Balkinization: Chaos at the DOJ

Comments:

I thought I heard that the DoJ could recommend, that the Congress should seek their advice. But I have also heard that certain types of immunity have to be okayed by a local judge. Someone had up a blog post covering the different forms of immunity and what the usual process would be. Isn't is also possible that the Congress can do whatever they want? If they can impeach, that includes the ability to demand testimony.

# posted by

rmadilo : 7:25 PM

nolo here --

18 USC § 6005 is the operative
immunity statute here:

now, mr. gonzales may seek an order
from the DC district court,
deferring, for no more than
twenty days, the testimony
of ms. monica goodling, as is his right,
under 18 USC § 6005(c). . . but to do so,
he must assert one of the enumerated bases
therefor. . . . all of those would be
political kryptonite, to him, and
more importantly, to the white house.

so i think he'll have to cave, and let her
take the immunity, and testify - that's
the interplay of the 5th amendment and
the federal scheme of immunity.

so -- DoJ won't be able to
stop the conyers immunity deal,
and subsequent testimony of
ms. monica goodling. that is
my opinion. i set some more
detail out, on this, over at
my own blog -- click my name.

# posted by

condor : 10:42 PM

Nolo beat me to it. DOJ can't prohibit immunity when it's offered by a congressional committee. Nor can a district court judge: 18 U.S.C. 6005 requires that a judge "shall issue" the immunity order if Congress follows the proper procedures in voting for one.

I discuss all of this in detail - and explain why it's unconstitutional - in an article available on SSRN.

# posted by

Hanah : 10:58 PM

This is very helpful. So is the consensus that the Post article is simply wrong and that the DOJ is powerless to stop the grant of immunity?

# posted by

Sandy Levinson : 11:55 PM

Hanah:

I discuss all of this in detail - and explain why it's unconstitutional - in an article available on SSRN.

Only the freedom from self-incrimination is Constitutional. Anything else is the creation of legislation. The "immunity" deals are a governmental response to the conflicting constraints of the freedom from self-incrimination, and the desire of courts and/or Congress for obtaining information (in this case, through compelled testimony). It is up to the co-ordinate branches to decide how to get what they think they need to get done done, by providing frameworks and procedures whereby they can get the testomony they want without impinging on the Fifth Amendment's guarantees to all. The Constitution is silent on whose "needs" are first and foremost as to when and whether testimony can or shuld be compelled.

[from Hanah Volokh's article]: "I argue that the congressional immunity statute violates separation of powers doctrine. The statute unconstitutionally allows a committee of Congress to dictate prosecutorial decisions to the executive branch and to make changes to legal rights and duties without using the legislative process laid out in the Constitution. The decision whether or not to prosecute and the decision of which evidence should be used in pursuing a conviction are matters within executive branch control. Congress can make binding decisions in these areas only by statute."

Congress can remove entirely the power of the executive to offer immunity if they wish (they may choose a different solution to the competing 'needs' and rights conundrum, or they may abstain completely and just let the judiciary sort it out WRT any convictions based on compelled testimony using only Fifth Amendment law). Or they can specify the conditions under which it is granted, including "only on Thursdays in months with 'R's in them". If they choose to grant immunity themselves under rules and conditions they provide, it hardly takes away any Constitutional prerogative of the executive.

Cheers,

# posted by

Arne Langsetmo : 1:53 AM

Arne:

It's true that immunity as it's currently practiced is a creature of legislation. But Congress can't just pass any statute it can dream up. My argument is that the statute allowing congressional committees to grant immunity (18 USC 6005) is unconstitutional under existing and widely-recognized separation of powers doctrine. Chadha says that Congress cannot delegate lawmaking power to one of its committees, and Bowsher says that a congressional agent cannot have a hand in executing the laws. Whether an immunity grant for an individual is characterized as a legislative or an executive act, it violates one of those precedents.

It's an interesting question whether it would be constitutional for Congress to pass a statute prohibiting the executive branch from granting immunity. That kind of statute would be different from one actually requiring the executive to prosecute. (The latter kind do exist, and raise interesting constitutional questions of their own.) My argument in my paper is that the ability to grant immunity is rooted in the executive branch's prosecutorial discretion, which lets prosecutors choose how to allocate their resources and go about their jobs. They can decide not to prosecute for a number of reasons - lack of time, lack of evidence, belief that the crime is not all that serious and resources should be invested elsewhere, or (in the case of immunity) the hope that by not prosecuting this guy they'll have a better chance at convicting another guy.

It is this discretion that can be upset by a congressional immunity grant. The attorney general decides to go ahead with a prosecution, a congressional committee calls the potential defendant as a witness and grants immunity, and suddenly the prosecution is impossible. In my view, that's an unconstitutional interference with executive branch prerogatives.

# posted by

Hanah : 7:53 AM

Professor Levinson: My understanding is that Congress is legally powerless to stop the committee's immunity grant. But of course they always have political bargaining tools they can use to try to prevent the committee from issuing the grant / calling her to testify under compulsion. Actually, my first thought upon hearing that DOJ had started investigating for a possible prosecution of Monica Goodling was that this was a ploy to keep Congress from compelling her testimony after all -- it's a lot more difficult for the committee to politically justify interfering with an ongoing criminal probe than simply the possibility that DOJ might prosecute one of its own. And once the whole thing blows over, DOJ can drop the prosecution on the belief that nothing illegal happened.

# posted by

Hanah : 8:02 AM

Hanah:

Thanks for your response to my admittedly less-than-well-researched blatherings. I look forward to reading your article when the full article is available.

It's true that immunity as it's currently practiced is a creature of legislation.

Yes.

... But Congress can't just pass any statute it can dream up....

Quite true, but the only real limitations are constitutional.

... My argument is that the statute allowing congressional committees to grant immunity (18 USC 6005) is unconstitutional under existing and widely-recognized separation of powers doctrine.

I noted that aspect of your argument, and brought up my absurd hypothetical to counter it. Your claim seems to be that something that is not done by the entirety of the legislature, passed by both houses, and signed by the president cannot have legal effect. I disagree (mostly because we have various different actions that Congress can take that don't follow this form, from confirmation of officers and ambassadors to setting their own rules, which are nonetheless legal). Of note is the fact that while the Senate must give "advise and consent" to presidential appointments, the nature of this "advice and consent" is not specified; the Senate may establish its own "rules" for the requisite "consent" (e.g., the "pink slips"). In addition, the legislature has, usually without issue, delegated or authorised, depending how you look at it) rule-making to the executive, which "rules" (e.g. CFR) have the force of law, yet are not passed in such a manner, and are in fact much less "democratically passed" than a majority vote of a congressional committee. As long as the enabling legislation is there, what is the problem with letting it say that the committee may vote by majority vote to decide exactly who should be issued subpoenas? It may even be permissible to say that individual Congress members should have such privilege just like they have staff cars.

... Chadha says that Congress cannot delegate lawmaking power to one of its committees, ...

See above. Issuing a subpoena is not a "lawmaking power". In fact, less so than issuing regulations with the force of law and sufficient to be authoritative enough to cite in legal briefs.

... and Bowsher says that a congressional agent cannot have a hand in executing the laws....

The question is how direct a hand. In Bowsher v. Synar, the fact that the Comptroller General would specify which programs to cut (or fund) and not the president seems to have been crucial. But in issuing subpoenas, Congress doesn't decide who to prosecute and who not to prosecute. Prosecutions are still available in all cases; the only restriction is that no person's forced testimony may be used against them in a criminal proceeding, but that is a Constitutional restriction.

... Whether an immunity grant for an individual is characterized as a legislative or an executive act, it violates one of those precedents.

It's an interesting question whether it would be constitutional for Congress to pass a statute prohibiting the executive branch from granting immunity.

I don't see why they couldn't. What they give, they may take away.

That kind of statute would be different from one actually requiring the executive to prosecute....

Quite true, but perhaps not as you think. As I pointed out, the decision to prosecute is independent of the decision to compel testimony (the North case notwithstanding; there they screwed the process up).

... (The latter kind do exist, and raise interesting constitutional questions of their own.) My argument in my paper is that the ability to grant immunity is rooted in the executive branch's prosecutorial discretion, ...

No. It is rooted in the legislation that allows compelled testimony.

... which lets prosecutors choose how to allocate their resources and go about their jobs....

No. Because agencies and Congress may both compel testimony in "go[ing] about their jobs". You're right, there is a conflict when it's Congress doing the asking. But the conflict is because Congress's job is different. But that hardly means the executive wins, particularly when Congress could prohibit all compelled testimony as even you acknowledge.

... They can decide not to prosecute for a number of reasons - lack of time, lack of evidence, belief that the crime is not all that serious and resources should be invested elsewhere, or (in the case of immunity) the hope that by not prosecuting this guy they'll have a better chance at convicting another guy.

True. But Congress doesn't prevent that.

Cheers,

It is this discretion that can be upset by a congressional immunity grant. The attorney general decides to go ahead with a prosecution, a congressional committee calls the potential defendant as a witness and grants immunity, and suddenly the prosecution is impossible. In my view, that's an unconstitutional interference with executive branch prerogatives.

# posted by

Arne Langsetmo : 9:21 AM

L.S.,

It is strange that the US Constitution that, if you don't mind my saying so, generally breathes an air of distrust, does not provide for this eventuality. Obviously in the Watergate-era, this already came up, when Nixon tried, and ultimately succeeded, to fire the special investigator. (Thank you Bork! And, BTW, is it just me or could the AG have simply told the president to take a hike. I don't see why, as a matter of law, he had to resign.)

Obviously, the US constitution provides for impeachment of the president, but not of any inferior officer. More importantly, it does not provide for an independent investigator. (Just as an example, my national (Dutch) constitution, which dates from 1814, establishes the function of procureur-général at the Supreme Court, who is appointed for life, and whose job it is to prosecute cabinet members for crimes in office.)

French Constitution (1958):

"Art. 68-1. - Les membres du gouvernement sont pénalement responsables des actes accomplis dans l'exercice de leurs fonctions et qualifiés crimes ou délits au moment où ils ont été commis.

Ils sont jugés par la Cour de justice de la République.

La Cour de justice de la République est liée par la définition des crimes et délits ainsi que par la détermination des peines telles qu'elles résultent de la loi.

Art. 68-2. - La Cour de justice de la République comprend quinze juges : douze parlementaires élus, en leur sein et en nombre égal, par l'Assemblée Nationale et par le Sénat après chaque renouvellement général ou partiel de ces assemblées et trois magistrats du siège à la Cour de cassation, dont l'un préside la Cour de justice de la République.

Toute personne qui se prétend lésée par un crime ou un délit commis par un membre du gouvernement dans l'exercice de ses fonctions peut porter plainte auprès d'une commission des requêtes.

Cette commission ordonne soit le classement de la procédure, soit sa transmission au procureur général près la Cour de cassation aux fins de saisine de la Cour de justice de la République.

Le procureur général près la Cour de cassation peut aussi saisir d'office la Cour de justice de la République sur avis conforme de la commission des requêtes.

Une loi organique détermine les conditions d'application du présent article."

# posted by

martinned : 9:50 AM

While we are on the subject, if a president pardons someone, can they no longer refuse to testify about a subject using their constitutional right?

If they testify, can they be prosecuted for perjury if not truthful?

# posted by

rmadilo : 10:30 AM

L.S.,

I'm thinking you can't pardon someone until after they've been convicted. And after you've been convicted, you can't plead the fifth anymore, because testifying would not make you "a witness against yourself". Whether this person then gets pardonned is irrelevant.

# posted by

martinned : 11:27 AM

Obviously, the US constitution provides for impeachment of the president, but not of any inferior officer.

Article II, Sec. 4 provides for the impeachment of the President, Vice President, and all civil officers of the United States.

if a president pardons someone, can they no longer refuse to testify about a subject using their constitutional right?

You can only assert the 5th A if there is a risk that the testimony will be used against you. Essentially, if you cannot be charged with a crime, then you must testify.

If they testify, can they be prosecuted for perjury if not truthful?

Yes.

# posted by

Mark Field : 11:32 AM

L.S.,

My mistake, sorry, others than the president can also be impeached. What about civil liability? If testifying truthfully exposes you to civil liability, but not criminal, can you plead the fifth?

# posted by

martinned : 12:22 PM

This comment has been removed by the author.

# posted by

PMS_CC : 1:16 PM

Toute personne qui se prétend lésée par un crime ou un délit commis par un membre du gouvernement dans l'exercice de ses fonctions peut porter plainte auprès d'une commission des requêtes.

A bit off topic, but how often (and under what conditions) are such complaints raised by private French citizens?

# posted by

PMS_CC : 1:18 PM

If testifying truthfully exposes you to civil liability, but not criminal, can you plead the fifth?

No.

# posted by

Mark Field : 1:31 PM

My mistake, sorry, others than the president can also be impeached. What about civil liability? If testifying truthfully exposes you to civil liability, but not criminal, can you plead the fifth?

No. Fear of civil liability is not a valid basis for refusing to testify under the Fifth Amendment, which provides that "nor shall be compelled in any criminal case to be a witness against himself. (Note, however, that one can invoke the Fifth even in civil proceedings if the testimony might lead to criminal prosecution.)

May I also say, I'm glad to see at least over here that this nonsense about DOJ having "approval" power over a Congressional grant of immunity has been thoroughly debunked. The press has thoroughly failed to understand the statute.

# posted by

Anonymous : 1:37 PM

martinned:

My mistake, sorry, others than the president can also be impeached. What about civil liability? If testifying truthfully exposes you to civil liability, but not criminal, can you plead the fifth?

Nope. In fact, that's pretty much what discovery is all about; asking your opponent to come clean under oath. No privilege from discovery other than the Federal Rules of Evidence (FRE) and Federal Rules of Civil Procedure (FRCP) provide WRT irrelevant and abusive discovery.

I think the idea is that civil disputes are best handled by achieving the most "truth" and openness possible.

And the Fifth Amendment is only a right against self-incrimination, not self-destruction.

Which is why you see a lot of people lie in civil suits, despite the perjury statutes; they have to answer, and if the answer will hurt their case, some folks just make stuff up... The general response to he case where people offer mutually incompatible accounts in discovery and at trial as to crucial events is to let the jury decide who's more believable, and to let the "liar" be punished by losing their case.

Cheers,

Cheers,

# posted by

Arne Langsetmo : 2:17 PM

L.S.,

That is strange...
Until a few years ago, over here it was illegal for a party to testify in a civil suit, because they assumed the risk of them lying was too great. Now, because of a Strasbourg ruling, parties can testify, but there is still an express provision in the Code of Civil Procedure that allows/requires the judge to ignore their testimony unless it is corroborated by other evidence. The notion that someone could be compelled to testify in a civil case seems quite strange to me...

(Yet another example of how different legal systems can be more different than we sometimes realise.)

In response to another question: I don't know about France, but at least here in the Netherlands a trial for crimes in office (which would be before the supreme court) has never happened. Off the top of my head, I can't think of a single example in France, either. (NB, the French constitution only dates back to 1958.)

Thanks for the replies.

# posted by

martinned : 7:40 AM

martinned:

That is strange...
Until a few years ago, over here it was illegal for a party to testify in a civil suit, because they assumed the risk of them lying was too great. Now, because of a Strasbourg ruling, parties can testify, but there is still an express provision in the Code of Civil Procedure that allows/requires the judge to ignore their testimony unless it is corroborated by other evidence. The notion that someone could be compelled to testify in a civil case seems quite strange to me...

I've commented previously on our notion that even most documentary evidence cannot be introduced unless "authenticated" by some witness (see, e.g. FRE 901 et seq.). The testimony of humans is the sine qua non in U.S. courts, despite the fact that science has shown them to be less and less reliable and perceptive, and more and more dishonest, over the years.

Cheers,

# posted by

Arne Langsetmo : 8:13 AM

L.S.,

Maybe I should have clarified that. Basically, any evidence is admissible in Dutch courts, and certainly in civil cases, because there are no juries, ever. (I.e. not even in criminal cases.) The rules of civil procedure leave the judge with quite a bit of latitude when it comes to deciding "on the balance of probability" what actually happened, although obviously, unlike juries, judges have to explain in their rulings why they ruled the way they did.

(Put formally, art. 152 of the Code of Civil Procedure states that proof can be provided by any means, except as otherwise provided, and par. 2 states that the judge alone decides on the merits of the evidence provided, again except as otherwise provided. One of those exceptions is the rule about party testimony in art. 164.)

Actually, now that I have the Code of Civil Procedure here, I see that one can be compelled to testify in a civil trial (art 165(1)), but you can plead the 5th not only if you'd end up incriminating yourself, but also if you'd end up incriminating a relative, a spouse or an ex-spouse. (par. 3)

Thus endeth the lesson.

# posted by

martinned : 10:29 AM

martinned:

[B]ut you can plead the 5th not only if you'd end up incriminating yourself, but also if you'd end up incriminating a relative, a spouse or an ex-spouse. (par. 3)

Most states (AFAIK) have some kind of spousal privilege here as well (but this privilege is not constitutional but pragmatic). What's covered (ex-spouses, etc) varies by state.

Cheers,

# posted by

Arne Langsetmo : 10:49 AM