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“We Refer a Lot of Things that Don’t 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 chairman of the Committee on Oversight and Government Reform at the time Clemens testified before that committee) had referred the matter to the Department for investigation.

As a technical matter, Davis is certainly correct. The Justice Department is not obligated to, and does not in fact, prosecute all cases referred to it by Congress. (Arguably, the Justice Department is obligated to present all congressional contempt cases referred under 2 U.S.C. ¶ 194 to a grand jury, but it doesn’t do that either).

In the case of a congressional perjury referral such as was made with regard to Clemens, I think it is safe to assume that the Justice Department conducted a thorough investigation of whether Clemens lied before Congress when he denied ever having used steroids. After conducting the investigation, it presumably reached an independent conclusion that Clemens was lying. It seems unlikely that the Department relied on the referral letter from Waxman and Davis, particularly since that letter states: “We are not in a position to reach a definitive judgment as to whether Mr. Clemens lied to the Committee. Our only conclusion is that significant questions have been raised about Mr. Clemens’s truthfulness and that further investigation by the Department of Justice is warranted.”

It is different matter with respect to the “congressional elements” of the charges, however. Although the referral letter does not explicitly address these questions, the Justice Department would have reasonably assumed from the fact of the referral itself that Waxman and Davis believed that Clemens’s testimony was “material” to a matter within the jurisdiction of the committee, and, of course, that the committee was a “competent tribunal” engaged in the “due and proper exercise of the power of inquiry.”

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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.

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Why Doesn’t 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 call for the appointment of a special prosecutor, someone appointed by the Attorney General but given a guarantee of independence to conduct his or her investigation. However, even if the independence of the prosecutor is generally accepted (something that cannot be taken for granted in the highly partisan times in which we live), the criminal process is not necessarily the best mechanism for investigating the leaking of classified information.

For one thing, a prosecutor’s job is to build criminal cases, not to find out how and why leaks have occurred and how to stop them from happening again. For another, there are a lot of difficulties in conducting a successful criminal leak investigation. As recently explained by the Assistant Attorney General for the National Security Division: “One inherent difficulty in leak cases is that the investigations are focused on the pool of individuals who had access to the information, and not those to whom the information was disclosed. This is reflective of the fact that while there are certainly significant national security and law enforcement equities at play in unauthorized disclosure cases, there is also a need to recognize the serious First Amendment interests implicated whenever the media becomes involved in a criminal investigation.” Moreover, when the information in question has been widely disseminated across government agencies, it “can make identifying the source of the leak essentially impossible.”

The congressional intelligence committees have all the tools needed to investigate this matter. They have authority to compel the production of documents, testimony and other evidence in executive session and the systems and procedures to protect the secrecy of the information they gather. They have greater flexibility with regard to obtaining information from the media. Unlike a prosecutor, they don’t have to worry about fixing blame on a particular individual, satisfying all the elements of a criminal violation, or meeting the burden of proof beyond a reasonable doubt. They also do not need to conduct a public trial that might itself jeopardize national security. In addition to assessing responsibility for prior leaks, they can focus on actions to prevent future leaks and to contain the damage that has already been done.

The obvious rejoinder to all of this is that no one would trust Congress to conduct a fair and impartial investigation of such a politically sensitive matter. But while that observation might be compelling in other circumstances, this is a special case. In the first place, the secretive nature of the intelligence committees’ work makes them less susceptible to the occupational hazard of grandstanding. In the second place, Feinstein and Rogers are widely respected, and it would be hard (not impossible, but hard) to characterize any investigation that they jointly conducted as either a witch hunt or a coverup.

And in this case, the comparison is not to a special prosecutor but to prosecutors handpicked by Attorney General Holder. As far as public confidence is concerned, Feinstein and Rogers (or should it be Rogers and Feinstein- it has more of a ring) win hands down.

Of course, if the congressional intelligence committees were to undertake this investigation, they would need an experienced investigator to lead it. Someone who the public would trust. Preferably with some experience in leak investigations. I wonder if anyone like that is available?

 

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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 this proposal than I did before. I am also not too sure that Epps is right in thinking that the President’s biggest problem is the perception he is too weak. I mean, the man has a “kill list,” for Pete’s sake.

But let me concentrate on the positive. I wholeheartedly agree with Epps that the executive branch should share with us any analysis of Section Four that may have been done in connection with debt crises of 2011, 1995-96 or 1986 (or at any other time).  Epps reports “I called the U.S. Department of Justice to ask whether the Office of Legal Counsel has issued, or is preparing, a formal opinion on the President’s possible power under Section Four; the DOJ’s spokesman did not return my call.”

Well, I can beat that. I filed a FOIA request last July seeking that the Treasury Department produce “[a]ll documents that contain, discuss, refer or relate to any legal opinion or analysis by the Treasury Department General Counsel, or any attorney thereof, of Section Four of the Fourteenth Amendment (also known as the Public Debt Clause), or any application or potential application of Section Four to the statutory debt limit.”  I received a prompt response to tell me that . . . well, that I wouldn’t be receiving a prompt response. According to the Treasury Department, “unusual circumstances exist regarding a search and review of the information requested which may result in voluminous records.” Since then, nada.

It’s a little surprising that my request, which I thought was pretty narrow, would (or might) result in “voluminous records.” Presumably this means that Treasury has done some sort of analysis of Section Four. I assume that Epps would like to see it. So would I.

And there is no reason why the Treasury Department shouldn’t share it. Its not like we are asking to see the kill list, after all.

Update: Here is the FOIA request.

 

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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 regarding the validity of recess appointments. The executive branch’s theories are broad enough to allow the President to fill any vacancy at virtually any time, and to keep it filled throughout his term (and beyond), without Senate participation. Meanwhile, there are respectable counter-arguments, some of which have enjoyed wide currency in Congress, that cast doubt on the validity of the vast majority of modern recess appointments.

This is not a healthy situation. As Donald Morgan notes in Congress and the Constitution 25 (1966), “satisfactory settlement of constitutional questions is . . . necessary [because] [f]ailure to achieve settlement may cause inconvenience, confusion, disorder, retaliation, violence, and even civil war.” In the present case it may also cause embarrassment, as politicians, lawyers and the like rush to switch sides depending on whose ox is being gored. (For an example, see Adam White’s cleverly titled “Confirmation Bias”).

But how to reach a constitutional settlement? Many would argue, or simply assume, that this can be achieved only by a Supreme Court decision. As the courts like to remind us incessantly, it is their province to “say what the law is.” Until they say, the theory goes, who knows what the law is?

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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 determine the end of the Senate’s “next session” for purposes of the RAC.

 

The Reciprocal Meaning of Recess and Session

Discussion of the term “recess” has generally agreed that it may refer, both today and at the time the Constitution was written, to suspensions of business of any duration. With regard to today’s usage, Professor Hartnett notes “as anyone who has ever attended elementary school, a committee meeting, or a trial can attest, a ‘recess’ is quite frequently a rather short break.” With regard to usage in the late 18th and early 19th centuries, the 11th Circuit states that “recess” was “a general term for the suspension of business,” pointing to Samuel Johnson’s “A Dictionary of the English Language” (1755) and Noah Webster’s “An American Dictionary of the English Language” (1828).

The term “session,” as used today, can refer to  “a single continuous sitting, or period of sitting, of persons so assembled,” or “a continuous series of sittings or meetings of a court, legislature, or the like.” Thus, we might refer to “the afternoon session,” or “today’s session,” or the “fall session.” The degree of continuity is relative; saying that the Senate is “in session” might mean that Senators are currently on the floor conducting business, or that the Senate is conducting business today, or that the Senate is “in town” and meeting from time to time.

Although both “recess” and “session” can be used in different senses, one sense is as mutually exclusive statuses of a legislative body. As Senator Gore explained in 1814, “[t]he time of the Senate  consists of two periods, viz: their session and their recess.”

This usage of the terms “session” and “recess,” which Hartnett terms the “reciprocal” usage, was recognized in the 18th century. Thus, Johnson’s dictionary defines “session” as “an assembly of magistrates or senators” or “the space for which an assembly sits without intermission or recess.” Put another way, a “recess” would break the continuity of a “session” and thereby end it. An “intra-session recess” would therefore be oxymoronic.

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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 the executive branch exaggerates when it presents Warren as a defender of legislative branch interests and prerogatives. See, e.g. Brief of the United States in U.S. v. Miller 15 (contending that Warren’s opinions should be viewed in the context that the Comptroller General is an “officer of the Legislative Branch” and therefore “subservient to Congress”).

In the spring of 1947 Warren issued two opinions that rejected attempts by administrative agencies, in one case the Coal Mines Administration and in the other the U.S. Maritime Commission, to circumvent statutory restrictions on their authorities. These decisions led Truman to personally phone Warren to complain. The tone of this call, which occurred on Monday, June 30, 1947, must be left to the imagination, but on Wednesday Warren sent Truman a letter which begins “My dear Mr. President: Needless to say I was quite disturbed when I received your telephone call on June 30 . . .” and follows with a lengthy explanation of why he had no option but to decide the cases as he did.

I will spare you the details, but Warren emphasizes that he bent over backwards to assist the agencies in resolving their problems, including in one case personally telephoning the Chairman of the House Appropriations Committee to lobby him on behalf of the Maritime Commission. As I noted previously, there is no evidence of similar consultation with Congress before Warren decided adversely to its interests the following summer.

Warren closes his letter with a description of his office’s role that might seem more appropriate for the Office of Legal Counsel than for a legislative office “subservient to Congress:”

I want to assure you, Mr. President, that the officials of this office have a sympathetic understanding of the critical problems that many times confront the President and the departments and establishments of the Government. Many of them work overtime gratuitously on nights, week-ends and holidays in an effort to assist the Executive agencies in solving their problems and otherwise to extend the fullest cooperation. But just as those agencies are amenable to the law, and must abide by legislative enactments, so too must the General Accounting Office in passing upon matters coming before it. Occasions arise, of course, when we must decide questions without regard to our personal sympathies and, sometimes, adversely to the wishes of administrative officials. I know, too, the tremendous burden you must bear and the fact that many times matters are called to your attention so briefly or in such manner that the many details thereof—as in these two cases—are not made known to you. It is simply for that reason that I have considered it appropriate to send you this letter in order that you may have the complete picture before you in writing and know the thorough and sympathetic consideration that the matters involved received in the General Accounting Office.

Truman was evidently mollified, because he responded with a note of appreciation on July 11, closing as follows:

As you know, I have been having a lot of difficulties with the Congress, and with other things, and I was very certain that it was not your policy to add to those difficulties. I am very glad I called you because I know you feel better, and I am sure I do, over our exchange of information.

I don’t think it is unreasonable to suspect that when Warren reviewed the politically sensitive RAC cases the following year, he was keenly aware of the need to give “sympathetic consideration” to the administration’s request so as not “to add to [Truman’s] difficulties” and perhaps to avoid another call from “give ‘em hell Harry.”

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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) was a “competent tribunal” when it questioned Clemens in 2008 about his alleged steroid use. They also want jurors to decide if COGR was engaged in “the due and proper exercise of the power of inquiry” and whether Clemens’s alleged false statements were made in a matter “within the jurisdiction” of the legislative branch.

According to the defense team, these competency elements all boil down to one basic inquiry: what was COGR’s purpose in calling Clemens to testify and with respect to the specific questions he was asked. Examples of improper purpose, they say, include:

  • Questioning a witness solely for a purpose other than to elicit facts in aid of legislation
  • Usurping the functions of a prosecuting attorney in the guise of a legislative investigation
  • Re-questioning a witness for the purpose of rendering him more liable to criminal prosecution
  • Conducting a hearing for an actual purpose different than a stated purpose
  • Directing an inquiry primarily to the witness’s guilt or innocence of a crime

To which the prosecution responds: go ahead, make my day. Rather than contesting the defense position on what types of competency issues may be presented to the jury, or pointing out the serious Speech or Debate/separation of powers problems that could result from a judicial inquiry into legislative motives, the government seems to concede the defense’s right to put COGR on trial.

Instead, the prosecution warns that if the defense exercises this right, the government must be permitted the opportunity to show the “broader context” of the congressional investigation. It says “if defendant thus calls into question the competency of the congressional tribunal by suggesting that the Committee was not acting with a proper legislative purpose, then the United States must be permitted to explain, among other things, the seriousness of the problem of steroids and other performance enhancing drugs, the national spotlight being cast on this problem, and the necessity for the congressional inquiry.” The defendant “cannot, on the one hand, impugn the integrity of the Oversight Committee by suggesting that its true- singular- motive was a perjury indictment of him, but, on the other hand, preclude the United States from explaining to the jury, for example, that the Committee’s investigative work was of national importance because of the wide-spread problem of steroid and other performance enhancing drug use in Major League Baseball.”

This strikes me as a dubious prosecution strategy. In the first place, I doubt that anyone is disputing the “seriousness of the problem of steroids and other performance enhancing drugs,” generally speaking. What is being questioned is the reason for calling a particular witness to a particular congressional hearing. I don’t think that Judge Walton will allow that to be the basis for inquiry into steroid use by other baseball players. Moreover, even if the court does allow it, I am not sure this is a good trade for the prosecution. Many jurors may be more concerned about Congress’s reasons for the investigation than they are about steroid use in baseball.

I also wonder about the more general implications of the prosecution’s apparent concessions. The government must prove that Clemens’s statements were material, and this means that they have to be related to a legitimate legislative purpose. But there also have to be limits on how far the parties can go into the actual motives of the COGR members, or otherwise every congressional perjury case will devolve into a political trial of Members of Congress. The prosecutors have not suggested, at least yet, what those limits might be.

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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 interests of the Congress.

To set the stage, Warren had been a long-serving Democratic congressman from North Carolina who was thrice offered the position of Comptroller General by President Franklin D. Roosevelt. The third time, in 1940, while he was serving as acting House Majority Leader, Warren accepted the offer. Warren’s acceptance of the position was an important signal that Roosevelt, who had previously attempted to eliminate or radically transform the GAO, no longer intended to do so. As Warren would later explain: “Mr. Roosevelt gave up his fight when I accepted this appointment. . . . [I]t is hard to conceive that I would give up a seat in Congress and accept this position in order to preside over the liquidation of the General Accounting Office.”

During World War II, the GAO’s most important function was to audit and investigate military expenditures, particularly the thousands of cost-plus contracts that were awarded in support of the war effort. In this role Warren worked closely with then-Senator Harry Truman, who chaired the Senate Special Committee to Investigate the National Defense Program. For example, in April 1943 Warren informed Truman of kickbacks that were being paid by Detroit-area subcontractors to procure work on these cost-plus defense contracts. Warren later proposed legislation, with Truman’s support, to prohibit such kickbacks.

Warren’s partisan affiliation and his close ties to the Roosevelt and Truman administrations may or may not be relevant to what follows, but they are certainly worth keeping in mind.

Truman became Roosevelt’s Vice President and ascended to the presidency on Roosevelt’s death in April 1945. The Republicans won control of Congress in 1946, ending (or interrupting) the period of Democratic dominance that began with the elections of 1932. The Eightieth Congress assembled on January 3, 1947 and adjourned on July 27, 1947. Rather than adjourning sine die, however, it adjourned to January 2, 1948, and reserved to congressional leaders the authority to call the Congress back into session at an earlier date. It followed the same practice in 1948, adjourning on June 20 until December 31, but authorizing congressional leaders to call members back early.

Given the bitter relations that developed between President Truman and the Republican Congress, one might assume that this practice was designed, as in the Fortieth Congress, as a means of thwarting the exercise of presidential authority. In fact, according to the Senate historian, it reflected a precaution taken in case something happened to the President (there being no Vice President to assume his duties).

To make matters more interesting, in both 1947 and 1948, Truman used his power under Article II, section 3 (“he may, on extraordinary Occasions, convene both Houses, or either of them”) to convene Congress during its extended adjournment. He convened Congress from November 17, 1947 to December 19, 1947, and again from July 26, 1948 to August 7, 1948.

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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 existence of a recess is determined “[u]nder a framework first articulated by Attorney General Daugherty in 1921, and subsequently reaffirmed and applied by several opinions of the Attorney General and this Office”); id. at 12 (discussing Daugherty’s “seminal opinion”).

The prominence of this opinion is presumably not due to the prestige of its author. No one would describe Harry Daugherty as an “extraordinary lawyer.” At least not in a good way. See L. McCartney, The Teapot Dome Scandal 63 (2008) (describing how Daugherty and a crony entertained President Harding and members of his administration at the H Street house, which they ran “like a combination bordello, gambling den, and speakeasy at a cost of $50,000 a year.”).

But I digress.

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