Game On!

        The Speaker has sent the certifications of contempt against Harriet Miers and Josh Bolten to the U.S. Attorney for the District of Columbia.  The Justice Department has previously stated that it will not prosecute Miers and Bolten because they were acting in accordance with presidential directives when they refused, respectively, to appear before Congress and to produce documents pursuant to subpoena.  The Speaker’s letter to the Attorney General (below) requests that the Justice Department  reconsider its position and “inform us of that decision within one week from today, so that the House may proceed with a civil enforcement suit in federal district court.”

        Mukasey should be furious about the position that the administration has put him in.  It is relatively easy to defend Bolten’s refusal to produce documents, but there really isn’t any plausible justification for Miers’s failure to appear before the Judiciary Committee.  Miers could have chosen to appear and simply refused to answer those questions that she deemed covered by the President’s assertion of executive privilege (as Sara Taylor did when subpoenaed to appear in the Senate).  For some reason, the administration either allowed or directed Miers to take a different path, leaving the Justice Department in a much weaker legal position as a result.


February 28, 2008

The Honorable Michael B. Mukasey
The Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W
Washington, D.C. 20530-0001

Dear Mr. Attorney General:

In accordance with 2 U.S.C. § 194 and the attached House Resolution 979 (adopted on February 14, 2008), I have today sent a certification to the United States Attorney for the District of Columbia, Jeffrey Taylor, advising him of the failure of former White House Counsel, Harriet Miers, to appear, testify and produce documents in compliance with a duly issued subpoena of a subcommittee of the House Judiciary Committee and of the failure of Joshua Bolten, White House Chief of Staff and custodian of White House documents, to produce documents in his custody as required by a duly issued subpoena of the House Judiciary Committee.

Under section 194, Mr. Taylor is now required “to bring the matter before the grand jury for its action.” The appropriate grand jury action is a criminal charge for violation of 2 U.S.C. § 192, which provides: “Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers . . . willfully makes default . . . shall be deemed guilty of a misdemeanor” and shall be subject to a fine and “imprisonment in a common jail for not less than one month nor more than twelve months.”

According to the testimony of your predecessor, former Attorney General Alberto Gonzales, and your recent testimony before the House Judiciary Committee, the Justice Department intends to prevent Mr. Taylor from complying with the statute and enforcing the contempt citations against Ms. Miers and Mr. Bolten. You claimed that “enforcement by way of contempt of a congressional subpoena is not permitted when the President directs a direct adviser of his… not to appear or when he directs any member of the executive not to produce documents.” Hearing on Oversight of the Dep’t of Justice Before the H. Comm. on the Judiciary, 110th Cong. 87-88 (Feb. 7, 2008). You purported to base your view on a “long line of authority,” but cited no court decision that supports this proposition.

There is no authority by which persons may wholly ignore a subpoena and fail to appear as directed because a President unilaterally instructs them to do so. Even if a subpoenaed witness intends to assert a privilege in response to questions, the witness is not at liberty to disregard the subpoena and fail to appear at the required time and place. Surely, your Department would not tolerate that type of action if the witness were subpoenaed to a federal grand jury. Short of a formal assertion of executive privilege, which cannot be made in this case, there is no authority that permits a President to advise anyone to ignore a duly issued congressional subpoena for documents.

Your press spokesman has stated that you will “act promptly” to review this matter and reach a final decision. We will appreciate your acting with appropriate dispatch on this important matter. I strongly urge you to reconsider your position and to ensure that our nation is operating under the rule of law and not at presidential whim. If, however, you intend to persist in preventing Mr. Taylor from carrying out his statutory obligation to present this matter to the grand jury in the District of Columbia, we respectfully request that you inform us of that decision within one week from today, so that the House may proceed with a civil enforcement suit in federal district court.

Thank your for your prompt consideration and attention to this matter.

best regards,

Speaker of the House


February 28, 2008

The Honorable Jeffrey A. Taylor
United States Attorney
District of Columbia

The undersigned, The Speaker of the House of Representatives of the United States, pursuant to the attached House Resolution 979, One Hundred Tenth Congress, hereby certifies to you the failure and refusal of Harriet Miers, former White House Counsel, to appear, testify, and furnish certain documents in compliance with a subpoena before a duly constituted subcommittee of the House of Representatives Committee on the Judiciary. The undersigned further certifies to you the failure and refusal of Joshua Bolten, White House Chief of Staff, to furnish certain documents in the custody of the White House in compliance with a subpoena before said committee. These failures and refusals are fully shown by the certified copy of the House Report 110-423 of said committee which is also hereto attached.

Witness my hand and seal of the House of Representatives of the United States, at the City of Washington, District of Columbia, this twenty-eighth day of February, 2008.

Speaker of the House of Representatives


Clerk of the House of Representatives

Preliminary thoughts on the House GOP Ethics Proposal (Updated)

          The House Republicans have come out with an alternative to creating an Office of Congressional Ethics (as proposed by the Democratic members of the Special Task Force on Ethics Enforcement).  Although I have not seen the actual GOP proposal, the Roll Call description suggests that it has some promising elements, although further refinement is needed.

At the outset, the proposal would focus on reforming the House Ethics Committee itself, as opposed to creating a new outside entity. If nothing else, this focus recognizes the fact that the ultimate constitutional responsibility for disciplining members lies within the House itself, and cannot be outsourced to another entity. Thus whatever advantages may be obtained by creating an independent ethics office, they do not obviate the need for a House Ethics Committee that enjoys the trust and confidence of the institution and the public.

The proposal would have the members of the Ethics Committee appointed jointly by the Speaker and the Minority Leader, and would have the chairmanship rotate between the parties without regard to which one is in the majority. This idea would be to reduce partisanship and thus the types of partisan stalemates that the committee has experienced in the past.

I think that this is a good idea, but it is important to recognize reducing partisanship on the committee will not necessarily enhance the committee’s zeal to enforce the ethics rules. On the contrary, it could be argued that because the committee members would have a mutual interest in not rocking the boat, the absence of partisanship actually works in the opposite direction. Therefore, it becomes all the more important that there be mechanisms to trigger action by the committee.

The GOP proposal also suggests adding four former members to the committee, with the idea that these individuals would be more disinterested in their decisionmaking. I am not sure that the benefit of this reform would outweigh the practical and perhaps constitutional objections to the idea.

The proposal also recommends that outside complaints be allowed for the first time since 1997. As I have argued before, allowing such complaints is critical to re-establishing the credibility of the ethics process.

Under the proposal, the outside complaints would be “funneled” to the Ethics Committee through the House Inspector General. Although it is not clear from the Roll Call article, presumably the IG would perform some screening function, ie, weeding out at least clearly frivolous complaints. The IG would thus be performing a function not unlike that of the Parliamentary Commissioner for Standards, which I have suggested in earlier posts provides a good model for ethics enforcement.

Delegating this function to the IG is an interesting idea. The IG is an officer selected by the House leadership for a term of the Congress, but is normally expected to continue in that position from Congress to Congress. The IG also operates under the policy direction and oversight of the Committee on House Administration. It is not clear, therefore, that the IG has the degree of independence that would be optimal for performing the sensitive function of reviewing complaints against Members of Congress. (This is not, I hasten to add, any comment on the current IG, whom I do not know but about whom I have heard only positive things). One also one wonders how compatible this function would be with the IG’s other duties, which mostly consist of conducting financial, efficiency and similar type audits.

My personal inclination would be to vest this function in a separate and independent officer of the House, who would be appointed by the House for a non-renewable fixed term (perhaps two Congresses) on the joint recommendation of the Speaker and Minority Leader. This would give him or her the requisite independence to perform the job. I also think that this officer needs to do more than simply review complaints, but should have the authority to perform preliminary inquiries, dismiss or settle minor matters, and make reports and recommendations to the Ethics Committee itself.

Finally, the GOP proposal apparently recommends that, in order to break partisan deadlocks on the Ethics Committee, “[a]ny complaint that remains unresolved after a 90-day period would be referred to the Justice Department for investigation.” I have an admittedly knee-jerk negative reaction to this aspect of the proposal. Not all ethics matters involve illegality; some are simply inappropriate for Justice Department referral. Even with regard to complaints that do involve, or arguably involve, illegality, however, it is not desirable from an institutional perspective for the House to rely on the executive branch to perform its constitutionally assigned function of disciplining its members

UPDATE:According to an informed source, I have leapt to conclusions with regard to the function of the House Inspector General under the House GOP ethics proposal. I assumed that the IG would perform some sort of screening function with regard to outside complaints. Actually, the proposal envisions the IG merely receiving the outside complaints and logging them in for tracking purposes.

More on the Craig Admonishment

Simon Davidson, the ethics columnist for Roll Call, responded to the points I made in yesterday’s post regarding the Senate Ethics Committee’s admonishment of Senator Larry Craig.  Set forth below is our exchange of emails, reprinted with Mr. Davidson’s kind permission.

Mr. Stern:

Thank you for your e-mail regarding my column.  While I had considered the points you raise regarding the Ethics Committee’s jurisdiction prior to writing my column, I think that you articulate those points particularly well in your blog post.  My own view is that reasonable minds can differ on what exactly the Ethics Committee considered was the basis for its jurisdiction.  In fact, that was part of my point: the committee did not explicitly base its jurisdiction over purely personal conduct.  In any event, here are the conclusions I had reached regarding the specific points you raise. 

1. The committee wrote: “the conduct to which you pled guilty, together with your related and subsequent conduct as set forth above, constitutes improper conduct reflecting discreditably on the Senate.” To me, the crucial phrase here is “together with.” On your blog, you implicitly construe “together with” to mean that the conduct to which Craig pled guilty and his subsequent conduct each independently could constitute a basis for jurisdiction. While I acknowledge that there is some ambiguity in the letter’s language, I think the more plausible reading of “together with” is that the Committee concluded that the conduct to which Craig pled guilty and his subsequent conduct jointly constitutes improper conduct reflecting discreditably on the Senate. Consider: A regular exercise routine alone does not constitute a healthy lifestyle. However, a regular exercise routine, together with a nutritious diet, constitutes a healthy lifestyle.

2. The committee’s letter cites language in the Senate Ethics Manual providing that the Senate “may discipline a Member for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole.” This oft-cited language has been in the Senate Ethics Manual for years. However, in practice, the Ethics Committee has never relied upon this language in asserting jurisdiction over purely personal conduct, without some connection to official conduct. In its letter, the committee appears to go out of its way to construe Craig’s conduct as official conduct by tying it to specific Senate rules. Suppose, for example, that Craig had not flashed his Senate business card, had not challenged his guilty plea, and had obtained the committee’s pre-approval to use campaign funds for legal expenses? Would the Committee still have asserted jurisdiction over Craig? That’s the question that I think the letter leaves open.

Thanks again for your e-mail.

Kind regards,


Dear Mr. Davidson

Thank you for your thoughtful email. You make some excellent points, which cause me to refine my thinking as follows.

The committee’s reference to “[t]he conduct to which you pled guilty, together with your related and subsequent conduct as set forth above” indicates that part of what Craig is being admonished for is the “purely personal” conduct to which he pled guilty. It is true that the use of the term “together with” leaves open the possibility that the committee would have adjudged that conduct, standing alone, as insufficient to justify an admonishment. But that is different from saying that the committee lacks jurisdiction (ie, power) to punish Craig for the conduct.

An alternative explanation, I suppose, is that the committee was really only exercising jurisdiction over the “related and subsequent conduct,” but was suggesting that the subsequent conduct merited admonishment only under the circumstances where Craig had committed the personal misconduct in the first place. One problem with that interpretation is that it makes little sense to suggest that the culpability of the “special treatment” request or the improper use of campaign funds depends on whether you are guilty of the underlying conduct.

That leaves the withdrawal of the guilty plea. There it does make some sense to say that the withdrawal of the guilty plea is improper only when one is actually guilty. But how is the withdrawal of the guilty plea any less personal than the underlying conduct itself? The committee says that the withdrawal of the guilty plea violated the ethical requirement that a U.S. Senator uphold the laws and never be a party to their evasion. But that conclusion (which seems a tad stretched, by the way) does not make the withdrawal of the guilty plea any more official than the underlying misconduct or the initial guilty plea itself.

Perhaps more importantly, when it came to directly addressing the question of jurisdiction, the committee could easily have said that it had jurisdiction only over the official aspects of Craig’s conduct or that it had jurisdiction over the personal aspects only because they related to official misconduct. But it did not do so. Instead, it pointed out that its jurisdiction extends to unofficial conduct which unfavorably reflects on the Senate as a whole.

Having said this, I agree with you to this extent. The committee clearly went out of its way to find things other than the underlying misconduct for which it could admonish the senator. For example, the idea that it was improper for Craig to show his business card and say “what do you think about that?” strikes me as rather ridiculous. I can’t imagine that the committee would have found this to be improper conduct if, say, Craig had been stopped for speeding. Similarly, as mentioned before, the withdrawal of the guilty plea seems like a shaky basis for admonishing Craig.

I suspect that this has less to do with the fact that Craig’s misconduct was personal than with the nature of the personal misconduct in question. If Craig had pled guilty to, say, kiting checks, I doubt that the committee would have been as uncomfortable admonishing him for that conduct alone. But the committee understandably does not want to be in the business (or advertise that it is in the business) of investigating or punishing sexual misconduct or other common indiscretions by Senators. That is different, however, from saying that committee lacks jurisdiction over purely personal matters.

Thanks again for your email and for your column, which I greatly enjoy. With your permission, I would like to post our exchange on

Best regards,

Mike Stern

Craig Admonishment

     Earlier this month, the Senate Ethics Committee issued a public letter of admonition to Senator Larry Craig.  The committee found that Senator Craig’s guilty plea to disorderly conduct in a Minneapolis airport restroom was “accurate, voluntary and intelligent.”  It therefore accepted as proven the conduct that was set forth in that guilty plea.  In addition, the committee found that when Senator Craig showed the arresting officer his business card and asked “what do you think about that?” or words to that effect, a reasonable person would view his statement as an improper attempt to obtain favorable treatment as a United States Senator. 

      The committee further found that Craig’s attempt to withdraw his guilty plea was an effort to evade the legal consequences of his initial guilty plea and therefore in violation of his duty to “uphold the Constitution, laws and legal regulations of the United States and of all governments therein and never to be a party to their evasion.”  Finally, the committee found that Craig had used over $213,000 in campaign funds to pay legal and other expenses related to the criminal conviction and ethics inquiry, but had failed to obtain the committee’s prior approval, as required by Senate ethics rules.

        Surprisingly, Roll Call’s ethics columnist, C. Simon Davidson, is questioning whether the Ethics Committee purported to exercise jurisdiction over matters of purely personal conduct.  Davidson states that “the committee admonished Craig for what it construed to be official conduct: giving the appearance of using an official position to gain special treatment, evading the law by attempting to withdraw a freely given guilty plea, and using campaign funds for legal expenses without obtaining the committee’s approval[, thus] leav[ing] open the question of whether it ever would assert jurisdiction over purely personal conduct.”

This conclusion overlooks the committee’s clear statement that “[t]he conduct to which you pled guilty, together with your related and subsequent conduct as set forth above, constitutes improper conduct reflecting discreditably on the Senate.” Thus, it is evident that the committee viewed the disorderly conduct itself as reflecting discreditably on the Senate. Moreover, it is hard to see how Craig’s conduct in withdrawing his guilty plea could be any more “official” than the underlying conduct to which he pled guilty in the first place.

If there were any doubt as to the committee’s position on this issue, it should be put to rest by the committee’s direct response to the challenge made by Craig’s counsel to its jurisdiction. In rejecting counsel’s argument that it lacked jurisdiction over a misdemeanor unrelated to official duties, the committee noted that “the Senate ‘may discipline a Member for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole.’” (citing Senate Ethics Manual, 2003 ed., at 13).

As I explained in my prior post on this matter, it should be no surprise that the Senate Ethics Committee has taken the position that it has jurisdiction in this matter, even as to the personal misconduct which has reflected discredit on the Senate.

Maybe Tom Susman Should Have Replaced Dave Barry?

From Gene Weingarten’s most recent Below the Beltway:

Me: Is this Tom Susman?

Tom: Yep.

Me: I cannot help but notice that you are identified as the “ethics chairman” of the American League of Lobbyists.

Tom: That’s correct.

Me: So, is that a no-show job? Like “etiquette chairman” of the World Wrestling Federation?

Tom: Or Lamaze instructor at a convent.


Stop it, you guys are killing me.

Should the Office of Congressional Ethics be Run by Committee?

         The House’s Special Task Force on Ethics Enforcement (or, more precisely, the Democratic members thereof) recommends the establishment of a six member board to govern the new Office of Congressional Ethics.  Three of the board members would be designees of the Speaker and three would be designees of the Minority Leader.   Although the Speaker and Minority Leader would be encouraged to agree on all of the board members and make joint appointments, in the absence of agreement the leaders could separately appoint their own designees. 

            The Task Force states that the board should be “comprised of individuals of distinction and high qualification.”  It gives examples of the types of individuals to be considered as including “former Members of Congress, former Congressional staff, former state legislators [and] former judges.”  Although the resolution it proposes would establish that selection and appointment of board members be “without regard to political affiliation,” it seems likely that the board would consist of three Democrats and three Republicans (the Task Force itself refers to “bipartisan balance” in the composition of the board).  Thus, it would in essence duplicate the composition of the House Ethics Committee, which is evenly split between the two political parties.  

            The Task Force considered whether the OCE should be overseen by a single director rather than a board.  It rejected this course, however, on the grounds that this would give too much power to a single individual.  The Task Force asserted that in the past “special counsel was hired, either by the Standards Committee or some other Congressional entity, who was widely seen as having overstepped the appropriate extent of his or her authority.”  It expressed concern about “investigations that stray from the original allegations of misconduct, and about individuals who use such unique positions of power to lay the foundation for their own future careers.”

I do not find this reasoning persuasive. In the first place, there is an inherent tension between the goal of ensuring OCE’s independence and that of ensuring that it does not overstep its authority. To the extent that having a board promotes the latter goal, it likely does so at the expense of the former. If the board is risk averse, it will hesitate to undertake any inquiries that might be controversial.

Second, the composition of the board would seem to create incentives similar to those that currently impact the House Ethics Committee itself. The types of people described by the Task Force as candidates for the board will probably have strong political affiliations (and ties to the Speaker or Minority Leader). Even if the members of the board are jointly appointed, they are going to have some degree of loyalty to the leader who designated them. If an inquiry is proposed for Democratic Representative A, there will be a natural tendency for the Democratic appointees on the board to resist, or to suggest that there should also be an investigation of Republican Representative B. This dynamic has often resulted in paralysis of the Ethics Committee, and could have the same impact on the OCE.

Third, there are significant differences between the incentives facing a “special counsel” to a congressional committee and the director of an office like the OCE. The former serves for a brief time (usually a matter of months), often while continuing to serve private clients from his or her law practice, and is responsible only to one or at most a handful of Members. The special counsel, therefore, may have an incentive to promote his or her private law practice (by making as big a splash as possible with the investigation) and less reason to consider the larger institutional interests of Congress.

By contrast, the director of the OCE would work full time for the House of Representatives, and would presumably serve for a period of years. If appointed jointly by the Speaker and the Minority Leader (or, preferably, by a resolution of the House itself), the director would not be loyal to a particular member but to the House as a whole. The director would less invested in the outcome of any particular matter (as compared to a special counsel), but would be more interested in building and preserving the reputation of the OCE as an effective and impartial enforcer of House rules.

An OCE run by a single individual would be more accountable and in all probability more vigorous than one run by a group of people who, however capable and well-intentioned, will be beset by the problem of internal disputes and disagreements which always occur when an enterprise is run by committee. A board (particularly one composed of high profile individuals) will also have more difficulty operating in a confidential manner than would a single director.

As described by my last post, the British have developed an effective system of ethics enforcement with a single individual serving as the Parliamentary Commissioner. One of the key features of the British system is the fact that the Parliamentary Commissioner is appointed by resolution of the House of Commons for a five-year non-renewable term, and similarly can only be removed by vote of the House itself. This gives the Commissioner considerable independence, and, since he can only serve a single term, less incentive to curry favor with the powers that be.

Of course, it is essential that such a position be filled by someone who is not only capable and honest, but who has a judicious temperament and a firm understanding of the proper role of his or her office. The British have been able to find well-suited persons, such as Sir Philip Mawer, to fill the role of Parliamentary Commissioner. Surely the House of Representatives could find a qualified and honorable individual, unconsumed by ambition, to serve as the director of the OCE.

The Parliamentary Commissioner for Standards

       As it takes up the question of how to structure an independent ethics enforcement office, the House of Representatives would do well to consider the experience of the British Parliament.  In 1995, the House of Commons established the Parliamentary Commissioner for Standards, an independent official appointed by Parliament to handle ethics matters.  Josh Chafetz has argued in a recent article that the Parliamentary Commissioner represents a promising model for congressional ethics reform.    

            The Parliamentary Commissioner’s principal duties are: (1) to maintain the “register of interests” that identifies certain significant financial interests (eg. paid employment, directorships, shareholdings, gifts, hospitality, land and property) of Members of Parliament and others which could potentially influence their parliamentary activities; (2) to provide confidential advice to MPs and others regarding the registration requirement; (3) to advise the Committee on Standards and Privileges (the British counterpart of the House Ethics Committee) on interpretation of the code of conduct; (4) to monitor the operation of the code of conduct and the register and to make any needed recommendations for improvement; and (5) to receive and, if appropriate, to investigate complaints from MPs or members of the public regarding failure to register interests, violations of the code of conduct or other inappropriate activity by MPs in their public life. 

            The last function is the most important.  The Commissioner receives complaints filed by members of the public, but does not accept anonymous complaints or unsubstantiated allegations.  If the Commissioner decides that the complaint lacks merit, he has the discretion to reject it without taking further action.  (The Commissioner has also established procedures for dealing with frivolous or vexatious complaints).  

If, on the other hand, the Commissioner is satisfied that the allegations have sufficient substance to justify a preliminary inquiry, he will ask the MP in question to respond.  Following receipt of this response, the Commissioner may dismiss the complaint, reach a settlement with the MP (if the Commissioner finds that the infraction was minor or unintentional), or proceed to conduct a full investigation.  If a full investigation is warranted, the Commissioner will ultimately report to the Committee on Standards and Privileges (the equivalent of the House Ethics Committee) with his findings and recommendations.  The Committee may then conduct further inquiry, and will ultimately publish its own report along with the report received from the Commissioner.   

As suggested by Josh Chafetz, the Parliamentary Commissioner model appears to be working successfully in Britain.  I would add that I was favorably impressed with the operations of the Parliamentary Commissioner’s office when, on a recent trip to London, I had the pleasure of meeting with Sir Philip Mawer, who served as Parliamentary Commissioner until the end of 2007, and his staff.  Whether this is the right model for the House of Representatives is a matter for debate, but in future posts I will discuss some significant differences between the House’s proposed Office of Congressional Ethics and the Parliamentary Commissioner.

More on Coconut Road

           Via TPM Muckraker, Senator Tom Coburn has demanded a joint House-Senate investigation of the circumstances that led to the infamous Coconut Road earmark language, which was inserted into the 2005 Transportation Bill (allegedly on instructions of staff for then-House Transportation Committee Chairman Don Young) after final passage of the bill.  Taxpayers for Common Sense had requested that the House Ethics Committee investigate the matter, but that request has predictably gone nowhere.

            As I noted in a previous post, because this matter presents, at least at the outset, primarily a question of possible violations of parliamentary rules, practice or precedent, the House Ethics Committee is unlikely to take it up.  It would be more appropriately investigated by a special panel or task force like that which was established to review the “stolen vote” on the 2008 Agriculture Appropriations Bill.  In fact, I suggested that the House could broaden the mandate of the “stolen vote” vote panel to encompass this matter.      

            Senator Coburn’s proposal that a special House-Senate panel be created also makes a certain amount of sense.   After all, because the House Enrolling Clerk evidently inserted language into the enrolled bill that the Senate had not agreed to, the Senate’s interests are directly implicated in a way that they would not be by more typical malfeasance or impropriety internal to the House.    

            Nonetheless, establishing a joint committee for this purpose would raise constitutional issues since Article I makes each House solely responsible for determining its own rules and disciplining its own members.  Perhaps more importantly, it seems unlikely that either the House or Senate leadership will wish to establish a precedent for involvement of one body in the internal governance of the other.   

            At the end of the day, the best Senator Coburn can hope to do is to get a commitment from the House that it will investigate the matter and (perhaps) provide the Senate with a report of its conclusions.  This would be a substantial accomplishment, however, and we here at Point of Order wish him the best.

When the Justice Department Takes the Fifth

From Chris Wallace’s interview of Representative Pete Hoekstra (ranking member of the House intelligence committee, also known as “HPSCI”) yesterday:

WALLACE: On Friday, the Justice Department moved to block congressional investigations of the destruction of these CIA tapes, saying that it would jeopardize its own probe.

Congressman Hoekstra, does that mean your committee is going to stand down?

HOEKSTRA: No, I don’t think so. I think what we’re going to do is we want to hold the community accountable for what’s happened with these tapes. I think we will issue subpoenas.

And once these witness appear in front of the committee, then I think we’ll have to make the decision as to whether we’re going to provide them with immunity or not. But our investigation should move forward.

            At first blush, Hoekstra’s reference to the granting of immunity seems like a non sequitur.  After all, he was asked whether HPSCI would continue its investigation of the tape destruction despite DOJ’s apparent opposition.  What does that have to do with whether HPSCI might take the extraordinary step of granting immunity to witnesses, assuming that one or more of these witnesses invoke the Fifth Amendment privilege against self-incrimination? 

The reference to immunity is understandable, however, in the context of Hoekstra’s prior experience in conducting investigations in parallel with ongoing DOJ investigations. In these situations witnesses who are cooperating with DOJ, even those who have already reached a plea agreement or immunity deal, will nonetheless assert a Fifth Amendment privilege vis a vis Congress. This practice stands the purposes of the Fifth Amendment on its head, since the privilege protects individuals from testifying in criminal trials, not in congressional hearings. However, by condoning or encouraging this practice, DOJ can frustrate congressional investigations that it views as nuisances.

An example of how this works is Duke Cunningham, the former congressman now serving time in federal prison for accepting millions of dollars in bribes. Cunningham’s plea agreement required him to cooperate with federal and state law enforcement agents and attorneys, and protected him against potential criminal prosecution for truthful statements made in the course of that cooperation. However, it did not (at least expressly) require cooperation with Congress. The plea agreement also gave DOJ a great deal of leverage over Cunningham because it promised him the possibility of a reduced sentence if his cooperation was satisfactory to the Justice Department.

As a consequence, when HPSCI wanted to interview Cunningham as part of its inquiry (which I led) into his activities as a member of the committee, his lawyer, Lee Blalack, refused to allow Cunningham to cooperate absent permission from the Justice Department. As Blalack more or less acknowledged, his concern was not really that Cunningham would be prosecuted for statements made to HPSCI—instead, he believed that DOJ might retaliate against Cunningham for cooperating with the committee by refusing to seek a reduction in sentence. In effect, this gave DOJ a veto right over Cunningham’s appearance before HPSCI. Thus, when DOJ not only refused to give permission for Cunningham to cooperate but actually asked HPSCI to stop trying to interview him, Blalack informed the committee that Cunningham would not cooperate voluntarily and, if subpoenaed, would assert the Fifth in response to any questions.

What do experiences such as this mean for HPSCI’s investigation into the tape destruction? The chances that HPSCI will actually grant immunity to any witnesses are slim at best. Nor should it do so, at least with respect to witnesses who are cooperating with federal law enforcement. Instead, HPSCI should insist that any agreements, explicit or otherwise, that DOJ reaches with witnesses must also provide for congressional access to these witnesses on the same terms. The Fifth Amendment is supposed to be a shield against compelled self-incrimination in criminal cases, not a sword for the executive branch to use against congressional inquiries.

Should the House and Senate Intelligence Committees Have Heard General Hayden in Public Session?


Over at Balkinization, Marty Lederman is upset that the House and Senate intelligence committees conducted closed-door sessions to hear General Hayden’s account of how tapes of CIA interrogations were destroyed.   He asks: 

Even if some of what was on those tapes is classified, and even if occasionally some bits and pieces of the testimony (e.g., the names of the agents; some information gleaned from a detainee) could only be discussed in a classified setting, why wouldn’t the committees insist upon a presumption of public hearings about the who/what/when/where/why of the tape destruction?” 

            I made several comments in response to Professor Lederman (these can be read in their entirety at Balkinization) along the following lines: (1) the House and Senate rules relating to public hearings are simply inapplicable to the Hayden sessions because these were briefings, not hearings; (2) the rules do not require any formal vote to close a briefing and, in fact, the House intelligence committee rules provide that all briefings are to be closed; (3) nothing in the House or Senate rules require committees to gather information by way of hearings rather than briefings or other methods; (4) even if these had been hearings, it is almost certain that the committees would have (properly) decided to close them because it would likely be impossible to have a robust discussion of this subject without getting into classified information; and (5) the responsible way for the committees to proceed is to first get General Hayden’s information in a closed session, as they have done, and then make the decision as to whether there is segregable non-classified information that can be heard in an open hearing or, alternatively, to vote to release any information (classified or non-classified) that they believe is in the public interest to disclose. 

            While acknowledging that the rules I cited allowed at least the House intelligence committee to proceed in the manner that it did, Lederman argues that the committees should have conducted hearings, rather than briefings, in this matter.  He also suggests that if the committees had held hearings, they could not have been closed because the predicate for closing the hearings “likely is not present.” 

            This is simply wrong.  The committees have both the authority and the obligation to close hearings whenever classified information will be discussed.   The House intelligence committee rules, for example, provide that hearings shall be closed if the committee determines that disclosure of matters to be discussed may “endanger national security” or violate “any law” or House rule.  The Senate rules similarly provide for closing hearings to avoid disclosure of matters “necessary to be kept secret in the interests of national defense” or which would violate “provisions of law or Government regulations.”  Discussion of classified matters certainly falls under these provisions (as I think Lederman would concede). 

            Moreover, as I pointed out, the intelligence committees face significant legal and practical constraints with regard to classification matters.  The executive branch makes classification decisions and the committees largely have to rely on the intelligence agencies to tell them what is and is not classified.  So unless General Hayden and the administration agreed that the matters in question could be discussed in open session (which they surely do not), the committees would have little choice but to proceed in closed session. 

            Finally, I noted that there could be an argument that a full committee briefing in the Senate would be considered a “meeting” for purposes of the rules (and thus require a record vote in order to close).  Although I was reasonably sure that it would not be, I checked with a very well informed source in the Senate, who confirmed my instinct that a committee briefing is not a “meeting” for purposes of the Senate rules.  Thus, the Senate intelligence committee was not required to vote to close the Hayden briefing.