Should feds take jail threats seriously?
- By Richard E. Cohen
- Oct 10, 2016
Rarely do top executive branch officials or members of Congress issue an explicit warning to federal employees that they risk criminal prosecution if they follow directions from their department bosses that run contrary to accepted practice.
Republican presidential nominee Donald Trump opened that door in the Oct. 9 debate when he threatened his Democratic rival Hillary Clinton with prosecution and jail time, presumably on charges of mishandling classified information related to her use of a personal email server to conduct government business when she served as secretary of State.
The comments echoed a little-noticed Capitol Hill exchange last month. Sen. Ted Cruz (R-Texas), Trump's onetime rival for the GOP nomination, warned current federal employees that they risked jail time for violating federal statues regarding spending on a proscribed government activity.
The exchange showed that civil servants might increasingly face no-win conflicts that are also intimidating. The rules are murky, and related guidance from the Supreme Court does not provide a clear path for feds who are concerned about adverse legal exposure from conducting what appears to be routine agency business.
Lawrence Strickling, assistant secretary of Commerce for communications and information and administrator of the National Telecommunications and Information Administration, immediately dismissed Cruz's warning.
"Senator, we have followed the law. We have not relinquished our responsibility," Strickland said. "I am outraged that you are accusing us of doing that."
The dispute between Cruz and Strickling centers on a long-running conflict over NTIA's plans to devolve its responsibility for the naming authority of Internet domains to a private international body of stakeholders. At the end of September, despite Cruz's objections, Congress passed a 10-week appropriations bill that continued federal operations and opened the door for that transition.
Ultimately, a federal district court judge in Texas denied a bid by a group of state attorneys general to block the transition, and the naming authority function was transferred when fiscal 2017 opened on Oct. 1.
But that controversy masked a potentially larger dilemma: How should federal employees respond when faced with an apparent conflict between their agency bosses and congressional barons over the interpretation of a law?
Historically, that has mostly been an academic exercise for government bureaucrats. But with the growing polarization of national politics and intensifying showdowns between Congress and the executive branch, such instances have become more frequent.
Consider, for example, two recent actions by House Republicans. In 2012, the House voted to hold then-Attorney General Eric Holder in contempt for failing to comply with a committee subpoena to disclose Justice Department documents related to an alleged gun-running incident in Mexico. This year, conservative lawmakers threatened to impeach IRS Commissioner John Koskinen, in part because of the destruction of computer files.
In those cases, the House challenged political appointees of the Obama administration. But Cruz, who was the runner-up this year for the Republican presidential nomination, warned that civil servants could also be vulnerable if they make the wrong decision. He ominously added that under the next president, the Justice Department could pursue violations that occurred during an earlier administration, even if the statutory requirement had expired.
In the case of the transfer of the Internet Assigned Numbers Authority function, the controversy resulted from a Cruz-backed rider that Congress added to fiscal 2016 appropriations legislation that barred the Commerce Department from transferring that authority.
Strickling argued that NTIA was also required to comply with separate statements that other members of Congress issued in committee reports accompanying legislation, which directed agency officials to prepare for that transition.
In what might seem to be an irreconcilable conflict, congressional experts told FCW that some rules apply.
"If the prohibition is in a statute, employees are on notice that they must comply, even if there is congressional report language in another bill," said Thomas Susman, director of the Governmental Affairs Office at the American Bar Association and a longtime expert on congressional procedures. "But it frequently happens that agencies don't comply with a requirement in a law. Congressional authority is not self-executing.... In that case, an agency employee usually is more responsible to his superior."
Susman recommended that employees seek the advice of their agency's general counsel if they have concerns.
As Cruz emphasized at the hearing, an additional factor might be an arcane law known as the Anti-Deficiency Act. That statute essentially prohibits federal officials from spending money that Congress has not appropriated or has otherwise restricted. Although violations can result in criminal penalties, the measure has rarely been enforced.
"I'm not aware of any individual who has been prosecuted," Susman said. "Even if there is a theoretical violation, it doesn't matter unless a case is taken to court."
Still, high-level government officials ignore legislative mandates at their peril, given the congressional power of the purse. There have been numerous cases in which bullying lawmakers or their top aides spent years seeking revenge against agencies that might have offended them.
Committee report language "is important in that agencies are expected to comply with it if they do not want to face possible retribution from those who supply them with the resources needed to operate," said Scott Lilly, a senior fellow at the Center for American Progress who had extensive experience with issuing directives to federal departments as former staff director of the House Appropriations Committee. "But if the law says that they can't do something that they are instructed in report language to do, then they can't do it."
Federal judges have offered their own advice for such uncertainties, though it has not always been clear-cut. Supreme Court Justice Antonin Scalia, who died in February, was renowned for dismissing the relevance of congressional reports or other statements by lawmakers. Instead, he confined his review of a statute to its specific provisions.
And Scalia sought to construe statutes narrowly. His approach "was rooted in a broader interpretive approach of plain-meaning textualism," wrote Zachary Price, a professor at the University of California Hastings College of the Law, on SCOTUSblog.com. An example was a Scalia opinion in a 2013 ruling: "The power to write a law and the power to interpret it cannot rest in the same hands."
Other justices have been more deferential to Congress. Justice Stephen Breyer relied on his previous experience as a senior aide to the Senate Judiciary Committee to support his view that committee reports "at least inform the legislative intent of Congress," Mark Walsh wrote in SCOTUSblog.
Such disagreements might be a useful topic for a legal symposium. Unfortunately, divining the intentions of lawmakers or judges typically is not a luxury available to hard-pressed federal employees.
Richard E. Cohen, an FCW contributing writer, has covered Capitol Hill for more than three decades and is the author of several books on Congress.