Bathroom Break

Today’s Roll Call editorializes that the Senate ethics investigation of Senator Larry Craig “should be dropped forthwith and the resources of the committee should be devoted to serious matters, notably charges that Sen. Ted Stevens (R-Alaska) had his home rebuilt by an oil executive who has admitted bribing elected officials.”  The grounds cited by the editors are as follows: (1) Senator Craig’s alleged conduct of soliciting sex in an airport bathroom, however embarrassing and unseemly, did not violate any Senate rule; (2) Senate rules and previous ethics cases have been limited to matters involving official misconduct of some kind (eg, bribery, acceptance of improper gifts, conflict of interest, financial disclosure violations); and (3) applying Senate discipline to Senator Craig for conduct unrelated to his official duties would amount to an ex post facto law. 

While the wisdom of investigating the Craig matter can be debated, it incorrect to suggest, as the Roll Call editors do, that such an investigation would be illegitimate or beyond the proper jurisdiction of the Senate Ethics Committee.  The Constitution authorizes each House to “punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”  As Justice Story explains in his classic 1833 treatise on the Constitution, it would be difficult to draw any limitation on the disciplinary power based on “the time, place or nature of the offence.”  He notes it is settled in the Senate that discipline may be imposed for “any misdemeanor” (meaning misbehavior) “inconsistent with the trust and duty of a senator,” regardless of whether the misconduct violates a statute, was committed in an official capacity, or took place in Congress or during session. 

Moreover, the Senate Ethics Manual explains that “[t]he Senate has disciplined Members for conduct it has deemed unethical or improper, regardless of whether it violated any particular law or Senate rule or regulation.”  Nor does the misbehavior have to involve “official conduct in some fashion,” as the Roll Call editorial contends.  The Senate Ethics Manual quotes the following from the Senate Select Committee to Study the Censure Charges (against Senator Joseph McCarthy): “’It seems clear that if a Senator should be guilty of reprehensible conduct unconnected with his official duties and position, but which conduct brings the Senate into disrepute, the Senate has the power to censure.’”

Indeed, Roll Call’s own ethics columnist has written, in connection with Senator David Vitter’s alleged contacts with the “D.C. Madam,” that the Senate Ethics Committee could exercise jurisdiction over that matter, despite the fact that these contacts took place before he joined the Senate.  If this is true, it is difficult to see how Senator Craig’s alleged conduct would not fall within the Committee’s jurisdiction.

(It should also be noted that while Senator Craig’s alleged bathroom conduct was unrelated to his official duties, the same cannot necessarily be said about his subsequent actions.These include pleading guilty to the disorderly conduct charge without informing the Senate, making public statements about his conduct and announcing an intention to resign which he later disavowed.)

Admittedly the broad and subjective standards applicable to congressional ethics have a great potential for inconsistent application and in some cases may result in penalizing conduct that could not reasonably have been known to violate Senate (or House) norms at the time it occurred.Such, however, is a recognized consequence of the self-disciplinary regime established by the Constitution and congressional precedent.As the Supreme Court has noted, “the process of disciplining a Member of Congress . . . is not surrounded with the panoply of protective shields that are present in a criminal case.An accused Member is judged by no specifically articulated standards, and is at the mercy of an almost unbridled discretion of the charging body. . .”

In any event, Senator Craig would seem to have little reason to complain about unfair or retroactive application of the Senate ethics process.Is it really so surprising that soliciting sex in a public restroom might be considered the sort of thing that could bring the Senate into disrepute?

Compare Senator Craig’s case to that of Representative Bob Filner, who is currently being investigated by the House Ethics Committee.Like Senator Craig, Representative Filner was at the airport, but rather than looking for love, Representative Filner was just looking for his luggage.When it failed to show up, Representative Filner apparently got upset, and allegedly pushed an airport employee and attempted to enter a restricted baggage area.The fact that this conduct had nothing to do with his official duties and was, at worst, a misdemeanor has not prevented the House Ethics Committee from opening an investigation of Representative Filner.

Perhaps Roll Call believes that sodomy in an airport bathroom is less reprehensible than throwing a temper tantrum over lost luggage.Fair enough.But it should recognize that this is a subjective and value-laden judgment on its part, not a distinction of a legal or constitutional dimension.

If Roll Call is truly concerned about unfair and ex post facto applications of the congressional ethics rules, it should study the House Ethics Committee’s report on the Mark Foley matter.As I will explain in a later post, this report applied standards to members and staff that could not possibly have been envisioned at the time that the alleged conduct took place.Yet this report was widely condemned, not for being too harsh, but for being too lenient.

Finally, I would note that Roll Call’s reference to Senator Stevens is simply a red herring.There are many potential ethics investigations that the House and Senate Ethics Committee have deferred on the theory (some might call it a pretext) that such investigations could interfere with criminal investigations being conducted by the Department of Justice.Whether this is a valid theory, as applied to Senator Stevens or anyone else, has nothing to do with whether there should be an investigation of Senator Craig. The Senate Ethics Committee has, or can easily acquire, the resources to investigate both Senators Craig and Stevens, should it so choose.

 

 

TCS Earmark Investigation: On the Road to Nowhere?

         Taxpayers for Common Sense (TCS) has written a letter to the House Ethics Committee, requesting an investigation of a $10 million earmark for the Coconut Road project in Lee County, Florida.  As explained in their letter, the earmark was included in the 2005 Transportation Bill, but the language that passed the House and Senate merely stated that the money was for “Widening and Improvements for I-75 in Collier and Lee County.”  Between the time that the conference report was approved and the time that the bill was sent to the President, the earmark language was changed to “Coconut Rd. Interchange I-75/Lee County.” The letter references media reports that the language was changed by the Enrolling Clerk at the instruction of staff for then-House Transportation Committee Chairman Don Young.  It also suggests that the language change benefited Florida real estate developers who hosted a fundraiser for Young earlier in 2005, including one who owned 4,000 acres adjacent to Coconut Road.

            This request potentially raises two separate issues.  The first is how the earmark language came to be changed (including when the change was made, by whom, who authorized or directed it, and who was aware of it) and whether the change violated the rules and/or norms of the House.  The second is whether the earmark itself was motivated by improper favoritism or outright corruption.  Formally, the TCP letter only requests an investigation of the first issue, although its letter implicitly raises the second as well.

I question whether the first issue is best addressed by the House Ethics Committee. Certainly there is a strong argument that the Committee’s investigative jurisdiction would extend to this issue, since the House’s Code of Official Conduct (over which the Committee has jurisdiction) mandates that Members, officers and employees adhere to the “letter and spirit” of the House Rules and, as TCS notes, the rules as interpreted by House precedent appear to forbid any change to the language, however unimportant, in the text of a bill to which the House has agreed. Moreover, the Committee’s jurisdiction could also be founded on the broad requirement that Members, officers and employees conduct themselves in a manner which reflects creditably on the House.

Nonetheless, it is at least unusual, if not unheard of, for the Ethics Committee to investigate alleged violations of parliamentary rules, practice or precedent. For one thing interpreting such rules, practices or precedent might encroach upon the jurisdiction of others, such as the Speaker, the Rules Committee or the Parliamentarian. Thus, for example, when the Ethics Committee investigated the circumstances surrounding attempts to influence the vote of former Representative Nick Smith on the 2003 Medicare Prescription Drug Bill, it confined its investigation to allegations of bribery and improper influence, and did not attempt to investigate the parliamentary device of the Chair holding the vote open beyond the normal time in order to achieve a particular result (although the Investigative Subcommittee did express some disapproval of the tactic in a footnote).

Similarly, when questions were raised in this Congress about whether a vote on the 2008 Agriculture Appropriations Bill had been properly conducted, the matter was not referred to the Ethics Committee. Instead, the House Leadership established a special investigative panel to look into the matter. This precedent, which is specifically cited in the TCS letter, would appear to provide a good model for dealing with the first issue raised by the letter. Indeed, serious consideration should be given to broadening the mandate of the special panel to encompass the Coconut Road issue.

As a practical matter, it seems unlikely that the Ethics Committee can or will act upon the TCS letter. As pointed out by Roll Call, House Rules do not permit the Committee to act upon complaints from outside parties such as TCS. Technically, the Committee could choose to act on its own initiative, but it seems doubtful that it will do so, particularly in light of the many other matters that are overloading the Committee. In addition, if the Committee were to investigate the second issue raised by the TCS letter, ie, the suggestion of improper favoritism or corruption, it might have to investigate dozens, perhaps hundreds, of other earmarks with similar indicia of impropriety.

The question of how the Coconut Road earmark language was changed is a serious issue, which should be the subject of a thorough review and a public report. It is doubtful, however, that the Ethics Committee will be the forum to address this issue.

Geragos to Congress: Drop Dead

       Tomorrow a federal district court judge in San Diego will hear arguments on a motion to quash subpoenas to 12 sitting Members of Congress (Roy Blunt, Norm Dicks, John Doolittle, Dennis Hastert, Pete Hoekstra, Duncan Hunter, Darrell Issa, Joe Knollenberg, Jerry Weller, Jerry Lewis, John Murtha, and Silvestre Reyes) in the case of United States v. Wilkes.  The trial subpoenas were issued on behalf of defendant Brent Wilkes, who is accused of bribing former Congressman Duke Cunningham.  The subpoenas seek testimony and, in some cases, documents from the Representatives.   

Although the motion to quash raises a number of objections to the subpoenas, one compelling objection is based on Rule VIII of the House Rules, which governs the procedure to be followed by Members, officers and employees who receive subpoenas relating to the official functions of the House.   I believe that the court would be well advised to quash the subpoenas on this basis, rather than ruling on sensitive constitutional issues such as the Speech or Debate Clause at this juncture. 

The House General Counsel’s office, which is representing the Members, accepted service of the subpoenas on their behalf on September 5, 2007.  The following day the counsel’s office wrote to Mark Geragos, Wilkes’ counsel, requesting that he “specifically describe in writing what testimony you intend to seek from each Member” and why the testimony and documents sought “would be relevant to your case.”  The House Counsel’s letter explains that “[t]his information is necessary because Rule VIII of the Rules of the House of Representatives . . . authorizes House Members to respond to judicial subpoenas only if they are able to determine, among other things, that the information sought is ‘material and relevant.’ . . . Without this information, the Members will be unable to make the determinations required under House Rule VIII and will therefore be unable to respond to your subpoenas.”      

Geragos responded on September 11, declining to provide the information requested.  He contended that “requiring a defendant to disclose what testimony he seeks from a series of witnesses before the prosecution presents its case will necessary reveal the defense’s trial strategy and tactics.  That would unfairly prejudice the defense, and undermine the right to a fair trial.”  He also noted that “[o]ur preliminary research discloses no authority holding that . . . Rule VIII . . . trumps an accused’s Sixth Amendment right to compulsory process or his right to a fair trial.” 

Because the Members have been unable to make the determination that the subpoenas are “material and relevant,” House Rule VIII bars compliance with the subpoenas.  Generally the House Counsel’s office has been reluctant to place too much reliance on Rule VIII objections because of concerns that courts will view the rule as an effort by the House to define the extent of its own privileges.  However, Rule VIII does not purport to empower individual Members to make determinations binding on the courts.  Instead, the rule requires Members (or other subpoena recipients) to make certain determinations, including that of materiality and relevance, prior to complying with a subpoena.  If the Member makes the required determinations in the affirmative, he or she “shall comply” with the subpoena.  If any of the determinations, including relevance and materiality, are in the negative, the Member is authorized, after notifying the Speaker, to seek a judicial determination of the matter.  Thus, the final determination of relevance and materiality remains with the court. 

In this case, however, the Members have been unable to make the determination required by the rule because Geragos refused to provide them with an explanation as to why they were subpoenaed.  His contention that Wilkes’ right to a fair trial somehow justifies this refusal makes no sense.  Even assuming that Wilkes’ constitutional rights limit the amount of disclosure that is required, they certainly do not allow enforcement of a subpoena without a showing that the information sought is relevant to the case.  Thus, there can be no constitutional problem with requiring Geragos to provide the House of Representatives with at least the same showing of relevance as he would have to provide the court on a motion to quash. 

If Geragos had provided the information requested and the Members had nonetheless determined that the subpoenas were not relevant and material, the court might have to address some of the more difficult issues posed by Rule VIII, including (1) the degree of deference, if any, that the court should give to the Members’ determinations and (2) whether the standard of “relevant and material” under the rule mandates a greater showing than is normally required for enforcement of a criminal trial subpoena.  In this case, however, the court need not do more than find that Geragos, “celebrity lawyer” though he may be, has no right to subject a good portion of the House of Representatives to compulsory process without explaining why.  The court should make this finding not only because Rule VIII was properly enacted by the House pursuant to its rulemaking authority under the Constitution, but because comity between the branches demands no less.

Are Pollsters Required to Register as Lobbyists?

Today’s Roll Call suggests that pollsters who present the results of their polling to Members and staff on behalf of private clients may not view themselves as required to register under the Lobbying Disclosure Act: 

When it comes to disclosure rules, Brett Kappel, a lobbyist and campaign finance lawyer at Vorys, Sater, Seymour and Pease, said companies or groups that use polling data to persuade Members or staff should report the money spent on those polls in their lobbying disclosures. But they don’t have to disclose the name of the polling company, he said. And pollsters themselves are under no obligation to report their Hill activities unless they advocated a particular position and spent more than 20 percent of their time for that client doing so.  

This is not correct insofar as it suggests that “lobbying” has to consist of “advocat[ing] a particular position.”  The Lobbying Disclosure Act defines a “lobbying contact” as any written or oral communication to a member (or covered staff) on behalf of a client in regard to (among other things) the “formulation, modification or adoption of federal legislation.”  It doesn’t say that the communication has to advocate a particular position on how or whether legislation is adopted or modified.   

So, for example, if a pollster does a poll on health insurance and present the results to one or more members of Congress on behalf of a private client, this would seem to be a lobbying contact, even if the pollster makes no statement about how the results should be used in crafting health insurance legislation.  Surely the communication would be considered one “in regard to” the formulation, modification or adoption of health insurance legislation– otherwise what would the purpose be? 

In order to determine whether the pollster is required to register as a lobbyist, one would have to look at his or her “lobbying activities” (time and expenses incurred in support of the lobbying contact)– in this case that might include the time and expenses of actually conducting the poll (although that could get complicated if the poll was being used for a variety of purposes, not just presentation to Congress).  If the lobbying activities meet the expense threshhold and constitute at least 20% of the time spent on behalf of that particular client (and the pollster has made more than one lobbying contact in the reporting period), the pollster should be required to register as a lobbyist.

Jefferson Round 3

As I predicted in earlier posts, the Justice Department is finding it hard to live with the implications of the DC Circuit’s decision in United States v. Rayburn House Office Building, Room 2113 (the Jefferson search case).  It is now seeking a rehearing by the full court, contending that the decision hampers its ability not only to search congressional offices, but also to use other law enforcement tools in investigations of Members of Congress.  As described by John Bresnahan of the Politico:

“By interpreting the Clause to include an absolute non-disclosure privilege, the panel has not only frustrated the execution of search warrants supported by probable cause, it has invited questions concerning the lawfulness of essential tools in investigating and prosecuting corruption  – including electronic surveillance, consensual monitoring, searches of home offices, and voluntary interviews of staffers – ‘that have never been considered problematic,'” Justice Dept. prosecutors wrote in their filing.

It is not surprising that the DC Circuit’s decision is being interpreted to apply to searches of locations other than congressional offices.  As I noted in a prior post: “Although the majority seems to assume that its rationale is limited to congressional offices, it would seem, as the concurring opinion points out, that it could apply equally to searches of a Member’s home, car, etc.  (The lawyers for Senator Stevens, among others, may be considering this issue as we speak). There certainly is a strong likelihood that Members will have Speech or Debate privileged materials in their homes.  If Congressman Jefferson had wrapped his $90,000 in a copy of legislation he had introduced, would that have rendered the search of his home unconstitutional?” 

The extension of the DC Circuit’s decision to electronic surveillance also seems logical.  If the Speech or Debate Clause forbids the FBI from conducting a search that might cause it to see Speech or Debate privileged documents, it is not obvious why the same principle forbids it from listening in on conversations that might contain a Speech or Debate privileged discussion.  Of course, under the logic of the DC Circuit’s opinion, the FBI could record the conversations (without listening to them) and then send the tape to the Member to separate the privileged from the non-privileged portions, but the Justice Department might view this as a tad problematic from an investigative standpoint. 

The application of the decision to staffer interviews is less clear.  From talking with the Hill, I know that there are those who are interpreting the decision to forbid the Justice Department from conducting voluntary staff interviews without a Member’s consent, but this seems like a stretch.  Since there is no compulsion in a voluntary interview, it is difficult to see where the constitutionally proscribed “questioning” occurs (unless the Speech or Debate Clause is to be interpreted to forbid staff from talking with the press or others outside of Congress on a voluntary basis). 

Regardless, the Justice Department may face a significant hurdle in obtaining en banc review of the DC Circuit’s decision.  Technically, it won the appeal to the DC Circuit because Jefferson did not get any of the relief that he was seeking.  Normally, the victorious party cannot appeal a decision, even if it may be adversely impacted by the reasoning of the decision in the future.  I will have to review the DOJ brief to see if there is some exception applicable here.   

Parliamentary Procedure

This webpage from the House Committee on Rules provides a very helpful series of newsletters summarizing key points of parliamentary procedure.  Thanks to John Wonderlich and the Open House Project for the tip.  

Is this Really Legal? (Part 2)

           As noted in my prior post, Representative Cleaver’s office defends Scaglia’s lobbying business on the grounds that “he does not contract with, or lobby on behalf of, a client on federal matters.”    Scaglia himself told a Kansas City newspaper that he lobbies only on local issues. 

            This is fortunate because it is a crime for a federal employee to represent the interests of others in their dealings with the United States (18 USC § 205).  Thus, for example, it would be a criminal offense for a low-level employee in one federal agency to assist a friend or relative (even on an uncompensated basis) by negotiating a contract with a completely unrelated part of the government.  The fact that a senior congressional staffer is refraining from lobbying the federal government on behalf of private clients is therefore not exactly evidence of a desire to avoid any appearance of impropriety. 

            In order to avoid violating 18 USC § 205, it is not enough that Scaglia confine his lobbying to local issues.  He has to be exceedingly careful that his clients do not present him or his work product to any federal agency or entity.  He also must be careful that none of the fees that he receives from his clients are themselves derived from federal lobbying because, another statutory provision, 18 USC § 203, prohibits any federal employee from accepting compensation from federal representational activities conducted either by the employee or someone else.  This could be a particular problem to the extent that Scaglia represents clients, such as the Overton Group, which themselves engage in lobbying activities. 

            Even if Scaglia has been successful in structuring his activities so as to avoid violating any statutory prohibition, this does not mean that his outside employment is consistent with the ethical standards mandated by House Rules.  As the House Ethics Manual states, “[i]n addition to statutory restraints limiting particular types and amounts of outside income, general ethical standards and rules restrict any outside activities that are inconsistent with congressional responsibilities.”  The Manual also notes that outside employment limitations are designed to “avoid any possible conflict between the narrow interests of private employers and the broader interests of the general public.”  Among the reasons for the outside employment limitations are the concerns that a Member or employee receiving from a private company would be vulnerable to overt attempts to curry favor or “subtle distortions” of judgment on particular issues, the “time conflict” between congressional duties and the demands of outside employment, and the appearance of impropriety which can result from such private employment. 

            Judged by these standards, it is difficult to see how Scaglia’s lobbying practice could  pass muster.   At the outset, if as indicated by the articles Scaglia functions as Cleaver’s chief of staff, the fact that he is paid less than the statutory minimum does not in any way reduce the potential for an actual or apparent conflict of interest.  The salary cutoff is intended as a rough means of identifying the most influential congressional staffers, but no one on the Hill thinks that salary and influence are the same.  As Cleaver’s chief of staff, Scaglia should be assumed to have considerable influence over the congressman’s activities and thus his personal financial interests pose a greater risk of conflict of interest than would those of a more junior staffer.  

            There are at least two types of potential conflicts from Scaglia’s lobbying activities.  The first is that his clients will have an advantage, or be perceived to have an advantage, should they seek support or favors from Representative Cleaver or his staff.  The fact that Scaglia does not lobby on federal issues does not mean that his clients have not lobbied Cleaver, or will not seek to lobby him in the future.  It does not mean that the Overton Group, or the Overton Group’s clients, have not or will not engage in such lobbying.  Even if Scaglia were to recuse himself in such situations (which one would certainly hope and expect that he would), the fact of his financial relationship could very well lead these clients to expect special treatment from Cleaver or his staff, or create the appearance that they enjoyed undue influence with this congressional office. 

            The second type of potential conflict relates to the state legislators and other state or local officials that Scaglia lobbies on behalf of his private clients.  Many of these officials certainly deal with Cleaver’s office on a regular basis, seeking federal support on various state and local matters.  Common sense suggests that these officials have an incentive to assist Scaglia’s clients in the hope or expectation that this will benefit them when they are dealing with Cleaver’s office.  At a minimum, the arrangement creates the type of appearance
of impropriety that the ethics rules were designed to prevent. 
 

As the Roll Call article indicates, an internet search will turn up a record of a meeting Scaglia attended for one of his clients: 

According to the minutes of a November 2005 meeting of the city council of Sugar Creek, Mo., Mayor Stan Salva opened the meeting with a discussion of Cleaver’s willingness to help the town obtain funding for an expressway.

Later in the meeting, according to the minutes, “Phil Scaglia of American Traffic Solutions” responded to questions about the town’s plan to install red-light enforcement cameras. American Traffic Solutions makes the cameras, and is listed as one of Scaglia’s clients.

This illustrates the problem.  The very people Scaglia is lobbying on behalf of a private client are also seeking the support of his boss for funding of an expressway.  It is difficult to imagine how the conflict of interest could be any more apparent.  No matter how diligent Scaglia is in attempting to separate his lobbying and congressional work, any reasonable person would expect that his congressional position gives him an advantage in lobbying for his private clients.

           

            According to Cleaver’s spokesman, Scaglia’s lobbying work has been “cleared” by the House Ethics Committee.  If so, there is a written opinion that Cleaver’s office can release to demonstrate this clearance.  It would be interesting to know what it says.

Is this Really Legal?

This is the sort of thing that breeds cynicism about “congressional ethics.”  Roll Call reported this week that a high-ranking staffer for Representative Emmanuel Cleaver (D-Mo.) is a lobbyist “on the side.”  The staffer, Phil Scaglia, who made nearly $100,000 last year, is Cleaver’s highest paid staffer, and functions essentially as his chief of staff.  Although he evidently has a full-time congressional position, Scaglia also represents private clients, such as the American Diabetes Association, American Traffic Solutions and L-S Commercial Real Estate, as a paid lobbyist in Missouri.  He also represents an entity called the Overton Group, Inc., which is itself run by a lobbyist named Glen Overton, who represents major clients like the Corrections Corporation of America and Great Plains Energy.

 Both statute and House rules sharply limit the amount of outside income that Members, officers and certain senior staffers can earn, and prohibit them from receiving any compensation from the performance of most professional services.  As the House Ethics Manual explains, these restrictions were enacted in order to prevent outside compensation from being used a subterfuge for the reemergence of “honoraria” and  “because these professional activities were believed to pose a particular risk of conflict of interest.”  The House Ethics Committee has construed the ban on professional services broadly to cover generally activities such as law practice, insurance, accounting, real estate, consulting and even medicine.  The practice of lobbying, which on its face seems more problematic than any of those examples, is surely also covered.

 Nonetheless, a spokesman for Representative Cleaver maintains that Scaglia is not subject to these rules because he does not earn enough to qualify as an employee covered by the statute and rule.  Although all House Members and officers are subject to these restrictions, only employees making over a certain amount (currently about $111,000 per year) are covered.  Thus, while most other congressional chiefs of staff would be subject to these rules (a quick check of Legistorm indicates that all of the identified chiefs of staff in the Missouri delegation earned more than the required amount), because Cleaver and Scaglia chose to set his salary at a lower rate (presumably with full knowledge of the implications for his lobbying practice), he is not.  Very clever.

 Or maybe not so clever.  Because while it is true that Scaglia earned less than the requisite annual amount for all of 2006, he was paid $28,769 for the period October 1, 2006 through December 31, 2006 (according to Legistorm).  House Rule XXV defines a covered employee as one who is paid “at a rate equal to or greater than [specified amount]” and is “so employed for more than 90 days in a calendar year.”  Scaglia’s salary for the 92 days comprising the last quarter of 2006 annualizes to more than $115,000 and therefore would seem to qualify him for the prohibition.

 It is likely, however, that a portion of Scaglia’s salary for the final quarter of 2006 was in the form of a lump sum payment, which, according to a October 15, 1999 advisory opinion of the House Ethics Committee, is not generally to be counted in an employee’s salary for purposes of the outside earned income limitation and restrictions.  Thus, assuming that a lump sum payment was properly made to Scaglia, this payment would not cause him to be subject to the rule.

Even if Cleaver and Scaglia have successfully evaded the prohibitions of the statute and rule, however, serious questions remain.  As the Committee’s advisory opinion notes, Members and staff are required “to adhere not only to the letter, but also the spirit, of the Rules of the House.”  Allowing one’s staff to engage in outside professional activities which pose a low risk of conflict of interest, like the practice of medicine, might be consistent with the spirit of the rules, but it is difficult to imagine a situation more antithetical to the spirit of the rules than for any congressional employee, even one less senior than Scaglia, to conduct a private lobbying practice.

 In my next post I will consider the contention by Representative Cleaver’s spokesman that the lobbying practice is permissible because it is limited to state and local officials.

Inherent Contempt 101

There is an interesting article from the Politico regarding the enforcement options available to Congress with respect to the refusal of Harriet Miers and other former or current Administration officials to provide information in the investigation of the firing of US attorneys.   The article focuses in particular on the potential for using “inherent contempt,” which it describes as a “really odd” but “technically legal” process.

Inherent contempt is the term used for the procedure by which a legislative body, such as the House or Senate, may arrest, try and imprison a person for contempt.  The Supreme Court has long recognized that the power of each House of Congress to punish contempt, although not explicitly granted by the Constitution, is “essential to the effective exertion of other powers expressly granted, and therefore [] implied.”  McGrain v. Daugherty, 273 U.S. 135, 169 (1927); see Anderson v. Dunn, 19 U.S. 204 (1821) (first Supreme Court case recognizing the power of the House to punish contempt).  The House and Senate exercised this power on a regular basis until the early 20th Century, but the House has not used it since 1916 and the Senate has not used it since 1935.

Although inherent contempt may seem archaic, and the idea of Congress putting people in prison may be unsettling, there is no serious question that the power exists and could be lawfully exercised under the proper circumstances.  It is, however, remarkable that this long-dormant power has enjoyed such a resurgent popularity in recent months.  Not only are many bloggers at sites such as TPM Muckraker evidently eager to see this power used to lock up various Bush Administration officials, but even House Judiciary Committee Chairman John Conyers asserted, in a July 19, 2007 letter to WH Counsel Fred Fielding, that inherent contempt might be used against WH Chief of Staff Josh Bolten.  To appreciate how unusual this is, consider that during the Clinton Administration, Republican Committee Chairman (Dan Burton, eg) wrote hundreds of letters complaining about failure to provide information or respond to subpoenas, but to my knowledge not one made reference to the possibility of inherent contempt.  Indeed, inherent contempt has never been used, or even attempted to be used, as a means of resolving an executive-legislative dispute.

The emerging fan base of inherent contempt may wish to consider a few things before they become too enamored of the idea.  Inherent contempt can be used not only against contumacious witnesses, but against anyone who violates the dignity of legislative proceedings (eg, demonstrators who disrupt committee hearings).  Moreover, it can be used not only by Congress, but by state legislatures as well.  While I agree that inherent contempt is a lawful power which can and should be used under appropriate circumstances, it is important to recognize that it is not only cumbersome (as explained below), but is potentially subject to abuse.

For more information on the inherent contempt process, continue below.

INHERENT CONTEMPT POWER

1.Legal Basis. It has long been recognized that the power of each House of Congress to punish contempt, although not explicitly granted by the Constitution, is “essential to the effective exertion of other powers expressly granted, and therefore [] implied.”McGrain v. Daugherty, 273 U.S. 135, 169 (1927); see Anderson v. Dunn, 19 U.S. 204 (1821) (first Supreme Court case recognizing the power of the House to punish contempt).The power derives from the Constitution itself; thus, “Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended.”In re Chapman, 166 U.S. 661, 671-72 (1897).The power extends to punishment of witnesses who refuse to testify on matters pertinent to a valid legislative inquiry because “the power of inquiry– along with process to enforce it– is an essential and appropriate auxiliary to the legislative function.”McGrain, 273 U.S. at 174.More recently, in discussing the power of a state legislature to punish contempt, the Supreme Court noted that “[t]he past decisions of this Court expressly recognizing the power of the Houses of the Congress to punish contemptuous conduct leave little question that the Constitution imposes no general barriers to the legislative exercise of such power.”Groppi v. Leslie, 404 U.S. 496, 499 (1972).

2.Historical Usage.From the late 18th Century to the early 20th Century, both the House and Senate exercised the inherent contempt power on numerous occasions.A November 22, 1977 memorandum of the Congressional Research Service summarizes approximately three dozen cases in which the House or Senate imprisoned contumacious persons.In addition to punishing recalcitrant witnesses, the contempt power was used for punishing such interferences with the legislative processes as assault and bribery.It appears that the last use of the inherent contempt power by the House occurred in 1916, when the House imprisoned a United States Attorney for writing an allegedly defamatory letter about a committee.This use of the contempt power was held to be invalid in Marshall v. Gordon, 243 U.S. 521 (1917), on the ground that it exceeded what was necessary for the preservation of the legislative power.The last use of the inherent contempt power by the Senate occurred in 1935.See Jurney v. McCracken, 294 U.S. 125 (1935).

3.Committee Action.The inherent contempt process typically begins with a committee issuing a report to the House finding that a witness has failed to comply with a subpoena or to answer pertinent questions at a hearing.The report recommends that the House adopt a resolution such as that set forth in paragraph 4 below.

4.House Resolution #1.The House then considers and adopts the resolution recommended by the committee.An example of such as resolution follows:

 

WHEREAS, it appears from the report of the _______ Committee that a witness, ___________, called before the Committee making inquiry as directed by House Res. _ (or by House Rule _), declined to answer certain questions (or failed to comply with a subpoena) relevant and pertinent to the matter then under inquiry:

RESOLVED, That the Speaker issue his warrant directed to the Sergeant at Arms, or his deputy, to take in custody wherever to be found the body of ______ and the same in custody to keep, and that the said _________ be forthwith brought to the bar of the House of Representatives, then and there or elsewhere, as it may direct, to answer questions pertinent to the matter under inquiry or show cause why he should not be punished for contempt, and in the meantime to keep the said _____ in his custody to await the further order of the House; and the Speaker shall designate a room to be used for such purpose;

RESOLVED further, That upon his arrest, _________ be furnished with a copy of this resolution and a copy of the report of the Committee;

RESOLVED further, That when the said _______ shall be brought before the bar of the House to answer the charge of contempt of the House of Representatives, as set forth above, the Speaker shall then cause to be read to said ________ the findings by the Committee; the Speaker shall then inquire of said _________ if he desires to be heard, and to have counsel on the charge of being in contempt of the House of Representatives.If the said ________ desires to avail himself of either of these privileges, the same shall be granted to him.If not, the House shall thereupon proceed to take order in the same manner.

 

5.Arrest.The Speaker then issues the warrant to the Sergeant at Arms, who proceeds to arrest the witness.The arrest may be effected by the Deputy Sergeant at Arms if the resolution so permits.See McGrain, 279 U.S. at 155-56.It is less clear, however, whether the power of arrest could be delegated to the Capitol Police.See, e.g., 40 U.S.C. 212a (defining arrest power of Capitol Police and providing that they shall act under the direction of the Capitol Police Board).The witness is then brought before the bar of the House, and the Sergeant at Arms announces that he has taken the witness into custody in accordance with the resolution.

6.Hearing.The hearing is generally conducted immediately after the arrest of the witness.The hearing is normally conducted before the bar of the House, but on some occasions the House has provided that the hearing be conducted before a committee.The charges are read to the witness, and he is provided an opportunity to be heard.He may have counsel to represent him.

7.Resolution # 2.If the House finds that the witness is in contempt, it adopts a resolution such as the following:

RESOLVED, That _______, having been heard pursuant to the citation heretofore issued directing him to show cause why he should not be punished for contempt for failing to answer the questions of the Committee (or failing to comply with the subpoena issued by the Committee) after subpoena issued, and having failed to show sufficient cause why he should not be punished, ______ is adjudged to be in contempt of the House.

 

8.Resolution # 3.The House issues a resolution imposing imprisonment until such time that the witness purges himself of contempt.At times such imprisonment has been in the Capitol itself; on some occasions the House has ordered that the witness be imprisoned in the District of Columbiajail.An example of the resolution would be:

RESOLVED, That the Sergeant at Arms be directed to hold said ______ in close custody until he shall purge himself of said contempt, or until discharged by order of the House.

9.Duration of Imprisonment.The imprisonment of a contumacious witness may not exceed the termination of the legislative body.See Anderson, 19 U.S. at 231.Arguably, the witness must be released upon adjournment sine die or even a periodic adjournment.

10.Judicial Review.A witness who has been arrested or imprisoned by the House may challenge the House’s action through a petition for habeas corpus or through an action for false imprisonment against the Sergeant at Arms.

Did Senator Craig Breach the Peace?

Some commenters on The Volokh Conspiracy – – have suggested Senator Craig could have asserted a constitutional privilege in connection with his arrest for disorderly conduct charges based on Article I, Section 6  which provides that “Senators and Representatives … shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same ….”  The question arises because the disorderly conduct charge is a misdemeanor, not a felony (and obviously not treason), which arguably did not constitute “breach of the peace” in the sense of involving violence or the threat of violence.  

            The Supreme Court, however, has held that the phrase “treason, felony and breach of the peace” as used in the Arrest Clause was a  common-law term of art that includes all criminal offenses, including misdemeanors that involve no element of force or violence.  WILLIAMSON v. U.S., 207 U.S. 425 (1908)  Although Williamson involved a serious (but arguably non-felonious) crime, subordination of perjury, its broad language has been understood to limit the privilege embodied in the Arrest Clause to arrests in civil cases.  LONG v. ANSELL, 293 US 76 (1934)  Since the practice of arrest in civil cases (eg, arrest of a debtor until a debt is satisfied) is largely if not entirely obsolete, the Court’s rulings have left the Clause with little practical effect.  

            Although there may remain an issue as to whether the Arrest Clause would prohibit arrest of Members of Congress for minor traffic violations for which no penalty other than a fine is authorized, even there the applicability of the Clause would appear dubious.  HOWARD v. WEBB, 570 P2d 42 (Ok 1977)  The offense of disorderly conduct, in any event, is a crime punishable by up to a year in prison under Minnesota law, 609.72, Minnesota Statutes 2006, and clearly falls within the category of criminal offenses as to which the privilege against arrest is inapplicable under Williamson. 

            Indeed, even if the term “breach of the peace” were used in its narrower sense of an offense involving violence or public disturbance (as was argued in Williamson) or an offense “entailing at least a threat of violence” (as the Supreme Court described it in Atwater v. City of Lago Vista, 532 US 318, n.2 (2001)), one may question whether Senator Craig would have much of an argument.  The offense of disorderly conduct as defined in the Minnesota law is aimed specifically at conduct which will tend to “alarm, anger or disturb others or provoke an assault or breach of the peace.”  Certainly it would be reasonable to conclude that Senator Craig’s alleged conduct, soliciting sex in a public restroom, is the type of behavior likely to create public disturbance and provoke violence.