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.  

Office of Congressional Ethics Should Not Need Subpoena Power

The second criticism of the (nearly) proposed Office of Congressional Ethics is that it will lack the power to subpoena witnesses and documents.  This criticism, it seems to me, is misplaced.  As a practical matter, the OCE should have adequate power to conduct preliminary investigations of ethical violations without compulsory process. 

            Presumably much of the information that OCE will need to review in any preliminary investigation will be in the direct control of the Member of Congress who is suspected of wrongdoing.  OCE should be able to obtain this information, in most cases, simply by request to the Member.  If the Member refuses, OCE could draw negative inferences against the Member and report the refusal to the House Ethics Committee.  This prospect (as well as the potential for adverse publicity if the refusal becomes public) will likely be sufficient to induce most Members to cooperate.

             Another category of information will be in the hands of persons closely associated with the Member, such as former staffers, political allies and contributors, and lobbyists who deal with the Member frequently.  Again, however, the OCE should be able to use its leverage with the Member to obtain the needed information in most cases.   

            Of course, there will be instances in which the OCE will be unable to obtain information because of the absence of subpoena power.  In these situations OCE will have to decide whether the information in question is absolutely critical to its ability to conduct an appropriate preliminary investigation.  If so, OCE will be able to request that the House Ethics Committee use its subpoena power to compel the production of the information in question.  Requiring OCE to take this step should not be overly burdensome.  On the other hand, requiring OCE to justify its requests for compulsory process will substantially reduce the risk of its becoming an out of control “independent counsel” type of entity.   So long as OCE is able to maintain credibility as a serious and impartial ethics watchdog, it should be to get the information it needs without subpoena power.

The Office of Congressional Ethics

Details are emerging regarding the long-awaited proposal of the House Ethics Reform Task Force, which was charged with making recommendations to the House regarding the establishment of an independent ethics office.  The proposal (which evidently has not been approved by the Republican members) will recommend the establishment of an “Office of Congressional Ethics,” which would conduct preliminary reviews of ethical violations and report its findings to the House Ethics Committee.  The proposal is drawing criticism on two grounds: (1) the OCE would not hear complaints from outside groups, but would only self-initiate investigations and (2) the OCE would not have the power to subpoena witnesses or compel the production of documents.   Today I will discuss the first criticism. 

            The reasons for prohibiting the filing of outside complaints are somewhat hard to fathom.  As a practical matter, the OCE will have to get information about potential violations from somewhere, and presumably it will not refuse to consider information brought to its attention by outside parties.  Indeed, Common Cause is supporting the proposal on the theory that it will be able to approach OCE officials informally with complaints.   

            So what is the difference between an informal complaint process and a formal one?  Perhaps there is a feeling that allowing formal complaints would require the OCE to provide some sort of formal response (ie, accept the complaint or dismiss it) and would generate an expectation that OCE would take action on those complaints that were not rejected.  However, the OCE could be permitted to disregard complaints that, on their face, failed to allege a cognizable violation of the rules and/or lacked a substantial evidentiary basis. 

            A formal system, moreover, has some advantages over an informal one.  The complainant can be required to satisfy standards of pleading, such as a requirement that the complaint allege facts sufficient to establish a violation and provide some evidentiary substantiation for those allegations.   A formal complaint would enable the OCE to focus on whether the alleged facts, if proved, would violate an ethical rule and permit it to narrow the issues before commencing a preliminary investigation.   

To further ensure that complaints are reliable, the privilege of filing could be limited to members of an “ethics bar” that OCE would establish.  Complainants and counsel who file unsubstantiated allegations or otherwise fail to meet standards set by OCE could be suspended or disqualified from future filings.   

On the other hand, if the OCE is not permitted to consider outside complaints, it is difficult to see how it can achieve the goal of strengthening public confidence in the ethics process.  Critics will justifiably note that this sends a message will discourage witnesses from coming forward with information that might be damaging to a Member of Congress.  If OCE only hears complaints from other Members of Congress, why should an ordinary witness, whether a congressional staffer, an executive official or a private citizen, feel that he or she will be taken seriously by OCE?  This is the same fundamental problem that has plagued the House Ethics Committee for the past decade, and merely outsourcing the ethics function will not make the problem go away. 

In short, the absence of a procedure for filing outside complaints would be a serious weakness in any proposal to establish an OCE.  Unless OCE can consider such complaints or develop an alternative mechanism for bringing information forward from ordinary witnesses, it may be perceived as little more than a sham for continuing a discredited ethics system.

DOJ Politicization Program

           Today I attended a DC Bar program entitled “Politics Inside the Department of Justice: Did the Bush Administration Cross the Line?”  The panel consisted of Bud Cummins, (former U.S. Attorney for the Eastern District of Arkansas, one of eight US attorneys who were fired), Joseph Rich (formerly of the DOJ Civil Rights Div) and Lee Casey (Baker Hostetler partner who formerly served in the Office of Legal Counsel and Office of Legal Policy in the Reagan Administration).  Charlie Savage, Pulitzer Prize-winning reporter for the Boston Globe and author of the new book “Takeover,” served as moderator. 

            The most interesting insights came from Cummins, who gave a candid and balanced assessment of the US attorney firings.  Cummins said that he does not view the US attorney firings as part of some master plan to politicize the Justice Department (what he described as the “Karl Rove/Dr. Strangelove” theory).  Instead, he believes that the plan was really motivated by the desire of mid-level DOJ officials (like Kyle Sampson) to open up some US Attorney slots that they or their friends could fill.  He is mostly critical of senior DOJ officials for (a) failing to exercise “adult supervision” over their subordinates and (b) for falsely telling Congress that the terminations were based on performance.   

            During the discussion, Savage referred to the May 11, 2006 email sent by Kyle Sampson, telling another DOJ official that “[t]he real problem we have right now with Carol Lam that leads me to conclude that we should have someone ready to be nominated on 11/18, the day her 4-year term expires.”  Although  the email says nothing about what the “real problem” was, Savage argued that the timing suggests that Lam’s firing was related to the search warrant executed on CIA official Dusty Foggo a couple of days later.

             After the panel discussion, I talked with Savage, who seems like a nice young man, and tried to persuade him that this inference is patently ridiculous.  As I explained to him, there is absolutely no evidence that (a) Sampson knew anything about the Foggo search warrant, or (b) anyone at DOJ or the WH cared about, or ever tried to stop, either the Foggo search warrant or the Cunningham investigation more broadly.  Add to this the fact that Lam was on the list of US attorneys to be fired long before there was a Cunningham investigation, and the fact that there are other DOJ emails in the same time frame indicating that the “real problem” with Lam related to her handling of immigration cases and had nothing to do with Cunningham or Foggo.  (I have written a more extensive analysis of this issue, which I will put up on this site once we get the capability).    

             Savage didn’t dispute these facts and said that he wasn’t asserting that Lam had in fact been dismissed for reasons relating to the Foggo/Cunningham investigation, only that there was evidence (“smoke” as he put it) to suggest the possibility.  I suggested that if he really believes this, he should investigate and determine whether there is any substantiation for this theory.  He is an investigative reporter after all.

Mukasey on Contempt

         In his confirmation hearing, Attorney General-designate Michael Mukasey was asked for his views on possible criminal contempt of Congress charges against executive officials such as Harriet Miers and Josh Bolten.  Mukasey told the Senate Judiciary Committee that if an official who had asserted executive privilege was referred for contempt of Congress, he would look at whether the US Attorney could say that it was unreasonable for the official to have relied on “the privilege or the order of the President.”  Mukasey explained that unless the US Attorney could say that the reliance was unreasonable, the person “can’t be found to have had the state of mind necessary to warrant charging her or him with criminal contempt.” 

            At first blush, Mukasey’s position might seem to represent a significant shift from the executive branch position reflected in a 1984 Office of Legal Counsel opinion and followed by Republican and Democratic Administrations since.  The OLC opinion argued that the congressional contempt statute simply does not apply to an executive official who carries out the President’s claim of executive privilege.  It based this conclusion both on the legislative history and historical implementation of the statute, and on the claim that the statute would be unconstitutional were it applied in this context.  The opinion in fact states that “[t]he President, through a United States Attorney  . . . may not . . .  prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege.” 

            Mukasey’s statement, although ambiguous, implies that the congressional contempt statute could be applied in some circumstances to an official who asserted executive privilege on the President’s behalf.  It also suggests that the difficulty in prosecuting such an official would not lie in any special protection for the assertion of executive privilege, but in the need to establish that the official had the mens rea necessary to violate the statute. 

            If this is Mukasey’s view, however, it is inconsistent with the Supreme Court’s holding in Sinclair v. United States, 279 U.S. 263 (1929), where the Court made clear that an honest mistake of law is not a defense to a charge of violating the congressional contempt statute: “There is no merit in appellant’s contention that he is entitled to a new trial because the court excluded evidence that in refusing to answer he acted in good faith on the advice of competent counsel. The gist of the offense is refusal to answer pertinent questions. No moral turpitude is involved. Intentional violation is sufficient to constitute guilt. There was no misapprehension as to what was called for. The refusal to answer was deliberate. The facts sought were pertinent as a matter of law, and section 102 made it appellant’s duty to answer. He was bound rightly to construe the statute. His mistaken view of the law is no defense.” 

            On the other hand, Mukasey’s view may be that executive officials, unlike private citizens, are immune from prosecution for contempt when they have a mistaken, but reasonable, view of the law.  If so, the difference between his position and that of the OLC opinion may be less than appeared at first.   It presumably would be a very rare circumstance where the Justice Department found that an official’s reliance on instructions of the President or on the written advice of the Department itself was unreasonable.   Indeed, it could turn out that Mukasey’s statement was nothing more than a more diplomatic and judicious-sounding phrasing of the executive branch’s longstanding position on congressional contempt referrals.



More on Scaglia

Roll Call’s Paul Singer has another interesting article today on Phil Scaglia, who serves as Representative Cleaver’s chief of staff while operating a lobbying business in his spare time.  The article reveals that Scaglia’s business also received payments from the Cleaver campaign and that one of Scaglia’s private clients both rented office space to the campaign and made an in-kind contribution to the campaign.  More importantly, the article indicates that the “approval” that Scaglia received from the House Ethics Committee for his various activities was only verbal. 

 The fact that Scaglia performed paid campaign work is not, in and of itself, a problem under the ethics rules.  The House Ethics Committee states that “[o]nce House employees have completed their official duties, they are free to engage in campaign activities on their own time, as volunteers or for pay, as long as they do not do so in congressional offices or facilities, or otherwise use official resources.”  Unlike conducting a private lobbying business, working on the campaign of one’s employing Member does not present a conflict of interest. 

However, it is improper for congressional staff to use for campaign purposes time that should be spent on congressional duties.  Thus the House Ethics Committee advises that “[e]mployees who do campaign work while remaining on the House payroll should keep careful records of the time they spend on official activities and, separately, on campaign activities, and demonstrate that campaign work was not done on official time.”  (Whether employees generally follow this admonition, however, is another matter). 

In Scaglia’s case, this would seem to be a particular concern because he is both operating a private business and acting as Cleaver’s campaign manager, in addition to having a full-time congressional job.  The article suggests that Scaglia may have earned more than $100,000 from his campaign work alone last year.  Perhaps he just doesn’t sleep, but there is a reasonable basis to wonder whether the taxpayers are getting short-changed in this arrangement.

With regard to the campaign’s dealings with one of Scaglia’s clients, it is not clear that this raises any concerns beyond those identified in my prior posts on his lobbying business. The fact that Scaglia’s client has a (fairly minor) business relationship with Cleaver’s campaign could pose a conflict of interest with regard to Scaglia’s campaign duties, but doesn’t directly implicate his congressional duties. Nor is the fact that the client contributed to Cleaver’s campaign necessarily a problem. Of course, if the client is lobbying Cleaver on any issue (even if Scaglia is not personally involved), this raises the conflict of interest concerns that I discussed in earlier posts.

Although Cleaver’s spokesman had previously claimed that Scaglia’s business arrangements had been “cleared” by the House Ethics Committee, the latest article notes that there is no written opinion from the committee. That makes the spokesman’s claim virtually meaningless. Although the committee staff can provide informal verbal guidance, only written opinions are actually binding on the committee. In the absence of anything in writing, it is impossible to know what was disclosed to committee staff and therefore what, if anything, the staff “cleared.”

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.