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Foley’s legislative privilege

           Here is an interesting question.  Were Representative Mark Foley’s “naughty emails” to a former House page absolutely privileged under the Speech or Debate Clause of the Constitution?  The question is suggested by articles in the last couple of  days indicating that House lawyers have refused to give Florida law enforcement authorities access to Foley’s computers, contending that because the computers “may contain legislative information that is constitutionally privileged … and because Mr. Foley has not waived that privilege … we cannot simply give you access.”  No graphic photos found in Foley e-mails – Boston.com

            But Foley’s emails to the former page themselves contain “legislative information.”  According to this ABC news story, The Blotter: House Lawyers Refuse to Turn Over Foley’s Computers,: 

Instant messages reviewed by ABC News last October indicated the one-time Florida representative interrupted a House vote to engage in Internet sex with a high school student who had served as a congressional page and had been 18 for just six weeks at the time of the exchange.      

The message, according to its time stamp, was dated April 2003, at approximately 7 p.m. — the same time the House was voting on H.R. 1559, Emergency War Time supplemental appropriations.

Maf54: I miss you
Teen:  ya me too
Maf54: we are still voting
Maf54: you miss me too

Maf54: ok..i better go vote..did you know you would have this effect on me
Teen:  lol I guessed
Teen:  ya go vote…I don’t want to keep you from doing our job

If Foley’s references to voting are enough to bring the emails within the protection of the Speech or Debate Clause (and the House would likely take the position that they were), does this mean that the emails would be privileged from discovery by law enforcement authorities and that the House would refuse to produce these emails if they were requested?  Such would seem to be the implication of the absolute non-disclosure privilege advocated by the House and accepted by the DC Circuit in the Jefferson case.

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The DC Circuit’s Decision in the Jefferson Search Case

In United States v. Rayburn House Office Building, Room 2113 (the Jefferson search case), the DC Circuit held “that a search that allows agents of the Executive to review privileged materials without the Member’s consent violates the [Speech or Debate] Clause.”  On first read, this case has some major implications for public corruption investigations and for relations between the executive and legislative branches.  Here are some preliminary thoughts.

 

Technically the case appears to be a “win” for the Justice Department in the sense that it was not forced to return the non-privileged materials Congressman Jefferson had sought. However, this victory is actually less than Pyrrhic because not only is the Justice Department stuck with a very bad opinion (from its perspective) but it may have no way of seeking further review since it got what it was asking for from the court. Whether most of the opinion should be regarded as dicta (as the concurring opinion of Judge Henderson suggests) will undoubtedly be an issue in future cases.

For the long-term, the most important aspect of the majority opinion is that it establishes a “non-disclosure” Speech or Debate privilege. What this apparently means is that privilege protects the confidentiality of certain types of legislative information (exactly what type is a matter that will need to be explored later on), as opposed to only protecting against the “questioning” of a Member of Congress. This makes the Speech or Debate privilege more like a typical secrecy privilege, such as executive privilege, deliberative process privilege or attorney-client privilege, and less like the Fifth Amendment testimonial privilege. Whether this is a good or bad thing (or some of both) I will discuss at a later time.

In the nearer term, however, there are two possible impacts of significance. First, it is not clear why the logic of the opinion would be limited to searches of congressional offices. 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 same questions could be asked of searches directed at former Members, who may have kept much legislative material from their days in office (documents in a Member’s personal office are treated as his or her personal property and they may take them when they leave office). Similarly, the same issue may arise with regard to searches directed at congressional staffers or former staffers. As the concurrence notes, surveillance of Members (eg, wiretaps) could arguably be prohibited because of the likelihood that communications of a legislative nature would be overheard. (It is less obvious that interviews of congressional staff would be impacted by the decision unless the Speech or Debate Clause is interpreted to prohibit staff from voluntarily disclosing legislative information).

Second, and perhaps just as importantly, the decision does appear to legitimize the search of congressional offices, stating that “[t]he Congressman does not dispute that congressional offices are subject to a search pursuant to a search warrant issued by the federal district court.” This concession may be regretted by Congress because there are reasons, wholly apart from the Speech or Debate Clause, why Congress should object to forced executive intrusion into the Capitol complex. These reasons are explained in my prior post, which was written shortly before the district court decision in this case.

Moreover, although the decision may make it difficult and cumbersome for the FBI to conduct searches in Congress, it also could exacerbate the problem of this executive intrusion. The opinion allows a search warrant to be issued without any notice to Congress, and it does not prohibit federal agents from seizing and sealing the area to be searched prior to consultation with a Member or Congress. One can imagine that the Justice Department, if it wished, could get a search warrant, obtain entry to the office of a Member, and simply refuse access to the office until such time as it was able to reach agreement with the Member on how the actual search was to be conducted. Such a situation would be even more intrusive and disruptive than the Jefferson search itself.

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The Jefferson Search

Set forth below is a short piece I wrote regarding the search of the congressional office of Congressman Jefferson, just before Chief Judge Hogan issued his ruling upholding the search.

In the next few days, Chief Judge Thomas Hogan of the United States District Court for the District of Columbia is expected to rule on the legality of the FBI’s raid on the congressional offices of Congressman William Jefferson.

Attorneys for Congressman Jefferson, backed by lawyers for the U.S. House of Representatives, have argued FBI’s search of Mr. Jefferson’s congressional office violated the Speech or Debate Clause of the Constitution.They assert that during the search the FBI reviewed and/or seized “legislative” documents, i.e., documents which by virtue of dealing with matters within the legislative sphere, such as legislation or congressional hearings, are privileged against compelled production from a member of Congress or a legislative agent.

The Department of Justice, on the other hand, contends that the search of premises belonging to or under the control of a member of Congress does not constitute “questioning” of that member within the meaning of the Speech or Debate Clause.Moreover, DOJ maintains that the search was not seeking legislative documents and that Congressman Jefferson’s Speech or Debate privilege can be adequately protected through a post-search review to screen out any legislative documents that may have been seized incidentally.

These competing arguments present the court with difficult and novel issues of law, but they do not address what is—in my judgment— a more fundamental problem with the FBI’s search of Congressman Jefferson’s office.I maintain that even if the FBI had been able to conduct its search in a manner that avoided all contact with legislative documents, this raid would nonetheless constitute a serious affront to the House of Representatives and a threat to the proper functioning of our system of separated powers.

The forcible intrusion of executive agents into the Capitol Complex raises a concern that is not present when law enforcement searches a member’s home or even a member’s district office.This concern does not relate to a member’s legislative privilege or to any right of individual members.Instead, such an invasion violates the dignity of the House itself, and infringes its right to exercise control within its own walls.

That the House has such a right cannot be doubted.Nearly 200 years ago, in Anderson v. Dunn, the Supreme Court found that “the right of the respective Houses to exclude from their presence, and their absolute control within their own walls, carry with them the right to punish contempts committed in their presence.”The contrary view, namely that the House would have to rely on the other branches for its own protection, would lead:

to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument from which it is derived. That a deliberate assembly, clothed with the majesty of the people, and charged with the care of all that is dear to them; composed of the most distinguished citizens, selected and drawn together from every quarter of a great nation; whose deliberations are required by public opinion to be conducted under the eye of the public, and whose decisions must be clothed with all that sanctity which unlimited confidence in their wisdom and purity can inspire; that such an assembly should not possess the power to suppress rudeness, or repel insult, is a supposition too wild to be suggested.

Although the exercise of the contempt power by each House of Congress is not limited to conduct committed literally “within the walls” of the Capitol, Anderson demonstrates that the most fundamental reason for recognizing the power is that the House and Senate must be able to control their immediate environment, and to prevent affronts to their dignity and disruption of their proceedings by outside forces.Moreover, Anderson and later cases reject the proposition that the Houses of Congress can be required to rely on the other branches for this basic need of self-protection.

Compare this to the principle endorsed by the Justice Department’s search of Representative Jefferson’s office, namely that the executive and judicial branches can authorize the FBI to enter the congressional office buildings (and presumably the Capitol itself) without the permission of—indeed without even providing notice to—the House or its leadership.No consideration seems to have been given to how the specter of uninvited federal agents in the Capitol Complex not only insults the dignity of the House, but threatens its very physical security.If nothing else, the fact that in more than 200 years, despite many criminal investigations, prosecutions and convictions of members of Congress, law enforcement authorities had never conducted a similar search should have been a tip off as to the potential ramifications.

The outrageous nature of the action is aggravated by the fact that there was so little reason for it.I will leave aside the puzzling question of why the Justice Department felt it necessary to take the unprecedented step of obtaining a search warrant when the materials sought were apparently covered by a grand jury subpoena served months before.Assuming there was a true law enforcement need to conduct a search, what harm would have come from notifying the House leadership and requesting its permission?The chances are very good that the requested permission would have been granted or, at the very least, that steps would have been taken to secure the requested materials until any issues could be resolved.If the claim is made that notifying the House leadership would somehow have risked the destruction or disappearance of materials sought by the warrant, that charge is both insulting and frankly preposterous.

Recognizing the House’s right to exercise control within its own walls is not the equivalent of declaring a member of the House to be “above the law.”In the first place, it is not up to Representative Jefferson or any other individual member as to whether the FBI is allowed access to the Capitol Complex.In the second place, as already noted, any assumption that the House or its leadership would use its power to shield a member from criminal investigation is unwarranted, and the mere possibility that such abuse could occur is hardly reason for overturning two hundred years of history and tradition.

By contrast, establishing a precedent that would allow the executive literally to breach the walls of Congress, with or without judicial permission, would be very dangerous.If Chief Judge Hogan’s decision were to ratify this precedent, it would threaten a dramatic change in the relationship between the branches, with potential ramifications that may be only dimly perceived today.

To defuse the interbranch conflict created by this ill-advised search, it may not be necessary for the court to hold that the House or Senate is, under all circumstances, the final authority on execution of search warrants in the Capitol Complex.Rather, the court can follow the example of past cases where, facing other sensitive questions of executive-legislative relationships (such as whether Congress could subpoena sensitive national security information from a telephone company over the objections of the executive), courts have declined to decide the constitutional issue presented and instructed the other branches to attempt to resolve their differences through negotiation.The House, in its papers, has suggested something along those lines.

Hopefully, the outcome of those negotiations will make it unnecessary to revisit this subject for the next two hundred years.

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See You in Court

As discussed it my last post, disputes between the executive and legislative branches over the latter’s demands for information are nothing new.They have in fact occurred continuously throughout our history, beginning with the Washington administration and occurring in virtually every other administration since. Traditionally, however, these disputes have been resolved by political accommodation and compromise, not by litigation.

One might think that this situation puts Congress at a distinct disadvantage, since a failure to reach an accommodation will leave the parties in the situation where they started, ie, the executive has the information and Congress does not.Unless Congress has a means to force the executive to comply with its demands by enlisting the aid of the judicial branch, why would the executive branch have an incentive to compromise?

This question is easily answered with respect to routine congressional requests for information.An executive agency has strong incentives to provide requested information to Congress in order to ensure favorable treatment of its budgetary requests or other legislation of critical importance to it.Whatever reasons an agency might have to withhold information from Congress, these reasons are normally less important than the need to maintain a favorable relationship with the Hill.And if the agency has reasons to withhold the information that are important to it (eg, the information is embarrassing or damaging to the agency leadership), Congress can increase the pressure by raising the public profile of the dispute (by sending letters or holding hearings that get the attention of the media) or by bringing it to the attention of higher levels of the administration.In the vast majority of cases these devices are more than sufficient to get Congress the information it seeks.

This dynamic is illustrated by the dispute over the firing of the U.S. attorneys.Initially, the Justice Department attempted to answer congressional requests for information by providing the oversight committees with closed door briefings in the hope that this would make the issue go away.It quickly became apparent, however, that these briefings merely raised more questions from Congress and the media.As a result, the department was forced to provide Congress with thousands of internal emails and to make a number of Justice Department officials, from the Attorney General on down, available for congressional hearings and interviews regarding the decisionmaking process.While some of this information was embarrassing to the Department, the political pressure to be forthcoming simply overwhelmed any incentive to refuse the congressional requests.

But of course the fact that Congress has tools to force the executive to provide most requested information does not resolve the issue of what happens when the executive decides that, on balance, it would prefer to risk congressional retribution and public criticism than to provide the information requested.This may be because it views the confidentiality of the information as an important principle, because the information in question is just too damaging or sensitive, or simply because the executive believes that a fight with Congress is in its political interest.

This problem is also illustrated by the dispute over the U.S. attorney firings.Once the congressional focus moved from the Justice Department to the White House, the administration took a much harder line and refused to provide information, except under certain conditions and limitations. Specifically, the administration stated that it would provide documents relating to communications between persons in the White House and those outside, but not relating to purely internal communications.It also said that it would make available WH staffers for interviews on the same limited subject matter, but only if the interviews were private, not under oath and not transcribed, and on the condition that the oversight committees waive their right to get any additional information.While some of these conditions seem reasonable (that the testimony be private) and some unreasonable (that the committees waive the right to seek additional information), none were acceptable to Congress.

In this situation, where the branches are truly at an impasse, it might seem that it would be in Congress’s interest to have the option to seek judicial enforcement of its right to information.This, however, is less obvious than it first appears.In the first place, if there were a readily available judicial mechanism for resolving informational disputes between the branches, there would be a natural tendency to channel the more difficult disputes toward this mechanism.This would include the relatively few disputes that ultimately would result in an impasse, but it might also include many disputes that would otherwise be resolved in Congress’s favor.In other words, the net effect of a readily available judicial mechanism might be that Congress would get less information, and/or get information in a less timely fashion than it otherwise would.

Second, submitting congressional demands for information for judicial review would provide the courts the opportunity, and perhaps the necessity, of evaluating the validity and strength of the congressional need for information.As former Senate Legal Counsel Mike Davidson has said: “Members do not want courts to weigh the executive’s claim of privilege against Congress’ claim of need.This would vest enormous powers in the courts to determine and balance Congress’ needs and the executive privilege.Congress needs to determine its need for itself.”(quoted in Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal—Do Nothing, 48 Admin. L. Rev. 109 (1996)).

As Professor Devins explains, these and other factors have resulted in congressional inaction when proposals, such as the Barney Frank legislation mentioned in my last post, have been floated to enable Congress to take its case to court.

Nonetheless, whenever the executive and legislative branches reach an impasse, as in the present situation, Members of Congress begin to sound as if they would desire nothing more than to have the dispute end up in court.For example, in its contempt report on the U.S. attorney matter, the House Judiciary Committee argues that the executive branch should be required to prosecute Josh Bolten, the WH Chief of Staff, and Harriet Miers, the former WH counsel, for refusing to comply with congressional subpoenas on grounds of executive privilege. At page 49, the committee approvingly quotes an expert on executive privilege, Mark Rozell, as characterizing the Bush administration’s refusal to prosecute as “’astonishing’ and ‘almost Nixonian in its scope and breadth’, since it would provide that the executive branch alone would ‘define the scope and limit of its own powers.’”

The logic of this position, of course, is that neither the executive branch nor the legislative branch should be able to “define the scope and limit of its own powers.”Instead, the judicial branch would be asked to mediate the dispute, with uncertain results for both sides.Whether or not Congress really wants this outcome, it is heading in that direction.

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Everything Old is New Again

A press release from Congressman Barney Frank states as follows:

Congressman Barney Frank (D-MA) introduced legislation today that would require the appointment of a special prosecutor each time the House votes an official of the executive branch in contempt of Congress.

“After listening to the testimony of [the Attorney General] before the Judiciary Committee and his refusal to pursue House-passed contempt citation . . ., I believe we need to change the method of dealing with contempt if we are to protect Congress’ right to get information,” Frank said.  “If we make no change in the law, Congress will face future instances in which the Justice Department simply refuses to process contempt citations and we will be left without any recourse for getting documents.”

One might assume that this press release resulted from the recent refusals of White House Chief of Staff Josh Bolten and former White House Counsel Harriett Miers to provide documents and testimony in response to congressional subpoenas regarding the removal and replacement of U.S. Attorneys.  Or perhaps it stemmed from the front page article in the Washington Post on July 20, 2007, which began “Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.”

In fact, however, the Frank press release is dated April 21, 1983, nearly a quarter of a century before the Washington Post’s breathless revelation of this “bold new assertion of executive authority.”  The Bush Administration’s position in this regard may have been bold, but it certainly was not new.  Anyone familiar with the history of congressional-executive could have told the Post that the Justice Department, under this or any other administration, would not prosecute executive branch officials for asserting executive privilege in accordance with the President’s instructions.  One would think that the fact that no executive branch official has ever been prosecuted for contempt of Congress might have been a tipoff in this regard.

The current controversy is merely the latest chapter in a longstanding debate over whether the Congress has, or should have, a legal remedy when the executive branch refuses to produce information demanded by the House or Senate.  Note that this issue is distinct from the question of whether Congress has the right to obtain information from the executive branch.  Since the administration of George Washington, the Congress has asserted, and the executive branch has acknowledged, the right of the legislative branch to call upon the executive branch for information.  In 1792, the House established an investigating committee to inquire into a failed military campaign by General St. Clair against Indian tribes in Ohio.  This committee requested documents from President Washington, who assembled his cabinet to advise him on how to respond.  As reflected by Thomas Jefferson’s notes, the cabinet reached the following conclusions:

First, that the House was an inquest and therefore might institute inquiries.  Second, that they might call for papers generally.  Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would endanger the public.  Fourth, that neither the committee nor the House had a right to call on the Head of a department, who and whose papers were under the President alone, but that the committee should instruct their chairman to move the House to address the President.  

Washington produced all of the papers called for by the House in the St. Clair investigation, but in later years he refused congressional requests for other materials, such as a 1796 request from the House for documents relating to John Jay’s negotiation of a treaty with Great Britain.

Although executive branch refusals to provide information to Congress often led to major battles with Congress, historically these struggles were treated as political, not legal.   The term “political” here should not be taken to mean partisan, unprincipled or insincere, the way the term is often used today.  (Ironically, much of the dispute about the U.S. attorney matter has to do with how the word “political” is used or perceived.)  Instead, the disputes were political because they had to be resolved through political pressure and negotiation, rather than legal compulsion.  If the parties could not reach an acceptable compromise, Congress had no available remedy other than the ultimate political remedy of impeachment (which would be practical, if at all, in only the most extreme circumstances).      

For example, in 1886 during the Grover Cleveland Administration, the Senate made a demand for all papers in the Department of Justice relating to the removal of a U.S. attorney.  When the Attorney General refused this demand, the matter was referred to the Senate Judiciary Committee, which reported that when papers were “unconditionally demanded” of the President or heads of Departments, “they were under a constitutional duty and obligation to furnish to either House the papers called for.”  Further, “the committee believes it to be clear from the very nature of the powers intrusted by the Constitution to the two Houses of Congress it is a necessary incident that either House must have at all times the right to know all that officially exists or takes place in any of the Departments of the Government.”  Although the Senate ultimately adopted a resolution condemning the Attorney General’s refusal to provide the documents as “in violation of his official duty and subversive of the fundamental principles of the Government and of a good administration thereof,” it still did not get the requested documents.

It is only since World War II, and more particularly since Watergate, that Congress began thinking about its informational disputes with the executive branch as legal disputes that could be resolved through a legal remedy.  Apart from criminal prosecution under the contempt of Congress statute, the remedies potentially available to Congress would be so-called “inherent contempt,” in which the House or Senate instructs the Sergeant at Arms to arrest the contumacious witness and then proceeds to conducts its own contempt trial on the floor, or a civil action for injunctive or declaratory relief filed in federal court.  As will be discussed in later posts, each of these options had certain legal and practical drawbacks.  For now suffice to say that Congress has to date never successfully used any of these remedies against the executive branch.

Moreover, it is by no means clear that it would be to the advantage of Congress if informational disputes with the executive were to be resolved through one of these legal mechanisms.  At first blush it may seem that the absence of a remedy works to the advantage of the executive branch, which controls the information that the legislative branch wishes to obtain.  However, as I will discuss in my next post, this is not necessarily the case.