QUESTION: I get your point that Judge Ketanji Brown Jackson is predisposed to the Democrats and was considered by Obama for the Supreme Court. How would you reform such political cases? Do you believe she had any basis to honor the Subpoena?

JF

ANSWER: I find it very curious that the Democrats would seek a civil order to compel White House counsel Don McGahn to testify when it should have been a contempt of Congress and handed over to the Department of Justice.  There is such a thing as Attorney Client Privilege. But let’s put that aside. As far back as the 1790s, it was established that contempt of Congress was considered an “implied power” of the legislature, on the basis that such a power existed in the British Parliament despite the fact we had a revolution against British powers. Congress was able to issue contempt citations against numerous individuals for a variety of actions without express powers granted to it by the Constitution.

Robert Randal was held in contempt of Congress for an attempt to bribe Representative William Smith of South Carolina back in 1795. Bribing a politician was then seen as a contempt of the legislative power. If that was applied today with lobbyists, there would not be enough jail space to house everyone.

Then there was William Duane, who was a newspaper editor who had refused to answer Senate questions in 1800. The freedom of the press seems to have been ignored from very early on when it involved something government demanded. They did the same to Nathaniel Rounsavell  who was also a newspaper editor, for publishing sensitive information in the press back in 1812. He was finally released from custody on a house vote which took place on April 7th, 1812 after he agreed to answer the interrogatories.

In Anderson v. Dunn, 19 U.S. 6 Wheat. 204 204 (1821), the Supreme Court held that Congress’ power to hold someone in contempt was essential to ensure that Congress was “… not exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.” However, the case arose after the House of Representatives punished John Anderson for contempt but it did not identify his alleged offense, It was most likely attempted bribery. The Supreme Court ruled that contempt of Congress would be confined to simply imprisonment and that the person had to be released once the session of Congress was adjourned. They ruled out corporal and capital punishments as the penalty.

The Supreme Court has later warned Congress through its rulings on the use of contempt proceedings that it risked suppressing freedom of speech. Chief Justice Edward White extended protections of the 1821 Anderson v. Dunn ruling in the opinion of the Court in 1917 which ruled a contempt proceeding against a district attorney for statements he made about a House member went “far beyond Congress’ intrinsic power to protect itself.”

The theory that an attempt to bribe a politician was considered contempt of Congress was eventually abandoned in favor of criminal statutes. In 1857, Congress enacted a law that made “contempt of Congress” a criminal offense against the United States (Act of January 24, 1857, Ch. 19, sec. 1, 11 Stat. 155). Actually, the last time Congress arrested and detained a witness was in 1935. Since then, Congress has referred cases to the United States Department of Justice for prosecution. The Office of Legal Counsel has asserted that the President of the United States is protected from contempt by executive privilege. That makes sense whereby Congress could criminally then charge the President and that would then qualify them to be removed from office.

If we turn to Congressional Subpoenas, Congress claims that power is inherent in all of its standing committees as necessary to compel witnesses to testify and produce documents. A Congressional Committee rules provides for the full committee to issue a subpoena, and it authorizes subcommittees or the chairman (acting alone or with the ranking member) to issue subpoenas.

As announced in Wilkinson v. United States 365 U.S. 399 (1961), a Congressional Committee must meet three requirements for its subpoenas. First, the committee’s investigation of the subject matter must be authorized by its chamber. Secondly, any such investigation must pursue “a valid legislative purpose” although it need not actually involve legislation. However, it does not have to specify the ultimate intent of Congress. Thirdly, the specific inquiries must be pertinent to the subject matter area that has been authorized for investigation.

Here is the decision which I believe control. The Court held in Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975), that Congressional subpoenas are within the scope of the Speech and Debate Clause which provides “an absolute bar to judicial interference” once it is determined that Members are acting within the “legitimate legislative sphere” with such compulsory process.

Under that Eastland decision, courts generally do not hear motions to quash Congressional subpoenas; even when executive branch officials refuse to comply. Courts tend to rule that such matters are “political questions” unsuitable for judicial remedy. In fact, many legal rights usually associated with a judicial subpoena do not apply to a Congressional subpoena. For example, attorney-client privilege and information that is normally protected under the Trade Secrets Act do not need to be recognized.

Here Judge Ketanji Brown Jackson in the district court in Washington ruled that McGahn must testify and that the Justice Department’s argument “is baseless, and as such, cannot be sustained.” The judge ordered McGahn to appear before the House committee and said her conclusion was “inescapable” because a subpoena demand is part of the legal system and was not the political process.

The Supreme Court has made it clear in the Eastland decision, that a Congressional subpoena is NOT judicial (legal) but it involves “political questions” not legal or judicial. I believe her decision is incorrect and it was politically motivated. On the other hand, the proper course of action by Congress should have been to turn it over to the Department of Justice to prosecute criminal contempt. They obviously did not do that and sought to get a judicial decision on a question that is clearly political. She was appointed as a judge by President Obama on September 20, 2012.

I oppose judges being appointed by politicians. I agree with Ben Franklin that the proper system for judges would have been the Scottish system where judges are nominated by fellow lawyers, not politicians to who they may be beholding. While legal scholars tend to look at Article III of the US Constitution as based upon the English legal system modeled on Blackstone’s famous Commentaries on the Laws of England, Franklin argued for the Scottish System that was far superior. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III.

Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What’s more, the Scottish judiciary operated within a constitutional framework — the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 retained the independent legal structure of Scotland and prohibited the English courts from interfering with those of Scotland.

The influence of the Scottish judiciary on the language and structure of the US Article III legal framework is clear where there is a Supreme Court with multiple inferior courts that are subordinate to, and subject to the supervisory oversight of, the sole supreme court. The Scottish model thus provides important historical support for the supremacy of the Supreme Court, however, the blending of this with the English system rendered the inferiority in Article III to operate as textual and structural limits on Congress’ jurisdiction-stripping authority from the courts.

Clearly, the most dangerous flaw appears to be intentional – Congress appoints judges not lawyers. This allowed the English legal system to be politically manipulated whereas the Scottish System was really independent. This MUST be corrected to restore the rule of law.