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Obama Recess Appointments Slapped Down by DC Circuit, CFPB At Risk

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What can only be described as a blockbuster opinion was just handed down by the DC Circuit in the case of Canning v NLRB, the validity of President Obama’s recess appointments has been slapped down. Here is the full opinion. The three judge panel was Chief Judge David Sentelle, Karen Henderson and Thomas Griffith, all Republican appointees (one from each Bush and one Reagan).

The immediate effect of the court’s decision is, of course, on the National Labor Relations Board (NLRB). Noel Canning was aggrieved by a decision of the NLRB and petitioned for review, the NLRB cross-petitioned to have its decision upheld. Fairly standard stuff – except the quorum on the NLRB Board was met only because of the fact Barack Obama controversially recess appointed three members in January 2012, as well as concurrently recess appointing Richard Cordray to be the Director of the Consumer Finance Protection Bureau. So, three out of the five members of the NLRB Board were, according to Canning’s argument, not validly sitting and therefore their decision was invalid as to him

Canning had merits arguments on the specific facts of his individual case, but the court found those non-compelling and proceeded on the Constitutional arguments surrounding the validity of the recess appointments. And the Court agreed with Canning that Obama’s recess appointments were invalid. The discussion by the court can be gleaned from these passages:

All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.
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It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions. Cf. Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (interpreting terms “by reference to associated words”). Confirming this reciprocal meaning, the First Congress passed a compensation bill that provided the Senate’s engrossing clerk “two dollars per day during the session, with the like compensation to such clerk while he shall be necessarily employed in the recess.” Act of Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71.

Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). For there to be an “ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.” Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate.
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The Constitution’s overall appointments structure provides additional confirmation of the intersession interpretation. The Framers emphasized that the recess appointment power served only as a stopgap for times when the Senate was unable to provide advice and consent. Hamilton wrote in Federalist No. 67 that advice and consent “declares the general mode of appointing officers of the United States,” while the Recess Appointments Clause serves as “nothing more than a supplement to the other for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” The Federalist No. 67, supra, at 408. The “general mode” of participation of the Senate through advice and consent served an important function: “It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The Federalist No. 76, supra, at 456.

Then the blow was delivered: Read more →

The Full Text of the Schuelke Report on DOJ Misconduct

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Earlier this morning, we posted A Primer On Why Schuelke Report Of DOJ Misconduct Is Important that laid out all the legal and procedural background underlying the Schuelke Report into prosecutorial misconduct in the Ted Stevens criminal case.

The full 500 page report has now been released, and is titled:

Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009

I wanted to get the post framework and document link up so everybody could read along and digest the report together. Consider this a working thread to put thoughts, key quotes – whatever – into as we chew on the report. Then after having been through it, Marcy and I will; later do smaller stories on specific angles raised.

We know the irreducible minimum found:

The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness

You would think the involved attorneys would be ducking and apologizing for their ethical lapses that terminated the career of the powerful chairman of the Appropriations Committee on the US Senate. You would, of course, be wrong.

The mouthpiece for Brenda Morris, Chuck Rosenburg, is already clucking:

Brenda is a woman of tremendous integrity and an exceptionally talented prosecutor—she was fully honest with the investigators and always hoped that one day this report would be made public so that the facts of her individual role would be known.

Um, no, Ms. Morris does not smell like a rose here Chuck. Edward Sullivan, one of the AUSAs had this statement by his lawyer already this morning:

Mr. Sullivan is a diligent attorney, with strong character and integrity, whose conduct comports with the Department’s highest ethical standards. Mr. Sullivan was rightfully exonerated by Mr. Schuelke and the Department’s Office of Professional Responsibility, and his vindication is evidenced by the fact that he continues to prosecute cases in the Criminal Division’s Public Integrity Section

Well, yeah, sure, you betcha Ed Sullivan. I guess that is why as late as yesterday you were personally in the DC Circuit Court of Appeals trying to have the whole matter both stayed and sealed and were arguing you would be harmed if it wasn’t. Today, Edward Sullivan is suddenly a spring flower of purity.

So, yes, all these spring flowers in bloom must be operating off some pretty fertilizer, and the manure is indeed rather deep. So, let us dive in and see what we find. Put your thought, comments and opinions in comment as we work. See you there!

A Primer On Why Schuelke Report Of DOJ Misconduct Is Important

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Yesterday morning, the District of Columbia Court of Appeals entered its per curiam order denying a DOJ prosecutor’s motion for stay of the release of the Schuelke Report on prosecutorial misconduct in the Ted Stevens criminal case. As a result, barring unforeseen Supreme Court intervention, later this morning the full 500 page plus Schuelke Report will be released by Judge Emmet Sullivan of the DC District Court. What follows is a recap of the events leading up to this momentous occasion, as well as an explanation of why it is so important.

The existence of rampant prosecutorial misconduct in the Department of Justice case against Alaska Senator Ted Stevens was crystal clear before the jury convicted him in late October 2008 on seven counts of false statements in relation to an ethics investigation of gifts he received while in office. The trial judge, Emmet Sullivan of the District of Columbia District Court, could well have dismissed the case before it ever went to the jury for verdict but, as federal courts of all varieties are wont to do, he gave the DOJ the benefit of the doubt. It, as is all too often the case these days, proved to be a bridge too far for the ethically challenged DOJ.

Within a week of the ill be gotten verdict obtained by the DOJ in the criminal case, Ted Stevens had lost his reelection bid, after serving in the Senate for 40 years (the longest term in history). Before Stevens was sentenced, an FBI agent by the name of Chad Joy filed a whistleblower affidavit alleging even deeper and additional prosecutorial misconduct, and, based on the totality of the misconduct, Judge Emmet Sullivan, on April 7, 2009, upon request by newly sworn in Attorney General Eric Holder, dismissed with prejudice all charges and convictions against Ted Stevens.

But Emmet Sullivan did not stop with mere dismissal, he set out to leave a mark for the outrageous unethical conduct that had stained his courtroom and the prosecution of a sitting United States Senator:

Judge Emmet G. Sullivan, speaking in a slow and deliberate manner that failed to conceal his anger, said that in 25 years on the bench, he had “never seen mishandling and misconduct like what I have seen” by the Justice Department prosecutors who tried the Stevens case.

Judge Sullivan’s lacerating 14-minute speech, focusing on disclosures that prosecutors had improperly withheld evidence in the case, virtually guaranteed reverberations beyond the morning’s dismissal of the verdict that helped end Mr. Stevens’s Senate career.

The judge, who was named to the Federal District Court here by President Bill Clinton, delivered a broad warning about what he said was a “troubling tendency” he had observed among prosecutors to stretch the boundaries of ethics restrictions and conceal evidence to win cases. He named Henry F. Schuelke 3rd, a prominent Washington lawyer, to investigate six career Justice Department prosecutors, including the chief and deputy chief of the Public Integrity Section, an elite unit charged with dealing with official corruption, to see if they should face criminal charges.

On August 9, 2010, Ted Stevens died in a small plane crash in Alaska, never having seen the results of Henry Schuelke’s special prosecutor investigation into the misconduct during the Stevens criminal case. And lo, all these years later, we finally sit on the cusp of seeing the full Schuelke report in all its gory glory.

On November 21, 2011, Judge Sullivan issued a scathing order in relation to his receipt of Henry Schuelke’s full report, and how it would be reviewed and scheduled for release to the public. Actually, scathing is a bit of an understatement. The order makes clear not only is Schuelke’s report far beyond damning, but Judge Sullivan’s level of anger at the misconduct of the DOJ has Read more →

Obama’s Malign Neglect of Federal Judiciary Redux

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Right about this time last exactly one week ago, in relation to predictions of Ruth Bader Ginsburg’s retirement, I was describing the derelict judicial policy regarding nominations and confirmations that has characterized the White House of Barack Obama since he took office:

One of the other hallmarks of Obama’s Presidency is also, save for his two Supreme nominees Sotomayor and Kagan, dereliction of duty and attention to judicial policy and nominee confirmations. The state of rot and decay ongoing in the liberal federal judiciary is shocking, and Obama literally has abandoned the cause.

The all too predictable response to any such suggestion from the blindered Obama apologybots was “but but but Republican obstruction”. However said predictable refrain from Obamabots and party hacks belies the obvious fact that Republican obstruction has nothing to do with the lack of attention to nominations by Obama. As I said many times, here in June of 2011:

…it is hard for an administration to get a confirmation if it does not make nominations. Take federal judges for instance, for most of the past two years there have been around a hundred vacancies on the Circuit and District courts; Mr. Obama has rarely had nominees for more than half of them. This is simply federal administrative incompetence, and it takes a heavy toll in the hallways and dockets of justice.

Friday Joan Biskupic, in her first major piece at her new perch as head legal editor for Reuters, laid out a scorching case against the feckless and derelict policy by Obama on nominations by focusing on the most important Circuit Court of Appeal, the DC Circuit:

Obama’s failure to put anyone on the 11-judge D.C. Circuit, where three vacancies now exist, reflects both rising partisanship and Obama’s early priorities.
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“That would leave the second most important court in the land without the kind of balance he might have achieved,” Gerhardt added.

Of the eight active judges on the D.C. Circuit, five are appointees of Republican presidents, three of Democratic presidents. Although the court has 11 members, it routinely hears cases in three-judge panels, assigned randomly to cases, as do other federal appeals courts throughout the country.
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Two of the three openings on the D.C. Circuit have existed since Obama took office. Obama nominated Caitlin Halligan, a former New York state solicitor general who is now general counsel for the Manhattan District Attorney’s office, in September 2010.

The DC Circuit is the most important circuit court because it hears the appeals on all the most important cases emanating from the seat of our federal government. If it involves Executive Read more →