REPRESENTATION OF CONGRESS AND

CONGRESSIONAL INTERESTS IN COURT

FRIDAY, DECEMBER 12, 1975

U.S. SENATE,

SUBCOMMITTEE OF SEPARATION OF POWERS,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10 a.m., in room 2228, Dirksen Senate Office Building, Senator James Abourezk presiding. Present: Senator Abourezk

Also present: Irene R. Margolis, chief counsel and staff director; Chuck Ludlam, counsel; and Philip B. Kurland, consultant.

Senator ABOUREZK. The Separation of Powers Subcommittee will come to order.

With the recent focus on confrontations between the legislative and executive branches of Government, the Subcommittee on Separation of Powers will today explore two areas in which the legislative and executive branches apparently cooperate under a unique partnership.

First: It is not widely known that the Justice Department is presently serving as defense counsel for dozens of Members, officers, committees, and employees of Congress in a wide variety of court cases. Second: The Justice Department has frequently been placed in the position of defending the constitutionality of statutes enacted by Congress, which statutes the executive branch believes are not in fact, constitutional.

The subcommittee will examine the Justice Department's understanding of its obligations in these two areas, whether the Justice Department is capable of vigorously representing congressional interests, and the various consequences which arise from Congress' dependence on the Justice Department to represent the interests of Congress. The subcommittee will determine whether the Justice Department's defense of Congress and its statutes is an exception to the prevailing confrontation between these two branches of Government or whether Congress' delegation of these duties to the Justice Department is yet another infringement of the constitutional separation of powers. I have a much longer statement which I will submit in its entirety for the record.

[The opening statement of Senator Abourezk follows:]

OPENING STATEMENT OF SENATOR JAMES ABOUREZK

With all the recent focus on confrontations between the legislative and executive branches of Government, the Subcommittee on Separa

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tion of Powers will explore today two areas in which the legislative and executive branches apparently cooperate under a unique partnership.

First: It is not widely known that the Justice Department is presently serving as defense counsel for dozens of Members, officers, committees, and employees of Congress in a wide variety of court cases. Second: The Justice Department has frequently been placed in the position of defending the constitutionality of statutes enacted by Congress, which statutes the executive branch believes are not, in fact, constitutional.

The subcommittee will examine the Justice Department's understanding of its obligations in these two areas, whether the Justice Department is capable of vigorously representing congressional interests, and the various consequences which arise from Congress' dependence on the Justice Department to represent its own interests. The subcommittee will determine whether the Justice Department's defense of Congress and its statutes is an exception to the prevailing confrontation between these two branches of Government or whether Congress' delegation of these duties to the Justice Department is yet another infringement of the constitutional separation of powers.

Surprisingly, Congress has never had an office to provide its Members, officers, committees, or employees with legal counsel when they became involved in lawsuits. As far back as December 29, 1818, the House adopted a resolution authorizing the Speaker to hire private counsel to defend the Sergeant at Arms in the landmark case of Anderson v. Dunn, the first case upholding Congress' contempt power. Acting as a private citizen, the Attorney General argued the case on behalf of Congress and was paid a fee of $500. Since 1818 the Attorney General and-after its creation in 1870-the Justice Department have frequently served as defense counsel to Congress. Indeed, in 1875 Congress passed a statute, 2 U.S.C. 118 which requires the Justice Department to represent officers of Congress, such as the Sergeant at Arms, when they are sued for carrying out the orders of the Congress. Although no statute requires the Justice Department to represent Members, committees, and employees of Congress who are sued, the Department frequently will offer its services as defense counsel, unless to do so presents a conflict for the Department.

The range of court cases in which Congress becomes involved is not surprising, given the broad constitutional powers of the Congress. Included among the recent cases brought against Congress are suits to enjoin enforcement of committee subpenas or issuance of committee reports, suits to force officers of the Congress to enforce the election laws or call a constitutional convention, suits to invalidate the seniority system, or open the membership of the press galleries, damage actions against the Capitol Police, and a suit to force Congress to seat a Member who had been expelled. All of these cases arise out of official activities of the Congress and are not cases against a Member of Congress in his or her individual capacity.

The subcommittee is especially interested to determine the nature of the Justice Department's criterion in selecting congressional cases, and in particular, what kinds of conflict must arise in order to prevent the Department from taking a case. In the cases of Doe v. Mc

Millan and Eastland v. United States Servicemen's Fund, for example, the Justice Department withdrew its services as defense counsel to congressional committees just as the cases reached the Supreme Court, after the Department had served as counsel in the lower courts. The conflict which evidently led to the Department's withdrawal was raised by the Department's simultaneous prosecution of its case against Senator Gravel for publishing the Pentagon Papers and its opposition to the Watergate Committee's subpena for White House tapes. The Department's withdrawal from these cases is of particular concern to the subcommittee because the Supreme Court's rulings in both the McMillan and Servicemen's Fund cases narrowly interpreted the extent of legislative immunity.

The subcommittee is concerned that a conflict of the type the Department recognized in the McMillan and Servicemen's Fund cases may arise whenever the Department is called upon to defend congressional powers where Congress may be relying on these same powers in disputes with the executive branch. The subcommittee will explore whether the possibility of conflicts has increased with Congress now asserting the right to bring its own court actions against the executive branch to secure compliance with subpenas and to enjoin illegal impoundments.

In order to provide a context for analysis of these questions, the subcommittee will compare the Justice Department's representation in congressional cases to the Department's provision of defense counsel to Federal judges and to executive branch employees.

From Congress' point of view, additional problems arise from Congress' reliance on the Department from the fact that when the Justice Department does handle a congressional case, it asserts control over all litigation decisions. The propriety of this control in light of the canons of professional ethics will be analyzed, as well as the applicability of the attorney-client privilege.

Today the subcommittee will also examine the Justice Department's defense of the constitutionality of statutes enacted by Congress. In particular the subcommittee will examine the problem created for the Department and for Congress when the Department does not believe a statute it is called upon to defend is, in fact, constitutional. The subcommittee is concerned that there is presently no established procedure for Congress to defend its own statutes when the Justice Department is reluctant to do so.

All of these issues are of direct relevance to my proposal, S. 2731, which would create an Office of Congressional Legal Counsel to represent Congress when it becomes involved in law suits. That bill is presently receiving favorable consideration by the Senate Committee on Government Operations. The Department apparently is not in favor of the portions of that bill which would have the Congressional Legal Counsel bring suits against the executive branch. The hearing today should, however, determine whether the Department believes Congress should continue to rely on it to defend cases brought against Congress and against its statutes.

Senator ABOUREZK. Before I ask Mr. Lee to begin, I would like to introduce from up here, the consultant to the subcommittee, Prof. Philip Kurland, from the University of Chicago, and on my immedi

ate right is the staff director of the subcommittee, Irene Margolis, and on the left is the subcommittee counsel, Chuck Ludlam.

Mr. Lee, I would like to welcome you and your colleagues this morning. If you are ready to begin-do you have an opening state

ment.

Mr. LEE. I have, Mr. Chairman.

Senator ABOUREZK. If you would like to present it, under our agreement we talked about. If there are votes called, we will discontinue the hearings and manage as best we can.

TESTIMONY OF REX E. LEE, ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE, ACCOMPANIED BY IRVING JAFFE, DEPUTY; IRWIN GOLDBLOOM, DEPUTY; AND TOM MARTIN, SPECIAL ASSISTANT

Mr. LEE. I would like to also introduce Mr. Irving Jaffe and Mr. Irwin Goldbloom, they are my deputies and Mr. Tom Martin, who is special assistant.

I appreciate this opportunity in response to the chairman's request to discuss the Department's policies concerning the providing of legal counsel to officers and Members of Congress and also its policies regarding the defense of the constitutionality of statutes.

2 U.S.C. section 118 states as follows:

In an action brought against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty, in the executing of any order of such House, the U.S. attorney for the district within which the action is brought, on being thereto requested by the officer sued, shall enter an appearance in behalf of such officer; *** and the defense of such action shall thenceforth be conducted under the supervision and direction of the Attorney General.

First, it should be noted that this statute applies only to "officers" of either House of Congress.

The Department interprets the term "officer" in this statute to extend to the Speaker, President pro tem, Secretary, Clerk, Sergeants at Arms, Doorkeepers, and other officers.

It does not include Members as such, general employees of the Congress or officers of so-called agencies of Congress.

As a matter of consistent practice, however, the Department has defended Members of Congress in suits brought against them because of activities performed in the course of, or related to, their congressional responsibilities.

Agencies of Congress and their personnel are also represented by the Department of Justice on the same basis.

There are occasionally instances in which giving literal effect to the statute's mandate that the Attorney General shall appear and defend officers of Congress would place Justice Department lawyers in a conflict of interest position, in violation of their professional responsibility.

And I might add that the same situation occurs with regard to our traditional policy in representing individual Members of Congress. Where these situations occur, two alternatives are available and have been used. The officer of Congress can employ his own attorney,

or the Justice Department can hire and pay for independent counsel, whose lawyer/client obligation runs solely to the individual whom he is hired to represent.

It is also the Department's policy to defend suits brought against representatives of the judicial and executive branches involving activities of these officials in the performance of their governmental responsibilities. Here again, occasional conflicts occur, requiring the employment of outside counsel.

The defense of statutes attacked on constitutional grounds is an important part of the Justice Department's work.

There are essentially two situations in which the Department will not defend the constitutionality of a statute. The first situation involves those cases in which upholding the statute would have the effect of limiting the President's constitutional powers or prerogatives.

It is neither shocking nor surprising that the Congress in enacting legislation occasionally takes a different view from that of the President concerning the President's rights. It is equally clear that the President is entitled to a defense of his perceived rights.

The litigation now before the Supreme Court in Buckley v. Valeo, Nos. 75-436 and 75-437, is illustrative. The Secretary of the Senate, Clerk of the House of Representatives, and Comptroller General were originally named defendants in the Buckley case in their official capacities only, as the "supervisory officers," designated to administer the Federal Election Campaign Act of 1971.

Under section 208 (b) of the 1974 amendments, these supervisory officers were to administer the 1971 act as unamended until confirmation of the Federal Election Commission members and the appointment of a General Counsel.

Following the transfer of authority from the supervisory officers to the Commission, on May 30, 1975, the supervisory officers had no further functions, and Justice Department representation was thereafter provided to the Election Commission, on all issues except one. The Attorney General is also a named party in that case. On his own behalf and as counsel for the Federal Election Commission, he is defending the constitutionality of the Federal Election Campaign laws as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263, insofar as those statutes are being challenged under the first, fourth, or ninth amendments, or the due process clause of the fifth amendment.

However, the brief the Department has filed for the Federal Election Commission does not address any of the issues arising out of the law enforcement powers of the Commission.

With respect to these, the Attorney General has filed a separate brief urging the Supreme Court not to decide the constitutionality of the Commission's enforcement powers.

The separate brief urges that this issue is not ripe for adjudication. Should the Court reach it, however, our position is that the statute unconstitutionally vests in the Federal Election Commission, as essentially an arm of the Congress, enforcement responsibilities reserved by article II of the Constitution to the executive branch. On this aspect of the case the Commission is represented by its own special counsel.