional-contempt-process/) - Today the Senate Homeland Security and Governmental Affairs Committee (HSGAC) voted, 8-5 along party lines, to hold Dr. Anthony Fauci in contempt of Congress for refusing to answer questions before the committee. The HSGAC resolution provides: Resolved, That pursuant to sections 102 and 104 of the Revised Statutes (2 U.S.C. 192, 194), the President of
- [Madison, the Comptroller of the Treasury, and the Unitary Executive](https://www.pointoforder.com/2026/07/01/madison-the-comptroller-of-the-united-states-and-the-unitary-executive/) - I will have a lot to say about the unitary executive in the coming weeks. I am less interested in relitigating whether the Supreme Court's view of the unitary executive, as most recently explained in Trump v. Slaughter, is the correct one, and more interested in figuring out what this decision means as a practical
- [Justice Barrett, Liquidation, and the Obiter Dicta of the Myers Case](https://www.pointoforder.com/2026/01/29/6672/) - During the December 8, 2025 oral argument in Trump v. Slaughter (involving the constitutionality of for cause limitations on the removal of FTC commissioners), Justice Barrett asked Slaughter’s counsel (Amit Agarwal) a question that is worth further exploration: JUSTICE BARRETT: Counsel, let me say --let --let's say, just assume, that I disagree with you about
- [OLC's Attack on the Presidential Records Act is Not Worth a Fig Leaf](https://www.pointoforder.com/2026/05/23/olcs-attack-on-the-presidential-records-act-is-not-worth-a-fig-leaf/) - The Office of Legal Counsel recently declared that the Presidential Records Act (PRA) “is unconstitutional, and the President need not further comply with its dictates.” 50 Op. OLC __, slip op. at 52 (Apr. 1, 2026). There was a time that when such a declaration would have generated major pushback in Congress. When in 2002
- [A Select Committee on Pardon Abuse](https://www.pointoforder.com/2026/03/20/a-select-committee-on-pardon-abuse/) - On the Checks and Balances Substack, I have a piece on why and how Congress should conduct oversight of the abusive exercise of the pardon power.
- [The Unitary Executive is Watching You](https://www.pointoforder.com/2026/02/13/the-unitary-executive-is-watching-you/) - A few months ago a group of six Democratic members of Congress, including Senator Mark Kelly, released a video reminding members of the military that they have a duty to “refuse illegal orders.” The senators and representatives, each of whom has a military or intelligence background, did not identify any particular orders that should be
- [Can State Legislatures Compensate for the Absence of Congressional Oversight?](https://www.pointoforder.com/2025/12/30/can-state-legislatures-compensate-for-the-absence-of-congressional-oversight/) - The Washington Post had an article this weekend that discusses the paucity of oversight hearings in the current Congress, noting that “administration officials testified more often before many committees during the first year of President Joe Biden’s term than they have this year.” The article mentions several areas where Democrats contend that more oversight is
- [Who Will Represent Congress in Trump v. Slaughter?](https://www.pointoforder.com/2025/10/02/who-will-represent-congress-in-trump-v-slaughter/) - As you may have heard, the Supreme Court has granted certiorari in Trump v. Slaughter, a case in which a Federal Trade Commissioner whom President Trump purported to fire has sought reinstatement to her position. The Court directed the parties to brief two questions: (1) Whether the statutory removal protections for members of the Federal
- [Lindsey Halligan and the Unitary Executive](https://www.pointoforder.com/2025/11/10/lindsey-halligan-and-the-unitary-executive/) - Correction: Bannon and Navarro were not pardoned for contempt of Congress. Trump pardoned Bannon before leaving office in 2021, but that pardon did not cover Bannon's subsequent contempt of Congress. Navarro has not been pardoned at all. Thanks to @fedjudges on X for the correction. As you may have heard, James Comey, the former FBI
- [An Outline of Congress's Interest in the Slaughter Case](https://www.pointoforder.com/2025/10/28/an-outline-of-congresss-interest-in-the-slaughter-case/) - Following up on my last post, I think an institutional position for Congress in the Slaughter case would look something like this. First, the Court can avoid addressing the precedential status of Humphrey’s Executor by holding that courts cannot intervene in a dispute regarding an officer’s purported removal from a multimember commission like the Federal
- [A little help from Congress is better than nothing](https://www.pointoforder.com/2025/09/16/a-little-help-from-congress-is-better-than-nothing/) - Tomorrow the Senate Health, Education, Labor & Pensions Committee, affectionately known as HELP, will hold a hearing entitled "Restoring Trust Through Radical Transparency: Reviewing Recent Events at the Centers for Disease Control and Prevention and Implications for Children’s Health." Usually committees use the titles of their hearings to clearly communicate the point they are making
- [A Government of Men](https://www.pointoforder.com/2025/08/16/a-government-of-men/) - “It is the proud boast of our democracy that we have a ‘government of laws and not of men,’” So opens Justice Scalia’s famous dissent in Morrison v. Olson, 487 U.S. 654, 697 (1987), which I happened to be reading recently (as part of a more extensive project on the unitary executive and presidential removal).
- [The Justice Department's Problem in Responding to the House Oversight Subpoena for the Epstein Files](https://www.pointoforder.com/2025/08/05/the-justice-departments-problem-in-responding-to-the-house-oversight-subpoena-for-the-epstein-files/) - Today the House Oversight Committee issued this subpoena to Attorney General Pam Bondi seeking all documents in the possession of the Justice Department relating to Jeffrey Epstein, including documents relating to the investigations of Epstein and his associate, Ghislaine Maxwell, for human trafficking, exploitation of minors, sexual abuse, or related activity. Ordinarily DOJ would resist
- [Impeachment, Immunity and Juristocracy (Part VII: What Should Be Done)](https://www.pointoforder.com/2025/05/15/impeachment-immunity-and-juristocracy-part-vii-what-should-be-done/) - Note: since my last post the world has lost another lion of congressional oversight, Mort Rosenberg, who for 35 years was every House and Senate committee’s “go to” expert at the Congressional Research Service for advice and assistance on congressional investigations, executive privilege, vacancies, and many other issues. Mort is mentioned in this post as
- [Immunity, Impeachment and Juristocracy (Part VI: Chilling Doom)](https://www.pointoforder.com/2025/04/30/immunity-impeachment-and-juristocracy-part-vi-chilling-doom/) - Although Trump is more circumspect than Fitzgerald in acknowledging the policymaking nature of its decision, it is nonetheless based on a series of policy intuitions or judgments, some of which are borrowed from Fitzgerald and some of which are not. One in the former category is the need to ensure that the president is not
- [Immunity, Impeachment and Juristocracy (Part V: Above the Law)](https://www.pointoforder.com/2025/04/27/immunity-impeachment-and-juristocracy-part-v-above-the-law/) - Today we will consider the implications of Trump v. United States for the overall legal accountability of the executive. At the outset we should acknowledge that the future effect of this decision, as it will be interpreted and applied by the courts and the executive branch, cannot be predicted with certainty. Indeed, the decision itself
- [Immunity, Impeachment, and Juristocracy (Part IV: Noncore Official Conduct and Evidentiary Use)](https://www.pointoforder.com/2025/04/17/immunity-impeachment-and-juristocracy-part-iv-noncore-official-conduct-and-evidentiary-use/) - As we discussed in the last post, the Trump Court found that the president was entitled to what it called “absolute immunity” from criminal prosecution for his “core” official acts. Although this result resembles the absolute civil immunity granted by Fitzgerald for the president’s acts within the outer perimeter of his official responsibilities, we saw
- [Immunity, Impeachment and Juristocracy (Part III: "Core" Official Conduct)](https://www.pointoforder.com/2025/04/13/immunity-impeachment-and-juristocracy-part-iii-core-official-conduct/) - Despite Delahunty and Yoo’s claim that Trump “[c]losely follow[ed] Fitzgerald,” the two decisions are quite different in several ways. To begin with, Trump divides the president’s official conduct into “core” and “non-core” conduct. Today we will consider the Court’s ruling as to core official conduct. Although (spoiler alert) the Court finds that the president is
- [Immunity, Impeachment and the Juristocracy (Part II: Nixon v. Fitzgerald)](https://www.pointoforder.com/2025/04/09/immunity-impeachment-and-the-juristocracy-part-ii-nixon-v-fitzgerald/) - If Trump v. United States has no foundation in the original meaning of the Constitution (as discussed in my last post), what is the rationale of the decision? Delahunty and Yoo make three main points in support of the majority’s ruling: (1) the holding is consistent with (if not compelled by) the Court’s reasoning in
- [Immunity, Impeachment and Juristocracy (Part I: Unoriginalist Sin)](https://www.pointoforder.com/2025/04/08/immunity-impeachment-and-juristocracy-part-i-unoriginalist-sin/) - Today I will start a series of posts on the Supreme Court’s decision on presidential criminal immunity, Trump v. United States, 603 U.S. __, 144 S.Ct. 2312 (2024), and its implications for the legal accountability of the executive. While I am harshly critical of that decision, my main purpose is not to show that it
- [God Save the United States and this Honorable Court](https://www.pointoforder.com/2025/03/18/god-save-the-united-states-and-this-honorable-court/) - As reported by SCOTUSblog (among many others), Chief Justice Roberts today issued the statement that “[f]or more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.” The statement was, of course, made against the background of
- [In Memoriam: Elise Bean, Public Servant](https://www.pointoforder.com/2025/02/27/in-memoriam-elise-bean-public-servant/) - Elise Bean was a singular figure in the world of congressional oversight. She spent her career on the Hill working for Senator Carl Levin (D-Mich), most notably as his chief counsel and staff director for the Permanent Subcommittee on Investigations (PSI). There she led the staff of one of Congress’s most storied investigative committees under
- [The Exciting (Well, To Me) Conclusion of the JOR Memo](https://www.pointoforder.com/2025/02/23/the-exciting-well-to-me-conclusion-of-the-jor-memo/) - When we last left the saga of the JOR memo, Roberts had reached the (imho erroneous) conclusion that while executive officers “are subject to subpoena to testify before the United States House of Representatives or a committee thereof in connection with hearings for legislative purposes, the question as to whether the public interest requires them
- [Getting Some Answers About DOGE](https://www.pointoforder.com/2025/02/13/getting-some-answers-about-doge/) - So I have been planning to write posts on so many topics that I have gotten around to none of them. But a social media discussion today impels me to mention a House procedure which seems well suited, as a first step, to addressing some of the many questions which have arisen regarding the so-called
- [The JOR Memo, the Myers Case, and the Theory of Executive Privilege](https://www.pointoforder.com/2025/01/15/the-jor-memo-the-myers-case-and-the-theory-of-executive-privilege/) - To assess the executive privilege argument of the JOR memo, we should begin by drawing three distinctions which are either blurred or ignored in that memo (and the subsequent Wolkinson memo). These are (1) constitutional immunity versus (common law or constitutional) privilege; (2) the protections available to the chief executive versus those available to lower
- [The JOR Memo and William Howard Taft](https://www.pointoforder.com/2025/01/06/the-jor-memo-and-william-howard-taft/) - Having claimed that the power of Congress to compel the production of information has been established by Supreme Court precedent only as to private persons, Roberts turns to “the right of the United States House of Representatives or a committee thereof to compel the testimony of or the production of records by officers of the
- [The JOR Memo's Analysis of the Congressional Investigatory Power](https://www.pointoforder.com/2025/01/03/the-jor-memos-analysis-of-the-congressional-investigatory-power/) - Continuing where I left off, the JOR memo (as I will call it) begins by framing the question of the congressional right to obtain information from the executive as follows: In considering this matter it must be remembered that our form of Government is tripartite, i.e., executive, legislative and judiciary. Each branch in so far
- [Another Early Executive Privilege Memo](https://www.pointoforder.com/2025/01/02/another-early-executive-privilege-memo/) - Referring your attention to a post I wrote a few weeks ago regarding the 1948 Wolkinson memo that I found at the Truman Library, there was one other document located in the same file. Unlike the Wolkinson memo, this document, to the best of my knowledge, has not previously been made publicly available. Predating the
- [Truman, Wolkinson, and the Invention of Executive Privilege](https://www.pointoforder.com/2024/12/02/truman-wolkinson-and-the-invention-of-executive-privilege/) - Apropos of nothing, I was reading Judge MacKinnon’s dissent in Nixon v. Sirica, 487 F.2d 700, 729 (D.C. Cir. 1973) (en banc) and came across a passage I had not paid attention to before. In arguing that historical practice “firmly establish[es] a custom and usage that a President need not produce information which he considers
- [Congressional Oversight, Senate Confirmation, and the Recess Appointments Gambit](https://www.pointoforder.com/2024/11/27/congressional-oversight-senate-confirmation-and-the-recess-appointments-gambit/) - On a Lawfare Podcast this week, I spoke with Molly Reynolds of the Brookings Institution and Donald Sherman of Citizens for Ethics and Responsibility in Washington about congressional oversight, the confirmation process and the “recess appointments gambit” (as Molly has termed it) floated as a means of circumventing advice and consent for the incoming Trump
- [Can Senate Judiciary Compel the Production of the Gaetz Ethics Report?](https://www.pointoforder.com/2024/11/15/can-senate-judiciary-compel-the-production-of-the-gaetz-ethics-report/) - As you have probably heard, the president-elect (well, the expected president-elect) has expressed the intention to nominate Matt Gaetz as the next attorney general of the United States. Gaetz’s qualifications include some experience with the criminal justice system, though more on the criminal than the justice side, as well as being possibly the most-disliked person
- [Rahm Emanuel's Resignation Calculus](https://www.pointoforder.com/2008/12/14/rahm-emanuels-resignation-calculus/) - While most of America is worrying about losing a job, there is at least one person who has to worry about having too many. That would be Rahm Emanuel, who currently holds at least three different titles and responsibilities. He is a Member of the 110th Congress, representing the 5th Congressional
- [Rahm Emanuel's Peculiar Resignation](https://www.pointoforder.com/2009/01/04/rahm-emanuels-peculiar-resignation/) - By letter dated January 2, 2009 (although apparently released earlier in the week), Rahm Emanuel informed Illinois Governor Rod Blagojevich that "I am writing to resign my position as United States Representative from the Fifth Congressional District of Illinois, effective January 2, 2009." What is odd about this letter is that January 2
- [Bannon, Garland and Contempt of Congress: Part III (The Garland Contempt)](https://www.pointoforder.com/2024/07/15/bannon-garland-and-contempt-of-congress-part-iii-the-garland-contempt/) - I know, I know. With all that has been going on in the political world over the last couple of weeks, a battle over congressional contempt seems like small potatoes. But I will try to convince you in this post that it is more important than at first it might appear. In my last two
- [Bannon, Garland and Contempt of Congress: Part II (The Bannon Contempt)](https://www.pointoforder.com/2024/07/01/bannon-garland-and-contempt-of-congress-part-ii-the-bannon-contempt/) - Steve Bannon, a close political associate of former President Trump who briefly served in the Trump White House in 2017, was indicted, convicted, and sentenced to a four-month prison term for contempt of Congress in connection with the investigation conducted by the January 6 select committee. He has been ordered to report to prison on
- [Bannon, Garland and Contempt of Congress: Part I (Legal Background)](https://www.pointoforder.com/2024/06/26/bannon-garland-and-contempt-of-congress-part-i-legal-background/) - National Review’s legal contributing editor, Andrew McCarthy, has written two recent columns regarding the House’s use of criminal contempt. One involves Donald Trump’s political associate, Steve Bannon, who has been ordered to report to prison on July 1 to serve a four-month sentence for his refusal to comply with a subpoena to testify before the
- [The House Does Not Have to Allow Agency Counsel to Attend Depositions](https://www.pointoforder.com/2024/06/18/the-house-does-not-have-to-allow-agency-counsel-to-attend-depositions/) - In Lawfare I have a piece explaining why the House has the power to enforce subpoenas for depositions against executive officials and is not required to allow agency counsel to attend. While the investigations prompting these subpoenas are controversial, the legal issue in the lawsuits is unrelated to the merits of the committee’s inquiries. In
- [Trump's Speech or Debate Argument: The Improper Application of a Non-Existent Immunity](https://www.pointoforder.com/2024/06/03/trumps-speech-or-debate-argument-the-improper-application-of-a-non-existent-immunity/) - In the Supreme Court argument on Donald Trump’s claim of absolute presidential immunity from criminal liability for “official acts,” Trump’s counsel, John Sauer, relied heavily on the Court’s Speech or Debate jurisprudence. See Transcript at 6-8, 31, 34, 36 & 46. Sauer did not go so far as to claim the president was literally entitled
- [The Blount Case and Congressional Precedent](https://www.pointoforder.com/2024/03/24/the-blount-case-and-congressional-precedent/) - Today I want to return to a subject mentioned in a prior post relating to the 1799 impeachment trial of former Senator William Blount for acts committed prior to his expulsion by the Senate. Blount’s offenses, though not directly connected to his service in the Senate, were serious. Blount concocted a
- [Disqualified President's Day: Navigating the Enforcement of Section 3 in a "Dangerously Unclear" Legal Framework](https://www.pointoforder.com/2024/02/17/disqualified-presidents-day-navigating-the-enforcement-of-section-3-in-a-dangerously-unclear-legal-framework/) - So for present purposes let’s assume that the Supreme Court allows Donald Trump to remain on the ballot but says nothing to undercut the possibility that he could be prevented from assuming the presidency under section 3 of the 14th amendment. Do other mechanisms exist to stop Trump from taking office on the ground that
- [What's Next for Section 3?](https://www.pointoforder.com/2024/02/14/whats-next-for-section-3/) - There is a consensus, based on last week’s oral argument in Trump v. Anderson, that the U.S. Supreme Court will reverse the Colorado Supreme Court’s ruling that Donald Trump must be removed from that state’s primary ballot because he engaged in insurrection within the meaning of section 3 of the 14th amendment. The question now
- [Judge Wallace, Professor Lash, and the Unambiguous Language of Section Three](https://www.pointoforder.com/2023/11/25/judge-wallace-professor-lash-and-the-unambiguous-language-of-section-three/) - Note: the discussion of section 3's legislative history in this post relies entirely on Professor Lash's article. Which is to say that I appreciate his work on this subject, even if I strongly disagree with many of his interpretations. Let’s now turn to one of the two questions Judge Wallace resolved regarding the application of section
- [Some final pre-game thoughts on Trump v. Anderson](https://www.pointoforder.com/2024/02/07/some-final-pre-game-thoughts-on-trump-v-anderson/) - The legal drama of 2024 continues, as the D.C. Circuit held yesterday that former president Trump is not entitled to assert immunity in the federal prosecution for alleged crimes committed in connection with his efforts to contest the results of the 2020 election, including the January 6, 2021 violent breach of the U.S. Capitol. The
- [The Significance of the Election and Appointment Issue (and Professor Tillman's Request to Participate in Oral Argument)](https://www.pointoforder.com/2024/01/31/the-significance-of-the-election-and-appointment-issue-and-professor-tillmans-request-to-participate-in-oral-argument/) - In my last post I explained why the terms “election” and “appointment,” as used in the original Constitution, should not be read as mutually exclusive. Today I will explain why that matters for Trump v. Anderson, the Colorado disqualification case currently pending before the Supreme Court. But first I must note a surprising, and somewhat
- [Election versus Appointment: The Case of Congressional Officers](https://www.pointoforder.com/2024/01/29/election-versus-appointment-the-case-of-congressional-officers/) - There is an excellent article by James Heilpern and Michael Worley which discusses whether the president is an "officer of the United States" within the meaning of section 3 of the 14th amendment. It is worth reading the article and/or a shorter but also very good piece on Lawfare by Roger Parloff discussing the same
- [The One Where They Mix Up the Bayards](https://www.pointoforder.com/2024/01/21/the-one-where-they-mix-up-the-bayards/) - Note: Seth Barrett Tillman points out that the second Bayard was actually the son, not the grandson, of the original Bayard. (Bayard's grandson was also a senator, just not the one in question). The post is corrected accordingly. Not surprisingly, there have been a lot of amicus briefs filed in the Supreme Court case of
- [Cool Story, Bro: The Historical Origins of the Office/Officer Controversy](https://www.pointoforder.com/2024/01/15/cool-story-bro-the-historical-origins-of-the-office-officer-controversy/) - In my last post I promised to explore the origins, such as they are, of the theory that the president is not an “officer of the United States” and/or does not hold an “office under the United States.” In the interim there has been a development, of sorts, in which Professors Tillman and Blackman have
- [Amarica's Constitutional Crisis: A Kinda Intellectual History of the Office/Officer Controversy](https://www.pointoforder.com/2024/01/05/amaricas-constitutional-crisis-a-kinda-intellectual-history-of-the-office-officer-controversy/) - [I would have said “pseudo-intellectual” but I remembered what Art Buchwald said about offending them.] Anyway, on a recent Lawfare Podcast (at 1:23:02) a listener asked this question about the Colorado district court’s ruling (now reversed on appeal) on section 3: “How is the Colorado judge’s ruling on Trump’s disqualification based on a plausible reading
- [Judge Wallace and the Democracy Canon](https://www.pointoforder.com/2023/11/19/judge-wallace-and-the-democracy-canon/) - Another preliminary matter regarding Judge Wallace’s opinion holding that former President Donald Trump was not disqualified under section 3 of the 14th amendment. In finding that the presidency is neither a disqualification-triggering nor a banned office within the meaning of that provision, the judge explained that “part of the Court’s decision is its reluctance to
- [Congressman Ken Buck's Testimony About the January 6 Committee](https://www.pointoforder.com/2023/11/18/congressman-ken-bucks-testimony-about-the-january-6-committee/) - Yesterday, November 17, 2023, Colorado state court judge Sarah B. Wallace issued an opinion in Anderson v. Griswold, No. 2023cv32577 (filed Sept. 6, 2023), a case in which the petitioners are seeking to have Donald Trump removed from the Colorado ballot on the ground that he is disqualified from the presidency under section 3 of
- [Yoo and Malcolm on Section 3 of the 14th Amendment](https://www.pointoforder.com/2023/10/19/yoo-and-malcolm-on-section-3-of-the-14th-amendment/) - Yesterday I listened the Federal Society webcast featuring Professor John Yoo and John Malcolm of the Heritage Foundation discussing legal and constitutional issues of presidential power. Part of the discussion focused on section 3 of the 14thamendment and whether that provision is applicable to former president Donald Trump. Yoo expressed a great deal of skepticism
- [Steve Calabresi is Deeply Confused](https://www.pointoforder.com/2023/09/24/steve-calabresi-is-deeply-confused/) - Let me begin by saying that I do not know Professor Calabresi and have nothing against him as a person or a legal scholar. Moreover, the title of this blog post is not meant to suggest that his legal conclusion in the matter we are about to discuss is obviously wrong. I think it is
- [Does Section 3 of the Fourteenth Amendment Apply to State Elected Officials?](https://www.pointoforder.com/2023/09/14/does-section-3-of-the-fourteenth-amendment-apply-to-state-elected-officials/) - Less than a week after the January 6, 2021 attack on the Capitol, I wrote a brief blog post on whether section 3 of the 14th amendment applied to the presidency. (Don’t feel bad if you forgot this- so did I). The relevant text of section 3 is set forth below: No person shall be
- [Can Trump be Prosecuted for Violating the Speech or Debate Clause?](https://www.pointoforder.com/2023/07/20/can-trump-be-prosecuted-for-violating-the-speech-or-debate-clause/) - According to media reports, the target letter received by former President Donald Trump on July 16, 2023, indicates that he may be charged by the grand jury with violating 18 U.S.C. §241, a Reconstruction-era law that criminalizes the following conduct: If two or more persons conspire to injure, oppress, threaten, or intimidate any person in
- [Is the January 6 Committee Improperly Constituted?](https://www.pointoforder.com/2022/01/22/is-the-january-6-committee-improperly-constituted/) - Now that the Supreme Court has poured cold water on the executive privilege arguments being made by certain witnesses who have declined to cooperate with the January 6 select committee, a different objection by many of these witnesses takes on added importance. According to the lawyers for Mark Meadows, Jeffrey Clark, and others, the committee
- [Lawfare Podcast on January 6 Committee and Potential Subpoenas of Members](https://www.pointoforder.com/2022/01/18/lawfare-podcast-on-january-6-committee-and-potential-subpoenas-of-members/) - In today's Lawfare podcast, Quinta Jurecic hosts Molly Reynolds and me to talk about the January 6 committee's efforts to question House members about matters pertinent to its investigation. The more I think about it, the more I lean toward the view that if the committee decides to subpoena members, it will pursue enforcement by
- [Lawfare Article on the Presidential Records Case](https://www.pointoforder.com/2021/11/18/lawfare-article-on-the-presidential-records-case/) - I have a piece up at Lawfare on former President Trump's lawsuit to stop the National Archives from releasing his presidential records to the House committee investigating the January 6 attack on the Capitol.
- [History, Precedents, and Rule of Law](https://www.pointoforder.com/2021/11/07/history-precedents-and-rule-of-law/) - Apropos of nothing, I am republishing (ie, stealing) this post by a House parliamentarian, Max Spitzer, who is the precedents editor in the House Parliamentarian's Office (Motto: please do not send us Liz MacDonough's hate mail). On May 31, 1789, James Madison, then a member of the House of Representatives during the First Congress, wrote
- [Mo Brooks, the January 6 Riot, and the Federal Tort Claims Act](https://www.pointoforder.com/2021/07/25/mo-brooks-the-january-6-riot-and-the-federal-tort-claims-act/) - Today we are discussing a lawsuit filed by Representative Eric Swalwell (D-CA) against Representative Mo Brooks (R-AL), in which Swalwell alleges that Brooks conspired with former President Trump to overturn the results of the 2020 presidential election and to incite a mob to storm the Capitol on January 6, 2021. Brooks has responded by asking
- [House Judiciary's Terrible, Horrible, No Good, Very Bad McGahn Deal](https://www.pointoforder.com/2021/06/06/house-judiciarys-terrible-horrible-no-good-very-bad-mcgahn-deal/) - Friday was the day Don McGahn finally spoke to the House Judiciary Committee, though he did so behind closed doors pursuant to an agreement reached between the committee and the Biden Justice Department. What McGahn has to say may or may not be of some public interest, but it is unlikely to be as important
- [What Would Xena Do? A Conscientious Senator Navigates the Impeachment Trial.](https://www.pointoforder.com/2021/02/11/what-would-xena-do-a-conscientious-senator-navigates-the-impeachment-trial/) - As you know, on February 9 the Senate voted 56-44 to proceed with the second impeachment trial of Donald Trump, finding that the former president "is subject to the jurisdiction of a court of impeachment for acts committed while President of the United States, notwithstanding the expiration of his term in that office." This allows
- [Late Impeachments, Senate Resolution 16, and Some Relationships](https://www.pointoforder.com/2021/02/09/late-impeachments-senate-resolution-16-and-some-relationships/) - Writing in the Wall Street Journal Sunday, Chuck Cooper argues that the Constitution permits late impeachments, i.e., the impeachment and trial of former officials who are accused of committing high crimes or misdemeanors while in office. Cooper acknowledges that forty-five Republican senators appear to have taken a different view by voting in favor of Senator
- [Some Legal Questions About the Second Trump Impeachment Trial](https://www.pointoforder.com/2021/01/18/some-legal-questions-about-the-second-trump-impeachment-trial/) - The second impeachment of Donald Trump raises some significant legal issues, which I sketch out below. All I can say is that we could have avoided a lot of trouble if anyone ever listened to me. Can the Senate Try a Former President? This is, of course, the most fundamental question. While Trump was president when the
- [Does Section 3 of the Fourteenth Amendment Apply to the Presidency?](https://www.pointoforder.com/2021/01/12/does-section-3-of-the-fourteenth-amendment-apply-to-the-presidency/) - It will come as no surprise to readers of this blog that Professors Tillman and Blackman have written a controversial piece about the current troubles in which, among other things, they reiterate their view that the Constitution's Disqualification Clause does not bar an impeached, removed and disqualified official from the presidency because that office does
- [ACTUALLY CRIMINAL CONTEMPT MIGHT WORK PRETTY WELL RIGHT ABOUT NOW](https://www.pointoforder.com/2020/11/21/actually-criminal-contempt-might-work-pretty-well-right-about-now/) - I will take the occasion of a tweet by Representative Ted Lieu to make a point so obvious it may have been overlooked. Representative Lieu was responding to a question about why House Democrats have not subpoenaed the administrator of GSA (Emily Murphy, who goes by the adorable twitter handle of @GSAEmily) to ask her
- [Things to Do in Dirksen When You're Dead (Reprise)](https://www.pointoforder.com/2020/10/31/things-to-do-in-dirksen-when-youre-dead-reprise/) - In case you don’t get the reference, see here. Anyway, I have been meaning to write something about the 25thamendment for a while. This might seem like an odd time to do so, but there are distinct issues that may arise during the period between November 3, 2020 and January 20, 2121. So here goes.
- [Could Trump be held Liable for Infecting Others?](https://www.pointoforder.com/2020/10/06/could-trump-be-held-liable-for-infecting-others/) - What seems like a lifetime ago (i.e., sometime in September) there was controversy about the Justice Department's decision to intervene in a state court defamation suit against President Trump brought by E. Jean Carroll, a woman who has accused Trump of sexually assaulting her in the 1990s, for statements Trump made publicly about Carroll during
- [Me and the Committee on Privileges](https://www.pointoforder.com/2020/09/28/me-and-the-committee-on-privileges/) - The Committee on Privileges of the House of Commons, which is reviewing the authority of select committees to compel the production of information and punish for contempt, has published my submission, which provides a general overview of similar dilemmas facing Congress in this area. If you would like to read it (and why wouldn't you?),
- [Justice Thomas, the Committee on Manufactures, and the Precedent of 1827](https://www.pointoforder.com/2020/09/11/justice-thomas-the-committee-on-manufactures-and-the-precedent-of-1827/) - Continuing from my last post, let's take a closer look at the precedent Justice Thomas considers "particularly significant" for purposes of determining whether Congress may subpoena private documents in a legislative investigation. In 1827, the House Committee on Manufactures (COM), which had been charged with developing a legislative proposal to raise tariffs, asked the House
- [Justice Thomas's Dissent in Trump v. Mazars](https://www.pointoforder.com/2020/09/10/justice-thomass-dissent-in-trump-v-mazars/) - Today I will discuss Justice Thomas’s dissent in Trump v. Mazars USA, LLP. Specifically, I will consider how Thomas uses historical practice and precedent to support his claim that “[a]t the time of the founding, the power to subpoena private, nonofficial documents was not included by necessary implication in any of Congress’s legislative powers.” Mazars,
- [Applicability of Federal Criminal Laws to OCE Investigations](https://www.pointoforder.com/2020/08/25/applicability-of-federal-criminal-laws-to-oce-investigations/) - In one of his last opinions on the D.C. Circuit, Judge Griffith resolved another congressional case, United States v. Bowser, No. 18-3055 (D.C. Cir. June 30, 2020), albeit one less consequential than McGahn. David Bowser, a former chief of staff to Representative Paul Broun (R-Ga), was convicted of obstructing an investigation by the Office of
- [Presidential Electors and the Article V Convention: An Update](https://www.pointoforder.com/2020/08/13/presidential-electors-and-the-article-v-convention-an-update/) - A few years ago I wrote a post explaining why the failure of the "Hamilton electors" in the 2016 presidential election demonstrated that it would be equally impossible for an Article V convention to "run away," i.e., to propose amendments beyond the scope of the convention applied for by the state legislatures. Among other things,
- [Will the D.C. Circuit's "Unusual Moves" Allow it to Evade Supreme Court Review in the McGahn and Mnuchin Cases?](https://www.pointoforder.com/2020/08/09/will-the-d-c-circuits-unusual-moves-allow-it-to-evade-supreme-court-review-in-the-mcgahn-and-mnuchin-cases/) - On Friday the D.C. Circuit, sitting en banc, held that the House Judiciary committee has standing to enforce its testimonial subpoena to former White House counsel Don McGahn. See Comm. on the Judiciary, U.S. House of Representatives, v. McGahn, No. 19-5331 (D.C. Cir. Aug. 7, 2020) (en banc). In so doing, the court rejected both
- [Justice Thomas and Judge Rao: A Tale of Two Mazars Dissents](https://www.pointoforder.com/2020/08/06/justice-thomas-and-judge-rao-a-tale-of-two-mazars-dissents/) - Justice Thomas's dissent in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), has been compared to Judge Rao's dissent in the D.C. Circuit below, with the implication that this somewhat vindicates Rao's widely panned opinion. However, the two dissents are in fact quite different, and it seems pretty clear that Justice Thomas was not
- [The Berman Firing, Congressional Oversight, and (Lack of) Presidential Accountability for the Exercise of the Removal Power](https://www.pointoforder.com/2020/06/30/the-berman-firing-congressional-oversight-and-lack-of-presidential-accountability-for-the-exercise-of-the-removal-power/) - I don’t envy Andrew McCarthy, the National Review contributing editor who writes about legal affairs. McCarthy is a smart and experienced lawyer who clearly thinks of himself as intellectually honest. But he also seems to conceive his job as explaining the constitutional operation of our government while minimizing references to the president’s massive unfitness for
- [Podcast on Remote and Proxy Voting](https://www.pointoforder.com/2020/07/12/podcast-on-remote-and-proxy-voting/) - In case you want to hear more about institutional and constitutional issues surrounding proxy and remote voting, you can listen to me, James Wallner and Kevin Kosar talking to Adam White about the same.
- [The Stone Commutation, the Pardon Power and Impeachment](https://www.pointoforder.com/2020/07/11/the-stone-commutation-the-pardon-power-and-impeachment/) - Two years ago to the day I completed a series of posts regarding President Trump's use and threatened use of the pardon power. Yesterday the president commuted the sentence of Roger Stone, who was charged with and convicted of seven counts of false statements, obstruction and witness tampering. This event has predictably given rise to two
- [Mazars and Common Law Privileges Before Congress](https://www.pointoforder.com/2020/07/10/mazars-and-common-law-privileges-before-congress/) - So the Supreme Court's decision in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), yesterday will be a full employment act for congressional lawyers for the foreseeable future, but today I just wish to weigh in on one relatively minor point. For reasons that escape me, the Court chose to offer the following piece
- [Will the Mazars Court Overrule McGrain? (Part Two)](https://www.pointoforder.com/2020/06/04/will-the-mazars-court-overrule-mcgrain-part-two/) - As suggested in my last post, the May 12, 2020 oral argument in Trump v. Mazars USA, LLP did not go well for the House, to put it mildly. Most of the tough questions for the House Counsel clustered around a single idea: what is the limiting principle that prevents Congress from prying into whatever
- [Will the Mazars Court Overrule McGrain? (Part One)](https://www.pointoforder.com/2020/06/02/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.
- [More Standing Confusion in Mazars/Deutsche Bank](https://www.pointoforder.com/2020/05/11/more-standing-confusion-in-mazars-deutsche-bank/) - Since my last post on standing in Mazars/Deustche Bank, the Supreme Court ordered the parties to file supplemental briefs on the question whether the political question doctrine or "related justiciability principles" bear on the Court's consideration of these cases. These letter briefs have now been filed and, not surprisingly, none of the parties have changed
- [The Room Where it Sort of Happens](https://www.pointoforder.com/2020/04/28/the-room-where-it-sort-of-happens/) - Since I last mused about the issue of remote voting, the House floated, and then dropped, this proposal to allow both remote voting by proxy and remote committee proceedings during a "pandemic emergency." Among other things, the resolution would have authorized a member to submit to the Clerk a signed letter specifying another member to
- [Could Standing Still be an Issue in Mazars/Deutsche Bank?](https://www.pointoforder.com/2020/04/15/could-standing-still-be-an-issue-in-mazars-deutsche-bank/) - When we first discussed the Mazars case (almost one year ago), I suggested that one of the issues would be whether President Trump had standing to object to congressional document subpoenas directed to third parties when he was not claiming constitutional or other privilege in the subpoenaed documents. While Trump and his companies objected to
- [The Constitutionality of Remote Voting](https://www.pointoforder.com/2020/04/11/the-constitutionality-of-remote-voting/) - As you may have heard, there is a virus going around and as a consequence Congress, and everything else, is shut down. Some (such as @danielschuman) have advocated Congress establish a process for remote voting in the event that members are unable to return to Washington in the near future. One idea is to allow
- [You Can Take this to the (En) Banc](https://www.pointoforder.com/2020/03/13/you-can-take-this-to-the-en-banc/) - If we can say one thing for certain in this crazy mixed up world, it is that the full D.C. Circuit will soon be considering whether or when a chamber of Congress may bring suit or otherwise seek assistance of a federal court. There are currently at least three cases before D.C. Circuit panels in
- [Can McGahn be Prosecuted for Contempt of Congress?](https://www.pointoforder.com/2020/03/04/can-mcgahn-be-prosecuted-for-contempt-of-congress/) - In a fractured decision, a D.C. Circuit panel has held that the House lacks standing to civilly enforce a testimonial subpoena to former White House counsel Don McGahn. The lead opinion by Judge Griffith concludes, with some caveats, that "Article III of the Constitution forbids federal courts from resolving this kind of inter branch information
- [When it Raines, it Pours: Congressional Standing and DOJ's Ever Expanding Reading of Raines v. Byrd](https://www.pointoforder.com/2020/01/27/when-it-raines-it-pours-congressional-standing-and-dojs-ever-expanding-reading-of-raines-v-byrd/) - This is a followup to my last post (which is now back up). In a recent post, which has somehow disappeared from the website, I discussed how during the January 3 oral argument in Committee on the Judiciary v. McGahn (which you can listen to here), the Justice Department advanced both a "narrow" and
- [Questions about OLC's Role in Responding to House Subpoenas in the Impeachment Inquiry](https://www.pointoforder.com/2020/02/09/questions-about-olcs-role-in-responding-to-house-subpoenas-in-the-ukraine-investigation/) - On Monday I am participating in a Transparency Caucus program entitled "Shedding Light on the DOJ's Office of Legal Counsel Opinions." (It will take place at 2pm in Longworth; email Hannah.Mansbach@mail.house.gov if you would like to attend). In that connection, I want to raise an issue regarding OLC's role in the administration's decision not to cooperate
- [A Negotiated Resolution for the Second Article of Impeachment](https://www.pointoforder.com/2020/01/28/a-negotiated-resolution-for-the-second-article-of-impeachment/) - Professor Jonathan Turley has been extremely critical of the second article of impeachment against President Trump. Turley claims that the charge of obstruction of Congress is improper because the House failed to pursue judicial relief for the president's failure to comply with its subpoenas and requests for information. He asserts that by not giving the
- [The Justice Department's Broad New Attack on Congressional Standing](https://www.pointoforder.com/2020/01/23/the-justice-departments-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
- [Who Decides When the Chief Justice Presides?](https://www.pointoforder.com/2019/12/26/who-decides-when-the-chief-justice-presides/) - A few days ago I tweeted the following in regard to the debate over whether President Trump has actually been impeached: There is a simple way to resolve this. @senatemajldr should send a note to the Chief Justice, notifying him of the House vote. If the CJ shows up at the Senate the next day,
- [Briefing on Congressional Oversight Litigation](https://www.pointoforder.com/2019/12/21/briefing-on-congressional-oversight-litigation/) - If you want to hear me and Steve Vladeck discuss the slew of litigation regarding congressional investigative and oversight authority and what it may mean for the future, you can listen here.
- [The Justice Department's "Interesting" Comments on the Chief Justice's Role in an Impeachment Trial](https://www.pointoforder.com/2019/12/18/the-justice-departments-interesting-comments-on-the-chief-justices-role-in-an-impeachment-trial/) - The Constitution mentions the chief justice for one purpose only, and apparently it is so he can serve as Charlie McCarthy to Liz McDonough's Edgar Bergen. Or so one would understand from the Department of Justice's brief in In re Application of the Committee on the Judiciary, United States House of Representatives, for an Order
- [Roger Cramton's Memorandum Surfaces](https://www.pointoforder.com/2019/12/13/roger-cramtons-memorandum-surfaces/) - Remember the Roger Cramton memorandum we discussed a few months ago? (Of course you do, scarcely a waking moment goes by when you don't think "I wonder what ever happened with that Roger Cramton memorandum?"). This was one of the memoranda cited by the Office of Legal Counsel in footnote 1 of its opinion declaring
- [Impeachment and Disqualification](https://www.pointoforder.com/2019/12/11/impeachment-and-disqualification/) - The proposed articles of impeachment against President Trump call not only for his removal from office, but for his "disqualification to hold and enjoy any office of honor, trust, or profit under the United States." No doubt the drafters of these articles assume such disqualification would prevent Trump from ever again serving as president. Readers
- [Historical Practice and the Applicability of the Foreign Emoluments Clause to the President](https://www.pointoforder.com/2019/11/27/historical-practice-and-the-applicability-of-the-foreign-emoluments-clause-to-the-president/) - I want to return briefly to the question whether the president holds an "Office of Profit or Trust under [the United States]" within the meaning of the Foreign Emoluments Clause (FEC). As far as I know, no judge in any of the three emoluments cases has expressed any support for the theory, pressed by Professors
- [Subpoenas, Recalcitrant Witnesses, and the Senate Impeachment Trial](https://www.pointoforder.com/2019/11/22/subpoenas-recalcitrant-witnesses-and-the-senate-impeachment-trial/) - Law Twitter is abuzz (I guess this is a mixed metaphor) about this TPM post by Josh Marshall, who makes the following points regarding an impeachment trial in the Senate: (1) the House will have the opportunity to request subpoenas for any witnesses it wishes, including those who refused to appear during the House proceedings
- [D.C. Circuit Panel Issues Expedited Briefing Schedule for In re Application of the Committee on the Judiciary](https://www.pointoforder.com/2019/11/19/d-c-circuit-panel-issues-expedited-briefing-schedule-for-in-re-application-of-the-committee-on-the-judiciary/) - Late yesterday the DC Circuit panel hearing In re: Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials issued a scheduling order for briefing on the merits. The expedited schedule evidently reflects the compromise that the three judges came up with after yesterday's argument. The merits
- [Oral Argument: In Re Application of the Committee on the Judiciary](https://www.pointoforder.com/2019/11/18/oral-argument-in-re-application-of-the-committee-on-the-judiciary/) - The D.C. Circuit panel (Rogers, Griffith and Rao) heard arguments this morning on whether to stay Chief Judge Howell's order granting the House Judiciary Committee access to certain grand jury material related to the Mueller report. The three issues discussed were (1) whether the district court erred in holding that impeachment was a "judicial proceeding"
- [Judge Leon's Ruling in the Kupperman Case Could be Important Even if it Does not Reach the Merits](https://www.pointoforder.com/2019/11/15/judge-leons-ruling-in-the-kupperman-case-could-be-important-even-if-it-does-not-reach-the-merits/) - The lawsuit brought by former deputy national security advisor Charles Kupperman continues, for the moment, despite the House's withdrawal of its subpoena. Most likely, Judge Leon will end up dismissing the case as nonjusticiable on one ground or another. However, it could matter a good deal which ground(s) the court relies upon. If the case
- [Congress in Court: Where Things Stand Today](https://www.pointoforder.com/2019/11/11/congress-in-court-where-things-stand-today/) - Charlie Savage of the NY Times wrote an article over the summer which flagged the sheer volume of litigation in which the House has been involved this year. His count at the time was nine separate lawsuits in which the House was a party, plus four others in which it had filed amicus briefs. The
- [Why Mulvaney's Attempt to Intervene in Kupperman's Lawsuit is Bad for the White House](https://www.pointoforder.com/2019/11/10/why-mulvaneys-attempt-to-intervene-in-kuppermans-lawsuit-is-bad-for-the-white-house/) - White House chief of staff Mick Mulvaney has filed this motion to intervene in the lawsuit brought by Charles Kupperman, just as the House is trying to moot the case by withdrawing its subpoena to Kupperman. Like Kupperman, Mulvaney has been subpoenaed by the House to give testimony in the impeachment inquiry and has been
- [Why the House Withdrew the Kupperman Subpoena](https://www.pointoforder.com/2019/11/08/why-the-house-withdrew-the-kupperman-subpoena/) - As I discussed in this Just Security piece last week, Charles Kupperman, the former deputy national security advisor in the Trump administration, has brought suit against the House of Representatives, the President of the United States, the Speaker of the House, and three House committee chairs. Ordinarily this constellation of defendants is only seen in
- [Marshall v. Gordon and its Significance](https://www.pointoforder.com/2019/11/05/marshall-v-gordon-and-its-significance/) - My prior post covered the facts of H. Snowden Marshall's contempt case. Today we will address the legal issues. The District Court Decision The case was heard initially by Judge Learned Hand, who rejected Marshall's challenge to the contempt proceedings. Judge Hand's opinion summarizes the state of the law of contempt at that time. See
- [(Don't) Lock Him Up?](https://www.pointoforder.com/2019/10/29/dont-lock-him-up/) - By "him," of course, I mean this guy: This is Hudson Snowden Marshall, who served as the United States Attorney for the Southern District of New York from 1915 to 1917. He also has the honor of being one of only two executive branch officials ever arrested by the Sergeant at Arms for contempt of
- [Kilbourn and Chapman and Rao. Oh my.](https://www.pointoforder.com/2019/10/24/kilbourn-and-chapman-and-rao-oh-my/) - As it happens, the decision in Trump v. Mazars USA (D.C. Cir. Oct. 11, 2019) coincides nicely with our discussion of the congressional contempt power. Although Mazars involved the validity of a congressional subpoena, not the exercise of the contempt power per se, the cases we are about to encounter are quite relevant to an
- [Colonel Anderson's Contempt](https://www.pointoforder.com/2019/10/13/colonel-andersons-contempt/) - To continue our discussion of Congress's contempt power (sometimes referred to as the inherent contempt power), let us examine the first case in which the U.S. Supreme Court had occasion to consider the existence and scope of this power. The case arose from an attempt by Colonel John Anderson, who had numerous claims pending against
- [Representative Forsyth on Impeachment and the Contempt Power](https://www.pointoforder.com/2019/10/10/representative-forsyth-on-impeachment-and-the-contempt-power/) - As part of my series on impeachment and the contempt power, I have been reading the 1818 House debate on the contempt proceeding against Colonel John Anderson. I will have more to say on this subject presently, but today I want to flag an argument made by Representative Forsyth, who was one of the leading
- [Must Congress Allow Agency Counsel to Attend Depositions?](https://www.pointoforder.com/2019/10/06/must-congress-allow-agency-counsel-to-attend-depositions/) - Last week I wrote a piece for Just Security regarding the State Department's refusal to produce certain officials for depositions requested by several House committees (relating, of course, to the Ukraine affair). Among other things, I addressed the question of whether Congress is required to allow government counsel to attend depositions of the current or
- [Is the Trump Administration Overwhelming the House Counsel's Office?](https://www.pointoforder.com/2019/10/03/is-the-trump-administration-overwhelming-the-house-counsels-office/) - One question that I keep getting from reporters relates to how fast (or slowly) the various court cases related to the House's investigation of the president are moving. While these cases are moving at a reasonable clip for ordinary litigation, they are not proceeding fast enough to enable the House to obtain any of the
- [Contempt and Charles Pinckney](https://www.pointoforder.com/2019/09/26/contempt-and-charles-pinckney/) - Whether Congress (or, more precisely, each house of Congress) has the power to punish nonmembers is a question not directly addressed by the Constitution. See Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 171 (2017) (“Unlike the congressional houses’ authority to punish their members . . ., their authority to punish nonmembers has no
- [Inherent Contempt and Impeachment](https://www.pointoforder.com/2019/09/25/inherent-contempt-and-impeachment/) - Recently the Good Government Now organization (with which I am loosely affiliated) has been advocating the revival of inherent contempt as a means of compelling executive branch officials to provide information demanded by Congress. As you probably know (if you read this blog), inherent contempt allows either house of Congress to arrest individuals who defy
- [Impeachment and Constitutional Deliberation](https://www.pointoforder.com/2019/08/12/impeachment-and-constitutional-deliberation/) - The House Judiciary Committee has filed its long awaited lawsuit against Don McGahn, seeking declaratory and injunctive relief from the court with respect to McGahn's refusal to appear before the committee to testify regarding his knowledge of matters described in the report of Special Counsel Robert S. Mueller III. Specifically, the committee is interested in
- [I'll Take My Grand Jury Materials with a Hint of Impeachment](https://www.pointoforder.com/2019/07/30/ill-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
- [OLC's Fig Leaf Can't Cover McGahn](https://www.pointoforder.com/2019/06/25/olcs-fig-leaf-cant-cover-mcgahn/) - Now we come to the crux of the matter, OLC’s claim that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.” 5-20-19 OLC Opinion at 1. Specifically, OLC contends that Don McGahn, the former White House counsel, may not be compelled to testify before the House Judiciary Committee about
- [Impeachment or Indictment: What If the President Actually Shoots Someone on Fifth Avenue?](https://www.pointoforder.com/2019/01/25/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
- [What Does the D.C. Circuit's Order In Blumenthal v. Trump Tell Us?](https://www.pointoforder.com/2019/07/21/what-does-the-d-c-circuits-order-in-blumenthal-v-trump-tell-us/) - For one thing, there is not likely to be any emoluments discovery in this case in the near future, if at all. For another, we are likely to get a significant legislative standing decision from the D.C. Circuit in the not too distant future. On July 19, a panel of the D.C. Circuit (Judges Millettt,
- [Emoluments Suits Status: Keep an Eye on Blumenthal v. Trump](https://www.pointoforder.com/2019/07/18/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
- [What to Look For in the Mazars Oral Argument](https://www.pointoforder.com/2019/07/11/what-to-look-for-in-the-mazars-oral-argument/) - Tomorrow the Mazars subpoena case will be argued before the D.C. Circuit (Judges Tatel, Millett and Rao). In this appeal, President Trump (in his private capacity) has advanced a novel and audacious theory in support of his contention that the congressional subpoena at issue lacks a "legitimate legislative purpose." Trump is asking the D.C. Circuit
- [The Lawfare Podcast: Austin Evers and Me on Congressional Oversight](https://www.pointoforder.com/2019/07/10/the-lawfare-podcast-austin-evers-and-me-on-congressional-oversight/) - You can listen here..
- [It's (Probably Not) Complicated: The House Lacks Standing in Nagarwala](https://www.pointoforder.com/2019/07/06/its-probably-not-complicated-the-house-lacks-standing-in-nagarwala/) - A commentator has observed that "[t]he Supreme Court's and lower federal courts' jurisprudence on legislative standing is complicated." Bradford C. Mank, Does a House of Congress Have Standing Over Appropriations?: The House of Representatives Challenges the Affordable Care Act, 19 U. Pa. J. Const. L. 141, 143 (2016). Generally speaking, this is true. A series
- [Why the Mazars and New York Bank Cases are Moving So Fast, and Why Others Will Not](https://www.pointoforder.com/2019/05/22/why-the-mazars-and-new-york-bank-cases-are-moving-so-fast-and-why-others-will-not/) - On Monday, May 20, 2019, Judge Mehta dismissed Trump v. Committee on Oversight and Reform, No. 19-civ-01136 (D.D.C.). The judge's ruling came just four weeks after President Trump (in his personal capacity) and several of his businesses filed suit to enjoin enforcement of a congressional subpoena to Mazars, an accounting firm that had worked for
- [Another Split Between House Ethics and the OCE Board](https://www.pointoforder.com/2019/07/01/another-split-between-house-ethics-and-the-oce-board/) - See update below. This post is to flag an obscure dispute which popped up a few weeks ago between the House Ethics Committee and the Office of Congressional Ethics (hat tip: Bryson Morgan). The issue involves public disclosure of OCE referrals when (a) the referral recommends further review of allegations against a House member, officer or
- [Roger Cramton on Executive Privilege](https://www.pointoforder.com/2019/06/27/roger-cramton-on-executive-privilege/) - Who is Roger Cramton, I hear you ask? He was the author of a 1972 memorandum cited in footnote 1 of the OLC's 5-20-19 opinion on the testimonial immunity of former White House counsel Don McGahn. It is cited as "Memorandum for John W. Dean III, Counsel to the President, from Roger C. Cramton, Assistant
- [Does the President Enjoy Absolute Testimonial Immunity?](https://www.pointoforder.com/2019/06/17/does-the-president-enjoy-absolute-testimonial-immunity/) - As we saw in my last post, for presidential advisers to have testimonial immunity it is necessary but not sufficient that the president himself have such immunity. Assistant Attorney General Rehnquist noted in 1971 that “[e]veryone associated with the Executive Branch from [the Aaron Burr treason trial] until now, so far as I know, has
- [OLC's Evolving Position on Testimonial Immunity](https://www.pointoforder.com/2019/06/13/olcs-evolving-position-on-testimonial-immunity/) - In this post I will look at OLC’s claim that its advice on testimonial immunity of senior presidential advisers has been consistent “for nearly five decades.” See 5-20-19 OLC Opinion at 1. As we saw in my first post, since the 1940s the executive branch has generally resisted congressional demands for testimony from such advisers,
- [What Does OLC Really Mean By "Testimonial Immunity"?](https://www.pointoforder.com/2019/06/11/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
- [OLC's Law Office History of Testimonial Immunity](https://www.pointoforder.com/2019/06/05/olcs-law-office-history-of-testimonial-immunity/) - On May 20, 2019, the Office of Legal Counsel released an opinion entitled "Testimonial Immunity Before Congress of the Former Counsel to the President," in which OLC concludes that former White House counsel Don McGahn is constitutionally immune from being required to appear, much less testify, before the House Judiciary Committee. Before analyzing OLC's substantive
- [BLAG's Authority to Represent the House in Court](https://www.pointoforder.com/2019/02/17/blags-authority-to-represent-the-house-in-court/) - See Update Here On February 11, 2019, the new General Counsel of the House, Douglas N. Letter, filed an amicus brief in U.S. Dept of Commerce v. State of New York, the case that challenges the Trump administration's decision to add a citizenship question to the 2020 census. A federal district court ruled that
- [Update on BLAG's Authority to Initiate Subpoena Enforcement Action](https://www.pointoforder.com/2019/06/07/update-on-blags-authority-to-initiate-subpoena-enforcement-action/) - As I discussed in a prior post, House Rule II(8)(B) currently provides with respect to the Bipartisan Legal Advisory Group: There is established a Bipartisan Legal Advisory Group composed of the Speaker and the majority and minority leaderships. Unless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional
- [More on White House Czars and the Appointments Clause](https://www.pointoforder.com/2009/10/21/more-on-white-house-czars-and-the-appointments-clause/) - As noted in a prior post , WH Counsel Greg Craig maintains that none of the White House or National Security Council "czars" are officers of the United States within the meaning of the Appointments Clause because they "exercise[] [no] independent authority or sovereign power." Instead, Craig argues, they perform solely advisory functions. For
- [Podcast on Congressional Subpoena Power and Executive Privilege](https://www.pointoforder.com/2019/05/31/podcast-on-congressional-subpoena-power-and-executive-privilege/) - If you would like to hear me on a podcast talking about congressional subpoena power and executive privilege (and, really, why wouldn't you?), you are in luck. You can leave critiques in the comment section. (Offer does not apply to my children).
- [Just Security Post on How Impeachment Proceedings Strengthen Congress's Investigatory Powers](https://www.pointoforder.com/2019/05/28/just-security-post-on-how-impeachment-proceedings-strengthen-congresss-investigatory-powers/) - The post can be read here.
- [Resources on Congressional Oversight and Executive-Legislative Information Disputes](https://www.pointoforder.com/2019/05/21/resources-on-congressional-oversight-and-executive-legislative-information-disputes/) - As there appears to a current demand for resources on congressional oversight, executive privilege and the process for resolving executive-legislative disputes over information, I thought I would post a few suggestions as to places to look for such materials. First, there is this Congressional Investigations Research Page hosted by Georgetown Law (hat tip: Andy Wright).
- [Resolved: The President's Conduct with respect to the Special Counsel's Investigation was Consistent with the Take Care Clause and his Constitutional Oath](https://www.pointoforder.com/2019/05/16/resolved-the-presidents-conduct-with-respect-to-the-special-counsels-investigation-was-consistent-with-the-take-care-clause-and-his-constitutional-oath/) - Last year Professor Andy Wright published an article arguing that presidential interference with criminal investigations conducted by the Department of Justice may violate the president's constitutional duties under Article II even if it does not constitute obstruction of justice or any other criminal offense established under federal statutory law. See Andrew M. Wright, The Take
- [A Better Way to Enforce Congressional Subpoenas?](https://www.pointoforder.com/2019/05/14/a-better-way-to-enforce-congressional-subpoenas/) - In the course of writing the piece on enforcement of congressional subpoenas that I mentioned yesterday, I was looking for a copy of the House GOP white paper "A Better Way: Our Vision for a Confident America (The Constitution)," which was issued on June 16, 2016. At this time, of course, the Republican controlled Congress
- [Just Security Piece on Enforcement of Congressional Subpoenas](https://www.pointoforder.com/2019/05/13/just-security-piece-on-enforcement-of-congressional-subpoenas/) - As I have mentioned before, I have proposed a reform to House rules that would facilitate enforcement of committee subpoenas to the executive branch. Just Security has now published this piece in which I explain the justification for the rule and how it would work using the example of the House Judiciary committee's efforts to
- [Can BLAG Authorize a Subpoena Enforcement Action?](https://www.pointoforder.com/2019/05/10/can-blag-authorize-a-subpoena-enforcement-action/) - According to this CNN report, the House Ways & Means committee, which had previously requested President Trump's tax returns pursuant to 26 U.S.C. § 6103(f), has now issued subpoenas to the Treasury Department and IRS for the same information. Although the committee believes that it can sue to enforce the statutory duty to provide information
- [DC Bar Opinion on the Ethics of Congressional Lawyers](https://www.pointoforder.com/2011/02/10/dc-bar-opinion-on-the-ethics-of-congressional-lawyers/) - In 1977, the Legal Ethics Committee (LEC) of the D.C. Bar, interpreting the Code of Professional Responsibility (the predecessor to the Rules of Professional Conduct), opined that an attorney serving as counsel to a congressional committee was prohibited by the disciplinary rules from requiring a witness to appear at televised hearings when the committee had
- [Trump v. Deutsche Bank and the Financial Right to Privacy Act](https://www.pointoforder.com/2019/05/01/trump-v-deutsche-bank-and-the-financial-right-to-privacy-act/) - In Trump v. Deutsche Bank et al. (filed in the Southern District of New York), President Trump, in his personal capacity, and various of his companies have again filed to suit to block congressional subpoenas. This time the subpoenas in question were issued by two House committees (Intelligence and Financial Services) to two banks (Deutsche
- [Mort Rosenberg on The Road to Effective Enforcement of House Committee Subpoenas](https://www.pointoforder.com/2019/04/29/mort-rosenberg-on-the-road-to-effective-enforcement-of-house-committee-subpoenas/) - Mort Rosenberg notes that his proposal for reviving the House's inherent contempt power goes beyond just substituting monetary fines for incarceration as the primary means of coercing compliance with congressional subpoenas. He also recommends that the House consider appointing outside counsel to prosecute contemnors. He argues as follows: There is . . . sound support
- [Recalibrating the "Subpoena Cannon"](https://www.pointoforder.com/2019/04/27/recalibrating-the-subpoena-cannon/) - (I know some artillery expert from Quora is going to correct my title but you get the idea). To continue the martial metaphors, the House's investigatory offensive against the Trump administration is meeting stiff resistance on all fronts or, one might say, running into a stone wall. The administration is refusing to cooperate with any
- [Trump v. Cummings May Not Be a Slam Dunk for Congress](https://www.pointoforder.com/2019/04/24/trump-v-cummings-may-not-be-a-slam-dunk-for-congress/) - See update below: On Monday Donald J. Trump (in his personal capacity) and several of his businesses sued Elijah Cummings (chair of the House Committee on Oversight and Reform), the committee's chief counsel, and Mazars, an accounting firm that had provided services to Trump and his companies. The suit aims to prevent Mazars from
- [The Time Has Come: A Proposed Article of Impeachment Against Donald John Trump](https://www.pointoforder.com/2019/04/20/the-time-has-come-a-proposed-article-of-impeachment-against-donald-john-trump/) - The following was drafted in February and therefore does not reflect any information obtained from the Mueller report (which I have to admit I have not yet read in its entirety). There may well be additions and modifications that suggest themselves from that report (one area in particular would be to add specifics regarding pardon
- [Local Rule 57.7 regarding Pretrial Publicity and the Release of the Mueller Report](https://www.pointoforder.com/2019/04/17/local-rule-57-7-regarding-pretrial-publicity-and-the-release-of-the-mueller-report/) - The Justice Department has filed this "Government's Notice Regarding Report of the Special Counsel" in the pending criminal case against Roger Stone. The notice informs Judge Amy Berman Jackson that among the redactions to the Mueller report are "redactions made in consideration of Local Rule 57.7(c) and the Court's order so that the public release
- [Emoluments Clause Litigation Status Report](https://www.pointoforder.com/2019/04/11/emoluments-clause-litigation-status-report/) - When we last left the emoluments clauses, Judge Messitte, U.S. district judge for the District of Maryland, had just issued a ruling in District of Columbia v. Trump, holding that the plaintiffs (DC and Maryland) had standing to sue the president for his alleged violations of the foreign and domestic emoluments clauses. As we observed
- [Barr on Grand Jury Redactions](https://www.pointoforder.com/2019/04/10/barr-on-grand-jury-redactions/) - I have not watched most of Attorney General Barr's testimony over the past couple days, but I gather from clips and reporting that he has made a few remarks regarding grand jury material redactions from the Mueller report. I have a few brief comments on these statements. First, Barr notes, correctly, that under the Mckeever
- [The D.C. Circuit's McKeever Decision Supports Use of the Freeh/LaBella Procedure for Handling the Mueller Report](https://www.pointoforder.com/2019/04/08/the-d-c-circuits-mckeever-decision-supports-use-of-the-freeh-labella-procedure-for-handling-the-mueller-report/) - On its face, Friday's D.C. Circuit decision in McKeever v. Barr, involving a historian's request for access to grand jury materials from 1957 for purposes of a book he is writing, might seem to have little relevance to redactions in the Mueller report. In fact, however, the decision turns on the court's interpretation of a
- [A Proposal for Dealing with Mueller Report Redactions](https://www.pointoforder.com/2019/04/02/a-proposal-for-dealing-with-mueller-report-redactions/) - In our political culture of contempt and pervasive paranoia, it is hardly surprising that Attorney General Barr's refusal to release immediately the unreacted Mueller report has led many to accuse him of a coverup. So while I agree with Ben Wittes that everyone should chill out and wait to see what Barr actually produces in
- [Why Congress May Not Want a Completely Unredacted Mueller Report](https://www.pointoforder.com/2019/03/26/why-congress-may-not-want-a-completely-unredacted-mueller-report/) - Yesterday we discussed potential redactions to the Mueller report with respect to grand jury material protected under Federal Rule of Criminal Procedure 6(e). Today we will discuss the other category of redactions mentioned in Attorney General Barr's March 24 letter, namely "any information that could impact other ongoing matters, including those that the Special Counsel
- [Congress's Response to Potential Redaction of Grand Jury Material in the Mueller Report](https://www.pointoforder.com/2019/03/25/congresss-response-to-potential-redaction-of-grand-jury-material-in-the-mueller-report/) - In his letter yesterday to Congress, Attorney General Barr reiterated that "my goal and intent is to release as much of the Special Counsel's report as I can consistent with applicable law, regulations, and Departmental policies." Barr, noted, however that "[b]ased on my discussions with the Special Counsel and my initial review, the report contains
- [Attorney General Barr's Summary of the "Significant Conclusions" of the Mueller Report](https://www.pointoforder.com/2019/03/24/attorney-general-barrs-summary-of-the-significant-conclusions-of-the-mueller-report/) - May be found here. You're welcome.
- [How Much of the Mueller Report Will Barr Disclose?](https://www.pointoforder.com/2019/03/23/how-much-of-the-mueller-report-will-barr-disclose/) - On March 22, 2019, Attorney General Bill Barr notified Congress "pursuant to 28 C.F.R. § 600.9 (a) (3) that Special Counsel Robert S. Mueller III has concluded his investigation of Russian interference in the 2016 election and related matters." He further informed it that he was in receipt of the special counsel's "confidential report explaining
- ["Its Weird Being in an Organization that is Less Popular than Colonoscopies and Nickelback"](https://www.pointoforder.com/2019/03/06/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
- [Some Preliminary Thoughts on the House Judiciary Document Requests](https://www.pointoforder.com/2019/03/05/some-preliminary-thoughts-on-the-house-judiciary-document-requests/) - Yesterday the House Judiciary Committee issued document requests to 81 individuals, government agencies and other organizations. The cover letter from Chairman Nadler explains that the committee "is investigating a number of actions that threaten our nation's longstanding commitment to the rule of law, including allegations of obstruction of justice, public corruption, and other abuses of
- [The Trump Organization's Complaint Against the House Judiciary Committee](https://www.pointoforder.com/2019/02/26/the-trump-organizations-complaint-against-the-house-judiciary-committee/) - Yesterday counsel for the Trump Organization wrote to the House Judiciary Committee alleging that the committee's special oversight counsel, Barry H. Berke, "is ethically conflicted from representing or advising the Committee on any matters pertaining to the Company, and to respectfully demand that the Committee cease and desist from all investigative or other activities adverse
- [Do-Over Congressional Elections: The 1974 Louisiana Moore-LaCaze Race](https://www.pointoforder.com/2019/02/25/do-over-congressional-elections-the-1974-louisiana-moore-lacaze-race/) - Before leaving (hopefully) the subject of election do-overs, I should mention that there is one relevant modern "precedent," of a fashion, which came to my attention after my initial post on the subject. (Hat tip: Steven Shepard of Politico). The election of November 5, 1974 in Louisiana's sixth congressional district was between Republican Henson Moore
- [North Carolina Still Has a Problem](https://www.pointoforder.com/2019/02/22/north-carolina-still-has-a-problem/) - Yesterday the North Carolina election board unanimously voted to call a new election in the state's ninth congressional district, an unexpected result that occurred after the Republican candidate, Mark Harris, basically imploded on the stand and ended up agreeing with his Democratic opponent that a new election was needed. As a practical matter, this might
- [Why the North Carolina Election Board Should Punt to the House](https://www.pointoforder.com/2019/02/19/why-the-north-carolina-election-board-should-punt-to-the-house/) - Yesterday the North Carolina election board began hearing testimony regarding alleged fraud and misconduct affecting the 2018 election in the state's 9th congressional district. Attorneys for Dan McCready, the Democratic candidate who finished 905 votes behind his opponent, urge the board to exercise its authority under NC Gen. Stat. 163-182.13 (a) (4), which allows it
- [Is Senator McSally Unconstitutional?](https://www.pointoforder.com/2019/02/11/is-senator-mcsally-unconstitutional/) - An interesting Seventeenth Amendment issue is raised by this Atlantic article by Professor Garrett Epps. Epps contends that the Arizona law which permitted the governor to appoint Martha McSally to fill the vacant senate seat arising from the death of Senator John McCain is unconstitutional. A new lawsuit filed in Arizona federal court, Tedards v.
- [Can Virginia Lieutenant Governor Fairfax Be Impeached? It's Complicated.](https://www.pointoforder.com/2019/02/09/can-virginia-lieutenant-governor-fairfax-be-impeached-its-complicated/) - As I wrote a post recently regarding whether Virginia governor Ralph Northam could be impeached for a racist photo that appeared on his medical school yearbook page decades earlier (I said no), I temporized regarding a more difficult hypothetical. Suppose that after an individual has assumed office, it comes to light that he committed a
- [The Justice Department's Inventive New Process for (Not) Responding to Congressional Questions](https://www.pointoforder.com/2019/02/07/the-justice-departments-inventive-new-process-for-not-responding-to-congressional-questions/) - Acting Attorney General Matthew Whitaker was scheduled to appear before the House Committee on the Judiciary tomorrow. According to the latest communication by the Department of Justice, however, he may refuse to appear because the committee has authorized a subpoena for his testimony (even though the subpoena has not actually been served on him). [Update:
- [Can Governor Northam be Impeached?](https://www.pointoforder.com/2019/02/02/can-governor-northam-be-impeached/) - No. Perhaps I should elaborate. Article IV, section 17 of the Virginia Constitution (adopted in 1971) provides: “The Governor, Lieutenant Governor, Attorney General, judges, members of the State Corporation Commission, and all officers appointed by the Governor or elected by the General Assembly, offending against the Commonwealth by malfeasance in office, corruption, neglect of duty,
- [Congressional Subpoenas, Contempt, and Executive Privilege: Molly Reynolds and Stan Brand Discuss](https://www.pointoforder.com/2019/01/31/congressional-subpoenas-contempt-and-executive-privilege-molly-reynolds-and-stan-brand-discuss/) - There will undoubtedly be a lot of content appearing in the next few months about congressional subpoenas and how to enforce them, along with the related topics of contempt of Congress and executive privilege. Most of this will be review for the regular readers of this blog (you can click on the "congressional investigations," “contempt
- [The HPSCI Russia Report, Reconsidered](https://www.pointoforder.com/2018/12/23/the-hpsci-russia-report-reconsidered/) - What seems eons ago, but was only last spring, the House Permanent Select Committee on Intelligence (HPSCI) issued its report on “Russian Active Measures” in connection with the 2016 presidential election. The report was largely dismissed as a partisan effort by Chairman Devin Nunes, “one of Trump’s staunchest allies in Congress and a former adviser to his transition team,”
- [The Jefferson Search](https://www.pointoforder.com/2007/08/04/the-jefferson-search/) - Set forth below is a short piece I wrote regarding the search of the congressional office of Congressman Jefferson, just before Chief Judge Hogan issued his ruling upholding the search. In the next few days, Chief Judge Thomas Hogan of the United States District Court for the District of Columbia is expected to rule on
- [Impeachment and the Cohen Allegations](https://www.pointoforder.com/2019/01/18/impeachment-and-the-cohen-allegations/) - Things are moving ahead at a rapid pace, and I am therefore going to interrupt my discussion of impeachment and indictment to discuss some breaking news. As you may have heard, it is being reported that “President Donald Trump directed his longtime attorney Michael Cohen to lie to Congress about negotiations to build a Trump Tower in
- [Impeachment or Indictment?](https://www.pointoforder.com/2019/01/15/impeachment-or-indictment/) - This was the question addressed by a Senate subcommittee about two decades ago (on September 9, 1998, to be precise). See 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. (1998) (hereinafter the
- [North Carolina Ninth Congressional District: Status Unchanged](https://www.pointoforder.com/2019/01/10/north-carolina-ninth-congressional-district-status-unchanged/) - The updates on the North Carolina 9thcongressional district consist largely of things that have not happened. First, not surprisingly, no one has been sworn in to represent the district in the new Congress. Second, no one has been issued a certificate of election, although Republican candidate Mark Harris has filed suit asking a court to order the
- [Is there a Vacancy in North Carolina?](https://www.pointoforder.com/2019/01/02/is-there-a-vacancy-in-north-carolina/) - The vote count in North Carolina's ninth congressional district resulted in the Republican candidate, Mark Harris, leading his Democratic opponent by a narrow margin (905 votes). The North Carolina election authorities, however, have declined to certify his victory as they investigate allegations that the results were tainted by fraud. This means that the House, which
- [Who is a "Constituent"?: Lessons from the Menendez Case](https://www.pointoforder.com/2019/01/01/who-is-a-constituent-lessons-from-the-menendez-case/) - A significant portion of a congressional office’s resources are devoted to performing “casework,” which the Congressional Research Service defines as “the response or services that Members of Congress provide to constituents who request assistance.” While this seems like a noncontroversial definition, it raises two more difficult questions: (1) who are the “constituents” for whom a Member of
- [An Update on Parliament's Contempt Power](https://www.pointoforder.com/2018/12/05/an-update-on-parliaments-contempt-power/) - So at virtually the same time I told you that Parliament’s contempt power was in a state of desuetude, this happened. The House of Commons held the British government in contempt for its failure to publish the Attorney General’s legal advice regarding Brexit as the House had previously demanded. To be sure, my prior post related to the
- [Facebook's Encounter with Parliament's Inherent Powers](https://www.pointoforder.com/2018/12/04/facebooks-encounter-with-parliaments-inherent-powers/) - A parliamentary committee has seized a trove of internal Facebook documents relating to the company’s data and privacy policies and practices. The documents were obtained via a U.S. businessman, Ted Kramer, who had sued Facebook in state court in California. Kramer had access to the documents because his company had obtained them through discovery in the litigation,
- [Me Too's Privileged Few](https://www.pointoforder.com/2018/11/14/me-toos-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
- [Congressional Committees Should Consider Addressing Fifth Amendment Waiver in their Rules](https://www.pointoforder.com/2018/10/09/congressional-committees-should-consider-addressing-fifth-amendment-waiver-in-their-rules/) - As we move toward the opening of the 116thCongress, there are many ideas for reforming congressional rules and practice. One small but not insignificant change that might be considered relates to an issue that arises from time to time—when does a witness before Congress waive her Fifth Amendment privilege by making a voluntary exculpatory opening
- [Kavanaugh's Missing Records](https://www.pointoforder.com/2018/09/17/kavanaughs-missing-records/) - Yeah, I know. The transparency and separation of powers issues that everyone thought were so important with respect to the Kavanaugh nomination a week or so ago are now yesterday’s news. For that very reason, I am putting a longer piece on the Presidential Records Act and its application to the Kavanaugh hearing on the
- [The 9/11 Commission Recommendation Congress Forgot](https://www.pointoforder.com/2010/01/04/the-911-commission-recommendation-congress-forgot/) - As a former member of the 9/11 Commission noted today, Congress has failed to implement one key recommendation of that Commission—relating to how Congress organizes its own homeland security and intelligence committees. The Hill states that "[f]ormer Sen. Bob Kerrey (D-Neb.) said that Congress's failure to adopt [this recommendation] contributes to problems at the country's
- [Kagan's White House Records and the Presidential Records Act](https://www.pointoforder.com/2010/06/07/kagans-white-house-records-and-the-presidential-records-act/) - In preparation for the confirmation hearings for Supreme Court nominee Elena Kagan, the Senate Judiciary Committee has requested that the National Archivist produce records of Kagan’s service in the Clinton White House, where she served first as Associate White House Counsel and then as Deputy Assistant to the President for Domestic Policy. It appears that
- [Of Special Counsels and Congressional Investigations: Questions for Judge Kavanaugh](https://www.pointoforder.com/2018/08/20/of-special-counsels-and-congressional-investigations-questions-for-judge-kavanaugh/) - Note: click here to access full piece. As you may have heard, President Trump has nominated Brett Kavanaugh, currently a judge on the U.S. Court of Appeals for the D.C. Circuit, to fill the vacancy on the Supreme Court. There has been a good deal of discussion about how a Justice Kavanaugh might approach issues of
- [Constitutional Text and Discontinuity](https://www.pointoforder.com/2018/06/08/constitutional-text-and-discontinuity/) - So what does the Constitution say about discontinuity? Let’s start our analysis at what might seem like an odd place (strike that, what is an odd place), an email from the Clerk of the Australian Senate: I have always thought that, as your Constitution has no prorogation or dissolution, and as both of your Houses are continuing
- [Pardons, Self-Pardons and Impeachment (Part IV)](https://www.pointoforder.com/2018/07/11/pardons-self-pardons-and-impeachment-part-iv/) - This post will conclude my series (see here, here and here) on the pardon power and impeachment. Today I will look at the pardon power in the context of the Russia investigation and explain why, in my judgment, the totality of the evidence warrants opening an impeachment inquiry focused on the president’s abuse and threatened abuse of the pardon
- [Pardons, Self-Pardons and Impeachment (Part III)](https://www.pointoforder.com/2018/07/08/pardons-self-pardons-and-impeachment-part-iii/) - The case against President Trump’s exercise of the pardon power to date may be summarized as follows. Trump’s statements and actions have demonstrated (1) a complete disinterest in the official pardon process; (2) a willingness to grant pardons based on a one-sided process in which no contrary information or view is solicited or considered; (3)
- [Pardons, Self-Pardons and Impeachment (Part II)](https://www.pointoforder.com/2018/07/06/pardons-self-pardons-and-impeachment-part-ii/) - Following on my last post, we will now turn to the pardon power generally and what role Congress plays in checking abuses of that power. The Pardon Power and Congressional Oversight The power to pardon is, as Maddie McMahon and Jack Goldsmith note in a recent Lawfare post, “among the broadest of presidential powers.” The Supreme
- [Pardons, Self-Pardons and Impeachment (Part I)](https://www.pointoforder.com/2018/07/04/pardons-self-pardons-and-impeachment-part-i/) - Let me digress from our discussion of legislative discontinuity to address a more topical issue: presidential self-pardons. The question whether the president may validly grant a pardon to himself has been sporadically discussed since the inception of the current administration, but the debate accelerated following President Trump’s issuance on June 4, 2018 of the following
- [Congressional Standing to Sue: A Response to Grove and Devins on the History of Congressional Litigation](https://www.pointoforder.com/2015/05/07/congressional-standing-to-sue-a-response-to-grove-and-devins-on-the-history-of-congressional-litigation/) - William and Mary law professors Tara Leigh Grove and Neal Devins have written this article arguing for “a limited congressional power to represent itself in court.” Specifically, they argue that while the House or Senate may enforce subpoenas (including subpoenas directed to the executive branch) in court, neither house may intervene in federal litigation to
- [Legislative Discontinuity: An Introduction](https://www.pointoforder.com/2018/05/19/legislative-discontinuity-an-introduction/) - Last month I had the pleasure of participating in the International Conference on Legislation and Law Reform, which was held at AU’s Washington College of Law. During one of the plenary sessions on U.S. legislative drafting, a Dutch lawyer asked about the practice of “discontinuity” in Congress. I am not sure the panelists understood what this
- [Emoluments Trouble for Congress](https://www.pointoforder.com/2018/03/28/emoluments-trouble-for-congress/) - As expected, Judge Messitte has issued an opinion finding that plaintiffs have standing to pursue their claims against President Trump for alleged violations of the Foreign and Domestic Emoluments Clauses in D.C. v. Trump, a case brought by the D.C. and Maryland governments in the U.S. district court in Maryland. Although I think this decision
- [HPSCI Doesn't Need Don McGahn's Permission to Release Schiff Memo](https://www.pointoforder.com/2018/02/10/hpsci-doesnt-need-don-mcgahns-permission-to-release-schiff-memo/) - We discussed a couple weeks ago the process by which the House Permanent Select Committee on Intelligence (HPSCI) may publicly release classified information. Pursuant to House Rule X(11)(g)(2)(A), HPSCI had voted on January 29 to release the so-called “Nunes Memo.” This vote authorized the committee to release the memo after the expiration of a five-day
- [Congressional Materials on Recess Appointments](https://www.pointoforder.com/2012/10/22/congressional-materials-on-recess-appointments/) - Set forth below are congressional materials related to recess appointments in the following categories: (1) Congressional debates and Reports; (2) Congressional hearings; (3) the Draft Senate amicus brief in Mackie v. Clinton; (4) CRS reports and (5) Comptroller General opinions Congressional Debates and Reports 1814 Senate Debate regarding Senator Gore’s resolution that the President lacks
- [Standing Silliness in DC v. Trump](https://www.pointoforder.com/2018/02/01/standing-silliness-in-dc-v-trump/) - Last week I attended a part of the argument in DC v. Trump, one of three Emoluments Clause cases pending against President Trump. This case was brought by the governments of Maryland and the District of Columbia. It is being heard by Judge Messitte of the United States District Court for the District of Maryland,
- [Marking Time on the Nunes Memo (with update)](https://www.pointoforder.com/2018/01/30/marking-time-on-the-nunes-memo/) - In the past few days a lot of people (relatively speaking) have been reading this post (“Congressional Release of Classified Information and the Speech or Debate Clause”), which discusses the process by which the House and Senate intelligence committees may release classified information to the public. This spike in interest, I presume, relates to the
- [Sexual Harassment and the Office of Congressional Ethics](https://www.pointoforder.com/2018/01/26/sexual-harassment-and-the-office-of-congressional-ethics/) - As you are no doubt aware, there has been a great deal of controversy in the past few months about Congress’s handling of internal employment issues, most notably sexual harassment claims. It is less likely you are aware that Congress has actually moved rather expeditiously to address the problem. Last week a bill to do
- [Wright on Executive Privilege with Some Additional Thoughts Hazarded by Stern](https://www.pointoforder.com/2018/01/19/wright-on-executive-privilege-with-some-additional-thoughts-hazarded-by-stern/) - Steve Bannon, the former chief strategist in the Trump White House, has refused to answer questions from the House Permanent Select Committee on Intelligence (HPSCI) regarding his time in the White House and on the presidential transition team. Bannon claims these subjects may implicate executive privilege and is deferring to the White House counsel’s office
- [Don't be a Potted Plant and Other Takeaways from CREW v. Trump](https://www.pointoforder.com/2017/12/26/dont-be-a-potted-plant-and-other-takeaways-from-crew-v-trump/) - Judge Daniels of the U.S. District Court for the Southern District of New York has issued this opinion (hat tip: Eric Columbus) dismissing the Emoluments Clause lawsuit spearheaded by Citizens for Ethics and Responsibility in Washington (CREW). The court found that neither CREW nor its co-plaintiffs (individuals and businesses in competition with hotels and restaurants
- ["Nothing I have done as a senator, nothing, has brought dishonor on this institution . . ."](https://www.pointoforder.com/2017/12/07/nothing-i-have-done-as-a-senator-nothing-has-brought-dishonor-on-this-institution/) - “And I am confident the ethics committee would agree.” I was struck by these words from Senator Al Franken’s resignation speech (or perhaps semi-resignation speech) today. While Franken is to some extent denying the factual allegations (i.e., groping various women) made against him, the point of this particular line was to stress that he has
- [Bathroom Break](https://www.pointoforder.com/2007/10/10/bathroom-break/) - Today’s Roll Call editorializes that the Senate ethics investigation of Senator Larry Craig "should be dropped forthwith and the resources of the committee should be devoted to serious matters, notably charges that Sen. Ted Stevens (R-Alaska) had his home rebuilt by an oil executive who has admitted bribing elected officials." The grounds cited by the
- [The Senate's Authority to Punish or Expel Roy Moore: A Response to Stan Brand](https://www.pointoforder.com/2017/12/01/the-senates-authority-to-punish-or-expel-roy-moore-a-response-to-stan-brand/) - Former House Counsel Stan Brand has written this article in Politico entitled “Why the Law Might Not Allow the Senate to Expel Roy Moore.” I am working on a longer piece dealing with jurisdictional and prudential limits on the Senate Ethics Committee, but I want to take this opportunity to comment on Brand’s article. In
- [Harriet Miers and Assertions of Executive Privilege for Former Officials](https://www.pointoforder.com/2017/11/23/harriet-miers-and-assertions-of-executive-privilege-for-former-officials/) - Several months ago we discussed whether the president could assert executive privilege to prevent a former official (in that case, former FBI Director Jim Comey) from providing information to Congress, even if the former official wanted to disclose the information. Eric Columbus, a lawyer who had served in the Obama Justice Department, argued that the
- [Why I Snipe](https://www.pointoforder.com/2017/11/09/why-i-snipe/) - In my last post, I (briefly) laid out reasons why Congress should intervene in the ongoing litigation regarding the Foreign Emoluments Clause. Professor Tillman has offered a comment to that post, which he has shared by email and on the blog. His comment is set forth in full below, along with my response. Before getting
- [Why Tillman's Experts Show He is Wrong](https://www.pointoforder.com/2017/10/22/why-tillmans-experts-show-he-is-wrong/) - Alternate title: “Everything You Ever Wanted to Know about the Hamilton Report (and Much, Much More).” Readers of this blog are aware that Professor Seth Barrett Tillman has long maintained that the presidency and vice presidency are not “offices under the United States” within the meaning of various clauses of the Constitution which use that
- [Why Congress Must Intervene in the Foreign Emoluments Litigation](https://www.pointoforder.com/2017/10/26/why-congress-must-intervene-in-the-foreign-emoluments-litigation/) - Professor Josh Blackman has a very informative summary of the oral argument before U.S. District Judge George Daniels in CREW v. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y.), one of the three federal cases in which President Trump is being sued for (allegedly) violating the Foreign Emoluments Clause. If you are following these cases, you should
- [Comey's Choice: Congress or the Press](https://www.pointoforder.com/2017/07/05/comeys-choice-congress-or-the-press/) - Former FBI Director Jim Comey’s decision to “leak” (a word which itself has generated controversy in this connection) the contents of his memos of conversations with President Donald Trump to the New York Times has led to much pontificating, but indulge me while I engage in a little more. My interest focuses on the question
- [The Office of Congressional Ethics Throws a Hand Grenade into the Foreign Emoluments Clause Litigation](https://www.pointoforder.com/2017/09/12/the-office-of-congressional-ethics-throws-a-hand-grenade-into-the-foreign-emoluments-clause-litigation/) - The debate over the Foreign Emoluments Clause took an interesting twist yesterday when the House Ethics Committee released this report (hat tip Paul Singer) from the Office of Congressional Ethics (OCE) regarding Delegate Madeleine Bordallo (D-Guam). The relevant facts are as follows. Delegate Bordallo owns a residential property in Guam, which she has leased to
- [Congressional Liaison Offices of Selected Federal Agencies](https://www.pointoforder.com/2017/08/28/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
- [Is Senator Blumenthal Violating the Foreign Emoluments Clause?](https://www.pointoforder.com/2017/08/17/is-senator-blumenthal-violating-the-foreign-emoluments-clause/) - Senator Richard Blumenthal is one of the wealthiest members of Congress, with his net worth being pegged at a minimum of $67 million according to a Roll Call analysis of his financial disclosure statements. (Because financial disclosures report within broad ranges, they do not permit an exact calculation; this article says the senator’s actual net
- [A Tweet Storm about Congress, Healthcare Reform, and Pathological Partisanship in America](https://www.pointoforder.com/2017/07/29/a-tweet-storm-about-congress-healthcare-reform-and-pathological-partisanship-in-america/) - Yeah, I know, tweet storms are supposed to be on Twitter. This one is, except I didn’t “thread” my tweets properly, as several people, including Paul Rosenzweig, patiently explained to me. I will try to do that next time. Anyway, for the moment, I am presenting the thread here, even though a bunch of tweets
- [Did Liz MacDonough Change the Process for Making Byrd Rule Determinations? ](https://www.pointoforder.com/2017/07/12/did-liz-macdonough-change-the-process-for-making-byrd-rule-determinations/) - For those who don’t know, Ms. MacDonough is the Senate Parliamentarian, and in that capacity she is responsible for making preliminary rulings on what parts of the Senate health care reform bill comply with the “Byrd rule.” Without getting into the many intricacies of the Byrd rule, the basic point is that those provisions of
- [Can Congressional Committees Exempt their Oversight Correspondence from FOIA?](https://www.pointoforder.com/2017/07/08/can-house-committees-exempt-their-oversight-correspondence-from-foia/) - A minor kerfuffle erupted recently over letters sent by certain House committees, including the Committee on Financial Services, to agencies within their jurisdiction maintaining that future communications between the committee and the agency should be treated as “congressional records” not subject to the Freedom of Information Act. For example, this letter from Chairman Hensarling of
- [Comey and Executive Privilege (with Update)](https://www.pointoforder.com/2017/06/02/comey-and-executive-privilege/) - [See Update below] Former FBI Director Jim Comey is scheduled to testify before the Senate Select Committee on Intelligence (SSCI) next week. He is expected to be asked questions about certain subjects, including his personal conversations with the president, that might be the subject of executive privilege claims. However, because Comey is testifying voluntarily and
- [The D.C. Circuit and the "Would-be Congressmen"](https://www.pointoforder.com/2015/02/18/the-d-c-circuit-and-the-would-be-congressmen/) - Delegate Norton cites the D.C. Circuit’s decision in Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994), for the proposition that delegates may be authorized to vote in the Committee of the Whole, but a close examination of this decision reveals it to be poorly reasoned and internally incoherent. The court advances the following propositions:
- [The Senate's Options in the Flynn Matter](https://www.pointoforder.com/2017/05/23/the-senates-options-in-the-flynn-matter/) - Just got back from a trip abroad. Did I miss anything? I thought my law school classmate Jim Comey could fill me in on the latest, but for some reason my emails to him keep bouncing back . . . I know, I’m hilarious. Ok, let’s take a look at the controversy du jour, namely
- [(Not So) Desperately Seeking Trump's Tax Returns](https://www.pointoforder.com/2017/05/04/not-so-desperately-seeking-trumps-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
- [BLAG, the Act of Production Doctrine and the Schock Case](https://www.pointoforder.com/2017/04/24/blag-the-act-of-production-doctrine-and-the-schock-case/) - Recent filings in the criminal case against former congressman Aaron Schock (see my last post) brought to my attention that a number of pleadings in the Schock grand jury proceedings have been unsealed. Among these were two briefs filed by the House Counsel on behalf of the Bipartisan Legal Advisory Group (BLAG) as amicus curiae
- [Can Schock Turn the Tables (and Mirrors, Chandeliers, etc.) on the Government?](https://www.pointoforder.com/2017/03/29/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
- [More Implications of DC Bar Ethics Opinion No. 358](https://www.pointoforder.com/2011/02/11/more-implications-of-dc-bar-ethics-opinion-no-358/) - As mentioned in my last post, D.C. Bar Legal Ethics Opinion No. 358 amplifies the 1977 opinion in a couple ways that are of interest. First, the Legal Ethics Committee (LEC) states that a prosecutor holds "a position akin to counsel for an investigative congressional committee" for purposes of the legal ethics rules. Although the
- [The President and the Purposes of the Foreign Emoluments Clause (Part II): Titles of Nobility](https://www.pointoforder.com/2017/03/14/the-president-and-the-purposes-of-the-foreign-emoluments-clause-part-ii-titles-of-nobility/) - There has been much debate about Professor Zephyr Teachout’s claim that the Foreign Emoluments Clause and other constitutional provisions show that the Framers were “obsessed” with corruption. Compare Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 405 (2009) with Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution 59-60 (Feb. 5,
- [The President and the Purposes of the Foreign Emoluments Clause (Part III): Presents and Emoluments](https://www.pointoforder.com/2017/03/20/the-president-and-the-purposes-of-the-foreign-emoluments-clause-part-3-presents-and-emoluments/) - We may now turn to the question of whether the Framers might have had reason to exclude the president from the Foreign Emoluments Clause’s presumptive ban on accepting any “present” or “emolument” from a foreign power. Here we should start with an important distinction. I am not claiming that the exclusion of the president from
- [The President and the Purposes of the Foreign Emoluments Clause (Part I)](https://www.pointoforder.com/2017/03/13/the-president-and-the-purposes-of-the-foreign-emoluments-clause-part-i/) - I promised to return to the subject of the Foreign Emoluments Clause and so today I will start a series of posts on the purposes of that Clause and whether it makes sense for the president to be excluded from its terms. This first post will set the stage with a little background. To be
- [House of Cads: Legislators and the Disqualification Clause](https://www.pointoforder.com/2014/09/02/house-of-cads-legislators-and-the-disqualification-clause/) - So I have now read Benjamin Cassady’s “You’ve Got Your Crook, I’ve Got Mine,” 32 Quinnipiac L. Rev. 209 (2014), to which Professor Tillman’s article responds. Cassady makes the case that the Constitution’s Impeachment and Disqualification Clauses do not apply to federal legislators. Much of the article is devoted to explaining why this result makes
- [Would Speech or Debate Protect Attorney General Sessions from Prosecution?](https://www.pointoforder.com/2017/03/02/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.
- [Congressional Staff Work on Transition Matters](https://www.pointoforder.com/2017/02/06/congressional-staff-work-on-transition-matters/) - At legbranch.com, the website of the Legislative Branch Capacity Working Group, I have a post regarding the House Judiciary Committee staffers who allegedly worked on the Trump travel/immigration executive order during the transition.
- [How the Hamilton Electors Show that an Article V Convention Cannot Run Away](https://www.pointoforder.com/2017/01/31/how-the-hamilton-electors-show-that-an-article-v-convention-cannot-run-away/) - Back in 2011, I wrote a law review article discussing concerns that a limited convention for proposing amendments called under Article V could propose one or more amendments outside the scope of the application upon which it was called. Among the many safeguards against such a “runaway convention,” I pointed to the ability of a
- [Scalia, Trump, Tillman and the Foreign Emoluments Clause](https://www.pointoforder.com/2017/01/06/scalia-trump-tillman-and-the-foreign-emoluments-clause/) - Apropos of the debate whether the president holds “any Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (art. I, § 9, cl. 8), reference has been made to a December 1974 memorandum written by Antonin Scalia, then the Assistant Attorney General for the Office of Legal
- [The Right Way to Change the Senate Rules: A Response to Ilya Shapiro and Others](https://www.pointoforder.com/2016/12/14/the-right-way-to-change-the-senate-rules-a-response-to-ilya-shapiro-and-others/) - Ilya Shapiro argues here that Senate Majority Leader Mitch McConnell should use the nuclear option to eliminate the filibuster for Supreme Court nominees. Like many others, he does not seem to have any rule of law concerns with the use of the nuclear option, but it is not clear that he fully understands it either.
- [Going Rogatory: How a Congressional Committee Might Subpoena Julian Assange](https://www.pointoforder.com/2016/12/21/going-rogatory-how-a-congressional-committee-might-subpoena-julian-assange/) - Back in 2013, we discussed the possibility that a congressional committee could subpoena Edward Snowden, a U.S. citizen who had fled the country with a lot of defense and intelligence secrets and was living (and still lives) as Mr. Putin’s guest in Russia. As I noted then, congressional committees can attempt to obtain documents or
- [Could Congress Subpoena Snowden?](https://www.pointoforder.com/2013/07/02/could-congress-subpoena-snowden/) - So let's say a congressional committee wanted to take evidence from fugitive extraordinaire Edward Snowden. What options would it have? First, the committee could issue a subpoena to Snowden, just as it would any witness. Although I don't know of any case directly on point, it seems to me that a congressional subpoena to a
- [Should SCOTUS Hear Senator Menendez's Speech or Debate Case?](https://www.pointoforder.com/2016/08/11/should-scotus-hear-senator-menendezs-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
- [The Nuclear Option, the Law of the Senate and the Conscientious Senator](https://www.pointoforder.com/2013/03/02/the-nuclear-option-the-law-of-the-senate-and-the-conscientious-senator/) - This is my final post (at least for this Congress, hopefully) on the filibuster and the entrenchment of Senate rules. For the first 9 entries in this series, see below: Legal Scholar Letter to the Senate on Procedures for Changing the Rules Professor Bruhl and Senate Continuity Professor Chemerinsky and Senate Precedent on Changing the
- [A Christmas Present for Congress: the Congressional Clerkship Program](https://www.pointoforder.com/2016/12/09/a-christmas-present-for-congress-the-congressional-clerkship-program/) - On Balkinization, Abbe Gluck and Dakota Rudesill announce that a group of senators, including Ted Cruz and Mike Lee, have revived the idea of a congressional clerkship program: In this era of gridlock and difficult politics, a bipartisan group of Senators has done something worth celebrating. On Monday, with the introduction of the Daniel Webster
- [A Congressional Clerkship Program (Or How Larry Kramer Went Back In Time And Stole My Idea)](https://www.pointoforder.com/2011/10/15/a-congressional-clerkship-program-or-how-larry-kramer-went-back-in-time-and-stole-my-idea/) - A few years ago I came up with what I thought was a brilliant and original idea. Well, at least an original idea. Establish a congressional clerkship program, in which recent law school graduates could work for a year providing legal research and advice to Congress. It would be something of a cross between a
- [The Filibuster, the Nuclear Option and the Rule of Law](https://www.pointoforder.com/2016/11/28/the-filibuster-the-nuclear-option-and-the-rule-of-law/) - Erick Erickson argues here that Senate Republicans would be making a “foolish mistake” if they vote to scrap the filibuster “in its entirety.” He makes a distinction among three different filibusters: (1) the filibuster for executive appointments excluding Supreme Court justices; (2) the filibuster for Supreme Court justices; and (3) the filibuster for legislation. Erickson
- [Things to do in Dirksen when You're Dead](https://www.pointoforder.com/2016/11/11/things-to-do-in-dirksen-when-youre-dead/) - If nothing concentrates the mind like the prospect of being hanged, there should be quite a few members of Congress, particularly but not exclusively Democrats, who are having a moment of clarity about the lamentable state of the legislative branch in our constitutional system. These are not new concerns. As I pointed out two years
- [Would a Court Hear a Challenge to Congress's Article V Convention Call?](https://www.pointoforder.com/2016/11/01/would-a-court-hear-a-challenge-to-congresss-article-v-convention-call/) - Having reviewed the most prominent cases regarding the justiciability of Article V claims, today I will analyze how a court would approach the hypothetical lawsuit discussed in an earlier post. In that case Congress calls a convention based on 34 applications for a balanced budget amendment convention and the validity of this congressional action is
- [Still More on Article V Justiciability: Idaho v. Freeman](https://www.pointoforder.com/2016/10/14/still-more-on-article-v-justiciability-idaho-v-freeman/) - The second important district court opinion on the justiciability of Article V claims is Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981), judgment stayed sub nom. Natl Org. of Women v. Freeman, 455 U.S. 918 (1982), vacated as moot and remanded to dismiss, 459 U.S. 809 (1982). Before turning to Freeman’s justiciability analysis, it
- [More on Article V Justiciability: Dyer v. Blair](https://www.pointoforder.com/2016/10/13/more-on-article-v-justiciability-dyer-v-blair/) - In my last post on the justiciability of Article V cases, we discussed the Supreme Court’s 1939 decision in Coleman v. Miller and whether that decision would be applied broadly to block most or all Article V claims as nonjusticiable political questions. Those who would read Coleman narrowly often cite two district court decisions from
- [Virginia Supreme Court Takes on Speech or Debate](https://www.pointoforder.com/2016/09/27/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
- [Pagliano's Contumacious Failure to Appear](https://www.pointoforder.com/2016/09/23/paglianos-contumacious-failure-to-appear/) - Last night the House Committee on Oversight and Government Reform (COGR) voted to approve a contempt resolution for Bryan Pagliano, who failed to appear before the committee in response to a subpoena to testify. Pagliano, you may recall, is the IT specialist who was in charge of setting up Secretary of State Clinton’s private email
- [Coleman v. Miller and the Political Question Doctrine](https://www.pointoforder.com/2016/09/16/coleman-v-miller-and-the-political-question-doctrine/) - Following on my last post, our analysis of the justiciability of claims related to the Article V convention will begin with Coleman v. Miller, 307 U.S. 433 (1939) and the political question doctrine. Coleman involved the purported ratification by the Kansas legislature of a child labor constitutional amendment proposed by Congress in 1924. After both
- [The Justiciability of Controversies Related to the Article V Convention](https://www.pointoforder.com/2016/09/07/the-justiciability-of-controversies-related-to-the-article-v-convention/) - As you may know, there is increasing chatter about the possibility of Congress calling an Article V “convention for proposing amendments” (sometimes referred to, inaccurately, as a “constitutional convention”). Recently the New York Times featured a front page article by Michael Wines entitled “Inside the Conservative Push for States to Amend the Constitution.” The focus
- [An Urgent Need to Combat Executive Privilege after COGR v. Lynch](https://www.pointoforder.com/2016/08/15/an-urgent-need-to-combat-executive-privilege-after-cogr-v-lynch/) - In the Federalist Society Review, Chris Armstrong, the Deputy Chief Oversight Counsel for Chairman Hatch at the Senate Finance Committee, has written an article entitled “A Costly Victory for Congress: Executive Privilege after Committee on Oversight and Government Reform v. Lynch.” (Actually, he wrote this in June, but I am a little behind on everything,
- [How to Count to 270: The Electoral Count Act and the Election of 2000](https://www.pointoforder.com/2016/01/14/how-to-count-to-270-the-electoral-count-act-and-the-election-of-2000/) - To understand the congressional battlefield with regard to the counting of the 2000 presidential vote, we will need a (mercifully) brief review of the law and procedure of electoral vote counting, such as it is. For more comprehensive but less merciful discussions, see Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act
- [Senate Enforcement Action against Backpage CEO](https://www.pointoforder.com/2016/04/21/senate-enforcement-action-against-backpage-ceo/) - I am a little late on this, but last month the Senate authorized a rare civil action to enforce a subpoena, utilizing a statutory mechanism for enforcement of Senate (but not House) subpoenas. See 28 U.S.C. § 1365. Under this mechanism, if a subpoena recipient fails to comply with a subpoena from a Senate committee
- [Some Schocking Information About Congressional Records](https://www.pointoforder.com/2016/04/11/some-schocking-information-about-congressional-records/) - Former congressman Aaron Schock, under investigation for financial misconduct while in office, has been in various disputes with the Justice Department about documents prosecutors are seeking from him. One of those disputes involves the somewhat peculiar legal status of documents from a Member’s personal congressional office. So the blog having been on hiatus for a
- [Antonin Scalia on the "Minimal Risk" of an Article V Convention](https://www.pointoforder.com/2016/02/16/antonin-scalia-on-the-minimal-risk-of-an-article-v-convention/) - When state legislatures consider whether to apply for an Article V convention for proposing amendments, the primary argument in opposition is invariably that such an application poses an intolerable risk of a “runaway convention,” i.e., a convention that proposes amendments outside the scope of the subject matter for which it was called. This question was
- [The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?](https://www.pointoforder.com/2016/02/09/the-fast-and-furious-decision-can-congress-make-lemonade-out-of-lemons/) - The Court’s Decision Judge Amy Berman Jackson recently issued her decision in the subpoena enforcement action brought by the House Committee on Oversight and Government Reform (COGR) against the Attorney General. The case arose out of an October 11, 2011 subpoena from COGR to then-Attorney General Holder seeking documents in the “Fast and Furious” investigation.
- [More on Fast and Furious](https://www.pointoforder.com/2013/11/19/more-on-fast-and-furious/) - As mentioned last month, a federal district court has denied Attorney General Holder’s motion to dismiss a lawsuit, brought by the House Committee on Oversight and Government Reform, in which the committee seeks to enforce a subpoena for Justice Department documents related to the “Fast and Furious” investigation. The motion to dismiss advanced a number
- [Shkreli and the House's Power of Inherent Contempt](https://www.pointoforder.com/2016/02/04/shkreli-and-the-houses-power-of-inherent-contempt/) - Although the congressional contempt statute only applies to witnesses who fail to provide information demanded by Congress, a broader range of misbehavior is subject to Congress’s so-called inherent contempt power. This is the process by which Congress itself, just like a court, can punish witnesses and other individuals who appear before it or attend its
- [Martin Shkreli's Contempt for Congress](https://www.pointoforder.com/2016/02/04/martin-shkrelis-contempt-for-congress/) - I have never seen anything like the deportment of this witness, who smirked and made various faces while taking the Fifth before the House Committee on Oversight and Government Reform. At least his lawyer did not allow him to make an opening statement. Instead, the lawyer gave an impromptu press conference afterwards, in which he made
- [More from Professor Tillman on Cruz and Clinton](https://www.pointoforder.com/2016/02/03/more-from-professor-tillman-on-cruz-and-clinton/) - Professor Tillman responds to separate comments by Professor Rick Hasen and me (for the latter see my prior post) regarding legal issues that might affect the candidacies of Senator Cruz and former Senator Clinton. Tillman notes that there is a conflict between two principles here: "one, protecting the democratic process from wrongful manipulation by prosecutors
- [Hey, Did You Hear Ted Cruz Was Born in Canada?](https://www.pointoforder.com/2016/02/01/hey-did-you-hear-ted-cruz-was-born-in-canada/) - Or maybe he was born in New York, and faked his birth certificate to hide the shame. I’m just saying. Anyway, Professor Seth Barrett Tillman has a new post which compares the amount of attention given to the question of whether Senator Cruz is a “natural born Citizen” within the meaning of Article II, section
- [President Hastert and Other Symptoms of a Constitutional Crisis](https://www.pointoforder.com/2016/01/21/president-hastert-and-other-symptoms-of-a-constitutional-crisis/) - What would have happened had the U.S. Supreme Court not intervened in the Florida election contest and the Florida courts had ultimately found in Gore’s favor? The answer to this question depends in part on when the Florida courts reached their decision. Section 5 of Title 3 codifies the so-called “safe harbor” provision of the
- [What the 1960 Hawaii Presidential Election Meant for Bush v. Gore](https://www.pointoforder.com/2016/01/04/what-the-1960-hawaii-presidential-election-meant-for-bush-v-gore/) - On December 11, 2000, the day before the Supreme Court issued its Bush v. Gore ruling, Congresswoman Patsy Mink (D-HI) circulated this Dear Colleague entitled “1960 Hawaii Presidential Election Provides Roadmap for Resolving Florida Election Dispute.” As Congresswoman Mink explained, in 1960 Richard Nixon was originally declared the winner in Hawaii by 141 votes over
- [Nobody for President](https://www.pointoforder.com/2016/01/01/nobody-for-president/) - This is not an endorsement, but the title of an article written by a University of Virginia law professor in the immediate aftermath of the 2000 presidential election. See John Harrison, Nobody for President, 16 J. L. & Pol. 699 (2000). Professor Harrison rejects the claim that “Congress is the final judge of electoral votes,”
- [Update on SEC v. Ways & Means](https://www.pointoforder.com/2015/12/08/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
- [House Mulls Appeal of SEC Subpoena Decision](https://www.pointoforder.com/2015/11/20/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
- [Organizations Call for a House Task Force on Privately-Financed Foreign Travel](https://www.pointoforder.com/2015/11/08/organizations-call-for-a-house-task-force-on-privately-financed-foreign-travel/) - A group of watchdog organizations, including the Campaign Legal Center and Common Cause, sent this letter to Speaker Ryan (congratulations/condolences to the new speaker, BTW) last week asking for a moratorium on privately-financed foreign travel and the creation of a task force to review House rules and procedures related to such travel. Revelations relating to
- [Was House Ethics Tricked into Letting Gulenists Treat?](https://www.pointoforder.com/2015/10/31/was-house-ethics-tricked-into-letting-gulenists-treat/) - A USA Today investigation by Paul Singer and Paulina Firozi finds some spooky things going on with congressional travel sponsored by Gulenist groups over the past decade: A dozen different Gülen groups have sponsored congressional travel since 2008 and have filed forms with the House certifying that they were paying for the trips. The House Ethics Committee
- [Court Rejects Justice Department Plan to Avoid the Merits of House's Obamacare Lawsuit](https://www.pointoforder.com/2015/10/19/court-rejects-justice-department-plan-to-avoid-the-merits-of-houses-obamacare-lawsuit/) - Yesterday Judge Collyer rejected the Justice Department’s motion to certify for interlocutory appeal her ruling that the House has standing to pursue its claim that the Obama administration has illegally spent billions of dollars in “cost-sharing” payments to insurance companies under the Affordable Care Act. The Justice Department had candidly admitted that it wanted an
- ["Thorough Review" of Baku? I Say Not True.](https://www.pointoforder.com/2015/10/18/thorough-review-of-baku-i-say-not-true/) - On July 31, 2015, the House Ethics Committee issued its report on the trip to Baku, Azerbaijan by some 42 House members and staffers. The primary purpose of the trip, which took place at the end of May 2013, was to attend a conference in Baku entitled “U.S.-Azerbaijan: Vision for the Future.” The conference was
- [Close Enough for Government Work](https://www.pointoforder.com/2015/10/15/close-enough-for-government-work/) - From Andrew Glass at Politico: "On this day in 1918, the House agreed to do business with fewer than 50 members present on the floor and the public galleries shuttered. It did so, despite the absence of a quorum, in response to the Spanish flu pandemic that was sweeping the globe."
- [Not So Fast, Speaker Winfrey](https://www.pointoforder.com/2015/10/12/not-so-fast-speaker-winfrey/) - Is it a “fact” that non-members of the House are constitutionally eligible to serve as Speaker? The keepers of congressional knowledge and precedent (i.e., the Parliamentarians, the House historian, and other recognized experts on this sort of thing) would tell you, with perhaps an unwarranted degree of confidence, that the answer to this question is
- [A Tenuous Recess Appointment in Virginia](https://www.pointoforder.com/2015/10/08/a-tenuous-recess-appointment-in-virginia/) - An interesting recess appointment issue has arisen in the Commonwealth of Virginia. Article VI, section 7, of the Virginia constitution provides that justices of the state supreme court, who serve for 12 year terms, “shall be chosen by the vote of a majority of the members elected to each house of the General Assembly.” Under
- [The Judicial Conference on Impeachment of a Former Judge](https://www.pointoforder.com/2015/09/17/the-judicial-conference-on-impeachment-of-a-former-judge/) - In this certification pursuant to the Judicial Conduct and Disability Act, the Judicial Conference “certifies to the House of Representatives its determination that consideration of impeachment of former United States District Court Judge Mark E. Fuller (M.D. Ala.) may be warranted.” The Judicial Conference’s certification was based on findings that Judge Fuller had (a) repeatedly
- [Congressional Standing to Protect the Power of the Purse](https://www.pointoforder.com/2015/09/16/congressional-standing-to-protect-the-power-of-the-purse/) - Do you remember how last summer I suggested the House’s odds of prevailing (in particular, with respect to standing) in a potential Obamacare lawsuit were in the vicinity of the proverbial snowball’s chance in hell? You don’t? Good, because that turns out to be not exactly correct. To be fair (to myself), I was discussing
- [Why Wouldn't Congress Give Pagliano Immunity?](https://www.pointoforder.com/2015/09/03/why-wouldnt-congress-give-pagliano-immunity/) - Bryan Pagliano, a former State Department staffer who helped to set up Hillary Clinton’s private e-mail server, has informed several congressional committees, including the House Select Committee on Benghazi and the Senate Judiciary Committee, that he will invoke the Fifth Amendment privilege against self-incrimination if forced to appear before those committees to answer questions about
- [Professor Seth Barrett Tillman: Hillary Can Run from Jail](https://www.pointoforder.com/2015/08/25/professor-seth-barrett-tillman-hillary-can-run-from-jail/) - (see update below) More precisely, Tillman argues here that any attempt to disqualify former Secretary Clinton from the presidency based on conviction of a crime, including 18 U.S.C. § 2701 (which provides that anyone convicted “shall forfeit his office and be disqualified from holding any office under the United States”), would be unconstitutional. FWIW, I
- [Government Not Impressed by Menendez's "Policy" Approach to Speech or Debate](https://www.pointoforder.com/2015/08/26/government-not-impressed-by-menendezs-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
- [Rare Bipartisan Agreement: Let's Sweep Baku Gifts Under the Rug](https://www.pointoforder.com/2015/08/10/rare-bipartisan-agreement-lets-sweep-baku-gifts-under-the-rug/) - It’s hard to decide which is the worst part of the House Ethics Committee’s report on member/staff travel to Baku, Azerbaijan, but I am going to go with the discussion of tangible gifts. At least it is easiest to explain why that part is wrong. I will discuss other aspects of the report in future
- [Will Senator Menendez's Speech or Debate Gambit Work?](https://www.pointoforder.com/2015/07/29/will-senator-menendezs-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
- [Lessons from a Byzantine Scandal](https://www.pointoforder.com/2015/06/18/lessons-from-a-byzantine-scandal/) - Let’s say you are a Member of Congress who is approached by an obscure nonprofit organization about accepting an all-expense-paid trip to Baku, Azerbaijan during an upcoming recess. (Baku is on the western shore of the Caspian Sea, in case you need a map to locate it, which you probably do). The purpose of the
- [The U.S. Attorney's Troubling Decision in the Lois Lerner Case](https://www.pointoforder.com/2015/04/01/the-u-s-attorneys-troubling-decision-in-the-lois-lerner-case/) - Here is a link to US Attorney Ronald Machen’s letter to Speaker Boehner declining to submit the Lois Lerner contempt to the grand jury. Machen makes three points in this letter. First, he rejects the argument that the Committee on Oversight and Government Reform failed to follow proper procedures in notifying Lerner that her Fifth Amendment
- [Can a House Committee Subpoena Clinton's Server?](https://www.pointoforder.com/2015/03/24/can-a-house-committee-subpoena-clintons-server/) - On the Megyn Kelly show last night, Judge Napolitano stated that Secretary Clinton’s server could not be subpoenaed by a House committee, but only by the House itself, because the committee lacks the power to subpoena “tangible things.” This echoes views expressed by Trey Gowdy, chairman of the Benghazi select committee, who claimed that his
- [Speech or Debate issues in the Menendez investigation](https://www.pointoforder.com/2015/03/10/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.
- [Some Concluding Thoughts on House Delegates](https://www.pointoforder.com/2015/02/22/some-concluding-thoughts-on-house-delegates/) - Our review of the House’s treatment of delegates shows (1) the House has traditionally seen the line between debating and voting as the demarcation of appropriate delegate participation; (2) the proper role of delegates has also been described as merely advisory in nature; (3) participation in select and later standing committees has been viewed as
- [Krauthammer on the Post-Nuclear Senate](https://www.pointoforder.com/2015/02/20/krauthammer-on-the-post-nuclear-senate/) - As I noted in November: “The Senate Republicans may also find that they have a problem with their constituents. If the Democrats filibuster a measure that is important to the Republican base, it will be difficult to explain why the Republican majority is bound to adhere to rules that their opponents do not recognize.” Senate
- [The Role of Delegates on House Committees](https://www.pointoforder.com/2015/02/11/the-role-of-delegates-on-house-committees/) - Returning to the role played by delegates in the House, today we will look at their history on committees. In contrast to the initial debate over admitting territorial delegates to the House, there appears to have been little or no controversy in the early Congresses about allowing delegates to serve on committees. James White was
- [Felons on the Floor?](https://www.pointoforder.com/2015/02/05/felons-on-the-floor/) - The Telegraph reports that a point of order has been raised in Parliament with regard to the propriety of allowing a “convicted criminal” the right of access to Westminster. A former member of Parliament named Chris Huhne, who two years ago resigned and pled guilty to the offense of “perverting the course of justice” (something
- [More Fun with House Guests: Admitting Cabinet Officials to a Seat in Congress](https://www.pointoforder.com/2015/01/25/more-fun-with-house-guests-admitting-cabinet-officials-to-a-seat-in-congress/) - A recent post by Professor Gerard Magliocca brought to my attention a matter which sheds further light on how the House of Representatives has viewed participation by non-members in its proceedings. In 1864, a House select committee favorably reported a bill providing that the heads of the Executive Departments “shall be entitled to occupy seats
- [Quinnipiac Law Review Symposium on the Disqualification Clause](https://www.pointoforder.com/2015/01/22/quinnipiac-law-review-symposium-on-the-disqualification-clause/) - A forthcoming issue of the Quinnipiac Law Review features four articles responding to Benjamin Cassady's "You've Got Your Crook, I've Got Mine": Why the Disqualification Clause Doesn't (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014). The editors were kind enough to ask me to write the foreword, which you can find here. It's extremely hilarious
- [The First House Debate on Admitting Delegates](https://www.pointoforder.com/2015/01/21/the-first-house-debate-on-admitting-delegates/) - On November 14, 1794, the House resolved into the Committee of the Whole House to consider the report of an ad hoc committee led by Representative Baldwin. The Baldwin committee had been tasked with considering whether to admit to the House one James White, who had presented his credentials as “Representative of the Territory of
- [Delegate Morrissey and the Voters Who Love Him](https://www.pointoforder.com/2015/01/17/delegate-morrissey-and-the-voters-who-love-him/) - So when we left off our discussion of Virginia Delegate Joseph Morrissey (D-Henrico turned I-Prison), I noted: All of this is likely academic as the voters will probably not take up Morrissey’s case as a cause celebre ala Wilkes. But it should be noted that Wilkes was a famous libertine and some of his expulsions
- [Federal Prosecutors Push Boundaries of Illegal Gratuities Statute](https://www.pointoforder.com/2009/03/10/federal-prosecutors-push-boundaries-of-illegal-gratuities-statute/) - Justice Scalia’s opinion for a unanimous Court in U.S. v. Sun-Diamond Growers, 526 U.S. 398 (1999), begins dryly with the observation: "Talmudic sages believed that judges who accepted bribes would be punished by eventually losing all knowledge of the divine law. The Federal Government, dealing with many public officials who are not judges, and with
- [Membership Has its Privileges: Participation of DC and Territorial Delegates in House Proceedings](https://www.pointoforder.com/2015/01/13/membership-has-its-privileges-participation-of-dc-and-territorial-delegates-in-house-proceedings/) - Last week, on the opening day of the new Congress, DC Delegate Eleanor Holmes Norton argued that the House should adopt a rule allowing her and territorial delegates (representing Puerto Rico, Guam, the Virgin Islands and American Samoa) to vote in the Committee of the Whole. Since 1993, the House has had such a rule
- [Michael Grimm, John Wilkes and the House's Power to Punish for Conduct Preceding Election](https://www.pointoforder.com/2014/12/30/michael-grimm-john-wilkes-and-the-houses-power-to-punish-for-conduct-preceding-election/) - It is being reported that Representative Michael Grimm has agreed to resign his seat in the next Congress. Grimm was indicted on multiple federal charges in April, was reelected handily in November and last week pled guilty to a single count of tax fraud stemming from his ownership and management of a health food restaurant
- [Virginia's John Wilkes Wannabe](https://www.pointoforder.com/2014/12/23/virginias-john-wilkes-wannabe/) - For any middle-aged legislator thinking about going all flagrante delicto with an underage intern, be warned that potential consequences include not only pregnancy, but thorny constitutional issues. Now that I have your attention, a little review. Not long ago we discussed Benjamin Cassady’s exposition of why Members of Congress are not subject to impeachment and
- [Catching Legislators In Flagrante Delicto](https://www.pointoforder.com/2014/12/17/catching-legislators-in-flagrante-delicto/) - So the important point to take away from this post is that there is a very cool website, Constitute, which allows you to read, search and compare the world’s constitutions. (Hat tip: Lawrence Solum). When you enter the site, there is a topics section on the left side and if you click on a topic,
- [Immigration: Another Question of Administrative Law Versus Constitutional Faithfulness](https://www.pointoforder.com/2014/12/03/immigration-another-question-of-administrative-law-versus-constitutional-faithfulness/) - Professor Christopher Schroeder asks the following question at Balkinization: Under our constitutional separation of powers, does the President have the authority to defer the deportation of the undocumented parents of children who are lawfully present in the United States, to permit these persons to apply for work authorization and also to expand the Deferred Action
- [Upcoming Legisprudence Conference in Israel](https://www.pointoforder.com/2014/11/30/upcoming-legisprudence-conference-in-israel/) - An international conference co-sponsored by the Bar-Ilan University Faculty of Law and the Knesset Legal Department, which will take place on December 10-11, 2014 in Israel, was brought to my attention by one of the participants. The conference is entitled “Legisprudence and the Legislative Process: From Theory to Practice,” and includes a number of panels
- [CRS on the Take Care Clause](https://www.pointoforder.com/2014/11/26/crs-on-the-take-care-clause/) - This September 4, 2014 CRS memo entitled “The Take Care Clause and Executive Discretion in the Enforcement of Law,” (hat tip: Mort Rosenberg) is helpful background for understanding both the House lawsuit against the Obama administration and the controversy over the President’s executive action on immigration. However, as is not uncommon for CRS reports, there
- [US House of Representatives v. Burwell](https://www.pointoforder.com/2014/11/21/us-house-of-representatives-v-burwell/) - You’re welcome.
- [Gaming out the Coming Confirmation War](https://www.pointoforder.com/2014/11/21/gaming-out-the-coming-confirmation-war/) - There is a reasonable possibility that the Republican-controlled Senate will refuse to confirm any of President Obama’s nominees (or any such nominees who fall into particular categories) in the next Congress. By refusing to confirm nominees, the Republicans would be remedying (it might be argued) the illegal use of the “nuclear option” last year, which
- [Cannon on Nuking Obamacare](https://www.pointoforder.com/2014/11/10/cannon-on-nuking-obamacare/) - Michael Cannon has made a suggestion, resembling my last post in some respects, that the new Republican majority in the Senate use the nuclear option for purposes of repealing the Affordable Care Act, aka Obamacare. However, for some reason Cannon recommends that the Senate proceed by way of reconciliation, a cumbersome process that is unnecessary
- [The Filibuster in a Post-Nuclear Senate](https://www.pointoforder.com/2014/11/05/the-filibuster-in-a-post-nuclear-senate/) - Richard Arenberg, an expert on Senate procedure, wrote an interesting article on Monday asking “Would a new Senate majority abuse the budget reconciliation process?” This question matters if one assumes that the minority still has the power to filibuster in the Senate. But does it? The Senate “nuclear option” ruling a year ago did not,
- [The Speech or Debate Clause and Protection of Informal Information Gathering](https://www.pointoforder.com/2014/10/20/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
- [Senator Ervin on Congressional Discipline and Speech or Debate](https://www.pointoforder.com/2014/10/17/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
- [U.S. House of Representatives v. Obama: The Problem of Standing](https://www.pointoforder.com/2014/07/01/u-s-house-of-representatives-v-obama-the-problem-of-standing/) - There are a number of reasons why the proposed lawsuit by the House against President Obama is likely to be futile (or worse). Andrew McCarthy does an admirable job of laying many of them out here and here. Today I will address only one issue, the question of the House’s standing, from what may be
- [Renzi Loses Coming and Going on Speech or Debate](https://www.pointoforder.com/2014/10/10/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
- [In Case You Haven't Had Enough of the Disqualification Clause Already](https://www.pointoforder.com/2014/09/04/in-case-you-havent-had-enough-of-the-disqualification-clause-already/) - Professor Brian C. Kalt has posted this response to Benjamin Cassady’s article on the Impeachment and Disqualfication Clauses. (Hat tip- Seth Barrett Tillman. Apparently there is a whole symposium on this topic, and more articles will be forthcoming). I had to smile when I read Professor Kalt’s opening paragraphs: Benjamin Cassady has put great effort
- [Is the Presidency an Office "Under" the United States?](https://www.pointoforder.com/2014/09/02/is-the-presidency-an-office-under-the-united-states/) - Applying Benjamin Cassady’s “electoral pardon” principle might suggest that the Disqualification Clause is inapplicable to the presidency (and vice-presidency). After all, if voters are allowed to disregard a candidate’s prior impeachment (or expulsion) and elect “their crook” to Congress, why shouldn’t the same hold true for a candidate for president? Professor Tillman maintains that the
- [Tillman on the Disqualification Clause](https://www.pointoforder.com/2014/08/24/tillman-on-the-disqualification-clause/) - Professor Seth Barrett Tillman has posted this draft article on the Disqualification Clause of Article I, § 3, cl. 7, which provides that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Long
- [Two lobbyists and a congressional staffer walk into a strip club called Privilege](https://www.pointoforder.com/2014/08/21/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
- [SSCI's Approach to Releasing its Classified Report Weakens the Senate's Prerogatives](https://www.pointoforder.com/2014/08/14/sscis-approach-to-declassification-weakens-the-senates-prerogatives/) - Section 8(a) of S. Res. 400 provides that SSCI “may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure.” Chairman Feinstein clearly wants to publicly release SSCI’s report on the CIA
- [A Closer Look at the Senate's Procedures for Releasing Classified Information under S. Res. 400](https://www.pointoforder.com/2014/08/11/a-closer-look-at-the-senates-procedures-for-releasing-classified-information-under-s-res-400/) - As discussed in my last post, there is (or should be) no serious controversy regarding the Senate’s authority to release classified information unilaterally pursuant to Section 8 of S. Res. 400. Yet the full Senate has apparently never taken a vote to release information under Section 8, perhaps in part because of that section’s elaborate
- [Does the Obama Administration Challenge the Senate's Authority to Release Classified Information under S. Res. 400?](https://www.pointoforder.com/2014/08/06/does-the-obama-administration-challenge-the-senates-authority-to-release-classified-information-under-s-res-400/) - On Friday, August 1, the executive branch returned to SSCI the redacted executive summary of the committee’s study on the CIA detention and interrogation program. Chairman Feinstein announced that there had been “significant redactions” made and that the public release of the report would be held until the committee had time to “understand the basis
- [Is a Lawsuit Really the House's Only Remaining Option?](https://www.pointoforder.com/2014/07/24/is-a-lawsuit-really-the-houses-only-remaining-option/) - In response to the argument that the House needed access to the courts in order to protect the separation of powers and its constitutional prerogatives, Representative Slaughter noted “the Founding Fathers gave to the legislative branch the weapons to defend itself without running to the court.” She then proceeded to list these tools of self-defense,
- [Halbig/King and the House's Lawsuit against the President](https://www.pointoforder.com/2014/07/23/halbigking-and-the-houses-lawsuit-against-the-president/) - As you have no doubt heard, two circuit courts issued divergent opinions yesterday on the same administrative law question, namely the validity of an IRS rule extending tax subsidies to health insurance purchased on the federal exchange. These decisions nicely illustrate the point I was making in my last post regarding the nature of administrative
- [The Employer Mandate Delay: A Question of Administrative Law or Constitutional Faithfulness?](https://www.pointoforder.com/2014/07/22/the-employer-mandate-delay-a-question-of-administrative-law-or-constitutional-faithfulness/) - With the background of the last two posts, let’s consider whether “the President acted beyond his authority to execute the laws” by delaying the employer mandate, to paraphrase the question asked at the House Rules Committee hearing. Or, rather, let’s separate this question into two. The first is whether the delay of the employer mandate
- [Who is Responsible for the Employer Mandate Delay?](https://www.pointoforder.com/2014/07/21/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
- [Some Preliminary Thoughts on the House Rules Hearing](https://www.pointoforder.com/2014/07/20/some-preliminary-thoughts-on-the-house-rules-hearing/) - Last Wednesday, July 16, 2014, the House Rules Committee held a five-hour hearing to consider a draft resolution “providing for authority to initiate litigation for actions by the President inconsistent with his duties under the Constitution of the United States.” It has been decided, although it is unclear whether this decision has yet been formalized
- [Would the House's Sovereign Immunity Position Bar its Suit against the President?](https://www.pointoforder.com/2014/07/17/would-the-houses-sovereign-immunity-position-bar-its-suit-against-the-president/) - This is a question that should have, but didn’t, occur to me even as I sat through a good portion of yesterday’s House Rules Committee hearing, in which members and witnesses spent five hours arguing over when, if ever, it was permissible for one branch of the government to sue another. Professor Walter Dellinger testified
- [The Legislator-Lobbyist Privilege?](https://www.pointoforder.com/2014/07/08/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,
- [The House All In on Sovereign Immunity](https://www.pointoforder.com/2014/07/07/the-house-all-in-on-sovereign-immunity/) - The House Ways & Means Committee has filed its response to the SEC’s enforcement action (see here and here). The House’s brief sheds some, though not much, light on its argument that the doctrine of sovereign immunity bars the subpoenas in question. The House relies primarily on a Second Circuit case, In re SEC ex
- [The Declaration of Impotence](https://www.pointoforder.com/2014/06/30/the-declaration-of-impotence/) - On June 25, 2014, the Speaker sent a memorandum to all Members of the House entitled “[T]hat the Laws Be Faithfully Executed. . .” This extraordinary document begins as follows: “For years Americans have watched with concern as President Barack Obama has declined to faithfully execute the laws of our country—ignoring some statutes completely, selectively
- [Noel Canning: Unanimous Judgment, Divided Reasoning](https://www.pointoforder.com/2014/06/26/noel-canning-unanimous-judgment-divided-reasoning/) - For a 9-0 decision invalidating the President’s exercise of the recess appointment power, the Supreme Court’s opinion today in Noel Canning revealed a bitter divide among the justices. Justice Breyer, writing for the majority, basically went “full Daugherty,” finding that the Recess Appointment Clause applies to both “inter-session” and “intra-session” breaks, but finding that those
- [The Standing Committee Stands Pat](https://www.pointoforder.com/2014/06/24/the-standing-committee-stands-pat/) - The Standing Committee of Correspondents has again rejected SCOTUSblog's application for credentials on behalf of Lyle Denniston. To anyone who attended or read the live blog of the Committee's May 23 hearing (see picture below), it is no surprise to learn that the rejection letter focuses on the issue of "editorial independence." In brief, the
- [The House's Sovereign Immunity Objection to the SEC Subpoenas](https://www.pointoforder.com/2014/06/23/the-houses-sovereign-immunity-objection-to-the-sec-subpoenas/) - As discussed in my last post, the SEC is suing the House Committee on Ways & Means and Brian Sutter, a committee staffer, to enforce two administrative subpoenas, one to the committee seeking documents and one to Sutter seeking both documents and testimony. A May 19 letter from the House General Counsel lays out 11
- [SEC v. Ways and Means](https://www.pointoforder.com/2014/06/20/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
- [The Office of Compliance and a Mysterious Rule VIII Notice](https://www.pointoforder.com/2014/06/10/the-office-of-compliance-and-a-mysterious-rule-viii-notice/) - In case you forgot, Rule VIII is the House rule that governs when a judicial or administrative subpoena is served on a member, officer or employee for documents or testimony relating to the official functions of the House. The rule requires that notice be given to the House, through the Speaker, whenever such a subpoena
- [If the Washington Administration Had an Office of Legal Counsel . . .](https://www.pointoforder.com/2014/06/02/if-the-washington-administration-had-an-office-of-legal-counsel/) - To: Edmund Randolph, Attorney General of the United States From: Paul Colborn (J.D. expected May 1793), Office of Legal Counsel Date: April 1, 1792 Re: Assertion of executive privilege in response to congressional requests for information In preparation for tomorrow’s cabinet meeting, you have requested the opinion of this office on a matter of some delicacy. On
- [What the Bleep is an "Official Office"?](https://www.pointoforder.com/2013/09/26/what-the-bleep-is-an-official-office/) - Much outrage ensued last month when the Office of Personnel Management issued a proposed regulation that allows the federal government to defray the cost of congressional health care purchased on the Exchanges pursuant to the Affordable Care Act. Less notice was taken of OPM’s more dubious decision, or rather non-decision, on the question of who
- [OPM's Final Rule Pretty Much as Expected](https://www.pointoforder.com/2013/09/30/opms-final-rule-pretty-much-as-expected/) - OPM’s final rule on congressional health care says the following regarding the determination of who is “congressional staff” required to go on the Exchanges: OPM received several comments related to health care coverage for congressional staff and how staff will be designated for the purpose of determining which individuals are required to purchase their health
- [CAO Fact Sheet on Congressional Health Insurance](https://www.pointoforder.com/2013/10/03/cao-fact-sheet-on-congressional-health-insurance/) - The House Chief Administrative Officer has issued this fact sheet regarding federal health insurance available to Members of Congress and those lucky staffers found to be employed in a Member’s “official office.” Following OPM’s guidance, the CAO states: Members of Congress and congressional administrative staff are best equipped to make the determination as to whether
- [Senate "Official Office" Designations Still a Black Box](https://www.pointoforder.com/2013/10/16/senate-official-office-designations-still-a-black-box/) - Yesterday Roll Call reported on a memorandum issued by the Senate Disbursing Office to guide Senate employees on the considerable intricacies of their health insurance situation. However, with regard to the foundational question of whether any particular employee may continue to receive health insurance through the FEHB or, conversely, must get insurance through the DC
- [Senator Vitter, Congressional Health Care, and the Rule of Law](https://www.pointoforder.com/2013/11/18/senator-vitter-congressional-health-care-and-the-rule-of-law/) - This weekend the Washington Post published an article entitled “A senator’s lonely quest to embarrass Congress,” which describes Senator Vitter’s continuing efforts with regard to the health insurance plans available to Members of Congress and congressional staff. You wouldn’t think that embarrassing Congress would be all that lonely of a quest; perhaps that’s why the
- [Follow Up on the SCOTUSblog Matter](https://www.pointoforder.com/2014/05/23/follow-up-on-the-scotusblog-matter/) - Note: There will be a meeting of the Standing Committee today at 10:30 am to hear from SCOTUSblog regarding the renewal of Lyle Denniston’s credentials. From what I understand, it is open to the public. The Reporters Committee for Freedom of the Press and 14 media outlets, including CNN, NPR and Politico, have written this
- [Should SCOTUSblog Get a Credential? (Or Everything You Always Wanted to Know About the Congressional Press Galleries But Were Afraid to Ask)](https://www.pointoforder.com/2014/05/22/should-scotusblog-get-a-credential-or-everything-you-always-wanted-to-know-about-the-congressional-press-galleries-but-were-afraid-to-ask/) - SCOTUSblog has filed this letter with the Standing Committee of Correspondents regarding the Standing Committee’s decision not to renew Lyle Denniston’s membership in the congressional Press Galleries. Although the Standing Committee only determines whether an applicant may be admitted to the House and Senate Press Galleries, such admission is apparently required before Denniston can obtain
- [Resources on State Recount and Contested Election Laws](https://www.pointoforder.com/2014/05/09/resources-on-state-recount-and-contested-election-laws/) - [Correction: Professor Tokaji informs me that the page I linked to is no longer accessible from Moritz's main page and has not been kept updated since 2004 or so. My mistake. If anyone knows of more recent compilations, let me know and I will add them to this post]. What’s that you say? Where can
- [Is the U.S. Attorney Required to Present the Lois Lerner Contempt to the Grand Jury?](https://www.pointoforder.com/2014/05/08/is-the-u-s-attorney-required-to-present-the-lois-lerner-contempt-to-the-grand-jury/) - The House has now voted to hold Lois Lerner in contempt for her refusal to testify before the House Committee on Oversight and Government Reform. According to the process established by 2 U.S.C. § 194, the Speaker must now certify the statement of facts reflecting the contempt to the U.S. Attorney for the District of
- [See You in Court](https://www.pointoforder.com/2007/07/31/see-you-in-court/) - As discussed it my last post, disputes between the executive and legislative branches over the latter’s demands for information are nothing new.They have in fact occurred continuously throughout our history, beginning with the Washington administration and occurring in virtually every other administration since. Traditionally, however, these disputes have been resolved by political accommodation and compromise,
- [House Rules on Decorum and Debate: Are there Words You Can Never Say on the Floor?](https://www.pointoforder.com/2014/04/30/house-rules-on-decorum-and-debate-are-there-words-you-can-never-say-on-the-floor/) - Apropos nothing in particular, here is a recent National Journal article discussing whether the House categorically forbids the use of certain vulgar or profane words in the course of debate. House Rule XVII(1)(b) simply states that “[r]emarks in debate (which may include references to the Senate or its Members) shall be confined to the question
- [The D.C. Circuit on the Nuclear Option](https://www.pointoforder.com/2014/04/23/the-d-c-circuit-on-the-nuclear-option/) - One additional tidbit from the D.C. Circuit’s decision in Common Cause v. Biden is worth noting. In footnote 5, the court discusses the Senate’s exercise of the “nuclear option” last fall: That opportunity to appeal [from the ruling of the presiding officer] constituted the so-called “nuclear option” the Senate invoked to modify the cloture rule
- [Common Cause's Impossible Dream: Act II](https://www.pointoforder.com/2014/04/22/common-causes-impossible-dream-act-ii/) - Not surprisingly, the D.C. Circuit has affirmed the district court’s dismissal of Common Cause’s challenge to the constitutionality of the filibuster. Like the court below, the appellate panel found the plaintiffs lacked standing to sue, but its rationale was somewhat different. The district court’s decision was rooted in the absence of a cognizable injury and
- [Congressional Regulation of the Press Galleries](https://www.pointoforder.com/2011/10/27/congressional-regulation-of-the-press-galleries/) - As described in this Hill article by Alexander Bolton, Vice President Biden’s office has filed a complaint with the Senate Press Gallery regarding the tactics used by a credentialed reporter who used the pretense of posing for a photograph with the Vice President to get close enough to ask him a question. In case you
- [Is SSCI Following the Senate Rules?](https://www.pointoforder.com/2014/04/04/is-ssci-following-the-senate-rules/) - According to a press release from Chairman Feinstein yesterday, the Senate Select Committee on Intelligence has “voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority’s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees.” But, wait, SSCI can’t “declassify” anything. Classification
- [Addition and Subtraction in Article V Counting](https://www.pointoforder.com/2014/04/02/addition-and-subtraction-in-article-v-counting/) - Yesterday Representative Duncan Hunter (R-Ca.) sent a letter to the Speaker asking for the House to determine how many states have applied for an Article V convention to propose a balanced budget amendment. Hunter’s letter was prompted by Michigan’s passage last week of a resolution applying for such a convention. With the addition of Michigan,
- [How to Count to 34: Paulsen on the Article V Convention](https://www.pointoforder.com/2011/09/22/how-to-count-to-34-paulsen-on-the-article-v-convention/) - In the debate over the “runaway convention,” Professor Michael Stokes Paulsen occupies an unusual, and perhaps unique, position. In a seminal 1993 article, Paulsen argued that an Article V convention could not be limited, but that this wasn’t something that people should be worried about. He observed: “The power of the convention delegates to limit
- [House Counsel on the Lerner Contempt](https://www.pointoforder.com/2014/03/26/house-counsel-on-the-lerner-contempt/) - The House Counsel has issued this memorandum addressing the argument that Lois Lerner cannot be held in contempt because the Committee on Government Oversight and Reform failed to follow the proper procedures in overruling her objections. The memo provides additional factual detail regarding the committee’s actions and communications with Lerner and her counsel. House Counsel
- [Senator Johnson's Obamacare Standing](https://www.pointoforder.com/2014/03/26/senator-johnsons-obamacare-standing/) - Update: oops, I have been reminded that the Tenth Circuit in Schaffer v. Clinton, 240 F.3d 878, 885-86 (10th Cir. 2001), rejected the D.C. Circuit’s Boehner v. Anderson conclusion and held that a member of Congress lacked standing to complain of a pay increase that allegedly violated the Twenty-Seventh Amendment. Schaffer isn’t cited in
- [Can Lois Lerner Skate on a Technicality?](https://www.pointoforder.com/2014/03/20/can-lois-lerner-skate-on-a-technicality/) - Updated: Mort Rosenberg's response follows On a snowy day, what could be better than snuggling up with some 1950s Supreme Court cases and getting deep into the technicalities of congressional contempt procedure? If your answer is “just about anything,” you would not have enjoyed John Filamor’s going-away party. As it happens, I had a reason
- [Chris Donesa on the SSCI/CIA Dispute](https://www.pointoforder.com/2014/03/13/chris-donesa-on-the-sscicia-dispute/) - Chris Donesa, former chief counsel to the House Permanent Select Committee on Intelligence, provides this thoughtful and balanced analysis at Lawfare of Senator Feinstein’s charges against the CIA, raising three questions about the dispute. Of particular interest is Donesa’s third question, which relates to why SSCI itself apparently violated its agreement with the CIA by
- [But Other Than That, the CIA Has Been Very Cooperative With SSCI's Investigation](https://www.pointoforder.com/2014/03/11/but-other-than-that-the-cia-has-been-very-cooperative-with-sscis-investigation/) - Senator Feinstein’s bill of particulars against the CIA, set forth in her speech this morning: Between 2002 and 2006, the CIA failed to brief the Members of the Senate Select Committee on Intelligence, other than the Chairman and Vice Chairman, regarding its detention and interrogation program. In 2007 the CIA destroyed videotapes, over the objections
- [Andrew Johnson, the New York Times and the Public Debt Clause](https://www.pointoforder.com/2014/02/14/andrew-johnson-the-new-york-times-and-the-public-debt-clause/) - After a mere two and a half years, the Treasury Department has produced documents responsive to my FOIA request. As you may recall (ok, you probably don’t recall), I asked Treasury to produce “[a]ll documents that contain, discuss, refer or relate to any legal opinion or analysis by the Treasury Department General Counsel, or any
- [The Debt Limit and the Paradox of the Post-Nuclear Senate](https://www.pointoforder.com/2014/02/12/the-debt-limit-and-the-paradox-of-the-post-nuclear-senate/) - The Senate is set to vote on cloture for the debt ceiling bill that passed the House on Monday. If the cloture vote should fail (i.e., if there are not 60 votes to end debate and advance the measure to final passage), we will have an interesting illustration of the paradox of the post-nuclear Senate.
- [What Senate Legal Counsel's Silence Says About Noel Canning: Not Much](https://www.pointoforder.com/2014/01/20/what-senate-legal-counsels-silence-says-about-noel-canning-not-much/) - Writing in Slate last week, Professor Neal Devins, a noted expert on the Constitution and Congress, had several complaints about how Congress presents its legal positions in court. Devins is unhappy that the House, because it operates on a majoritarian basis, may present legal views that are held only by the majority, but he is
- [Seth Barrett Tillman on the Relationship Between the Origination Clause and Recess Appointment Clause Cases](https://www.pointoforder.com/2014/01/15/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
- [Everything You Wanted to Know about the Noel Canning Argument in Two Cartoons](https://www.pointoforder.com/2014/01/13/everything-you-wanted-to-know-about-the-noel-canning-argument-in-two-cartoons/) - Well, sketches, I guess we call them. But compare the looks on Justice Alito's face during the Solicitor General's argument and Noel Francisco's.
- [Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation](https://www.pointoforder.com/2014/01/13/further-reflections-on-the-deliberative-process-privilege-in-the-fast-and-furious-investigation/) - Following up on my last post, the House Committee on Oversight and Government Reform advances several grounds for rejecting the Justice Department’s assertion of deliberative process privilege. The broadest argument is that deliberative process is a common law, not a constitutional, privilege and therefore must give way to Congress’s constitutional power of oversight. As COGR
- [The Attorney-Client Privilege in Congressional Proceedings](https://www.pointoforder.com/2010/04/29/the-attorney-client-privilege-in-congressional-proceedings/) - Congressional practitioners will be interested in this article in the Journal of Law and Politics on the attorney-client privilege and work product doctrine in congressional proceedings. (Bradley Bondi, “No Secrets Allowed: Congress’s Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings”). As the title implies, Bondi is
- [The Fast and Furious Litigation: High Stakes for Congressional Oversight?](https://www.pointoforder.com/2014/01/06/the-fast-and-furious-litigation-high-stakes-for-congressional-oversight/) - In its recently-filed motion for summary judgment before Judge Amy Berman Jackson, the House Committee on Oversight and Government Reform asks the court to reject the Attorney General’s claims of deliberative process privilege and to order the Justice Department to turn over documents responsive to a committee subpoena in the Fast and Furious investigation. COGR
- [Judge Jackson's "Fast" and Furious Decision](https://www.pointoforder.com/2013/10/07/judge-jacksons-fast-and-furious-decision/) - Though it might seem like a distant memory (what with everything else going on), the House’s civil contempt lawsuit against Attorney General Eric Holder still percolates in the courts. The House is investigating “Fast and Furious,” but the resulting litigation is more like “Slow and Cranky.” On September 30, Judge Amy Berman Jackson issued a
- [Judge Bates Dismisses Rangel's Lawsuit](https://www.pointoforder.com/2013/12/15/judge-bates-dismisses-rangels-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
- [The Filibuster and Obamacare: My Comments on Seth Tillman's Comments](https://www.pointoforder.com/2013/11/26/the-filibuster-and-obamacare-my-comments-on-seth-tillmans-comments/) - Seth Barrett Tillman sends in the following thoughts (also posted on The Volokh Consipiracy) on Obamacare and the Senate’s use of the “nuclear option” to limit the filibuster: The Nuclear Option and Political Responsibility for Obamacare The Senate’s use of the nuclear option pins any defects in the Affordable Care Act (“ACA”) on the Democrats.
- [The Senate's "Neutron Option"?](https://www.pointoforder.com/2013/11/21/the-senates-neutron-option/) - Roll Call reports this morning: The Senate voted, 52-48, to effectively change the rules by rejecting the opinion of the presiding officer that a supermajority is required to limit debate, or invoke cloture, on executive branch nominees and those for seats on federal courts short of the Supreme Court. At least three Democrats — Carl
- [How the House Deals with Cocaine Possession](https://www.pointoforder.com/2013/11/19/how-the-house-deals-with-cocaine-possession/) - As reported by Roll Call and various other outlets, Representative Trey Radel is to appear in D.C. Superior Court tomorrow to face charges of misdemeanor possession of cocaine. No one seems very clear on how this matter will be treated in the House so I think it is worth pointing out that House rules require
- [The Public Debt Clause and Other Things You Can't Take to the Bank](https://www.pointoforder.com/2013/10/17/the-public-debt-clause-and-other-things-you-cant-take-to-the-bank/) - Monday the Federalist Society hosted a teleforum on the debt ceiling with Senator Mike Lee, David Rivkin of Baker Hostetler, and Professor Richard Epstein. The call featured an interesting debate between Rivkin and Epstein on Section 4 of the 14th Amendment, also known as the Public Debt Clause. Unfortunately, the sound quality on Epstein’s line
- [Tillman on the Origination Clause](https://www.pointoforder.com/2013/10/10/tillman-on-the-origination-clause/) - Seth Barrett Tillman sends the following comments on the Origination Clause: The Constitution provides: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. U.S. Const. Art. 1, Sect. 7, Cl. 1. If the House sends a non-revenue bill to
- [Heritage Foundation Panel on Recess Appointments](https://www.pointoforder.com/2013/10/08/heritage-foundation-panel-on-recess-appointments/) - This Thursday, October 10, at noon, the Heritage Foundation will be hosting an event on recess appointments and the case currently pending in the Supreme Court. Senator Mike Lee will deliver opening remarks, followed by a panel discussion by Professor John Yoo and me. Here is the synopsis of the event: Recess is over, but
- [Legal Ethics in Representing Witnesses Before Congress](https://www.pointoforder.com/2013/09/10/legal-ethics-in-representing-witnesses-before-congress/) - According to this Legal Times piece, Dickstein Shapiro has a problem with the House Committee on Oversight and Government Reform. Does it also have a legal ethics problem? The Legal Times relates: Before beginning to question the five witnesses, committee chair Darrell Issa (R-Calif.) paused to criticize a Dickstein employee’s activities prior to the hearing.
- [Article V and the Single Amendment Convention](https://www.pointoforder.com/2013/09/01/article-v-and-the-single-amendment-convention/) - Can an Article V convention for proposing amendments be limited to considering a single amendment specified by the state legislatures in their applications? Even within the relatively sparse literature on the Article V convention, little attention has been paid to this question. Professor Rob Natelson, who has written extensively in support of the proposition that
- [Speech or Debate in Congressional Employment Litigation](https://www.pointoforder.com/2013/08/23/speech-or-debate-in-congressional-employment-litigation/) - In June a panel of the D.C. Circuit decided Howard v. Office of the CAO, in which a former congressional employee argued the Speech or Debate Clause did not bar her lawsuit challenging adverse employment action under the Congressional Accountability Act. If it stands, the case resolves a question left open by Fields v. Office
- [Rob Natelson on the Article V Convention](https://www.pointoforder.com/2013/08/11/rob-natelson-on-the-article-v-convention/) - In an article recently published in the Harvard Journal of Law and Public Policy, Professor Rob Natelson provides a brief but illuminating summary of how the Article V convention fits within the constitutional plan designed by the Founders. Natelson, the nation's foremost expert on state initiation of constitutional amendments, explains that the Article V convention
- [Congressional Release of Classified Information and the Disciplinary Power](https://www.pointoforder.com/2013/08/09/congressional-release-of-classified-information-and-the-disciplinary-power/) - In reference to my last post, it has been suggested by one of the more faithful commenters at Balkinization, Shag from Brookline, that the Speech or Debate Clause might bar a house of Congress from taking disciplinary action against a member who unilaterally releases classified information without authorization. Shag asks: "Can action by Congress trump the
- [Congressional Release of Classified Information and the Speech or Debate Clause](https://www.pointoforder.com/2013/08/06/congressional-release-of-classified-information-and-the-speech-or-debate-clause/) - At Foreign Policy, Professor Bruce Ackerman asks "should members of Congress use their special constitutional powers of free speech to force the facts about the [NSA surveillance program] out into the open?" Ackerman notes that under the Speech or Debate Clause, members of Congress "cannot be prosecuted for reading classified material into the public record--
- [When Harry Met Liz (Or How I Learned to Relax and Love the Nuclear Option)](https://www.pointoforder.com/2013/07/12/when-harry-met-liz-or-how-i-learned-to-relax-and-love-the-nuclear-option/) - From The Hill: “Next week Harry Reid is expected to start calling for votes on a range of executive branch nominees. I expect if he can’t get cloture, he will ask the Senate parliamentarian for a change in the rules so he can get the executive branch nominees confirmed,” said Nan Aron, president of Alliance
- [The Notebook- House Ethics Committee Edition](https://www.pointoforder.com/2012/09/26/the-notebook-house-ethics-committee-edition/) - Fans of the Maxine Waters ethics case (you know who you are) may recall that one of the controversies between Blake Chisam, the former Staff Director and Chief Counsel of the Ethics Committee, and the two senior counsel leading the Waters investigation (Morgan Kim and Stacy Sovereign), involved the binders that were handed out to
- [House Counsel and the Congressional "Client"](https://www.pointoforder.com/2013/06/30/house-counsel-and-the-congressional-client/) - At the June 28 meeting of the House Committee on Oversight and Government Reform, a question arose about the role of House Counsel in providing legal advice to COGR and its members. Chairman Issa had requested and received a House Counsel opinion on whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory
- [Cert Granted on Three Recess Appointments Questions](https://www.pointoforder.com/2013/06/24/cert-granted-on-three-recess-appointments-questions/) - The Supreme Court granted cert today in the Noel Canning case, as pretty much everyone expected. Cert was granted as to the two questions raised by the government, (1) whether the President can make recess appointments during so-called “intra-session recesses” and (2) whether the vacancy must arise during the recess for the President to exercise
- [The Senate's Legal Basis for Muzzling Former Staffers](https://www.pointoforder.com/2013/06/22/the-senates-legal-basis-for-muzzling-former-staffers/) - According to this story, Vicki Divoll, former counsel to the Senate Select Committee on Intelligence, has been barred by SSCI from discussing in the media (specifically Talking Points Memo) certain non-classified information relating to the committee's oversight of intelligence programs. Divoll gave an interview to TPM regarding the congressional role in intelligence oversight and submitted
- [Will the New Jersey Special Senate Election Survive Judicial Review?](https://www.pointoforder.com/2013/06/15/will-the-new-jersey-special-senate-election-survive-judicial-review/) - Update: the answer to this question is apparently yes, as the New Jersey Supreme Court has declined to hear the challenge. A three-judge panel of the New Jersey Superior Court Appellate Division has issued this opinion rejecting a legal challenge to Governor Christie's writ of election setting an October 16, 2013 date for the special election
- ["We are pleased that the jury acquitted Mr. Renzi on 15 counts"](https://www.pointoforder.com/2013/06/12/we-are-pleased-that-the-jury-acquitted-mr-renzi-on-15-counts/) - Former Congressman Rick Renzi's attorney, who is responsible for the quote above, is obviously a glass-half-full type of person. As it happens, Renzi was also convicted on the other 17 of the 32 counts against him (so the glass was not quite half full). You can read the verdict form here. The linked Washington Post
- [An Unwarranted Attack on the House and the Ethics Committee](https://www.pointoforder.com/2013/06/10/an-unwarranted-attack-on-the-house-and-the-ethics-committee/) - In an oddly speaking complaint, Representative Charlie Rangel, represented by New York attorney Jay Goldberg, has filed suit in federal court against the Speaker, the Clerk and several former members and staff of the House Ethics Committee, including Zoe Lofgren, the former Democratic chair, and Jo Bonner, the former Republican ranking member. Cutting through the
- [Dueling Speech or Debate Privileges in the Renzi Case](https://www.pointoforder.com/2013/06/06/dueling-speech-or-debate-privileges-in-the-renzi-case/) - National Journal had an article last week regarding the Speech or Debate waiver issue in the Renzi case (hat tip: Rick Hasen), which we discussed awhile back. Another interesting Speech or Debate issue is raised in this motion by the House General Counsel on behalf of Kevin Messner, a non-party witness. Messner served at different
- [New Jersey's Vacant Expression](https://www.pointoforder.com/2013/06/05/new-jerseys-vacant-expression/) - Note to self- do not make casual observations about state statutes you know nothing about. Because it turns out that the New Jersey election law I cited in my last post is only one of two (or, who knows, maybe more) provisions that the New Jersey legislature, in its wisdom, has seen fit to enact
- [Frank Lautenberg, RIP](https://www.pointoforder.com/2013/06/03/frank-lautenberg-rip/) - Senator Frank Lautenberg of New Jersey, the last World War II veteran serving in the Senate, passed away today at the age of 89. New Jersey law provides: 19:3-26. Vacancies in United States senate; election to fill; temporary appointment by governor. 19:3-26. If a vacancy shall happen in the representation of this State in the
- [The Third Circuit and the "Session" of the 18th Century Vermont General Assembly](https://www.pointoforder.com/2013/05/29/the-third-circuit-and-the-session-of-the-18th-century-vermont-general-assembly/) - As mentioned in my prior post, in the course of analyzing the meaning of "recess" in the Recess Appointments Clause, the Third Circuit considered legislative practice at the time of the framing. In looking at the state legislatures prior to 1787, the court found what it viewed as conflicting evidence on whether recesses are limited
- [The Third Circuit's Recess Appointments Decision](https://www.pointoforder.com/2013/05/29/the-third-circuits-recess-appointments-decision/) - Another appellate court has weighed in on the legality of President Obama's recess appointments to the National Labor Relations Board. In NLRB v. New Vista Nursing & Rehabilitation, the Third Circuit held that "the Recess" in the Recess Appointments Clause refers only to the period between Senate sessions. Because the NLRB appointments were made during
- [Lois Lerner and Waiver of Fifth Amendment Privilege](https://www.pointoforder.com/2013/05/23/lois-lerner-and-waiver-of-fifth-amendment-privilege/) - Everybody is talking about whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory opening statement at yesterday's hearing of the House Committee on Oversight and Government Reform (eg, these posts at Hot Air and the Volokh Conspiracy). As Juliet Eilperin notes, "[l]ike a lot of legal questions, it depends on whom you
- [Why it Doesn't Matter Whether Celia Roady is a "Lobbyist"](https://www.pointoforder.com/2013/05/20/why-it-doesnt-matter-whether-celia-roady-is-a-lobbyist/) - Celia Roady, the Morgan Lewis tax partner who posed the now-infamous planted question regarding IRS targeting of conservative groups at an ABA conference, "focuses her practice on tax and governance issues affecting tax-exempt organizations, including charities, foundations, colleges and universities, museums, and other nonprofit organizations," according to the Morgan Lewis website. Roady has also been
- [Taking the Fifth Before Congress](https://www.pointoforder.com/2013/05/22/taking-the-fifth-before-congress/) - In a letter to the House Committee on Oversight and Government Reform yesterday, Lois Lerner's attorney (veteran DC lawyer William Taylor) informed the committee of her intention to invoke her Fifth Amendment rights at today's committee hearing. Taylor said that she should not be required to appear at the hearing because to do so would
- [Renzi trial (chock full of Speech or Debate goodness) begins](https://www.pointoforder.com/2013/05/08/renzi-trial-chock-full-of-speech-or-debate-goodness-begins/) - The corruption trial of former congressman Rick Renzi began this week in federal court in Arizona. A number of Speech or Debate issues can be expected to arise during the trial. The Bipartisan Legal Advisory Group (affectionately known as BLAG) has already filed this amicus brief addressing the question of whether Renzi would waive the
- [Attorney General Opinions on Recess Appointments](https://www.pointoforder.com/2012/10/16/attorney-general-opinions-on-recess-appointments/) - I know what you’re thinking. Where can I find a comprehensive guide to U.S. Attorney General opinions on recess appointments? Complete with handy summaries and links to explanatory posts? Look no further. Like Tom Lehrer’s musical rendition of the elements, the listing below may prove useful to some of you someday, under a somewhat bizarre
- [The Government's Trick Question in Noel Canning](https://www.pointoforder.com/2013/04/25/the-governments-trick-question-in-noel-canning/) - The first question presented by the administration’s cert petition in the Noel Canning case turns out to be a trick question: “Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.” Why
- [Could Arizona Replace Representative Giffords?](https://www.pointoforder.com/2011/01/19/could-arizona-replace-representative-giffords/) - The answer is yes. Or no, depending on which edition of the Washington Post you read. On Monday, the Post ran an online story entitled “Arizona statute could endanger Giffords’ hold on seat” (which appears to be no longer available on the Post website) explaining that an Arizona statute requires that an office be deemed
- [Miranda, Congress and the Boston Marathon Bombing Suspect](https://www.pointoforder.com/2013/04/20/miranda-congress-and-the-boston-marathon-bombing-suspect/) - A few years ago the Obama Administration considered asking Congress for legislation to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate suspected terrorists without providing the so-called “Miranda warnings.” I argued that existing Supreme Court precedent did not preclude
- [Entrenchment Reconsidered (Part I)](https://www.pointoforder.com/2013/01/07/entrenchment-reconsidered-part-i/) - The anti-entrenchment critique of Senate rules rests on two pillars. The first, which I will consider here, is an analogy to a line of cases holding that a later statute trumps an earlier one, even if the earlier statute purported to be entrenched against repeal. Thus, for example, a statute which establishes a particular location
- [Congress, Miranda and the "Public Safety" Exception](https://www.pointoforder.com/2010/05/17/congress-miranda-and-the-public-safety-exception/) - Last week Attorney General Holder suggested that the administration may seek legislative changes to facilitate the questioning of terrorism suspects within the criminal justice system. One potential change would be to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate
- [Noel Canning: Does It All Depend On What The Meaning Of "The" Is?](https://www.pointoforder.com/2013/03/21/noel-canning-does-it-all-depend-on-what-the-meaning-of-the-is/) - In Noel Canning v. NLRB (Jan. 25, 2013), the D.C. Circuit held that President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board were constitutionally invalid because the Senate was in an intrasession adjournment at the time. The court held that only a period of intersession adjournment constitutes “the Recess” of the
- [Recess Appointment News](https://www.pointoforder.com/2013/03/13/recess-appointment-news/) - The Justice Department will not seek en banc rehearing of the D.C. Circuit’s decision in Noel Canning, but will seek certiorari instead (the deadline for filing is April 25). Assuming the Court grants the petition (which, pretty much everyone seems to agree, seems likely), arguments will be heard in the fall. It is worth noting
- [Six Answers for Six Puzzles](https://www.pointoforder.com/2013/03/07/six-answers-for-six-puzzles/) - Over at The Originalism Blog, Professor Michael Ramsey has given his answers to Professor Seth Barrett Tillman’s “Six Puzzles” on the Constitution’s various uses of the terms “officers” and “offices.” FWIW, I tend to agree with all of Ramsey’s answers with one possible exception. That relates to the first puzzle, which involves the Succession Clause’s
- [House Democrats Support BLAG's Standing in DOMA Case](https://www.pointoforder.com/2013/02/23/house-democrats-support-blags-standing-in-doma-case/) - Probably the most important part of the Bipartisan Legal Advisory Group’s jurisdictional brief in U.S. v. Windsor (the Supreme Court case on the constitutionality of the Defense of Marriage Act) is the first footnote (page ii), which states: The Bipartisan Legal Advisory Group articulates the institutional position of the House in all litigation matters in
- [Tillman's Puzzles for Amar (or Who You Callin "Atextual"?)](https://www.pointoforder.com/2013/02/22/tillmans-puzzles-for-amar-or-who-you-callin-atextual/) - In this article, Professor Seth Barrett Tillman has six puzzles for Professor Akhil Amar: Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers? Puzzle 2. Does Impeachment Extend to Former “Officers”? Puzzle 3. Who are the “Officers of the United States”? Puzzle 4. Is the President an “Officer of the United
- [Noel Canning Timing](https://www.pointoforder.com/2013/02/21/noel-canning-timing/) - I hear through the grapevine that the Justice Department has decided not to seek en banc review of the Noel Canning decision, but instead will petition for cert on a non-expedited basis, meaning that the case would likely be heard by the Supreme Court next term.
- [Did the Senate Flub its Cinderella Moment?](https://www.pointoforder.com/2013/02/01/did-the-senate-flub-its-cinderella-moment/) - On January 24, 2013, the Senate adopted certain rules changes that, according to published reports, will modestly restrict the use of the filibuster, but will not fundamentally alter the minority’s ability to block cloture on matters covered by Rule XXII. It accomplished these changes by adopting S. Res. 15, which provided a new standing order,
- [Recess Appointments Issue Could Reach SCOTUS Sooner than Expected](https://www.pointoforder.com/2013/02/04/recess-appointments-issue-could-reach-scotus-sooner-than-expected/) - As explained by the Blog of the Legal Times, an emergency petition has been filed with Justice Ruth Bader Ginsburg raising the validity of the recess appointments to the NLRB. The petition was filed by Paul Clement on behalf of a company that is resisting an NLRB effort to require it to rehire striking nursing
- [Judicial Materials on Recess Appointments](https://www.pointoforder.com/2012/11/13/judicial-materials-on-recess-appointments/) - Below are links to judicial decisions on recess appointments and to ongoing litigation. Judicial Decisions In re District Attorney of the United States, 7 F. Cas. 733 (E.D. Pa. 1868) (rejecting argument that vacancies can be filled under the RAC if they arise while the Senate is in session). Gould v. United States, 19 Ct.
- [Professor Chafetz and the "Constitutionally Conscientious Senator"](https://www.pointoforder.com/2013/01/29/professor-chafetz-and-the-constitutionally-conscientious-senator/) - Before considering the Senate’s action last week in amending its rules, I want to summarize one additional anti-entrenchment school of thought. We have already discussed the theory of the December 12 letter, which holds that a simple majority must be able to obtain a rules change at the beginning of a new Congress. An alternative
- [How Might the Administration Respond to the Noel Canning Decision?](https://www.pointoforder.com/2013/01/26/how-will-the-administration-respond-to-the-noel-canning-decision/) - Professor Seth Barrett Tillman takes issue with point 5 (see update below) Here are the options I can think of for the administration and/or Senate Democrats to respond to the D.C. Circuit’s invalidation of President Obama’s January 2012 recess appointments to the National Labor Relations Board. Three of the options involve seeking to reverse the
- [D.C. Circuit to Wirt and Daugherty: Drop Dead](https://www.pointoforder.com/2013/01/25/d-c-circuit-to-wirt-and-daugherty-drop-dead/) - Your humble blogger is pretty much speechless after the D.C. Circuit’s sweeping decision today in the Noel Canning recess appointments case. In light of the oral argument, it is not all that surprising that the panel held that the Recess Appointments Clause only permits inter-session recess appointments. But I am pretty stunned (although admittedly this
- [Entrenchment Reconsidered (Part II)](https://www.pointoforder.com/2013/01/20/entrenchment-reconsidered-part-ii/) - This brings us to the second pillar of the anti-entrenchment position, which might be called the “quasi-constitutive” argument. Professors McGinnis and Rappaport, who pioneered this argument, explain: If a legislature could pass a measure that would prevent a successor from taking action, then that measure would function as a constitutional restraint on the future legislature.
- [DADT and the Duty to Defend](https://www.pointoforder.com/2010/09/24/dadt-and-the-duty-to-defend/) - Professor Jason Mazzone has a political suggestion for the Obama administration over at Balkinization: wait until after the November elections to decide whether to appeal a federal court ruling that the “Don’t Ask Don’t Tell” policy is unconstitutional. Noting that the President has opposed DADT and promised to repeal it, Mazzone argues that “[i]f Republicans
- [Entrenchment and the Academic "Consensus"](https://www.pointoforder.com/2013/01/07/entrenchment-and-the-academic-consensus/) - The December 12 letter claims “the overwhelming consensus of the academic community [is] that no pre-existing internal procedural rule can limit the authority of each new Senate to determine by majority vote its own rules of procedure.” Although this statement is closer to being true than the letter’s assertions about Senate continuity and precedent, it
- [Senate Rules from the Internal Point of View](https://www.pointoforder.com/2013/01/02/senate-rules-from-the-internal-point-of-view/) - As I mentioned in my last post, Professor Chemerinsky’s description of the 1975 Senate vote in sustain Majority Leader Mike Mansfield’s point of order changed slightly from his 1997 article to his 2005 article. In the former he said that the vote “establish[ed] that a majority of the Senate would abide by the supermajority requirements
- [The Origination Clause and the Fiscal Cliff (updated)](https://www.pointoforder.com/2012/12/23/the-origination-clause-and-the-fiscal-cliff/) - Since the discussion of the issue has been rather muted, it may be worth flagging the potential impact of the Origination Clause, art. I, sect. 7, cl. 1, on how the so-called “fiscal cliff” is resolved. The Origination Clause provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the
- [Professor Chemerinsky and Senate Precedent on Changing the Rules](https://www.pointoforder.com/2012/12/30/professor-chemerinsky-and-senate-precedent-on-changing-the-rules/) - Now let us turn to the other law review article cited by the December 12 letter, Catherine Fisk & Erwin Chemerinsky’s “The Filibuster,” 49 Stan. L. Rev. 181 (1997). Since only Professor Chemerinsky signed the December 12 letter, I will refer just to him, no slight to Professor Fisk intended. The 1997 article is cited
- [Professor Bruhl and Senate Continuity](https://www.pointoforder.com/2012/12/28/professor-bruhl-and-senate-continuity/) - Following up on my prior post concerning the December 12 legal scholar letter to the Senate, let us take a closer look at Professor Bruhl’s 2010 article (“Burying the Continuing Body Theory of the Senate”), which makes a considerably more nuanced argument than might be suggested by the title. While the December 12 letter suggests
- [Legal Scholar Letter to the Senate on Procedures for Changing the Rules](https://www.pointoforder.com/2012/12/27/legal-scholar-letter-to-the-senate-on-procedures-for-changing-the-rules/) - A group of prominent constitutional scholars has sent this letter to the Senate. The letter makes some strong claims about the Senate’s procedures for amending its rules. The introduction gives the flavor: The current debate over whether to alter the 113th Senate’s rules raises serious questions of policy and political judgment. We take no position
- [Does James Monroe's Presence at the Virginia Ratifying Convention Shed Light on the Meaning of the Recess Appointments Clause?](https://www.pointoforder.com/2012/12/05/does-james-monroes-presence-at-the-virginia-ratifying-convention-shed-light-on-the-meaning-of-the-recess-appointments-clause/) - More from the Noel Canning argument: No doubt much to her surprise, Beth Brinkmann was questioned intensively about the meaning of the phrase “which may happen” in the Recess Appointments Clause. Both Judge Sentelle and (to a lesser extent) Judge Griffith were unimpressed by the longstanding executive branch position, dating back to Attorney General Wirt
- [(Almost) Live From the Noel Canning Argument!](https://www.pointoforder.com/2012/12/05/almost-live-from-the-noel-canning-argument/) - There were many important issues raised in today’s D.C. Circuit argument in Noel Canning v. NLRB, the recess appointments case, but lets start with some unimportant ones. How do you pronounce Harry Daugherty’s name? The Justice Department lawyer representing NLRB, Beth Brinkmann, pronounced it “Dockerty,” and the panel went along with that. I have always
- [Another Peculiar Resignation from Illinois](https://www.pointoforder.com/2012/11/23/another-peculiar-resignation-from-illinois/) - As you may have heard, Representative Jesse Jackson, Jr. submitted a letter of resignation to the Speaker the day before Thanksgiving. The Hill explains: “Jackson has been absent from Congress since June, while receiving inpatient treatment for bipolar disorder. He returned to Washington in September but then checked back into the Mayo Clinic in Minnesota.
- [House Rules on Employment Negotiations and Recusal: the Case of Representative Cardoza](https://www.pointoforder.com/2012/08/16/house-rules-on-employment-negotiations-and-recusal-the-case-of-representative-cardoza/) - Representative Cardoza of California announced earlier this week that he would be resigning from Congress and joining the law firm of Manatt Phelps. Manatt apparently jumped the gun a bit and listed Cardoza yesterday on its website as a managing director in its public policy practice, even though Cardoza had not actually resigned yet, according to
- [More on the British FOIA and the House of Commons](https://www.pointoforder.com/2009/06/10/more-on-the-british-foia-and-the-house-of-commons/) - Those who follow matters of legislative privilege and transparency may find the U.K. FOIA case against the House of Commons to be of some interest. One wonders how the observations of the British courts as to the lack of legislative transparency might be applied to the operations of the U.S. Congress. As mentioned in a
- [May the President Accept a Foreign Title of Nobility?](https://www.pointoforder.com/2012/11/08/may-the-president-accept-a-foreign-title-of-nobility/) - Over at The Originalism Blog, Professor Seth Barrett Tillman cites a new piece of evidence for his position that the President does not hold an office “under” the United States within the meaning of the Constitution. (For prior discussions of Professor Tillman’s views on this see here, here and here), Specifically, he points to the
- [Could New York Legally Add Another Day of Voting after Tomorrow?  ](https://www.pointoforder.com/2012/11/05/could-new-york-legally-add-another-day-of-voting-after-tomorrow/) - There has been much discussion over the past week or so regarding the question of whether a presidential election can be postponed, either generally or in particular states, in the event of a natural disaster such as Hurricane Sandy. Professor Steve Huefner (a veteran of the Senate Legal Counsel’s office) has an excellent summary of
- [Could Biden Vote Under the 12th Amendment?](https://www.pointoforder.com/2012/10/26/could-biden-vote-under-the-12th-amendment/) - In a previous post, we briefly discussed the question of whether the Vice-President could vote in the Senate in the event of an electoral college tie followed by a tie vote in the Senate to elect his successor under the 12th Amendment. Over at Balkinization, Professor Gerard Magliocca asks the same question. My view, which
- [Legislative Privilege in Britain](https://www.pointoforder.com/2008/04/08/legislative-privilege-in-britain/) - Legislative privilege is a concept that long pre-dates the Constitution, and was inherited from the British Parliament by the colonial legislatures, then by the state legislatures and finally by the Congress. As Jefferson wrote in opening the discussion of privilege in his Manual of Parliamentary Practice (a work he prepared for his own guidance as
- [Recess Appointments Panel this Thursday](https://www.pointoforder.com/2012/10/22/recess-appointments-panel-this-thursday/) - This Thursday, October 25, from 9am to 10:30am, I will be moderating a panel discussion at the ABA Administrative Law Conference entitled “Recess Appointments: Legal Challenges to President Obama’s appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.” The panelists will be Ambassador C. Boyden Gray and Professor Michael Gerhardt, both
- [OLC Opinions on Recess Appointments](https://www.pointoforder.com/2012/10/20/olc-opinions-on-recess-appointments/) - Apropos of my last post, a friend remarks that I have too much time on my hands. Confirming this hypothesis, please find below a list of OLC opinion and memoranda, with commentary and links, regarding recess appointments. Office of Legal Counsel Opinions and Memoranda 2012 Memorandum Opinion for the Counsel to the President, Lawfulness of
- [Recusal Confusion- A Final Post on the Waters Case](https://www.pointoforder.com/2012/10/10/recusal-confusion-a-final-post-on-the-waters-case/) - Now I will turn to the other major issue in the Waters case, which relates to Outside Counsel findings that (1) Representative Waters properly recused herself and her office from the OneUnited matter following the September 9, 2008 meeting, and (2) Mikael Moore, her chief of staff (and grandson), violated her instructions and improperly remained
- [Are You Ready for the Romney-Biden Administration?](https://www.pointoforder.com/2012/10/11/are-you-ready-for-the-romney-biden-administration/) - The Real Clear Politics Electoral College Map currently has the Obama/Biden ticket with 210 electoral votes and the Romney/Ryan ticket with 181. There are 12 “toss up” states with 156 electoral votes. If the toss up states are given to the slate to which they are currently leaning, Obama/Biden has 294 electoral votes and Romney/Ryan
- [The Waters Outside Counsel and the September 9, 2008 Treasury Meeting (Part 2)](https://www.pointoforder.com/2012/10/06/the-waters-outside-counsel-and-the-september-9-2008-treasury-meeting-part-2/) - Now let us turn to one of the two key issues in the Waters ethics case: whether Representative Waters violated any ethics rules when she called Treasury Secretary Paulson to arrange the September 9 meeting. Outside Counsel’s ability to analyze this question is compromised by its unwillingness to confront the reality of what happened at
- [The Waters Outside Counsel and the September 9, 2008 Treasury Meeting](https://www.pointoforder.com/2012/10/05/the-waters-outside-counsel-and-the-september-9-2008-treasury-meeting/) - To begin unpacking the report of Outside Counsel Billy Martin on the matter of Representative Maxine Waters, I will start with the meeting that took place on September 9, 2008 at the Treasury Department. This meeting is key to understanding the events that took place, and the evidence is very clear as to what transpired.
- [Bridge over Troubled Waters: Some Unsolicited Advice for the House Ethics Committee](https://www.pointoforder.com/2011/08/02/bridge-over-troubled-waters-some-unsolicited-advice-for-the-house-ethics-committee/) - According to this statement released on July 20 by the chair and ranking member of the House Ethics Committee, the Committee has retained Billy Martin as outside counsel “to review, advise, and assist the Committee in completing the matter of Representative Maxine Waters.” However, rather than asking Martin to focus on the allegations against Waters,
- [Unclear and Not All that Convincing](https://www.pointoforder.com/2012/09/21/unclear-and-not-all-that-convincing/) - The long-running ethics investigation of Representative Maxine Waters neared an end today with a public hearing before the “Waters Committee” (a special version of the Ethics Committee set up specifically for the Waters matter). Chairman Goodlatte announced that the committee had received the report and recommendations of Outside Counsel Billy Martin, who advised that there
- [GAO Seeking Info From Lobbyists](https://www.pointoforder.com/2008/06/03/gao-seeking-info-from-lobbyists/) - The Government Accountability Office has begun requesting information of various lobbyists registered under the Lobbying Disclosure Act. This action is taken pursuant to Section 213 of the Honest Leadership and Open Government Act, which requires the GAO to "audit [annually] the extent of compliance or noncompliance with the requirements of [the LDA] by lobbyists, lobbying
- [And Now For Something Completely Different](https://www.pointoforder.com/2012/09/19/and-now-for-something-completely-different/) - This is not a post about Monty Python (sorry), but a couple of thoughts on the word “amendment.” Over at The Originalism Blog, Professor Michael Ramsey discusses a debate regarding the meaning of the Origination Clause of the Constitution, which provides “All Bills for raising Revenue shall originate in the House of Representatives, but the
- [Chief Justice Roberts and the Recess Appointments Clause](https://www.pointoforder.com/2012/09/17/chief-justice-roberts-and-the-recess-appointments-clause/) - I really, truly intend to leave the subject of the Recess Appointments Clause, but, as I was compiling material for a final post to be entitled “The Recess Appointments Clause in One Place,” I came across this interesting and somewhat instructive episode from the Reagan Administration. On Friday afternoon, January 18, 1985, a young lawyer
- [Constitutional Settlement Through a Statute](https://www.pointoforder.com/2012/09/13/constitutional-settlement-through-a-statute/) - A few years ago, when there was a great deal of consternation regarding filibusters of judicial nominees, Professor Aaron-Andrew Bruhl published a typically thoughtful article entitled “If the Judicial Confirmation Process is Broken, Can a Statute Fix It?” Bruhl considered a hypothetical statute that would regulate the confirmation process by, for example, requiring the Senate
- [Further Analysis of the Waters Case](https://www.pointoforder.com/2010/08/25/further-analysis-of-the-waters-case/) - As discussed in my prior posts (see here and here), the ethics investigative subcommittee does not allege that Representative Waters violated any rules simply by arranging the initial meeting with Treasury officials to discuss the a bailout of OneUnited and other minority-owned banks. Instead, the subcommittee alleges that Waters violated the rules by her actions—or,
- [Waters and Casework Considerations](https://www.pointoforder.com/2010/08/23/waters-and-casework-considerations/) - To evaluate the charges against Representative Waters, discussed in my last post, we should begin with the meeting that she arranged in her September 2008 telephone call to then-Treasury Secretary Paulson. Although the ethics investigative subcommittee did not find that this meeting itself violated any House rules, the Statement of Alleged Violation devotes its first
- [Must Committee Websites Be Fair and Balanced?](https://www.pointoforder.com/2012/09/07/must-committee-websites-be-fair-and-balanced/) - An article this week by Fortune senior editor Stephen Gandel questions whether certain House committee websites, particularly that of the Financial Services Committee, comply with rules and regulations established by the Committee on House Administration. These provide that committee websites may not: Include personal, political, or campaign information. Be directly linked or refer to Web
- [Mort Rosenberg on Recess Appointments](https://www.pointoforder.com/2012/09/04/mort-rosenberg-on-recess-appointments/) - Mort Rosenberg, formerly of CRS and now a Fellow at the Constitution Project, has released a paper entitled: “Understanding the Centrality of the Appointments Clause as a Structural Safeguard of Our Scheme of Separated Powers: The Senate’s Exclusive and Plenary Confirmation Power Trumps Presidential Intrasession Recess Appointments.” The Executive Summary states: “The Constitution establishes a
- [Common Cause's Opposition to the Motion to Dismiss](https://www.pointoforder.com/2012/09/01/common-causes-opposition-to-the-motion-to-dismiss/) - Common Cause has filed its opposition to the Senate’s motion to dismiss its lawsuit seeking to have the filibuster declared unconstitutional. Its brief clearly demonstrates that there is no persuasive answer, and in some cases no answer at all, to the problems identified in my earlier post on this subject. A few observations should suffice.
- [Does the "Slaughter Solution" Comply with the Constitution's Lawmaking Requirements?](https://www.pointoforder.com/2010/03/16/does-the-slaughter-solution-comply-with-the-constitutions-lawmaking-requirements/) - The latest procedural furor in the healthcare reform debate has been over something dubbed the “Slaughter Solution,” so-named after the Chair of the House Rules Committee. To understand this procedure, one must recall that the Democratic leadership intends for the House to pass two separate bills. The first is the bill that previously passed the
- [Constitutional Settlement through a Senate Rule](https://www.pointoforder.com/2012/08/28/constitutional-settlement-through-a-senate-rule/) - Now I will turn to the question of how a new set of rules governing recess appointments, such as those discussed in my prior post, might be put into place. One possibility is that they could be set forth in a new Senate rule. This would seem to raise at least two constitutional questions. First,
- [Taking the Recess out of Recess Appointments](https://www.pointoforder.com/2012/08/27/taking-the-recess-out-of-recess-appointments/) - Another potential means of reaching constitutional settlement with regard to the Recess Appointments Clause would be to design a new set of rules for when and how the President exercises his power under that clause. The question that I will now turn to is whether it would be possible, as a constitutional and practical matter,
- [CRS on Pro Forma Sessions](https://www.pointoforder.com/2012/08/22/crs-on-pro-forma-sessions/) - Earlier this month Senator McConnell placed in the Congressional Record a CRS memorandum regarding pro forma sessions (hat tip, Mort Rosenberg). The memo makes three points of interest to those who are following the legal challenges to President Obama’s January 2012 recess appointments. First, CRS notes that the term “pro forma” relates to the reason
- [The Pay Act and the GAO as a Means of Constitutional Settlement](https://www.pointoforder.com/2012/08/16/the-pay-act-and-the-gao-as-a-means-of-constitutional-settlement/) - Next on the list of possible mechanisms to achieve constitutional settlement with respect to the Recess Appointments Clause is something that would fall into the category of congressional “self-help.” There are a variety of means by which Congress could express its displeasure with the administration’s use of the RAC; most of these would be political
- [Was OCE's Referral to the Justice Department Ultra Vires?](https://www.pointoforder.com/2010/05/31/was-oces-referral-to-the-justice-department-ultra-vires/) - On May 27, 2010, the Office of Congressional Ethics (OCE) announced that its Board had voted unanimously to refer to the Justice Department “certain evidence collected in the course of its investigation concerning appropriations earmarks and the now defunct PMA lobbying firm.” The announcement contends the referral to the Justice Department was authorized “pursuant to
- [Can the Chairman of the House Budget Committee Preside Over the Senate?](https://www.pointoforder.com/2012/08/14/can-the-chairman-of-the-house-budget-committee-preside-over-the-senate/) - Update: Professor Tillman responds in the comments Professor Seth Barrett Tillman emails to remind us (among others, see Election Law Blog and the Originalism Blog) of his theory that the President and Vice-President do not hold “offices under the United States” within the meaning of the Incompatibility Clause, and thus that there is no constitutional
- [Common Cause's Impossible Dream](https://www.pointoforder.com/2012/08/06/common-causes-impossible-dream/) - When Common Cause filed this lawsuit challenging the constitutionality of the filibuster, the legal establishment scoffed. Critics called it “ridiculous,” “specious,” and “frivolous.” They said the courts would toss the case on jurisdictional grounds without reaching the merits. They said a rag tag bunch of public interest lawyers, Democratic House Members and illegal aliens stood
- [Privileged Communications in Congressional Investigations](https://www.pointoforder.com/2012/08/02/privileged-communications-in-congressional-investigations/) - Michael Bopp and DeLisa Lay of Gibson Dunn have recently published an article, “The Availability of Common Law Privilege for Witnesses in Congressional Investigations” in the Harvard Journal of Law & Public Policy. It provides a helpful overview of congressional authority and practice with regard to assertions of attorney-client and other common law privileges in
- [Recess Appointment Litigation As A Means Of Constitutional Settlement](https://www.pointoforder.com/2012/08/01/recess-appointment-litigation-as-a-means-of-constitutional-settlement/) - Today I will begin appraisal of the various methods of achieving constitutional settlement on the question of recess appointments. I will start with the judicial arena. Pending Cases There are currently at least two significant cases challenging the constitutionality of President Obama’s January 4, 2012 recess appointments. A. Challenge to NLRB recess appointments. Noel Canning
- [More Evidence Against the Multi-Session Recess Appointment](https://www.pointoforder.com/2012/07/27/more-evidence-against-the-multi-session-recess-appointment/) - As discussed by the January 6, 2012 OLC memorandum, Presidents Harding and Coolidge each made one “intrasession” recess appointment. Harding’s appointment, made on August 30, 1921 (and presumably the reason for the August 27 opinion of Attorney General Daugherty), was to fill a vacancy in the Registrar of the Land Office. Coolidge made an appointment
- [The Public Debt Clause and the Coming Debt Limit Crisis](https://www.pointoforder.com/2012/06/30/the-public-debt-clause-and-the-coming-debt-limit-crisis/) - Amidst all the legal excitement this week, you may have missed BNA White House Reporter Cheryl Bolen’s article on Section 4 of the 14th Amendment (AKA, the Public Debt Clause) and the possibility of another debt ceiling crisis. The article (“Obama Could Face Sophie’s Choice as Country Approaches Debt Limit”) begins: “As the nation again
- [That Didn't Take Long](https://www.pointoforder.com/2012/06/28/that-didnt-take-long/) - Even before the Speaker had certified the contempt, this letter arrived from Deputy Attorney General James Cole informing him that “the Department has determined that the Attorney General’s response to the subpoena issued by the Committee on Oversight and Government Reform does not constitute a crime, and therefore the Department will not bring the congressional
- [The Holder Contempt- Civil Enforcement Edition](https://www.pointoforder.com/2012/06/28/the-holder-contempt-civil-enforcement-edition/) - The House is scheduled to vote today on holding the Attorney General in contempt for his failure to comply with congressional subpoenas seeking documents in the Fast and Furious investigation. Since my last post on this subject, the House leadership has decided in addition to voting on the resolution to certify the contempt to the
- [DOJ Urges Congress to Arrest White House Chief of Staff!](https://www.pointoforder.com/2008/06/23/doj-urges-congress-to-arrest-of-white-house-chief-of-staff/) - Well, not exactly. But pretty close. I asked the following a few weeks ago: "Since DOJ has now repudiated the position of the 1984 OLC memo with respect to the availability of a civil remedy, the question remains whether it also repudiates the memo’s denial of an inherent contempt remedy."
- [The Holder Contempt- A Procedural Primer](https://www.pointoforder.com/2012/06/21/the-holder-contempt-a-procedural-primer/) - As you may have heard, President Obama has asserted executive privilege with regard to Department of Justice documents sought by the House Committee on Oversight and Government Reform as part of its investigation of the “Fast and Furious” program, and COGR has voted to hold Attorney General Holder in contempt for failing to produce them.
- [Why Doesn't Congress Investigate National Security Leaks by the Executive Branch?](https://www.pointoforder.com/2012/06/10/why-doesnt-congress-investigate-national-security-leaks-by-the-executive-branch/) - Stop laughing, I’m serious. If Senator Feinstein and Representative Rogers, the chairs of the Senate and House Intelligence Committees respectively, want to get to the bottom of recent leaks of highly classified information from the executive branch, why don’t they conduct the investigation themselves? Hear me out. The knee-jerk reaction to such issues is to
- ["We Refer a Lot of Things that Don't Get Prosecuted"](https://www.pointoforder.com/2012/06/20/we-refer-a-lot-of-things-that-dont-get-prosecuted/) - So noted former congressman Tom Davis after Roger Clemens was acquitted on all charges stemming from his congressional testimony regarding alleged steroid use. Davis was explaining to the Washington Post why he did not believe the Justice Department was obligated to prosecute Clemens even though he and Representative Henry Waxman (respectively the ranking member and
- [Laufman on Leaks](https://www.pointoforder.com/2012/06/13/laufman-on-leaks/) - Pertinent to my last post, white collar defense attorney (and my former Hill colleague) David Laufman has published this article for the Huffington Post on “Prosecuting Leaks of Classified Information.” It provides an excellent overview of the laws governing national security leaks, and the challenges and risks involved in prosecuting leakers.
- [Seeking Section Four Transparency](https://www.pointoforder.com/2012/06/03/seeking-section-four-transparency/) - As the national debt rises rapidly toward the latest “ceiling”, Professor Epps once again proposes (“A Gun to the Debt-Ceiling Fight”) the President invoke (or threaten to invoke) Section Four of the Fourteenth Amendment to avoid all that unpleasantness from last time. Needless to say, I don’t think any more of the legal merits of
- [A Code of Lobbying Ethics](https://www.pointoforder.com/2010/04/24/a-code-of-lobbying-ethics/) - Tom Spulak, a well-respected congressional lawyer and a former House General Counsel (as well as a former colleague of mine at Shaw Pittman), wrote this recent piece on the “assault on lobbyists.” Of particular interest to me is his suggestion that lobbyists could adopt a voluntary code of conduct that would prohibit questionable and/or controversial
- [Constitutional Settlements and the Recess Appointments Clause](https://www.pointoforder.com/2012/05/18/constitutional-settlements-and-the-recess-appointments-clause/) - We have now learned a good deal (some might say too much) about the Recess Appointments Clause, and it is time to consider how this knowledge might be employed for the betterment of the Republic. The many open questions regarding the interpretation and application of the RAC are an invitation to constant disputation and uncertainty
- [Burying the Multi-Session Recess Appointment Theory](https://www.pointoforder.com/2012/05/03/burying-the-multi-session-recess-appointment-theory/) - In a recent post on the Recess Appointments Clause, I argued that the current method (the multi-session recess appointment theory) for determining the tenure of a recess appointee is based on “precedent” which does not amount to a hill of beans. It is time now to consider afresh the question of how one ought to
- [When Harry Met Lindsay](https://www.pointoforder.com/2012/04/29/when-harry-met-lindsay/) - Thanks to the good people at the Truman Library, I can provide a little more background on the relationship between President Truman and Comptroller General Warren. You can decide for yourself its relevance for evaluating Warren’s 1948 opinions on the Recess Appointments Clause, but it seems to me that, at the least, it shows that
- [More on Gingrich and Judges](https://www.pointoforder.com/2012/01/01/more-on-gingrich-and-judges/) - Former Speaker Gingrich’s plan to rein in the federal judiciary has met with near-universal criticism, but Curt Levey has gamely offered a qualified defense in the Wall Street Journal. Levey contends that the attacks on Gingrich’s proposal are “overblown.” As an example, he has this to say about Gingrich’s idea of subpoenaing federal judges to
- [Is Congress Competent?](https://www.pointoforder.com/2012/04/23/is-congress-competent/) - Ok, that’s not exactly the question raised by attorneys for Roger Clemens in last week’s filing in federal district court, but I bet its how they hope the jurors interpret the question. Technically, the issue that Rusty Hardin and company want jurors to consider is whether the House Committee on Oversight and Government Reform (COGR)
- [Comptroller General Warren and the Origins of the Multi-Session Recess Appointment](https://www.pointoforder.com/2012/04/21/comptroller-general-warren-and-the-origins-of-the-multi-session-recess-appointment/) - As far as I know, Lindsay Warren was a competent attorney who served honorably as the third Comptroller General of the United States. The opinions that he issued in the summer of 1948 regarding the Recess Appointments Clause, however, were not a high point of his career or of the GAO’s protection of the institutional
- [Attorney General Daugherty and the "Intra-Session" Recess](https://www.pointoforder.com/2012/03/30/attorney-general-daugherty-and-the-intra-session-recess/) - We now come to Attorney General Harry Daugherty, whose 1921 opinion still controls the executive branch’s understanding of what constitutes a “recess” within the meaning of the Recess Appointments Clause. See OLC Opinion, “Lawfulness of Recess Appointments during a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions” 5 (Jan. 6, 2012) (noting that the
- [So About that Recess Appointments Clause](https://www.pointoforder.com/2012/01/30/so-about-that-recess-appointments-clause/) - Article II, §2, cl. 3 of the Constitution (the “Recess Appointments Clause” or “RAC”) provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session.” The Constitution requires that Congress “assemble” at
- [The Recess Appointments Clause and the War of 1812](https://www.pointoforder.com/2012/02/05/the-recess-appointments-clause-and-the-war-of-1812/) - To continue our discussion of the Recess Appointments Clause, I would like to revisit a debate that took place on the Senate floor in March 1814. It concerned actions taken by President Madison earlier that year, while the Senate was in recess. Having received an offer from Czar Alexander of Russia to help mediate an
- [The Recess Appointments Clause, Original Vacancies and Attorney General Wirt](https://www.pointoforder.com/2012/02/10/the-recess-appointments-clause-original-vacancies-and-attorney-general-wirt/) - As discussed in my prior post on this subject, it seems to have been the prevailing view in the 1814 Senate that the President could not use the Recess Appointments Clause to fill a newly created statutory office, absent explicit authority in the law to do so. This view could rest on three different grounds.
- [Attorney General Knox and the Multi-Session Recess Appointment](https://www.pointoforder.com/2012/03/27/attorney-general-knox-and-the-multi-session-recess-appointment/) - On December 24,1901, during the administration of Teddy Roosevelt, Attorney General Knox issued an opinion responding to the question whether President Roosevelt could fill a vacant office (the appraiser of merchandise in the district of New York) during the “current holiday adjournment” of the Senate. Both houses had adjourned from December 19, 1901 to January
- [But They Can Still Vote While Intoxicated, Right?](https://www.pointoforder.com/2012/03/22/but-they-can-still-vote-while-intoxicated-right/) - According to several news accounts in the last week, a Minnesota student group is working to end “legislative immunity from drunk driving arrests.” Apparently someone believes that Minnesota state legislators are immune from arrest for DWI based on Article IV, section 10, of the Minnesota Constitution, which provides that “members of each house in all cases except
- [A Recess By Any Other Name](https://www.pointoforder.com/2012/03/21/a-recess-by-any-other-name/) - We now come to the issue that has been much discussed in connection with President Obama’s January 4, 2012 recess appointments: what constitutes a “recess” within the meaning of the Recess Appointments Clause? The RAC, you will recall, provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the
- [We Have Another Tie!](https://www.pointoforder.com/2012/03/17/we-have-another-tie/) - This time in Wisconsin, where a Republican state senator (facing a recall election in June) has resigned, leaving the Senate split at 16-16. Unlike Virginia, Wisconsin has no constitutional provision providing for the lieutenant governor (or anyone else) to break ties. Nor, apparently, is there any statute that says what happens in this situation. According
- [Senator Stevens and the Strange Evolution of Speech or Debate](https://www.pointoforder.com/2012/03/16/4783/) - Yesterday was the release date for Henry Schuelke’s report on misconduct in the prosecution of the late Senator Ted Stevens. The report, which I have only skimmed, is available here. In addition, Judge Sullivan’s opinion ordering the public release of the report may be read here. Judge Sullivan summarizes the case for release by noting:
- [Senator Stevens' Speech or Debate Defense](https://www.pointoforder.com/2008/08/16/senator-stevens-speech-or-debate-defense/) - Senator Stevens’s lawyers have filed a blizzard of motions attacking the indictment against him. One contends that the indictment violates the Speech or Debate Clause of the Constitution. For the reasons set forth below, it is highly unlikely that Stevens will be successful in having the indictment dismissed on this basis. Making this argument,
- [What's Happening? Rerunning the Wirt-Rappaport Debate on the Recess Appointments Clause](https://www.pointoforder.com/2012/03/05/whats-happening-rerunning-the-wirt-rappaport-debate-on-the-recess-appointments-clause/) - Attorney General Wirt’s interpretation of the Recess Appointments Clause, under which the President may fill vacancies that “happen to exist” during the recess of the Senate, has been followed by the executive branch since Wirt issued his opinion in 1823. A few years ago, Professor Michael Rappaport challenged Wirt’s interpretation, arguing that it was so
- [Judge Jackson's Non-decision on Recess Appointments](https://www.pointoforder.com/2012/03/03/judge-jacksons-non-decision-on-recess-appointments/) - U.S. District Judge Amy Berman Jackson issued an opinion yesterday regarding a challenge to the validity of a rule promulgated by the National Labor Relations Board (NLRB) to require employers to post notices informing workers of their right to organize a union and conduct other activities under the National Labor Relations Act (NLRA). In its
- [The Purposes of the Recess Appointments Clause](https://www.pointoforder.com/2012/02/29/the-purposes-of-the-recess-appointments-clause/) - At first blush, the purpose of the Recess Appointments Clause seems rather obvious- it enables the President to fill offices temporarily when the Senate is not available to provide its advice and consent with regard to a permanent appointment. As Professor Michael Herz observes, the RAC’s purpose seems “sensible, straightforward, and unquestioned.” Yet it may
- [The Recess Appointments Clause, the Civil War Congress and Congressional "Acquiescence"](https://www.pointoforder.com/2012/02/24/the-recess-appointments-clause-the-civil-war-congress-and-congressional-acquiescence/) - When we left the Recess Appointments Clause in the mid-19th century (for earlier posts, see here, here and here), the executive branch had embraced the proposition that a vacancy “may happen” in the recess of the Senate even though it first arose while the Senate was in session. The legislative branch had not accepted this
- [Ethical Dilemma](https://www.pointoforder.com/2012/02/19/ethical-dilemma/) - Friday’s letter from the House Ethics Committee indicates that Billy Martin was asked “to review allegations that this Committee violated due process rights or rules attaching to Representative Waters.” Martin was also asked “to address whether recusal of any Members of the Committee should be considered and when would be the most appropriate time for
- [Who Was the Mystery Witness Invoking the Fifth Before the House Ethics Committee?](https://www.pointoforder.com/2012/02/17/who-was-the-mystery-witness-invoking-the-fifth-before-the-house-ethics-committee/) - According to a letter sent today by the House Ethics Committee to the Speaker, outside counsel Billy Martin has spent a good deal of time reviewing “allegations that this Committee violated due process rights or rules attaching to Representative [Maxine] Waters.” However, Martin has been unable to complete the due process review because one “necessary witness” has
- [Alec Rogers on "Mr. Speaker! The Life and Times of Thomas B. Reed, the Man who Broke the Filibuster"](https://www.pointoforder.com/2012/02/14/alec-rogers-on-mr-speaker-the-life-and-times-of-thomas-b-reed-the-man-who-broke-the-filibuster/) - My former colleague Alec Rogers has been kind enough to share this review of James Grant’s biography of Speaker Thomas Reed: James Grant is best known for his financial analysis, shared with those willing to part with a pretty penny, via the eponymous Grant’s Interest Rate Observer (current subscription rate: US$910). For decades, Wall Streeters
- [Inappropriate Behavior?](https://www.pointoforder.com/2012/02/06/inappropriate-behavior/) - House Rule XI (g)(5) provides (5) To the maximum extent practicable, each committee shall--- (A) provide audio and video coverage of each hearing or meeting for the transaction of business in a manner that allows the public to easily listen to and view the proceedings; and (B) maintain the recordings of such coverage in a
- [Did Senator Paul's TSA Detention Violate the Arrest Clause?](https://www.pointoforder.com/2012/01/23/did-senator-pauls-tsa-detention-violate-the-arrest-clause/) - Senator Rand Paul was “detained” earlier today by the Transportation Security Administration (TSA) after the Senator refused to consent to a full body pat down at the airport in Nashville, Tennessee. Senator Paul was at the airport to catch a flight to Washington, DC. This raises an interesting question under the Arrest Clause, art. I,
- [Bolling Memorandum on Breaking Ties in the Virginia Senate](https://www.pointoforder.com/2012/01/03/bolling-memorandum-on-breaking-ties-in-the-virginia-senate/) - Virginia Lieutenant Governor Bolling has issued this ruling on his power to break deadlocks in the Virginia Senate. In brief, Bolling concludes that his power to vote includes organizational matters such as determining rules of procedure and voting on officers. However, he also finds that he lacks the power to vote on final passage of
- [Using Inherent Contempt Against Federal Judges](https://www.pointoforder.com/2011/12/19/using-inherent-contempt-against-federal-judges/) - In my prior post on former Speaker Gingrich’s plan to subpoena federal judges to testify before Congress, I assumed that any enforcement of such subpoenas would follow the statutory contempt process set forth in 2 U.S.C. § 194. It crossed my mind to mention an alternative mechanism, but the idea seemed so unlikely (zany, one
- [Inherent Contempt 101](https://www.pointoforder.com/2007/09/08/inherent-contempt-101/) - There is an interesting article from the Politico regarding the enforcement options available to Congress with respect to the refusal of Harriet Miers and other former or current Administration officials to provide information in the investigation of the firing of US attorneys. The article focuses in particular on the potential for using "inherent contempt," which
- [Billy Martin's Contract Extended](https://www.pointoforder.com/2011/12/17/billy-martins-contract-extended/) - According to the Hill: “Martin was hired in July. Since then he has ‘interviewed numerous witnesses, and conducted extensive legal research regarding the nature of due process rights which attach to Members of Congress appearing before this committee,’ according to the committee.” But not read Point of Order, apparently. Sigh.
- [Virginia Court Declines to Hear Challenge to Lieutenant Governor's Right to Vote in Senate](https://www.pointoforder.com/2011/12/16/virginia-court-declines-to-hear-challenge-to-lieutenant-governors-right-to-vote-in-senate/) - On ripeness and separation-of-powers grounds. Decision can be found here. No cite to Point of Order. Sigh.
- [Judicial Accountability Hearings?](https://www.pointoforder.com/2011/12/14/judicial-accountability-hearings/) - A few weeks ago former Speaker and current presidential candidate Newt Gingrich created a minor stir when he suggested that Congress should subpoena federal judges to question them about erroneous decisions. Gingrich told the Value Voters Summit: “[if] judges . . . knew that when they were radically wrong they’d be hauled in front of
- [Situation Comity](https://www.pointoforder.com/2011/12/12/situation-comity/) - In her testimony before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts last week, noted Supreme Court advocate Maureen Mahoney urged the panel not to advance pending legislation requiring that Supreme Court proceedings be televised. Among other things, she contended that such legislation would raise “serious constitutional questions” on separation of powers grounds.
- [The Waters Case](https://www.pointoforder.com/2010/08/17/the-waters-case/) - An investigative subcommittee of the House Ethics Committee has charged Representative Maxine Waters (D-Ca.) with three counts of ethics violations stemming from efforts that she and her staff made to assist OneUnited Bank, a Boston-based, minority-owned financial institution which sought and obtained a TARP bailout in the fall of 2008. These efforts were improper, according
- [Breaking a Tie in the Senate](https://www.pointoforder.com/2011/11/10/breaking-a-tie-in-the-senate/) - (Update- see this more recent post on the possibility of a court challenge to the Lieutenant Governor's vote). It appears the Virginia Senate, following Tuesday’s elections, will be equally divided, with Republicans holding 20 seats and Democrats holding 20 seats. The Democrats want a shared-power arrangement, meaning that committee chairmanships and other responsibilities would be
- [Can a Court Resolve the Virginia Senate Deadlock?](https://www.pointoforder.com/2011/11/26/can-a-court-resolve-the-virginia-senate-deadlock/) - Virginia Democrats may go to court over the issue of whether the Lieutenant Governor can break ties on organizational matters in the Senate. As indicated in a previous post, I am skeptical about the merits of this claim. (Another useful resource on this subject is the website of the National Conference of State Legislatures, which
- [What Happens to the Supercommittee's Records?](https://www.pointoforder.com/2011/11/22/what-happens-to-the-supercommittees-records/) - This story by Richard Lardner of the Associated Press (“Debt-reduction ‘supercommittee’ hid in plain sight”) discusses how the “Supercommittee” has conducted its business largely behind closed doors. The article cites this blog’s view that the committee’s narrow interpretation of the term “meeting” as used in its open meeting rule enabled it to conduct virtually all
- [The Use and Abuse of Legislative Privilege- Canadian Edition](https://www.pointoforder.com/2011/11/21/the-use-and-abuse-of-legislative-privilege-canadian-edition/) - The Speaker of the Canadian Parliament (who is 32 years old!) issued this ruling last week in response to a point of order. The issue concerned the action of a Government Minister who had “tabled a document” with the House detailing a political donation made by a particular named individual. The point of order was
- [Judge Griffith Will Be Delivering The Leventhal Lecture This Tuesday](https://www.pointoforder.com/2011/11/13/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
- [The Solyndra Subpoenas and the White House Response](https://www.pointoforder.com/2011/11/05/the-solyndra-subpoenas-and-the-white-house-response/) - The House Energy and Commerce Committee has issued subpoenas to the White House Chief of Staff and the Chief of Staff to the Vice President, seeking documents relating to the Solyndra loan scandal. Specifically, each subpoena asks for “[a]ll documents referring or relating in any way to the $535 million loan guarantee issued to Solyndra,
- [Judge Walton Dismisses Kucinich v. Obama](https://www.pointoforder.com/2011/10/20/judge-walton-dismisses-kucinich-v-obama/) - Apparently he saw no more way of distinguishing Campbell v. Clinton than I did. In fact, the court sounded a bit peeved that the case was brought in the first place: “While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce
- [Congress: Beware of the Justice Department's Attempt to Change Rule 6(e)](https://www.pointoforder.com/2011/10/20/congress-beware-of-the-justice-departments-attempt-to-change-rule-6e/) - In a decision issued this summer, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia considered a petition to unseal the transcript of former President Nixon’s grand jury testimony in 1975. For reasons explained below, the court’s decision to grant the petition has important implications for the ability of congressional
- [More Legal Misinformation About Congress](https://www.pointoforder.com/2011/10/09/more-legal-misinformation-about-congress/) - If there were an award for cramming the most amount of legal misinformation into the shortest segment, Friday’s edition of “Nightly Scoreboard” would surely earn a nomination. The subject was a potential congressional subpoena for White House emails concerning Solyndra, and the discussion took place between host David Asman and former federal prosecutor Annmarie McAvoy.
- [Did Reid Go Nuclear?](https://www.pointoforder.com/2011/10/07/did-reid-go-nuclear/) - As you may have heard, Senate Majority Leader Reid invoked the “nuclear option” yesterday, thereby laying waste to the Senate and all its traditions. At least that it is how Alexander Bolton of The Hill describes Reid’s actions in response to a Republican motion to suspend the rules with respect to the China currency legislation
- [When is a Meeting not a Meeting?](https://www.pointoforder.com/2011/09/28/when-is-a-meeting-not-a-meeting/) - When the Supercommittee says so, apparently. According to this Politico article, the Supercommittee has been “supersecret,” holding a six and half hour closed session in the Capitol yesterday. But wait, the Supercommittee rules require that its “meetings” be open, unless the Supercommittee votes in open session to close them. Wasn’t this a meeting? Senator Kerry
- [Legislative Instructions and the Article V Convention](https://www.pointoforder.com/2011/09/23/legislative-instructions-and-the-article-v-convention/) - In thinking about the question of whether an Article V convention may be limited, it is helpful to distinguish between two types of limitations. The first goes to a limitation on the authority of the convention itself—this limitation would hold that proposed amendments outside the scope of the convention’s authority (as established by the states
- [Article V and the "Runaway Convention"](https://www.pointoforder.com/2011/09/21/article-v-and-the-runaway-convention/) - Article V requires Congress, “on the Application of the Legislatures of two thirds of the several States,” to “call a Convention for proposing Amendments.” This process for proposing constitutional amendments has never been used, in large part because of fears that it would lead to a “runaway convention.” The exact definition of a runaway convention
- [After Only 499 Years, Have We Forgotten Richard Strode?](https://www.pointoforder.com/2011/09/15/after-only-499-years-have-we-forgotten-richard-strode/) - Warning: If you are not deep in the weeds of Speech or Debate, this post may not be for you. With regard to the question of whether the Speech or Debate Clause prohibits former Congressman Renzi’s prosecution in connection with his role in developing certain land exchange legislation, one English precedent stands out as particularly
- [Parliamentary Privilege and Nondisclosure](https://www.pointoforder.com/2011/08/24/parliamentary-privilege-and-nondisclosure/) - Because the Speech or Debate Clause was modeled on article 9 of the English Bill of Rights, U.S. courts have long looked to English practice and precedent as a guide to its interpretation. This approach is reflected in the very first case to consider the Clause, Kilbourn v. Thompson, 103 U.S. 168 (1881), where the
- ["Would You Like Tax Hikes or Spending Cuts With Your Eggs?"](https://www.pointoforder.com/2011/09/14/would-you-like-tax-hike-or-spending-cuts-with-your-eggs/) - John Wonderlich of the Sunlight Foundation reports on a possible closed meeting of the Supercommittee tomorrow. Initially this was described as an “executive session” of the Supercommittee; later it was “clarified” that it will be a “private breakfast meeting.” The Supercommittee rules clearly require, at a minimum, that a vote be taken in open session
- [Kathleen Clark on the "Right to Counsel" in Intelligence Oversight](https://www.pointoforder.com/2011/09/13/kathleen-clark-on-the-right-to-counsel-in-intelligence-oversight/) - Professor Kathleen Clark recently published this article regarding congressional oversight of intelligence. In brief, she argues that when leaders of the intelligence committees are given restricted briefings by the executive branch, they should be able to share the information with cleared committee staff members from whom they need to obtain “counsel” (by which she means
- [Are Lindsey Graham and Scott Brown Incompatible?](https://www.pointoforder.com/2011/09/10/are-lindsey-graham-and-scott-brown-incompatible/) - Under Article I, section 6, clause 2, I mean. That Clause provides in pertinent part that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” Under this provision, known as the Incompatibility Clause, holding an office “under the United States” is deemed incompatible
- [Supercommittee Rules Not So Clear](https://www.pointoforder.com/2011/09/08/supercommittee-rules-not-so-clear/) - The Supercommittee rules are out, but they leave some unanswered questions. To begin with, the rules provide that “[t]he rules of the Senate and the House of Representatives, to the extent that they are applicable to committees, including rule XXXVI of the Standing Rules of the Senate and clause 2 of rule XI of the
- [Illinois's Unconstitutional Procedure for Filling the Obama Vacancy](https://www.pointoforder.com/2010/06/25/illinoiss-unconstitutional-procedure-for-filling-the-obama-vacancy/) - An interesting Seventh Circuit opinion earlier this month considers the constitutionality of Illinois’s procedure for filling the Senate seat vacated by Barack Obama after his presidential election. (hat tip, Election Law Blog). Among other things, the court confirms my view that the term of Senator Burris (who was appointed by then-Governor Blagojevich as a temporary replacement
- [A Point of Order Final Exam](https://www.pointoforder.com/2011/09/05/a-point-of-order-final-exam/) - Consider the following facts: Jeffrey Sterling served as a CIA officer from 1993 to January 31, 2002. During that time, he became acquainted with a clandestine operational program that was designed to disrupt the nuclear development activities of Iran. According to a book later written by James Risen, this program involved a “botched attempt under
- ["Precedents" and Presidential Addresses](https://www.pointoforder.com/2011/09/02/precedents-and-presidential-addresses/) - As you may have heard, the President has requested an opportunity to address a joint session of Congress. His request initially was to make the address on September 7, but the Speaker responded that because of certain logistical concerns “it is my recommendation that your address be held on the following evening.” In reference to
- [A Useful Resource on the Attorney-Client Privilege in Congressional Investigations](https://www.pointoforder.com/2011/09/01/a-useful-resource-on-the-attorney-client-privilege-in-congressional-investigations/) - The American College of Trial Lawyers has issued this paper on the attorney-client privilege in congressional investigations. The ACTL is, not surprisingly, highly skeptical of Congress’s traditional claim not to be bound by the privilege, and it makes some forceful arguments on the other side. It also provides some helpful guidance for practitioners who wish
- [An Alternative to Speech or Debate](https://www.pointoforder.com/2011/08/30/an-alternative-to-speech-or-debate/) - My last three posts (see here, here and here) suggest that a nondisclosure privilege would be an awkward fit with the text, purpose and history of the Speech or Debate Clause. A final consideration that militates against a nondisclosure privilege is the absolute nature of the Clause. If the Clause protects against disclosure of legislative
- [Speech or Debate and Nondisclosure](https://www.pointoforder.com/2011/08/23/speech-or-debate-and-nondisclosure/) - Now I will turn to the question of whether the Speech or Debate Clause should be read to encompass a “nondisclosure” privilege, which would protect Members of Congress from being required to produce information regarding their legislative activities. Following the hypothetical in my last post, suppose the Justice Department serves Senator Smith with a grand
- [The Three Established Branches of Speech or Debate](https://www.pointoforder.com/2011/08/22/the-three-established-branches-of-speech-or-debate/) - In a prior post, I addressed one of the two major Speech or Debate issues in the Renzi case. That issue involved the application of one of the three established branches of the Speech or Debate privilege. The other issue in Renzi is whether the courts should recognize a fourth branch of the privilege, namely
- [The Supercommittee, Moral Entrenchment, and the Puzzle of Statutized Rules](https://www.pointoforder.com/2011/08/17/the-supercommittee-moral-entrenchment-and-the-puzzle-of-statutized-rules/) - The Budget Control Act of 2011 (“BCA”) establishes a number of expedited procedures to govern House and Senate consideration of the legislative proposal from the "Supercommittee." In essence, it requires that both the House and Senate have an up-or-down vote on the bill as proposed, and it forbids amendment of the bill in either house.
- [Does BLAG Believe that Members of Congress are Immune from Federal Wiretaps?](https://www.pointoforder.com/2010/10/18/does-blag-believe-that-members-of-congress-are-immune-from-federal-wiretaps/) - In a little-noticed amicus brief filed in June with the U.S. Court of Appeals for the Ninth Circuit, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives argued that the Justice Department’s wiretap of former Representative Rick Renzi was unconstitutional. BLAG contends: “The Wiretap Order clearly permitted the executive branch to seize communications
- [CREW Has Some Explaining To Do](https://www.pointoforder.com/2011/07/20/crew-has-some-explaining-to-do/) - Note: CREW declined comment on this blog post. On June 14, 2011, Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint with the Office of Congressional Ethics (OCE) against Speaker of the House John Boehner. The complaint alleged that the Speaker had violated the Anti-deficiency Act, 31 U.S.C. § 1341(a), by directing the
- [Sunshine for the Super-Committee?](https://www.pointoforder.com/2011/08/13/sunshine-for-the-super-committee/) - The legislation creating the “Joint Select Committee on Deficit Reduction” (AKA, the “Super-committee”) contains little detail on rules and procedures that the Super-committee is to follow. Title IV of the Act establishes the Super-committee and provides for public notice of its hearings, but is otherwise silent on how much of its processes are to be
- [Overview of Investigatory Authorities of House and Senate Committees](https://www.pointoforder.com/2011/08/11/overview-of-investigatory-authorities-of-house-and-senate-committees/) - Michael Bopp of Gibson Dunn has prepared this useful guide to the investigative authorities of House and Senate Committees. For each committee, the attached table identifies who can issue subpoenas, how they are enforced, quorum requirements for taking testimony and whether deposition authority exists.
- [ABA Proposal for Lobbying Reform](https://www.pointoforder.com/2011/08/10/aba-proposal-for-lobbying-reform/) - The American Bar Association has approved a resolution calling for changes to federal lobbying regulation. (see this story in Politico). Interestingly, Politico quotes the head of the American League of Lobbyists as generally supportive of the resolution, except for the proposal to restrict campaign fundraising by lobbyists. The ABA resolution stems from the report of
- [The Strange Case of Scott Bloch](https://www.pointoforder.com/2011/08/08/4509/) - Scott Bloch, the former head of the Office of Special Counsel, the office charged with protecting government whistleblowers against retaliation, wasn’t very popular with the employees in his former office, and they went to Congress to complain. Among other things, they accused him of retaliating against those who voiced concerns about his policies. You get
- [Law Professors Lecture Congress on Stuff They Know Nothing About](https://www.pointoforder.com/2011/08/09/law-professors-lecture-congress-on-stuff-they-know-nothing-about/) - A group of law professors and labor policy experts have written this letter to Darrell Issa, Chairman of the House Oversight and Government Reform Committee (COGR), expressing their grave concerns over “threats to compel disclosure of privileged documents” from the National Labor Relations Board. COGR is investigating the NLRB’s decision to bring an action against
- [House Ethics Committee and a Breach of Confidentiality](https://www.pointoforder.com/2011/08/03/house-ethics-committee-and-a-breach-of-confidentiality/) - In all the hoopla over the House Ethics Committee’s appointment of an outside counsel and the allegations of impropriety in the Committee’s investigation of Representative Maxine Waters, one serious issue has largely escaped attention. Someone leaked to Politico reporter John Bresnahan “hundreds of pages of confidential Ethics Committee emails, memos and notes” relating to the
- [A Question about the Billy Martin Contract](https://www.pointoforder.com/2011/08/02/a-question-about-the-billy-martin-contract/) - The contract between the House Ethics Committee and Billy Martin’s law firm, Dorsey & Whitney, provides that “the Chairman of the Committee reserves the right to terminate this contract at any time.” TPM commented on this provision as follows: “That would all seem quite normal, except of course, part of Martin's job is to investigate
- [Would it be "Unconstitutional" to Veto a Debt Limit Increase?](https://www.pointoforder.com/2011/07/30/would-it-be-unconstitutional-to-veto-a-debt-limit-increase/) - From the President’s veto message: This bill would make it almost inevitable that the Government would default for the first time in our history. This is deeply irresponsible. A default has never happened before, and it should not happen now. I have repeatedly urged the Congress to pass promptly legislation raising the debt limit for
- [Has Obama Already "Invoked" the Public Debt Clause?](https://www.pointoforder.com/2011/07/29/has-obama-already-invoked-the-public-debt-clause/) - Jack Balkin says yes. Balkin argues that by telling bondholders that they will get paid regardless of whether the debt limit is raised, the President is implicitly invoking the Public Debt Clause. I say no (or, rather, not necessarily). One could construe the existing statutory scheme to permit prioritization wholly apart from any constitutional issue.
- [Prioritizing Payments if the Debt Limit is Reached](https://www.pointoforder.com/2011/07/28/prioritizing-payments-if-the-debt-limit-is-reached/) - This CRS report from early June discusses a number of legal and policy issues (not including the Public Debt Clause) that would arise should Congress not raise the debt limit. Of particular interest is its discussion of the Treasury Secretary’s authority to prioritize payments once the debt limit is reached: Some have argued that prioritization
- [Can Representative Waters Take the Ethics Committee to Court?](https://www.pointoforder.com/2011/07/26/can-representative-waters-take-the-ethics-committee-to-court/) - According to this Politico story, “Rep. Maxine Waters (D-Calif.) is threatening to take the House Ethics Committee to federal court if the secretive panel charges her with any violations of House rules.” This statement appears to reflect a misunderstanding of a letter sent by Stan Brand, Waters’s attorney, to the chairman and ranking member of
- [OCE Funding in Jeopardy?](https://www.pointoforder.com/2011/07/21/oce-funding-in-jeopardy/) - Update: OCE funding survives. Daniel Schuman reports. There is going to be a roll call vote tomorrow on an amendment offered by Representative Mel Watt to reduce the budget of the Office of Congressional Ethics (OCE) by 40%. Daniel Schuman of the Sunlight Foundation sounds the alarm. Representative Watt may have legitimate concerns with OCE
- [A Thought on the Public Debt Clause and Article VI](https://www.pointoforder.com/2011/07/17/a-thought-on-the-public-debt-clause-and-article-vi/) - It seems fair to say that the Public Debt Clause will get more attention from scholars in the next few years than it did for its first 145 years of existence. In that connection, I want to suggest that Article VI, clause 1, deserves some thought. That clause provides that “[a]ll Debts contracted and Engagements
- [Congressional Lawyers Gone Wild](https://www.pointoforder.com/2011/07/16/congressional-lawyers-gone-wild/)
- [The First Witness at the Clemens Trial](https://www.pointoforder.com/2011/07/13/the-first-witness-at-the-clemens-trial/) - The prosecution opened the Clemens trial today by having Charles Johnson, former House Parliamentarian and one of the world’s leading experts on the House of Representatives, read House Mouse, Senate Mouse to the jury. Ok, I am making that up, but it was pretty close. The first exhibit offered by the prosecution was the U.S.
- [Is a House Vote Required to Release the Clemens Tape?](https://www.pointoforder.com/2011/07/12/is-a-house-vote-required-to-release-the-clemens-tape/) - Last week the Clemens defense team asked the judge to grant it access to the audiotape of the February 5, 2008 deposition in which congressional staff questioned Clemens regarding his use of steroids. COGR had previously provided the prosecution and defense with the transcript of this deposition, at which Clemens made many of the alleged
- ["Future Legislative Acts" and the Ninth Circuit's Narrow Reading of Speech or Debate](https://www.pointoforder.com/2011/07/11/future-legislative-acts-and-the-ninth-circuits-narrow-reading-of-speech-or-debate/) - In United States v. Renzi, the Ninth Circuit rejected the former congressman’s claim that the Speech or Debate Clause prohibits charging him with having demanded, as a condition of supporting land exchange legislation that two private companies were seeking, that those companies include in the proposed legislation land owned by Sandlin, a Renzi associate (who,
- [A Cert-Worthy Speech or Debate Case](https://www.pointoforder.com/2011/06/24/a-cert-worthy-speech-or-debate-case/) - In United States v. Renzi, handed down yesterday, the Ninth Circuit definitively rejected the Speech or Debate arguments advanced by the former congressman. I will have more to say about this decision in coming days (for previous posts on the Renzi matter, see here, here and here). For now I would just observe that the
- [Congressional Witnesses at the Clemens Trial](https://www.pointoforder.com/2011/07/09/congressional-witnesses-at-the-clemens-trial/) - Needless to say, I don’t know exactly how the government plans to prove the “congressional facts” necessary to establishing its case against Roger Clemens. The government, however, has announced an intention to call two House witnesses, Charles Johnson (the former House Parliamentarian) and Phil Barnett (a long-time aide to Representative Henry Waxman, who chaired the
- [What Must the Clemens Prosecutors Prove About Congress?](https://www.pointoforder.com/2011/07/08/what-must-the-clemens-prosecutors-prove-about-congress/) - AP notes that “Prospective jurors screened Thursday for the Roger Clemens perjury trial were more critical of Congress for spending time investigating drugs in baseball than they were of the star pitcher on trial for lying to lawmakers about ever using them.” Having watched some of the jury selection yesterday, I can confirm this observation.
- [The Public Debt Clause and the President's "Right to Ignore Law"](https://www.pointoforder.com/2011/07/06/the-public-debt-clause-and-the-presidents-right-to-ignore-law/) - While I would like to move on from the Public Debt Clause issue, I feel obliged to remark on Katrina vanden Heuvel’s column, entitled “Invoke the 14th — and end the debt standoff,” in the Washington Post today. She writes: President Obama may find that there is only one course left to avoid a global
- [Snatching the Power of the Purse](https://www.pointoforder.com/2011/06/06/snatching-the-power-of-the-purse/) - In prior posts (see here, here and here), I argued that Garrett Epps (and, to a lesser extent, Michael Abramowicz) had adopted an overly broad interpretation of the Public Debt Clause and that this interpretation, even if accepted, could not justify invalidating the debt limit. These errors are minor, however, compared to Epps's proposal that
- [A Further Reply to Professor Balkin](https://www.pointoforder.com/2011/07/04/a-further-reply-to-professor-balkin/) - Professor Balkin has replied to my critique of his analysis of the legislative history of the Public Debt Clause. It is a powerful effort, but I think the reader will conclude that its power lies more in the cleverness of its author than the merits of its argument. At the outset, let me say that
- [Public Debt Clause Roundup](https://www.pointoforder.com/2011/07/02/public-debt-clause-roundup/) - There have been a number of Public Debt Clause developments over the last couple of days. Freakonomics. Michael Abramowicz weighs in with some thoughts on the current debate. Among his interesting observations: if one accepts his broad reading of the Public Debt Clause, it is not only the debt limit that would be unconstitutionally suspect.
- ["Threatening Default": A Response to Professor Balkin](https://www.pointoforder.com/2011/07/01/threatening-default-a-response-to-professor-balkin/) - There is a plethora of Public Debt Clause news, but let’s begin with Professor Jack Balkin’s analysis of the Clause’s legislative history. Balkin contends that the key part of that history is the proposal made by Senator Benjamin Wade to insert the following language into the draft of the Fourteenth Amendment: “The public debt of
- [He May Not Be a Witch, But He Sure Can Make Congressional Powers Disappear](https://www.pointoforder.com/2011/06/29/he-may-not-be-a-witch-but-he-sure-can-make-congressional-powers-disappear/) - Although an acquaintance (a noted constitutional scholar) emailed me today “it is difficult to believe anyone could be so far gone as to think the President can transgress a debt limit on his own authority,” he underestimates the “can-do” (or maybe it should be “can’t-do”) spirit of the U.S. Senate. According to this article, several
- [If the President Violates the Constitution and No One has Standing to Sue, Did he Really Break the Law?](https://www.pointoforder.com/2011/06/26/if-the-president-violates-the-constitution-and-no-one-has-standing-to-sue-did-he-really-break-the-law/) - That seems to be the question (of the "if a tree falls in the woods" variety) posed by this New Republic article entitled “The Debt Ceiling: Why Obama Should Just Ignore it.” Although the author cites Garrett Epps and others for the proposition that there is a “strong argument” that the President has the authority
- [Renzi Update](https://www.pointoforder.com/2010/03/07/renzi-update/) - In a recent series of opinion/orders, the federal district court (Judge Bury) denied former Congressman Renzi’s various Speech or Debate claims, upholding the Magistrate’s previous rulings on those subjects. (see here, here and here). The judge, however, recognized that the Speech or Debate claims are likely to be the subject of an interlocutory appeal, thus
- [Resigned to Distraction](https://www.pointoforder.com/2011/06/16/resigned-to-distraction/) - As I have discussed before, there is a theory, advanced by Professor Josh Chafetz, that Members of Congress should not be able to resign as of right, but should require permission of the House before doing so. As a matter of constitutional law, Chafetz contends that the Framers expected that Members of the House, like
- [Should He Stay or Should He Go?](https://www.pointoforder.com/2010/03/08/should-he-stay-or-should-he-go/) - Congressman Eric Massa (D-NY) has announced that he intends to resign from Congress effective 5 pm today. Massa had announced last Wednesday that he would not seek re-election for health reasons, but his decision on Friday to resign immediately was apparently prompted by revelations that the House Ethics Committee is investigating him for “sexually harassing”
- [Not a Creature has Standing, Not Even the House?](https://www.pointoforder.com/2011/06/01/not-a-creature-has-standing-not-even-the-house/) - When Attorney General Holder announced that the Department of Justice (DOJ) would no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in cases where it was being challenged, he committed to “providing Congress a full and fair opportunity to participate in the litigation in those cases.” In response, the Bipartisan Legal Advisory
- [How is Kucinich v. Obama Different than Campbell v. Clinton?](https://www.pointoforder.com/2011/06/15/how-is-kucinich-v-obama-different-than-campbell-v-clinton/) - In a federal complaint filed today, a bipartisan group of Congressmen (led by Representative Dennis Kucinich) seeks “injunctive and declaratory relief to protect the Plaintiffs and the country from a stated policy of Defendant Barack Obama, President of the United States, whereby a president may unilaterally go to war in Libya and other countries without
- ["This is Not a Love Making Process"](https://www.pointoforder.com/2011/06/14/this-is-not-a-love-making-process/) - So explained Charles Tiefer, former Solicitor and Deputy General Counsel to the House and former Assistant Senate Legal Counsel, speaking at a hearing of the House Committee on Oversight and Government Reform yesterday. Tiefer was not talking about the latest congressional sex scandal, but advocating for an aggressive congressional posture when the executive branch withholds
- [Gang Territory: Improving Congressional Oversight of Intelligence](https://www.pointoforder.com/2011/06/13/gang-territory-improving-congressional-oversight-of-intelligence/) - In the most recent edition of the Harvard Journal of Law and Public Policy, Vicki Divoll (former counsel to the Senate Select Committee on Intelligence) argues for what she terms the “Full Access Doctrine” (FAD). That doctrine would provide that “under the Constitution, Congress is entitled to seek and receive any information from the executive
- [Absences from the House](https://www.pointoforder.com/2011/06/12/absences-from-the-house/) - It was announced yesterday that Representative Anthony Weiner had “departed this morning to seek professional treatment to focus on becoming a better husband and healthier person.” His spokesperson stated that the congressman would request “a short leave of absence from the House” in this connection. This request implicates two legal provisions. House Rule III(1) provides
- [A Brief Comment on Weiner and the Media](https://www.pointoforder.com/2011/06/07/a-brief-comment-on-weiner-and-the-media/) - I have been working on a post regarding congressional oversight of intelligence, but it is my solemn duty to drop everything and comment on the ethical troubles of a certain congressman, who unfortunately will not remain nameless. As reported by the Washington Post: “In an extraordinary reversal at an extraordinary news conference, Rep. Anthony Weiner
- [The Debt Limit and the Public Debt Clause](https://www.pointoforder.com/2011/06/04/the-debt-limit-and-the-public-debt-clause/) - Following up on my prior posts (see here and here), one thing that Epps and Abramowicz agree on is that the debt limit violates the Public Debt Clause. Put another way, whenever the debt limit prevents (or may prevent) the government from repaying the “public debt,” Congress is constitutionally obligated to raise it. This position
- [The Public Debt Clause: Back from the Dead?](https://www.pointoforder.com/2011/06/03/the-public-debt-clause-back-from-the-dead/) - Michael Abramowicz’s youthful “thought experiment” has morphed into a serious (well half-serious) policy proposal in this recent article by law professor Garrett Epps. The essence of Epps’s claim (presented as an imagined speech by President Obama) is that debt limit is unconstitutional under the Public Debt Clause. Epps further suggests that the President can therefore
- ["Arrest Me.  I Question the Validity of the Public Debt."](https://www.pointoforder.com/2011/06/02/arrest-me-i-question-the-validity-of-the-public-debt/) - So begins Michael Abramowicz's 1997 law review article, Beyond Balanced Budgets, Fourteenth Amendment Style, 33 Tulsa L. J. 561 (the quote is from the placard of a whimsical protester in Lafayette Park). His thesis is that the original meaning of the first sentence of Section Four of the Fourteenth Amendment, if it were to be
- [Was the Roger Clemens Hearing a "Show Trial"?](https://www.pointoforder.com/2011/04/18/was-the-roger-clemens-hearing-a-show-trial/) - This is the question raised by Clemens' opposition to the House Committee on Oversight and Government (COGR) motion to quash his subpoena for documents. Relying primarily on statements by minority members of COGR at the time, Clemens argues that the 2008 hearing at which he testified was not designed to consider or further any legislation.
- [What Information Can Congress Get from Libyan Agents?](https://www.pointoforder.com/2011/04/01/what-information-can-congress-get-from-libyan-agents/) - In 2002, in the course of investigating abductions of U.S. citizens in Saudi Arabia, the House Government Reform Committee subpoenaed three U.S. firms (Patton Boggs, Qorvis Communications and The Gallagher Group), which had provided lobbying and public relations services to the Saudi government. Each firm was registered under the Foreign Agents Registration Act (FARA), which
- [More on the Clemens Subpoena](https://www.pointoforder.com/2011/03/22/more-on-the-clemens-subpoena/) - As promised in my last post, I want to follow up on the Speech or Debate argument made by COGR in support of its motion to quash the Clemens subpoena. At first blush, there would not seem to be much to discuss. There is little question that the type of oversight and investigative committee records
- [Roger Clemens, Congressional Privilege, and the Right to a Fair Trial](https://www.pointoforder.com/2011/03/21/roger-clemens-congressional-privilege-and-the-right-to-a-fair-trial/) - The House Committee on Oversight and Government Reform (COGR) has moved to quash the Clemens subpoena on the grounds that the investigative documents sought are protected by Speech or Debate. I will discuss COGR's substantive Speech or Debate argument in a future post; for now I want to focus on the relationship between the Speech or Debate privilege and
- [Somin and Whelan on Defending DOMA](https://www.pointoforder.com/2011/03/20/somin-and-whelan-on-defending-doma/) - On St. Patrick's Day, the Federalist Society sponsored a debate on the Hill regarding the Defense of Marriage Act (DOMA) and the President's duty to defend federal statutes. Generally speaking, the participants, (Ilya Somin, Ed Whelan and moderator Neomi Rao) were in agreement that the President may properly refuse to defend an unconstitutional statute under
- [And You Thought No One Read Point of Order](https://www.pointoforder.com/2011/03/17/and-you-thought-no-one-read-point-of-order/) - By letter of March 11, the Committee on Oversight and Government Reform corrected its prior notice to reflect that the subpoena it received was in a criminal, not a civil, case. One mystery solved.
- [The Honorable Charles Clark](https://www.pointoforder.com/2011/03/14/the-honorable-charles-clark/) - Charles Clark was nominated to the U.S. Court of Appeals for the Fifth Circuit on October 7, 1969, and he was confirmed eight days later. Such a speedy confirmation would be unthinkable today, although legend has it that Senator Eastland helped the process along by scheduling the vote when potential opponents were otherwise occupied. The
- [House Subpoena Notices](https://www.pointoforder.com/2011/03/09/house-subpoena-notices/) - As we have previously discussed, House Rule VIII requires that upon being properly served with a subpoena relating to the official functions of the House, a member, officer or employee shall "promptly notify the Speaker of its receipt in writing" and "[s]uch notification shall promptly be laid before the House by the Speaker." On February
- [Dellinger and Eastman on Defending DOMA](https://www.pointoforder.com/2011/03/07/dellinger-and-eastman-on-defending-doma/) - I just finished listening to an interesting Federalist Society debate between Professors Walter Dellinger and John Eastman relating to the Obama Administration's refusal to defend the Defense of Marriage Act (DOMA). Two takeaways stand out. First, in response to my question, Dellinger acknowledged that the decision could not be justified on the grounds that there
- [Wisconsin and the Meaning of the Arrest Clause](https://www.pointoforder.com/2011/03/05/wisconsin-and-the-meaning-of-the-arrest-clause/) - The Wisconsin Senate has passed a resolution that requires the majority leader to "issue an order to the sergeant at arms that he take any and all necessary steps, with or without force, and with or without the assistance of law enforcement officers by warrant or other legal process as he may deem necessary in
- [Holder, DOMA and the Duty to Defend Federal Statutes](https://www.pointoforder.com/2011/02/24/holder-doma-and-the-duty-to-defend-federal-statutes/) - Attorney General Eric Holder has notified Congress, pursuant to 28 USC 530D, that the Justice Department will not defend the constitutionality of the Defense of Marriage Act (DOMA) in two pending cases. Holder explains that while DOJ has previously defended the constitutionality of DOMA, the current cases were filed "in jurisdictions without precedent on whether sexual-orientation
- [Clemens Plays Hard(in) Ball with Congress](https://www.pointoforder.com/2011/02/14/clemens-plays-hardin-ball-with-congress/) - I know what you're thinking. How long did it take me to come up with that title? (Couple hours, tops). Anyway, as has been widely reported, Roger Clemens and his attorney, Rusty Hardin, have subpoenaed the House Committee on Oversight and Government Reform (COGR) in relation to the upcoming criminal case against Clemens for congressional
- [Could Judge Porteous Become President?](https://www.pointoforder.com/2011/02/02/could-judge-porteous-become-president/) - To return to a subject from a few weeks ago, Seth Tillman argues that the Disqualification Clause does not authorize the Senate to disqualify an impeached and removed official from serving as president. See The Originalist Who Came In From The Cold: A “New” View of the Incompatibility Clause, the Removal & Disqualification Clause, and
- [Constitutional Option Expiring?](https://www.pointoforder.com/2011/01/25/constitutional-option-expiring/) - The Hill reports that the Senate will adjourn the "magic" first legislative day tonight, thereby ending the opportunity to change Senate rules with a simple majority: "Under the so-called Constitutional option, on the first legislative day of a new Congress, senators can ask for a ruling from the presiding chair to amend the Senate rules and
- [Washington Post on Speech or Debate](https://www.pointoforder.com/2011/01/17/washington-post-on-speech-or-debate/) - The Washington Post has a front page story today on the Speech or Debate Clause, and how it has been used to block certain investigations over the past few years. The story touches on a number of criminal investigations of Members of Congress over the past few years. Of particular interest, it discusses the legal
- [I'm Not Dead . . . . I'm Just in Congress.](https://www.pointoforder.com/2011/01/06/im-not-dead-im-just-in-congress/) - In Impeachment and Assassination, Professor Josh Chafetz makes the inventive argument that impeachment, at least presidential impeachment, is best viewed as a metaphorical form of political assassination. Chafetz argues that impeachable offenses should be viewed as “assassinable” offenses, by which he means the type of offenses that warranted assassination in historical instances known to the
- [Why Is Tomorrow Different From All Other Days?](https://www.pointoforder.com/2011/01/04/why-is-tomorrow-different-from-all-other-days/) - In today’s Washington Post, Senator Tom Udall asserts that the Senate rules can be changed by a simple majority, notwithstanding Senate Rule XXII, which requires a two-thirds vote in order to bring debate to a close on a motion to amend the Senate rules. According to Udall, “[o]n the first day of the new session,
- [The Radical Implications of Rejecting the Senate's Continuity](https://www.pointoforder.com/2011/01/03/the-radical-implications-of-rejecting-the-senates-continuity/) - As discussed in my last post, the effort to repeal the Senate filibuster rule is premised on the proposition that the Senate is not a continuing body. Professor Aaron Bruhl (see “Burying the ‘Continuing Body’ Theory of the Senate”) and others contend that the Senate, like the House, is a temporary body that “dies” at
- [Is the Senate a Continuing Body?](https://www.pointoforder.com/2010/12/29/is-the-senate-a-continuing-body/) - The main page of the U.S. Senate website today explains to visitors “What Happens When a New Congress Begins?” Presumably, this informative blurb, probably written by the Senate historian, is not intended to delve into controversial and bitterly divisive topics. Yet the author asserts that “the Senate is a continuing body” which “does not have
- [IS FORMER JUDGE PORTEOUS ELIGIBLE TO SERVE IN CONGRESS?](https://www.pointoforder.com/2010/12/29/is-former-judge-porteous-eligible-to-serve-in-congress/) - Article I provides that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” It has long been held by the Senate that disqualification is not an automatic consequence of conviction and removal, but
- [Judge Porteous and Impeachment for Conduct Prior to Federal Appointment](https://www.pointoforder.com/2010/12/28/judge-porteous-and-impeachment-for-conduct-prior-to-federal-appointment/) - On December 8, the Senate voted to convict and remove from office U.S. District Judge Thomas Porteous, who became only the eighth official (all of whom have been federal judges) in history to be impeached and convicted. Porteous’s offenses stemmed from a corrupt relationship he developed while serving as a state judge before his appointment
- [Can Joe Miller Win?](https://www.pointoforder.com/2010/11/11/can-joe-miller-win/) - To recap briefly, Joe Miller successfully challenged incumbent Senator Lisa Murkowski in the 2010 Republican primary for a U.S. Senate seat from Alaska. Murkowski then launched a write-in campaign for the general election, and it appears that there were many more write-ins than votes cast for Miller (or for the Democratic nominee, who has conceded).
- [A Question of "Impartiality"](https://www.pointoforder.com/2010/11/08/a-question-of-impartiality/) - An article this morning in The Hill is entitled “Some question whether lawmaker trying Waters can be impartial.” The premise of the story is that Representative Ben Chandler (D-Ky.), one of the Democratic members of the adjudicatory panel that will be hearing the ethics case against Representative Maxine Waters (D-Ca.), may be compromised in some
- [Student Note on Speech or Debate](https://www.pointoforder.com/2010/10/03/student-note-on-speech-or-debate/) - Devotees of the Speech or Debate Clause will want to check out Jack Raffetto’s note, “Balancing the Legislative Shield: The Scope of the Speech or Debate Clause,” which appears in the Spring 2010 issue of the Catholic University Law Review. Focusing on the D.C. Circuit’s decision in In re Grand Jury Subpoenas, 571 F.3d 1200
- [Lobbying Ethics in Canada](https://www.pointoforder.com/2010/09/03/lobbying-ethics-in-canada/) - Those interested in the subject of lobbying ethics may wish to take note of the Canadian Lobbying Code of Conduct, which has been in force since 1997. Compliance with the code is monitored by the Commissioner of Lobbying, an independent officer of Parliament. In the event that the Commissioner finds a violation, she sends a
- [Eddie Bernice Johnson and the OCE Process](https://www.pointoforder.com/2010/09/01/eddie-bernice-johnson-and-the-oce-process/) - This article in the Hill raises the question of whether there will be an ethics investigation of Representative Eddie Bernice Johnson, who has “been accused of awarding thousands of dollars in college scholarships to four relatives as well as the child of a top aide over the past 5 years.” Johnson, a member of the
- [Senate Panel Holds the Privilege Against Self-Incrimination Does Not Apply to an Impeachment Trial](https://www.pointoforder.com/2010/08/31/senate-panel-holds-the-privilege-against-self-incrimination-does-not-apply-to-an-impeachment-trial/) - Yesterday the Senate panel charged with conducting the impeachment trial of federal district judge G. Thomas Porteous issued an order disposing of certain pretrial motions. Of particular note was the panel’s decision to reject Porteous’ motion to suppress his immunized testimony given before a special Fifth Circuit committee which investigates misconduct by federal judges. The
- [An Analogy that Won't Hold Water](https://www.pointoforder.com/2010/08/30/an-analogy-that-wont-hold-water/) - Before leaving the subject of the ethics case against Representative Waters, a final comment with regard to her attempt to have the charges dismissed. Her defense team based its motion to dismiss almost entirely on the claim that Waters’ conduct was “nearly identical to” that of Representative Sam Graves. I have blogged about the ethics
- [Lobbyist Fundraising and the Second Circuit](https://www.pointoforder.com/2010/08/11/lobbyist-fundraising-and-the-second-circuit/) - Perhaps the most significant aspect of the Second Circuit’s decision in Green Party of Connecticut v. Garfield, discussed in my last post, involves Connecticut’s ban on soliciting of campaign contributions by contractors and lobbyists. In contrast to the ban on direct contributions, which the court found to be a peripheral First Amendment activity subject to
- [The Second Circuit, Lobbying Regulation, and the "Appearance of Corruption"](https://www.pointoforder.com/2010/08/06/the-second-circuit-lobbying-regulation-and-the-appearance-of-corruption/) - In Green Party of Connecticut v. Garfield, decided last month, the Second Circuit considered a First Amendment challenge to Connecticut’s Campaign Finance Reform Act, a law that prohibited campaign contributions and fundraising solicitations by (1) state contractors and prospective contractors and (2) lobbyists. The law also covered certain individuals, such as family members, associated with
- [Lederman leaving Office of Legal Counsel](https://www.pointoforder.com/2010/07/21/lederman-leaving-office-of-legal-counsel/) - From Election Law Blog, news that Marty Lederman is leaving OLC to return to teaching at Georgetown Hmmm.
- [Still More on the Byrd Vacancy](https://www.pointoforder.com/2010/07/17/still-more-on-the-byrd-vacancy/) - State officials in West Virginia disagree as to when state law permits or requires a special election to fill a vacancy in the office of U.S. Senator. The Secretary of State believes that current law requires the election to be held in November 2012, while the Attorney General believes that the law permits, if not
- [West Virginia Attorney General Disagrees with Secretary of State on Byrd Vacancy](https://www.pointoforder.com/2010/07/09/west-virginia-attorney-general-disagrees-with-secretary-of-state-on-byrd-vacancy/) - The West Virginia Attorney General has issued this opinion rejecting the Secretary of State’s legal conclusion that a special election to fill the Byrd vacancy cannot be held until November 2012. The Attorney General’s reasoning is essentially the same as what I suggested in these prior posts (see here and here), namely that the
- [Recess Games](https://www.pointoforder.com/2010/07/08/recess-games/) - The Obama administration announced this week that the President will give a recess appointment to Donald Berwick to serve as administrator of the Centers for Medicare and Medicaid Services. The appointment will come during the Senate’s current eleven and a half day adjournment for the Independence Day holiday. Berwick was nominated for the
- [The Governor Weighs in on the Byrd Vacancy](https://www.pointoforder.com/2010/07/07/the-governor-weighs-in-on-the-byrd-vacancy/) - The Governor of West Virginia, apparently not entirely satisfied with the Secretary of State’s determination that the Byrd vacancy cannot be filled by a special election until November 2012, has asked the Attorney General to opine on the question of when such an election is to take place. The Governor’s letter notes that “[t]he issue
- [The West Virginia Secretary of State Refuses to Hold a Special Election in 2010](https://www.pointoforder.com/2010/06/30/the-west-virginia-secretary-of-state-refuses-to-hold-a-special-election-in-2010/) - The West Virginia Secretary of State has taken the position that the special election to replace Senator Byrd will not occur until November 2012. She relies on Robb v. Caperton, a 1994 West Virginia Supreme Court case which applied the same vacancy statute in the context of a judicial vacancy. Robb does provide
- [When Should West Virginia Hold a Special Election to Replace Senator Byrd?](https://www.pointoforder.com/2010/06/28/when-should-west-virginia-hold-a-special-election-to-replace-senator-byrd/) - As mentioned in my last post, I think that the Governor of West Virginia is likely obligated to call a special election to fill the vacancy caused by Senator Byrd’s death. But when is such an election to take place? The West Virginia statute does not directly address when the special election is to
- [Is a Special Election Required to Fill the Byrd Vacancy?](https://www.pointoforder.com/2010/06/28/is-a-special-election-required-to-fill-the-byrd-vacancy/) - Senator Robert Byrd (D-W.Va.), the longest serving Member of Congress in U.S. history, passed away today. R.I.P. The vacancy created by Byrd’s death will be filled by the Governor under § 3-10-3 of the West Virginia Code. This statute provides that if the unexpired term of certain vacant offices, including that of U.S.
- [The Tillmans on Shall and May](https://www.pointoforder.com/2010/06/27/the-tillmans-on-shall-and-may/) - Nora and Seth Tillman have published this fragment on the constitutional meaning of “shall” and “may.” They contend that in 18th Century America the word “shall” was used more often in a non-obligatory sense, ie, to indicate futurity as we would use the word “will,” than it would be today. This may be important
- [Roll Call on OCE Referral](https://www.pointoforder.com/2010/06/08/roll-call-on-oce-referral/) - Today Roll Call Columnist Simon Davidson discusses the risks that a private party faces in turning over information to the Office of Congressional Ethics. He mentions my post last week questioning whether OCE has the authority to refer evidence to the Justice Department as it did with regard to the PMA investigation. Roll
- [Northern Exposure](https://www.pointoforder.com/2010/05/30/northern-exposure/) - The Canadians seem to be having their own version of the Karl Rove/Harriet Miers/Josh Bolten controversy that arose in during the Bush administration (when these White House officials asserted immunity from having to appear before congressional committees). The Canadian government has declared only cabinet ministers, not their political staffs, can be called as witnesses
- [A Final Word on Congress and Miranda](https://www.pointoforder.com/2010/05/28/a-final-word-on-congress-and-miranda/) - From my last three posts on Miranda (see here, here and here), one can see the argument that would be made by opponents of a “public safety” exception statute. They will say that Miranda’s requirements are “constitutional” in nature; ergo any exceptions are similarly of constitutional dimension. Since it is the Court, not Congress,
- [The Dickerson Decision](https://www.pointoforder.com/2010/05/24/the-dickerson-decision/) - The majority opinion in Dickerson v. United States, 530 U.S. 428 (2000), was written by Chief Justice Rehnquist (the author of the Quarles decision). The opinion states its hold succinctly at the outset: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of
- [Miranda and the Justice Department's Duty to Defend Federal Statutes](https://www.pointoforder.com/2010/05/20/miranda-and-the-justice-departments-duty-to-defend-federal-statutes/) - In the late 1990s a bank robbery suspect named Charles Dickerson made an incriminating statement while in FBI custody. Claiming that he had not received Miranda warnings, Dickerson moved to suppress the statement at his trial. The Fourth Circuit, while finding that no warnings were given, held that the statement was nonetheless admissible under
- [Who is the House Ethics Committee Actually Investigating?](https://www.pointoforder.com/2010/04/22/who-is-the-house-ethics-committee-actually-investigating/) - The Hill reported yesterday that “[t]he House Ethics Committee has launched a formal investigation of sexual harassment allegations against Rep. Eric Massa (D-N.Y.)” One can understand how the Hill reached this conclusion. The resolution adopted by the House Ethics Committee states that the Chair and Ranking Member “have been jointly engaged in an investigation concerning
- [What's Good for the United Nations . . .](https://www.pointoforder.com/2010/04/08/whats-good-for-the-united-nations/) - In perusing the Office of Government Ethics report on Executive Order 13490 (the “Ethics Pledge”), I was struck by one waiver that the administration has granted. Under Section 2 of the E.O., all covered appointees are prohibited from participating in certain matters related to their former employers or clients. In the case of Stephen
- [A Court Challenge to the "Slaughter Solution"](https://www.pointoforder.com/2010/03/17/a-court-challenge-to-the-slaughter-solution/) - This Politico article provides a good overview of the possibility of a court challenge to healthcare reform legislation if it is enacted through the “Slaughter Solution.” The article notes that “[n]o lawyer interviewed by POLITICO thought the constitutionality of the ‘deem and pass’ approach being considered by House Democrats was an open-and-shut case either
- [The Role of Reconciliation Instructions](https://www.pointoforder.com/2010/03/13/the-role-of-reconciliation-instructions/) - For those who are trying to follow the nearly incomprehensible debate over reconciliation, it is worthwhile keeping in mind the controlling reconciliation instructions, which are contained in Sections 201 and 202 of the Concurrent Budget Resolution for Fiscal Year 2010. The exact language of these instructions turns out, it appears, to be critically important. For
- [Issa to Towns: Just the Facts, Man](https://www.pointoforder.com/2010/03/03/issa-to-towns-just-the-facts-man/) - A recent post suggested the possibility that Toyota could seek to prevent its former attorney, Dimitrios Biller, from disclosing attorney-client privileged documents to Congress in response to a subpoena. Toyota, however, apparently did not attempt to do so, and the House Committee on Oversight and Government Reform has obtained the responsive documents. Now
- [Toyota and Lobbying Disclosure](https://www.pointoforder.com/2010/02/24/toyota-and-lobbying-disclosure/) - There has been a good deal of buzz regarding this Toyota internal document, which purports to show the various “wins” of the company’s Public Policy and Governmental/Regulatory Affairs office in Washington, D.C. In particular, the media has focused the document's claim that Toyota saved $100 million by negotiating a limited recall with respect to the sudden
- [Will Toyota Sue to Prevent Congress from Getting its Attorney-Client Privileged Documents?](https://www.pointoforder.com/2010/02/19/will-toyota-sue-to-prevent-congress-from-getting-its-attorney-client-privileged-documents/) - The National Law Journal reports that the U.S. House Committee on Oversight and Government Reform has subpoenaed a former Toyota attorney named Dimitrios Biller, seeking internal documents relating to Biller’s defense of Toyota in rollover litigation from 2003 to 2007. Biller left the company on bad terms in 2007. Subsequently, he accused it of
- [Recall of U.S. Senators](https://www.pointoforder.com/2010/02/17/recall-of-u-s-senators/) - At the Volokh Conspiracy, Eugene Volokh has an interesting post about an effort in New Jersey to recall Senator Robert Menendez. Apparently the New Jersey Constitution expressly allows recalls of federal legislators, but the N.J. Secretary of State is refusing to allow a petition for such a recall on the grounds that the U.S.
- [Lobbying Down Under](https://www.pointoforder.com/2010/02/13/lobbying-down-under/) - At a time when there is much discussion of lobbying reform in the United States, it is interesting to note that Australia is also considering a new code of conduct for lobbyists (hat tip, Political Activity Law).
- [Mark Patterson's Executive Decision](https://www.pointoforder.com/2010/02/06/mark-pattersons-executive-decision/) - It’s worth taking a closer look at the "issue areas" that Mark Patterson, the former Goldman Sachs lobbyist now serving as the chief of staff to Treasury Secretary Geithner, is restricted from participating in, and asking how these prohibitions might be interpreted and enforced. Today let’s look at the issue of executive compensation. Under the
- [Treasury's Lobbying Loopholes](https://www.pointoforder.com/2010/02/02/treasurys-lobbying-loopholes/) - About a year ago I noted that it was difficult to see how Mark Patterson, the former Goldman Sachs lobbyist who now serves as chief of staff to Treasury Secretary Tim Geithner, could join the administration without a waiver of the Obama Executive Order regarding former lobbyists. It subsequently appeared that Patterson would be appointed
- [Tillman on the Perils of Legislative History](https://www.pointoforder.com/2010/01/27/tillman-on-the-perils-of-legislative-history/) - The prolific Seth Tillman has posted a new draft article, entitled "Originalism, the Annals of Congress, and the Problem of Constitutional Memory." The article can be found here. The main takeaway is the need to exercise caution in reading the Annals, which were compiled many years after the fact (something that I did not know).
- [The Filibuster and Its Discontents (Part II)](https://www.pointoforder.com/2010/01/25/the-filibuster-and-its-discontents-part-ii/) - In my last post I endeavored to show that the Constitution does not, and indeed cannot, prohibit congressional rules that allow minorities to block legislation. The Constitution explicitly grants to each House the power to determine the rules of its proceeding, and the exercise of such power inevitably involves giving minorities the power to
- [The Filibuster and Its Discontents (Part I)](https://www.pointoforder.com/2010/01/21/the-filibuster-and-its-discontents-part-i/) - Now that the Massachusetts election is over, I would like to turn my attention to an opinion piece that appeared in the New York Times last week. In that article, Thomas Geoghegan argues that the Senate filibuster violates the Constitution. In brief, his argument is (1) as it currently operates, the filibuster requires a
- [Can Senator-Elect Brown be Seated Immediately?](https://www.pointoforder.com/2010/01/19/can-senator-elect-brown-be-seated-immediately/) - It may be recalled that during the controversy over the appointment of then Senator-designate Burris, one of the points of contention was whether the Senate required a certificate of appointment signed by the Illinois Secretary of State in order to seat Burris. Senators Reid and Durbin maintained that Senate rules required such a certificate
- [Senator Kirk's Term and the Senate's Constitutional Responsibility](https://www.pointoforder.com/2010/01/19/senator-kirks-term-and-the-senates-constitutional-responsibility/) - From comments made on various blogs, as well as exchanges with the election experts cited in this Politico story, I have distilled the following questions/criticisms regarding my prior post on Senator Kirk’s term. 1. What proposition do the precedents cited in my post stand for? Both the 1939 case involving Senator Berry and
- [Can Senator Kirk Vote after January 19?](https://www.pointoforder.com/2010/01/13/can-senator-kirk-vote-after-january-19/) - Paul Kirk, the interim Senator from Massachusetts, has told reporters that he would cast a vote for health care reform, even after the January 19 special election between Democrat Martha Coakley and Republican Scott Brown. Due to the need to count military and absentee ballots, the Secretary of the Commonwealth may not certify a
- [Andy Stern and the Unbearable Lightness of Being (a Lobbyist)](https://www.pointoforder.com/2010/01/11/andy-stern-and-the-unbearable-lightness-of-being-a-lobbyist/) - Andrew Stern (no relation), president of the Service Employees International Union (SEIU), was a registered lobbyist for SEIU until February 20, 2007, when SEIU de-listed him and 15 others in a Lobbying Disclosure Report. Prior to that time, SEIU had listed Stern as a lobbyist on several issues, including health care, immigration and labor
- [Congress's Responsibilty for the Constitutionality of Healthcare Legislation](https://www.pointoforder.com/2010/01/02/congresss-responsibilty-for-the-constitutionality-of-healthcare-legislation/) - When questions arise about the constitutionality of a proposed piece of legislation, such the healthcare legislation currently pending in Congress, Members of Congress frequently deflect them by saying that any constitutional issues will be dealt with by the courts at a later time. Senator McCaskill, for example, responded to a question about the constitutionality
- [Spin City](https://www.pointoforder.com/2009/12/07/spin-city/) - There was a minor flap last week when the White House claimed that this Congressional Research Service report (entitled "Lobbying the Executive Branch: Current Practices and Options for Change") vindicated the administration’s lobbying policies. The White House claim was reported rather uncritically by the media, including Kenneth Vogel of Politico. In an article entitled
- [House Statement of Disbursements Available Online](https://www.pointoforder.com/2009/11/30/house-statement-of-disbursements-available-online/) - The House of Representatives Quarterly Statement of Disbursements is available online today (hat tip: Sunlight Foundation). This report has been published in hard copy for many years, but this is the first time that it has been made available over the internet, pursuant to a June 3, 2009 directive from Speaker Pelosi.
- [Leaked Ethics Report Now Available](https://www.pointoforder.com/2009/11/29/leaked-ethics-report-now-available/) - For those who would like to read the aforementioned leaked House Ethics report, it is now available here. No thanks to the Washington Post.
- [Who Would You Have to Kill to Get an Unqualified Admonition?](https://www.pointoforder.com/2009/11/20/who-would-you-have-to-kill-to-get-an-unqualified-admonition/) - The Senate Ethics Committee has issued a letter of "qualified admonition" to Senator Roland Burris regarding sworn and unsworn statements made by the Senator regarding the circumstances of his appointment to the Senate seat vacated by Barack Obama. Burris, of course, was appointed by then-Governor Rod Blagojevich, who subsequently was impeached and indicted for
- [The Post's Spin on Leaked Ethics Report](https://www.pointoforder.com/2009/11/18/the-posts-spin-on-leaked-ethics-report/) - When the Washington Post published an expose a few weeks ago regarding a House Ethics Committee report that was inadvertently released by a committee employee, I wondered why the Post did not put the actual report on its website so that readers could understand the full context of the information the Post was reporting.
- [Conflict over Conflicts](https://www.pointoforder.com/2009/11/16/conflict-over-conflicts/) - The newly formed Office of Congressional Ethics has run into a bit of trouble as a result of one of the first matters that it has referred to House Ethics Committee. In a lengthy report, the Ethics Committee rejected and sharply criticized OCE’s findings with regard to an investigation of Representative Sam Graves. OCE
- [New York 23rd Looking to Extend its Fifteen Minutes of Fame](https://www.pointoforder.com/2009/11/12/new-york-23rd-looking-to-extend-its-fifteen-minutes-of-fame/) - According to The Hill newspaper, the special election race in New York’s 23rd congressional district is not quite over, as there remains a (remote) possibility that Conservative Party candidate Doug Hoffman could wind up with more votes than Democrat Bill Owens, who was seated in the House last week. A state election official
- [Is the Pay Czar Unconstitutional?](https://www.pointoforder.com/2009/10/31/is-the-pay-czar-unconstitutional/) - Professor (and former judge) Michael McConnell has written this Wall Street Journal op-ed arguing that Kenneth Feinberg, the "pay czar," is an officer of the United States and therefore subject to the Appointments Clause. Under the Appointments Clause, all officers must be appointed by the President, with the advice and consent of the Senate,
- [Could the Nobel Peace Prize Violate the Illegal Gratuities Statute?](https://www.pointoforder.com/2009/10/28/could-the-nobel-peace-prize-violate-the-illegal-gratuities-statute/) - At the Volokh Conspiracy, David Kopel discusses whether President Obama needs congressional consent to accept the Nobel Peace Prize, including a check in the amount of more than $1 million (which Obama has said will be donated to charity). Kopel concludes that the matter is governed by the Foreign Gifts and Decorations Act, 5
- [Yes We Kant](https://www.pointoforder.com/2009/10/23/yes-we-kant/) - Yesterday Norm Eisen, the White House Special Counsel for Ethics and Government Reform, addressed the 2009 Administrative Law Conference sponsored by the ABA Section on Administrative Law and Regulatory Practice. Eisen gave an energetic and engaging defense of the Obama administration’s ethics policies, particularly as regards to the activities of registered lobbyists, but I
- [Lobbying Related Programs Today](https://www.pointoforder.com/2009/10/22/lobbying-related-programs-today/) - The 2009 Administrative Law Conference starts today at the Washington Convention Center, and there are several programs of interest to those who follow lobbying-related legal issues. First, at 10:45 am today is a panel on "Lobbying in the Obama Administration: What Practitioners Need to Know." This panel, which I helped organize, will consist of
- [Lobbying and the Honest Services Statute](https://www.pointoforder.com/2009/10/18/lobbying-and-the-honest-services-statute/) - The trial of Kevin Ring, a former lobbying associate of Jack Abramoff, ended in a mistrial this week when the jury was unable to reach a verdict. Ring was charged with conspiring with Abramoff and others to deprive the United States and its citizens of the "honest services" of certain executive and legislative officials
- [Obama's Czars and the Appointments Clause](https://www.pointoforder.com/2009/10/12/obamas-czars-and-the-appointments-clause/) - Gregory Craig, counsel to the President, sent a letter to Senator Feingold last week regarding the various "czars" employed by the Obama administration. Among other things, Craig responds to concerns raised by Senator Collins (my former boss) that some of the positions may violate the Appointments Clause, which provides that the President "shall nominate,
- [Tillman and Bailey on Federalist No. 77](https://www.pointoforder.com/2009/10/07/tillman-and-bailey-on-federalist-no-77/) - Seth Barrett Tillman has written a new article entitled "The Puzzle of Hamilton’s Federalist No. 77" [forthcoming 2010 in the Harvard Journal of Law and Public Policy], in which he takes a fresh look at Hamilton’s statement that "[t]he consent of [the Senate] is necessary to displace [an officer] as well as to appoint." This
- [Tomorrow's Just Your Future Yesterday](https://www.pointoforder.com/2009/10/05/tomorrows-just-your-future-yesterday/) - In the course of his most recent ruling on Speech or Debate, the Magistrate addressed whether certain specific pieces of evidence protected by the privilege and would therefore be inadmissible in Renzi’s trial. The Magistrate, it may be recalled, has relied heavily on the proposition that discussions of future legislative acts are not protected
- [The Renzi Wiretap and FBI Interviews](https://www.pointoforder.com/2009/10/02/the-renzi-wiretap-and-fbi-interviews/) - Last month the Magistrate Judge issued a ruling recommending denial of Renzi’s motions to suppress certain evidence, including the results of wiretaps and FBI interviews of Renzi’s legislative aides, based on the Speech or Debate Clause. As I have suggested before, the wiretap ruling was foreshadowed by the Magistrate’s previous ruling on the Kastigar
- [All About Reconciliation](https://www.pointoforder.com/2009/09/30/all-about-reconciliation/) - My friend Chris Rice has a blog called "Reconcilers," which is about bringing God’s peace to a broken world (he could explain it better than I can). Here in DC, though, where we are more in the world-breaking business, "reconciliation" is definitely not about bringing people closer to God or to each other. As
- [Was Senator-Designate Kirk Lawfully Appointed to Fill the Massachusetts Vacancy?](https://www.pointoforder.com/2009/09/24/was-senator-designate-kirk-lawfully-appointed-to-fill-the-massachusetts-vacancy/) - The Massachusetts legislature has now passed a law empowering the Governor to appoint a temporary replacement for the vacancy created by the death of Senator Ted Kennedy. As I indicated in a prior post, the Constitution permits it to do this, notwithstanding the controversy over the fact that it had previously stripped the (then-Republican)
- [Congress Versus Bank of America's Attorney-Client Privilege](https://www.pointoforder.com/2009/09/23/congress-versus-bank-of-americas-attorney-client-privilege/) - The House Committee on Oversight and Government Reform has been conducting an investigation of Bank of America’s acquisition of Merrill Lynch, including the question of whether BOA learned information prior to the closing of that transaction which fell within the "material adverse change" provision of the merger agreement and whether BOA was required to
- [New Treasury Guidelines Prohibit Congressional Lobbying on TARP](https://www.pointoforder.com/2009/09/18/new-treasury-guidelines-prohibit-congressional-lobbying-on-tarp/) - The Treasury Department has released new guidelines on TARP "lobbying." The term "lobbying" is in quotes because the guidelines, like those promulgated with regard to the award of stimulus funds, limit communications from outside parties, regardless of whether they happen to be registered lobbyists. In brief, the guidelines (1) allow unrestricted oral communications at
- [More on the Wilson Matter](https://www.pointoforder.com/2009/09/15/more-on-the-wilson-matter/) - A few more observations on the Joe Wilson matter. A Fox News reporter this morning commented that Wilson’s conduct violated section 370 of the House Rules and Manual. This is true, sort of. Section 370 is actually the provision of Jefferson’s Manual of Parliamentary Practice which states "[i]n Parliament, to speak irreverently or
- [Scolding Joe Wilson](https://www.pointoforder.com/2009/09/14/scolding-joe-wilson/) - The Hill newspaper reports that Speaker Nancy Pelosi "has agreed the House should vote . . . on scolding Rep. Joe Wilson (R-S.C.) for his outburst during President Barack Obama's speech unless he apologies on the floor of the House." The "scolding" will apparently take the form of a "resolution of disapproval" that would be
- [D.C. Circuit Rejects Constitutional Challenge to Lobbying Disclosure](https://www.pointoforder.com/2009/09/10/d-c-circuit-rejects-constitutional-challenge-to-lobbying-disclosure/) - The D.C. Circuit ruled this week in National Association of Manufacturers v. Taylor, rejecting NAM’s challenge to the constitutionality of section 207 of the Honest Leadership and Open Government Act (HLOGA), which enhanced a previous disclosure requirement of the Lobbying Disclosure Act (LDA) (hat tip: Election Law Blog). Under this provision, disclosure is required
- [Is Vicki Kennedy Unconstitutional?](https://www.pointoforder.com/2009/09/01/is-vicki-kennedy-unconstitutional/) - As has been widely discussed in the last few weeks, in 2004 Massachusetts changed its law providing for the filling of a senatorial vacancy. In order to prevent Republican Governor Mitt Romney from filling John Kerry’s Senate seat (in the event that the latter won the 2004 presidential election), the Democratic legislature repealed the
- [Fourth Edition of The Lobbying Manual](https://www.pointoforder.com/2009/08/31/fourth-edition-of-the-lobbying-manual/) - The Fourth Edition of The Lobbying Manual, the ABA’s guide to the federal law of lobbying, is now available for ordering here. The Lobbying Manual is an invaluable resource for lawyers and lobbyists who need to keep track of the large and growing body of law that governs federal lobbying. It is edited by
- [Edward Kennedy, RIP](https://www.pointoforder.com/2009/08/26/edward-kennedy-rip/) - From Riddick’s Senate Procedure FLOWERS IN SENATE CHAMBER Resolution Adopted by Senate in 1905 Resolved, That until further orders the Sergeant at Arms is instructed not to permit flowers to be brought into the Senate Chamber. On September 15, 1983, the Senate adopted the following resolution on this subject: Resolved, That notwithstanding the resolution of
- [The CIA OIG Report on Enhanced Interrogations and Congressional Briefings](https://www.pointoforder.com/2009/08/25/the-cia-oig-report-on-enhanced-interrogations-and-congressional-briefings/) - The May 7, 2004 CIA Inspector General Report on enhanced interrogation techniques (EITs) and related activities, released yesterday, contains the following references to congressional briefings (on pages 23-24 of the report): "In the fall of 2002, the Agency briefed the leadership of the Congressional Intelligence Oversight Committees on the use of both standard
- [Senate Ethics Clears Conrad and Dodd](https://www.pointoforder.com/2009/08/09/senate-ethics-clears-conrad-and-dodd/) - The Senate Ethics Committee has issued letters to Senators Kent Conrad and Chris Dodd dismissing a complaint filed by Citizens for Responsibility and Ethics in Washington (CREW) regarding mortgages the Senators obtained through the Countrywide Financial "VIP" program. The committee found no "substantial credible evidence" that the mortgages violated Senate ethics rules, but nonetheless
- [TARP and Stimulus Lobbying by Members of Congress](https://www.pointoforder.com/2009/08/07/tarp-and-stimulus-lobbying-by-members-of-congress/) - Yesterday the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) released a report regarding efforts to prevent "undue external influence" over the TARP program. On page 13, the report discusses the yet-to-be-issued Treasury rules regarding lobbying on TARP matters: At the time of our study, Treasury was still in the process of
- [Constitutionality of Revolving Door Statute Called into Question](https://www.pointoforder.com/2009/08/06/constitutionality-of-revolving-door-statute-called-into-question/) - A federal judge has preliminarily enjoined enforcement of the Ohio revolving door statute against a former state legislator who sought to lobby his former colleagues on an uncompensated basis. (hat tip—Election Law Blog). In Brinkman v. Budish, No. 1:09-cv-326 (S.D. Ohio Aug. 4, 2009), the court found a substantial likelihood that the law, as
- [Washington Post Seeking Access to Jurors in William Jefferson Case](https://www.pointoforder.com/2009/08/06/washington-post-seeking-access-to-jurors-in-william-jefferson-case/) - The Washington Post reporter has asked Judge Ellis to provide him a list of jurors who served on the William Jefferson case so that he can attempt to contact them for interviews. According to this letter, the reporter has obtained such information in the past on "high profile cases" from the clerk’s office.
- [Renzi and Feeney](https://www.pointoforder.com/2009/08/02/renzi-and-feeney/) - The Government has filed its opposition to former Congressman Renzi’s appeal of the Magistrate Judge’s Speech or Debate rulings. Its brief argues that "[t]he crux of the honest services case against Renzi . . . are his acts of receiving a personal benefit for a decision while purporting to be exercising independent discretion, as
- [More on Feeney and the Speech or Debate Clause](https://www.pointoforder.com/2009/07/29/more-on-feeney-and-the-speech-or-debate-clause/) - As suggested in my last post, Judge Kavanaugh’s concurrence in In re Grand Jury (Feeney) rejects the Ray/Rose test as incoherent and unworkable. He argues that it makes no sense to condition the Speech or Debate protection given to a Member’s communication with the Ethics Committee on the subject matter of the underlying proceeding. He
- [D.C. Circuit Issues Speech or Debate Ruling in the Feeney case](https://www.pointoforder.com/2009/07/22/d-c-circuit-issues-speech-or-debate-ruling-in-the-feeney-case/) - The D.C. Circuit issued a significant Speech or Debate ruling last month in a case involving former Congressman Tom Feeney. Feeney had been investigated by the House Ethics Committee for accepting a privately financed trip which allegedly violated House Rules because it was paid for by a lobbyist and/or was "substantially recreational in nature."
- [Mort Rosenberg on Congressional Investigations](https://www.pointoforder.com/2009/07/19/mort-rosenberg-on-congressional-investigations/) - Last Thursday, the Constitution Project released a handbook on congressional oversight and investigations authored by the incomparable Mort Rosenberg, who spent more than 35 years at the Congressional Research Service not only learning everything there is to know about congressional oversight of the executive branch but participating in most of the major executive-legislative disputes
- [Renzi Magistrate Makes Speech or Debate Even More Confusing](https://www.pointoforder.com/2009/06/24/renzi-magistrate-makes-speech-or-debate-even-more-confusing/) - The Magistrate Judge in the Renzi case has issued this report and recommendation on Renzi’s claim that the indictment violated the Speech or Debate Clause. To recap, (now former) Congressman Renzi is alleged to have told landowners who wished to obtain federal land exchange legislation that he would sponsor the bill only if
- [Lobbyist's Invitation Raises Ethical Issue](https://www.pointoforder.com/2009/06/18/lobbyists-invitation-raises-ethical-issue/) - Via Election Law Blog and Political Activity Law comes this story from The Washington Times: Senator Diane Feinstein cancelled a fundraiser after the lobbyist hosting it sent out an invitation using the Senator’s committee assignments as the theme for the event’s meal: Washington lobbyist Heather Podesta mentioned the intelligence committee in an e-mail invitation attached
- [Secretary and Clerk Close Lobbying Loophole](https://www.pointoforder.com/2009/06/16/secretary-and-clerk-close-lobbying-loophole/) - The Secretary of the Senate and Clerk of the House have just issued a "clarification" that closes the "one free lobbying contact per quarter" loophole that I have discussed here, here and here in the last few days. Under the clarified guidance, a registered lobbyist cannot be de-listed merely because that "individual did not in the
- [Secretary and Clerk Acknowledge Review of Lobbying Loophole](https://www.pointoforder.com/2009/06/16/secretary-and-clerk-acknowledge-review-of-lobbying-loophole/) - From The Hill: "These new questions have prompted us to review the guidance to ensure that there are no inadvertent loopholes," said Beth Provenzano, deputy chief of staff for the Senate secretary’s office. She added that the guidance was thoroughly vetted with Senate and House institutional attorneys before it was issued. "We are actively reviewing
- [Why did the President Cross the Road?](https://www.pointoforder.com/2009/06/15/why-did-the-president-cross-the-road/) - Danielle Brian of the Project on Government Oversight has posted some thoughts regarding the President’s removal of the Inspector General for the Corporation for National and Community Service. While Brian notes various troubling aspects of this matter (for more details see here), she contends that the removal complies with the letter, if not the
- [Loophole Closing?](https://www.pointoforder.com/2009/06/14/loophole-closing/) - Via Election Law Blog, Ken Gross notes that the Clerk and Secretary are reconsidering the guidance that would allow de-listing of a lobbyist who engages in no more than one lobbying contact per quarter. This comports with my information. I suspect that there will be additional guidance in the near future that closes this loophole.
- [More on Lobbyist De-listing](https://www.pointoforder.com/2009/06/12/more-on-lobbyist-de-listing/) - Covington’s Political Law Update (hat tip again to Rick Hasen) also discusses the "de-listing" of lobbyist issue, stating as follows: "Many in Washington had interpreted the structure of the statute to mean that the 3-month period applies to the 20% time threshold, but not to the two-or-more-contacts requirement. The Clerk and Secretary apparently read this
- [Lobbying Loophole?](https://www.pointoforder.com/2009/06/12/lobbying-loophole/) - The Clerk of the House and Secretary of the Senate last week released new guidance on the requirements of the Lobbying Disclosure Act. Among other things, this guidance addressed when a registrant may "terminate" a lobbyist (i.e., remove an individual from the list of persons who act as lobbyists on that registrant’s reports). This
- [Did Republicans Violate HPSCI Rules?  Does it Matter?](https://www.pointoforder.com/2009/06/07/did-republicans-violate-hpsci-rules-does-it-matter/) - Democrats on the House Permanent Select Committee on Intelligence have alleged that Republican members violated committee rules by speaking with The Hill newspaper following a classified briefing by the CIA on interrogation methods. Specifically, Representative Kline (R-Minn.) was quoted by the paper as follows: "The hearing did address the enhanced interrogation techniques that have
- [Will UK Scandal Impact Congressional Transparency?](https://www.pointoforder.com/2009/06/04/will-uk-scandal-impact-congressional-transparency/) - Although it has not received a great deal of attention here, a major scandal has rocked the British Parliament in recent weeks. The scandal has its roots in a request several years ago by a free-lance journalist named Heather Brooke, who used the newly enacted British Freedom of Information Act to ask for records
- [CREW to Me- Don't Confuse Us with the Facts](https://www.pointoforder.com/2009/06/03/crew-to-me-dont-confuse-us-with-the-facts/) - The organization Citizens for Responsibility and Ethics in Washington (CREW) put out this news release regarding a grand jury subpoena received by Representative Visclosky. Entitled "WITH VISCLOSKY’S SUBPOENA, CREW ASKS -- WILL HOUSE COUNSEL ONCE AGAIN STYMIE A CRIMINAL INVESTIGATION INTO A MEMBER OF CONGRESS?," the essence of CREW’s point seems to be that
- [Stimulus "Lobbying" by Members of Congress](https://www.pointoforder.com/2009/06/02/stimulus-lobbying-by-members-of-congress/) - As mentioned in my last post, it is possible that the new guidelines on stimulus lobbying will apply to Members of Congress and thus prohibit agency officials, during the period that competitive grant applications are being evaluated, from engaging in oral communications with Members and their staffs about the applications. (This thought was suggested
- [Changes to Obama Policy on Stimulus Lobbying](https://www.pointoforder.com/2009/06/01/changes-to-obama-policy-on-stimulus-lobbying/) - John Wonderlich of the Sunlight Foundation posts regarding potential changes to the Obama policy on stimulus lobbying. There are two basic aspects to these changes, as announced by WH special counsel Norm Eisen on May 29, 2009. First, the administration proposes to extend the ban on oral communications regarding certain stimulus matters "to contacts
- [How the Senate Ethics Committee (and Everybody Else) Got Access to the Burris Transcript](https://www.pointoforder.com/2009/05/29/how-the-senate-ethics-committee-and-everybody-else-got-access-to-the-burris-transcript/) - Since Watergate, congressional committees have from time to time sought access to confidential federal law enforcement information protected by either the rules of grand jury secrecy or by statutory limitations on disclosure of intercepted wire or oral communications. In some cases the committee will apply directly to the court. For example, during the impeachment proceedings
- [A Response to "Congress's Torture Bubble"](https://www.pointoforder.com/2009/05/15/a-response-to-congresss-torture-bubble/) - Vicki Divoll, former counsel to the CIA’s Counterterrorist Center and the Senate Select Committee on Intelligence, wrote an op-ed for the New York Times this week entitled "Congress’s Torture Bubble," in which she discusses limitations on the interrogation briefings provided to Congress from September 2002 onward. Although Divoll covers many of the legal issues
- [Restricted Intelligence Briefings and the Intelligence Authorization Act of 2009](https://www.pointoforder.com/2009/05/12/restricted-intelligence-briefings-and-the-intelligence-authorization-act-of-2009/) - My attention has been called to Section 502 of the Intelligence Authorization Act of 2009 (H.R. 5959), which passed the House last year (but never became law). This provision would have amended the National Security Act of 1947 to provide a procedure governing situations where the President decides to disclose certain highly sensitive intelligence
- [What the Presence of Congressional Staff Tells Us About the Interrogation Briefings](https://www.pointoforder.com/2009/05/10/what-the-presence-of-congressional-staff-tells-us-about-the-interrogation-briefings/) - Documents released by the CIA in the past few days indicate that congressional staff attended the key briefings given Congress with regard to "enhanced interrogation techniques" used on terrorist detainees. In particular, a September 4, 2002 briefing to Porter Goss and Nancy Pelosi, then the Chairman and Ranking Member of the House Permanent Select
- [Hill Report on the Renzi Case](https://www.pointoforder.com/2009/05/06/hill-report-on-the-renzi-case/) - The Hill reports that the judge (presumably referring to Magistrate Velasco) in the Renzi case has scheduled a special hearing to determine whether prosecutors improperly listened to privileged attorney-client communications captured during the wiretap of Renzi’s cell phone. As the article notes, this is a separate matter from the Speech or Debate issues regarding
- [A Strange Analogy](https://www.pointoforder.com/2009/04/28/a-strange-analogy/) - As I have discussed before, the Obama Administration has imposed, by executive order, certain rules that apply only to lobbyists registered under the Lobbying Disclosure Act. One of these rules prohibits executive branch officials from meeting with lobbyists regarding specific projects funded by the stimulus bill. The principal author of these policies is
- [Renzi District Court: Speech or Debate Clause Does not Create "Super Citizens"](https://www.pointoforder.com/2009/04/27/renzi-district-court-speech-or-debate-clause-does-not-create-super-citizens/) - In an order issued earlier this month, U.S. District Judge David Bury of the U.S. District Court of Arizona rejected some of the key Speech or Debate claims made by former Congressman Rick Renzi. This ruling means that Renzi will almost certainly be unsuccessful, at the district court level, in his attempts to suppress
- [More on Bybee Impeachment](https://www.pointoforder.com/2009/04/24/more-on-bybee-impeachment/) - The National Law Journal has an interview today with Professor Michael Gerhardt, author of The Federal Impeachment Process, regarding the possibility of an impeachment of Judge Jay Bybee. Gerhardt’s responses are appropriately tentative, given the uncharted territory involved: NLJ: May a judge be impeached for conduct committed before becoming a judge? MG: You have
- [Could Congress Impeach Judge Bybee?](https://www.pointoforder.com/2009/04/20/could-congress-impeach-judge-bybee/) - Sunday’s New York Times editorializes that Congress should impeach Judge Jay Bybee, who now sits on the U.S. Court of Appeals for the Ninth Circuit, for actions he took in his former position as head of the Office of Legal Counsel. Specifically, the Times argues that OLC memos authored by Bybee and others regarding
- [What Holder Did on DC Voting Rights](https://www.pointoforder.com/2009/04/01/what-holder-did-on-dc-voting-rights/) - In February I wrote to suggest that the DC Voting Rights Act poses a significant challenge to the view expressed by many regarding the need to "de-politicize" the Justice Department and the Office of Legal Counsel in particular. The reason is that this view squarely conflicts with the political imperative of supporting the Act, which is,
- [Will the Minnesota Courts "Report" to the Senate on the Coleman/Franken Election?](https://www.pointoforder.com/2009/03/27/will-the-minnesota-courts-report-to-the-senate-on-the-colemanfranken-election/) - Eric Black at MinnPost (hat tip, Rick Hasen’s Election Law Blog) suggests that the three-judge panel hearing the Coleman/Franken election contest might, after resolving the question of which candidate received the greater number of lawful votes, file a separate report with the Senate on Coleman’s contention regarding the use of different standards for counting
- [Unintentionally Revealing Quote of the Day](https://www.pointoforder.com/2009/03/24/unintentionally-revealing-quote-of-the-day/) - The first line in an article from The Hill on the Citizens United case: "The Supreme Court on Tuesday heard arguments in a case that could further erode the government's control over electioneering communications in the days leading up to elections." First they came for the government’s right to ban advertisements critical of Members of
- [AIG Executives, Dodd Donations and the Connecticut Legislative Hearing](https://www.pointoforder.com/2009/03/22/aig-executives-dodd-donations-and-the-connecticut-legislative-hearing/) - What do Joseph Rooney, Chris Phole, Steven Pike, Greg Ruffa, Leonid Shekhtman, Christian Todd, Joseph Cassano, Steven Wagar, Doug Poling, and Jonathan Liebergall have in common? Well, first, they are all AIG executives who received bonuses that are now the subject of more or less universal outrage. Second, they have all been subpoenaed to
- [Whats Blumenthal Got To Do With It?](https://www.pointoforder.com/2009/03/21/whats-blumenthal-got-to-do-with-it/) - According to a press release yesterday entitled "Bank Committee Chairs, Attorney General Issue Subpoenas for A.I.G. Employees": "State Senator Bob Duff (D-Norwalk) and Representative Ryan Barry (D-Manchester), co-chairs of the General Assembly’s Banks Committee, with Attorney General Richard Blumenthal today issued subpoenas commanding several A.I.G. employees, including CEO Edward M. Liddy, to appear at
- [The Constitutionality of the ELECT Act](https://www.pointoforder.com/2009/03/14/the-constitutionality-of-the-elect-act/) - As an alternative to the constitutional amendment proposed by Senator Feingold (which would eliminate temporary appointment of Senators to fill vacancies), Congressman Aaron Schock of Illinois has proposed H.R. 899, the Ethical and Legal Elections for Congressional Transitions (or ELECT Act), which would require that special elections to fill senatorial vacancies be held within
- [Obama's First Signing Statement and the Grassley Rider](https://www.pointoforder.com/2009/03/13/obamas-first-signing-statement-and-the-grassley-rider/) - President Obama has issued his first signing statement with regard to the Omnibus Appropriations Act for FY2009. Professor Eric Posner, at the Volokh Conspiracy, observes that Obama’s signing statement contains many of the "same old Reagan/Bush/Clinton/Bush theories" about executive power and prerogatives. Professor Peter Strauss, on the other hand, responds that Obama’s signing statement was
- [Minnesota Supreme Court Rebuffs Franken](https://www.pointoforder.com/2009/03/08/minnesota-supreme-court-rebuffs-franken/) - The Minnesota Supreme Court has rejected Al Franken’s petition to direct the Governor and Secretary of State to issue an election certificate prior to resolution of the election contest for U.S. Senate. First, the court found that "[t]he plain language of [the Minnesota statute] provides that no election certificate can be issued in this
- [Renzi Making Progress on Speech or Debate?](https://www.pointoforder.com/2009/03/06/renzi-making-progress-on-speech-or-debate/) - The Renzi case involves, broadly speaking, three distinct types of Speech or Debate issues. The first involves the question of whether the government violated the Speech or Debate Clause when it wiretapped Renzi’s cell phone. The Magistrate appears to have largely rejected that theory in an order issued several weeks ago. The
- [Burris's Options if a Special Election is Called](https://www.pointoforder.com/2009/03/02/burriss-options-if-a-special-election-is-called/) - Senator Burris, through his attorney, has indicated that he believes it would be illegal for the Illinois legislature to change the date of the special election to fill the remainder of the Senate term. It is also apparent that he is willing to mount a vigorous legal challenge. If Illinois enacts a
- [Can the Illinois Legislature Change the Date of the Special Election to Replace Senator Burris?](https://www.pointoforder.com/2009/02/28/can-the-illinois-legislature-change-the-date-of-the-special-election-to-replace-senator-burris/) - As noted in the previous post, Lisa Madigan, the Attorney General of Illinois, issued this opinion dated February 25, 2009 regarding the proposal to set a date for an earlier special election to fill the vacant Senate seat of Barack Obama, the seat currently filled on a temporary basis by Roland Burris. She concludes that
- [When Does Senator Burris's Term End?](https://www.pointoforder.com/2009/02/28/when-does-senator-burriss-term-end/) - Lisa Madigan, the Attorney General of Illinois, has issued this opinion regarding the proposal to set a date for an earlier special election to fill the vacant Senate seat of Barack Obama, the seat currently filled on a temporary basis by Roland Burris. (Hat tip to Rick Hasen’s Election Law Blog and this post on
- [What Would Johnsen Do On the DC Voting Rights Act?](https://www.pointoforder.com/2009/02/22/what-would-johnsen-do-on-the-dc-voting-rights-act/) - Dawn Johnsen, the President’s nominee to head the Office of Legal Counsel, has been highly critical of OLC’s performance during the last administration. For example, she has accused John Yoo of "devis[ing] bogus constitutional arguments for outlandishly expansive presidential power" and has characterized Yoo’s defense of his own legal reasoning as "not merely false, but
- [Jefferson's Cert Petition on Speech or Debate](https://www.pointoforder.com/2009/02/20/jeffersons-cert-petition-on-speech-or-debate/) - Former Congressman William Jefferson is seeking a writ of certiorari on the question of "whether the indictment of a Member of Congress, although facially valid, should be dismissed when evidence privileged under the Speech or Debate Clause was used in the grand jury to obtain the indictment." Jefferson contends that the Fourth Circuit erred
- [What to Do About Senator Burris?](https://www.pointoforder.com/2009/02/17/what-to-do-about-senator-burris/) - Roland Burris, the junior Senator from Illinois, has a problem. Actually, he has many problems. After being appointed to the U.S. Senate by then-Governor Rod Blagojevich, Burris testified about the circumstances of his appointment before the Illinois legislature, which was considering Blagojevich’s impeachment for, among other things, attempting to sell that very same Senate seat.
- [Renzi Loses a Round on Speech or Debate](https://www.pointoforder.com/2009/02/15/renzi-loses-a-round-on-speech-or-debate/) - On Feb. 13, the Magistrate Judge in the Renzi case issued a significant order denying Renzi’s motion to (a) hold a Kastigar-type hearing to determine whether the Government used protected Speech or Debate material during the course of Renzi’s prosecution and (b) disqualify the prosecution team because it has been exposed to such protected
- [More on Section 3 of the Ethics EO](https://www.pointoforder.com/2009/02/13/more-on-section-3-of-the-ethics-eo/) - Laura Rozen at Foreign Policy has an interesting article about the impact of the Ethics Executive Order on individuals who have lobbied for public interest groups. It highlights the arbitrary and unfair impact of Section 3, which applies only to those registered under the Lobbying Disclosure Act. As one source quoted in the article notes:
- [Senator Gregg's Recusal](https://www.pointoforder.com/2009/02/11/senator-greggs-recusal/) - Senator Judd Gregg (R-NH), nominated by President Obama to be Secretary of Commerce, has announced that he will not be voting on the stimulus bill or other legislation while his nomination is pending. This decision has been criticized, as the linked article suggests: "Gregg's decision to recuse himself from voting is bound to raise
- [It Depends on the Meaning of the Word "Specific"](https://www.pointoforder.com/2009/02/06/it-depends-on-the-meaning-of-the-word-specific/) - Section 3 of the Ethics Executive Order would appear to establish a broad ban on former lobbyists participating in any "specific issue area" on which they lobbied during the two years before being appointed to the Obama Administration. The Lobbying Disclosure Act, 2 U.S.C. §1604(b)(2)(A), requires that lobbying reports contain "a list of the specific
- [Section 2 of the Ethics Executive Order](https://www.pointoforder.com/2009/02/05/section-2-of-the-ethics-executive-order/) - Section 2 of the Ethics Executive Order requires all appointees of the Obama Administration, not merely those who were former lobbyists, to execute the following pledge: "I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and
- [Rove Seeks Legal Advice of Noted Constitutional Scholar](https://www.pointoforder.com/2009/01/29/rove-seeks-legal-advice-of-noted-constitutional-scholar/) - The House Judiciary Committee has subpoenaed Karl Rove to appear and testify at a hearing on Monday, February 2. Rove’s attorney has responded by forwarding the subpoena to the Obama White House and asking, in essence, whether President Obama agrees that Rove should continue to abide by former President Bush’s instruction not to appear.
- [Potential Treasury Chief of Staff and the "Specific Issue" Prohibition](https://www.pointoforder.com/2009/01/27/potential-treasury-chief-of-staff-and-the-specific-issue-prohibition/) - ABC News reports that Mark Patterson, a former lobbyist for Goldman Sachs, is in line to become chief of staff to incoming Treasury Secretary Tim Geithner. The article does not say whether the Obama Administration is considering a waiver of the Ethics E.O. for Patterson. Would Patterson be able to take the chief
- [Roll Call Report on Ethics Executive Order](https://www.pointoforder.com/2009/01/26/roll-call-report-on-ethics-executive-order/) - Roll Call offers this report on the reaction of Washington lobbyists to the new E.O. on ethics. It makes several interesting points. First, it notes that the E.O. is viewed as a virtual ban (absent a waiver) on hiring lobbyists by the new Administration. Second, it notes that some lobbyists are looking for ways
- [Obama's Executive Order on Ethics- A Journey Through Section 3](https://www.pointoforder.com/2009/01/25/obamas-executive-order-on-ethics-a-journey-through-section-3/) - Today we will commence a review of the Obama Executive Order on Ethics, a subject that I suspect will be much discussed over the coming months and years. We will focus first on the provisions applicable to incoming lobbyists. Although the E.O. is not limited to lobbyists, its application to them is particularly draconian.
- [More Fun with Certificates of Election](https://www.pointoforder.com/2009/01/16/more-fun-with-certificates-of-election/) - Al Franken has petitioned the Minnesota Supreme Court for an order directing the Governor and Secretary of State to prepare and countersign a certificate of election and deliver the same to the President of the United States Senate. The Governor and the Secretary have refused; they contend that, under Minnesota law, issuance of a
- [Is the Secretary's Signature Necessary on the Credentials of a Senator Designate?](https://www.pointoforder.com/2009/01/10/is-the-secretarys-signature-necessary-on-the-credentials-of-a-senator-designate/) - Over at Concurring Opinions Brian Kalt is kicking himself for taking Senators Reid and Durbin at their word when they claimed that Senate rules require a Secretary of State to sign the credentials of a Senator Designate (a Senator who has been appointed). As the Illinois Supreme Court pointed out in its opinion yesterday,
- [State of Confusion](https://www.pointoforder.com/2009/01/09/state-of-confusion/) - Illinois Secretary of State Jesse White explains the legalities of his refusal to sign the certification of Roland Burris’s appointment to the U.S. Senate: "My signature is not necessarily required for the Senate to place the gentleman in the seat," White said Tuesday during a radio interview. "It carries a lot of weight, but my
- [A Summary of the Burris Commentary and Issues](https://www.pointoforder.com/2009/01/08/a-summary-of-the-burris-commentary-and-issues/) - The dispute over the appointment of Roland Burris has drawn commentary from a number of legal scholars. Akil Amar, Josh Chafetz and Larry Tribe have expressed the view that the Senate may properly refuse to seat him, as have, somewhat more tentatively, Jack Balkin and Mark Tushnet. Eugene Volokh, Brian Kalt, Michael Rappaport, Sandy Levinson,
- [Is Hillary Clinton Unconstitutional?](https://www.pointoforder.com/2009/01/03/is-hillary-clinton-unconstitutional/) - On Friday, December 19, 2008, the President signed into law S.J. Res. 46, which provides "[t]he compensation and other emoluments attached to the Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has
- [Can the Senate Constitutionally Refuse to Seat Roland Burris?](https://www.pointoforder.com/2008/12/30/can-the-senate-constitutionally-refuse-to-seat-roland-burris/) - This article from ABC News highlights an issue I noted several weeks ago when it questions whether the Senate actually has the power to refuse to seat Roland Burris as a Senator from Illinois. The Senate has (or at least has previously asserted) the power to refuse to seat an appointee if it finds
- [Is Emanuel Delaying his Resignation so that His Staff Can Find New Jobs?](https://www.pointoforder.com/2008/12/23/is-emanuel-delaying-his-resignation-so-that-his-staff-can-find-new-jobs/) - The Hill had a report yesterday regarding the "two hats" worn by Rahm Emanuel, namely (1) his presidential transition job in which he "is calling the shots for what will soon be the Obama White House" and (2) his job as a Member of Congress. The first job is unpaid, although is evidently occupies
- [The Emoluments Clause and the "Saxbe Fix"](https://www.pointoforder.com/2008/12/21/the-emoluments-clause-and-the-saxbe-fix/) - The Emoluments Clause of the Constitution, art. I, § 6, cl. 2, provides that "[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time." In plain English, this means that if Senator
- [Can Joe Biden Be Vice President and Senator at the Same Time?](https://www.pointoforder.com/2008/12/20/can-joe-biden-be-vice-president-and-senator-at-the-same-time/) - ABC News asks "Why Hasn’t Joe Biden Resigned His Senate Seat?" Perhaps the answer is that Senator Biden, who is after all a law professor in his spare time, is familiar with this recent work of legal scholarship concluding that one can be President (or Vice-President) at the same time one holds a
- [A Seventeenth Amendment Problem in Illinois](https://www.pointoforder.com/2008/12/09/a-seventeenth-amendment-problem-in-illinois/) - Today’s events in Illinois raise some really interesting questions under the Seventeenth Amendment. This amendment established popular election of Senators (who previously were elected by state legislatures) and made the following provision for filling of vacancies: When vacancies happen in the representation of any State in the Senate, the executive authority of such State
- [Was the Renzi Wiretap Unconstitutional?](https://www.pointoforder.com/2008/11/29/was-the-renzi-wiretap-unconstitutional/) - Another critical Speech or Debate issue in the Renzi case involves the wiretap on a cellular phone used by Renzi. The Arizona federal court authorized the wiretap for a 30-day period from late October to late November 2006. The wiretap order required the monitor to stop listening when a conversation "relates directly to legislation
- [House's Speech or Debate Position in the Renzi Case](https://www.pointoforder.com/2008/11/27/houses-speech-or-debate-position-in-the-renzi-case/) - The House brief in the Renzi case contends that the Department of Justice violated the Speech or Debate Clause when it questioned Renzi aides before the grand jury regarding protected legislative activities. It also argues that the Department violated the Clause when it presented to the grand jury "significant numbers of internal House emails
- [The House Files an Amicus Brief in the Renzi Case](https://www.pointoforder.com/2008/11/25/the-house-files-an-amicus-brief-in-the-renzi-case/) - The House Bipartisan Legal Advisory Group (which consists of the Speaker, the Majority and Minority Leaders, and the Majority and Minority Whips) has filed an amicus brief in the Renzi case. BLAG argues that the Department of Justice committed "clear violations of the Speech or Debate Clause" in connection with the wiretap of Congressman
- [The Government Responds to Renzi's Speech or Debate Motion](https://www.pointoforder.com/2008/11/12/the-government-responds-to-renzis-speech-or-debate-motion/) - The prosecution has responded to Congressman Renzi’s motion to dismiss the indictment based on the Speech or Debate Clause. The most important question presented is whether Speech or Debate applies to Renzi’s communications with two outside groups—Resolution Copper and the Aries Group—regarding land exchange legislation the groups were seeking. (There are also significant Speech
- [A Roadmap for the Stevens Expulsion](https://www.pointoforder.com/2008/11/07/a-roadmap-for-the-stevens-expulsion/) - Here is my proposal for a principled resolution of the Stevens matter. 1. The first question that should be addressed is whether Stevens’s underlying conduct, independent of the fact of his conviction, warrants expulsion. I suspect that the Senate’s answer to this question would be no. In essence, the case against Stevens was that
- [More on a Stevens Expulsion](https://www.pointoforder.com/2008/11/06/more-on-a-stevens-expulsion/) - Much discussion continues on whether the Senate can or will expel Senator Stevens. Several Senators, including Majority Leader Reid, have suggested that expulsion is a virtual certainty. Minority Leader McConnell, on the other hand, has indicated that Stevens should be given a chance to pursue his appeal before expulsion, leaving open the question
- [Senators Inouye and Reid Debate the Stevens Case](https://www.pointoforder.com/2008/11/02/senators-inouye-and-reid-debate-the-stevens-case/) - Roll Call reports the following debate between Senators Inouye and Reid: In a statement released by the Stevens campaign, Inouye argues that his longtime friend will be seated as a Member of the Senate next year if re elected and that he believes the felony convictions will be overturned. "As the Senate has done in
- [Washington Post Article on Speech or Debate](https://www.pointoforder.com/2008/11/01/washington-post-article-on-speech-or-debate/) - The Washington Post has a front page article today, above the fold, today on the Speech or Debate clause, which the reporter explains, "is increasingly being used by lawmakers as a shield in public corruption investigations, frustrating investigators even as the FBI attempts to police wrongdoing at a pace not seen since the Watergate
- [A Seventeenth Amendment Issue in Alaska](https://www.pointoforder.com/2008/10/28/a-seventeenth-amendment-issue-in-alaska/) - Following Senator Stevens’s conviction yesterday, the Anchorage Daily News has spotlighted an interesting issue that would arise in the event Stevens were to resign. Evidently the Alaska Legislature passed a law in 2004 which allowed the Governor to make a temporary appointment to fill a Senate vacancy pending a special election to fill the
- [Senator Stevens and the Senate Ethics Committee](https://www.pointoforder.com/2008/10/27/senator-stevens-and-the-senate-ethics-committee/) - Paul Blumenthal of the Sunlight Foundation poses the following questions: "The Alaska Daily News covers another aspect of the trial: what happens if Sen. Stevens is found guilty and then wins reelection? I have another question, what does the Senate Ethics Committee do if Sen. Stevens is acquitted?" Lets begin with the easiest question: if
- [Gifts and Liabilities in the Stevens Jury Instructions](https://www.pointoforder.com/2008/10/26/gifts-and-liabilities-in-the-stevens-jury-instructions/) - My last post discussed how the Stevens jury may be confused about the definition of a "reportable liability." Today I will discuss a significant ambiguity in the jury instructions themselves. The instructions reflect the fact that Stevens is charged with failing to report both gifts and liabilities. But nowhere do the instructions
- [Stevens Jury Confused on Liability Issue](https://www.pointoforder.com/2008/10/25/stevens-jury-confused-on-liability-issue/) - According to The Hill, one of the questions asked by the Stevens jury this week involved the issue of reportable liabilities. The jury’s note to the judge asked him to "please clarify the liability cost as it is not readily clear in the Senate regulations." It is interesting that the jury would be
- [Stevens Jury Instructions](https://www.pointoforder.com/2008/10/24/stevens-jury-instructions/) - For those interested in the Stevens case, the Anchorage Daily News has posted the jury instructions. One issue that the jury instructions deal with is the relevance of public disclosure to the case. As discussed by Taxpayers for Common Sense, the defense argued that the duty of disclosure to the public is irrelevant
- [Renzi's Speech or Debate Defense](https://www.pointoforder.com/2008/10/19/renzis-speech-or-debate-defense/) - Congressman Rick Renzi, currently facing federal trial on corruption charges, moved this week to dismiss the indictment based on the Speech or Debate Clause of the Constitution. Renzi argues that the indictment is flawed because the grand jury relied on two types of information privileged under the Clause. First, the grand jury relied
- [DC Circuit Grants Stay in Miers Case](https://www.pointoforder.com/2008/10/06/dc-circuit-grants-stay-in-miers-case/) - The D.C. Circuit has at last ruled on the stay motion in the Miers case. In a brief per curium opinion, the court grants the motion to stay and denies the motion for an expedited briefing schedule. The court first holds that there is appellate jurisdiction, noting that the declaratory judgment that Miers
- [GAO Audit of Lobbying Disclosure](https://www.pointoforder.com/2008/10/01/gao-audit-of-lobbying-disclosure/) - GAO has released its audit of lobbying disclosure filings (Lobbying Disclosure: Observations on Lobbyists’ Compliance with New Disclosure Requirements). The audit was required by the Honest Leadership and Open Government Act of 2007 (HLOGA). GAO randomly selected 100 lobbying disclosure reports and then asked the lobbyists to provide support for eight "key elements" of the
- [OFFICE OF CONGRESSIONAL ETHICS BOARD HOLDS FIRST MEETING](https://www.pointoforder.com/2008/09/28/office-of-congressional-ethics-board-holds-first-meeting/) - Press Release from David Skaggs, Chair, and Porter Goss, Co-Chair, of the board of the Office of Congressional Ethics established by House Resolution 895: The board of the Office of Congressional Ethics held its first meeting together this Thursday and Friday, September 25 and 26, 2008. Our agenda was designed to provide context and background
- [Voting Procedure in the House](https://www.pointoforder.com/2008/09/27/voting-procedure-in-the-house/) - The Select Committee to Investigate the Voting Irregularities of August 2, 2007 (commonly referred to as the "Stolen Vote" committee) has released its final report dated September 25, 2008. The report describes in some detail the process of voting in the House, which I summarize below: Votes in the House are conducted by the "tally
- [People Who Live in Glass Houses (Revised)](https://www.pointoforder.com/2008/09/20/people-who-live-in-glass-houses-revised/) - A federal judge has ruled that the Library of Congress violated Title VII when it refused to hire a prospective employee who was a male-to-female transsexual. Specifically, the plaintiff, who applied for a position with the Congressional Research Service (part of the LOC) while having the appearance and dress of a man, was made
- [D.C. Circuit Considers a Stay in the Miers Case](https://www.pointoforder.com/2008/09/17/d-c-circuit-considers-a-stay-in-the-miers-case/) - I attended yesterday’s D.C. Circuit argument on the Justice Department’s stay application in the Miers case. The panel consisted of Judges Randolph, Ginsburg and Tatel. A few takeaways: Despite having asked the parties to brief appellate jurisdiction, the court didn’t seem interested in that subject. The sense I got was that the judges
- [More on Sunny Isle](https://www.pointoforder.com/2008/09/15/more-on-sunny-isle/) - Today’s Roll Call discusses Chairman Rangel’s reporting of his Sunny Isle condo transactions. The article notes "the inconsistent reports are myriad errors, discrepancies and unexplained entries on Rangel’s personal disclosure forms over the past eight years that make it almost impossible to get a clear picture of the Ways and Means chairman’s financial dealings over
- [DC Circuit to hear argument in Miers Case](https://www.pointoforder.com/2008/09/12/dc-circuit-to-hear-argument-in-miers-case/) - The U.S. Court of Appeals for the D.C. Circuit today set oral argument in the White House subpoena case for September 16th at 2:30 p.m. before Circuit Judges Douglas Ginsburg, David Tatel, and Raymond Randolph. The sides each have 15 minutes.
- [Chairman Rangel, Sunny Isles and the Perils of Financial Disclosure](https://www.pointoforder.com/2008/09/11/chairman-rangel-sunny-isles-and-the-perils-of-financial-disclosure/) - Representative Charles Rangel, the chairman of the House Ways and Means Committee, has been in hot water for several matters, most recently his ownership of a beach property in the Dominican Republic. Rangel has acknowledged that he failed to pay taxes on income from the property and failed to properly disclose that income on
- [Miers Case on Hold Until Wednesday](https://www.pointoforder.com/2008/09/06/miers-case-on-hold-until-wednesday/) - A panel of judges (Ginsburg, Randolph and Tatel) of the D.C. Circuit has granted an "administrative stay" of Judge Bates’s order in the Miers contempt case. This stay is not the relief that the Executive Branch is asking for, which is a stay pending appeal, but a brief stay while the court considers whether
- [Judge Bates Denies a Stay](https://www.pointoforder.com/2008/08/27/judge-bates-denies-a-stay/) - Judge Bates denies the Justice Department’s request for a stay in the Miers case. His analysis of the four stay factors largely proceeds along the lines I expected. While I thought he might give some credit to the Executive’s chances of prevailing on appeal simply based on the novelty of the issues presented, he
- [Senate Ethics Guidance May Prove a Liability for Stevens Prosecution](https://www.pointoforder.com/2008/08/25/senate-ethics-guidance-may-prove-a-liability-for-stevens-prosecution/) - One other motion filed by Senator Stevens should be noted because it refers to what I anticipate will be at the core of his defense. The issue, explained below, is whether Senate Ethics guidelines clearly require the disclosure of the "things of value" Stevens received. The government charges that Stevens received various things
- [Stevens and Separation of Powers](https://www.pointoforder.com/2008/08/23/stevens-and-separation-of-powers/) - Senator Stevens has filed another interesting motion, one that seeks to have his indictment dismissed on separation of powers grounds. His theory is that the requirement that Senators file financial disclosure statements is one imposed by Senate rule, not by law. He recognizes, of course, that there is a statute, the Ethics in Government
- [The Prosecution's Assault on Senator Stevens' Legislative Privilege](https://www.pointoforder.com/2008/08/18/the-prosecutions-assault-on-senator-stevens-legislative-privilege/) - The prosecution’s motion in limine in the Stevens case lays out the evidence that it intends to introduce "concerning solicitations made by [VECO] and its executives or non-legislative acts taken by Senator Theodore F. Stevens or his staff in response to VECO’s solicitations." The government seeks a ruling in advance of trial that such
- [Will Judge Bates Issue a Stay in the Miers Case?](https://www.pointoforder.com/2008/08/12/will-judge-bates-issue-a-stay-in-the-miers-case/) - In his July 31 decision on the congressional subpoenas to Harriet Miers and Josh Bolten, Judge Bates noted "the likelihood of appeal of this decision," and he observed that "given the significance of the issues involved, a stay pending appeal is at least possible." The court will now have to resolve this issue because
- [Legal Background on the Stevens Indictment](https://www.pointoforder.com/2008/08/02/legal-background-on-the-stevens-indictment/) - This post sets forth a little legal background that may be helpful in understanding this week’s indictment of Senator Ted Stevens (R-AK). Stevens is charged with failing to disclose, on his annual financial disclosure form (FD), hundreds of thousands of dollars in goods and services he received from a private corporation and its CEO from
- [The Miers Case- Where do the Parties Go from Here?](https://www.pointoforder.com/2008/08/01/the-miers-case-where-do-the-parties-go-from-here/) - The six points laid out by Judge Bates (listed in my last post) should be instructive to both parties as they move forward. For the executive branch, it should be evident that it made a mistake in refusing to have Miers appear in response to the congressional subpoena. By doing so, it presented the court
- [More on Equitable Discretion](https://www.pointoforder.com/2008/08/01/more-on-equitable-discretion/) - Below are the six reasons given by Judge Bates as to why he would exercise his discretion to issue a ruling in the Miers case. In my next post I will consider how these points may impact the parties as they go forward. (1) judicial resolution would settle this dispute between the parties as to
- [Judge Bates on Equitable Discretion](https://www.pointoforder.com/2008/07/31/judge-bates-on-equitable-discretion/) - Judge Bates also rejected the argument that he should exercise his equitable discretion to decline to hear the case. This was a little more of a surprise. Given the highly political nature of the controversy before him, I thought the court would be tempted to exercise his equitable discretion, at least on a temporary basis
- [Judge Bates on Inherent Contempt](https://www.pointoforder.com/2008/07/31/judge-bates-on-inherent-contempt/) - The court rejected the Justice Department’s threshold arguments on standing and cause of action. Based on the court’s remarks at the oral argument, this does not come as a surprise. For reasons that I have discussed before, the court was not impressed with the Justice Department’s attempt to disavow the 1980s OLC memos which clearly
- [Judge Bates Rules](https://www.pointoforder.com/2008/07/31/judge-bates-rules/) - I have quickly read Judge Bates’s 93-page opinion in favor of the House of Representatives in the Miers contempt case. I will post just a few observations today.
- [CREWs Double Standard](https://www.pointoforder.com/2008/07/25/crews-double-standard/) - On June 12, 2008, Citizens for Ethics and Responsibility in Washington (CREW), a prominent "watchdog" group, issued a press release stating "in light of a news report detailing favorable loan terms given to current and former public officials by Countrywide Financial, [CREW] has written to both the Senate and House Ethics Committees asking for
- [Inherent Contempt for Rove?](https://www.pointoforder.com/2008/07/06/inherent-contempt-for-rove/) - House Judiciary Committee Chairman John Conyers is threatening Karl Rove with contempt for the latter’s refusal to appear at a congressional hearing in response to a subpoena. Rove is evidently asserting that, as a former senior adviser to the President, he is absolutely immune from compelled testimony relating to his service in that capacity.
- [On Standing, Judge Bates Leans in the House's Direction](https://www.pointoforder.com/2008/06/25/on-standing-judge-bates-leans-in-the-houses-direction/) - I don’t know how Judge Bates will ultimately rule in the House contempt suit against Harriet Miers and Josh Bolten, but, after listening to Monday’s nearly three-hour oral argument in the packed ceremonial courtroom (which felt like an oven after about two hours), I do not think he will dismiss the suit on standing grounds.
- [Ethics of Congressional Lawyers](https://www.pointoforder.com/2008/06/01/ethics-of-congressional-lawyers/) - For a discussion of the legal ethics rules for lawyers working for Congress, please see The Ethical Obligations of Congressional Lawyers.
- [DOJ's Brief in Miers--Right Without Remedy?](https://www.pointoforder.com/2008/05/27/dojs-brief-in-miers-right-without-remedy/) - The Department of Justice brief in the Miers case argues that Congress has no judicial remedy when the executive branch refuses to provide it with information and, moreover, that the Constitution bars Congress, or either House thereof, from ever having a judicial remedy when such information is withheld. Specifically, DOJ contends that the House Judiciary
- [Don't Tape Me Bro!](https://www.pointoforder.com/2008/05/23/dont-tape-me-bro/) - According to The Hill, Congressman Renzi plans to raise Speech or Debate objections to the FBI’s interception of some of his telephone calls. No doubt his attorneys will rely primarily on the DC Circuit’s decision in the Jefferson case. As I noted previously: The extension of the DC Circuit’s decision to electronic surveillance also seems
- [The Significance of Reed](https://www.pointoforder.com/2008/05/14/the-significance-of-reed/) - While the novelty of the situation presented in Reed is apparent, neither the congressional nor the judicial response suggest that the specter of a congressional committee seeking judicial relief was viewed as a radical departure from historical practice or one that threatened established constitutional principles. From the congressional perspective, the select committee viewed the
- [The Supreme Court Decision in Reed](https://www.pointoforder.com/2008/05/14/the-supreme-court-decision-in-reed/) - After the Court of Appeals affirmed the district court, the select committee petitioned the Supreme Court for certiorari, emphasizing that the questions presented "are of such importance to the proper exercise by the Senate of the United States of its separate constitutional powers, that the petitioners, as a committee of the Senate, deem it
- [The Reed Case and Congressional Standing](https://www.pointoforder.com/2008/05/14/the-reed-case-and-congressional-standing/) - Because the analysis of congressional standing in the Miers case depends heavily on an understanding of the history of legislative privilege, attention must be paid to the case of Reed v. County Commissioners, 277 U.S. 376 (1928). Reed involved a select Senate committee formed in the spring of 1926 to investigate alleged fraudulent and
- [Agency Intervention After the Domenici Case](https://www.pointoforder.com/2008/04/29/agency-intervention-after-the-domenici-case/) - The Senate Ethics Committee has issued a "qualified admonishment" of Senator Pete Domenici for making a telephone call in October 2006 to David Iglesias, then the U.S. Attorney for the District of New Mexico. Domenici called Iglesias to inquire about the timing of potential indictments in an ongoing federal grand jury probe of alleged
- [Legislative Privilege and the Courts in America](https://www.pointoforder.com/2008/04/27/legislative-privilege-and-the-courts-in-america/) - At the time that the Constitution was ratified, it was unclear to what extent the Congress would enjoy the inherent privileges of the British Parliament. Writing around 1800, Thomas Jefferson noted the arguments for and against recognizing congressional privileges beyond those explicitly conferred by the Constitution (such as the Speech or Debate privilege). In favor
- [Coconut Road Investigation Takes an Unconstitutional Detour](https://www.pointoforder.com/2008/04/18/coconut-road-investigation-takes-an-unconstitutional-detour/) - Yesterday, the Senate rejected Senator Coburn’s proposal to establish a joint House-Senate investigation of the Coconut Road earmark and instead adopted an amendment sponsored by Senator Boxer that would "direct" the Justice Department to conduct an investigation. According to an article in The Hill, Majority Leader Reid’s office circulated a memo supporting the Boxer amendment
- [First Test of New House Rule on Negotiating for Future Employment](https://www.pointoforder.com/2008/04/02/first-test-of-new-house-rule-on-negotiating-for-future-employment/) - Congressman Albert Wynn has announced that he will leave the House in June and join the law firm of Dickstein Shapiro. According to today’s Roll Call: "Wynn claims that he got clearance from the House ethics committee to begin negotiating for his Dickstein Shapiro job after he lost his primary in February, but he
- [Legislative Privilege and Congressional Standing](https://www.pointoforder.com/2008/03/29/legislative-privilege-and-congressional-standing/) - As discussed previously, the House appears to have a standing problem under the analysis adopted in Walker v. Cheney. But it makes little sense to suggest that the House’s injury (or that in Walker itself) is not concrete and particularized. The House Judiciary Committee subpoenaed Harriet Miers to appear for testimony on a particular
- [Committee on the Judiciary v. Miers: Will the House Have a Leg to Stand on?](https://www.pointoforder.com/2008/03/24/committee-on-the-judiciary-v-miers-will-the-house-have-a-leg-to-stand-on/) - The House’s contempt lawsuit has been assigned to Judge John Bates, who in 2002 dismissed the GAO’s suit against the Vice President in Walker v. Cheney, 230 F.Supp.2d 51 (D.D.C. 2002). In that case the Comptroller General (who heads the GAO), sought a court order that the Vice President produce certain information relating to
- [Guess the Odds Don't Always Favor the House](https://www.pointoforder.com/2008/03/10/guess-the-odds-dont-always-favor-the-house/) - House General Counsel's office files contempt lawsuit against Bolten and Miers on behalf of the Judiciary Committee. The case is assigned (presumably randomly) to Judge Bates, who held in Walker v. Cheney that the Government Accountability Office lacked standing to sue the executive branch. From the House’s perspective, the worst possible draw.
- [That Was Quick](https://www.pointoforder.com/2008/02/29/that-was-quick/) - Yesterday Speaker Pelosi offered Attorney General Mukasey one week to decide whether he would prosecute Miers and Bolten for contempt of Congress. The Attorney General apparently didn't need that much time because he responded today that there will be no such prosecution. Mukasey stated that "the contempt of Congress statute was not intended to apply and
- [Game On!](https://www.pointoforder.com/2008/02/28/game-on/) - The Speaker has sent the certifications of contempt against Harriet Miers and Josh Bolten to the U.S. Attorney for the District of Columbia. The Justice Department has previously stated that it will not prosecute Miers and Bolten because they were acting in accordance with presidential directives when they refused, respectively, to appear before Congress
- [Preliminary thoughts on the House GOP Ethics Proposal  (Updated)](https://www.pointoforder.com/2008/02/28/preliminary-thoughts-on-the-house-gop-ethics-proposal-updated/) - The House Republicans have come out with an alternative to creating an Office of Congressional Ethics (as proposed by the Democratic members of the Special Task Force on Ethics Enforcement). Although I have not seen the actual GOP proposal, the Roll Call description suggests that it has some promising elements, although further refinement
- [More on the Craig Admonishment](https://www.pointoforder.com/2008/02/26/more-on-the-craig-admonishment/) - Simon Davidson, the ethics columnist for Roll Call, responded to the points I made in yesterday's post regarding the Senate Ethics Committee's admonishment of Senator Larry Craig. Set forth below is our exchange of emails, reprinted with Mr. Davidson's kind permission. Mr. Stern: Thank you for your e-mail regarding my column. While I had considered the points
- [Craig Admonishment](https://www.pointoforder.com/2008/02/25/craig-admonishment/) - Earlier this month, the Senate Ethics Committee issued a public letter of admonition to Senator Larry Craig. The committee found that Senator Craig’s guilty plea to disorderly conduct in a Minneapolis airport restroom was "accurate, voluntary and intelligent." It therefore accepted as proven the conduct that was set forth in that guilty plea. In addition,
- [Maybe Tom Susman Should Have Replaced Dave Barry?](https://www.pointoforder.com/2008/01/14/maybe-tom-susman-should-have-replaced-dave-barry/) - From Gene Weingarten’s most recent Below the Beltway: Me: Is this Tom Susman? Tom: Yep. Me: I cannot help but notice that you are identified as the "ethics chairman" of the American League of Lobbyists. Tom: That's correct. Me: So, is that a no-show job? Like "etiquette chairman" of the World Wrestling Federation? Tom: Or
- [Should the Office of Congressional Ethics be Run by Committee?](https://www.pointoforder.com/2008/01/06/should-the-office-of-congressional-ethics-be-run-by-committee/) - The House’s Special Task Force on Ethics Enforcement (or, more precisely, the Democratic members thereof) recommends the establishment of a six member board to govern the new Office of Congressional Ethics. Three of the board members would be designees of the Speaker and three would be designees of the Minority Leader. Although the Speaker
- [The Parliamentary Commissioner for Standards](https://www.pointoforder.com/2008/01/02/the-parliamentary-commissioner-for-standards/) - As it takes up the question of how to structure an independent ethics enforcement office, the House of Representatives would do well to consider the experience of the British Parliament. In 1995, the House of Commons established the Parliamentary Commissioner for Standards, an independent official appointed by Parliament to handle ethics matters. Josh Chafetz
- [More on Coconut Road](https://www.pointoforder.com/2007/12/18/more-on-coconut-road/) - Via TPM Muckraker, Senator Tom Coburn has demanded a joint House-Senate investigation of the circumstances that led to the infamous Coconut Road earmark language, which was inserted into the 2005 Transportation Bill (allegedly on instructions of staff for then-House Transportation Committee Chairman Don Young) after final passage of the bill. Taxpayers for Common Sense had requested
- [When the Justice Department Takes the Fifth](https://www.pointoforder.com/2007/12/17/when-the-justice-department-takes-the-fifth/) - From Chris Wallace’s interview of Representative Pete Hoekstra (ranking member of the House intelligence committee, also known as "HPSCI") yesterday: WALLACE: On Friday, the Justice Department moved to block congressional investigations of the destruction of these CIA tapes, saying that it would jeopardize its own probe. Congressman Hoekstra, does that mean your committee is going
- [Should the House and Senate Intelligence Committees Have Heard General Hayden in Public Session?](https://www.pointoforder.com/2007/12/15/should-the-house-and-senate-intelligence-committees-have-heard-general-hayden-in-public-session/) - Over at Balkinization, Marty Lederman is upset that the House and Senate intelligence committees conducted closed-door sessions to hear General Hayden’s account of how tapes of CIA interrogations were destroyed. He asks: "Even if some of what was on those tapes is classified, and even if occasionally some bits and pieces of the testimony
- [Office of Congressional Ethics Should Not Need Subpoena Power](https://www.pointoforder.com/2007/12/02/office-of-congressional-ethics-should-not-need-subpoena-power/) - The second criticism of the (nearly) proposed Office of Congressional Ethics is that it will lack the power to subpoena witnesses and documents. This criticism, it seems to me, is misplaced. As a practical matter, the OCE should have adequate power to conduct preliminary investigations of ethical violations without compulsory process. Presumably much of
- [The Office of Congressional Ethics](https://www.pointoforder.com/2007/12/01/the-office-of-congressional-ethics/) - Details are emerging regarding the long-awaited proposal of the House Ethics Reform Task Force, which was charged with making recommendations to the House regarding the establishment of an independent ethics office. The proposal (which evidently has not been approved by the Republican members) will recommend the establishment of an "Office of Congressional Ethics," which would
- [DOJ Politicization Program](https://www.pointoforder.com/2007/11/08/doj-politicization-program/) - Today I attended a DC Bar program entitled "Politics Inside the Department of Justice: Did the Bush Administration Cross the Line?" The panel consisted of Bud Cummins, (former U.S. Attorney for the Eastern District of Arkansas, one of eight US attorneys who were fired), Joseph Rich (formerly of the DOJ Civil Rights Div) and
- [Mukasey on Contempt](https://www.pointoforder.com/2007/10/29/mukasey-on-contempt/) - In his confirmation hearing, Attorney General-designate Michael Mukasey was asked for his views on possible criminal contempt of Congress charges against executive officials such as Harriet Miers and Josh Bolten. Mukasey told the Senate Judiciary Committee that if an official who had asserted executive privilege was referred for contempt of Congress, he would look
- [More on Scaglia](https://www.pointoforder.com/2007/10/25/more-on-scaglia/) - Roll Call’s Paul Singer has another interesting article today on Phil Scaglia, who serves as Representative Cleaver’s chief of staff while operating a lobbying business in his spare time. The article reveals that Scaglia’s business also received payments from the Cleaver campaign and that one of Scaglia’s private clients both rented office space to the campaign
- [TCS Earmark Investigation: On the Road to Nowhere?](https://www.pointoforder.com/2007/10/04/tcs-earmark-investigation-on-the-road-to-nowhere/) - Taxpayers for Common Sense (TCS) has written a letter to the House Ethics Committee, requesting an investigation of a $10 million earmark for the Coconut Road project in Lee County, Florida. As explained in their letter, the earmark was included in the 2005 Transportation Bill, but the language that passed the House and Senate merely
- [Geragos to Congress: Drop Dead](https://www.pointoforder.com/2007/10/01/geragos-to-congress-drop-dead/) - Tomorrow a federal district court judge in San Diego will hear arguments on a motion to quash subpoenas to 12 sitting Members of Congress (Roy Blunt, Norm Dicks, John Doolittle, Dennis Hastert, Pete Hoekstra, Duncan Hunter, Darrell Issa, Joe Knollenberg, Jerry Weller, Jerry Lewis, John Murtha, and Silvestre Reyes) in the case of United
- [Are Pollsters Required to Register as Lobbyists?](https://www.pointoforder.com/2007/09/25/are-pollsters-required-to-register-as-lobbyists/) - Today’s Roll Call suggests that pollsters who present the results of their polling to Members and staff on behalf of private clients may not view themselves as required to register under the Lobbying Disclosure Act: When it comes to disclosure rules, Brett Kappel, a lobbyist and campaign finance lawyer at Vorys, Sater, Seymour and Pease,
- [Jefferson Round 3](https://www.pointoforder.com/2007/09/22/jefferson-round-3/) - As I predicted in earlier posts, the Justice Department is finding it hard to live with the implications of the DC Circuit’s decision in United States v. Rayburn House Office Building, Room 2113 (the Jefferson search case). It is now seeking a rehearing by the full court, contending that the decision hampers its ability not
- [Parliamentary Procedure](https://www.pointoforder.com/2007/09/20/parliamentary-procedure/) - This webpage from the House Committee on Rules provides a very helpful series of newsletters summarizing key points of parliamentary procedure. Thanks to John Wonderlich and the Open House Project for the tip.
- [Is this Really Legal? (Part 2)](https://www.pointoforder.com/2007/09/19/is-this-really-legal-part-2/) - As noted in my prior post, Representative Cleaver’s office defends Scaglia’s lobbying business on the grounds that "he does not contract with, or lobby on behalf of, a client on federal matters." Scaglia himself told a Kansas City newspaper that he lobbies only on local issues. This is fortunate because it is a
- [Is this Really Legal?](https://www.pointoforder.com/2007/09/14/is-this-really-legal/) - This is the sort of thing that breeds cynicism about "congressional ethics." Roll Call reported this week that a high-ranking staffer for Representative Emmanuel Cleaver (D-Mo.) is a lobbyist "on the side." The staffer, Phil Scaglia, who made nearly $100,000 last year, is Cleaver’s highest paid staffer, and functions essentially as his chief of staff.
- [Did Senator Craig Breach the Peace?](https://www.pointoforder.com/2007/08/29/did-senator-craig-breach-the-peace/) - Some commenters on The Volokh Conspiracy - - have suggested Senator Craig could have asserted a constitutional privilege in connection with his arrest for disorderly conduct charges based on Article I, Section 6 which provides that "Senators and Representatives ... shall in all cases, except treason, felony and breach of the peace, be privileged from
- [Gonzales out, now what?](https://www.pointoforder.com/2007/08/27/gonzales-out-now-what/) - Attorney General Gonzales has resigned. ABC News: Attorney General Gonzales Resigns Will his resignation take effect only upon confirmation of his replacement? The rumor has been that Homeland Security Secretary Mike Chertoff will be nominated to replace Gonzales, but not clear if this is a done deal. Chertoff is well-respected and likely would be confirmed,
- [Foley's legislative privilege](https://www.pointoforder.com/2007/08/24/foleys-legislative-privilege/) - Here is an interesting question. Were Representative Mark Foley’s "naughty emails" to a former House page absolutely privileged under the Speech or Debate Clause of the Constitution? The question is suggested by articles in the last couple of days indicating that House lawyers have refused to give Florida law enforcement authorities access to Foley’s
- [The DC Circuit's Decision in the Jefferson Search Case](https://www.pointoforder.com/2007/08/04/the-dc-circuits-decision-in-the-jefferson-search-case/) - In United States v. Rayburn House Office Building, Room 2113 (the Jefferson search case), the DC Circuit held "that a search that allows agents of the Executive to review privileged materials without the Member’s consent violates the [Speech or Debate] Clause." On first read, this case has some major implications for public corruption investigations and
- [Everything Old is New Again](https://www.pointoforder.com/2007/07/27/everything-old-is-new-again/) - A press release from Congressman Barney Frank states as follows: Congressman Barney Frank (D-MA) introduced legislation today that would require the appointment of a special prosecutor each time the House votes an official of the executive branch in contempt of Congress. "After listening to the testimony of [the Attorney General] before the Judiciary Committee and his refusal

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- [About](https://www.pointoforder.com/about/) - Michael Stern specializes in legal issues affecting Congress, including congressional ethics, elections, investigations, and lobbying. He served as Senior Counsel to the U.S. House of Representatives from 1996 to 2004. He later served as Deputy Staff Director for Investigations for the Senate Committee on Homeland Security and Governmental Affairs and Special Counsel to the House

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