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“Arrest Me. I Question the Validity of the Public Debt.”

So begins Michael Abramowicz’s 1997 law review article, Beyond Balanced Budgets, Fourteenth Amendment Style, 33 Tulsa L. J. 561 (the quote is from the placard of a whimsical protester in Lafayette Park).  His thesis is that the original meaning of the first sentence of Section Four of the Fourteenth Amendment, if it were to be revived and taken seriously today, would have surprising and dramatic consequences for the conduct of federal finances.

The first sentence of Section Four provides that “[t]he validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” As Abramowicz notes, this provision is so obscure that no one previously had bothered to give it a name, an omission he remedies by terming it the “Public Debt Clause.”

The primary impetus for the Public Debt Clause seems fairly clear.  The Republicans who controlled Congress in the aftermath of the Civil War wanted to make sure that a future Congress (one that might be controlled by a coalition including representatives of readmitted Confederate states) could not (a) use federal funds to pay off Confederate debts, (b) repudiate Union debts or (c) insist that Confederate and Union debts be treated equivalently. Accordingly, the second sentence of Section Four states categorically that all “debts, obligations and claims” incurred “in aid of insurrection or rebellion” are “illegal and void,” while the Public Debt Clause makes clear that the public debt of the United States, including that related to “suppressing insurrection or rebellion,” shall “not be questioned.”

Whether the Public Debt Clause was to have any effect beyond this is unclear. It is certainly true that the literal terms of the Public Debt Clause encompass all public debt, not merely that incurred in support of the Union cause. But this is entirely consistent with reading the Clause as reaffirming a preexisting understanding of the inviolability of the public debt, while removing any possible doubt as to whether such inviolability extended to Union debt. Indeed, the only Supreme Court case to consider the Clause, Perry v. United States, 294 U.S. 330 (1935), seemed to adopt such a reading, treating the Clause as merely “confirmatory” of the following constitutional principle:

The Constitution gives to the Congress the power to borrow money on the credit of the United States, an unqualified power, a power vital to the government, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations.

Perry involved a holder of a federal bond with a “gold clause” providing that the bond was payable in gold coin (thus protecting the bondholder against depreciation of the currency). However, at the outset of the Depression, Congress banned the use of gold as legal tender and required that bonds be payable only in paper currency. The Supreme Court, in true Marbury-like fashion, gave with one hand and took away with the other. The Court found that Congress had unconstitutionally violated the bond’s gold clause; however, it also held that the bondholder had suffered no damage because the gold coin he was due would have been illegal to sell and therefore could not have profited him. (FWIW, Professor Currie believed that the Court was wrong on both counts.  See David Currie, The Constitution in Congress: The Federalist Period 1789-1801 76 & n. 167 (1997)).

Perry suggests that the Public Debt Clause imposes a fairly minimal external constraint on Congress, even in cases involving bondholders. As Justice Stone observed in his concurrence, the government “has rendered itself immune from liability” and “relieved itself of the obligations of its domestic bonds.” Moreover, the Court noted that Congress could always escape liability for debt repudiation by withdrawing its waiver of sovereign immunity.

Abramowicz nonetheless argues that the most persuasive reading of the Public Debt Clause would have it impose two broad constraints on Congress. First, he argues that the term “public debt” should be read to include more than just bonds. He focuses on the Clause’s reference to “payment of pensions and bounties of services.” Persons owed such payments, or who have a similar claim to government payment (such as federal employees who are owed a pension), should also fall within the Clause’s protection.

This argument is not implausible, although I think one could make at least as strong an argument for limiting the scope of the Public Debt Clause to money owed to creditors (which is normally what we think of as “public debt”). Section Four refers to Confederate “debts,” “obligations” and “claims,” which are declared illegal and void. The Public Debt Clause, however, covers only “debts.” Thus, the non-debt obligations of the United States do not fall within the Clause. This inference is strengthened by an earlier version of the Clause, which would have provided that “all debts or obligations . . . incurred . . . for payment of bounties or pensions . . . shall be inviolable.”

It seems that the framers of the Fourteenth Amendment deliberately decided to exclude “obligations” from the Public Debt Clause. Abramowicz agrees, but argues that the term “debt” can be read to encompass any sum of money due by certain and express agreement. This may exclude sums promised unilaterally or without consideration, but should include monies due under a contract.

The legislative history of Section Four is too sparse to shed much light on the subject. Whether the term “debt” should be read to extend beyond creditors seems to me to be an open question.

Abramowicz’s second point is that the word “questioned” should be read broadly to reach not only actions which directly repudiate the public debt, but also those which jeopardize (i.e., bring into question) the future ability of the United States to repay the debt. His argument is premised largely on the fact that the Public Debt Clause uses the peculiar phrase “shall not be questioned” (a phrase also used in the rather different context of the Speech or Debate Clause), rather than simply saying that the debt is valid or shall remain valid.

I think Abramowicz’s argument here is weak. If the framers of the Fourteenth Amendment wanted to say that the government should take no action that would jeopardize the repayment of debt, surely there were more straightforward ways of saying so.

The literal terms of the Public Debt Clause certainly do not prohibit actions that increase the likelihood of a default on the debt. If I conduct my financial affairs in such a way as to make it unlikely or impossible that I can repay all my creditors, I am acting irresponsibly, but I am not questioning the validity of my debts. Even a failure to pay a debt, if caused by inability rather than refusal to pay, cannot be said to question the debt’s validity.

Abramowicz points to draft versions of the Public Debt Clause, which stated that the public debt was “inviolable” or would “remain inviolate.” He contends that the earlier language would have been sufficient if the framers merely wanted to avoid a repudiation of the debt, and thus surmises that they must have wanted to achieve more. In his view this support the notion that the “shall not be questioned” language should be read broadly to prohibit undermining debt repayment, regardless of whether Congress deliberately repudiates any debts. Thus, congressional action or inaction which substantially prejudices debt repayment would violate the original intent of the Public Debt Clause.

Trying to discern the intent of the Public Debt Clause from this change of language seems rather speculative, particularly since there is at least one floor statement indicating that the change of language was not intended to change the meaning of the provision. But it seems to me that the most persuasive explanation for the final language in the Public Debt Clause is simply this– it expresses exactly what the framers of the Fourteenth Amendment were trying to accomplish. They wanted to prohibit future Congresses from questioning the validity of the public debt. Specifically, they wanted to prohibit future Members of Congress from arguing that Union debt was invalid because there was no constitutional basis for making war on states that wanted to secede from the Union.

But how, one might ask, could the framers of the Fourteenth Amendment expect that such a provision be enforced? This question assumes a fact not in evidence, namely that the framers expected the provision to be enforced outside of Congress. In fact, despite Abramowicz’s contention that the courts could enforce the Public Debt Clause under current jurisprudential doctrines, it surely would not have crossed the minds of the framers that any such enforcement would take place. They would have expected (understandably, and, as it turns out, correctly) that the only effect of the Public Debt Clause would be the impact that it would have on the consciences of future Congresses. Seem in this light, it is not surprising that the Public Debt Clause is phrased in a broad, hortatory and essentially unenforceable way.

If the framers of the Fourteenth Amendment had anticipated even a remote possibility that the Public Debt Clause would be subject to judicial enforcement, they certainly would not have drafted it in the broad manner that Abramowicz suggests. If courts were empowered to decide if a particular congressional action or inaction (such as new spending or a failure to raise taxes or increase the debt limit) jeopardized creditors, it would be the equivalent to turning over the power of the purse to the courts.

To be fair, Abramowicz himself does not contend that the courts will, or should, enforce the Public Debt Clause. He acknowledges that attempting to enforce the Clause at this juncture would introduce dangerous uncertainty about the structure of government. After all, Congress has spent the century and a half since the enactment of the Fourteenth Amendment making commitments without anyone apparently being aware that the Public Debt Clause had the meaning or import that Abramowicz ascribes to it. Instead, Abramowicz treats his reconstruction of the Clause’s original intent as a kind of thought experiment to shed light on how we might craft a new constitutional amendment ensuring that Congress better keeps to its fiscal commitments in the future.

So why, I hear you ask, should anyone care about this?

I’m getting to that.

 

 

 

 

 

 

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Not a Creature has Standing, Not Even the House?

When Attorney General Holder announced that the Department of Justice (DOJ) would no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in cases where it was being challenged, he committed to “providing Congress a full and fair opportunity to participate in the litigation in those cases.” In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives is seeking to intervene in a number of such cases, including Windsor v. United States, pending in the Southern District of New York.

DOJ does not object to BLAG’s intervention in Windsor, but it contends that the House’s interest in DOMA’s constitutionality is nothing more than a “generalized grievance” that is inadequate to give it standing. Accordingly, it proposes that BLAG be permitted to intervene only “to present arguments in support of the constitutionality of Section 3 of DOMA, consistent with [DOJ’s] role in this case as counsel for the United States.”

Under DOJ’s theory, it would retain exclusive control of the defense of the case, including control over procedural issues such as filing motions, making objections and appealing adverse decisions. DOJ promises that it will “file appropriate motions, purely as a procedural matter, to ensure that this Court can consider arguments on both sides of the constitutional issue and that the Court has jurisdiction to enter judgment on the basis of those arguments.” Notably, however, DOJ does not promise that it will necessarily appeal a judgment against the constitutionality of DOMA.

BLAG objects to DOJ’s position. It argues that DOJ is inappropriately attempting to relegate it to the status of a glorified amicus and “asserting a right to act as a gatekeeper for the House’s efforts to defend a validly enacted statute that the Department itself refuses to defend.” Accepting DOJ’s position would give it the ability to hamstring the House’s defense of DOMA, or any federal statute, thus effectively giving it “an extra-constitutional post-enactment veto over federal statutes to which it objects.”

Moreover, BLAG argues that DOJ’s position is inconsistent with INS v. Chadha, 462 U.S. 919, 940 (1983) , where the Court stated that “Congress is the proper party to defend the validity of a statute when an agency of the government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.” Chadha relied on this proposition to support its holding that there was a justiciable case or controversy, a conclusion that would make no sense unless Congress was considered to be a true party with independent standing.

BLAG’s reading of Chadha seems to be the more persuasive one. Therefore, BLAG should have standing so long as one makes the assumption that it is the same entity, for purposes of the standing analysis, as the House itself.  This assumption is of yet unexamined, but may not remain so.

 

 

 

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Was the Roger Clemens Hearing a “Show Trial”?

This is the question raised by Clemens’ opposition to the House Committee on Oversight and Government (COGR) motion to quash his subpoena for documents. Relying primarily on statements by minority members of COGR at the time, Clemens argues that the 2008 hearing at which he testified was not designed to consider or further any legislation. Instead, the objective was simply to find out if Clemens was lying when he denied using steroids, as claimed by the Mitchell Report commissioned by Major League Baseball. This, some COGR members asserted, amounted to a “show trial,” “gotcha games” and a “Roman circus.”

As I have discussed before, the connection between the Clemens hearing and any ostensible legislative purpose is a tenuous one. Although both COGR and the Justice Department strain mightily to do so, neither can show that the Clemens hearing led to any legislation; more importantly, they cannot produce any evidence that any member of COGR believed at the time that the Clemens hearing might have an influence on potential legislation.

Despite this, I doubt the court will accept Clemens’ invitation to overrule COGR’s Speech or Debate privilege on the ground that the hearing was outside the “legitimate legislative sphere.”  In the first place, the court will probably not give much weight to the comments of dissenting members– as COGR aptly puts it, “legislative democracy is a rough and tumble business that very frequently is characterized by boisterous debate and dissension.”

Second, the court will be reluctant to challenge the committee’s motivation for holding the Clemens hearing. Indeed, as COGR points out, the Supreme Court in Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 508-09 (1975), stated that “in determining the legitimacy of a congressional activity we do not look to the motives alleged to have prompted it.” Of course, this does not mean that no congressional activity may be challenged– but it does suggest that the court should consider whether there was any possible legitimate reason for holding the Clemens hearing.

Under this forgiving standard, I think the hearing (barely) passes muster. It is conceivable, as suggested by COGR’s lawyers, that the committee wished to assess the accuracy and credibility of the Mitchell Report in part for the purposes of evaluating how well MLB was doing in investigating itself.  This in turn might have influenced the decision whether further legislative action was needed.  Admittedly, a lot of hypotheticals are involved, but the court could reasonably conclude that there was some legislative connection to the hearing.

Perhaps more importantly, the Justice Department notes that Clemens’ attack on the hearing really goes to fundamental questions that must be resolved by the jury- namely the “materiality” of Clemens’ alleged false statements and whether COGR is a “competent tribunal.”  If the court resolves these questions now, the proper remedy would be to dismiss the case, rather than to enforce the subpoena. Rather than deciding the issue on a sparse record, the court should wait at least until the prosecution has put on its case in chief.

For this reason, I think Clemens would be better served by concentrating on his need for the documents sought, rather than on the question of privilege.  Even if the materials in question are protected by Speech or Debate, the withholding of these documents, under the proper circumstances, would violate Clemens’ due process rights.  This point is implicitly conceded by both the Justice Department and COGR, with the latter expressly noting that the remedy for a due process violation would be to suppress evidence or dismiss the indictment, rather than to enforce the subpoena.

None of the parties have offered much in the way of a test to determine when material withheld by a committee is so essential as to violate the defendant’s due process rights.  Presumably the burden would be on Clemens to explain why the material withheld is critical.  It seems to me that he has failed to do that here. His strongest argument, IMHO, would be that he needs discovery with regard to materiality– but he has not made this argument. Instead, he appears to be fishing for evidence that could be useful for impeachment purposes.  

Accordingly, I think that Judge Walton should grant the motion to quash, but permit Clemens to make a more specific showing as to why he needs access to COGR documents. If he is able to make such a showing, the court should request that COGR provide the documents for in camera review and, if the committee refuses, consider granting other relief.

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What Information Can Congress Get from Libyan Agents?

In 2002, in the course of investigating abductions of U.S. citizens in Saudi Arabia, the House Government Reform Committee subpoenaed three U.S. firms (Patton Boggs, Qorvis Communications and The Gallagher Group), which had provided lobbying and public relations services to the Saudi government.  Each firm was registered under the Foreign Agents Registration Act (FARA), which requires registrants to maintain, and make available for Justice Department inspection, extensive documentation regarding the foreign representation.

The Saudi government maintained that the subpoenas violated the Vienna Convention on Diplomatic Relations, which provides that “archives and documents” of a diplomatic mission are to be held “inviolable.” The House committee, backed by an opinion from Vienna Convention expert Eileen Denza, argued that the Vienna Convention was inapplicable to records of U.S. lobbyists for a foreign government.  It noted that the Saudi position was incompatible with FARA and pointed out that Congress had previously investigated the activities of lobbyists for foreign governments (in 1980 the Senate Judiciary Committee investigated Billy Carter’s lobbying on behalf of Libya).

Congress will want to keep this background in mind as it considers gathering information from Libyan agents in the U.S.  There are several U.S. firms that reportedly have contracted with the Libyan government to provide lobbying, public relations or other services.  Some registered under FARA; others did not.  Congress may want to obtain information from these firms to better understand Libya’s propaganda campaign in the U.S. and to determine whether FARA has been effective in making this campaign transparent.

I have always thought that the Saudi Vienna Convention argument was pretty weak (I represented the House committee in that dispute).  Moreover, under the present circumstances it seems unlikely that U.S. firms would abide by Libyan instructions to withhold information from Congress.  Thus, I suspect that Congress would have little difficulty getting information from Libya’s U.S. representatives.

A more difficult question will be presented if Congress attempts to get documents or testimony directly from Libyan diplomats.  Presumably these officials would normally enjoy immunity from congressional inquiry.  However, there are two wrinkles here that could make a difference.

First, there is the question of which Libyan government is entitled to representation in the U.S.  As far as I understand it, the U.S. has not yet withdrawn recognition from the Qadaffi regime or extended it to the Libyan rebels.  If this change occurs, however, it could affect the privileges and immunities available to Libya’s (former) diplomats.

Second, some Libyan diplomats in the U.S. have already broken with the Qadaffi regime.  Are these officials still entitled to diplomatic immunity/inviolability?

I don’t know the answers to these questions.  But lawyers on the Hill may want to start thinking about them.

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More on the Clemens Subpoena

As promised in my last post, I want to follow up on the Speech or Debate argument made by COGR in support of its motion to quash the Clemens subpoena.

At first blush, there would not seem to be much to discuss.  There is little question that the type of oversight and investigative committee records sought by Clemens are generally protected by Speech or Debate.  This is black-letter law, particularly in the D.C. Circuit.

Yet COGR devotes considerable effort to demonstrating that Speech or Debate applies.  It focuses particularly on persuading the court that the committee’s investigation of steroid use in baseball fell “well within the scope of the Committee’s legitimate legislative functions.”  Indeed, it says, “this is not even remotely a close question.”

In its enthusiasm to make this point, COGR goes a bit far.  For example, it asserts that the steroid investigation was “integral to Congress’ power to legislate on a number of subjects, including, but not limited to, public health, education, crime and interstate commerce. (emphasis added).  My copy of Article I gives Congress power to regulate commerce among the several states, but says nothing about public health, education or crime.

Be that as it may, the standard of judicial review here is extremely forgiving.  So long as the inquiry is within the committee’s jurisdiction and involves matters on which legislation may be had, the court should not second guess the committee’s investigative choices.  The baseball steroid investigation would seem to satisfy this standard.

Of course, many people would dispute that the actual motive of this investigation was to obtain information for legislative purposes.  Some people (less charitable than myself) may suggest that it was designed more for glorified infotainment, if not outright grandstanding.  Fortunately for COGR, however, the courts have forsworn inquiry into actual congressional motives.

Moreover, if the court were to find that the steroid investigation was improper or beyond COGR’s authority, the remedy in all likelihood would not be to enforce the subpoena.  Instead, it seems that the court would have to dismiss the case altogether since the charges (perjury, false statements and obstruction) all depend on the existence of a proper congressional investigation.

There is, however, a distinct but related issue regarding the investigation.  This is the question of whether any of Clemens’s (alleged) false statements to COGR was material to the investigation.  Materiality in turn depends on the purpose of the investigation and the relationship between Clemens’s answers and any potential legislation.

Here there would seem to be a serious question as to the materiality of Clemens’s statements.  COGR did not call Clemens as a witness until several years after its initial hearing on steroid use, after pertinent legislation had been drafted and introduced, and after former Senator George Mitchell had issued a comprehensive report on steroid use in baseball.  One might well ask how the accuracy of the Mitchell report with respect to Clemens’s personal steroid use was “material” to any proper subject of legislative inquiry.

COGR may hope that if the court believes there is “not even remotely a close question” with regard to the legitimacy of the committee’s investigation, it will be less inclined to inquire into materiality.  But while it is up to the court to determine the legitimacy of the investigation, materiality is a question of fact for the jury.  Clemens may argue that he needs internal committee documents in order to challenge the materiality of the statements made to COGR.  This should not affect the Speech or Debate analysis, but, as suggested in my last post, it bears on whether the documents are needed to ensure that Clemens receives a fair trial.

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Roger Clemens, Congressional Privilege, and the Right to a Fair Trial

The House Committee on Oversight and Government Reform (COGR) has moved to quash the Clemens subpoena on the grounds that the investigative documents sought are protected by Speech or Debate.  I will discuss COGR’s substantive Speech or Debate argument in a future post; for now I want to focus on the relationship between the Speech or Debate privilege and a criminal defendant’s right to a fair trial.

When it asked the Justice Department to investigate Clemens for lying to Congress, COGR produced a number of relevant documents.  COGR asserts that it “strove to provide the Department with all relevant factual information, regardless of which way that information might cut.”  However, it also acknowledges that it generally has not provided “internal Committee notes, memoranda, and communications.”

COGR goes on to argue that “[i]n light of [the] nature and the substantial volume of documents that the Committee has already produced, and the fact that all those documents are in the hands of Mr. Clemens’s attorneys, Mr. Clemens will not be disadvantaged by the quashing of his subpoena duces tecum to the Committee.”  However, “even if the Court were to conclude otherwise, it would not matter” because the Speech or Debate Clause “‘was designed neither to assure fair trials nor to avoid coercion.'” (quoting US v. Helstoski, 442 US at 491).  In other words, the congressional privilege trumps the right to a fair trial.

Because the protections of Speech or Debate are absolute, COGR is correct that the privilege cannot be overcome by a showing that the evidence is needed to assure a fair trial.  It does not follow, however, that a criminal defendant’s right to a fair trial must give way to the privilege.  Instead, if a congressional committee refuses to produce evidence that a court believes may be needed to assure the defendant a fair trial, the court may ask the committee for an opportunity to review the material in camera.  If the court cannot assure itself that the defense has access to all material evidence, it may dismiss the relevant counts.

This conclusion is consistent with the approach followed by other courts that have addressed this issue.  In U.S. v. Ehrlichman, 389 F. Supp. 95 (DDC 1974), Judge Gesell acknowledged that congressional transcripts sought by defendant G. Gordon Liddy were protected by Speech or Debate; nonetheless, the judge asked the House to “produce the subpoenaed testimony for in camera inspection by the Court on the assurance that only those questions and answers, if any, which prove significant and material to the defense would be disclosed.”

In the court-martial of Lieutenant Calley, the military judge requested that the House produce certain evidence requested by the defense.  The House failed to do so.  A federal district judge subsequently granted Calley’s habeas petition on the grounds that the House’s failure to release the requested information violated Calley’s due process rights.  In Calley v. Calloway, 519 F.2d 184 (5th Cir. 1975), the Fifth Circuit, sitting en banc, reversed.  The majority found that the information withheld was not so highly significant or material so as to rise to the level of a constitutional violation.  Five judges (including Judge Clark) dissented, finding that the House’s refusal to provide the information amounted to a denial of due process to the defendant.  Both the majority and dissenters appeared to agree that a withholding of information by Congress could, under proper circumstances, constitute a violation of due process.

The Clemens case, it must be said, would provide particularly strong circumstances for finding a due process violation.  Here the House of Representatives (or a committee thereof) is both the victim and the complaining witness against Clemens.  The case against Clemens presumably could not proceed unless COGR cooperated and provided access to materials otherwise protected by Speech or Debate.  It seems unthinkable that COGR could select which evidence will be available for the trier of fact to consider.

It very well may be that COGR has already produced all of the evidence material to Clemens’s case.  But a federal court need not (and I suspect will not) simply rely on COGR’s assurances to that effect.

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Somin and Whelan on Defending DOMA

On St. Patrick’s Day, the Federalist Society sponsored a debate on the Hill regarding the Defense of Marriage Act (DOMA) and the President’s duty to defend federal statutes.  Generally speaking, the participants, (Ilya Somin, Ed Whelan and moderator Neomi Rao) were in agreement that the President may properly refuse to defend an unconstitutional statute under certain circumstances, while not necessarily agreeing (or, in Whelan’s case, emphatically disagreeing) with the President’s decision in this case.

With regard to Congress’s ability to intervene and defend the law, both Somin and Whelan thought that the courts would allow the House to participate in the case and make legal arguments in support of DOMA. This, they felt, would be sufficient to assure that the merits of the constitutional issue were addressed by the courts.  However, with respect to the issue of whether the House could intervene as a party, participate in discovery or the presentation of evidence, or, if necessary, appeal an adverse decision, neither were sure whether this would be allowed.  Whelan did remark that he hoped that the House would be permitted to revive arguments that the Justice Department had previously abandoned; he also recommended that the House insist that any dollars spent on its legal fees be taken out of the Justice Department’s budget, preferably with an appropriate multiple.

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The Honorable Charles Clark

Charles Clark was nominated to the U.S. Court of Appeals for the Fifth Circuit on October 7, 1969, and he was confirmed eight days later.  Such a speedy confirmation would be unthinkable today, although legend has it that Senator Eastland helped the process along by scheduling the vote when potential opponents were otherwise occupied.  The story as I heard it was that the more liberal members of the Senate were attending an Earth Day event on the day of the vote, but it is more likely (assuming the story is true) that they were participating in Moratorium Day, a Vietnam War protest that took place on October 15, 1969.

Judge Clark became the chief judge of the Fifth Circuit in 1981, and served in that capacity until 1992, when he retired from the bench.  Upon the occasion of his retirement, Rodney Smolla, Dean of the William & Mary Law School and one of the Judge’s former clerks, wrote this fitting tribute: “At a time in the history of the profession in which lawyers and laymen alike are tempted to dismiss our judicial system as corrupt and cynical, Judge Clark stood out as immediate and irrefutable evidence that all is not hopeless:  Here is a lawyer in a position of power and influence who is compassionate, diligent, honest and thoroughly professional.  Here is a lawyer’s lawyer, a judge’s judge, a clerk’s judge.”

I had the privilege of clerking for Judge Clark during the 1985-86 term.  This probably was not the Judge’s favorite clerkship year, as none of his clerks were hunting or fishing enthusiasts.  But for me the year is full of warm memories of Judge Clark: sitting around the conference table as we discussed cases, observing the Judge’s incisive but unfailingly courteous questioning of counsel at oral argument, driving him back to Jackson from New Orleans in my Dodge Daytona (which was thankfully able to make it without one of its too frequent breakdowns).  Everything that Dean Smolla wrote was very true.  Judge Clark was the very model not only of a judge but of a Southern gentleman.

Judge Clark passed away on March 6, 2011.  He will be sorely missed on earth, but we can take comfort that he was a man of faith, who today is reaping the rewards of that faith.

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House Subpoena Notices

As we have previously discussed, House Rule VIII requires that upon being properly served with a subpoena relating to the official functions of the House, a member, officer or employee shall “promptly notify the Speaker of its receipt in writing” and “[s]uch notification shall promptly be laid before the House by the Speaker.”  On February 10, 2011, attorneys for Roger Clemens served the House Committee on Oversight and Government Reform (COGR) with a subpoena for documents.  The parties have agreed that COGR will have until March 18 to respond to or move to quash the subpoena.

As far as I can tell, the only Rule VIII notice this year from COGR was given on March 3.  The notice informs the House that COGR “has been served with a subpoena for documents issued by the United States District Court for the District of Columbia in a civil case now pending before that Court.”  The notice further states that COGR will consult with the House General Counsel and make the determinations required by Rule VIII.  This suggests that the subpoena raises some substantial legal issue (otherwise the notice would simply state that compliance was consistent with Rule VIII).

Does this notice refer to the Clemens subpoena?  One would tend to think so, except that Clemens’s case, while pending in the United States District Court for the District of Columbia, is a criminal, not a civil, case.  Perhaps this was just a typographical error.  Or possibly the notice refers to another subpoena (in which case there has been no notice filed for the Clemens subpoena).

One might expect the mystery to be cleared up by March 18.  By that time COGR will have to make the determinations required by Rule VIII regarding the Clemens subpoena.  According to clause 5 of Rule VIII, “[t]he Speaker shall inform the House of [the determinations required by the rule],” and, in so doing, “shall generally describe the records or information sought.”  Thus, there should be an additional notice that will clarify the nature of the subpoena in question.

In actual House practice, however, the notification required by clause 5 is seldom, if ever, made.  In all likelihood there will be no further notice to the House regarding the subpoena, what documents were sought, what determinations were made, or anything else that might allow the House to make a judgment regarding the propriety of the response.  The Speaker and the Bipartisan Legal Advisory Group will have this information, but no one else will.  While this practice offers the advantage of protecting the confidentiality of sensitive legal proceedings, it is rather far from the transparency promised by the language of Rule VIII.

Incidentally, in searching for the notice for the Clemens subpoena, I came across this notice from yesterday’s Congressional Record.  The Archivist of the House notifies the Speaker of receipt of a civil subpoena for documents “issued before the Evidentiary Panel for the State Bar of Texas.”  The Archivist states that “compliance with the subpoena is inconsistent with the precedents and privileges of the House.” It would be interesting to know what this subpoena involved and why compliance was inconsistent with House precedents and privileges.  But under House practice there is no way to know this.