Wednesday, December 4, 2019
The Second Circuit ruled that Deutsche Bank and Capital One have to comply with subpoenas issued by the House Financial Services and Permanent Select Committee on Intelligence for financial records related to President Trump and his businesses. The court denied a preliminary injunction to halt the disclosures. While the ruling is technically preliminary, the court noted that it's effectively a ruling on the merits.
The ruling is yet another blow to President Trump and his continuing quest to keep his financial records secret. (We posted most recently here, on the Supreme Court's stay of a D.C. Circuit mandate to Mazars to release his financial records.) It's also yet another candidate for Supreme Court review.
After the Committees subpoenaed the banks, President Trump, his three oldest children, and some of their organizations sued the banks and the Committees seeking to halt the disclosure. The plaintiffs raised statutory and constitutional claims, although the court noted that President Trump specifically identified himself only as a private citizen.
The court held that the plaintiffs weren't likely to succeed on any of their claims. As to the first statutory claim, the court held that the Right to Financial Privacy Act did not prohibit the disclosures, because the RFPA doesn't apply to Congress. As to the second statutory claim, the court ruled that 26 U.S.C. Sec. 6103 and its several relevant subsections didn't bar the Committees from seeking the records from the banks.
As to the constitutional claim, the court rejected the plaintiffs' contention that the Committees exceeded their power to investigate in issuing the subpoenas. The court noted the breadth of the subpoenas, but nevertheless held that the Committees had a valid legislative purpose (not focusing on possible illegalities committed by the President, but instead "on the existence of such activity in the banking industry, the adequacy of regulation by relevant agencies, and the need for legislation") and that the "public need" to investigate for that purpose "overbalances any private rights affected." On this balancing, the court wrote,
"[T]he weight to be ascribed to" the public need for the investigations the Committees are pursuing is of the highest order. The legislative purposes of the investigations concern national security and the integrity of elections, as detailed above. By contrast, the privacy interests concern private financial documents related to businesses, possibly enhanced by the risk that disclosure might distract the President in the performance of his official duties.
The court went on to hold that the subpoenas were sufficiently tailored to the Committees' legitimate purposes.
The court identified one request, however, that "might reveal sensitive personal details having no relationship to the Committees' legislative purposes," and others "that have such an attenuated relationship to the Committees' legislative purposes that they need not be disclosed." The court remanded to the district court and specified a procedure by which the court could exclude certain "sensitive documents."
As to all other documents not identified for exclusion or possible exclusion, however, the court ordered the banks to "promptly transmit to the Committees in daily batches as they are assembled, beginning seven days from the date of this opinion."
The court rejected the amicus government's separation-of-powers argument, holding that this case isn't about the separation of powers (because it involves a congressional request from a third party for information of the President in his personal capacity).
Judge Livingston dissented. She agreed with the majority that the plaintiffs lacked a likelihood of success on the merits of their statutory claims. But she disagreed about how to treat the constitutional claims. She argued that the case raises serious separation-of-powers concerns, and that the current record simply isn't well enough developed to evaluate those concerns. So she argued for a full remand, "directing the district court promptly to implement a procedure by which the Plaintiffs may lodge their objections to disclosure with regard to specific portions of the assembled material and so that the Committees can clearly articulate, also with regard to specific categories of information, the legislative purpose that supports disclosure and the pertinence of such information to that purpose."
Tuesday, November 26, 2019
The full Supreme Court issued an order yesterday staying the D.C. Circuit's mandate to Mazars to release President Trump's financial records, including tax filings, pending a writ of cert. on or before December 5.
The order extends a previous stay issued by Chief Justice Roberts and prompts President Trump to seek Supreme Court review. But the very brief order itself signals nothing about whether the Court will grant review, or how it will rule if it does. There's no dissenting opinion.
The stay expires on December 5, at noon, if no writ of cert. is filed.
If the Court grants review, we could have a ruling this spring or summer. But we won't get the taxes in the meantime.
Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday that former White House Counsel Don McGahn must comply with a subpoena issued by the House Judiciary Committee and testify before the Committee. The ruling rejects the sweeping claim that high-level presidential advisors enjoy categorical testimonial immunity.
At the same time, the court held that McGahn could assert appropriate privileges (like executive privilege) to specific questions from the Committee.
The ruling deals a sharp blow to the Trump Administration and its attempts to categorically shield certain White House officials from testifying before Congress. It applies directly to McGahn, of course; but the reasoning applies equally, or even with greater force, to House testimony by senior presidential advisors in the impeachment inquiry. (Why "or even with greater force"? Because the House may be on even firmer ground in issuing any subpoenas in the course of an impeachment inquiry.)
The administration will surely appeal. (DOJ is representing McGahn and presented arguments on behalf of the executive branch.) As a result, we're unlikely to see McGahn testify anytime soon. If the parties continue to press the issue, it'll surely go to the Supreme Court. (The 2008 Miers case, which the court said was "on all fours" with this one, didn't go up on appeal, because the parties settled. That could happen here, too.)
The case arose when the Committee sued McGahn to enforce its subpoena against him to testify in its investigation into whether President Trump and his associates engaged in misconduct in the run-up to the 2016 presidential election. DOJ, representing McGahn, argued that McGahn was a high-level presidential advisor who enjoyed absolute testimonial immunity before Congress.
The court ruled that it had jurisdiction over the case and then rejected DOJ's sweeping claim of immunity. In short, the court held that the issue was already decided by Judge Bates in 2008, in Committee on Judiciary v. Miers. Here's a nice summary (pp. 41-42 of the opinion):
Unfortunately for DOJ, and as explained fully below, these contentions about the relative power of the federal courts [as to lack of jurisdiction], congressional committee, and the President distort established separation-of-powers principles beyond all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial immunity for senior-level presidential aides transgress core constitutional truths (notwithstanding OLC's persistent heralding of these and similar propositions). By contrast, textbook constitutional law readily reveals that, precisely because the Constitution bestows upon the Judiciary the power to demarcate the boundaries of lawful conduct by government officials, the federal courts have subject-matter jurisdiction to entertain subpoena-enforcement disputes concerning legislative subpoenas that have been issued to Executive branch officials. It is similarly well established that, because the Constitution vests the Legislature with the power to investigate potential abuses of official authority--when necessary to hold government officials (up to, and including, the President) accountable, as representatives of the People of the United States--then House committees have both Article III standing and a cause of action to pursue judicial enforcement of their duly authorized and legally enforceable requests for information. What is missing from the Constitution's framework as the Framers envisioned it is the President's purported power to kneecap House investigations that Executive branch operations by demanding that his senior-level aides breach their legal duty to respond to compelled congressional process.
Luckily for this Court, an existing precedent that is on all fours with the instant matter (Miers) already systematically dismantles the edifice that DOJ appears to have erected over the years to enshrine the proposition that a President's senior-level aides have absolute immunity with respect to legislative subpoenas that Congress issues in the course of its investigations . . . .
November 26, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Sunday, November 24, 2019
Judge Carl J. Nichols (D.D.C.) earlier this week ordered House Ways and Means Chair Richard Neal to provide President Trump and the court contemporaneous notice if he seeks President Trump's tax returns under New York's TRUST Act. Judge Nichols further ordered Chair Neal not to receive the tax returns for 14 days after any request.
The order is designed to allow the court to determine whether a request is valid. Without the notice and delay requirements, Chair Neal could request, and receive, the records without President Trump's knowledge, let alone his challenge, then immediately mooting his claim.
New York's TRUST Act authorizes certain congressional leaders to request and receive certain public officials' state tax returns, including the tax returns of the president, without providing prior notice to the officials. After enactment, President Trump sued, arguing that the TRUST Act violated Article I, because such a request would lack a legitimate legislative purpose, and the First Amendment. He also sought emergency relief under the All Writs Act, asking the court for an order that would allow the parties to litigate the legality of any request for his state returns before New York authorities would release them (and thus render any challenge moot).
Congressional Democrats moved to dismiss, arguing that they were immune from suit under the Speech and Debate Clause, and that President Trump lacked standing.
The court ruled that it couldn't yet determine whether Chair Neal would be immune from suit under the Speech and Debate Clause, because he hasn't yet requested the records. The court said that Speech & Debate immunity turns on whether any request would concern matters "on which legislative could be had," and thus turns on legislative purpose. But because nobody has made a request, the court can't determine the purpose of any request.
As to standing, the court ruled that President Trump has standing: because "[t]he risk of future harm to Mr. Trump thus requires just a single step by a single actor, Chairman Neal, who is a party to this litigation," "there is sufficiently substantial risk that future harm could occur to warrant limited relief under the All Writs Act."
The court then ordered that Chair Neal inform President Trump and the court at the same time when he makes any request, and not to receive the tax returns for 14 days after. According to the court, this "will prevent Mr. Trump's claims from becoming ripe and then moot almost simultaneously without notice to him or the Court."
November 24, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, First Amendment, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Wednesday, November 20, 2019
Judge William Alsup (N.D. Cal.) yesterday vacated the Trump Administrations "conscience rule" designed to allow healthcare workers to decline services if they have a religious objection to a procedure.
We posted recently on a similar ruling out of the Southern District of New York. Judge Alsup's ruling is narrower than the New York ruling, however, and says only that the rule goes well beyond statutory authorization. Both courts vacated the rule in its entirety.
Judge Alsup focused on how the rule's definitions expand conscience protections well beyond the statutory protections. As the court wrote, "[t]hese definitions . . . make the mischief . . . [and are] the heart of the problem."
In particular, the court held that the definitions of "assist in the performance of," "health care entity," "entity," "discriminate," and "referral" expand conscience protections far beyond what the relevant statutes authorize. The court ruled that the conscience rule was therefore contrary to law, and violated the Administrative Procedure Act.
The court described the conscience rule's effect this way: "Under the new rule, to preview just one example, an ambulance driver would be free, on religious or moral grounds, to eject a patient en route to a hospital upon learning that the patient needed an emergency abortion. Such harsh treatment would be blessed by the new rule."
Like the New York court, the California court held that the problems with the rule were so pervasive that it had no choice but to vacate the rule in its entirety.
The ruling means that the administration can appeal, or go back to the drawing board and re-write a conscience rule that comports with the law. But the administration can't enforce this rule.
Monday, November 18, 2019
Chief Justice John G. Roberts, Jr., issued an order today staying the mandate of the D.C. Circuit to Mazars to release President Trump's tax records.
Recall that the D.C. Circuit last week denied en banc review of a three-judge panel ruling that the House Committee on Oversight and Reform had authority to issue its subpoena for President Trump's financial records to his accounting firm, Mazars.
Chief Justice Roberts's brief order simply stayed the D.C. Circuit ruling "pending receipt of a response, due on or before Thursday, November 21, 2019, by 3 p.m. ET, and further order of the undersigned or of the Court." (The order is not a ruling on the merits, and does not foretell what the Court might do.) So we'll get more information on Thursday . . . .
November 18, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Friday, November 15, 2019
In a speech at the Federalist Society's 2019 National Lawyers Convention, Attorney General William Barr expounded on separation of powers, arguing that Trump has been treated uniquely:
"It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. No other President has been subjected to such sustained efforts to debilitate his policy agenda."
Further Barr argued that
Indeed, measures undertaken by this Administration seem a bit tame when compared to some of the unprecedented steps taken by the Obama Administration’s aggressive exercises of Executive power – such as, under its DACA program, refusing to enforce broad swathes of immigration law.
The fact of the matter is that, in waging a scorched earth, no-holds-barred war of “Resistance” against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law. This highlights a basic disadvantage that conservatives have always had in contesting the political issues of the day. It was adverted to by the old, curmudgeonly Federalist, Fisher Ames, in an essay during the early years of the Republic.
In any age, the so-called progressives treat politics as their religion. Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection. Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications. They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides.
Conservatives, on the other hand, do not seek an earthly paradise. We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing. This means that we naturally test the propriety and wisdom of action under a “rule of law” standard. The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances?
For these reasons, conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means. And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy far, especially when doing so under the weight of a hyper-partisan media.
An interesting read in light of other events.
The video is available on YouTube here.
Thursday, November 14, 2019
The D.C. Circuit yesterday denied en banc review of last month's panel ruling that the House Committee on Oversight and Reform had authority to issue its subpoena for President Trump's financial records to his accounting firm, Mazars.
The ruling is yet another blow to President Trump and his attempts to protect his taxes. But it also paves the way for Supreme Court review.
We posted on the panel ruling here. The panel held that the Committee acted within its powers, and not in violation of the Constitution, in issuing the subpoena.
Judges Katsas and Rao, both joined by Judge Henderson, separately dissented. Judge Katsas argued that the subpoena posed a "threat to presidential autonomy and independence . . . far greater than that presented by compulsory process issued by prosecutors" in United States v. Nixon "or even by private plaintiffs" in Clinton v. Jones. Judge Rao argued that "the Committee exceeded its constitutional authority when it issued a legislative subpoena investigating whether the President broke the law. Investigations of impeachable offenses simply are not, and never have been, within the legislative power because impeachment is a separate judicial power vested in Congress."
Wednesday, November 6, 2019
Judge Paul A. Engelmayer (S.D.N.Y.) struck the Trump Administration rule designed to allow healthcare workers to decline services if they have a religious objection to a procedure.
The ruling deals a significant blow to the Administration's efforts to expand "conscience protections" for healthcare workers beyond what federal statutes currently provide.
The court held that the Health and Human Services rule exceed statutory authority, violate the law, and violated the separation of powers and the Spending Clause. The court held that it did not violate the Establishment Clause.
The rule provides, among other things, that a healthcare worker can decline to participate in a procedure when the worker has a religious or moral objection, that the worker's employer can't discriminate against the worker based on the worker's beliefs, and that HHS can revoke all HHS funding to any employer who violates these provisions. HHS purportedly adopted the rule under authority of 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures.
The court ruled that the sweeping rule went well beyond HHS's statutory authority, and that the agency therefore exceeded its statutory authority in enacting the rule. It also held that the rule violates Title VII and the Emergency Medical Treatment and Labor Act. And it held that HHS's reasons for enacting the rule were not sufficient (among other things, "HHS's central factual claim of a 'significant increase' of complaints of Conscience Provision violations is flatly untrue."); that HHS's explanation for changing course was insufficient; and that HHS failed to consider the rule's application to medical emergencies and its interplay (and conflict with) Title VII. Finally, the court held that the rule's sweeping definition of "discrimination" "was not a logical outgrowth of the Rule as proposed."
The court also ruled that HHS violated the separation of powers by adopting a rule that allowed the agency to withhold all federal funding, exceeding the agency's authority under federal law. It held that the rule violated the Spending Clause as against state plaintiffs, because the conditions on receipt of federal funds are ambiguous and impermissibly coercive.
However, the court rejected the plaintiffs' argument that the rule violated the Establishment Clause, "because the Rule, on its face, equally recognizes secular ("moral") and religious objections to the covered medical procedures."
The court vacated the entire rule (and declined to sever offending portions, given that the APA violates "are numerous, fundamental, and far-reaching") and held it invalid as to any plaintiff.
November 6, 2019 in Cases and Case Materials, Congressional Authority, Establishment Clause, Executive Authority, News, Opinion Analysis, Separation of Powers, Spending Clause | Permalink | Comments (0)
Monday, November 4, 2019
In a 28 page complaint filed in New York state courts opening the case Carroll v. Trump, E. Jean Carroll has sued the president for one count of defamation.
The argument is that the president is "sued here only in his personal capacity" and implicitly that there is no presidential immunity, noting cases in which President Trump has been a plaintiff in his personal capacity, and further citing "a related case" of Zervos v. Trump in which Trump is a defendant. Recall that a New York appellate court considering Zervos earlier this year held that Trump was not immunized from defending a lawsuit in state court.
Interestingly, this paragraph avers that Trump is a "resident" of New York; Trump announced a few days ago that he had filed a "declaration of domicile" in Florida. There are other aspects of personal jurisdiction and there is no amount in the complaint that might satisfy the threshold for removal to federal court for diversity purposes.
The complaint provides a compelling explanation of E. Jean Carroll's silence about the 1995 or 1996 event in which she alleges Trump raped her in a department store dressing room as well as the rationales for changing her mind, including the death of her mother and the burgeoning #MeToo movement response to Harvey Weinstein.
As to the substantive allegations, Carroll highlights three statements — made on June 21, 22, and 24 — that were widely disseminated and accused Carroll of lying about the incident, of inventing the incident for book sales, of inventing the incident for a "political agenda," of lying about incidents with other men, and stating that Trump did not know her, had never met her, and that she was "not his type." On reputational damages, the complaint avers that since the defamation she lost the "support and goodwill" of many of the readers of her advice column, resulting in "roughly 50% fewer letters" to which she could respond, noting that as an advice columnist she requires a "steady flood of compelling letters" seeking her advice.
Expect Trump's answer — or more probably motion to dismiss — to raise the same immunity defense as in Zervos despite the appellate court decision and perhaps a jurisdictional argument.
Second Circuit Rejects President Trump's Effort to Protect Taxes, Establish Categorical Immunity from Criminal Investigation
The Second Circuit today flatly rejected President Trump's attempt to halt a grand jury subpoena for the President's financial records directed at his accounting firm, Mazars, based on a claim of absolute presidential immunity from all criminal processes (including investigations).
The ruling deals a sharp blow to the President and his extraordinary efforts to conceal his taxes. Still, the President is sure to appeal. (Just last month, the President lost in the D.C. Circuit on a similar case, dealing with a House subpoena directed at Mazars.)
Recall that the President filed this federal case to stop a state criminal process, in particular, a state grand jury's subpoena to Mazars for the President's financial records, including his taxes. The district court ruled that the President's suit was barred by Younger abstention and, in the alternative, that the President was not likely to succeed on the merits of his immunity claim.
The Second Circuit reversed on the abstention question, but affirmed on the immunity question. The court noted that the subpoena was directed at Mazars, not President Trump, and therefore did not require the President to do anything that might interfere with his ability to faithfully execute the law. It noted moreover that the subpoena seeks information that has nothing to do with the President's official responsibilities, and is therefore not subject to any claim of executive privilege.
As to the President's claim of absolute privilege against any criminal process (including even an investigation), the court wrote that the scant authority on this question goes only against the President. In particular, it noted that the Court in United States v. Nixon held that executive privilege and separation-of-powers concerns did not preclude the enforcement of a subpoena for presidential records. (As to the separation of powers, the court noted, "That the Court [in Nixon] felt it unnecessary to devote extended discussion to the latter argument strongly suggests that the President may not resist compliance with an otherwise valid subpoena for private and non-privileged materials simply because he is the President.") Moreover, the court noted that even the two OLC memos that the President cited--the 1973 Dixon memo, and the 2000 Moss memo, only go so far as immunity from indictment, not mere investigation.
Although the ruling doesn't mean that we'll see the President's taxes soon--again, the President is sure to appeal, and that'll take some time--it is a sharp blow against his claim of absolute privilege from all criminal process.
Friday, November 1, 2019
The Ninth Circuit affirmed a preliminary injunction against the Department of Justice's effort to clamp down on sanctuary cities by imposing two conditions on recipients of the DOJ-administered Byrne JAG grant program. The ruling keeps in place the injunction against DOJ's "notice" and "access" conditions that are designed to encourage local governments to cooperate with federal immigration authorities to identify unauthorized aliens.
The Ninth Circuit ruling is just the latest in a line halting the implementation of these conditions. We posted most recently on sanctuary litigation here.
The case, City of Los Angeles v. Barr, tests the two conditions that DOJ put on Byrne-JAG grant recipients without specific congressional authorization. The first condition, the "notice" condition, requires a recipient to honor DHS's requests for advance notice of the scheduled release date and time of any detained alien held in a grant recipient's correctional facilities. The second condition, the "access" condition, requires a grant recipient to give federal agents access to correctional facilities to meet with detained aliens.
The court rejected DOJ's arguments that two statutory provisions authorized it to impose the conditions. The first, a provision in the Violence Against Women Act, says that the Assistant AG shall "exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this title or by delegation of the Attorney General, including placing such special conditions on all grants, and determining priority purposes for formula grants." The court held that the notice and access conditions were not "special conditions" under the provision, "because they are not conditions triggered by specific characteristics not addressed by established conditions, as was the case for high-risk grantees under [Department regulations]." It held that they weren't "priority purposes," because "[t]he notice and access conditions are not included as purposes of the Byrne JAG award, nor are they purposes of either of its predecessor grant statutes." The court said that the first provision therefore didn't authorize the conditions.
The second provision, a section of the Byrne-JAG statute itself, authorizes the AG to obtain certain information and to require coordination with agencies. The court held that maintenance and reporting requirements applied to programs under the statute, and not to notice of a detained alien. And it held that the coordination requirement applied to "agencies affected by the program to be funded by the Byrne JAG award," not "DHS agents who are not part of a funded program." The court said that the second provision therefore didn't authorize the conditions, either.
Because no statute authorized DOJ to impose the conditions, DOJ lacked authority to impose them, and the court upheld a preliminary injunction halting them.
Tuesday, October 29, 2019
That's the question raised in a lawsuit filed by the United States last week in the Eastern District of California. The U.S. seeks a declaration that the agreement is unconstitutional and a permanent injunction to halt its operation.
The case, U.S. v. California, tests California's cap-and-trade agreement with the provincial government of Quebec, Canada. The federal government argues that the agreement violates the Treaty Clause (prohibiting states from "enter[ing] into any Treaty, Alliance, or Confederation"), the Compact Clause (prohibiting states, without congressional consent, from "enter[ing] into any Agreement or Compact . . . with a foreign Power"), and the Foreign Commerce Clause. It also contends that the agreement impermissibly interferes with the federal government's powers over foreign affairs.
This intrusion complexifies and burdens the United States' task, as a collective of the states and territories, of negotiating competitive international agreements. Moreover, California's actions, as well as the actions of those acting in concert with it, have had the effect of enhancing the political power of that state vis-a-vis the United States. This is due not only to the effect of the Agreement itself but also stems from the fact that the Agreement could encourage other states to enter into similarly illegal arrangements.
The design of the Constitution requires that the federal government be able to speak with one voice on behalf of the United States in matters of foreign affairs. Allowing individual states in the Union to conduct their own foreign policy to advance their own narrow interests is thus anathema to our system of government and, if tolerated, would unlawfully enhance state power at the expense of the United States and undermine the United States' ability to negotiate competitive international agreements.
The D.C. Circuit today stayed last week's district court order that the Justice Department release material from the Mueller Report that was redacted because it was part of the grand jury proceeding. We posted on the district court order here.
This means that DOJ won't release the material to the Committee--at least not until the appeals court says so.
The ruling is not a surprise--it simply maintains the status quo--and says nothing about the merits. The court ordered the Committee to file a response to DOJ's emergency motion by Friday, and DOJ to file any reply by next Tuesday.
Saturday, October 26, 2019
Former National Security Official Sues for Declaration on Congressional Subpoena, Absolute Privilege
Former Deputy National Security Advisor and Acting National Security Advisor Charles Kupperman sued late Friday for a ruling on how he should navigate between a House committee subpoena to testify in the impeachment inquiry and White House instructions not to.
The case is unusual, in that the subject of a subpoena seeks a ruling before making a decision to testify. More commonly, a rebuffed House committee has filed suit to enforce its subpoena.
Kupperman's complaint sets out two questions for the court. First, the complaint asks whether the White House is right in flatly instructing him not to testify based on its now-familiar categorical assertion of absolute executive privilege. On the one hand, he says that the Office of Legal Counsel "has consistently opined that 'the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee' on matters related to their official duties," and that "[t]he Executive Branch has, with few exceptions, refused to permit close White House advisors to the President to testify before Congress since the 1940s when the Executive Office of the President was created." On the other, he points out that the D.C. District rejected just such an absolute, categorical claim of executive privilege in Committee on the Judiciary v. Miers. But he notes that the court "further concluded that the Counsel to the President was not entitled to absolute or qualified immunity because the inquiry did not 'involve the sensitive topics of national security or foreign affairs.'" He also notes that the ruling was stayed pending appeal, and that it settled before the D.C. Circuit had a chance to rule.
Next, the complaint asks whether the committee had authority under House rules to issue the subpoena. He cites Rule XI, clause 2(m), which grants committees subpoena power "[f]or the purpose of carrying out any of its functions and duties under this rule and rule X . . . ." He notes that the rule doesn't specifically include impeachment as one of the "functions and duties," and that Rule X speaks in terms of legislative functions, not impeachment. But he also points out that the D.C. Circuit recently held in Mazars "that Rule XI, clause 2(m) authorized the House Oversight Committee to issue a subpoena in furtherance of an investigation into alleged misconduct by the President," but that Judge Rao dissented on this point.
Kupperman asked the court for a declaration on how to reconcile the competing demands and for expedited review.
Friday, October 25, 2019
Court Orders DOJ to Release Grand Jury Material from Mueller Report to House,Validates House Impeachment Inquiry
Judge Beryl A. Howell (D.D.C.) today granted the House Judiciary Committee's application for portions of the Mueller Report that were redacted because they were part of a grand jury proceeding. "Consequently, DOJ is ordered to provide promptly, by October 30, 2019, to HJC all portions of the Mueller Report that were redacted pursuant to Rule 6(e) and any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6(e). HJC is permitted to file further requests articulating its particularized need for additional grand jury information requested in the initial application."
The ruling deals a sharp blow to the Trump Administration and its attempts to protect grand jury material from the Mueller Report from Congress. It's also a clear validation of the legitimacy of the House's impeachment process. It doesn't plow any new legal ground, however. Indeed, the case is only notable because it rebuffs the administration's extraordinary claims.
Still, there's sure to be an appeal.
The case, In re Application of the Committee on the Judiciary, arose when DOJ refused the House Judiciary Committee's request for grand jury material from the Mueller Report. DOJ cited Federal Rule of Criminal Procedure 6(e). That rule generally prohibits disclosure of "a matter occurring before the grand jury." But it has an exception for disclosure "preliminary to or in connection with a judiciary proceeding." The Committee filed its application with the district court under this exception and requested "the grand jury information referenced in or underlying the Mueller Report as well as grand jury information collected by the Special Counsel relating to four categories of information pursuant to Rule 6(e)'s exception . . . ."
The court ruled for the Committee. The court first concluded that a Senate impeachment trial is "a judicial proceeding." The court said that the phrase "judicial proceeding" has a broad meaning; that an impeachment trial is inherently judicial in nature; that historical practice supports this reading; and that D.C. Circuit law "forecloses any conclusion other than that an impeachment trial is a 'judicial proceeding.'"
The court next concluded that the Committee's investigation is "preliminary to" that judicial proceeding. It held that the Committee's "primary purpose is to determine whether to recommend articles of impeachment," and that requiring anything more would result in the court impermissibly intruding on Congress's Article I powers.
Notably, the court emphasized that the Committee's work investigating impeachment is legitimate and constitutionally permissible, and that nothing requires the House to adopt an "impeachment inquiry resolution" to legitimate its work.
Finally, the court surveyed the several reasons why the Committee "has a 'particularized need' for the requested materials,'" including why and how this material may relate to the Ukraine investigation and to any other possible grounds for impeachment.
Thursday, October 24, 2019
The Ninth Circuit this week affirmed a district court's preliminary injunction against agency rules that categorically exempt certain organizations from the Affordable Care Act's contraception requirement.
The ruling is a blow to the administration's efforts to side-step the ACA's contraception requirements for religious groups. We previously posted on the case here.
The case, California v. U.S. Dep't of Health & Human Services, tests HHS's final rules that exempt certain entities from the ACA's contraception-coverage requirement. The court upheld a district court ruling that the final rules likely violated the Administrative Procedure Act.
The ACA provides that group health plans and insurance issuers "shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in the comprehensive guidelines supported by the Health Resources and Services Administration . . . ." HHS previously exempted group health plans of certain religious employers, like churches. It also had previously provided for an accommodation for certain nonprofits that had a religious objection: those groups merely had to tell HHS that they objected (then HHS would inform the organization's insurer that it had to provide contraceptive care for the organization's employees without any further involvement of the organization). HHS later also exempted certainly closely-held for-profit corporations (after Hobby Lobby) and modified the exemption-trigger to require objecting organizations merely to notify HHS in writing of its objections (after Wheaton College).
But the Trump Administration went a step farther. It issued rules that categorically exempt entities "with sincerely held religious beliefs objecting to contraception or sterilization coverage" and "organizations with sincerely held moral convictions concerning contraceptive coverage." The rules meant that organizations that might previously have sought and received a waiver would be categorically exempt on their own say-so.
The Ninth Circuit ruled that these rules likely violated the APA. In short, the court said that HHS didn't have authority under the ACA to create categorical exemptions:
The statute grants HRSA the limited authority to determine which, among the different types of preventative care, are to be covered. But nothing in the statute permits the agencies to determine exemptions from the requirement. In other words, the statute delegates to HRSA the discretion to determine which types of preventative care are covered, but the statute does not delegate to HRSA or any other agency the discretion to exempt who must meet the obligation.
The court rejected the government's claim that it issued the rules to harmonize the ACA with the Religious Freedom Restoration Act. The court questioned whether the RFRA even gave the government the authority to determine a violation and then act against federal law to effect it. And it went on to say that the accommodation didn't violate the RFRA, anyway. (Recall that the Court dodged this issue in Zubick.)
The dissent argued that the court lacked jurisdiction in light of a nationwide injunction issued by the Eastern District of Pennsylvania. The court responded at length, but acknowledged that it's an open question whether a federal court's nationwide injunction strips other federal courts of jurisdiction in a more limited case.
Tuesday, October 22, 2019
The Supreme Court on Friday agreed to hear a separation-of-powers challenge to the structure of the Consumer Financial Protection Bureau. The Court granted cert. to determine whether the for-cause removal provision for the head of the CFPB violates the separation of powers. It then ordered the parties to brief whether the for-cause removal provision was severable from the Dodd-Frank Act.
We previously posted on the case, Seila Law LLC v. CFPB, here. Notably, the CFPB itself now joins Seila Law in arguing that the structure is unconstitutional.
The case tests the for-cause removal provision for the head of the CFPB--long a target of opponents of independent agencies within the executive branch. Opponents argue that the for-cause removal provision impermissibly encroaches on the President's authority to execute the law, because it prohibits the President from firing the head of the agency at will.
The Court has long upheld similar protections that create agency independence. But the government argues that those rulings involved multi-member bodies (as in Humphrey's Executor v. U.S.) or "inferior offices" that lack the independent power of the CFPB (as in Morrison v. Olson), so that they don't unduly encroach on the President's authority.
The attack on the structure of the CFPB is just the latest in a long line of challenges that draw on a strong version of the "unitary executive theory," set out most prominently in Justice Scalia's lone dissent in Morrison v. Olson. Justice Scalia's position has gained traction since Morrison, and this case may now make it law.
In a different case dealing with the same question, then-Judge Kavanaugh wrote for a panel of the D.C. Circuit that the CFPB's structure violated the separation of powers. The ruling is a robust endorsement of the unitary executive theory and a roadmap for opponents of the agency's independence.
The severability question means that if the Court strikes the director's for-cause removal provision, it could also overturn the provisions in Dodd-Frank that created the agency in the first place. That could have sweeping effects, even potentially nullifying the agency's prior actions.
The Court hasn't yet scheduled the case for argument.
Saturday, October 12, 2019
Judge David Briones (W.D. Texas) ruled on Friday that President Trump's effort to reprogram federal funds in the name of a "national emergency" to build a border wall exceeded his authority under the Consolidated Appropriations Act of 2019. The ruling further invites the plaintiffs to file for a preliminary injunction to halt the reprogramming.
The ruling deals a substantial blow to President Trump in his effort to shift around money to pay for his border wall. Still, this isn't the end of this case: it'll surely be appealed.
The case arose when El Paso County and Border Network for Human Rights sued President Trump to halt reprogramming under his national emergency declaration. Upon declaring the emergency, President Trump ordered the relevant secretaries to reprogram $2.5 billion of Defense Department funds appropriated for Support for Counterdrug Activities under 10 U.S.C. Sec. 284, and $3.6 billion of DOD funds appropriated for "military construction projects" under 10 U.S.C. Sec. 2808. The plaintiffs argued, among other things, that the order violated the 2019 CAA. The court agreed.
The court first ruled that the plaintiffs had standing. It wrote that El Paso was the target location for the new wall, that it suffered a reputational injury (in President Trump's statements about how dangerous it is), and that it suffered economic harm--all because of President Trump's order, and which would be redressed by a favorable ruling. It held that BNHR had standing, too, because it spent significant resources to respond to President Trump's actions that would have gone to support its regular activities. The court ruled that the plaintiffs had standing to sue under Section 2808, because the government took steps to fund the construction of a wall.
As to the CAA, the court held that the reprogramming violates the plain terms of the CAA:
the CAA specifically appropriates $1.375 billion for border-wall expenditures and requires those expenditures to be made on "construction . . . in the Rio Grande Valley Sector" alone. Defendants' funding plan, by contrast, will transfer $6.1 billion of funds appropriated for other more general purposes--military construction, under Section 2808, and counterdrug activities, under Section 284. Their plan therefore flouts the cardinal principle that a specific statute controls a general one and violates the CAA.
In addition, the court said that the proclamation violates Section 739 of the CAA, which provides
None of the funds made available in this or any other appropriations Act may be used to increase . . . funding for a program, project, or activity as proposed in the President's budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.
The court explained: "Section 739 prohibits Defendants' plan to fund the border wall because the plan is barred by that provision's general rule and the plan does not fall within its exception," because neither Section 2808 nor Section 284 is an appropriations act.
Although the ruling grants summary judgment to the plaintiffs on these issues, it does not grant a preliminary injunction. "Defendants have countered that Plaintiffs cannot obtain equitable relief against the President. The Court has requested additional briefing on this issue and will reserve judgment in this regard for a later date."
In light of the Supreme Court's ruling this summer staying a permanent injunction because the government showed that the plaintiffs had no cause of action to challenge a Section 8005 transfer, the ruling says nothing about the government's Section 8005 authority to reprogram funds for Section 284 counterdrug activities. It also says nothing about reprogramming Treasury Forfeiture Funds.
Friday, October 11, 2019
The D.C. Circuit ruled today that the House Committee on Oversight and Reform acted within its powers, and not in violation of the Constitution, when it issued a subpoena to Mazars USA, LLP, for records related to work performed by President Trump and his business entities both before and after he took office.
The ruling deals a sharp blow to President Trump and his efforts to shield his financial records. But the D.C. Circuit probably won't have the last say: this seems destined for the Supreme Court.
The case arose when the Committee subpoenaed Mazars for the records. President Trump sued to stop Mazars from releasing them, and the Justice Department filed an amicus brief on the side of the President.
The court flatly rejected the President's novel claims that the subpoena exceeded the Committee's authority and violated the Constitution. In particular, the court held that the subpoena was not an invalid exercise of law-enforcement (as opposed to legislative) power, because the Committee's explanation for the subpoena on its face stated a valid legislative purpose--to inform "multiple laws and legislative proposals under [the Committee's] jurisdiction." Moreover, the court noted that the House actually has pending legislation related to the subpoena, thus underscoring the legislative character of the subpoena, even though this isn't required.
The court held next that the subpoena has a valid legislative purpose. The court wrote that the subpoena could serve ethics and financial disclosure laws that apply to the President.
The court wrote that the subpoena's reach--seeking information before the President was elected and before he even announced his candidacy--fell within Congress's legislative power, because it could consider legislation requiring a President to disclose financial information going back before a President takes office.
Judge Rao dissented. She argued that the subpoena serves only the Committee's interest in determining "whether the President broke the law"; that the Committee can only take up this kind of law-enforcement function in the context of an impeachment; and that because the subpoena was issued outside of an impeachment proceeding, it is therefore invalid:
The majority breaks new ground when it determines Congress is investigating allegations of illegal conduct against the President, yet nonetheless upholds the subpoena as part of the legislative power. The Committee on Oversight and Reform has consistently maintained that it seeks to determine whether the President broke the law, but it has not invoked Congress's impeachment power to support this subpoena. When Congress seeks information about the President's wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress's legislative power. Throughout history, Congress, the President, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment. Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.