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 of standing that all but ignored the previous elements of standing that you clung to in Federal Forest Resource Coalition (individualized injury). Setting aside the merits of the underlying controversy, your opinion never once mentions the phrase “political question.” Isn’t a case where the legislative branch is suing the executive branch a quintessential political question?

One problem with this question is that it was based on a false premise—as she pointed out in her answer, Jackson’s opinion in McGahn did in fact (more than once) use the phrase “political question” and it did so in the context of explaining why the political question doctrine was inapplicable to the case before her.  See, e.g., Comm. on the Judiciary v. McGahn, 415 F. Supp.3d 148, 178 (D.D.C. 2019) (“[T]he Supreme Court has specifically confirmed that not all legal claims that impact the political branches are properly deemed non-justiciable political questions.”).

To be sure, Jackson’s discussion of this issue was somewhat in passing. Her primary point was that the Justice Department’s legal arguments on standing and separation of powers sounded like attempts to evoke the political question doctrine without grappling with well-established limits on that doctrine. See id. at 177-78. But because the Justice Department (representing McGahn) did not actually assert that the political question doctrine applied, the judge presumably thought it unnecessary to discuss the doctrine in depth. Perhaps Lee should ask the Justice Department why it did not think McGahn presented a “quintessential political question.”

I think I can save him the trouble, though. There was a time when legal scholars (to the extent they thought about the issue) very likely would have agreed with the sentiment expressed in Lee’s question. As one noted constitutional expert wrote long ago: “In 1958, when the reach of the political question doctrine was far broader than it is today, no lesser an authority than Judge Learned Hand expressed the view that such a dispute [over a congressional subpoena] between two branches of government was a clear example of a nonjusticiable constitutional question.” Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 B.Y.U. L. Rev. 231, 266 (1978). For the last 60 years, though, the law has rejected such a broad view of political questions. Continue reading “Two Lees, One Jackson, and Some Stonewalling”

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). Leaving aside the question whether this is a valid legal defense (spoiler alert: it is not), Bannon claims that this defense is bolstered by Office of Legal Counsel opinions which he interprets to excuse him from compliance with the select committee’s subpoena. For example, in his discovery motion, Bannon states “[Bannon’s lawyer] consistently advised the Government that Mr. Bannon was acting in accordance with legal opinions issued by the Office of Legal Counsel, U.S. Department of Justice, which analyzed the issues under analogous circumstances.”

The significance of the OLC opinions to the purported defense is unclear. One possibility is that Bannon was directly relying on the OLC opinions themselves, rather than simply on his lawyer’s interpretation of them. Another possibility is that the OLC opinions are cited to bolster the reasonableness of the legal advice the lawyer (Robert Costello) provided his client.

Bannon may also be trying to advance something of a slippery slope argument. If he cannot rely directly or indirectly on OLC opinions, then what of executive officials who receive an OLC opinion that specifically advises they need not comply with a congressional subpoena? This is the scenario that Judge Nichols was apparently concerned about when he posed a hypothetical in which Ron Klain refuses to testify based on OLC advice that he has absolute immunity from compelled congressional testimony. In this situation, Nichols asked, could DOJ advise Klain he is immune and then turn around and prosecute him for defying the congressional subpoena?

Continue reading “More on Bannon and OLC”

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 theory in no uncertain terms. See Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53, 99 (D.D.C. 2008) (Bates, J.) (“[T]he asserted absolute immunity claim here is entirely unsupported by existing case law.”). More than a decade later, another district judge, who is currently nominated to sit on the Supreme Court, strongly agreed, finding that “the Miers court rightly determined not only that the principle of absolute testimonial immunity for senior-level presidential aides has no foundation in law, but also that such a proposition conflicts with key tenets of our constitutional order.” Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 202-03 (D.D.C. 2019) (Ketanji Brown Jackson, J.). Although neither Miers nor McGahn resulted in an appellate decision on the merits, two D.C. Circuit judges wrote opinions strongly questioning or rejecting outright the absolute immunity theory, while not a single judge has expressed any degree of support for it. See Comm. on the Judiciary v. McGahn, 973 F.3d 121, 131 (D.C. Cir. 2020) (Rogers, J., dissenting) (McGahn’s claim of testimonial immunity is foreclosed by precedent); Comm. on the Judiciary v. McGahn, 951 F.3d 510, 536-40 (D.C. Cir. 2020) (Henderson, J., concurring) (explaining at some length why McGahn’s claim of immunity rests on a “shaky foundation”).

As fate and the random assignment system would have it, the DOJ attorney from the Miers case, Carl Nichols, is now himself a federal judge presiding over two high profile cases in which testimonial immunity may be an issue. Both cases arise out of the January 6 select committee investigation. The first is the prosecution of Steve Bannon for refusing to comply with the select committee’s subpoena for documents and testimony. The second is a lawsuit filed by Mark Meadows against the select committee seeking to prohibit the enforcement of subpoenas issued to him and his telecommunications provider. Among the grounds asserted by Meadows for invalidating the testimonial aspects of the subpoena directed at him was that it “contravene[d] Mr. Meadows’ testimonial immunity as a senior executive official.” Meadows Complaint ¶ 153.

Back in November a Politico article by Kyle Cheney and Josh Gerstein discussed whether Judge Nichols should recuse himself from the Bannon case (the Meadows lawsuit had not yet been filed) due to his participation in Miers.  According to former House Counsel Irv Nathan, who argued Miers for the House and is quoted in the piece, Nichols should have considered recusing himself because of the similarity of the issues in the two cases. Nathan explained that in Miers Nichols had “argued that a witness, a private citizen (a former Executive Branch official) following the direction of a President, need not comply with a Congressional subpoena and could refuse even to show up, produce any documents or even itemize the documents alleged to be privileged.” This in his view would undermine the judge’s appearance of impartiality in presiding over the Bannon trial.

Continue reading “Should Judge Nichols Recuse Himself in the Bannon Case?”

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 sparked renewed speculation as to whether the committee will or should make a “criminal referral” to the Justice Department regarding the former president. According to this Politico article, while “Washington has viewed the decision on a criminal referral against Trump as a major pivot point in the Jan. 6 probe,” some think that the committee’s filing in the Eastman case makes such a referral less important or entirely unnecessary.

But what exactly is a congressional “criminal referral” and what is its significance, if any?

Continue reading “What Exactly is a Congressional Criminal Referral?”

The Eastman Emails, the Attorney Client Privilege, and the Mazars Overhang

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 congressional investigations. As further evidence of this phenomenon, I would point to the select committee’s recent filing in the John Eastman lawsuit, in which Eastman is seeking a court order prohibiting Chapman University, where he had been a law professor, from releasing to the committee allegedly privileged emails that Eastman sent or received through his university account. Specifically, Eastman claims that certain emails are privileged attorney-client communications and/or attorney work product arising out of his representation of Donald Trump, in his personal capacity as a candidate for office, and the Trump presidential campaign.

In a brief filed last week, the select committee advanced several arguments against Eastman’s claim of privilege, the most sensational of which was the committee’s contention that “evidence and information available to the Committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts, and that [Eastman’s] legal assistance was used in furtherance of those activities.” As this quote suggests, the committee’s argument is merely that there is sufficient evidence to warrant in camera review of the disputed material. Even if the court agrees with the committee on this point, it may ultimately conclude after review that the crime-fraud exception to the attorney-client privilege does not apply.

What I want to focus on today, however, is an argument that the committee did not make. At the outset of its brief, it refers to the standards applicable to establishing attorney-client privilege “to the extent attorney-client privilege applies in the context of a Congressional subpoena.” To explain this reference, the brief drops a footnote directing the reader to pages 37-39, which I suspect originally contained an argument that congressional committees are not bound to recognize common law privileges at all. This argument, however, was evidently removed, and now the committee’s discussion of the issue is confined to a footnote (no. 74), which states:

Congress has consistently taken the view that its investigative committees are not bound by judicial common law privileges such as the attorney-client privilege or the work product doctrine. See generally, Congressional Research Service, Congressional Oversight Manual 61-62 (March 21, 2021). This aspect of Congress’s investigative authority is rooted in the separation of powers inherent in the Constitution’s structure. Id. Congress and its committees make decisions regarding such common law privileges by balancing the important institutional, constitutional, and individual interests at stake on a case-by-case basis. Here, Congressional Defendants have determined, consistent with their prerogatives, not to submit an argument on this point. This is not, however, intended to indicate, in any way, that Congress or its investigative committees will decline to assert this institutional authority in other proceedings.

I am sure Senate Legal Counsel is relieved to hear the select committee is not purporting to waive the rights of “Congress or its investigative committees” in all future investigations, but why did the committee decide not to assert this longstanding congressional view here? In many ways this case would seem to provide a perfect illustration of why Congress believes it should not be bound by common law privileges. Continue reading “The Eastman Emails, the Attorney Client Privilege, and the Mazars Overhang”

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 leave standing the D.C. Circuit’s decision to affirm the district court’s dismissal of the lawsuit on grounds of the Speech or Debate Clause. Speaker Pelosi praised the Court’s action and declared “[b]oth the Constitution and more than a century of legal precedent make clear that the House is empowered to determine its own rules—and remote voting by proxy falls squarely within this purview.” Yesterday the Speaker, based on a notification from the Sergeant-at-Arms and the Office of Attending Physician, extended the period of proxy voting through March 30, 2022, at which point the “public health emergency” will have lasted almost two years.

Contrary to the Speaker’s suggestion, neither the Supreme Court’s action nor the rulings of the lower courts say anything about the constitutionality of proxy voting. To the contrary, both the constitutionality and necessity of the House’s rule remain live issues, and the House should not be misled into thinking that the courts have resolved them. Continue reading “Why the Courts Have NOT Decided the Constitutionality of Proxy Voting”

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 lacks the power to issue subpoenas or take other actions because it was constituted in violation of Section 2(a) of its authorizing resolution, H. Res. 503, which provides: “Appointment of Members—The Speaker shall appoint 13 Members to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader.”

Acting pursuant to the resolution, Speaker Pelosi appointed eight members to fill the “majority slots” on the committee, seven of whom were Democrats and one (Liz Cheney) a Republican. She consulted with Majority Leader McCarthy regarding the remaining “minority slots,” but she rejected two of McCarthy’s five recommendations, declaring that Jim Banks and Jim Jordan had made statements regarding the proposed investigation that she claimed “make it impossible for them to exercise judgment.” Pelosi was willing to appoint the other recommended members, but they declined. Pelosi then appointed Adam Kinzinger (the only Republican other than Cheney who was willing to participate under these circumstances) to one of the minority slots, leaving the other four vacant.

It is contended that these actions violated Section 2(a) of the authorizing resolution in two respects. First, Pelosi appointed only nine members of the select committee, rather than the 13 specified by the resolution. Second, although she consulted with McCarthy, she did not appoint any of the five members he recommended.

Let’s start with the second point. A strong version of this claim would be that the authorizing resolution required Pelosi to appoint whatever members McCarthy recommended and left her with no discretion in the matter. This interpretation is hard to square with the language of the resolution, which requires merely “consultation” with the minority leader. If the House had wanted to constrain Pelosi’s discretion in this manner, it could have easily said so. Indeed, as the House points out in a recently filed brief, prior select committee resolutions have used stronger language (i.e., requiring that minority slots be filled “on the recommendation of the Minority Leader”), which could more plausibly be interpreted to require that the speaker appoint only members recommended by the minority. Here there is no indication that the House intended to make Pelosi’s power to appoint a mere ministerial act.

Continue reading “Is the January 6 Committee Improperly Constituted?”

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 means of a civil lawsuit, rather than a criminal contempt referral or some sort of internal disciplinary proceeding. This will allow the committee to keep attention focused on the fact that these members are refusing to provide information (as well as require them to explain their reasons for doing so in court), while minimizing their ability to claim political martyrdom. It also will allow the committee to avoid bringing the matter to the floor; a civil action can be authorized by the Bipartisan Legal Advisory Group without forcing rank and file members to vote on a politically charged matter. The committee can also point to some precedent for such an action; the Senate Ethics Committee brought suit against Senator Packwood to enforce its subpoena for his diary.

The downside is that the case will probably take too long for the committee to get any useful information this year. That’s why the committee has refrained from using this method of enforcement for other witnesses. But here the committee is more concerned with the potential political consequences and the internal precedent regarding subpoena of members; recognizing that they may soon be in the minority, Democrats do not want it to be too easy for House committees to subpoena members in the future.

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 a letter to Edmund Randolph, who would soon after be appointed the nation’s first Attorney General. In that letter, Madison discussed the current work of the House, in particular the relatively slow pace of deliberations. He wrote: “[I]n every step the difficulties arising from novelty are severely experienced, and are an ample as well as just source of apology. Scarcely a day passes without some striking evidence of the delays and perplexities springing merely from the want of precedents. Time will be a full remedy for this evil…’’ [emphasis added]

The evil that Madison sought to avoid was inconsistency and arbitrariness in parliamentary practice. The new Congress was necessarily obligated to address many procedural questions as matters of first impression. Lacking established traditions, norms, or practices, the House of Representatives had to feel its way forward slowly, gradually developing a system of rules, procedures – and precedents. As Madison correctly surmised, time did provide a remedy. As questions of procedure arose and were resolved by the House, its parliamentary principles became fixed points of reference – precedents – that could be relied on in deciding new cases.

A contemporary of Madison’s, Thomas Jefferson, also recognized the value of precedents. In section 1.2 of his Manual of Parliamentary Practice (composed during his time as presiding officer of the Senate), Jefferson asserted that “[i]t is much more material that there should be a rule to go by than what the rule is; that there may be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members’’ (emphasis added). This quote again highlights a key advantage of having an established body of precedents to rely on: consistency, predictability, and reliability. Such a body of work also fulfills Jefferson’s vision of a “parliamentary branch of the law’’ (Jefferson letter to George Wythe, February 28, 1800).

The precedents of the House stand on the same foundation as our common law legal tradition, exemplified by the Latin maxim stare decisis (or “let the decision stand’’). In any legislative body, the same procedural points occur time and again, and there is little point in re-litigating questions that have already been thoroughly discussed. By adhering to prior procedural rulings, the House is able to achieve the consistency and predictability that Madison and Jefferson thought vital to the legislative process.

Another contemporary of Madison and Jefferson, John Adams, defined a republic as “a government of laws, and not of men” (To the Inhabitants of of the Colony of Massachusetts Bay, March 6, 1775). This succinct formulation deftly captures the connection between precedents and the rule of law. By adhering to its settled precedents, the House situates the decision-making of its members within the context of a body of laws. The caprice and captiousness decried by Jefferson is thus replaced by the stability and certainty of impersonal, impartial law.

The House or Representatives has a long tradition of cataloging and publishing its parliamentary precedents. The first comprehensive attempt to compile the precedents of the House occurred in 1907, with the publication of the Hinds’ Precedents series. This five-volume work covered the entire span from the First Congress in which Madison served to the beginning of the 20th century. A subsequent series of three volumes – Cannon’s Precedents – was published in 1936, and catalogued precedents established during the 1907-1936 period. Deschler’s Precedents began in the mid-1970s, with the last of its 18 volumes completed in 2013.

The latest series of precedents, entitled simply “Precedents of the United States House of Representatives,’’ saw its first volume published in 2017. The second volume has just been published, and is now available online. These new volumes continue the venerable tradition of grounding the parliamentary practice of the House in settled law. It is a legacy that would have pleased Madison, Jefferson, and Adams, and it is one of which all Americans should be proud.