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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 significant. As far as I recall, it has not been discussed in any of the briefs thus far, so it is worth noting as the petition for certiorari is prepared.

The case, which will be celebrating its half-a-millennium anniversary next year, is described thusly by the Supreme Court in footnote 13 of United States v. Johnson, 383 U.S. 169 (1966):

See, e. g., Strode’s Case, one of the earliest and most important English cases dealing with the privilege. In 1512, Richard Strode, a member of Commons from Devonshire, introduced a bill regulating tin miners which appears to have been motivated by a personal interest. He was prosecuted in a local Stannary Court, a court of special jurisdiction to deal with tin miners, for violating a local law making it an offense to obstruct tin mining. He was sentenced and imprisoned. Parliament released him in a special bill, declaring “That suits, accusements, condemnations, executions, fines, amerciaments, punishments, corrections, grievances, charges, and impositions, put or had, or hereafter to be put or had, unto or upon the said Richard, and to every other of the person or persons afore specified that now be of this present Parliament, or that of any Parliament hereafter shall be, for any bill, speaking, reasoning, or declaring of any matter or matters concerning the Parliament to be communed and treated of, be utterly void and of none effect.”

Strode’s case shows that a Member of Congress cannot be prosecuted for introducing or supporting a bill, even if he does so for corrupt reasons.

No doubt the prosecution would attempt to distinguish the Renzi case on the grounds that Renzi is not being prosecuted for introducing or supporting land exchange legislation, but for “extorting” private parties by refusing to support land exchange legislation unless it included property owned by his business associate. But this narrow reading of Strode’s case would seem to be inconsistent with Parliament’s broad declaration.

Could Strode have been prosecuted for “conspiring” with private interests in order to draft or introduce the tin mining legislation? Could he have been prosecuted if it were alleged that merely drafting, introducing or announcing his support for the tin mining legislation was a corrupt act? Surely the point of Parliament’s declaration was that Strode was free to draft, introduce and support whatever bill he liked, regardless of his alleged motives for doing so.

If I were Reid Weingarten, I would argue that the Justice Department is trying to overturn 500 years (by the time the case actually reaches the Supreme Court) of precedent on parliamentary independence.

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“Would You Like Tax Hikes 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 in order to close a meeting to the public. Thus, if the event tomorrow qualifies as a “meeting” within the meaning of the rules, it would not be permissible.

But is it a “meeting” in that sense? According to experienced congressional counsel, a “meeting” within the meaning of the rules requires that there be some sort of formal transaction of business, as opposed to an informal “working session.” If no vote is held nor other formal action taken, presumably it can be argued that any get-together of the Supercommittee falls within the latter category. Whether or not this conforms to the spirit of the rules depends, I would think, on what actually transpires at this private breakfast.

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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 expert, not necessarily legal, advice). She proposes that the committees proactively establish rules or policies to “clarify that the committee leadership can share information with staff where necessary to carry out its oversight responsibilities, including with respect to covert actions.”

I basically agree with this proposal, which is similar in approach to what I have suggested with regard to sharing information with other committee members:

To make the matter clear and to put the executive branch on notice, the House and Senate should each adopt a rule that allows the Gang of Four to further disseminate the contents of a restricted briefing within the intelligence committees. The rule could provide for notice to the President before such dissemination takes place, which would give the executive branch an opportunity to state any objections it may have. In cases where the President objected, the rule might require that the chair and ranking member agree to overrule the objection (or a vote of the entire committee might be required under some circumstances).

It would make sense for such a rule to address both sharing of information with other committee members and with congressional staff.

I would suggest that the default rule for Gang of Four briefings on non-covert action matters should be that each member of the Gang of Four is free to discuss the information with designated committee staff for purposes of obtaining advice on legislative or oversight matters. If the executive branch wished to alter this rule for purposes of a particular briefing, it would have to provide a justification in advance of the briefing, which the intelligence committee leadership could then decide whether to accept or reject.

It should be noted that staff are not necessarily excluded from Gang of Four briefings; for example, selected staff members were included in the Gang of Four briefings on enhanced interrogations. Gang of Eight briefings on covert action, however, are statutorily limited to the Gang of Four plus the four congressional leaders. Therefore, one would not expect staff to be in attendance.

Because of the highly sensitive and time-limited nature of covert operations, I think that different arrangements may be needed with respect to briefings on such operations. The statute recognizes that the President may withhold prior notification entirely with respect to covert operations (as, for example, was the case with regard to the May 1, 2011 operation against Osama bin Laden).  It therefore may be wise or necessary for the intelligence committees to agree not to share information with staff without prior notice to the executive branch (in the same manner as I suggested with regard to sharing information with other committee members).

Finally, I think that it would be preferable to embody these procedures in House and Senate rules, rather than merely in committee rules. However, because of the difficult of amending the Senate’s rules in particular, Clark’s approach may be prove to be more feasible.

For further background, see Al Cummings’s reports on Gang of Eight and Gang of Four briefings.

 

 

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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 with service in the U.S. Congress.

Senator Graham serves in the U.S. Air Force Reserves. From time to time he has been called to active duty, including three “mini-tours” in Iraq. During one of his stints on active duty, the Judge Advocate General of the Air Force assigned Graham to sit as a judge on the Air Force Court of Criminal Appeals, an intermediate appellate court in the military justice system. In that capacity, Graham served in 2004 on a panel that upheld the conviction of an airman charged with drug use.

Senator Brown is a member of the Massachusetts Army National Guard. He also is called to active duty from time to time, including a recent week-long training stint in Afghanistan.

As military officers, albeit part-time and normally inactive, Graham and Brown might be thought to hold  “office[s] under the United States” which would make them ineligible to serve in Congress under the Incompatibility Clause. There seems to be little question that the Incompatibility Clause applies to military offices and thus that regular active-duty officers in the United States military are prohibited from serving in Congress. See Note, “An Officer and a Congressman: The Unconstitutionality of Congressmen in the Armed Forces Reserve,” 97 Geo. L.J 1739, 1744-45 (2009) (collecting evidence that the Framers understood the Incompatibility Clause applies to military offices).

Continue reading “Are Lindsey Graham and Scott Brown Incompatible?”

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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 Rules of the House of Representatives for the 112th Congress, and do not conflict with the applicable provisions of the Budget Control Act, shall govern the proceedings of the Joint Select Committee.” That’s great, but what happens if there are differences between the House and Senate rules?

For example, clause 2 of House Rule XI requires each committee meeting and hearing be opened to the public unless the committee determines by record vote, with a majority being present, that one of certain specified grounds for closure are present, including that disclosure of evidence or matters to considered “would endanger national security, would compromise sensitive law enforcement information, [or] would tend to defame, degrade or incriminate any person.”

The grounds for closing a Senate committee meeting or hearing under paragraph 5(b) of Senate Rule XXVI are similar, but not identical. Any of the grounds identified in the House Rules would probably also justify closing a Senate meeting or hearing, but the Senate identifies additional grounds, such as the need to protect certain confidential financial or commercial information, that would not justify closure under the House Rules. (Admittedly, these particular differences are not likely to be important, but one wonders whether the same could be said of all the differences between House and Senate rules).

More importantly, Supercommittee Rule V(2) states that “[e]ach hearing and meeting of the Joint Select Committee shall be open to the public and the media unless the Joint Select Committee, in open session and a quorum being present, determines by majority vote that such hearing or meeting shall be held in closed session.” This provision does not specify any grounds for closing a meeting or hearing. There was apparently some discussion at the Supercommittee meeting today that there could be closed-door discussions of “important issues,” although it is not clear whether this referred to formally closed meetings or merely to informal discussions among members.

To the extent that Rule V(2) might be interpreted to allow closing of hearings or meetings to facilitate delicate negotiations, this is a problem. Neither the House nor Senate rules permit closing of hearings or meetings for reasons of deliberative privacy. I would conclude, as does John Wonderlich, that Rule V(2) should not be read to permit closure for reasons forbidden by both the House and Senate rules (particularly since the Supercommittee Rules do not provide any rule of interpretation in the event of a conflict between its additional provisions and those of the House and Senate rules that it incorporates). However, it seems entirely possible that some members of the Supercommittee believe that they can close hearings and meetings for any reason, the House and Senate rules notwithstanding.

 

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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 the Clinton administration to sabotage Iran’s nuclear program by giving flawed blueprints for key components to a Russian nuclear scientist who had defected. The idea was that the Russian scientist, who was covertly working for the CIA, would feed the flawed designs to the Iranians. But according to the book, the CIA’s efforts went awry when the scientist got nervous and instead tipped off the Iranians to the flaws in the designs.”

The operation, codenamed “Merlin,” was sort of like a nuclear “Fast and Furious.”

Following his less than amicable separation from the CIA in 2002, Sterling approached the Senate Select Committee on Intelligence (SSCI) with information about Operation Merlin in March 2003. He met with SSCI staffers Don Stone and Vicki Divoll and told them that the program had not only been a failure, but may have assisted the Iranians in advancing their nuclear program.

Continue reading “A Point of Order Final Exam”

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“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 this exchange, Luke Russert tweeted that the “House historian says public move by Boehner to tell Obama to change date is unprecedented.” To the extent that this implies that Presidents have traditionally determined the dates of their addresses to joint sessions of Congress without consultation or negotiation with the leadership, it is misleading both as to precedent and as to the advice of the House Historian.

A joint session to hear the President is convened by a concurrent resolution. See Deschler’s Precedents, ch. 1, § 3.4; see also House History: Joint Meetings, Joint Sessions and Inaugurations. As a formal matter, therefore, permission of both Houses is required; Deschler indicates that in the House the Speaker and leadership informally exercise control over the date and time of joint sessions or meetings. There is no indication that the President has the authority to set the date and time unilaterally.

Thus, it stands to reason that when the President wants to address a joint session, the White House contacts the congressional leadership and a date and time is worked out in private discussions. This seems to be the protocol that the White House was attempting to follow when it contacted the Speaker’s office. The absence of any “precedent” on this issue does not mean that there has never been any negotiation or disagreement on a date and time; it merely means that no one went public with the issue before an agreement was reached. That is all the House Historian was trying to convey.

 

Update: Russert’s tweet was linked to by this Jim Downie blog post (which in turn was cited by Jonathan Capehart in the Washington Post). Downie and Capehart, however, did not link to the original tweet, but to someone else’s selective quotation of that tweet. If one goes to the original tweet, it reads as follows: “House historian says public move by Boehner to tell #Obama to change date is unprecedented. Negotiations usually happen behind closed doors.”

In fairness to Russert, the second sentence makes his statement less misleading. The statement that “negotiations usually happen behind closed doors” is an accurate paraphrase of what the House Historian said. Of course, it also makes the first sentence entirely meaningless, at least for the purposes of apportioning blame between the President and the Speaker.

Needless to say, whoever knowingly omitted that second sentence must have intended to mislead.

 

Update 2: This Hot Air post indicates that there is some “precedent” for a Speaker refusing a presidential request to address Congress, though in that case it was President Reagan’s request to address the House, rather than a joint session. Something that the House Historian might want to note, although not inconsistent with the observation that negotiations usually take place behind closed doors.

 

 

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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 to preserve the privilege in congressional investigations, as well as for committees that wish to avoid unnecessarily trampling upon it.

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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 information, it stands as an absolute bar to compelled disclosure of such information, no matter how relevant and admissible it might be. (Note that even the most “privileged” Speech or Debate materials may be admissible in evidence against a non-legislative party).

In rejecting the nondisclosure privilege asserted by former congressman Renzi, the Ninth Circuit stressed the absolute nature of the privilege. The court specifically pointed out that any nondisclosure privilege would prohibit review of legislative documents by the judicial branch just as much as by the executive. See Renzi, slip op. at 8552 (“If the Clause applies, it applies absolutely- there is no balancing of interests nor any lessening of the protection afforded depending on the branch that perpetrates the intrusion.”). Among other things, this would make it impossible for the courts to resolve privilege claims without first violating the nondisclosure privilege.

For all of these reasons I conclude that the Renzi court was correct in rejecting a nondisclosure privilege under the Speech or Debate Clause. I reach this conclusion reluctantly, however, because some legislative information should have protection from disclosure. Certain legislative documents, such as executive session materials and confidential ethics opinions, clearly warrant protection. There is a strong case that other legislative material, such as committee investigatory files, deliberative legislative documents, and confidential constituent correspondence, merit at least qualified protection.

There seems to be no reason why the scope of protection should follow the contours of the Speech or Debate Clause. The executive and judicial branches, neither of which is covered by Speech or Debate, enjoy protections from disclosure for certain types of confidential communications and other information.

The courts have ample power under the Federal Rules of Evidence to develop the contours of a legislative privilege outside of the Speech or Debate Clause, although they have not done so to date. The possibility is suggested by the Supreme Court’s decision in United States v. Gravel, 408 U.S. 606 (1972) which involved a grand jury investigation of the illegal leaking and publication of the Pentagon Papers. Referring to the possibility that Rodberg, a congressional aide, might be questioned about the activities of non-legislative actors who were unprotected by Speech or Debate, the Court stated: “As for inquiry of Rodberg about third-party crimes, we are quite sure that the District Court has ample power to keep the grand jury proceedings within proper bounds and to foreclose improvident harassment and fishing expeditions into the affairs of a Member of Congress that are no proper concern of the grand jury or the Executive Branch.” Id. at 629.

The inference is unmistakable that the district court should use its authority to prohibit inquiry into congressional activities that, although not protected from disclosure by Speech or Debate, were “no proper concern” of the other branches. A similar approach could carve out categories of congressional documents that are appropriately privileged from compelled production.

I don’t know whether the Court, should it grant cert in Renzi, would have the opportunity to consider if there is a legislative nondisclosure privilege outside of Speech or Debate. But at least it should not foreclose the possibility.

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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 Court observed that “while the framers of the Constitution did not adopt the lex et consuetudo of the English Parliament as a whole, they did incorporate such parts of it, and with it such privileges of Parliament, as they thought proper to be applied to the two Houses of Congress.”

In the British courts there historically has been a prohibition against taking cognizance of matters occurring in Parliament, apart from duly enacted statutes. The concept underlying this rule appears to fall somewhere between a kind of comity (it would be disrespectful for judges to pronounce on matters being debated in Parliament) and a more absolute jurisdictional bar. The latter idea is sometimes referred to as “exclusive cognizance,” and, as explained by the U.K. Supreme Court in Chaytor, “was originally based on the premise that the High Court of Parliament had its own peculiar law which was not known to the courts.”

The British practice has been modified in modern times. For example, in 1980 Parliament adopted a resolution that permitted reference in court to certain parliamentary papers. Then in Pepper v. Hart, 1 AC 593 (1993), “the Law Lords set aside the very old rule that debates in Parliament ought not to be cited in court as an aid to the construction of the Acts which were shaped by the debates.” William McKay & Charles Johnson, Parliament & Congress 511 (2010). Even so, it remains impermissible to consider parliamentary debates for other purposes, such as determining whether Parliament’s reasons for adopting legislation were consistent with the European Convention on Human Rights. Id. 512.

One might think that the British principles of comity and exclusive cognizance would support a broad nondisclosure privilege. Compelling the production of parliamentary records could be viewed as a type of inappropriate judicial notice or scrutiny of parliamentary proceedings. Similarly, it might be viewed as a violation of principles of comity or mutual respect between the judicial and legislative branches.

Although I have not come across any case law on point, a couple of non-judicial precedents shed some light on the subject. The Joint Committee on Parliamentary Privilege, set up in the late 1990s to study the need for modernizing British law on parliamentary privilege, recounts this episode:

Sir Donald Limon, then Clerk of the House of Commons, drew attention to a court action brought against the House of Commons by a disappointed contractor for work on Portcullis House, the new parliamentary building opposite Big Ben. Select committee papers relevant to the contract had been included (with the permission of the House of Commons, secured by motion) in the documents exchanged between the parties. This met the obligation to disclose, but left unresolved the crucial question of how the disclosed material could, if relevant, be used in the course of the trial. Article 9 precluded such use. Unlike its non-statutory privileges, the House of Commons had no power to waive this statutory provision.

Joint Committee Report ¶ 254 (1999). The Joint Committee distinguishes here between the use of privileged documents, on the one hand, and their disclosure in litigation, on the other. The former is covered by article 9, while the latter is not. Note that the report leaves open the possibility that disclosure would be covered by another, non-absolute, privilege.

Another example is the protocol issued by the Speaker of the House of Commons to govern situations in which warrants were issued for searches within the precincts of Parliament (this followed a publicized case in which the police searched the office of a prominent MP). The protocol provides for advance notice of any parliamentary search and further provides that

The Speaker may attach conditions to such a search which require the police to describe to a senior parliamentary official the nature of any material being seized which may relate to a Member’s parliamentary work and may therefore be covered by parliamentary privilege [in which case] the police shall be required to sign an undertaking to maintain the confidentiality of that material removed, until such time as any issue of privilege has been resolved.

See British House of Commons Note on Parliamentary Privilege and Individual Members 10 (Feb. 10, 2010).

Again, this suggests that mere disclosure of legislative materials does not itself waive or violate the privilege. Accordingly, legislative materials seized in a search can be dealt with after the fact by negotiation between the House of Commons and the police (note that the individual MP whose records were seized is given no formal role in this process).

The British protocol contrasts with the approach of the D.C. Circuit in U.S. v. Rayburn House Office Building, 497 F.3d 654 (D.C. Cir. 2007), where the court held that the Speech or Debate Clause required that legislative materials be segregated and removed before law enforcement authorities seized evidence from a congressional office pursuant to a search warrant. Because the Rayburn court found that Speech or Debate encompasses a nondisclosure privilege, the individual Member, rather than the legislative body alone, may assert the privilege.

If British practice does not support the existence of a nondisclosure privilege, the U.S. Supreme Court is unlikely to recognize one. The Court has emphasized that the Speech or Debate Clause was not intended to sweep as broadly as the privileges enjoyed by the British Parliament. See U.S. v. Brewster, 408 U.S. 501 (1972) (“Although the Speech or Debate Clause’s historic roots are in English history, it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government, rather than the English parliamentary system. We should bear in mind that the English system differs from ours in that their Parliament is the supreme authority, not a coordinate branch. Our speech or debate privilege was designed to preserve legislative independence, not supremacy.”).

U.S. courts have not recognized concepts such as “exclusive cognizance,” and have rejected the notion that the Congress inherited the “lex et consuetudo” parliamenti, a separate law and custom of Parliament unknown to the ordinary courts. If nondisclosure is not incorporated under article 9, it would not likely be encompassed by Speech or Debate. Moreover, U.S. courts have less reason to adopt a nondisclosure privilege because they have never observed a prohibition on judicial consideration of legislative proceedings. Federal courts routinely consider and scrutinize congressional proceedings (and have been known to question legislative motives).

Thus, British practice and precedent would seem to cut against recognition of a nondisclosure branch of Speech or Debate.