Saturday, June 15, 2019

Justice Department Argues that Congress Can't Get Trump's Tax Returns

The Office of Legal Counsel late yesterday issued an opinion giving its reasons why the Treasury Department doesn't have to comply with House Ways and Means Committee Chair Richard Neal's request, authorized by federal law, for President Trump's tax returns. We last posted on the controversy here.

The opinion is the culmination of breathtaking efforts by the Trump Administration to protect President Trump's tax returns from the Committee. Why breathtaking? Because federal law says that Treasury "shall furnish" (as in must furnish) the returns upon the request of the Committee Chair.

26 U.S.C. Sec. 6103 says that Treasury "shall furnish" tax-return information "[u]pon written request from the chairman of the Committee on Ways and Means of the House of Representatives." Chair Neal issued the requisite written request, stating that he sought the returns in order to investigate how the IRS audits presidents' tax returns. So far, Treasury declined to turn them over, saying that Chair Neal's request lacks a "legitimate legislative purpose," and that the Office of Legal Counsel would soon elaborate. Yesterday's opinion is that elaboration.

OLC's opinion riffs on Treasury's well worn claim--that Neal's request for the returns doesn't serve a "legitimate legislative purpose," and therefore Treasury can ignore the mandatory language (quoted above) in federal law.

In short, the opinion says that while Chair Neal claimed that he sought the returns to investigate how the IRS conducts audits of presidents (a legitimate legislative purpose), Chair Neal's real reason for requesting the returns is to release them to the public--and that's not a legitimate legislative purpose. The opinion draws on statements by Neal and other Democrats in the prior Congress suggesting that they'd like to publicize President Trump's tax returns when they gain a majority in the House. The memo says that this creates a mismatch between Chair Neal's stated reason for requesting the returns (to investigate how the IRS conducts audits) and his real reason (simply to publicize the President's returns).

The opinion cites several reasons why OLC believes that Chair Neal's stated reasons aren't his real reasons. First, OLC says that Chair Neal didn't also request other information, like IRS audit procedures. Next, it says that Chair Neal requested six years of the President's returns, even though "only the last two years correspond to his time in office." Third, OLC argues that the request focuses on just one taxpayer, President Trump, and not other Presidents and Vice-Presidents. OLC also notes that "the Chairman's request appeared to be 'perfectly tailored' to accomplish the Chairman's long-standing and avowed goal, namely 'to obtain and expose the President's tax returns.'"

Given that the courts are quite deferential to Congress in determining the scope of its own investigation authority, you might wonder where the administration gets off second-guessing Congress's motives. That is: Why does the administration think it can be less deferential to Congress regarding Congress's reasons for conducting an investigation? Here's part of the reason:

Allowing a congressional committee to dictate when Treasury must keep tax information confidential and when it must disclose such information would impermissibly intrude on executive power by ceding control to the Committee over ensuring that section 6103 is implemented in a manner consistent with the constitutional limitations.

Here's the rest:

Separated from the democratic process, the federal courts are not well equipped to second-guess the action of the political branches by close scrutiny of their motivations. . . .

These same limitations do not apply to the Executive Branch, which operates as a politically accountable check on the Legislative Branch. The Founders separated the President from the Congress, giving him "a separate political consistency, to which he alone was responsible," and "the means to resist legislative encroachment" upon his duty to executive the laws. The head of the Executive Branch, who is elected separately from Congress, ultimately must answer to the people for the manner in which he exercises his authority. The separation of powers would be dramatically impaired were the Executive required to implement the laws by accepting the legitimacy of any reason proffered by Congress, even in the face of clear evidence to the contrary. In order to prevent the "special danger . . . of congressional usurpation of Executive Branch functions," we believe that Treasury must determine, for itself, whether the Committee's stated reason reflects its true one or is merely a pretext.

Next step: Look for the Committee to seek to enforce Chair Neal's request in court.

June 15, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Wednesday, June 12, 2019

President Asserts Executive Privilege Over Docs Related to Census Citizenship Question

President Trump today formally asserted executive privilege over documents related to the Commerce Department's addition of a citizenship question on the 2020 Census. The assertion, communicated by the Commerce Department, comes after the Justice Department informed House Oversight Committee Chair Elijah Cummings late yesterday that it would ask the President to assert executive privilege if the Committee proceeded with a contempt vote against AG William Bar and Commerce Secretary Wilbur Ross.

In yesterday's letter, Assistant AG Stephen Boyd wrote,

a limited subset of the documents is protected from disclosure by the deliberative process, attorney-client communications, or attorney work product components of executive privilege. These are the kind of materials that the Executive Branch regularly and appropriately withholds in connection with oversight matters, because the disclosure of such information would have a significant chilling effect on future deliberations among senior executive branch officials, and would compromise the confidentiality on which the Executive Branch's attorney-client relationships depend. . . .

The Committee has failed to abide by the constitutionally mandated accommodation process by declining to negotiate over the scope of the subpoenaed materials or to recognize legitimate executive branch interests, as well as by its premature decision to schedule a contempt vote. In the face of this threatened contempt vote, the Attorney General is now compelled to request that the President invoke executive privilege with respect to the materials . . . .

Commerce followed up today:

Accordingly, I hereby advise you that the President has asserted executive privilege over the specific subset of the documents identified by the Committee in its June 3, 2019 letter--documents that are clearly protected from disclosure by the deliberative process, attorney-client communications, or attorney work product components of executive privilege. In addition, I advise you that the President has asserted executive privilege over the balance of the Department's documents responsive to the Committee's April 2, 2019 subpoena. As the Attorney General indicated in his letter to you yesterday, this protective assertion of executive privilege ensures the President's ability to make a final decision whether to assert privilege following a full review of these materials.

June 12, 2019 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

Wednesday, June 5, 2019

Check it Out: Tribe, Chemerinsky, Raskin Talk High Crimes and Misdemeanors

Check out the latest podcast from Prof. Harry Litman's outstanding Talking Feds, High Crimes and Misdemeanors, featuring Prof. Laurence Tribe, Dean Erwin Chemerinsky, and Congressman Jamie Raskin. The high-power panel talks, well, high crimes and misdemeanors.

June 5, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, June 4, 2019

White House Instructs Hicks, Donaldson Not to Comply with House Judiciary Subpoenas

White House Counsel Pat Cipollone wrote to House Judiciary Committee Chair Jerrold Nadler today that the White House had instructed former staffers Hope Hicks and Annie Donaldson not to comply with Committee subpoenas for documents related to their time in the White House. The instruction is categorical.

Cipollone's letter is here.

The reasons are all too familiar, even if ill defined. Cipollone wrote,

Th[e subpoenaed documents] include White House records that remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege.

It's not at all clear which documents Cipollone is referring to (all? some? which?), and it's not clear how "confidentiality interests" and executive privilege apply. Cipollone writes that this spaghetti-on-the-wall approach has DOJ's concurrence. He also writes that the White House and the Committee might be able to work something out.

Absent from this latest White House effort at frustrating congressional oversight is another familiar claim: that the Committee has no "legitimate legislative purpose" in the material. Perhaps that'll come out if and when this goes to litigation.

June 4, 2019 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

Monday, June 3, 2019

Court Says House Lacks Standing to Challenge Trump's Border Wall Funding

Judge Trevor N. McFadden (D.D.C.) ruled today that the House of Representatives lacks standing to challenge President Trump's reallocation of appropriated funds to build a border wall.

We last posted on the case here.

The ruling deals a sharp blow to the House in this case (although one imagines it'll be appealed). But other legal challenges against the reallocation of funds are still pending. And as Judge McFadden wrote in some detail, the House has other ways to hold President Trump to account.

Recall the background: Congress declined to appropriate the full amount of money that President Trump sought for the wall; President Trump then turned to three statutory authorities, including an "emergency" authority, that he claimed authorized him to reallocate funds appropriated for other purposes for the wall; and the House sued, arguing that the reallocation violated the Appropriations Clause and federal law.

We analyzed the merits arguments here.

Today's ruling in U.S. House of Representatives v. Mnuchin says that the House hasn't suffered a sufficient concrete injury because of President Trump's reallocation of funds to build the wall. In particular, the court said that the House hasn't suffered a "complete nullification" of its appropriations powers, and therefore hasn't suffered a sufficient injury to support standing:

But unlike the plaintiffs in Raines, the House retains the institutional tools necessary to remedy any harm caused to this power by the Administration's actions. Its Members can, with a two-thirds majority, override the President's veto of the resolution voiding the National Emergency Declaration. They did not. It can amend appropriations laws to expressly restrict the transfer or spending of funds for a border wall under Sections 284 and 2808. Indeed, it appears to be doing so. And Congress "may always exercise its power to expand recoveries" for any private parties harmed by the Administration's actions.

More still, the House can hold hearings on the Administration's spending decisions.

You might wonder why the (Republican) House had standing to challenge President Obama's decision to reallocate funds for the cost-sharing reduction payments under the Affordable Care Act, but the (Democratic) House has no standing to challenge President Trump's reallocation of funds for the wall.

I don't have a good answer, and I'm not sure the court in today's case does, either.

Judge McFadden seems to say that standing in the cost-sharing case was based on the House's constitutional (Appropriations Clause) claim, whereas this case looked more like a statutory claim (in which the House wouldn't have standing). But that seems weak: Judge McFadden himself says that the distinction between a constitutional claim and statutory claim is murky; and the constitutional claim in this case seems as strong, or stronger, than the constitutional claim in the cost-sharing case. Judge McFadden also says that allowing the House to sue here would also allow the House to sue over "every instance of the Executive's statutory non-compliance." But that's plainly not the case.

(Maybe you can understand the court's analysis better than I can. Take a crack: it's at pages 14 to 15 of the enclosed version of the opinion.)

June 3, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, May 23, 2019

Another Court Rebuffs Trump's Argument that House Subpoenas "Lack a Legitimate Legislative Purpose"

Judge Edgardo Ramos (S.D.N.Y.) rejected President Trump's motion for a preliminary injunction to halt congressional subpoenas directed at Deutsche Bank and Capital One for President Trump's financial records. We previously posted on the case here. The ruling is (another) sharp blow to President Trump and his efforts to block congressional subpoenas for his financial records.

Judge Ramos delivered his opinion from the bench and issued this short order.

The court ruled that President Trump was "highly unlikely" to succeed in his effort to halt the subpoenas. In response to the administration's now-standard (and bold and inventive) refrain in response to all House inquiries, the court said that Congress, indeed, had a "legitimate legislative purpose" in seeking the records. (Congress has broad investigative and oversight authority, cabined only by the loose "legitimate legislative purpose." But the Court has given that phrase an expansive reading, making President Trump's argument extremely tenuous--a last and desperate resort to shield his records from Congress.)

The ruling follows a similar ruling earlier this week from another court and another case in response to President Trump's effort to block a subpoena directed at his accountant, Mazars, for his financial records.

May 23, 2019 in Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, May 22, 2019

New York and More Sue to Halt Trump's "Conscience Protections" in Health Care

The State of New York and a host of other states and cities yesterday filed suit in the Southern District of New York to halt the implementation of President Trump's "conscience protection" regulations for health-care providers.

We posted on the regs here. In short, they require health-care providers and state and local recipients of certain federal funds to permit employees to opt out of providing health services if they have a religious objection to those services.

New York's lawsuit follows San Francisco's, filed earlier this month.

The plaintiffs in the New York case allege that the regs exceed statutory authority, violate federal law, are arbitrary and capricious, and violate the Spending Clause, the separation of powers, and the Establishment Clause.

Plaintiffs focus on the expansive definitions in the new regs that sweep beyond the administration's statutory authority, and HHS's ability under the regs to cut off vast amounts of federal funding to states and local governments who do not comply with the "conscience protections." They allege that they'll be harmed in their ability to enforce their own laws (which, among other things, require health-care providers to provide certain services, irrespective of religious beliefs) and in their receipt of federal funds.

In a bit of what-goes-around-comes-around, the plaintiffs draw on the Court's ruling in NFIB v. Sebelius--the Medicaid expansion portion of the ruling--to argue that the sheer amount of threatened federal funds under the new regs turns the condition on federal funding for state and local governments (compliance with the "conscience protections") from pressure into compulsion, in violation of federalism principles. They also contend that the conditions are vague, and that the administration impermissibly imposed them without prior congressional action in violation of the separation of powers. (This latter point is based on HHS's apparent ability to withhold funds not authorized for withholding under existing federal law.)

May 22, 2019 in Cases and Case Materials, Congressional Authority, Establishment Clause, Executive Authority, Federalism, News, Separation of Powers, Spending Clause | Permalink | Comments (0)

Tuesday, May 21, 2019

WaPo Reports: Draft IRS Memo Says Tax Records Must be Released to Congressional Committees

The Washington Post today reported on a confidential draft memo apparently prepared by the IRS that concludes that the IRS must turn over tax returns to certain congressional committees except if the President asserts executive privilege.

The memo doesn't mention the current spat over President Trump's tax returns between House Ways and Means Committee Chair Richard Neal (who requested the returns) and Treasury Secretary Steven Mnuchin (who refused to release them). But the memo makes clear: Apparently even the IRS thinks that it must turn over President Trump's taxes.

President Trump has not asserted executive privilege over the returns--and he probably couldn't (it doesn't seem to apply). Instead, Mnuchin (rather boldly) wrote to Neal that Neal's request was invalid, and that the IRS wouldn't comply with it, because it lacks a "legitimate legislative purpose."

The confidential draft memo reads:

The IRS discloses returns and return information when authorized or required by section 6103. Congress in its oversight and investigative role could seek to compel by subpoena a refusal to disclose returns or return information requested. The only basis for the agency's refusal to comply with a committee's subpoena would be the invocation of the doctrine of executive privilege.

Further on, the memo notes (correctly) that the statute requiring disclosure upon request "is mandatory, requiring the Secretary to disclose returns and return information requested by the tax writing Chairs." "On its face, the statute does not allow the Secretary to exercise discretion to disclosing the information provided the statutory conditions are met."

The memo also notes that the statute doesn't require the relevant committee chairs to state a reason for their request. "Unlike section 6103(f)(3), subsections (f)(1) and (f)(2) do not require the Ways and Means and Finance Chair of JCT Chief of Staff to include a reason or purpose for the request."

The memo almost certainly doesn't change things between Mnuchin and Neal, however. That's because the memo is only a draft, not (necessarily) the agency's final legal reasoning. It's also because Mnuchin claimed a different reason for not complying with Neal's request: the Committee lacks a "legitimate legislative purpose." So even if the memo reflects actual, current IRS thinking on the agency's obligation to turn over the returns, Congress might still be limited by its oversight and investigative authority--to things that have a "legitimate legislative purpose."

But as we've noted, that a bold and inventive claim with respect to President Trump's tax returns. The Court has given Congress wide berth in exercising its oversight authority. Unless things change at the Court, Neal's request for President Trump's tax returns falls well within it.

May 21, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Monday, May 20, 2019

Nadler, OLC Spar Over Immunity for McGahn

House Judiciary Committee Jerold Nadler and the Office of Legal Counsel today sparred over whether former White House Counsel Don McGahn enjoys absolute immunity from testimony before Nadler's Committee.

On the one side, OLC argues that "[s]ince the 1970s, [it] has consistently advised that 'the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee' on matters related to their official duties." According to OLC, this is based in the separation of powers:

The President stands at the head of a co-equal branch of government. Yet allowing Congress to subpoena the President to appear and testify would 'promote a perception that the President is subordinate to Congress, contrary to the Constitution's separation of governmental powers into equal and coordinate branches." . . .

"For the President's absolute immunity to be fully meaningful," we explained, "and for these separation of powers principles to be adequately protected, the President's immediate advisers must likewise have absolute immunity from congressional compulsion to testify about the matters that occur during the course of discharging their official duties." . . .

Recognizing a congressional authority to compel the President's immediate advisers to appear and testify at the times and places of their choosing would interfere directly with the President's ability to faithfully discharge his responsibilities. It would allow congressional committees to "wield their compulsory power to attempt to supervise the President's actions, or to harass those advisers in an effort to influence their conduct, retaliate for actions the committee disliked, or embarrass and weaken the President for partisan gain." And in the case of the President's current advisers, preparing for such examinations would force them to divert time and attention from their duties to the President at the whim of congressional committees. This "would risk significant congressional encroachment on, and interference with, the President's prerogatives and his ability to discharge his duties with the advice and assistance of his closest advisers," ultimate subordinating senior presidential advisers to Congress rather than to the President.

The OLC explained that this absolute immunity was distinct from--and swept more broadly than--executive privilege. It also explained that absolute immunity only applied to the president's immediate advisers, not to appointees whose offices are created by Congress and who need Senate advice and consent.

Counsel to the President Pat Cipollone then wrote to Nadler that McGahn wouldn't testify, based on the OLC memo.

On the other side, Nadler shot to McGahn that the OLC memo "has no support in relevant case law, and its arguments have been flatly rejected by the courts." He also argued that executive privilege doesn't apply (although, to be clear, the OLC cites absolute immunity of close-level presidential advisers, not executive privilege).

 

May 20, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

District Court Rebuffs President's Effort to Block Congressional Subpoena for Accounting Records

Judge Amit Mehta (D.D.C.) rejected President Trump's effort to block a congressional subpoena directed to his accountant for his financial records. Judge Mehta also declined to stay his ruling pending appeal.

Unless President Trump can get immediate relief from the D.C. Circuit, the ruling means that his accountant, Mazars USA LLP, will have to turn over his financial records and related documents of President Trump and his business entities dating back to 2011.

The ruling is a significant defeat for the President, although it's sure to be appealed. In addition to dealing a blow to the President in this case, the ruling sets a standard for the President's more general complaint--lodged in each of his challenges to congressional oversight--that the congressional request lacks a "legitimate legislative purpose." The court's deferential, flexible approach to "legitimate legislative oversight" doesn't bode well for the President in these other challenges.

We previously posted on the case here.

The case, Trump v. Committee on Oversight and Reform of the U.S. House of Representatives, arose when President Trump sued the Committee to halt its subpoena of financial records from Mazars, some of which dated back before his election. The court today ruled definitively in favor of the Committee.

The court ruled that the Committee asserted "facially valid legislative purposes," and thus had the power to subpoena Mazars:

Without a resolution as a point of reference, the logical starting point for identifying the purpose of the Mazars subpoena is the memorandum to Members of the Oversight Committee written by Chairman Cummings on April 12, 2019. Chairman Cummings penned that Memorandum in anticipation of issuing the subpoena. It is therefore the best evidence of the Committee's purpose. The Memorandum lists four areas of investigation: (1) "whether the President may have engaged in illegal conduct before and during his tenure in office," (2) "whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions," (3) "whether he is complying with the Emoluments Clauses of the Constitution," and (4) "whether he has accurately reported his finances to the Office of Government Ethics and other federal entities." Each of these is a subject "on which legislation could be had."

The court rejected the President's arguments (1) that the Committee is usurping executive and judicial functions ("Just because a congressional investigation has the potential to reveal law violations does not mean such investigation exceeds the legislative function."); (2) that the Committee is improperly investigating private affairs (because the subpoena is valid so long as it is related to a valid legislative purpose, which, as described above, it is); and (3) that the records request isn't "pertinent" (because it is relevant, and serves potential legislation, and because it's not the court's role to say so, anyway).

The court went on to reject the President's motion for a stay pending appeal, ruling, among other things, that he lacked a likelihood of success on the merits of his challenge.

May 20, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, May 17, 2019

Treasury Rebuffs House Committee Subpoena for Trump Taxes

Treasury Secretary Steven Mnuchin wrote today to Ways and Means Committee Chair Richard Neal that the Treasury Department would comply with the Committee's subpoena for President Trump's tax returns.

As he wrote earlier, in response to Neal's request (but not-yet subpoena), Mnuchin wrote that the request "lacks a legitimate legislative purpose, and pursuant to section 6103, the Department is therefore not authorized to disclose the requested returns and return information."

That claim is breathtaking, given Congress's actual vast oversight and investigative authorities.

Section 6103 of the IRC generally provides for keeping tax records confidential, but subsection (f)(1) provides:

Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives . . . the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

Given the clarity of the language ("shall furnish"), Treasury's position must be that Section 6103 is bound by congressional authority to investigate. And its position as to that authority must be quite cramped--that Congress can only investigate matters that could actually lead to legislation, and that President Trump's tax returns somehow don't fit that bill.

As in his earlier letter, Mnuchin writes that DOJ will follow up with a legal analysis.

May 17, 2019 in Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, May 8, 2019

House Judiciary Committee Votes to Hold AG Barr in Contempt

The House Judiciary Committee just voted to hold AG Barr in contempt of Congress for failing to comply with a Committee subpoena and turn over the full (unredacted) Mueller report and related documents.

The move comes shortly after the White House asserted a protective executive privilege over the subpoenaed material.

The resolution now goes to the full House for a vote.

May 8, 2019 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

President Asserts Executive Privilege Over Full Mueller Report

President Trump today asserted protective executive privilege to prevent the release of the full (unredacted) Mueller report to the House Judiciary Committee.

The assertion is only provisional and temporary, however, in order to give the White House time to make a final determination whether to assert the privilege. The move thus buys time for the White House against the Committee's subpoena and potentially against the Committee's markup on a resolution holding Barr in contempt of Congress.

AG Barr requested the move in this letter to the White House. As Barr explained, "In cases like this where a committee has declined to grant sufficient time to conduct full review, the President may make a protective assertion of the privilege to protect the interests of the Executive Branch pending a final determination about whether to assert the privilege." (Citing this 1996 OLC opinion.)

The Department made this request because, although the subpoenaed materials assuredly include categories of information within the scope of executive privilege, the Committee's abrupt resort to a contempt vote--notwithstanding ongoing negotiations about appropriate accommodations--has not allowed sufficient time for you to consider fully whether to make a conclusive assertion of executive privilege. The Chairman, however, has indicated that he intends to proceed with the markup session scheduled at 10 a.m. today on a resolution recommending a finding of contempt against me for failing to produce the requested materials.

In these circumstances, you may properly assert executive privilege with respect to the entirety of the Department of Justice materials that the Committee has demanded, pending a final decision on the matter.

May 8, 2019 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

Tuesday, May 7, 2019

White House Directs McGahn Not to Turn Over Documents to House Judiciary Committee

The White House today directed former White House counsel Don McGahn not to turn over documents related to Robert Mueller's investigation to the House Judiciary Committee. The Committee previously issued a subpoena to McGahn for those documents.

The move is just the latest in a series of administration actions that frustrate congressional investigations and oversight. We posted most recently here and here.

Pat Cipollone, counsel to the president, wrote to McGahn's attorney that "the records remain subject to the control of the White House for all purposes," and that they "remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege." Cipollone wrote that Acting Chief of Staff Mick Mulvaney "directs Mr. McGahn not to produce" them. (Notably absent from the letter is the administration's familiar refrain that the subpoena exceeds congressional authority, because it lacks a "legitimate legislative purpose." But perhaps "longstanding constitutional principles" covers that.)

McGahn's attorney, William Burck, then wrote to Chairman Nadler, explaining that McGahn would not comply with the subpoena. "Where co-equal branches of government are making contradictory demands on Mr. McGahn concerning the same set of documents, the appropriate response for Mr. McGahn is to maintain the status quo unless and until the Committee and the Executive Branch can reach an accommodation."

May 7, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Ninth Circuit Rebuffs Challenge to CFPB

The Ninth Circuit ruled in CFPB v. Seila Law LLC that the Consumer Financial Protection Bureau--with its single head, removable only for cause--did not violate the separation of powers. The case aligns with the en banc D.C. Circuit's ruling in PHH Corporation v. CFPB.

The CFPB has been under constant constitutional attack as a legislative encroachment upon executive authority. (If the president can't fire the head of the CFPB at will, the argument goes, then the head of the CFPB encroaches on the president's (absolute, exclusive, unitary) power to execute the law.) The challenges also take aim at Morrison v. Olson. The Court in that case upheld the independent counsel law against a similar separation-of-power challenge. The case has long been a thorn in the side of unitary executive theorists, with many now arguing that Justice Scalia, the lone dissenter in the case, got it right. Despite the attacks, Morrison v. Olson is still good law.

The court in Seila Law said that the CFPB question is resolved by Humphrey's Executor v. United States and Morrison v. Olson. The court explained that Humphrey's Executor validated a "for cause" removal provision for members of the Federal Trade Commission--"an agency similar in character to the CFPB"--because "the agency exercised mostly quasi-legislative and quasi-judicial power, rather than executive powers."

The Court reasoned that it was permissible for Congress to decide, 'in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control.' The for-cause removal restriction at issue there, the Court concluded, was a permissible means of ensuring that the FTC's Commissioners would 'maintain an attitude of independence' from the President's control.

So too with the CFPB:

Like the FTC, the CFPB exercises quasi-legislative and quasi-judicial powers, and Congress could therefore seek to ensure that the agency discharges those responsibilities independently of the President's will. In addition, as the PHH Corp. majority noted, the CFPB acts in part as a financial regulator, a role that has historically been viewed as calling for a measure of independence from Executive Branch control.

The court rejected the argument that the CFPB has more executive power than the FTC in Humphrey's Executor and therefore is a greater intrusion into the president's executive authority. The court said that the Supreme Court has since validated other offices with for-cause removal that have similar executive power (in Morrison and Free Enterprise Fund v. PCAOB).

The court also rejected the argument that the CFPB's single head distinguishes it from the multi-member commission at issue in Humphrey's Executor.

[T]he Supreme Court's decision in Humphrey's Executor did not appear to turn on the fact that the FTC was headed by five Commissioners rather than a single individual. . . . And the Court's subsequent decision in Morrison seems to preclude drawing a constitutional distinction between multi-member and single-individual leadership structures, since the Court in that case upheld a for-cause removal restriction for a prosecutorial entity headed by a single independent counsel.

May 7, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, May 6, 2019

Treasury Declines to Turn Over Trump's Taxes to House

Treasury Secretary Steven Mnuchin today wrote to House Ways and Means Committee Chair Richard Neal that the Treasury Department would not turn over President Trump's 2013-2018 taxes, as earlier requested by Neal.

Mnuchin argues that Neal's request lacks "a legitimate legislative purpose," a common administration argument in every case where it has declined to comply with a House request or subpoena.

Neal requested the returns pursuant to his authority under 26 U.S.C. Sec. 6103(f), which states,

Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives . . . the Secretary [of Treasury] shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

(Emphasis added.)

Despite the "shall," Mnuchin writes that Congress's power "is bounded by Congress's authority under the Constitution, and the Supreme Court has held that the Constitution requires that Congressional information demands must reasonably serve a legitimate legislative purpose."

With no small amount of chutzpah, Mnuchin writes that "on the advice of the Department of Justice, I have determined that the Committee's request lacks a legitimate legislative purpose . . . ."

Mnuchin says that a DOJ legal memo is forthcoming.

May 6, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

District Judge Rejects Trump's Motion to Dismiss Foreign Emoluments Case

Judge Emmett G. Sullivan (D.D.C.) ruled last week that congressional members' case against President Trump for violations of the Foreign Emoluments Clause can go forward. The ruling rejects the president's motion to dismiss, and paves the way for declaratory and injunctive relief against the president.

The ruling is not final; it only allows the case to move forward. But given the language and conclusions in this ruling, and in an earlier one that the members had standing to sue, it seems all but inevitable that the court will rule against the president on the merits.

The case involves the members' claim that the president violated the Foreign Emoluments Clause after he failed to seek and obtain the consent of Congress for accepting payments from foreign governments derived from real estate holdings; intellectual property rights from China; payments for hotel rooms and events from foreign diplomats and foreign lobbing groups; licensing fees from foreign governments for "The Apprentice"; and regulatory benefits from foreign governments. Judge Sullivan previously ruled that the members had standing.

The court rejected the president's argument that the Clause "applies only to the receipt of compensation for services rendered by an official in an official capacity or in an employment (or equivalent) relationship with a foreign government, and to the receipt of honor and gifts by an office-holder from a foreign government." (Two examples, according to the president: (1) "a federal official would receive an Emolument if he or she was paid by a foreign government to take certain official actions"; and (2) "an Emolument would [] be received if an official became an employee or entered an employment-like relationship with the foreign government, such as if a federal government lawyer provided legal advice and services to a paying foreign power.") The court surveyed the original understanding, the plain text, the history, the interpretation at the adoption, the purpose of the Clause, and Executive Branch practice and concluded that the Clause was much broader than what the president argued. Judge Sullivan concluded that the "plaintiffs have stated a claim against the President for allegedly violating the Foreign Emoluments Clause."

The court also rejected the president's argument that it can't create an implied cause of action under the Foreign Emoluments Clause:

Here, accepting the allegations in the Amended Complaint as true, which the Court must at this junction, the President is accepting prohibited foreign emoluments without seeking congressional consent, thereby defeating the purpose of the Clause to guard against even the possibility of "corruption and foreign influence." Exercising the Court's equitable discretion here is therefore "not in derogation of the separation of powers, but to maintain their proper balance."

Finally, the court ruled that the plaintiffs' requested injunctive relief didn't violate the separation of powers. It said that it had authority to enjoin the president in matters involving an exercise of the president's "ministerial" duties, and that getting congressional approval was "ministerial."

May 6, 2019 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, May 2, 2019

Administration Continues to Thwart Attempts at Congressional Oversight

Trump Administration officials continue to thwart efforts at congressional oversight, citing separation-of-powers and congressional authority, among others, as the basis for refusing to comply with requests for testimony and documents. The particular reasons for declining to comply vary depending on the request, however, with one consistent theme: The Administration repeatedly claims that congressional requests exceed Congress's oversight authority. (It also claims that members of Congress previously adopted different positions with regard to congressional oversight of a different president, that the administration has already provided plenty of material, and that requests are politically motivated. These, of course, are not constitutional reasons not to comply.)

We posted here on the White House's arguments in support of its decision to decline to make Steve Miller available for testimony. We posted here on President Trump's lawsuit against his accountant to halt compliance with a congressional subpoena for his financial records.

Here are four new cases this week:

White House Security Clearance Process

Pat Cipollone, counsel to president, wrote to House Oversight Committee Chairman Elijah Cummings that it would not comply with Committee requests for files related to the White House security clearance process. Cipollone argued that "the Committee's inquiry is also legally unsupportable for several reasons." First, the Committee's efforts to "investigat[]" "specific individuals" is outside the Committee's oversight authority. Next, the Committee's request for individual files "has no legitimate legislative purpose." Third, the Committee seeks documents that are "at the heart of executive privilege," that reflect internal executive branch deliberations, that, if disclosed, "would undermine the investigative process, expose sensitive information that could jeopardize the FBI's ability to conduct future investigations, and raise serious separation of powers concerns," and that "implicate sensitive information." Finally, "the Committee appears to be putting public servants at risk in order to advance a partisan political agenda."

The Full Mueller Report and Materials

Assistant AG Stephen Boyd wrote to House Judiciary Chairman Nadler that DOJ would not turn over the unredacted Mueller report and supporting materials. Boyd cited past Department practice, and concluded that

Against this backdrop of the Department's compelling need to protect the autonomy and effectiveness of its investigations, as well as the extraordinary steps the Attorney General has already taken to accommodate the Committee's needs, the Committee has not articulated any legitimate legislative purpose for its request for all of the Special Counsel's investigative files. The Committee has no legitimate role in demanding law enforcement materials with the aim of simply duplicating a criminal inquiry--which is, of course, a function that the Constitution entrusts exclusively to the Executive Branch.

Moreover, "disclosing grand-jury information in response to congressional oversight requests is prohibited by [Rule 6e of the Federal Rules of Criminal Procedure]."

Barr's Testimony Before the House

AG Barr refused to show up at his House Judiciary Committee hearing today, apparently because he didn't like Nadler's rule that Committee attorneys would also question him. Best we can tell, he apparently thinks this is a separation-of-powers problem, because only members should be able to question him.

Trump's Suit Against Deutsche Bank and Capital One

President Trump filed suit against Deutsche Bank and Capital One to stop them from complying with congressional subpoenas for his financial records. The suit is similar to the one he filed against his accountants. It argues that the subpoenas exceed Congress's oversight authority, because they lack a "legitimate legislative purpose," and violate the Right to Financial Privacy Act.

May 2, 2019 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

Thursday, April 25, 2019

White House Declines to Make Miller Available for Congressional Testimony

The White House today declined to make Steve Miller available to the House Committee on Oversight and Reform for testimony about the President's immigration priorities. This is just the latest chapter in White House defiance of attempts at congressional oversight, in a week when President Trump (remarkably) said that he'd decline to comply with all House subpoenas.

The White House's stated reason for declining to make Miller available is a little different than the stated reasons for not complying with other House committee requests and subpoenas. In particular, the White House wrote, "The precedent for members of the White House staff to decline invitations to testify before congressional committees has been consistently adhered to be administrations of both political parties, and is based on clearly established constitutional doctrines." In other words: White House staff appearing before Congress would violate the separation of powers.

The White House cites a 2014 OLC opinion that concludes that "[t]he Executive Branch's longstanding position, reaffirmed by numerous Administrations of both political parties, is that the President's immediate advisers are absolutely immune from congressional testimonial process." 

That opinion is at odds with Committee on the Judiciary, U.S. House of Representatives v. Miers, the D.C. District court case that held that Harriett Miers was not absolutely immune from congressional testimony. In Miers, the court said that Harlow v. Fitzgerald answered the question. The Court in Harlow denied absolute immunity to "senior White House aides" for civil damages (and instead granted qualified immunity) based on claims like the ones made by the White House in Miers (and here). The D.C. court wrote, "The derivative, 'alter ego' immunity that the Executive requests here due to Ms. Miers's and Mr. Bolton's close proximity to and association with the President has been explicitly and definitively rejected, and there is no basis for reaching a different conclusion here."

But the 2014 OLC memo said that Miers was wrong for two reasons. First, it said that "such a power would threaten the President's 'independence and autonomy from Congress.'" Next, "a congressional power to subpoena the President's closest advisers to testify about matters that would occur during the course of discharging their official duties would threaten executive branch confidentiality, which is necessary (among other things) to ensure that the President can obtain the type of sound and candid advice that is essential to the effective discharge of his constitutional duties." This sounds like an invocation of executive privilege. It wasn't--at least not exactly. The OLC memo went on to explain why allowing testimony, but invoking executive privilege on a question-by-question basis, wouldn't sufficiently protect the executive branch.

So we have competing answers to the question whether "senior White House aides" are entitled to absolute immunity from testimony before Congress, simply by virtue of their proximity to the President. (The current White House letter expands this to "White House staff.") That'll be the question if and when this gets to court.

April 25, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Wednesday, April 24, 2019

House Moves for Injunction to Halt Trump's Reallocation of Funds for Border Wall

The House of Representatives yesterday applied for a preliminary injunction to halt President Trump's reallocation of appropriated funds to build a border wall.

The application notes that Congress, not the president, has the appropriations powers, and argues that the president lacks statutory authority to reallocate funds after Congress specifically rejected his request for funding through the appropriations process.

We posted on the similar lawsuit filed by sixteen states here.

There are two statutes at issue. The first, 10 U.S.C. Sec. 284, says that "[t]he Secretary of Defense may provide support for the counterdrug activities . . . of any other department or agency of the federal government" if "such support is requested[] by the official who has responsibility for the counterdrug activities . . . of the department or agency of the Federal Government" for the purposes of "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States." 

The administration already transferred $1 billion that Congress appropriated for other purposes, and it plans to transfer another $1.5 billion. 

The House argues that the Secretary's authority is limited by Section 8005 of the 2019 DOD appropriations act. That section says that the Secretary of Defense may

transfer not to exceed $4,000,000,000 of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction) between such appropriations or funds or any subdivision thereof . . . : Provided, That such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.

The House argues that under Section 8005 the administration's reallocation is not "for higher priority items, based on unforeseen military requirements"; that the reallocation is not in a case "where the item for which funds are requested has been denied by Congress" (because Congress denied the administrations request for wall funding); and that wall funding is not for "military construction."

The second statute, 10 U.S.C. Sec. 2808, provides that

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense . . . may undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.

The House argues that President Trump's declaration of a national emergency doesn't "require[] the use of the armed forces"; that the wall isn't a "military construction project"; and that the wall isn't "necessary to support [the] use of the armed forces." The House doesn't challenge the president's declaration of an emergency, though.

April 24, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)