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Executive Privilege and Contempt Prosecutions: The Washington Post has a front-page story reporting the Bush Administration's view that once the President has ordered a subordinate to exert executive privilege, a U.S. Attorney can't bring a criminal case against that subordinate when Congress refers the case to the U.S. Attorney for a contempt prosecution. It's not clear to me if "can't" means "won't," or if the claim is that if he does, the courts must dismiss the prosecution; I gather it's the former, although presumably the difference doesn't matter here.

  I have no expertise in this area, so I don't know how significant this story is. My amateurish guess is that this just adds another layer of litigation to the coming legal battles: it means that after the U.S. Attorney refuses to prosecute, Congress has to file a civil action seeking an order compelling the U.S. Attorney to refer the case to the grand jury. Courts then have to deal with that issue first, which could take a while as it works its way through the appellate process. That's my guess, at least; I'm sure Marty Lederman and others will be able to say much more.
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May Congress Order the Justice Department To Prosecute People Who the Justice Department Firmly Believes are Innocent?

I'm not a separation-of-powers maven, but my sense is that the Reagan Administration — and, more recently, the current Administration — have been right to say no. The issue has of course come up in the executive privilege context:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege....

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege....

The Justice Department is apparently relying on the reasoning given in this Reagan Justice Department Office of Legal Counsel memo; and my sense is that the memo is generally quite correct.

1. Recall that all this is happening because of the existence of the executive privilege — the executive branch's qualified (which is to say not absolute) right to refuse to allow testimony about confidential communications within the branch. The scope of the privilege is complex, as are the circumstances in which it can be overcome. But this is the privilege that the administration is asserting (as best I can tell at least plausibly) to block testimony and production of documents by chief of staff Joshua Bolten and former White House counsel Harriet Miers. The official view of the Justice Department (whether one thinks it right or wrong) is that the matter is covered by the executive privilege, and that Congress therefore lacks constitutional power to order the testimony and production of documents by the witnesses.

2. Now at this point, one way Congress can enforce its subpoenas is by prosecuting the witnesses in federal court for the crime of contempt of Congress (which, despite its name, in this case simply means refusal to testify when ordered to do so). But since federal prosecutions are generally initiated by the executive branch, Congress would have to get a federal prosecutor to get an indictment from a grand jury and then proceed with the prosecution. And there is a federal statute under which Congress claims the power to order prosecutors to do so.

The trouble is that this means (a) stripping the executive branch of its traditional "prosecutorial discretion," which is to say the discretion to decide whether to charge any particular potential defendant, and (b) ordering the executive branch to prosecute someone who, according to the executive branch's official view, is innocent. The executive branch's position is that Bolten and Miers have a good defense to the subpoena, much as a private lawyer ordered to testify about confidential conversations with his client would have a good defense — privilege. They are therefore not guilty of the crime of contempt of Congress.

It seems to me that action (a) is indeed a violation of the separation of powers, because it is placing in Congress's hands — rather than in the executive's — the quintessentially executive decision whether a federal prosecutor would prosecute someone in federal court. Even Morrison v. Olson, which upheld a special statute authorizing a special prosecutor who would be outside the President's authority, does not, it seems to me, go that far; among other things, it does not allow the legislature to mandate a prosecution. And action (b) is likewise solidly against our constitutional traditions, even accepting the propriety of independent prosecutors: When an independent prosecutor is prosecuting someone, I take it he believes (as prosecutors generally should believe) that there is at least probable cause to think that the target is guilty. Here the statute involves Congress ordering the Justice Department to prosecute someone who is, according to the officially decided view of that very same Justice Department, clearly innocent.

3. This having been said, firmly insisting on denying Congress any power to initiate prosecutions of people who resist its commands — commands that Congress wants to argue are lawful — would indeed make it much harder for Congress to make its commands stick. Impeachment, whether of the President or of subordinates, would still be an option, but there are many problems with it. As it happens, though, the law has long recognized two tools that Congress has here, one of which is a deep but narrow exception to the normal principles of separation of powers. Marty Lederman (Balkinization) (who I think likely disagrees with me on parts of what I say above) points to them. "Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena." And

Congress can itself prosecute the contumacious official(s) to coerce them to comply — a power that the Supreme Court has affirmed. See Jurney v. MacCracken, 294 U.S. 125 (1935); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); see also Groppi v. Leslie, 404 U.S. 496, 499 (1972). As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts — a "limited power of self-defense" for Congress, permissible because "any other course 'leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it'" (quoting Anderson).

How would such self-help work? Well, believe it or not, the Sergeant-at-Arms of the Senate or House would personally arrest the officials and detain them in the Capitol jail or guardhouse (assuming such a facility still exists). (One of my students last semester noticed this gem on the website of the current Senate Sergeant-at-Arms, Terrance Gainer: "The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States." We wondered in class: What could possibly have motivated Mr. Gainer or his staff to post that provocation?) The person would then be tried by the legislative house and, if found guilty (of civil contempt), could be detained until compliance with the subpoena or until the session of Congress ends, Anderson, 19 U.S. at 231, whichever comes first.

Congress has not invoked this authority since 1935 and, as far as I know, has never used it against a current or former government official. (The closest case was probably the contempt at issue in McGrain v. Daugherty, 273 U.S. 135 (1927), which was imposed against Mally Daugherty, a bank president and the brother of resigned and disgraced Attorney General Harry Daugherty, who Congress was investigating in connection with the Teapot Dome scandal.)

This latter approach is something that was a shocker to me when I first learned about it; after all, here Congress would not only order a prosecution, but could actually try and punish the person, though subject to certain limits. This is a deeper departure from the separation of powers than simply ordering the Justice Department to prosecute — in front of a normal judge and jury — would be.

Nonetheless, it is a departure that is sanctioned by longstanding legal doctrines, and (relatedly) by our constitutional history. It may be less pernicious in certain ways, because at least it is a departure that does not force a prosecuting office to prosecute someone who they think is innocent. But more importantly, it seems like the legally authorized approach — the use of a traditional and narrow departure from standard constitutional norms, and not a new departure.

4. My tentative view, then, is that when the Justice Department takes the view that a witness is properly claiming executive privilege, it should not prosecute the witness for contempt of Congress, and any attempts by Congress to force it into such a prosecution are unconstitutional. Congress retains tools to vindicate its interests. It's just that the tool of forcing the Justice Department to prosecute is not a permissible one.

Related Posts (on one page):

  1. May Congress Order the Justice Department To Prosecute People Who the Justice Department Firmly Believes are Innocent?
  2. Executive Privilege and Contempt Prosecutions:
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