Category Archives: Congress

Congressional Research Service on grounds for impeachment [Resources]

The impeachment of Bill Clinton was initiated by the House of Representatives on December 19, 1998, with two charges, one of perjury and one of obstruction of justice. Some six weeks earlier on October 30, 1998, the Congressional Research Service released a six part series of selected background materials pertinent to the issue of what constitutes impeachable misconduct for purposes of Article II, section 4 of the United States Constitution:

I wonder whether this series will be updated in the near, hopefully very near, future. — Joe

House resolution invokes 25th Amendment to “Quickly secure the services of medical and psychiatric professionals to exam the president… .”

Rep. Zoe Lofgren’s (D-Calif.) has introduced a resolution Friday urging President Donald Trump to get a medical and psychiatric examination to determine if he should be removed from office. The resolution calls on Vice President Pence and the members of Trump’s cabinet to “quickly secure the services of medical and psychiatric professionals” to “assist in their deliberations” invoking the 25th Amendment, which outlines presidential removal procedures.

The resolution states:

Quickly secure the services of medical and psychiatric professionals to exam the president to assist in their deliberations under the 25th Amendment to determine whether the president suffers from a mental disorder or other injury that impairs his abilities and prevents him from discharging his Constitutional duties.

— Joe

79 Democratic Members of Congress cosponsor resolution to censure President Trump

From the press release:

Today, Congressman Jerrold Nadler (D-NY), Congresswoman Bonnie Watson Coleman (D-NJ), and Congresswoman Pramila Jayapal (D-WA) introduced a censure resolution in the U.S. House of Representatives against President Donald Trump for his comments blaming “both sides” for the violence in Charlottesville, Virginia and excusing the behavior of participants in the ‘Unite the Right’ rally.

The censure resolution condemns the President for failing to immediately and specifically name and condemn the white supremacist, Ku Klux Klan, and neo-Nazi groups responsible for actions of domestic terrorism in Charlottesville over the weekend, and for doubling-down on his comments by attempting to create a moral equivalency between white supremacists and those counter-protesting the ‘Unite the Right’ rally. The resolution, which was cosponsored by 79 Members of Congress, offers an official censure by Congress of President Trump for his remarks, and calls for the President to fire any and all advisors who have urged him to cater to white supremacist.

Is your Member of Congress among the 79 cosponsor. [List of Cosponsors] As of now, the resolution is not online at Congress.gov. — Joe

Congressional censure and post-Charlottesville calls for Congress to censure President Trump

“Censure is not impeachment,” wrote USA Today’s Editorial Board. “Whether that’s appropriate will likely depend on the outcome of special counsel Robert Mueller’s investigation into ties between Russia and the Trump campaign. But censure would constitute a forceful way of rebuking the White House and condemning the vile views of a bigoted fringe, even as those people’s right to free speech and peaceful protest is protected under the First Amendment.” After Charlottesville, time to censure President Trump, USA Today, Aug. 16, 2017.

On Congressional censure, see Congressional Censure and “No Confidence” Votes Regarding Public Officials, (June 23, 2016). From the introduction:

The House and the Senate have, from time to time in the past, proposed and—on some occasions—adopted a resolution which has expressed the body’s disapproval, condemnation, censure, or lack of confidence regarding a particular official in the executive branch of the federal government.

Such actions have not been considered as part of the express impeachment authority of the House within the Constitution (nor the authority to try such impeachments in the Senate), nor have they generally been considered as either part of the inherent contempt authority of either house of Congress or the express constitutional authority of each house of Congress to discipline its own Members. Rather, such actions seem to be in the nature of a “sense of the House” or a “sense of the Senate” resolution, whereby a simple resolution is proposed and adopted by one house of Congress, without the concurrence of the other house of Congress, and without a requirement for a “presentment” to the President (as would be required of a “bill”). Such simple resolutions adopted by one house (or concurrent resolutions adopted by both houses) have come to be recognized by parliamentarians as a vehicle to express the opinion and sense of Congress on a nonlegislative matter; and “sense of” the House, Senate, or Congress resolutions concerning a wide range of subjects have been used frequently in the past by the House and Senate.

The adoption of a simple or concurrent resolution expressing the House’s or Senate’s “censure,” “condemnation,” or “no confidence” in a particular officer of the federal government does not have any immediate or binding legal import, but does express a particular moral judgment and may have both symbolic as well as political implications.

— Joe

Presidential Advisers’ Testimony Before Congressional Committees

From the introduction to the CRS report, Presidential Advisers’ Testimony Before Congressional Committees: An Overview (December 15, 2014, RL31351):

Since the beginning of the federal government, Presidents have called upon executive branch officials to provide them with advice regarding matters of policy and administration. While Cabinet members were among the first to play such a role, the creation of the Executive Office of the President (EOP) in 1939 and the various agencies located within that structure resulted in a large increase in the number and variety of presidential advisers. All senior staff members of the White House Office and the leaders of the various EOP agencies and instrumentalities could be said to serve as advisers to the President.

Occasionally, these executive branch officials playing a presidential advisory role have been called upon to testify before congressional committees and subcommittees. Sometimes, such invited appearances have been prompted by allegations of personal misconduct on the part of the official, but they have also included instances when accountability for policymaking and administrative or managerial actions have instigated the request for testimony. Because such appearances before congressional committees or subcommittees seemingly could result in demands for advice proffered to the President, or the disclosure—inadvertent or otherwise—of such advice, there has been resistance, from time to time, by the Chief Executive to allowing such testimony.

Congress has a constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.

A congressional committee may request (informally or by a letter from the committee chair, perhaps co-signed by the ranking Member) or demand (pursuant to subpoena) the testimony of a presidential adviser. However, Congress may encounter legal and political problems in attempting to enforce a subpoena to a presidential adviser. Conflicts concerning congressional requests or demands for executive branch testimony or documents often involve extensive negotiations and may be resolved by some form of compromise as to, inter alia, the scope of the testimony or information to be provided to Congress.

— Joe

New bill, if passed, would offer Congressional internships to recent law school grads

Drafted by four senators along with Larry Kramer, former Dean of Stanford Law School; Robin West, law professor at Georgetown University Law Center; Bill Treanor, Dean of Georgetown University Law Center; Abbe Gluck, law professor at Yale Law School; and Dakota Rudesill, law professor at Ohio State, S. 1604, A bill to establish the Daniel Webster Congressional Clerkship Program, was introduced in the US Senate on July 20, 2017. It is intended to attract law school grads to learn more about the legislative process. From the bill’s statement of Congressional findings:

(1) Each year, many of the most talented law school graduates in the United States begin their legal careers as judicial law clerks.

(2) The judicial clerkship program has given the judiciary access to a pool of exceptional young lawyers at a relatively low cost.

(3) These same lawyers then go on to become leaders of their profession, where they serve a critical role in helping to educate the public about the judiciary and the judicial process.

(4) The White House, the administrative agencies of the executive branch, the Administrative Office of the United States Courts, the Federal Judicial Center, and the United States Sentencing Commission all operate analogous programs for talented young professionals at the outset of their careers.

(5) Congress is without a similar program.

(6) At a time when our Nation faces considerable challenges, Congress and the public would benefit immeasurably from a program, modeled after the judicial clerkship program, that engages the brightest young lawyers in the Nation in the legislative process.

Hope the bill passes. — Joe

Collateral consequences of Senator and House members indicted for or convicted of a felony

Two CRS reports analyze the status of Senators and Members of the House who have been indicted for or convicted of a felony. See Status of a Senator Who Has Been Indicted for or Convicted of a Felony (April 2, 2015, RL34716) and Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony (May 8, 2014, RL33229). — Joe

CRS report: Presidential Advisers’ Testimony Before Congressional Committees

From Presidential Advisers’ Testimony Before Congressional Committees: An Overview (Dec. 15, 2014 RL31351):

Congress has a constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.

A congressional committee may request (informally or by a letter from the committee chair, perhaps co-signed by the ranking Member) or demand (pursuant to subpoena) the testimony of a presidential adviser. However, Congress may encounter legal and political problems in attempting to enforce a subpoena to a presidential adviser. Conflicts concerning congressional requests or demands for executive branch testimony or documents often involve extensive negotiations and may be resolved by some form of compromise as to, inter alia, the scope of the testimony or information to be provided to Congress.

— Joe

The Congressional Oversight Manual

The Constitution grants Congress extensive authority to oversee and investigate executive branch activities. Towards that end, CRS developed the Congressional Oversight Manual over 30 years ago. The Manual was produced by CRS with the assistance of a number of House committee staffers. The constitutional authority for Congress to conduct oversight is designed to fulfill a number of purposes:

  • Ensure Executive Compliance with Legislative Intent
  • Evaluate Program Performance
  • Prevent Executive Encroachment on Legislative Prerogatives and Powers
  • Investigate Alleged Instances of Poor Administration, Arbitrary and Capricious Behavior, Abuse, Waste, Dishonesty, and Fraud
  • Assess Agency or Officials’ Ability to Manage and Carry Out Program Objectives
  • Review and Determine Federal Financial Priorities
  • Ensure That Executive Policies Reflect the Public Interest
  • Protect Individual Rights and Liberties

— Joe

CRS report: Obstruction of Congress

From the CRS report, Obstruction of Congress: A Brief Overview of Federal Law Relating to Interference with Congressional Activities (Nov. 5, 2010 RL34304):

Obstruction of justice is the frustration of governmental purposes by violence, corruption, destruction of evidence, or deceit. It is a federal crime. In fact, federal obstruction of justice laws are legion; too many for even passing reference to all of them in a single report. This is a brief description of those that outlaw interference with congressional activities.

See also Bradley J. Bondi, No Secrets Allowed: Congress’s Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings, 25 Journal of Law and Politics, No. 145 (2010)(“To the extent Congress refuses to accept a witness’s assertion of the attorney-client privilege or work-product protection during an investigation, this article explores avenues for challenging such an adverse determination and for resisting the disclosure of the confidential information in the face of contempt. The article concludes with a discussion of some practical ways an individual or entity subject to a congressional investigation may limit the extent of any subsequent waiver and minimize the harm caused by the release of the information.”) — Joe

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

From the summary of the CRS report, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (May 12, 2017, RL34097):

Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent times the contempt power has most often been employed in response to non-compliance with a duly issued congressional subpoena—whether in the form of a refusal to appear before a committee for purposes of providing testimony, or a refusal to produce requested documents.

Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.

See also, Josh Chafetz, Executive Branch Contempt of Congress, 76 University of Chicago Law Review 1083 (2009). — Joe

Taking the Fifth in Congressional investigations

On May 26, 2017, CRS issued a Legal Sidebar titled The Fifth Amendment in Congressional Investigations. Here’s a snip:

As a general matter, witnesses may invoke the Fifth Amendment privilege during a congressional investigation with regard to testimony or documents that are: (1) testimonial (“relate[s] a factual assertion”); (2) self-incriminating (any disclosures that tends to show guilt or that furnishes any “link in the chain of evidence” needed to prosecute); and (3) compelled (not voluntarily given). Oral testimony given pursuant to a subpoena and in response to committee questioning almost always qualifies as testimonial and compelled. Therefore, the central inquiry is typically whether the responsive testimony would be “incriminating.” The Supreme Court has taken a broad view of what constitutes incriminating testimony, holding that the privilege protects any statement “that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might so be used.” Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be “ensnared by ambiguous circumstances.”

H/T to beSpacific. — Joe

House set to vote on the Financial CHOICE Act, H.R. 10, to repeal Dodd-Frank Act requirements

The House of Representatives is set to vote this week on The Financial CHOICE Act, H.R. 10, an extensive bill intended to rewrite the Dodd-Frank Act and roll back hundreds of other financial regulations. The Financial CHOICE Act in the 115th Congress: Selected Policy Issues (May 10, 2017, R44839) highlights major proposals included in the bill but is not a comprehensive summary. In general, H.R. 10 proposes changes that can be divided into two categories: (1) changes to financial policies and regulations and (2) changes to the regulatory structure and rulemaking process. See also, The Financial CHOICE Act (H.R. 10) and the Dodd-Frank Act (May 22, 2017, IN10695) and Systemically Important or “Too Big to Fail” Financial Institutions (Jan. 4, 2017, R42150).

The future of H.R. 10 in the Senate is uncertain. According to published reports, Senate Democrats are likely to mount a filibuster against it while Senate Republicans are expected to offer their own financial regulatory reform package. — Joe

Suggested articles of impeachment for President Trump

The time has come for Congress to act and for leaders on both sides of the aisle to put country before party and politics. Speaker Paul Ryan and Majority Leader Mitch McConnell ought to, in cooperation with Democratic leaders, begin the sequence of events that would likely lead to impeachment and removal proceedings for Trump. Given that this is unlikely, Democrats should make clear of their intentions to do what is necessary under our Constitution should they win back control of the House of Representatives in 2018. This process should be as full, fair, and transparent as our Constitution requires. Anything less would demean and harm the country even more than Trump has already done. — Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017

Echoing similar sentiments, Keith E. Whittington warns “If the impeachment power is perceived to be little more than a partisan tool for undermining elected officials and overturning election results, then the value of elections for resolving our political disagreements is significantly reduced. We do not want to be in a situation in which neither side trusts the other to continue adhering to the most basic democratic norms of abiding by election results.” Keith E. Whittington, An Impeachment Should Not Be a Partisan Affair, Lawfare, May 16, 2017.

Short of the Democrats winning a majority of seats in the House in the 2018 congressional elections, it is hard to imagine the Republican controlled House of Representatives bringing articles of impeachment against President Trump because impeachment has been a partisan political action for quite a while now. See Richard K. Neumann, Jr., The Revival of Impeachment as a Partisan Political Weapon, 34 Hastings Constitutional Law Quarterly 161 (2007). But if viewed as a thought experiment, Phillip Carter has offered a “first draft” of an impeachment bill. The drafted articles of impeachment he identifies are listed below:

Article 1: Compromising the integrity of the presidency through continuing violation of the Constitution’s Emoluments Clause.

Article 2: Violation of his constitutional oath to faithfully execute the duties of his office by disregarding U.S. interests and pursuing the interests of a hostile foreign power, to wit, Russia.

Article 3: Impairment and obstruction of inquiries by the Justice Department and Congress into the extent of the Trump administration’s conflicts of interests and Russia ties.

Article 4: Undermining of the American judicial system through felonious intimidation of potential witnesses.

Article 5: Undermining of his office and the Constitution through repeated assaults on the integrity of the federal judiciary and its officers.

Article 6: Demeaning the integrity of government and its public servants, particularly the military and intelligence agencies, in contravention of his constitutional duties to serve as chief executive and commander in chief of the armed forces.

Looks comprehensive to me. See Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017 for his explanations for each draft article of impeachment . See also, The Republican’s Guide to Presidential Behavior, New York Times editorial, May 13, 2017 (“What do Paul Ryan, Mitch McConnell and other Republican leaders think a president may say or do and still deserve their enthusiastic support? We offer this handy reference list in hopes of protecting them from charges of hypocrisy in the future. They can consult it should they ever feel tempted to insist on different standards for another president.”)  — Joe

Reality checks on impeachment talks

Within the last 24 hours, both Time and NPR outlined conditions under which President Trump might be impeached after the recent disclosure of the existence of Comey’s CYA memo of his private meeting with President Trump about the Flynn investigation. In How Difficult Would It Be to Impeach President Trump? Time’s Katie Reilly identified the following conditions as necessary:

  1. Impeachment talk would need to be taken seriously
  2. Critics would need to settle on one argument
  3. There would need to be more evidence
  4. The House would need to decide there are grounds for impeachment
  5. The Senate would need to find the President guilty
  6. There would need to be public support for impeachment

In Trump Impeachment Talk Grows From Conspiracy Theory To Mainstream, NPR’s Domenico Montanaro writes that “a lot has to happen — and a lot of facts gathered — before anyone gets down the road to impeachment.” Steps to the possible road to impeachment include:

  1. The memo has to be produced
  2. Comey has to testify on the record and in public about the memo and the meeting
  3. There have to have many willing Republicans to go along
  4. Is this obstruction of justice?

Wait and see. — Joe

CRS reports on special counsels, independent counsels and special prosecutors

On May 11, 2017, the Congressional Research Service released Special Counsels, Independent Counsels, and Special Prosecutors: Investigations of the Executive Branch by the Executive Branch. From the introduction:

Under constitutional principles and authorities, Congress has no direct role in federal law enforcement and is limited in its ability to initiate appointments of any prosecutor for any particular matter in which there may be allegations or concerns about wrongdoing by public officials. Instead, criminal investigations and prosecutions have generally been viewed as a core executive function and are a responsibility of the Executive Branch. However, because of the potential conflicts of interest that may arise when the Executive Branch investigates itself, as a historical matter there have often been calls for an independently led inquiry to determine whether executive officials have violated criminal law. In the past, Congress has authorized independent counsels, who were requested by the Attorney General and appointed by a judicial panel, but that authority lapsed in 1999. Currently, the Attorney General has regulatory authority to appoint a special counsel to investigate allegations that may present a conflict of interest for the Department of Justice (DOJ).

Focusing on the role of Congress, see also, Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress (June 20, 2013, R43112). This report provides information on the procedure for the appointment of an “independent counsel,” a “special prosecutor,” or a “special counsel” to investigate and prosecute potential or possible violations of federal criminal law by officials in the executive branch of the federal government and in federal agencies. Specifically examined is the role or authority of Congress in requiring an independent or special counsel investigation of executive branch officials.

— Joe

Behind closed doors: Secrecy and transparency in Congressional lawmaking

Congressional Lawmaking: A Perspective On Secrecy and Transparency (Nov. 30, 2011, R42108) outlines briefly the historical and inherent tension between secrecy and transparency in the congressional process and identifies various lawmaking stages typically imbued with closed door activities. From the report:

Openness is fundamental to representative government. Yet the congressional process is replete with activities and actions that are private and not observable by the public. How to distinguish reasonable legislative secrecy from impractical transparency is a topic that produces disagreement on Capitol Hill and elsewhere. Why? Because lawmaking is critical to the governance of the nation. Scores of people in the attentive public want to observe and learn about congressional proceedings. … Yet secrecy is an ever-present part of much legislative policymaking; however, secrecy and transparency are not “either/or” constructs. They overlap constantly during the various policymaking stages.

— Joe

How higher education is shaping the House of Representatives

“Of the many ways that the U.S. House of Representatives fails to mirror the nation as a whole, here’s an underrated one: The educational attainment of our representatives far surpasses that of the electorate,” writes Ben Myers and Peter Olsen-Phillips for The Chronicle of Higher Education in In Congress, Even Lawmakers’ Degrees Are a Partisan Issue How higher education is shaping the House of Representatives. This article provides a demographic analysis of the levels of educational attainment of House members from the 103rd Congress to the 115th Congress in an interactive format. Interesting. — Joe

Presidential claims of executive privilege

We’re probably going to hear a lot about the Trump administration’s attempts to claim executive privilege in the coming months as the Russia probe progresses. By citing Comey’s private conversations in Trump’s termination letter to Comey, for example, has President Trump undermined any future claims of executive privilege to them?

Quoting from the CRS report, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments (Dec. 15, 2014 R42670):

Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution.

Supreme Court decisions have left considerable gaps in the law of presidential privilege. Among the more significant issues left open include whether the President must have actually seen or been familiar with the disputed matter; whether the presidential privilege encompasses documents and information developed by, or in the possession of, officers and employees in the departments and agencies of the executive branch, outside of the Executive Office of the President; whether the privilege encompasses all communications with respect to which the President may be interested or is confined to presidential decision making and, if so, whether it is limited to a particular type of presidential decision making; and precisely what kind of demonstration of need must be shown to overcome the privilege and compel disclosure of the materials.

— Joe

An analysis of Congress’s hard and soft powers

It can be argued that Congress has significantly more constitutional power than we are accustomed to seeing it exercise and that by failing to make effective use of its power, Congress has invited the other branches to fill the vacuum, resulting in a constitutional imbalance. Sharing this point of view, Josh Chafetz’s Congress’s Constitution, 160 University of Pennsylvania Law Review 715 (2012) “considers a number of constitutional tools that individual houses – and even individual members – of Congress, acting alone, can deploy in interbranch conflicts.” From the law review’s abstract:

Although the congressional powers discussed in this Article are clearly contemplated in constitutional text, history, and structure, many of them have received only scant treatment in isolation. More importantly, they have never before been considered in concert as a set of tools in an ongoing interbranch power struggle. This holistic perspective is necessary because these powers in combination are much greater than the sum of their parts.”

Borrowing terminology from international relations scholarship, this Article groups the congressional powers under discussion into “hard” and “soft” varieties. Congressional hard powers are tangible and coercive; the hard powers discussed in this Article are the power of the purse and the contempt power. Congressional soft powers are intangible and persuasive; soft powers considered by this Article include Congress’s freedom of speech and debate, the houses’ disciplinary power over their own members, and their power to determine the rules of their proceedings. Each of these powers presents opportunities for Congress to enhance its standing with the public, and thereby enhance its power. This Article aims to demonstrate both the ways in which these powers are mutually supporting and reinforcing and the ways in which Congress underutilizes them. In doing so, the Article examines a number of examples of congressional use of, and failure to use, these powers, including the release of the Pentagon Papers, the 1995–1996 government shutdowns and 2011 near-shutdown, the 2007–2009 contempt-of-Congress proceedings against White House officials, and the use of the filibuster, among others.

See also, Peter Shane’s When Inter-branch Norms Break Down: Of Arms-for-Hostages, ‘Orderly Shutdowns,’ Presidential Impeachments, and Judicial ‘Coups’.  12 Cornell Journal of Law and Public Policy, 503 (2004). — Joe