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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 (which I have criticized on occasion myself), but this doesn’t seem like a good way to run a railroad. With the House Ethics Committee hiring outside counsel to investigate itself, OCE looks like the most smoothly operating part of the ethics process right now. The House should step back and reassess the process as a whole before making any more dramatic changes.

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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 House Counsel to hire outside counsel to defend the constitutionality of the Defense of Marriage Act (DOMA). The essence of the claim was that the contract between House Counsel and the outside firm, signed in April 2011, violated the Act because the $500,000 obligation incurred exceeded the available appropriations in the FY2011 appropriation for the House Counsel’s office.

When I first read the complaint, several things struck me. First, the “ethics” issue raised by CREW was really a highly technical question of appropriations law. Not being an expert in this area, I couldn’t tell whether CREW’s claim was colorable or not. But I do know that the House Counsel has contracted with outside counsel in the past, using funds from other House accounts with the approval of the Committee on House Administration. It seemed odd that CREW did not address this fact, which was specifically mentioned by House Counsel Kerry Kircher in testimony that CREW submitted with its complaint.

Second, although Kircher made it clear that the funds to pay outside counsel would not be coming from the House Counsel’s office, but “from other sources in the House,” CREW offered little but vague generalities to support the proposition that this would be impermissible under the Anti-deficiency Act. The complaint is sprinkled with general citations to GAO’s multi-volume “Principles of Federal Appropriations Law,” but CREW identifies no specific authority for the proposition that reprogramming or transferring funds among House accounts is prohibited.

It is worth mentioning here that the core purpose of the Anti-deficiency Act is to ensure that the executive branch adheres to congressionally-imposed limits on expenditures. Although GAO has opined that the Act applies to the legislative branch, it appears that no legislative branch contract or expenditure has ever been found to have violated the Act. (FWIW, when I looked at the Act in connection with the government shutdowns in the 1990s, it was not clear to me that it was intended to apply to Congress at all).

Third, it was particularly surprising that CREW’s complaint does not cite any appropriations law expert in support of its theory. As far as can be determined from its website, CREW’s staff has no background in appropriations law. Given the highly technical nature of the allegations, one would have expected CREW to consult an expert before filing what is, after all, a claim that the Speaker of the House has violated a criminal statute. If it did so, there is no indication of it in the complaint.

Fourth, CREW’s decision to file a complaint against the Speaker also seemed curious. Following the Bipartisan Legal Advisory Group’s decision to defend DOMA, Boehner “directed House Counsel and House Administration Committee to assure that sufficient resources and associated expertise, including outside counsel, are available for appropriately defending the federal statute.”

The House Counsel is, of course, the House’s chief lawyer and was a party to the DOMA contract. The House Administration Committee is the committee of jurisdiction over accounts of the House generally, with specific authority over expenditures and auditing and settling of accounts, including those of House officers and administrative offices. See House Rule X(1)(k). The committee’s chairman, Dan Lungren, reflected the committee’s approval by signing the DOMA contract.

Presumably, when Speaker Boehner gave direction to the House Counsel and House Administration Committee, he expected that they would act in compliance with all applicable laws, rules and regulations. Filing an ethics charge against the Speaker for an Anti-deficiency Act violation in the House is like impeaching the President for a similar violation in the executive branch. Does CREW expect that the Speaker personally researches appropriations law to ensure that the House’s contracts are in compliance? Did it expect him to consult with an appropriations law expert to ensure that the DOMA contract in particular was lawful? Put another way, did it expect that he would do more than CREW itself apparently did before filing its complaint?

Finally, CREW chose to file its complaint with the OCE, an office with absolutely no expertise (and questionable authority) with regard to interpreting or opining on the Anti-deficiency Act or any other appropriations law issue. By contrast, it chose not to submit its complaint to GAO, a legislative branch agency with unquestionable and unparalleled expertise in this area. Unlike OCE, (which, AFAIK, has never addressed a remotely comparable issue), GAO has express statutory authority and decades of experience in resolving precisely these types of questions.

Fortunately, after CREW filed its complaint, the chairman of the House Legislative Branch Appropriations Subcommittee did ask GAO for an opinion on whether the DOMA contract violated the Anti-deficiency Act. On July 6, GAO issued an opinion, finding that the DOMA contract did not violate the Act and that the House has statutory authority to transfer funds from other contracts to cover the costs of the contract and other obligations of the House Counsel’s office.

GAO’s opinion relies heavily on 2 U.S.C. § 95b(b), which provides explicit authority for transfers among various House accounts, including that for the House Counsel. Significantly, the CREW complaint makes no mention of this provision, which naturally leads to the question of whether it was aware of it at the time that it filed its complaint.

CREW responded to the GAO opinion by withdrawing its OCE complaint. However, it did not issue an apology or explain its failure to discuss apparently controlling law in its original complaint. Moreover, its withdrawal letter somewhat churlishly claims that GAO did not address all of the issues raised in the CREW complaint, such as the question of whether the DOMA contract violated the Anti-deficiency Act by incurring obligations beyond FY2011. In fact, GAO did address precisely this question. See GAO Opinion of July 6, 2011 at 3 n.5.

We all make mistakes. But filing this strained ethics complaint against the Speaker of the House would seem to require something more than “my bad.” CREW has some explaining to do.

 

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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 entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”

If one is trying to answer the question of why the framers of the Fourteenth Amendment changed the language of Section 4 from ensuring that the public debt would remain “inviolate” to ensuring that the “validity” of the public debt would not be questioned, Article VI would be a promising start. Article VI and Section 4 are trying to address analogous problems, namely how the debts incurred under one constitutional order will be treated in another.

By using Article VI’s concept of “validity,” the framers of the Fourteenth Amendment may have been borrowing (so to speak) the original Constitution’s solution to a similar problem without necessarily reaching consensus among themselves as to what that solution would entail. In this regard it should be noted that the first Congress vigorously debated whether Article VI required full payment of creditors, particularly those who were assignees of debt instruments. See David Currie, The Constitution in Congress: The Federalist Period 1789-1801 73-76 (1997). Notwithstanding constitutional arguments made by Secretary of the Treasury Alexander Hamilton and supporters in Congress, the decision was ultimately made not to pay these creditors in full.

Whether or not the framers of the Fourteenth Amendment were specifically aware of this history, it seems reasonable that they would have had some sense that “constitutionalizing” the debt in a new way could have potential ramifications that might be difficult to appreciate fully at the time. The use of the term “validity” therefore suggests an intent to claim the security of a pre-existing legal status (while realizing the core objective of ensuring that Civil War debt would be treated the same as all other public debt) without breaking new ground on what that status would entail.

Article VI may also shed some light on what the framers of the Fourteenth Amendment meant when they used the term “debt.” As Professor Larry Tribe points out in a piece posted last night at The Volokh Conspiracy and elsewhere (in which this blog had the honor of being cited): “the word ‘debt’ appears five times in the original Constitution. In each of those instances, it would be highly unnatural to read ‘debt’ as synonymous with ‘all legally required payments.’ The alternative—suggesting that the framers or ratifiers of the Fourteenth Amendment used a word already used in the Constitution, but imbued it with a different meaning—is equally implausible.”

Scholars will have plenty of material to work through.

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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. Constitution. (I am not making that up). Apparently the prosecution needed Johnson to explain to the jurors that Article I establishes a Congress, consisting of a House and Senate, and grants it legislative powers.

The next exhibit was a photograph of the U.S. Capitol. Charlie correctly identified as such. Shockingly, there was no cross-examination on that point.

For the more substantive part of his direct testimony, Johnson explained the rules of the House, the role of committees, the broad investigatory jurisdiction of COGR, and the fact that it has been granted deposition authority by the House. Pretty much what I expected.

Johnson specifically described COGR’s investigatory jurisdiction as uniquely broad among House committees because it includes both its own legislative jurisdiction and that of any other committee of the House. He also mentioned the fact that COGR is supposed to report findings and recommendations to the committee of legislative jurisdiction. (I didn’t hear any discussion of whether it did so). There was no cross on this point.

One interesting question from the prosecution. Johnson was asked whether one purpose of committees holding public hearings was to convey information to the public. Johnson agreed that this was a “by-product” of public hearings, but demurred somewhat on whether this was a primary purpose of such hearings. There was no cross-examination on this point either.

When it was his turn, Rusty Hardin concentrated on getting Johnson to acknowledge that the congressional investigatory power was not unlimited. Johnson didn’t provide much assistance on this point, but he acknowledged that Congress cannot “expose for the sake of exposure” and that it lacks the authority to conduct a trial.

Clearly a major theme of the defense will be that COGR improperly exercised its investigatory authority to conduct a trial of private misconduct, rather than for legitimate legislative purposes. It remains to be seen how far the court will let it take this theme.

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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 false statements with which he is charged, but the tape has apparently never been released. According to this report, however, “a lawyer for the House appeared in court Wednesday and told U.S. District Judge Reggie Walton that the House clerk has the tape and it can only be released by a House resolution.”

I infer from the House’s position that the tape has been archived under House Rule VII, which provides in part that “[a]t the end of each Congress, the chairman of each committee shall transfer the records to the Clerk any noncurrent records of such committee.” Once the records have been transferred to the Clerk (who stores them at the Center for Legislative Archives in the National Archives), their public availability is governed by other provisions of Rule VII.

Any committee record that was not public prior to archiving will remain unavailable to the public for at least 30 years (unless an order of the committee during the Congress in which the record was created provides for a different period). However, more sensitive committee records, such as “[a]n investigative record that contains personal data relating to a specific living person (the disclosure of which would be an unwarranted invasion of personal privacy) . . . or a record relating to a hearing that was closed under clause 2(g)(2) of rule XI,” are kept closed for 50 years. Thus, under normal circumstances the Clemens tape would not be available to the public until 2038 at the earliest, and possibly not until 2058.

If Clemens issues a subpoena for the tape, however, as the article indicates he will, Rule VII would not provide the governing authority. House Rule VIII governs responses to subpoenas, and Clause 5(a) of Rule VII provides that “[t]his rule does not supersede rule VIII.” Thus, it would seem that the tape would have to be produced in response to a subpoena unless the provisions of Rule VIII dictate otherwise.

One relevant part of Rule VIII is the requirement that the recipient of a subpoena certify that compliance would be “consistent with the rights and privileges of the House.” Since the audiotape of the Clemens would be privileged under the Speech or Debate Clause (at least in the D.C. Circuit), it might be argued that producing it would be inconsistent with the rights and privileges of the House. But it would seem odd to say that this provision requires a vote of the House to release the audiotape. After all, COGR has acted as the holder of the privilege in the Clemens case and has chosen to assert or waive the privilege in various contexts. Why would permission of the House be required to waive the privilege as to the tape?

The only other relevant provision is Clause 6(b) of Rule VIII, which provides that “[u]nder no circumstances may minutes or transcripts of executive sessions, or evidence of witnesses in respect thereto, be disclosed or copied.” The term “executive session” most clearly refers to committee meetings or hearings that are closed by a vote of the committee pursuant to House Rule VI. House parlance often uses the term “executive session materials” to refer more broadly to non-public materials, particularly of an investigative nature, but I am not sure whether there is any specific House precedent as to whether those materials generally, or staff depositions in particular, would qualify as “executive session” within the meaning of Clause 6(b). Absent such precedent, I would expect that the Parliamentarians would be consulted on the proper interpretation of Clause 6(b).

Even if staff depositions are considered to be “executive sessions” under Clause 6(b) of Rule VIII, however, it seems very doubtful that this provision would justify withholding of the tape under the present circumstances. After all, the “transcript” of this “executive session” has already been released. Any interest that the House might have had in keeping the deposition confidential has already been eliminated.

I could be wrong, but I am skeptical that the Parliamentarians would insist on a vote of the House under these circumstances.

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“Future Legislative Acts” and the Ninth Circuit’s 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, unbeknownst to the companies, owed Renzi a substantial sum of money).

The court largely based its holding on United States v. Brewster, 408 U.S. 501 (1972), in which the Supreme Court held that bribery was not protected by Speech or Debate. Specifically, the Brewster Court emphasized that bribery involves the acceptance of money in exchange for the promise to perform a future legislative act (i.e., to sponsor or facilitate the bill that the bribe-giver is attempting to get enacted). The Court reasoned that the there was a distinction between performing a legislative act and promising to perform a legislative act in the future. Therefore, it concluded that the Clause would not prohibit showing that a Member of Congress had taken money in exchange for a promise to support future legislation.

The Ninth Circuit characterizes Renzi as being on all fours with Brewster.  Renzi promised to perform a future legislative act, i.e., introduce and support land exchange legislation, if the companies would pay money to a third person with whom Renzi had a business relationship. Except for the indirect means of payment, the court concludes that Renzi’s actions were exactly the same as those involved in Brewster. And the court finds no legal relevance to the fact that Renzi’s scheme was “more refined, more sophisticated,” i.e., that “[r]ather than selling his office for cash, he was wise enough to at least attempt to conceal his crime by using more indirect means of payment.”

The problem is that the Ninth Circuit’s position is premised on a subtle but significant mischaracterization of the charges against Renzi. The court describes the allegations against Renzi (which it doesn’t quote verbatim) as if the congressman had demanded that the private companies purchase the Sandlin property in as a condition of his support of legislation, apart from his insistence that the property be included in the legislation. But the indictment actually alleges that Renzi “insisted that the Sandlin Property must be included in the land exchange legislation if he was to be a sponsor.”

It is true that the indictment clearly lays out that Renzi was aware that the companies would have to purchase the property in order to include it in the legislation and one might infer, though the indictment does not so allege, that Renzi and Sandlin conspired to ensure that the companies had to purchase the property, rather than simply obtaining an option to purchase, in order to fulfill Renzi’s terms. But on its face the indictment can be sustained only if the jury finds that Renzi had an improper motive for insisting that the land exchange legislation be crafted to include the Sandlin property. This makes Renzi’s case distinguishable from Brewster, where the legislator’s motive for crafting, supporting or voting for the legislation was not at issue.

Thus, the Renzi case would seem to pose the question of whether negotiating over the terms of a particular piece of legislation is itself outside the legislative process because it relates only to “future” legislative acts. This is not a question resolved in Brewster and the Ninth Circuit’s position marks a significant expansion of Brewster’s rationale. Indeed, if the Renzi court is correct, there would seem to be very little left of the Speech or Debate privilege outside the corners of formal legislative proceedings, such as committee hearings and debates on the floor.

Finally, it should be noted that this Speech or Debate issue is not the one on which there is a circuit split (I will discuss the latter in a separate post). Nevertheless, it is an important issue that the Supreme Court ought to resolve, particularly if it is going to hear the case anyway.

 

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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 COGR at the time that Clemens testified). They are clearly an important part of the government’s evidence with regard to the congressional facts.

The House Counsel’s office has filed a motion explaining to the court that it will be representing these witnesses at trial and may pose Speech or Debate or other objections to questions posed by either the prosecution or defense. This motion tells us a little bit about what they may testify to.

Johnson. The motion states that “[w]e do not anticipate, at this time, that Mr. Johnson will be questioned at trial by the prosecution about matters that are Speech or Debate protected or protected by other privileges.”  Presumably, therefore, Johnson will be testifying about his general knowledge and expertise on House rules and procedure. Thus, for example, he may explain how the House adopts its rules, forms committees and establishes areas of jurisdiction for each committee.

Johnson may also testify regarding COGR’s investigatory authority under the House Rules. Although House Rule X (1)(h) lists COGR’s specific areas of legislative jurisdiction (none of which would relate to the use of steroids in baseball), clause (4)(c)(2) provides that COGR “may at any time conduct investigations of any matter without regard to [rule provisions] conferring jurisdiction over the matter to another standing committee.” Referring to this provision could lead to an interesting legal/factual debate over what exactly it means. Does it mean that COGR can investigate anything under the sun? Does it mean that COGR can investigate anything that another committee of the House could investigate? (If so, one might ask whether COGR reported its “findings and recommendations” regarding the steroid investigation to another committee of jurisdiction, as required by clause 4(c) (2)). Or does it mean that COGR can investigate anything that relates to oversight of the federal government (which would not necessarily encompass the steroid investigation)?

Barnett. The House Counsel says that “Mr. Barnett will be questioned by the prosecution about matters that are Speech or Debate protected that are relevant to its case in chief. Mr. Barnett, in keeping with the position taken by the Committee itself, intends in general not to assert the privilege with respect to (i) matters relating to formal, public Committee investigatory activities concerning steroid use in Major League Baseball that are relevant to the prosecution’s case in chief, and (ii) questioning by the defense on cross-examination that is within the subject matter of the direct examination.”

Thus, while Johnson may help the prosecution establish that COGR had the authority/jurisdiction to conduct an investigation of steroid use in baseball, it will be up to Barnett to explain (1) why COGR chose to institute this particular investigation and (2) how Clemens’s statements and representations were “material” to any decision of COGR.

So what might Barnett testify to? First, he could explain COGR’s initial decision to hold hearings on steroid use in professional sports in 2005. Those hearings were intended in part to educate the public regarding steroid use and to spur the professional sports leagues, particularly Major League Baseball, to take stronger action against the use of these drugs by their athletes. While one might debate whether those purposes in themselves would be sufficient to justify the exercise of the congressional power of investigation, the 2005 hearings would seem to have a reasonable nexus to potential legislative activity. For example, during the 2005 hearings, Waxman pronounced himself “intrigued with the idea of one Federal policy that applies to all sports and all levels of competition from high school to the pros and that provides a strong disincentive to using steroids.” Moreover, there were two bills introduced in the House in 2005 to address the issue of steroids in sports.

Second, Barnett might explain Waxman’s decision to hold hearings in 2008 to focus on the Mitchell Report and whether certain individuals, including Clemens, had been truthful in denying steroid use to former Senator Mitchell’s investigators. According to a previous COGR filing in this case, these hearings were held “to investigate whether the Mitchell Report was accurate and credible, whether Major League Baseball would implement Mr. Mitchell’s recommendations, and whether Congress needed to legislate in this area.”

This may be a harder sell. If the purpose of COGR’s 2008 investigation were really to follow up on the Mitchell Report and the earlier 2005 hearings, for example, one wonders why COGR’s oversight plan for the 110th Congress does not appear to express any intent to follow up in these areas. Moreover, even if there was a legislative purpose underlying the 2008 hearings, Barnett will need to explain how Clemens’s testimony was “material” to a committee decision related to that purpose.

It should be noted that Barnett’s direct testimony, according to House Counsel, will be limited to “matters related to formal, public Committee investigatory activities,” but will not include internal and confidential communications. It would seem to be somewhat difficult for Barnett to testify regarding “materiality” without disclosing information regarding the committee’s internal communications and decision-making processes since, by definition, “materiality” requires the jury to make a determination about whether Clemens’s statements influenced or had the capacity to influence those processes.

Finally, it is noteworthy that the prosecutors are not calling any current or former members of Congress as witnesses. These are presumably the witnesses who would be in the best position to testify both about whether COGR was engaged in the “due and proper exercise of the power of inquiry” and whether Clemens’s statements were “material.” Particularly in light of the public statements made by COGR members at the time of the 2008 hearings (calling into question whether the hearing was in fact a legitimate legislative exercise), the absence of any Members as witnesses could hurt the prosecution.

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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. One woman, a contracting officer for GSA, voiced her skepticism about Congress’s priorities and made a pointed reference to the lengthy delay in passing this year’s appropriations bills.

One interesting question will be how much of the trial focuses on Congress, rather than Clemens. In order to prove its case, the prosecution has to establish certain facts regarding the congressional proceedings in which Clemens allegedly made false statements.

The parties agree that for five of the six counts against Clemens (three for false statements, two for perjury), the government must prove that Clemens’s statements were “material.” This means that they “had a tendency to influence” or were “capable of influencing” a decision of the House Committee on Oversight and Government Reform (“COGR”). Thus, the prosecution must prove beyond a reasonable doubt that some decision of COGR was influenced or could have been influenced by these statements.

For the obstruction of Congress charge, the government must establish that COGR was engaged in the “due and proper exercise of the power of inquiry.” The government has not offered any jury instruction on this point, and it appears that the government may expect that this will be inferred from the fact that COGR is a committee of the House and was conducting a proceeding.

Clemens sees it differently. He has offered a jury instruction that explains what constitutes the “due and proper exercise of the power of inquiry.” The instruction states: “The ‘power of inquiry’ is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. A Committee of the United States House of Representatives does not have authority to expose the private affairs of individuals, nor does it have the power to attempt to resolve differences between two individuals by conducting a hearing unrelated to existing or potential legislation. A legitimate investigation must be related to, and in furtherance of, a legitimate legislative activity of Congress.”

In addition, for the false statements counts, the government must prove that the alleged false statement or representation “pertained to a matter within the jurisdiction of the legislative branch.” The government’s proposed instructions say that a matter is “within the jurisdiction of the legislative branch” if COGR “has the power to exercise authority in that matter. In this regard, there is evidence that [COGR] had the power to exercise authority in holding a hearing titled ‘Restoring Faith in America’s Pastime: Evaluating a Major League Baseball’s Efforts to Eradicate Steroid Use.’” This doesn’t quite say that the jury must find that the matter was within the jurisdiction of COGR as a matter of law, but suggests that the jury may infer jurisdiction from COGR’s undisputed status as a congressional committee.

Clemens’s instructions say that a matter is within “the jurisdiction of the legislative branch” if COGR “had the power to exercise its authority as it did in this matter.” It goes on to repeat the admonition that the power of inquiry, though broad, is not unlimited, and does not include exposing private affairs or resolving differences between individuals unrelated to existing or potential legislation.

Finally, Clemens would instruct the jury that the government must prove the oath was taken before a “competent tribunal.” He would further instruct the jury that a “competent tribunal” is one that is acting within the same parameters as previously defined for “the due and proper exercise of the power of inquiry” and “the jurisdiction of the legislative branch.”

Although the perjury statute (18 U.S.C. 1621) requires that the defendant have taken an oath before a “competent tribunal, officer, or person,” the government’s instructions presume that COGR qualifies as a matter of law.

Thus, the parties will argue before Judge Walton regarding exactly what the jury needs to find with regard to Congress and how it should be instructed. But, at a minimum, the prosecution will have to establish materiality for all of the counts besides obstruction. It also seems that the prosecution will have to put on some evidence that COGR had the authority to hold a hearing regarding steroid use in baseball.

How might the government go about establishing these elements? I will look at that in my next post.

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The Public Debt Clause and the President’s “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 economic calamity: Invoke Section 4 of the 14th Amendment, which says that “the validity of the public debt of the United States . . . shall not be questioned.” This constitutional option is one that the president alone may exercise.

 If the Aug. 2 deadline arrives and no deal has been made, Obama could use a plain reading of that text to conclude—statutory debt ceiling or not—that he is constitutionally required to order the Treasury to continue paying America’s bills. In that sense, this is no just a constitutional option, it is a constitutional obligation, one that even the Tea Party will have trouble denying.

It is not entirely clear what vanden Heuvel means by the President ordering “the Treasury to continue paying America’s bills.” The debt limit does not prohibit the Treasury from paying creditors or anyone else: it simply bars it from borrowing more money. And, as we have exhaustively discussed, the “plain reading” of the Public Debt Clause in no way establishes that Congress is forbidden from putting a limit on the overall debt of the government.

Let’s put that aside, however, and assume that there is a plausible argument that the debt limit is in fact unconstitutional. Does that mean that the President can disregard it? Ms. vanden Heuvel says yes: “In Freytag v. Commissioner (1991), the Supreme Court held that the president has ‘the power to veto encroaching laws . . . or to disregard them when they are unconstitutional.’” Therefore, she claims, Obama would be on a “strong legal footing” if he were to invoke the Public Debt Clause to disregard the debt limit.

Well, let’s see. The quote from Freytag is from Justice Scalia’s concurrence, not the majority opinion. Even if it were in the majority opinion, it would be dicta, not a holding. And Justice Scalia is referring to laws that encroach on the constitutional powers of the executive (which no one claims that the debt limit does), not all laws. But, in her defense, vanden Heuvel did correctly cite the date of the case.

Giving the President the power to disregard all laws that he thinks are unconstitutional is a pretty big deal. Strangely enough, vanden Huevel does not always seem to have been such a big fan of executive power. In “The Madness of King George,” written a few years back, she expressed rather strong concern about a president’s claimed “right to ignore law.” She quoted approvingly from an ABA panel that wrote: “The President’s constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal. The Constitution is not what the President says it is.”

Apparently it is now.