Forecast for December 2, 2019.

Welcome to this week’s abbreviated First Branch Forecast.


• Considering the Impeachment Report: H. Intel Cmte hearing Tuesday at 6.
• Grounds for Impeachment: H. Judiciary Cmte hearing Wednesday at 10.
• Science and Technology Advice for Congress: Science Cmte hearing Thursday at 10.
• Rules and Procedures in the House of Representatives: Fix Congress Cmte hearing Thursday at 2. We have some recs.


Handing off the baton. The House Judiciary Committee will hold its first hearing on impeaching Pres. Trump this Wednesday, focused on what constitutes an impeachable offense. (Trump and his counsel have been invited to participate.) The hearing comes after Intel Cmte Chair Schiff wrote in a Dear Colleague letter that his committee would summarize its findings and transmit them to the Judiciary Committee — prematurely, in our view — thereby largely wrapping up its role in the proceedings after a scheduled Tuesday evening vote on its report.

Defying Congress. In that letter, Schiff noted: “A dozen witnesses followed President Trump’s order to defy lawful subpoenas, and the White House, State Department, Department of Defense, Office of Management and Budget, and Department of Energy have provided no documents in response to subpoenas. In fact, the Committees did not receive a single document from any executive branch agencies pursuant to our subpoenas.”

Enter the court: Judiciary v. McGahn. Almost immediately after Schiff’s letter went out, the US District Court for the District of Columbia issued an opinion in Judiciary Committee v. McGahn that rebuked the White House’s defiance of the House’s subpoenas. The Court held there is no such thing as “absolute testimonial immunity” for Presidential aides, and that federal courts can enforce the House’s subpoena. Staff must show up in response to a congressional subpoena, the court ruled, and deferred to another day questions arising from potential assertion of privilege(s) arising from particular testimony. (The District Court docket is here.)

Here are three notable aspects of the McGahn opinion, beyond the vindication of Congress’s rights under Article I to compel witnesses to appear.

• The Court lambasted the White House’s reliance on 50 years worth of Office of Legal Counsel opinions on testimonial immunity, pointing out that the opinions “do not themselves constitute legal precedents and are manifestly inconsistent with the constitutional jurisprudence of the Supreme Court and the D.C. Circuit in many respects.” Ouch.

• The Court noted the existence of Congress’s inherent contempt powers, describing them as an “additional means of enforcing its subpoenas.” The CRS report the court cited is here.

• We note that many OLC opinions are secret and it seems likely they also misinterpret the law while binding the executive branch. There’s a bill on this point (HR 4556).

The White House appealed the McGahn ruling. (The Court of Appeals docket is here.) The Appellate Court administratively stayed the District Court’s ruling, with oral arguments set before a three judge panel on January 3, 2020. Briefs are due on December 9 and 16. The New York Times’s Charlie Savage noted the success of the Trump administration’s likely strategy of “keep[ing] information from coming out while his term and potential re-election hang in the balance.” He refrains from pointing the finger at House Democratic leadership, whose delays in subpoenaing information, delays in filing with the courts, and delays in starting impeachment proceedings — and now a rush to wrap up impeachment proceedings — likely will have dire consequences for vindication of Congress’s prerogatives.

Enter the courts: Trump v. Mazars. The Supreme Court issued a temporary stay on an appellate decision requiring Trump’s accountants to turn over his tax returns pursuant to a congressional subpoena. SCOTUSblog opines the “move provides a reprieve for Trump for now, and it likely sets the stage for a broader showdown over the subpoena early next year, with a decision to follow by late June.” The petition for writ of certiorari is due by December 5.


Who owns the law? SCOTUS will hear oral arguments this week on whether Georgia’s annotated code can be copyrighted (and thereby be prevented from free, online distribution without first paying the copyright holder for permission.) The Supreme Court’s docket is here. Audio, when it becomes available on Friday, will be here.

The ICIG has a very strong statement in support of whistleblowers in its semi-annual report. “Time will tell whether whistleblowers’ rights and protections will emerge from this period with the same legal, ethical, and moral strength they had previously. For my part, however, I am confident that those rights and protections will ultimately emerge stronger, and will not be diminished in any respect.”

The International Conference of Information Commissioners (ICIC) is an association of official entities that oversee implementation of access to public information, and OGIS just joined it as a member.


Foreign lobbyist disclosure loophole. A March 2019 DOJ Office of Legal Counsel opinion blew a hole in disclosure requirements under the Foreign Agents Registration Act (FARA), and was likely rendered at the prompting of subsidiary of Saudi Aramco, Saudi Arabia’s national oil company, according to CREW. The OLC’s opinion allows corporations owned by foreign governments to under-disclose lobbying by their domestic subsidiaries by filing under the much less rigorous Lobbying Disclosure Act.

No one wants to Chair the S. Ethics Committee and that’s a problem.

How will GAO’s Innovation Lab improve government efficiency and accountability?

Should Paul Ray head OIRA? HSGAC hearing on Wednesday.

The Senate’s Semi-Annual Spending Report has been published.

A report from the University of Maryland’s Conference on the Organizational Climate of Congress was released.

APSA’s congressional fellowship application process is now open.

The changing role of departmental select committees in the UK House of Commons. Of particular interest is the Petitions Committee, through which “Parliament now reaches millions of people whose concerns, if supported widely enough, can be debated in the House of Commons.” (See section 4.1 on the 2009-2010 Committee on the Reform of the House of Commons, and read the committee’s reports.)

WTFacebook? Ilhan Omar’s Republican challenger tweeted and facebooked about hanging Omar on the basis of a conspiracy theory, with one tweet accompanied by an illustration of the hanging. Twitter permanently suspended the challenger’s social media account for repeated violations of its rules, but not Facebook, which said it does not violate community standards.

Kelly Loeffler, and not Doug Collins, likely will be appointed to the Senate seat held by Johnny Isakson.