Balkinization  

Tuesday, July 24, 2007

Everything You Always Wanted to Know About Contempt of Congress . . .

Marty Lederman

Just in time for the House's move toward contempt of Congress proceedings, the invaluable Congressional Research Service today issued a report entitled "Congress’s Contempt Power: Law, History, Practice, and Procedure."

I can't say I can vouch for, or that I would necessarily agree with, every single proposition in it (I must confess that I haven't had time to read the whole thing yet), but from what I have seen, it is characteristically comprehensive, careful, balanced and informative. See especially the sections on inherent contempt (beginning on page 12); DOJ's argument that inherent and criminal contempt are unconstitutional where the President has asserted executive privilege (page 27); and what the Report refers to as "Civil Contempt," or, more precisely, civil actions filed by Houses of Congress to enforce subpoenas (pp. 33-46).

Kudos to the Report's principal authors, Morton Rosenberg and Todd Tatelman, for a great and timely public service.

Comments:

The CRS brief dedicated to DOJ's position is interesting in the way Congress' attorneys avoid addressing the assertion of DOJ that Congress has no constitutional or statutory authority to exercise its contempt powers against executive branch officials for declining to provide evidence which falls under Executive Privilege.

Instead of addressing the issue about whether Congress has the power in the first instance to punish executive branch officials with contempt for declining to provide evidence which falls under Executive Privilege, Congress attorneys assume that Congress has such a power and question whether the President may immunize or pardon such officials subject to congressional contempt proceedings.

Congress would be acting unconstitutionally by demanding that executive branch officials provide evidence which in fact falls under executive privilege. Thus, it follows that Congress would again be acting unconstitutionally by punishing such officials for not providing evidence to which Congress has no right in the first instance.

The following section on bringing civil contempt actions in the courts sets forth the proper course for resolving whether the requested evidence is or is not privileged rather than these ham handed threats of Congress to deputize the Executive in the person of the AG, a US Attorney or even a special prosecutor to harass the President in lieu of bringing a civil court case.
 

The maximum penalty for being caught lying to Congress is five years in prison and a fine of $250,000 per count. Specter wryly noted to reporters during a break that there is a jail in the Capitol complex. - Time 7/25/2007

Bart is under the mistaken assumption that Herr Busch is the sole "decider" on the scope and application of executive privilege. He is sorely mistaken.

When Congress reconvenes we will be much closer to the 9/13/07 term expiration of the USA in DC. The new one will have to be confirmed by Congress.

Interestingly, the absence of an acting USA to serve contempt citations may be the perfect cover for an exercise of inherent contempt.

In the meantime, Herr Busch can squirm for a month while he plays cowboy in Crawford.

Looking back, I'm proud of what a Democratic Congress has been able to accomplish in 7 months. Hearings, contempt citations, AG on the ropes... war votes highlighting obstructionists...

The Dems are playing this just right. They've got the heat cranked and the balls in the "decider's" court.

the wheels of justice grind slowly, but exceedingly fine. - ?
 

"Bart DePalma loves to assume his conclusions:

The CRS brief dedicated to DOJ's position is interesting in the way Congress' attorneys avoid addressing the assertion of DOJ that Congress has no constitutional or statutory authority to exercise its contempt powers against executive branch officials for declining to provide evidence which falls under Executive Privilege.

Huh?!?!? The threshold question is as to what extent "executive privilege" exists, if any.

For the executive to simply assert it is not sufficient for it to exist.

Cheers,
 

Garth said...

Bart is under the mistaken assumption that Herr Busch is the sole "decider" on the scope and application of executive privilege. He is sorely mistaken.

What part of my post that the proper route for Congress is to file a civil contempt suit with the courts and allow the courts to decide what is privileged did you not understand?

The President can exercise his privilege, but neither he or Congress gets the final word.

Looking back, I'm proud of what a Democratic Congress has been able to accomplish in 7 months. Hearings, contempt citations, AG on the ropes... war votes highlighting obstructionists...

That is what you call accomplishment?

Amazing. Utterly amazing.

I guess you are among the 14% who think that the Dem Congress is doing a good job.
 

arne:

Until a court says otherwise, it is sufficient for the President to exercise the privilege.

Congress does not have the power to make that determination.

In any case, Congress cannot make that determination without having access to the evidence. Given that the privilege is being exercised against Congress, they cannot have access to the documents to make the determination without rendering the privilege a nullity.

This is a matter for the courts to determine.
 

that is only one approach.

and i suspect the democrats leading these investigations have much higher approval ratings.

in time you will see Congress's approval ratings start to go up despite Republican obstructionists and Joe Lieberman.

Q: What's W's opinion of Roe v. Wade?

A: He doesn't care how they get out of New Orleans.
 

I guess you are among the 14% who think that the Dem Congress is doing a good job.

# posted by Bart DePalma : 2:50 PM


It's better than being with the clowns who think the idiotic invasion of Iraq was a good idea.
 

the wheels of justice grind slowly, but exceedingly fine. - ?

"Though the mills of God grind slowly, yet they grind exceeding small." Friedrich von Logau.
 

"Bart" DePalma:

Instead of addressing the issue about whether Congress has the power in the first instance to punish executive branch officials with contempt for declining to provide evidence which falls under Executive Privilege, Congress attorneys assume that Congress has such a power and question whether the President may immunize or pardon such officials subject to congressional contempt proceedings.

Not true. See the report, pages CRS-27 et seq.. See, in particular, CRS-32 as well.

Cheers,
 

"Bart" DePalma:

What part of my post that the proper route for Congress is to file a civil contempt suit with the courts and allow the courts to decide what is privileged did you not understand?

As the paper pointed out, there's three routes available, inherent contempt, statutory criminal contempt, and civil contempt. You may prefer that Congress use the third, but that is their decision to make, and nothign compels them to go this route.

Cheers,
 

"Bart" DePalma:

Until a court says otherwise, it is sufficient for the President to exercise the privilege.

Unless a court says otherwise, it is "sufficient" for Dubya to clap his hands together and bark like a seal too. But it is of no legal effect.

The time for the assertion of executive privilege is when the question is asked. There is not blanket "executive privilege" that says that a witness may not be compelled to testify, period (see, e.g., U.S. v. Nixon). Executive privilege is (properly) limited to certain information and under certan circumstances, and until they occur, the privilege may not be invoked. As the document points out, objections to questions should be made at the time of questioning, and then Congress should rule on the objection (or in the case of a referral for criminal contempt, the defence should be raised in the criminal contempt trial and ruled on by a judge).

Cheers,
 

"Bart" DePama:

In any case, Congress cannot make that determination without having access to the evidence.

Says who? (in particular, in the case of an inherent contempt proceeding).

Cheers,
 

"Bart" DePalma is a Joseph Heller aficionado:

Given that the privilege is being exercised against Congress, they cannot have access to the documents to make the determination without rendering the privilege a nullity....

Strangely enough, I think the courts are more rational (and more practical), and figgered out how to deal with this conundrum (in the U.S. v. Nixon case).

Cheers,
 

Arne Langsetmo said...

BD: Instead of addressing the issue about whether Congress has the power in the first instance to punish executive branch officials with contempt for declining to provide evidence which falls under Executive Privilege, Congress attorneys assume that Congress has such a power and question whether the President may immunize or pardon such officials subject to congressional contempt proceedings.

Not true. See the report, pages CRS-27 et seq.. See, in particular, CRS-32 as well.


Simply summarizing the OLC position is not providing CRS' own opinion to Congress. CRS' commentary on the OLC opinions is offered on pages 30 and 31, which I accurately describe above.

The time for the assertion of executive privilege is when the question is asked. There is not blanket "executive privilege" that says that a witness may not be compelled to testify, period (see, e.g., U.S. v. Nixon). Executive privilege is (properly) limited to certain information and under certan circumstances, and until they occur, the privilege may not be invoked. As the document points out, objections to questions should be made at the time of questioning, and then Congress should rule on the objection (or in the case of a referral for criminal contempt, the defence should be raised in the criminal contempt trial and ruled on by a judge).

Executive privilege is derived from the Constitution. Congress has no power to interpret the extent of that constitutional privilege. That is a matter for the judiciary.

Furthermore, Congress has no power to deputize members of the Executive to criminally prosecute the President or other members of the Executive.

The Dem Congress has three choices:

1) Attempt to have its own personnel take custody of the members of the Executive and hold them hostage.

2) File suit with the courts.

3) Drop this silly witch hunt and start governing for the first time since they were elected.

BD: In any case, Congress cannot make that determination without having access to the evidence.

Says who? (in particular, in the case of an inherent contempt proceeding).


How is Congress or anyone else going to determine whether the sought after evidence is covered by executive privilege without actually examining the evidence.

The Supremes in US v. Nixon did not assume the requested evidence was not covered under Executive Privilege without even seeing the evidence. They ordered the lower court to review the evidence in camera to determine if any of it was relevant to a criminal charge and thus outside the Executive Privilege.

BD: As I noted above, Congress cannot perform this function because the privilege is being exercised against them and to allow them to view the documents would nullify the privilege.Given that the privilege is being exercised against Congress, they cannot have access to the documents to make the determination without rendering the privilege a nullity....

Strangely enough, I think the courts are more rational (and more practical), and figgered out how to deal with this conundrum (in the U.S. v. Nixon case).


The courts are a neutral body and can make this determination in camera, which is what the Nixon Court held. The Nixon Court did not hold that the President had to give all subpoenaed documents to the prosecutor for him to decide what was privileged.
 

The section of the report that discusses the role of executive privilege in contempt proceedings is extremely informative and well-written. The discussion of the explicit intent of Congress to consider cabinet members appropriate targets of such proceedings is probably germane to the discussion of originalism (and particularly original expected application) in other threads.

I found the discussion of the President's pardon power marking the reach of executive privilege very interesting, because in a way it suggests the opposite of the Court's recent position that criminal investigations would be favored over other sorts of inquiries when denying the protection of executive privilege Following the logic given in the report, the President's claim to executive privilege would be strongest in the context of a criminal contempt, and would be non-existent in contexts where criminal behavior was not alleged.

I'm still poking through it, but this is a fantastic resource, especially for a duffer like myself.

---

A quick off-topic jab:

BDP:I guess you are among the 14% who think that the Dem Congress is doing a good job.

You might want to see the most recent Gallup poll before continuing to use that number. Congress' overall approval is up to 27% at the moment; when broken into parties, the Democrats have a 32% approval rating, while their Republican colleagues have dipped to an 18% approval rating.

By comparison, Bush has a 31% approval rating, giving him slightly less loyal fans than the "Dem Congress."
 

"Bart" DePalma:

["Bart"]: Instead of addressing the issue about whether Congress has the power in the first instance to punish executive branch officials with contempt for declining to provide evidence which falls under Executive Privilege, Congress attorneys assume that Congress has such a power and question whether the President may immunize or pardon such officials subject to congressional contempt proceedings.

[Arne]: Not true. See the report, pages CRS-27 et seq.. See, in particular, CRS-32 as well.

Simply summarizing the OLC position is not providing CRS' own opinion to Congress....


Not did they merely do that. All you other folks, just go read it. "Bart"'s an eedjit or a liar.

... CRS' commentary on the OLC opinions is offered on pages 30 and 31, which I accurately describe above.

Nope. You characterise it wrongly. Amongst other blatant blunders, they at no place insist that the "proper course" for resolution is "bringing civil contempt actions".

[Arne]: The time for the assertion of executive privilege is when the question is asked. There is not blanket "executive privilege" that says that a witness may not be compelled to testify, period (see, e.g., U.S. v. Nixon). Executive privilege is (properly) limited to certain information and under certan circumstances, and until they occur, the privilege may not be invoked. As the document points out, objections to questions should be made at the time of questioning, and then Congress should rule on the objection (or in the case of a referral for criminal contempt, the defence should be raised in the criminal contempt trial and ruled on by a judge).

Executive privilege is derived from the Constitution. Congress has no power to interpret the extent of that constitutional privilege. That is a matter for the judiciary.


Wrong (in particular, in the case of inherent contempt). Congress sets its own rules.

But I'd note that this is in no way responsive to my point.

Furthermore, Congress has no power to deputize members of the Executive to criminally prosecute the President or other members of the Executive.

The CRS Report goes into that. And it doesn't say what you're claiming here.

The Dem Congress has three choices:

1) Attempt to have its own personnel take custody of the members of the Executive and hold them hostage.


True (although "hostage" is a misnomer"). This, as the report spells out, is "inherent contempt".

2) File suit with the courts.

True. This is "civil contempt".

3) Drop this silly witch hunt and start governing for the first time since they were elected.

<*BZZZZT*> No ducky for you. The third option is statutory criminal contempt. As the report mentions, there might be an issue here with "immunization" (but such immunization from prosecution hardly voids the contempt charge; it simply quashes any action on it). See CRS-30. As the report details on page CRS-31, though, this doesn't affect inherent contempt. But the issue even in the case of statutory contempt is hardly resolved; even the Burford issue never reached the courts as the documents in question were released and the matter dropped.

["Bart"]: : In any case, Congress cannot make that determination without having access to the evidence.

[Arne]: Says who? (in particular, in the case of an inherent contempt proceeding).

How is Congress or anyone else going to determine whether the sought after evidence is covered by executive privilege without actually examining the evidence.


By knowing what it is they're asking (or asking for)?

The Supremes in US v. Nixon did not assume the requested evidence was not covered under Executive Privilege without even seeing the evidence. They ordered the lower court to review the evidence in camera to determine if any of it was relevant to a criminal charge and thus outside the Executive Privilege.

True, but perhaps better phrased: "they ordered the courts to review the evidence to see if any of it was covered by 'executive privilege' in the context of a criminal investigation."

["Bart"]: As I noted above, Congress cannot perform this function because the privilege is being exercised against them and to allow them to view the documents would nullify the privilege.Given that the privilege is being exercised against Congress, they cannot have access to the documents to make the determination without rendering the privilege a nullity....

[Arne]: Strangely enough, I think the courts are more rational (and more practical), and figgered out how to deal with this conundrum (in the U.S. v. Nixon case).

The courts are a neutral body and can make this determination in camera, which is what the Nixon Court held. The Nixon Court did not hold that the President had to give all subpoenaed documents to the prosecutor for him to decide what was privileged.


True. But they did look to see what was privileged and what wasn't (and, as it turns out, nothing there [IIRC] was privileged). Which shoots to hell your cockamamie idea that the preznit gets to decide beforehand.

Cheers,
 

"Bart" spins --

Until a court says otherwise, it is sufficient for the President to exercise the privilege.

Congress does not have the power to make that determination.

In any case, Congress cannot make that determination without having access to the evidence. Given that the privilege is being exercised against Congress, they cannot have access to the documents to make the determination without rendering the privilege a nullity.

This is a matter for the courts to determine.

# posted by Bart DePalma : 2:57 PM

Really? If the Executive can raid a Congressman's office, in the Congress, and confiscate all his records and computers and stuff, then Congress can do exactly the same in reverse. Difference is that "inherent contempt" is an established legal principle; by contrast, the dumb-ass breaking-and-entering into the Congressman's office in effort to preclude fair trial by ransacking the defendant's confidential information had the practical result of causing court reviews of that action which delayed the Executive's desire to prosecute and lynch a Democrat for partisan ends.

I'll trust Congress for reason before I'll credit the Bushit criminal enterprise with brains, ethics, morals, values -- "family" or otherwise -- competence, integrity, intellectual honesty, and -- most of all -- not hating Constitution and rule of law, and our country.

Of course, being a liar, "Bart," your mileage will doubtless vary; and if it doesn't you'll lie to make it appear so.
 

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