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January 29, 2021

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With the 117th Congress now fully seated, the private sector is set to face greater scrutiny from the Legislative Branch than it has in a decade, as Democrats regain control of both chambers of Congress and the presidency for the first time since 2010. Democrats are assuming unitary control as a number of hot-button issues involving private sector entities are front and center in the public discoursemany of which are drawing bipartisan interestincluding COVID-19 relief spending, climate change, healthcare and prescription drug costs, cybersecurity breaches, and regulation of big technology companies. And, because Democratic committee chairs are likely to spend significantly less time investigating the Executive Branch under a Biden Administration, additional staff resources will be deployed on the private sector, which should expect the spotlight to be even brighter.

Unlike receiving a civil complaint or compulsory process in an Executive Branch investigation, when a congressional letter or subpoena arrives, targeted organizations may have only a matter of days to consider their response and devise a strategy, and often must do so amid significant media scrutiny and public attention. Congressional investigations often involve public attacks on a companys reputation, which can imperil the goodwill upon which the company has built its business and maintains its competitive advantages. It is therefore crucial that potential targets evaluate their exposure to likely investigations in the 117th Congress, familiarize themselves with how such inquiries unfoldincluding the rules and procedures that govern themand consider potential responses.

To assist possible targets and interested parties in assessing their readiness for responding to a potential congressional investigation, Gibson Dunn presents our view of the new landscape that the 117th Congress will present. We also present a brief overview of how congressional investigations are often conducted, Congress underlying legal authorities to investigate, and various defenses that can be raised in response. In addition, we discuss missteps that subjects of investigations sometimes make when receiving an inquiry, and best practices for how to respond.

As expected when Democrats regained control of the House Chamber in 2019 after eight years of GOP control, numerous private sector industries quickly saw a sharp uptick in congressional scrutiny. Moreover, as we explained in a prior client alert, upon assuming control of the House in the last Congress, Democrats expanded the investigative tools at their disposal in a number of ways. These expanded authorities have been carried over to the 117th Congress, and certain others have been added. Committees will organize over the coming weeks, and additional investigative tools could be added to their arsenals.

Expanding investigative powers: In the rules package for the 117th Congress, Democrats have continued the trend of expanding and strengthening their investigative powers. This includes permitting certain committees to issue subpoenas before the committees are formally organized. Specifically, the House has authorized the Chair of the Committee on Oversight and Reform to issue subpoenas related to the investigation into the accuracy and timing of the 2020 census, and the Chair of the re-authorized Select Subcommittee on the Coronavirus Crisis has the power to issue subpoenas related to its investigation into political interference at the Department of Health and Human Services and Centers for Disease Control and Prevention.

In addition to the strengthened subpoena power, Democrats will maintain broad deposition authority. In the prior Congress, Democrats expanded the Houses deposition authority by permitting staff counsel to conduct depositions and removing the requirement that a member be present during the taking of a deposition. As we previously noted, such broad authority makes it more difficult for minority members to affect, influence, or otherwise hinder investigations to which they are opposed. It is also important to remember that, unlike in the Senate, nearly every House committee chair is empowered to issue a deposition subpoena unilaterally, that is, without the ranking members consent or a committee vote, after mere consultation with the ranking member.

Likely investigative priorities: As for investigative priorities, a wide array of topics is likely to be covered by House committees; however, Democrats have signaled that immediate priorities include investigating issues related to climate change and the ongoing coronavirus pandemic response. To that end, in addition to re-authorizing the House Select Subcommittee on the Coronavirus Crisis, the House also re-authorized the Select Committee on the Climate Crisis. The Subcommittee on the Coronavirus Crisis has been actively investigating various aspects of the pandemic since it was established by the CARES Act; it has a full suite of authorities, including subpoena power, pursuant to its organizing resolution. While much of the Subcommittees focus during the last Congress was on the governments pandemic response, we expect more of the Subcommittees attention will turn to private actors that are involved in the response or recipients of relief funds.

The Select Committee on the Climate Crisis was formed to deliver climate policy recommendations to Congress and was given the jurisdiction to study, make findings, and develop recommendations on policies, strategies, and innovations to tackle the climate crisis.[1] The Committee has the power to hold public hearings in connection with any aspect of its investigative functions.[2] The Committee does not have subpoena power of its own, but it can request that other committees issue subpoenas. The Committee has thus far focused on holding climate policy hearings on topics such as clean energy, industrial emissions, and the health impacts of the climate crisis rather than on conducting investigations. However, the Committee may turn its attention towards the private sectors impact on climate change as the Biden Administration makes climate change a focus of its first term.

House Democrats have authorized another new committee, the Select Committee on Economic Disparity and Fairness in Growth. This Committee has been given broad jurisdiction covering economic fairness, access to education, and workforce development.[3] It is possible this Committee will be interested in a range of private sector industries, including consumer-facing financial institutions, student loan lenders, and credit agencies. Like the Climate Crisis Committee, this committee does not have its own subpoena power and must rely on standing committees to issue subpoenas in support of its investigations. This arrangement makes it unlikely that either of these select committees investigations will involve the issuance of subpoenas unless House Democratic leadership tasks this or the Climate Crisis Committee with a contentious investigation and instructs standing committees to back up the investigation with subpoena authority.

While the Democrats focus is likely to shift to the private sector as the Biden Administration begins its term, there will no doubt be a continued desire to investigate former President Trump and the outgoing administration, particularly in light of the violent events at the Capitol on January 6. To that end, the House Democrats new rules package includes explicit language allowing the House to issue subpoenas to the President, and the Vice President, whether current or former, in a personal or official capacity as well as White House and executive office employees.[4] Additionally, private parties with business connections to President Trump or his organization may continue to face scrutiny.

Democrats will steer the Senates investigative agenda during the 117th Congress after ten years of being in the minority. While Senate committees have yet to organize and publish their rules, it is likely that Democrats will spare little time in getting a number of investigations off the ground, particularly those that complement the Biden Administrations first-100-days policy priorities.

Key committees to watch: Two committees to pay particular attention to will be the Senate Finance Committee and the Senate Committee on Banking, Housing and Urban Affairs. Senator Ron Wyden (D-OR) is expected to become Chairman of the Senate Finance Committee. Senator Wyden has a reputation as an aggressive investigator, and his past work has included investigations into international trade issues, the NRA, tax benefit abuse, and other topics. Recently, Senator Wyden, together with Senator Grassley (R-IA), issued a report illuminating the extensive connections among opioid manufacturers, opioid-related products, and tax-exempt entities. Wyden and Grassley also teamed up last Congress on a two-year investigation into insulin pricing. Companies can expect Senator Wyden to continue to pursue investigations into a wide range of consumer protection issues and other topics.

The Senate Committee on Banking, Housing and Urban Affairs is similarly likely to be active. Senator Sherrod Brown (D-OH) is expected to become Chairman of the Committee and likely will conduct aggressive oversight of the banking industry. Senator Elizabeth Warren (D-MA) may become Chairwoman of the Subcommittee on Financial Institutions and Consumer Protection, or even of a newly-created oversight committee. This would give Senator Warren oversight and investigation authority, including the ability to hold hearings and to issue subpoenas. Senator Warren has long been a proponent of broader regulation of financial institutions, including calling for stricter separation between commercial banks and investment banks and for efforts to expand access to lenders for average Americans.

Another committee to watch is the Commerce, Science, and Transportation Committee, which Senator Maria Cantwell (D-WA) is expected to chair. The panel has a wide set of responsibilities, including overseeing the regulation of technology companies and handling transportation infrastructureboth issues that are likely to demand attention in the new Congress. It also sets policy for research agencies including NSF, the National Oceanic and Atmospheric Administration, and the National Institute of Standards and Technology. Senator Cantwell, a former technology industry executive, has a strong interest in research and climate issues, which could influence the panels work, particularly in light of the Biden Administrations stated commitment to advancing climate change legislation. While Senator Cantwell has historically not been an active investigator, we can expect the Committee to be active in its legislative activities, and it may launch investigations that are ancillary to these legislative activities.

One final investigative body of note is the Senate Permanent Subcommittee on Investigations (PSI), which is a subcommittee of the Senate Homeland Security and Government Affairs Committee. PSI has the responsibility of studying and investigating the efficiency and economy of operations relating to all branches of the government and is also tasked with studying and investigating the compliance or noncompliance with rules, regulations, and laws, investigating all aspects of crime and lawlessness within the United States which have an impact upon or affect the national health, welfare, and safety, including syndicated crime, investment fraud schemes, commodity and security fraud, computer fraud, and the use of offshore banking and corporate facilities to carry out criminal objectives. While it is unclear who will chair PSI at this time, we can expect it to be active in its investigations.. When Democrats last controlled the Senate, former Michigan Senator Carl Levin chaired PSI and launched a series of high profile and wide-ranging investigations of the financial sector. Its likely the next Democratic Chair will follow Levins lead and adopt an aggressive posture. Also worth watching is who will fill former Senator Kamala Harriss seat on PSI.

Potential Changes to Subpoena and Deposition Authority: We will also be closely watching whether Senate Democrats strengthen their investigative arsenal, particularly when it comes to subpoena and deposition authority. With respect to subpoenas, currently only the Chair of PSI is authorized to issue a subpoena unilaterally, a significant difference with the House where nearly all committee chairs may do so. Because Senate investigations have historically been more bipartisan than those in the House, there has been a longstanding hesitation on both sides to expand unilateral subpoena power. It remains to be seen if that philosophy will continue to hold sway in the 117th Congress.

It is also important to keep a close watch on Senate deposition authority. In the last Congress, seven Senate bodies had authorization to take depositions: (1) Judiciary, (2) Homeland Security and Governmental Affairs (HSGAC), (3) PSI, (4) Aging, (5) Indian Affairs, (6) Ethics, and (7) Intelligence. Of these, HSGAC, PSI, Judiciary, and Aging can subpoena an individual to appear at a deposition. HSGAC, Judiciary, and Aging rules require concurrence of the ranking member or a Committee vote to authorize the issuance of a subpoena, while the Chair of PSI is empowered to issue a subpoena unilaterally. Moreover, staff is expressly authorized to take depositions in each of these committees except in the Indian Affairs and Intelligence Committees. However, heretofore the Senates view is that Senate Rules do not authorize staff depositions pursuant to subpoena. Hence, Senate committees cannot delegate that authority to themselves through committee rules, absent a Senate resolution or a change in Senate rules. It remains to be seen whether and to what extent Democrats may expand these authorities.

As a practical matter, numerous motivations (not always legitimate) often drive a congressional inquiry, including: advancing a chairs political agenda or public profile, exposing alleged criminal wrongdoing or unethical practices, pressuring a company to take certain actions, and responding to public outcry. Recognizing the presence of these underlying objectives and evaluating the political context surrounding an inquiry can therefore be a key component of developing an effective response strategy.

Congresss power to investigate is broadas broad as its legislative authority. The power of inquiry is inherent in Congresss authority to enact and appropriate under the Constitution.[5] And while Congresss investigatory power is not a limitless power to probe any private affair or to conduct law enforcement investigations, but rather must further a valid legislative purpose,[6] the term legislative purpose is understood broadly to include gathering information not only for the purpose of legislating, but also for overseeing governmental matters and informing the public about the workings of government.[7]

Congressional investigations present a number of unique challenges not found in the familiar arenas of civil litigation and Executive Branch investigations. Unlike the relatively controlled environment of a courtroom, congressional investigations often unfold in a hearing room in front of television cameras and on the front pages of major newspapers and social media feeds.

Congress has many investigatory tools at its disposal, including: (1) requests for information; (2) interviews; (3) depositions; (4) hearings; (5) referrals to the Executive Branch for prosecution; and (6) subpoenas for documents and/or testimony. If these methods fail, Congress can use its contempt power in an effort to punish individuals or entities who refuse to comply with subpoenas. It is imperative that targets be familiar with the powers (and limits) of each of the following tools to best chart an effective response:

As noted above, Congress will usually seek voluntary compliance with its requests for information or testimony as an initial matter. If initial requests for voluntary compliance meet with resistance, however, or if time is of the essence, it may compel disclosure of information or testimony through the issuance of a congressional subpoena.[14] Like Congresss power of inquiry, there is no explicit constitutional provision granting Congress the right to issue subpoenas.[15] But the Supreme Court has recognized that the issuance of subpoenas is a legitimate use by Congress of its power to investigate and its use is protected from judicial interference in some respects by the Speech or Debate Clause.[16] Congressional subpoenas are subject to few legal challenges,[17] and there is virtually no pre-enforcement review of a congressional subpoena in most circumstances.[18]

The authority to issue subpoenas is initially governed by the rules of the House and Senate, which delegate further rulemaking to each committee.[19] While nearly every standing committee in the House and Senate has the authority to issue subpoenas, the specific requirements for issuing a subpoena vary by committee. These rules are still being developed by the committees of the 117th Congress, and can take many forms.[20] For example, several House committees authorize the committee chair to issue a subpoena unilaterally and require only that notice be provided to the ranking member. Others, however, require approval of the chair and ranking member, or, upon the ranking members objection, require approval by a majority of the committee.

Failure to comply with a subpoena can result in contempt of Congress. Although Congress does not frequently resort to its contempt power to enforce its subpoenas, it has three potential avenues for seeking to implement its contempt authority.

While potential defenses to congressional investigations are limited, they are important to understandlikely more so now with Democrats taking control of both chambers. The principal defenses are as follows:

As discussed above, a congressional investigation is required generally to relate to a legislative purpose, and must also fall within the scope of legislative matters assigned to the particular committee at issue. In a challenge based on these defenses, the party subject to the investigation must argue that the inquiry does not have a proper legislative purpose, that the investigation has not been properly authorized, or that a specific line of inquiry is not pertinent to an otherwise proper purpose within the committees jurisdiction. Because courts generally interpret legislative purpose broadly, these challenges can be an uphill battle. Nevertheless, this defense should be considered when a committee is pushing the boundaries of its jurisdiction or pursuing an investigation that arguably lacks any legitimate legislative purpose.

Constitutional defenses under the First and Fifth Amendments may be available in certain circumstances. While few of these challenges are ever litigated, these defenses should be carefully evaluated by the subject of a congressional investigation.

When a First Amendment challenge is invoked, a court must engage in a balancing of competing private and public interests at stake in the particular circumstances shown.[34] The critical element in the balancing test is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness.[35] Though the Supreme Court has never relied on the First Amendment to reverse a criminal conviction for contempt of Congress, it has recognized that the First Amendment may restrict Congress in conducting investigations.[36] Courts have also recognized that the First Amendment constrains judicially compelled production of information in certain circumstances.[37] Accordingly, it would be reasonable to contend that the First Amendment limits congressional subpoenas at least to the same extent.

The Fifth Amendments privilege against self-incrimination is available to witnessesbut not entitieswho appear before Congress.[38] The right generally applies only to testimony, and not to the production of documents,[39] unless those documents satisfy a limited exception for testimonial communications.[40] Congress can circumvent this defense by granting transactional immunity to an individual invoking the Fifth Amendment privilege.[41] This allows a witness to testify without the threat of a subsequent criminal prosecution based on the testimony provided. Supreme Court dicta also suggests the Fourth Amendment can be a valid defense in certain circumstances related to the issuance of congressional subpoenas.[42]

Although committees in the House and Senate have taken the position that they are not required to recognize the attorney-client privilege, in practice the committees generally acknowledge the privilege as a valid protection. Moreover, no court has ruled that the attorney-client privilege does not apply to congressional investigations. Committees often require that claims of privilege be logged as they would in a civil litigation setting. In assessing a claim of privilege, committees balance the harm to the witness of disclosure against legislative need, public policy, and congressional duty. Notably, in 2020, the Supreme Court for the first time acknowledged in dicta that the attorney-client privilege is presumed to apply in congressional investigations. In Trump v. Mazars, the Supreme Court stated that recipients [of congressional subpoenas] have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.[43] It remains to be seen if members and committee staffers will take the same view going forward.

The work product doctrine protects documents prepared in anticipation of litigation. Accordingly, it is not clear whether or in what circumstances the doctrine applies to congressional investigations, as committees may argue that their investigations are not necessarily the type of adversarial proceeding required to satisfy the anticipation of litigation requirement.[44]

Successfully navigating a congressional investigation requires a multifaceted mastery of the facts at issue, careful consideration of collateral political events, and crisis communications.

Here are some of the more common mistakes we have observed:

The consequences of inadequate preparation can be disastrous on numerous fronts. A keen understanding of how congressional investigations differ from traditional litigation and even Executive Branch or state agency investigations is therefore vital to effective preparation. The most successful subjects of investigations are those that both seek advice from experienced counsel and employ multidisciplinary teams with expertise in government affairs, media relations, e-discovery, and the key legal and procedural issues.

* * *

Democratic control of both congressional chambers and the White House is certain to usher in a more perilous landscape over the next two years for a wide array of public-facing industry actors, particularly those intertwined with current policy debates and hot button issues. Gibson Dunn lawyers have extensive experience in both running congressional investigations and defending targets of and witnesses in such investigations. If you or your company become the subject of a congressional inquiry, or if you are concerned that such an inquiry may be imminent, please feel free to contact us for assistance.

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[1] H.R. Res. 6, 116th Cong. 104(f)(2)(B) (2019).

[2] Id.

[3] H.R. Res. 8, 117th Cong. 4(g)(2)(B) (2021).

[4] H.R. Res. 8, 117th Cong. 2(m) (2021).

[5] Barenblatt v. United States, 360 U.S. 178, 187 (1957).

[6] See Wilkinson v. United States, 365 U.S. 399, 408-09 (1961); Watkins v. United States, 354 U.S. 178, 199-201 (1957).

[7] Michael D. Bopp, Gustav W. Eyler, & Scott M. Richardson, Trouble Ahead, Trouble Behind: Executive Branch Enforcement of Congressional Investigations, 25 Corn. J. of Law & Pub. Policy 453, 456 (2015).

[8] Id.

[9] See H.R. Res. 6, 116th Cong. 103(a)(1) (2019).

[10] See The Power to Investigate: Table of Authorities of House and Senate Committees for the 116th Congress, https://www.gibsondunn.com/wp-content/uploads/2019/07/Power-to-Investigate-Table-of-Authorities-House-and-Senate-Committees-116th-Congress-07.2019.pdf. Consistent with past practice, Gibson Dunn will release a client alert outlining the specific subpoena rules for each committee in the 117th Congress as soon as they become available.

[11] See 165 Cong. Rec. H1216 (Jan. 25, 2019) (statement of Rep. McGovern).

[12] Bopp, supra note 7, at 457.

[13] Id. at 456-57.

[14] Id. at 457.

[15] Id.

[16] Eastland v. U.S. Servicemens Fund, 421 U.S. 491, 504-05 (1975).

[17] Bopp, supra note 7, at 458.

[18] Id. at 459. The principal exception to this general rule arises when a congressional subpoena is directed to a custodian of records owned by a third party. In those circumstances, the Speech or Debate Clause does not bar judicial challenges brought by the third party seeking to enjoin the custodian from complying with the subpoena, and courts have reviewed the validity of the subpoena. See, e.g., Trump v. Mazars, 140 S. Ct. 2019 (2020); Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34 (D.D.C. 2018).

[19] Id. at 458.

[20] Gibson Dunn will detail these rules when they are finalized in an upcoming publication.

[21] Bopp, supra note 7, at 460 (citing Anderson v. Dunn, 19 U.S. 204, 228 (1821)).

[22] Id.

[23] Id. at 466.

[24] Id. at 461.

[25] See 2 U.S.C. 192 and 194.

[26] Bopp, supra note 7, at 462.

[27] See 2 U.S.C. 194.

[28] Bopp, supra note 7, at 467.

[29] See 2 U.S.C. 288b(b), 288d.

[30] Bopp, supra note 7, at 465. However, the law on this point is currently unsettled after a panel of the U.S. Court of Appeals for the D.C. Circuit ruled in August of 2020 that the House may not seek civil enforcement of a subpoena absent statutory authority. Committee on the Judiciary of the United States House of Representatives v. McGahn, No. 19-5331 (D.C. Cir. 2020). The ruling is currently being considered en banc.

[31] Id.

[32] See 165 Cong. Rec. H30 (Jan. 3, 2019) (If a Committee determines that one or more of its duly issued subpoenas has not been complied with and that civil enforcement is necessary, the BLAG, pursuant to House Rule II(8)(b), may authorize the House Office of General Counsel to initiate civil litigation on behalf of this Committee to enforce the Committees subpoena(s) in federal district court.) (statement of Rep. McGovern); House Rule II.8(b) (the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters).

[33] See H. Res. 430 (116th Cong.) (a vote of [BLAG] to authorize litigation . . . is the equivalent of a vote of the full House of Representatives); Br. for House Committee at 33, Committee on Ways and Means, United States House of Representatives v. U.S. Dept of the Treasury, No. 1:19-cv-01974 (D.D.C. 2019) (stating BLAG authorized suit by House Ways & Means Committee to obtain President Trumps tax returns pursuant to 26 U.S.C. 6103(f)).

[34] Barenblatt, 360 U.S. 109, 126 (1959).

[35] Id.

[36] See id. at 126-7.

[37] See, e.g., Perry v. Schwarzenegger, 91 F.3d 1147, 1173 (9th Cir. 2009).

[38] See Quinn v. United States, 349 U.S. 155, 163 (1955).

[39] See Fisher v. United States, 425 U.S. 391, 409 (1976).

[40] See United States v. Doe, 465 U.S. 605, 611 (1984).

[41] See 18 U.S.C. 6002; Kastigar v. United States, 406 U.S. 441 (1972).

[42] Watkins, 354 U.S. at 188.

[43] See Trump v. Mazars USA, LLP (591 U.S. ___ (2020)).

[44] See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir. 1997).

The following Gibson Dunn attorneys assisted in preparing this client update: Michael D. Bopp, Thomas G. Hungar, Roscoe Jones Jr., Alexander W. Mooney, Rebecca Rubin and Jillian N. Katterhagen.

Gibson, Dunn & Crutchers lawyers areavailable to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work or the following lawyers in the firms Congressional Investigations group in Washington, D.C.:

Michael D.Bopp Chair, Congressional Investigations Group (+1 202-955-8256, mbopp@gibsondunn.com)Thomas G. Hungar (+1 202-887-3784, thungar@gibsondunn.com)Roscoe Jones, Jr. (+1 202-887-3530, rjones@gibsondunn.com)

2020 Gibson, Dunn & Crutcher LLP

Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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Congressional Investigations in the 117th Congress: Choppy Waters Ahead for the Private Sector? - Gibson Dunn

In July of 2016, Angela Calloway arrived at the Augusta Correctional Center in Craigsville, Virginia, to visit with an inmate, Travis Talbert. She left soon after, having been told to remove her clothes and tampon so prison guards could inspect her vaginal and anal cavities for contraband.

Their search yielded no drugs, and Calloway has not returned to the prison since.

A federal court ruled last week that the guards involved in that invasive search did not violate the Fourth Amendment, simultaneously upholding a lower court ruling that awarded qualified immunity to the government employees. Calloway will thus not be permitted to sue over the incident.

"[T]he standard under the Fourth Amendment for conducting a strip search of a prison visitoran exceedingly personal invasion of privacyis whether prison officials have a reasonable suspicion" to believe such a search is necessary, writes Judge Paul V. Niemeyer of the U.S. Court of Appeals for the Fourth Circuit. In Calloway's case, that included the following: an unidentified inmate said two days prior that Talbert was "moving" contraband; a guard saw Calloway briefly touch her pants; that same guard had twice previously identified contraband smugglers.

After briefly meeting with Talbert in the visitation room, Calloway was removed by the guards and given the news. One officer "indicated that if Calloway did not consent to a strip search, she would not be permitted to come back to the prison," notes Niemeyer. According to Calloway, she was "bawling crying and didn't understand what was going on."

Upon entering the bathroom, Calloway was told to remove her clothes and "lift her arms and breasts, open her mouth, and lean over and shake her hair," which one guard also ran her hands through to check for drugs. The officers had her "squat and cough" to examine her anal and vaginal cavities; Calloway was menstruating, requiring her to remove her tampon, which the guards also inspected.

In order to successfully overcome a qualified immunity defense, plaintiffs must clear two hurdles: They must prove that their constitutional rights were indeed violated by a state actor and that such a violation has been "clearly established" in previous case law. In other words, a court may rule that the defendant unequivocally infringed on someone's civil rights while subsequently taking away a victim's right to sueif the alleged misbehavior has not yet been outlined in a prior decision. Two officers in Fresno, California, for example, were afforded qualified immunity after stealing $225,000, because the U.S. Court of Appeals for the Ninth Circuit could not pinpoint a court precedent saying that it is unconstitutional for cops to steal.

But the Fourth Circuit did not clear Calloway on even the first prong, something that Judge James A. Wynn took issue with in a lengthy dissent.

"[V]iewing the evidence in a light most favorable to Ms. Calloway shows that the officers' lacked justification for initiating the search," he writes.

Such a personally humiliating exercise requires more "individualized, particularized information," he argues. Wynn cites Leverette v. Bell (2001): "'Courts examining the constitutionality of physically intrusive searches have distinguished between strip searches, visual body cavity searches, and manual body cavity searches,'" he quotes. "Unquestionably, the search of Ms. Calloway's bodywhich included a visual inspection of her anal cavity and an order to remove her tampon from her vagina in front of two officers and place her used tampon in an officer's hand for inspectionwas an intrusive search, more like a visual body cavity search than a standard strip search." The same precedent holds that a prison visitor "does not forfeit all privacy rights" when he or she enters.

That addresses the first qualified immunity prong. What about the second?

"The majority wisely does not address the qualified immunity analysis beyond concluding the search was supported by reasonable suspicion," Wynn writes. "But even if the majority were to reach qualified immunity, I believe the right of prison visitors to be free from strip searches absent reasonable suspicion was clearly established at the time of this search." He again cites Leverette, which requires that a visual body cavity search be accompanied by such suspicion.

Calloway brought her claim under the Civil Rights Act of 1871, the landmark law that allows citizens to sue for civil rights violations. It provides (or is supposed to provide) the American public with appropriate recourse when state actors deny them their rights.

But the jurisprudence around the legislation, also known as Section 1983, often does just the opposite. That's particularly relevant with the addition qualified immunityan imaginative doctrine that the Supreme Court concocted out of thin air. Deference goes to the state, not to the victim.

"The question is whetherviewing the evidence in the light most favorable to Ms. Callowaya reasonable jury could conclude the search was not supported by the individualized, particularized information required by the Fourth Amendment," Wynn writes. Unfortunately for Calloway, she will not have the privilege to find out.

Read the rest here:
Prison Guards Who Forced Menstruating Visitor To Expose Vaginal and Anal Cavities Are Protected by Qualified Immunity - Reason

Matt Rourke / AP

This April 26, 2017, file photo shows the Twitter app icon on a mobile phone inPhiladelphia.

By Hillary Davis (contact)

Sunday, Jan. 24, 2021 | 2 a.m.

The Jan. 6 siege on the U.S. Capitol moved Twitter, Facebook, Instagram, even Snapchat and Pinterest, among other social media platforms, to dump former President Donald Trump for fomenting insurrection.

Amazon dropped the Henderson-based, conservative-friendly platform Parler from its web-hosting service after Google and Apple removed it from their app stores for the same. More recently, Twitter temporarily suspended Trump ally Georgia Rep. Marjorie Taylor Greene for promoting unfounded QAnon conspiracy theories.

Condemnation of the bans swiftly followed.

They are not unconstitutional attacks on free speech, says UNLV journalism professor Stephen Bates. Bates, who teaches classes on free speech, censorship, privacy, and media politics, tells the Sun more:

Legally, is deplatforming a violation of free speech rights?

No. The First Amendment protects you against the government. Thats called the state action requirement. A private entity can silence speech for any reason, with a few exceptions. Common carriers, such as the phone company, generally cant kick you off the platform because they dont like your message, but social media and internet providers arent common carriers.

When would deplatforming by a private entity be appropriate? When would it be appropriate by the government?

In court, you have to make legal arguments, but in everyday life, we talk about freedoms that go beyond the Constitution. If my daughter catches me reading her diary, she wont be placated when I tell her that theres no Fourth Amendment violation because Im not a cop.

Just as privacy is bigger than the Fourth Amendment, free speech is bigger than the First Amendment. As a matter of free speech, I think we should be wary of those who want corporations to police speech in this fashion. Sooner or later, the power to silence your enemies is going to get used to silence you.

As for the government, under the First Amendment, it can punish speech for various reasons, including inciting imminent violence. Whether its appropriate will depend on the circumstances.

How likely would a deplatformed plaintiff be to succeed if they sued on free speech grounds after being suspended or kicked off a service?

They would be exceedingly unlikely to win a First Amendment case. Antitrust and contract law are different, and the outcome would depend on the facts.

First Amendment law wont help plaintiffs in such cases. Other areas of law, such as contract, might help.

Could this be a critical entry into First Amendment canon at least the broader conversation, if not actual landmark case law?

Not likely. The state action requirement is bedrock constitutional law.

Link:
UNLV professor on deplatforming Trump and limits of free speech - Las Vegas Sun

Dec. 15 marks a hidden holiday, as uncelebrated as it is unappreciated. It was 229 years ago today that the United States ratified the Bill of Rights, ensuring unprecedented freedom for the people of an emerging nation.

Bill of Rights Day has actually been a national holiday since Nov. 28, 1941 when President Franklin Delano Roosevelt designated Dec. 15 Bill of Rights Day. Roosevelt had big plans, envisioning flag-flying and ceremonies nationwide. Roosevelt observed that Adolph Hitler feared our freedom of speech, press and religion. Unfortunately, the attack on Pearl Harbor on Dec. 7 erased all the ambitious plans to mark the date. Theres no time to celebrate freedom when youre fighting to preserve it.

That was almost 80 years ago, and America continues to take the Bill of Rights for granted. At just 500 words, it packs more than 20 rights into 10 amendments to the U.S. Constitution. Moreover, a promise of a Bill of Rights was the key to getting the Constitution ratified in the first place.

Given that there wont be cake or gifts or greeting cards, the best way to celebrate Bill of Rights Day is simply to reflect on its importance. And depending upon your personal priorities, some liberties may loom larger than others.

The National Rifle Association touts the Second Amendment as Americas first freedom. Thats either bad math or poetic license, but you get the point. If our government took those freedoms away, you might have to wrest those back with the right to bear arms.

Americans with a deep and abiding faith are grateful for the freedom to worship and be free of government interference with their faith.

Those who treasure personal privacy and the sanctity of their homes would be thankful for the Fourth Amendment protection against unreasonable searches and seizures.

Those who have been accused of a crime would welcome the fair trial guarantees contained in the Sixth Amendment.

All of these liberties are critical to the kind of nation we are, founded on freedom and fairness.

I am particularly grateful, though, for the one-two punch of freedom of speech and freedom of the press. Together they protect our free expression and safeguard the entire Bill of Rights.

The preamble to the Constitution set forth the goal of a more perfect union. The phrase was both aspirational and wise. There was no way a fledgling country could get everything right, let alone draw up a blueprint that would guarantee the liberty of every American.

And of course, the Constitution didnt. Slavery was left intact and women were left without a voice or vote. As lofty as Americas ideals were, there were still inequities and injustices to address.

It would take centuries of free speech and press to illuminate and address the needs of this imperfect union. Although critics of the contemporary press - which includes newspapers, radio stations, television stations, websites and every other form of informational media - like to use phrases like fake news, the truth is that the newspapers of 1791 were far more biased than their modern descendants. They were largely political organs full of outrage, exaggeration and lies. Yet it was in that very environment that the American people demanded a free press be a part of the Bill of Rights. They saw it as a check on a new and powerful central government and a protection against abuse of the Constitution and yes, the new Bill of Rights. Journalists who do their jobs well today are fulfilling the mission set forth for them in 1791.

The most impressive thing about the Bill of Rights is that a document written 229 years ago remains so vital, vibrant and essential.

The aggressive journalists empowered by the First Amendment have gone on to monitor and irritate every president from John Adams to Donald Trump. The assembled citizens who spoke out against slavery and demanded universal suffrage have contemporary counterparts demanding racial justice today. Those 10 amendments have served us well.

Of course, when it comes to patriotic holidays, none rival Independence Day. But that holiday recalls a nation just starting out, committing in general terms to a nation founded on liberty.

On December 15th, 1791, the first generation of Americans fulfilled that promise. We could love our country, but also voice our concerns about its actions and priorities. That honest exchange of ideas fueled by freedom of press, speech and assembly can make for dissonance and division in our politics. But it also makes for the strongest and most enduring nation on the face of the earth.

Ken Paulson is the director of the Free Speech Center at Middle Tennessee State University. Learn more about the First Amendment at freespeech.center.

The rest is here:
Ken Paulson guest column: 229 years ago, America became . . . America - The Herald Bulletin

The Department of Homeland Security (DHS) has been at the center of any number of controversies under the Trump administration, leading to arguments over whether the department should be reorganized or even done away with altogether. Over the past six months, in fact, there have been increased calls for the dismantling of the department. But President-elect Bidens selection of former Deputy Director of Homeland Security Alejandro Mayorkas as the next secretary suggests that the Biden administration will not seek to dismantle the department, but will likely instead shift its mission and priorities in a way that recalibrates the departments interactions with the public.

This is a welcome development. With almost two decades behind it and new leadership in the Biden-Harris administration on the horizon, there is a fresh opportunity to conceive of a forward-looking Department of Homeland Security that best serves the nations safety.

The two of us have worked on national security, intelligence and law enforcement issues both before and after 9/11and we do not think DHS is currently fulfilling its stated mission of keeping America safe. We acknowledge the departments shortcomings and recognize the validity of some of the arguments made by those who would like to see it dismantled. But ultimately, we would like to see a future DHS that is retained as an institution but modernized. We agree with Bennie G. Thompson, chairman of the House Committee on Homeland Security, that DHS does not need dismantling, it needs reforming. Indeed, reforming the department may be the only outcome that is politically feasible at this time.

To achieve that objective, legislative and executive reform efforts can be approached under the umbrella of three themes. First, the departments mission should be reoriented from primarily an enforcement approach to a protective approach providing value to the American people. Second, the institution itself should be reformed through new oversight and accountability structures and processes. And third, the departments activities should be rebalanced to focus less on legacy issues and more on current and emerging threats.

As Bidens nominee to lead the department, Mayorkas seems aware of the delicate position he will be in. At the transition teams national security leadership rollout event, Mayorkas commented that the Department of Homeland Security has a noble mission: to help keep us safe and to advance our proud history as a country of welcomerecognizing the work that needs to be done to restore the departments commitment to serving and protecting. The departments activities and public messaging have focused heavily on law enforcement as its primary function, thanks to the Trump administrations emphasis on immigration enforcement and border security as policy priorities. But the department was created to protect, not simply to enforce. The department must reorient itself toward a comprehensive mission of protecting the safety of Americans, as a matter of both policy priority and public relations.

The Biden-Harris administration could go further by explicitly charging DHS with prioritizing the safety issues that most directly threaten Americans today, such as the pandemic. Trumps DHS has been conspicuously absent on the coronavirus responsethough it could have played an important role in coordinating national stockpiles of personal protective equipment and health equipment during the initial phases of the pandemic. This coordination among federal, state and local authorities will be hugely important in the next phase of a vaccine rollout.

As one of us (Cordero) wrote in May, Building public confidence in DHS activities, and enhancing controls within DHS that will improve public confidence, will bolster DHS effectiveness. For DHS to remain a viable entity, it must conduct its activities according to law and constitutional principles, and it must foster public confidence that it is doing so. The Department of Homeland Security Reform Act of 2020 (H.R. 8791), which focuses on enhancing oversight and accountability and was introduced in November 2020 by Thompson, is a good start. With its focus on enhancing oversight and accountability, the bill adds an associate secretary to the leadership team, which will provide needed leadership capacity to oversee the departments substantial law enforcement activities. Given the scope of the departments activities, and the operational nature of them, this third secretary-level position will enhance management and oversight of the department. The legislation also enhances protections for privacy and civil liberties, and expands oversight of law enforcement and acquisitions functions. It includes targeted reforms intended to address particular problems in the department in the Trump era, such as the overreliance on acting officials, the inappropriate politicization of the departments social media accounts and the lack of departmental coordination regarding protection of civil liberties.

The proposed legislation, however, does not yet tackle the overarching mission focus of the department. Refining DHSs mission will be key to focusing the departments capacity where it is most needed: ensuring the safety of Americans in ways that other federal agencies are ill equipped to do. Over its 18-year history, the department has demonstrated that it is capable of doing certain things well, including transportation security, special event security, and election cybersecurity management and coordination. The creation of the Cybersecurity Infrastructure and Security Agency and the agencys coordination of election security activities over the past three years has been a bright spot for the department. The department also has the capacity and expertise to conduct emergency management well, although the performance of the Federal Emergency Management Agency across events has been variable across administrations. A modernized DHS could reorient itself to build on these strengths, by recalibrating its enforcement activities and prioritizing the departments activities that protect Americans and ensure their safety.

In the immediate term, there will need to be a clean sweep of the departments political leadership. But simply replacing departmental leadership through the often laborious process of nominations and confirmationswhich can stretch throughout the first year of a new administrationwill not be enough. Over the next several weeks, the incoming administration and the Senate should work together to vet proposed nominees and chart the course for new department leadership, so that the Senate can promptly vote on confirmations on the afternoon of Jan. 20 or shortly thereafter. Likewise, DHS nominations should be among the priorities for approval by Congress, which should treat nominations for the department as having equal importance as nominations for other national security positions. Given the monumental tasks facing the new secretary, he should have the benefit of an entire leadership team ready to go as soon as possible at the start of the administration.

Moreover, over time, the new administration should consider further professionalizing DHS by removing some of the political appointment slots and filling them with career officials. This could help remedy the partisan divide among Americans views of the department; according to the Pew Research Center, 86 percent of Republicans have a favorable view of the department, while just 60 percent of Democrats do.

Modernizing DHS to better serve the public and protect the country will also require streamlined congressional oversight. Thompson testified before the Rules Committee in October urging that oversight of the department be consolidated on his committee. This recommendation is not newin fact, it is the last major recommendation by the 9/11 Commission that remains unimplemented.

Perhaps the most politically challenging task will be to develop consensus around whether and how immigration processing, adjudication and enforcement fits into the modernized DHS framework. Some observers have argued that immigration processing should be removed from the department. But though reforms are clearly needed, Congress is unlikely to legislatively remove immigration components from the department in the near term. Therefore, DHSs immediate focus should be on reducing the outsized focus on immigration enforcement of the past four years and recalibrating the departments activities according to modern priorities.

In addition, the new administration should make clear that DHS itself will adhere to its mission and not encroach on state and local law enforcement authorities and responsibilities in a manner that is inconsistent with privacy, civil liberties and the protection of First and Fourth Amendment rights. The deployment of department personnel to Portland, Oregon, in particular, raised serious questions about whether DHS officials were conducting law enforcement activities in violation of constitutional rights. To that end, Biden should, as a matter of executive branch policy, restrict the deployment of Border Patrol personnel into the interior of the country for non-border-security-related functions.

A major challenge facing the Biden administration will be leading a workforce, a significant part of which appeared to embrace the Trump agenda of exclusion and anti-immigrant sentiment. The Border Patrol Union, in particular, has contributed to the unfortunate politicization of that workforcenot just through its endorsements of Trump but also through its overtly political public messaging throughout the administration. The departments missions do not require it to be adversarial to the people it serves. The next secretary of homeland security must work to change the departments culture accordingly.

Finally, although DHS was born out of the horror of 9/11, it is no longer clear that counterterrorism and immigration enforcement need to be the departments dominant missions in the future. Instead, Congress and the new administration should evaluate how to keep Americans safe and secure in a world where pandemics, climate change and cybersecurity pose threats to the countrys way of life on a scale that was once the primary domain of terrorism. This will require Congress and DHS to reexamine what the deadliest and most costly threats facing the nation today really areand reprioritize the departments activities accordingly.

Read more:
Modernizing the Department of Homeland Security - Lawfare