Point of Order

            Judge Bates denies the Justice Department’s request for a stay in the Miers case.   His analysis of the four stay factors largely proceeds along the lines I expected.  While I thought he might give some credit to the Executive’s chances of prevailing on appeal simply based on the novelty of the issues presented, he does not: 

Without any supporting judicial precedent whatsoever—and, indeed, in the face of Supreme Court case law that effectively forecloses the basis for the assertion of absolute immunity here—it is difficult to see how the Executive can demonstrate that it has a substantial likelihood of success on appeal, or even that a serious legal question is presented.  The Executive’s argument boils down to a claim that a stay is appropriate because the underlying issue is important.  But that is beside the point and does not demonstrate a likelihood of success on the merits.  Simply calling an issue important—primarily because it involves the relationship of the political branches—does not transform the Executive’s weak arguments into a likelihood of success or a substantial appellate issue. 

            The court also observes that “[h]ad the litigants indicated that a negotiated solution was foreseeable in the near future, the Court may have stayed its hand in the hope the further intervention in this dispute by the Article III branch would not be necessary.”  Judge Bates points out that his prior order “does not compel Ms. Miers to appear at any particular date,” and urges the parties to reach a negotiated solution rather than continuing to bring disputes to the court. 

            I assume that the Executive will now seek a stay from the D.C. Circuit.  If this effort fails (and the odds are that it will), the Justice Department will have four options: (1) work out a negotiated solution with the Committee; (2) make an offer to the Committee that is sufficiently reasonable that it can return to Judge Bates if the Committee refuses; (3) have Miers appear at a Committee hearing and assert executive privilege on a question-by-question basis; or (4) have Miers continue to refuse to appear, risking the possibility that Judge Bates will hold her in contempt.

            One other motion filed by Senator Stevens should be noted because it refers to what I anticipate will be at the core of his defense.   The issue, explained below, is whether Senate Ethics guidelines clearly require the disclosure of the “things of value” Stevens received. 

            The government charges that Stevens received various things of value over a seven-year period (1999-2006) from VECO and its CEO, Bill Allen, and that Stevens falsified his financial disclosure reports (FDs) for those years by failing to report these things of value as either gifts or liabilities.  In particular, the government alleges that from 2000 to 2006, “STEVENS accepted from ALLEN and VECO more than $250,000 in free labor, materials, and other things of value in connection with the substantial renovation, improvement, repair and maintenance to [Stevens’s personal residence in Girdwood, Alaska].” 

            Significantly, the indictment alleges that these things of value had to be disclosed as either a gift or liability, but does not specify which.  In his motion, Stevens asks: “Was it a gift or liability?  Why did this alleged gift or liability qualify as such under the applicable rules for completing the form in question?  Notably, the monetary disclosure thresholds are vastly different for gifts and liabilities:  during the relevant period a gift had to be disclosed if it exceeded an amount between $260 and $305, while a liability had to be disclosed only if it exceeded $10,000.” 

            In a footnote, Stevens amplifies this point: “Wholly absent from the indictment is any allegation by the government about why the things of value at issue qualified as a ‘gift’ or ‘liability’ as those items are described on the face of the Financial Disclosure Form.  These words, in the context of the completion of the form, are terms of art and cannot be interpreted colloquially or cavalierly.  See Senate Financial Disclosure Report, date 3/08, pp. 14-17, available at http://ethics.senate.gov/downloads/pdffiles/cover1.pdf  (instructions for “Gifts” and “Liabilities” sections) (relevant pages attached as Exh. 1).”  

         Senator Stevens has filed another interesting motion, one that seeks to have his indictment dismissed on separation of powers grounds.  His theory is that the requirement that Senators file financial disclosure statements is one imposed by Senate rule, not by law.  He recognizes, of course, that there is a statute, the Ethics in Government Act, imposing precisely this requirement, but contends that “the Act as applied to a house of Congress must be read as advisory only.”  This is because “Article I, Section 5 specifically reserves to the Senate, not the full Congress, the authority to make rules governing its members, such as the requirement to file a Financial Disclosure Form.”

       The prosecution’s motion in limine in the Stevens case lays out the evidence that it intends to introduce “concerning solicitations made by [VECO] and its executives or non-legislative acts taken by Senator Theodore F. Stevens or his staff in response to VECO’s solicitations.”  The government seeks a ruling in advance of trial that such evidence does not run afoul of the Speech or Debate Clause.  As I will suggest below, a significant amount of this evidence does in fact appear to violate the letter and/or spirit of the Speech or Debate Clause.

          Senator Stevens’s lawyers have filed a blizzard of motions attacking the indictment against him.  One contends that the indictment violates the Speech or Debate Clause of the Constitution.   For the reasons set forth below, it is highly unlikely that Stevens will be successful in having the indictment dismissed on this basis.  Making this argument, however, could be to Stevens’s advantage for two reasons: (1) it focuses the court’s attention on some of the peripheral allegations of the indictment, which could lead to the court limiting the government’s ability to present evidence on these allegations and (2) it creates an opportunity for Stevens to take an immediate appeal, which could result in delaying the trial.

           In his July 31 decision on the congressional subpoenas to Harriet Miers and Josh Bolten, Judge Bates noted “the likelihood of appeal of this decision,” and he observed that “given the significance of the issues involved, a stay pending appeal is at least possible.”  The court will now have to resolve this issue because the Justice Department has filed a notice of appeal and moved for a stay.  

            Notwithstanding the court’s evident willingness to consider a stay, I think the Justice Department has an uphill battle here.  In evaluating a stay, the court is required to weigh four factors: (1) the likelihood that the Executive will prevail on the merits of its appeal; (2) the likelihood that the Executive (or Miers/Bolten) will suffer irreparable harm without a stay; (3) the harm that will be caused to the House or others by granting a stay; and (4) the public interest.

        This post sets forth a little legal background that may be helpful in understanding this week’s indictment of Senator Ted Stevens (R-AK).   

Stevens is charged with failing to disclose, on his annual financial disclosure form (FD), hundreds of thousands of dollars in goods and services he received from a private corporation and its CEO from 1999 to 2007.  Prosecutions of Members of Congress (or, I suspect, anyone else) for failing to make disclosures on their FDs are rare, but not unheard of.  As Dennis Thompson notes in Ethics in Congress, “[l]ike mail fraud and income tax evasion, disclosure offenses are sometimes used to reinforce charges that investigators regard as more serious but for which they have less conclusive evidence.”

The six points laid out by Judge Bates (listed in my last post) should be instructive to both parties as they move forward.  For the executive branch, it should be evident that it made a mistake in refusing to have Miers appear in response to the congressional subpoena.  By doing so, it presented the court with a pure legal issue that could be resolved without getting into the disputed and politically contentious facts regarding the U.S. Attorney firings.  Had Miers appeared and refused to answer particular questions on the grounds of executive privilege (as WH aide Sara Taylor did), it would have been far more difficult for the House to prevail. 

The executive branch attempted to mitigate this weakness in its litigation posture by offering to have Miers appear and answer questions in a private, unsworn and untranscribed interview with the Committee.  However, as Judge Bates states, the executive branch undercut itself by adhering to its original proposal without modification.  Although not stated by the judge, one must assume that he thought that proposal was unreasonable or inadequate in some respect.  It seems to me that the insistence that the Committee give up the right to seek any further information as a condition of obtaining the interview was an obvious non-starter.  Had the executive branch dropped this condition, the case might have come out differently. 

The executive branch will undoubtedly be tempted to appeal this ruling to the D.C. Circuit.  The first problem that it will face is whether this is an appealable order.  Certainly it is not a final order.  Frankly, I don’t know enough about this area to say one way or the other, although I am told that there is a recent D.C. Circuit case (involving subpoenas to Members of Congress) that would suggest this is not appealable.

Assuming that this hurdle can be surmounted, however, is it wise for the executive to appeal?  Appealing the case in the current posture places the executive branch in the same difficulty it was in before the district court.  It will be defending very problematic legal positions on standing and absolute immunity in a complete vacuum.   

Although there is a solid majority of Republican appointees on the D.C. Circuit, there is no guarantee that this will give the executive a more sympathetic audience for its positions.  One of the Republican appointees, Judge Thomas Griffith, previously served as Senate Legal Counsel and has a keen appreciation of the congressional perspective on these issues.  Another, Judge Ginsberg, served on the three-judge district court that upheld congressional standing in the census litigation based in part on the fact that congressional standing to enforce subpoenas was well-established.   And, in general, it is hard to see anything in Judge Bates’s thorough and well-reasoned opinion that would likely lead to a reversal by the appellate court. 

Of course, appealing the decision would take time, and the appeal might not be decided before the Bush Administration’s term expires.  Nonetheless, the Administration has to be concerned about creating yet another judicial precedent that will restrict the authority and autonomy of the executive branch.  And it is not as if appealing the decision makes it likely that these matters will be off the public radar.  The Senate Judiciary Committee has already jumped on Bates’s opinion to renew calls for Karl Rove and Josh Bolten to respond to subpoenas.   

The executive branch would be better advised to offer a private interview with Miers on the condition that any questions she answers would remain subject to a claim of executive privilege.  The Committee would have to agree that following the interview (which would be transcribed) the parties would take any disputed questions and answers back to the court, and that those parts of the interview would remain sealed until there was a final ruling on the privilege issues.  This proposal would seem to satisfy the Committee’s legitimate investigative needs and it would be difficult for the Committee to refuse without losing the high moral ground that allowed Judge Bates to exercise his discretion in its favor. 

Perhaps the most vexing question has to do with how such a proposal would impact the contempt matter involving Karl Rove, who, as Judge Bates noted, was subpoenaed by the Committee to testify about alleged political prosecutions and refused to testify based on absolute immunity.  It would likely be in the executive branch’s interest to make a similar offer for Rove to testify privately and to reserve questions about executive privilege.  On the other hand, the Committee is undoubtedly much more eager to haul Rove into a public hearing than it is Miers.  Moreover, in Rove’s case there is no readily available forum to decide the privilege issues (even if the parties were to agree to submit them to Judge Bates, I doubt he would agree to resolve them).   

Because the Rove matter is not pending before Judge Bates, I doubt that he would look kindly on any attempt by either party to tie it to resolution of the matters that are before him.  Therefore, if the Committee chooses to treat the Rove matter differently from the Miers matter, there is probably nothing that the Administration can do about it.  From a public relations standpoint, though, the Administration would be able to say that it made the same offer with regard to Rove as it did for Miers.

Below are the six reasons given by Judge Bates as to why he would exercise his discretion to issue a ruling in the Miers case.  In my next post I will consider how these points may impact the parties as they go forward. 

(1)  judicial resolution would settle this dispute between the parties as to whether Ms.

Miers is absolutely immune from congressional process and whether Mr. Bolten must respond further. Resolution of the immunity issue will determine the next steps (if any) the parties must take in this matter.  

(2) contrary to the Executive’s suggestion that the Committee did notmake any serious counter-offers, the record reflects that it was the Executive and not the Committee that refused to budge from its initial bargaining position.  Mr.Fielding himself stated that the Committee had written to him “on eight previous occasions, three of which letters contain or incorporate specific proposals involving terms for a possible agreement.” The Executive, by contrast, apparently continued to adhere to its original proposal without modification. Thus, the “equity of the conduct of the declaratory judgment plaintiff” supports the exercise of the Court’s discretion in favor of the Committee. 

(3)  the record is fully developed for purposes of the issues presented by these motions. Significantly, immunity is strictly a legal issue, and it is the judiciary that must “say what the law is” with respect to that matter.  

(4) the parties are most surely sufficiently adverse. 

(5) both sides agree that this case raises issues of enormous “public importance.”  

(6) there is a strong possibility that this sort of dispute could routinely “recur.” Indeed, it already has: on July 10, 2008, former White House advisor Karl Rove asserted absolute immunity in response to a congressional subpoena and on July 30, 2008 the Committee voted to hold him in contempt.

Judge Bates also rejected the argument that he should exercise his equitable discretion to decline to hear the case.  This was a little more of a surprise.  Given the highly political nature of the controversy before him, I thought the court would be tempted to exercise his equitable discretion, at least on a temporary basis while the parties attempted to work out a compromise.  For example, I thought that the court might suggest that the Judiciary Committee could accept the White House’s offer of a private interview and production of some of the documents so long as the White House withdrew the (unreasonable) condition that the Committee agree not to seek any further information.

             The end result, however, is not terribly different from that scenario.  If the executive branch decides not to appeal immediately (a big if), the parties might now agree to a transcribed deposition of Miers.  For those questions for which the White House asserts executive privilege, the parties could return to court and present the disputed questions to Judge Bates for resolution.  Since the White House was apparently willing to let Miers answer at least some of the questions it believes to be protected by privilege, the parties might further agree that the answers to these questions will be kept sealed unless and until the judge rules that the privilege does not apply.

             This is certainly a more civilized way of resolving disputes than locking Miers up in the basement of the Capitol.  Rumors to the contrary notwithstanding, there is no jail there, although I suppose they could chain her to a vending machine.

The court rejected the Justice Department’s threshold arguments on standing and cause of action.  Based on the court’s remarks at the oral argument, this does not come as a surprise.  For reasons that I have discussed before, the court was not impressed with the Justice Department’s attempt to disavow the 1980s OLC memos which clearly stated that civil enforcement, not inherent contempt, was the appropriate and preferred method for enforcing congressional subpoenas against the executive.  

 The court’s opinion has several devastating passages on the illogic of the executive branch’s current position:

I have quickly read Judge Bates’s  93-page opinion in favor of the House of Representatives in the Miers contempt case.  I will post just a few observations today.

               On June 12, 2008, Citizens for Ethics and Responsibility in Washington (CREW), a prominent “watchdog” group, issued a press release stating “in light of a news report detailing favorable loan terms given to current and former public officials by Countrywide Financial, [CREW] has written to both the Senate and House Ethics Committees asking for investigations into members of Congress that may have received loans in violation of existing gift bans.”  Specifically, CREW pointed to media reports that Senators Christopher Dodd (D-CT) and Kent Conrad (D-ND) received preferential treatment under a “V.I.P.” program “that waived points, lender fees and company borrowing rules for prominent people.”  CREW explained that “[a]lthough there is no evidence that either Sen. Dodd or Sen. Conrad were aware they were receiving special treatment from Countrywide, their receipt of the unusually favorable loans creates exactly the sort of appearance of impropriety that the gift rule was designed to address.” 

            A few weeks later, on July 2, the Washington Post reported that Senator Barack Obama (D-Ill.) received a discounted loan from Northern Trust when he purchased his $1.65 million home in Chicago.  Like Senators Dodd and Conrad, Senator Obama paid no origination fees or discount points, yet received a below-market interest rate.  Like Senators Dodd and Conrad, Senator Obama evidently received better treatment from this financial institution than would have been available to a member of the general public. 

            Despite these similarities, CREW did not call for an ethics investigation of Senator Obama’s loan.  This was no mere oversight on CREW’s part.  CREW executive director Melanie Sloan claimed in an interview on CNN that there was a principled distinction between the two situations.  “Both Dodd and Conrad were getting special treatment under a program designed to give them special treatment because they were Senators,” she explained, “Senator Obama just got better treatment because he was a wealthy guy.”

           House Judiciary Committee Chairman John Conyers is threatening Karl Rove with contempt for the latter’s refusal to appear at a congressional hearing in response to a subpoena.   Rove is evidently asserting that, as a former senior adviser to the President, he is absolutely immune from compelled testimony relating to his service in that capacity.  This is the same position that former WH Counsel Harriet Miers is taking in the case pending before Judge Bates. 

            As he did about a year ago with respect to WH Chief of Staff Josh Bolten, Conyers has explicitly invoked the possibility of using inherent contempt to enforce the committee’s subpoenas.  I have previously suggested that even mentioning this possibility was an extraordinary step to take, particularly with regard to an executive branch official.  There are now several factors that could lead to the actual use (or at least attempted use) of the inherent contempt procedure.

I don’t know how Judge Bates will ultimately rule in the House contempt suit against Harriet Miers and Josh Bolten, but, after listening to Monday’s nearly three-hour oral argument in the packed ceremonial courtroom (which felt like an oven after about two hours), I do not think he will dismiss the suit on standing grounds.  This is somewhat surprising because, as I have noted before, Bates’ opinion in Walker v. Cheney suggested that he would be receptive to DOJ’s standing argument.