Can Congress Investigate Whether the President Has Complied with the Law?

Marty Lederman

Attention, first-year ConLaw students who haven't yet taken your final exams!:  You might want to consider how you'd answer that question.

No, really.  You're no doubt wondering:  Is that a trick question?  Well, until today it would have been.  But now . . .


The House Committee on Oversight and Reform recently asked Mazars USA LLP, one of Donald Trump's accountants, to provide documents and information relating to the firm’s preparation, review, and auditing of financial statements for Trump and his business entities.  Mazars told the Committee that it couldn't voluntarily provide the requested documents without a subpoena, and so on April 15th the Committee issued a subpoena to Mazars for the documents.

Trump sued Mazars and the Committee Chairman (who was soon replaced as a defendant by the Committee itself), seeking to enjoin the Committee from enforcing its subpoena to Mazars.

This case doesn't raise any issues of executive privilege or immunity from legislative process.  Trump's claim is entirely predicated, instead, on the argument that Congress lacks any legitimate investigative authority that could justify trying to obtain Trump's financial records from Mazars.

A couple of hours ago I attended a hearing that Judge Amit Mehta held on the merits of Trump v. House Committee on Oversight and Reform, No. 19-1136 (D.D.C.).  Judge Mehta began his questioning of Trump's lawyer, Will Consovoy, in precisely the right place:  He asked, one by one, whether Congress has the power to inquire into any or all of the four specific topics identified by Chairman Elijah Cummings in his memorandum to the Committee a month ago, explaining the basis for the request to Mazars.  Cummings wrote that:

The Committee has full authority [1] to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, [2] to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, [3] to assess whether he is complying with the Emoluments Clauses of the Constitution, and [4] to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.  The committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction, and to suggest otherwise is both inaccurate and contrary to the core mission of the committee to serve as an independent check on the Executive Branch.

Judge Mehta started from the end of this litany:  Does Congress have authority to inquire into whether a president "has accurately reported his finances to the Office of Government Ethics?," he asked.

No, said Consovoy.

What about to assess whether the President is violating the Emoluments Clauses of the Constitution?  After all, Judge Mehta noted, Article I, section 9 specifically provides that an officer can't accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, "without the Consent of the Congress."

No go, said Consovoy, Congress can't inquire into the President's possible acceptance of any foreign emoluments, either.

OK, but what about trying to determine whether Trump has undisclosed conflicts of interest that may impair his ability to be impartial in the conduct of his office?

Same answer.

(At this point the die was cast:  Judge Mehta didn't get around to asking specifically about Congress's authority to investigate whether the President may have "engaged in illegal conduct before and during his tenure in office," because it wasn't hard to guess what Consovoy's response would have been.  Indeed, according to my notes Consovoy did say at one point that Congress lacks any power to assess whether the President is violating the law!)

When it was his turn to argue, Counsel for the House Doug Letter explained why Chairman Cummings was right that "[t]he committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction"--which ought to be enough, in and of itself, to justify the subpoena.

But even apart from such "legislative" functions, Judge Mehta wondered, what about Congress's "informing function"--the power of Congress, which the Supreme Court has recognized, "to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government"?   Watkins v. United States, 354 U.S. 178, 200 n.33 (1957).  After all, as the Court noted in Watkins, id., "[f]rom the earliest times in its history, the Congress has assiduously performed an 'informing function' of this nature."

Consovoy conceded, as he had to in light of Watkins, that Congress has the power to inquire into and publicize corruption, maladministration or inefficiency in agencies--which are, Consovoy explained, entities created by Congress itself.  However, Consovoy hastened to add, Congress does not enjoy a similar power to inquire into and publicize corruption, maladministration or inefficiency by the President.

Wait . . . WHAT?  Congress lacks authority to investigate and publicize possible wrongdoing--corruption or maladministration--by the President?  Did I hear that right?  But cf. Nixon v. Administrator of General Services, 433 U.S, 425, 452-53 (1977) (explaining that Congress enacted a law requiring preservation of a president's records and tapes in order to, inter alia, secure "the American people's ability to reconstruct and come to terms with their history").

Apparently I did, because Judge Mehta, too, was incredulous.  He asked Consovoy the obvious follow-up question:  Does this mean that Congress's investigations into Watergate and Whitewater [and, I might add, Iran/Contra; etc.] were unconstitutional?   Consovoy responded (if my notes are correct) that that would depend upon the basis for those investigations.  It was "straightforward," said Judge Mehta:  Congress was inquiring into possible violations of the law by the President.  In that case, Consovoy said, then yes, perhaps Congress did overstep its authority.  [That's my recollection of the substance of Consovoy's responses--not direct quotations.  If anyone who attended has a different account, please let me know.  Of course when the transcript becomes available I'll insert direct quotations.]

"Bold," "radical" and "unprecedented" don't begin to describe this line of argument.  I'm not sure what does.  Flabbergasting, I suppose.

I assume Consovoy--a very fine and accomplished advocate--will offer a less astounding, less categorical, answer to such questions when he next has an opportunity to brief them.  But for now . . . wow.

I should add that Consovoy has an alternative argument, too, one he tried to emphasize at every opportunity during the argument today--namely, that the congressional objectives articulated in Chairman Cummings's letter are not the actual reasons for the subpoena, and that the Committee is, instead, trying to "expose for the sake of exposure,” something that's not within Congress's authority, at least not when the exposure is of purely personal matters unrelated to the performance of a public official's functions.  Watkins, 354 U.S. at 200.  Although "[t]he public is, of entitled to be informed concerning the workings of its government," that "cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals."  Id.  The problems with that argument, however, are not only that Congress obviously does have the legitimate and important objectives that the Chairman articulated, but also that courts are generally loath to look behind the reasons offered by a congressional committee.  See, e.g., id. (“[A] solution to our problem is not to be found in testing the motives of committee members for this purpose. Such is not our function.”).

As Judge Mehta's colloquy with Letter indicated, the case also raises questions about whether the particular subpoena at issue here is reasonably tailored to the Committee's legitimate inquiries, and whether the scope of the inquiries exceeds the Committee's jurisdiction.  I don't know remotely enough about the facts of the case and the Committee's jurisdiction to offer any informed views on those questions.

[UPDATE:  Charlie Savage's account of the hearing is, as usual, spot-on.]




Posted 6:21 PM by Marty Lederman [link]

How Did the Department of Defense Decide to Authorize Torture, Cruel Treatment, and Violations of the Uniform Code of Military Justice?

Marty Lederman

The Senate Armed Services Committee is currently holding a hearing addressing that very question. The Committee has released several new, important documents relating to the question.

In late 2002, interrogators at GTMO were growing increasingly frustrated that certain detainees, especially Mohammad al-Qahtani, would not provide them with the sort of actionable intelligence they were hoping for. On September 25, 2002, David Addington, Jim Haynes, John Rizzo (Acting CIA General Counsel, Michael Chertoff, and others, visited GTMO and consulted with officials there about interrogations.

The next week, on October 2d, those officials convened, with CIA Associate General Counsel Jonathan Fredman, to review "Counter Resistance Strategy," at a meeting in which they contemplated the use of the aggressive "SERE" techniques. When Col. Cummings noted that they could not use sleep deprivation, Diane Beaver, a Staff Judge Advocate for the Joint Task Force 170/JTF, Guantanamo Bay, responded "Yes, we can -- with approval." Beaver noted that "we may need to curb the harsher operations while ICRC [the Red Cross] is around. Dave Becker noted that they had "many reports" of sleep deprivation being used at Bagram, in Afghanistan. Beaver's response?: "True, but officially it is not happening. It is not being reported officially. The ICRC is a serious concern." Cummings noted that the new Pysh Op plan had already been passed up the chain, and Jonathan Fredman of the CIA added that "DOJ has provided much guidance on this issue." Fredman then basically describes the August 2002 OLC torture memo in detail.

Then there was a discussion about whether to videotape the interrogation sessions. Beaver responded in the negative: "Videotapes are subject to too much scrutiny in court."

On October 11th, Beaver wrote her famous memo recommending the use of the enhanced techniques. Those techniques included many that were later approved for use on al-Qahtani: forced nudity, forced grooming, "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress," 20-hour interrogations, stress positions, and the use of mild physical contact such as grabbing, poking and light pushing. The proposed techniques also included waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

The problem, of course, was the law. In addition to the torture statute, Beaver noted that the Uniform Code of Military Justice prohibits U.S. armed forces from, among other things, engaging in cruelty, oppression or maltreatment of prisoners (art. 93), assaulting prisoners (art. 128) (a prohibition that includes a demonstration of violence that results in reasonable apprehension of immediate bodily harm), and communicating a threat to wrongfully injure a detainee (art. 134). The UCMJ plainly prohibits many of the techniques the military wished to use against suspects such as al-Qahtani. Beaver wrote that "Article 128 is the article most likely to be violated because a simple assault can be consummated by an unlawful demonstration of violence which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm, and a specific intent to actually inflict bodily harm is not required." Beaver then notes, almost in passing, that physical contact with a detainee "will technically constitute an assault under Article 128, UCMJ." In an earlier paragraph, Beaver is still more candid in acknowledging that physical contact, as well as the "water cure" version of waterboarding, "would constitute a per se violation of Article 128 (Assault)," and that threats of death "may also constitute a violation of Article 128, or also Article 134 (communicating a threat)."

Well, then, if some of the proposed techniques are acknowledged to be "per se" federal crimes, how was it that Beaver could then recommend their use and (in a cover memo) conclude that they "do not violate applicable federal law"? Here's the only clue in her memo: She writes that because of the "per se" prohibitions of the UCMJ, "[i]t would be advisable to have permission or immunity in advance from the convening authority, for military members utilizing these methods." No explanation here of the legal theory pursuant to which such ex ante "permission or immunity" to violate the law could be conferred. But Beaver clearly had been made aware of DOJ's conclusion that the President, as Commander in Chief, could simply authorize the overriding of mere statutes such as the UCMJ.

Beaver's memo went up the chain of command. On October 25, 2002, General Hill transmitted the memo to the Joint Chiefs -- but Hill, like Beaver, indicated that the law stood in the way. "I am uncertain," he wrote, "whether all the techniques . . . are legal under US law," and he expressed his "desire to have as many options as possible at my disposal and therefore request that Department of Defense and Department of Justice lawyers review" some of the techniques.

DOD General Counsel Jim Haynes and Secretary Rumsfeld did not act on the Hill memo for over a month. What happened in that time? Now we know: The JAGs of the Armed Services opined, in early November, that the use of the SERE techniques would likely violate criminal laws (the torture statute and/or the UCMJ), and, for good measure, would appear to also violate the President's directive that detainees be treated "humanely." (These lawyers did not understand what the President and Vice President meant by "humane.") Oh, and the use of those techniques would also undermine the ability to obtain convictions in any military commission proceedings. (Prescient, weren't they?)

OK, so Beaver and Hill both opined that the techniques would likely violate the law -- and the JAGs advised likewise. So what happened next?

Well, Jim Haynes consulted with Deputy Secretary Wolfowitz, Doug Feith and General Myers, after which, on November 27, 2002, he opined to Secretary Rumsfeld that all of the proposed techniques "may be legally available." (Haynes also advised that, for policy reasons, "a blanket approval" of waterboarding and threats of death "is not warranted at this time.")

Note that carefully: Haynes was advised by many lawyers, throughout the Pentagon, that the techniques would be unlawful -- after which, without explanation, he informed the Secretary that they all "may be legally available" -- and recommended approval of some of the most extreme techniques.

How could that possibly have happened?

Well, it's quite obvious what occurred here: Haynes, Rumsfeld, Wolowitz, Feith, Cambone, et al., had been made aware of OLC's opinion that the Commander in Chief could authorize any interrogation techniques, whether or not such conduct would violate any statutes or treaties. They had probably seen the August 2002 torture memo, and almost certainly were advised orally that OLC had in its back pocket 1001 legal theories -- topped off by the Commander in Chief argument --- why mere statutes and treaties posed no obstacle to the use of torture, cruel treatment, threats, and assaults. That is to say, they had received informal OLC advice that tracked the formal memo they eventually received from John Yoo on March 14, 2003.

After all, let's not forget that, as Seymour Hersh reported in 2004, Secretary Rumsfeld and Under-Secretary Cambone had, much earlier, established secret special access programs (SAPs) within DoD that were authorized to use rough treatment, and sexual humiliation, in interrogating not only suspected al Qaeda operatives in Afghanistan, but also the numerous persons rounded up as possible "insurgents" in Iraq. As Beaver, et al. well knew, these forces were already using cruel treatment in Afghanistan. (For a recent account of the nature of that treatment, see this latest McClatchy story.) And as the Fay Report explained, "CIA detention and interrogation practices [in Iraq] led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib" (pp. 52-53). The CIA practices and techniques led to a "perception" that such techniques and practices "were suitable and authorized for DoD operations" (pp. 118-119).
Posted 9:43 AM by Marty Lederman [link]

Law, Organizing (and Philanthropy) in the Radical Fund

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Benjamin Sachs

For anyone interested in the contemporary labor movement, and in efforts at revitalizing it, John Witt’s The Radical Fund is important reading. Indeed, the book is uncanny in its relevance for contemporary labor movement trends, challenges, and opportunities. One obvious way this is true goes to the core of the book’s project: the contest in the early 20^th century over the role of philanthropy in supporting the labor movement, related with masterful storytelling, sheds light on those same questions in contemporary practice. Indeed, there are concrete lessons to be learned here. To take one example, the importance of Brookwood Labor College (nearly forgotten today) to the sweep of labor activism across these years – from the role it played in realizing Sidney Hillman’s new unionism to the contribution it made to the success of the sit-down strikes of the 1930s – suggests that philanthropic support for a re-imagined system of labor education should be higher on philanthropy’s agenda today. 

But it is another aspect of The Radical Fund that I want to highlight: namely, the history the book tells about the relationship between law and worker organizing. This question of how law and organizing relate has been the focus for a set of legal scholars over the last few decades and is now the subject of an extensive body of scholarship. In addition to other essential historical work on the subject, early works in the “law and organizing” literature proper include Scott Cummings and Ingrid Eagly’s A Critical Reflection on Law and Organizing and Jennifer Gordon’s book We Make the Road by Walking. More recent work includes Greg Balz’ writing (e.g., Resurrecting the Rent Strike Law), Cummings and Elmore’s Mobilizable Labor Law and a pair of articles by Kate Andrias and me (Constructing Countervailing Power and The Chicken-and-Egg of Law and Organizing) along with critiques of that work like Catherine Fisk’s The Once and Future Countervailing Power of Labor. The animating question in all this scholarship is how law can best be understood and deployed by organizers to build power with and for workers.

Read more »
Posted 9:30 AM by Guest Blogger [link]

Cities in the anti-global age?

Guest Blogger

Scott Cummings


Posted 9:30 AM by Guest Blogger [link]

Balkinization Symposium on City Power: Urban Governance in a Global Age

JB

This week Balkinization will host an online symposium on Richard Schragger's new book, City Power: Urban Governance in a Global Age (Oxford University Press, 2016).

Participants will include Scott Cummings, Nestor Davidson, Richardson Dilworth, Lee Fennell, and Kathleen Morris. Richard will respond to their essays.
Posted 1:42 PM by JB [link]

Marriage and Family Law Pluralism: Commentary on Eskridge and Riano’s Marriage Equality: From Outlaws to In-Laws

Guest Blogger

For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020).

 Doug NeJaime

Yesterday I focused on the innovative and important LGBT family law work documented in William Eskridge and Christopher Riano’s breathtaking book, Marriage Equality: From Outlaws to In-Laws. I discussed domestic partnerships, designated beneficiaries, second-parent adoption, parentage judgments, and voluntary acknowledgments of parentage (VAPs). I did not discuss marriage. Yet the book is an account of the path to marriage equality. Today, I’ll explore the tension between the family law pluralism I addressed yesterday and the fight for marriage equality at the heart of the book. Eskridge and Riano carefully analyze this tension—detailing how LGBT efforts were channeled into marriage and contemplating the legal regulation of families in a post-marriage equality world.

Read more »
Posted 9:30 AM by Guest Blogger [link]