Balkinization  

Monday, March 03, 2008

Mukasey Letter to Pelosi on Contempt Referral

Marty Lederman

I complained over the weekend that no media source had posted Attorney General Mukasey's letter to Speaker Pelosi concerning the referral to the U.S. Attorney of contempt of Congress citations against Harriet Miers and Josh Bolten.

Well, with thanks to the House Judiciary Committee for forwarding it, here it is.

The merits of Mukasey's letter are a bit beside the point, since nothing I or anyone else says will persuade DOJ to refer the citations to the grand jury, and because now the real action is, as predicted, in the civil suit that the House will soon file. Nevertheless, a few things are worth noting briefly:

1. Mukasey repeatedly refers to the President "directing" Harriet Miers not to testify. But Harriet Miers is a private citizen, not a government official, and is no more subject to presidential "directives" about testimony than are you or I. There was only one legal "directive" addressed to Harriet Miers, and that was the subpoena from Congress requiring her to appear and testify. More on this issue here.

2. Mukasey also refers to Miers's "constitutional immunity from compelled congressional testimony." Miers has no such immunity, constitutional or otherwise. Perhaps the President has a constitutional right not to have Miers disclose what she learned or did as White House Counsel; but if so, that was something for the President himself to invoke, not Miers.

3. Mukasey reiterates the longstanding DOJ view that "the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the President's claim of executive privilege." But Miers did not -- and, as a private citizen, could not -- assert the President's claim of executive privilege. (Nor do I recall that she or her attorney have ever expressed the conclusion that they independently agree with the claim of privilege here.)

4. Mukasey writes that the House referred the contempt citations to the U.S. Attorney for "prosecution." But it did not. There is no statutory obligation for the U.S. Attorney to prosecute any charges against Miers or Bolten. The U.S. Attorney's "duty," stated in 2 U.S.C. 194, is merely "to bring the matter before the grand jury for its action." As OLC noted in its seminal 1984 Opinion (on which Mukasey relies), "[e]ven if a grand jury were to return a true bill, the United States Attorney could refuse to sign the indictment and thereby prevent the case from going forward. Thus, as a matter of statutory interpretation, there is no doubt that the contempt of Congress statute does not require a prosecution; the only question is whether it requires referral to the grand jury." In that same opinion, OLC concluded that "we see no reason for distinguishing between the decision to prosecute and the decision to refer to the grand jury." I disagree with this conflation; but be that as it may, it is worth emphasizing that the legal requirement the Attorney General is refusing to enforce here is not an obligation to prosecute, but merely an obligation to allow the grand jury the opportunity to express its own view.

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