Showdown in the Rose Garden: Congressional contempt, executive privilege, and the role of the courts

Georgetown Law Journal

Volumn 99, Issue 1, 2011, Pages 163-188

  Mastrogiacomo, Timothy T ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 79956204919     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (234)

1. Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 57-58 (D.D.C. 2008).
2. Id. at 61. The subpoenas were issued on June 13, 2007. Id.
3. Id. at 61-62. The President invoked privilege on the recommendation of both Acting Attorney General Paul Clement and the Office of Legal Counsel. Id.
4. Id. at 63;
5. H.R. Res. 982, 110th Cong. (2008) (adopting H.R. Res. 979, 110th Cong. (2008), requiring that steps be taken to file criminal contempt charges against Bolten and Miers, and H.R. Res. 980, 110th Cong. (2008), authorizing the Committee on the Judiciary to initiate civil proceedings to enforce the subpoenas).
6. Miers, 558 F. Supp. 2d at 63;
7. see also 2 U.S.C. §§ 192, 194 (2006). It is ambiguous whether the Executive has discretion not to file charges under §§ 192 and 194. See infra section II.A.
8. Miers, 558 F. Supp. 2d at 63-64 ("[T]he Attorney General [stated] that because Ms. Miers and Mr. Bolten were acting pursuant to the direct orders of the President, 'the Department has determined that noncompliance... with the Judiciary Committee subpoenas did not constitute a crime, and therefore the Department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute....'").
9. Id. at 64; see also H.R. Res. 980.
10. Miers, 558 F. Supp. 2d at 108.
11. Judge Bates held that the Committee had standing after rejecting the defendants' claims that the case presented no cognizable personal injury and that the case was not "the type of dispute traditionally capable of resolution before an Article III court": the Committee's "being denied access to information" was a sufficient injury, and United States v. Nixon, 418 U.S 683 (1974)
12. and Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725 (D.C. Cir. 1974), indicated that the issue was the sort "traditionally amenable to judicial resolution."
13. Miers, 558 F. Supp. 2d at 66-78. Bates further held the Declaratory Judgment Act provided a cause of action, and that Article I of the Constitution provides an additional implied cause of action. Id. at 78-94.
14. Although Bates declared that Miers is not immune from compelled testimony, he did not directly order her to testify. Id. at 105-06, 108.
15. Comm. on the Judiciary v. Miers, 542 F. 3d 909, 911 (D.C. Cir. 2008) (holding that, even if expedited, the appeal would continue until after the end of the term of the 110th Congress, at which point the Committee would cease to be a legal entity and the suit would be rendered moot).
16. Miers and Bolten agreed to testify under oath, but off camera and without a public audience. Carrie Johnson, Deal Clears Rove, Miers To Discuss Prosecutor Firings,WASH. POST, Mar. 5, 2009, at A8.
17. The House used criminal contempt by forwarding the contempt report to the U.S. Attorney, see supra note 5 and accompanying text, and used civil enforcement when it filed the suit in the D.C. District Court, see supra note 7 and accompanying text.
18. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 225-31 (1821) (recognizing Congress's implied inherent contempt power); see also infra section I.B.
19. See Morton Rosenberg & Todd B. Tatelman, CONG. RESEARCH SERV., RL 34097, CONGRESS'S CONTEMPT POWER: LAW, HISTORY, PRACTICE, AND PROCEDURE 12-13 (2008).
20. In 1879, the House held George Seward, the U.S. Minister to China, in contempt for ignoring its subpoena and had the Sergeant at Arms arrest him. Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. 1083, 1135-37 (2009);
21. see also infra note 68.
22. See Chafetz, supra note 14, at 1086 ("[W]hile both the executive and judicial branches are comfortable pushing their powers to their limits, Congress has become too timid to do so.");
23. Jeffrey K. Tulis, On Congress and Constitutional Responsibility, 89 B.U. L. Rev. 515, 524 (2009) ("The modern Congress is unwilling to stand up for itself. It is unwilling to find or restore the tools necessary to defend its constitutional prerogatives.");
24. Michael A. Zuckerman, The Court of Congressional Contempt, 25 J.L. & POL. 41, 44 (2009) ("Congress should again look to its [inherent] power to punish for contempt in an effort to reclaim its role in the political system and restore the effectiveness of the national legislature.");
25. John W. Dean, Harriet Miers's Contempt of Congress: Are Conservatives About To Neuter Congress, While Claiming Full Legal Justification for this Separation-of-Powers Violation?, FINDLAW (July 13, 2007) http://writ.news. findlaw.com/dean/20070713.html (former counsel to the Senate Judiciary Committee and White House Counsel to President Nixon) (calling inherent contempt Congress's "most powerful tool to require Executive cooperation" and arguing that the House should have used it in the U.S. Attorney dismissals investigation because inherent contempt does "not need the cooperation of the other branches to enable [Congress] to conduct proper oversight").
26. See, e.g., Chafetz, supra note 14, at 1143-55 (arguing that courts cannot properly consider claims of executive privilege in either civil or inherent contempt cases);
27. Adam K. Magid, Note, The Negative Executive Privilege, 20 STAN. L. & POL'Y REV. 561, 575-79 (2009) (arguing that no affirmative executive privilege exists to limit congressional information seeking in either civil or criminal cases);
28. see also infra section I.D and Part II.
29. See, e.g., Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101, 139, 140 & n.42 (1984);
30. Response to Congressional Requests for Information Regarding Decision Made Under the Independent Counsel Act, 10 Op. Off. Legal Counsel 68, 86 (1986); see also infra sections II.A-B.
31. See infra section III.C.
32. See, e.g., Chafetz, supra note 14, at 1127-43; Rosenberg & Tatelman, supra note 13, at 4-46;
33. Zuckerman, supra note 15, at 50-68.
34. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31 (1821); see also infra section I.B.
35. Inherent contempt may be used both to encourage compliance with congressional orders and to punish failures to comply or for other forms of contempt. See Jurney v. MacCracken, 294 U.S. 125, 150 (1935) (holding that inherent contempt may be used to punish past contempt);
36. McGrain v. Daugherty, 273 U.S. 135, 175 (1927) (holding that Congress may enforce subpoenas via inherent contempt).
37. Rosenberg & Tatelman, supra note 13, at 15. Congress's last use of the inherent contempt power was reviewed by the Supreme Court in Jurney.
38. See Rosenberg & Tatelman, supra note 13, at 20-21; see also infra note 39 and accompanying text.
39. 2 U.S.C. §§ 192, 194 (2006). Congress cannot punish other forms of contempt, such as bribery of a congressman, using these statutes, but it may still do so using inherent contempt.
40. See Rosenberg & Tatelman, supra note 13, at 22-23 (citing House floor debate from 1857 indicating that Congress did not intend criminal contempt to replace or limit inherent contempt);
41. In re Chapman, 166 U.S. 661, 671-72 (1897) (discussing the 1857 act and noting that "[C]ongress could not devest itself, or either of its houses, of the essential and inherent power to punish for contempt ").
42. It is ambiguous whether the Executive is legally required to indict. See discussion infra section II.A.
43. 28 U.S.C. § 1365 (2006). The statute was originally included in the Ethics in Government Act of 1978, Pub. L. No. 95-521, § 705(f)(1), 92 Stat. 1824, 1879. This is not the first civil enforcement statute Congress has passed; during the Watergate investigation it passed a law granting the D.C. District Court original jurisdiction over any civil action brought by the Senate Select Committee on Presidential Campaign Activities to enforce a subpoena or to secure a declaration concerning the validity of a subpoena. An Act to Confer Jurisdiction upon the District Court of the United States of Certain Civil Actions Brought by the Senate Select Committee on Presidential Campaign Activities, and for Other Purposes, Pub. L. No. 93-190, 87 Stat. 736, 736 (1973).
44. When Congress uses civil enforcement, coercion is supplied through the court's use of its civil contempt powers. Civil enforcement, therefore, is not a type of congressional contempt power, but does operate in a similar fashion.
45. Rosenberg & Tatelman, supra note 13, at 36 (arguing that civil enforcement may lead to quicker judicial resolutions because courts will likely give less weight to the defendant's constitutional rights);
46. see also S. REP. NO. 95-170, at 16, 41 (1977), reprinted in 1978 U.S.C.C.A.N. 4216, 4232, 4257 (stating that civil enforcement should be used when Congress seeks compliance, and criminal contempt when Congress seeks to punish past contempt). The Committee on Governmental Affairs also noted in its report on the civil enforcement bill that past reluctance of congressional committees to enforce their subpoenas with criminal contempt was an additional reason for creating the civil enforcement option.
47. Id. at 17, reprinted in 1978 U.S.C.C.A.N. 4216, 4233.
48. 28 U.S.C. § 1365(a) (2006).
49. Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 66-78 (D.D.C. 2008);
50. see also Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (2006).
51. Watkins v. United States, 354 U.S. 178, 188 (1957) ("The rudiments of the power to punish for 'contempt of Congress' come to us from the pages of English history.").
52. See Chafetz, supra note 14, at 1093-116.
53. After becoming frustrated with the House of Commons for, among other things, subpoenaing documents from royal officers and investigating the Attorney General, King Charles I dismissed Parliament for eleven years. Id. at 1111.
54. After reconvening Parliament, Charles clashed with the House of Commons for several more years before bringing treason charges against several members. Id. at 1111-12.
55. When those charged were not delivered to royal officials, Charles entered the Commons with troops; the next day a resolution was passed calling the King's action a "high Breach of the Rights and Privileges of Parliament." Id. at 1114.
56. The six-year English Civil War then followed, culminating in the execution of Charles. Id. at 1115.
57. The preamble to the treason charges Charles was convicted on stated that he had violated the "right and power of frequent and successive Parliaments." Id. at 1115-16.
58. JOSH CHAFETZ, DEMOCRACY'S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS 32 (2007) (describing a 1642 resolution of the House of Commons, which "denied that the common-law courts 'hath any Cognizance or Jurisdiction touching the Commitment of any Person who stands committed by Order of both or either said Houses of Parliament'"; also describing a 1647 resolution ordering the sergeant to show the cause of contemnors' detention before the court, but noting that courts opted to instead follow the 1642 resolution).
59. Id. at 32-33 (citing Streater's Case, (1653) 5 St. Tr. 365, 376-86 (U.B.), in which the court held it could not review the legality of plaintiff's imprisonment, even though the arrest warrant did not state the details of his alleged contempt);
60. id. at 35 ("The House of Commons is a Supreme Court, and they are judges of their own privileges and contempts.... The House of Commons is the only judge of its own proceedings." (quoting Brass Crosby's Case, (1771) 95 Eng. Rep. 1005, 1014 (K.B.) (Blackstone, J., concurring)).
61. See Chafetz, supra note 14, at 1085-86.
62. 19 U.S. (6 Wheat.) 204 (1821).
63. Id. at 204, 215.
64. Id. at 221-24 & n.a (citing Burdett v. Abbott, (1811) 104 Eng. Rep. 501 (K.B.), in which the Court of King's Bench dismissed the writ of habeas corpus of a contemnor alleging that his arrest warrant did not allege the facts and circumstances surrounding his contempt).
65. Id. at 230-31 (limiting the punishment for contempt to imprisonment lasting no longer than the current term of the House). It is ambiguous whether a similar time limit exists for the Senate's use of inherent contempt. Compare McGrain v. Daugherty, 273 U.S. 135, 181 (1927) (suggesting that the Senate, as a "continuing body," has inherent contempt powers that are not limited in duration)
66. with Aaron-Andrew P. Bruhl, Burying the "Continuing Body" Theory of the Senate, 95 IOWA L. REV. 1401 (2010) (arguing that the Senate is not a continuing body and that the Senate's inherent contempt power is thus limited in duration).
67. Compare Anderson, 19 U.S. at 232-35
68. with CHAFETZ, supra note 33, at 33 ("'[W]hen Parliaments do dissolve, their acts do not cease. Besides, a parliament is the Supreme Court... it is not for other courts to question [its] proceedings.'" (quoting Streater's Case, (1653) 5 St. Tr. 365, 392 (U.B.))).
69. 243 U.S. 531, 533-35 (1917) (citing the explicit limitations of state legislature contempt powers in the state constitutions of Maryland and Massachusetts, limitations "wholly incompatible with judicial authority," as indicia of the prevailing attitude at the time the Federal Constitution was written);
70. see also Kilbourn v. Thompson, 103 U.S. 168, 189 (1880) ("[T]he powers and privileges of the House of Commons of England, on the subject of punishment for contempts, rest on principles which have no application to other legislative bodies, and certainly can have none to the House of Representatives of the United States, - a body which is in no sense a court, which exercises no functions derived from its once having been a part of the highest court of the realm....").
71. Watkins v. United States, 354 U.S. 178, 188, 192 (1957);
72. see also Marshall v. Gordon, 243 U.S. 521, 547 (stating that the "the implied power to deal with contempt as ancillary to the legislative power" is not "judicial authority").
73. See Chafetz, supra note 14, at 1124-27 (arguing that many state constitutions at the time of the nation's founding provided "broad" contempt powers, and noting that a constitutional provision proposed to Article I by Charles Pinckney at the Philadelphia Convention would have stated: "Each House shall be the Judge of its own privileges, and shall have authority to punish by imprisonment every person violating the same.").
74. But see THOMAS JEFFERSON, A MANUAL OF PARLIAMENTARY PRACTICE: FOR THE USE OF THE SENATE OF THE UNITED STATES 19 (Applewood Books 1993) (1801) ("[I]f one branch may assume its own privileges without control; if it may do it on the spur of the occasion, conceal the law in its own breast, and... make its sentence both the law and the judgment on that fact; if the offence is to be kept undefined... and there be no limitation either in the manner or measure of the punishment, the condition of the citizen will be perilous indeed.").
75. 506 U.S. 224 (1993).
76. Id. at 228 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
77. U.S. CONST. art. I, §§ 2, 3.
78. Chief Justice Rehnquist noted that multiple proposals placing the impeachment power in the hands of the Judiciary were rejected, 506 U.S. at 233, and concluded that the Framers felt the sole delegation of the impeachment power to the legislature was necessary to limit the powers of the otherwise independent Judiciary Branch. Id. at 235 ("This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges." (quoting THE FEDERALIST NO. 79 (Alexander Hamilton))).
79. Cf. United States v. Nixon, 418 U.S. 683, 704 (1974) ("Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers.") (emphases added).
80. See supra note 43 and accompanying text.
81. See, e.g., United States v. Brewster, 408 U.S. 501, 528-29 (1972) (holding that Speech or Debate Clause protection does not extend to bribes);
82. Gravel v. United States, 408 U.S. 606, 627 (1972) (holding that the protection does not allow senators to publish classified government documents in a newspaper).
83. See supra note 39 and accompanying text; infra note 57 and accompanying text.
84. 360 U.S. 109, 111-12 (1959). The Court continued, "more particularly in the context of this case the relevant limitations of the Bill of Rights." Id. at 112.
85. Barenblatt is not the only case in which the Court distinguished these two types of limits. See Quinn v. United States, 349 U.S. 155, 161 (1955) (holding that, in addition to the prohibition on Congress investigating matters unrelated to a valid legislative purpose, "[s]till further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights").
86. While some observers recognize these two categories of limits, see, e.g., Randall K. Miller, Congressional Inquests: Suffocating the Constitutional Prerogative of Executive Privilege, 81 MINN. L. REV. 631, 636-37 (1997), most focus on the first, jurisdictional limit announced by the Court and give little if any attention to the second (Pubitemid 127437505) (Pubitemid 127437505)
87. see, e.g., Ronald L. Claveloux, The Conflict Between Executive Privilege and Congressional Oversight: The Gorsuch Controversy, 1983 DUKE L.J. 1333, 1339-40 (1983).
88. See U.S. CONST. art. I, § 6, cl. 1 ("[F]or any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.").
89. United States v. Brewster, 408 U.S. 501, 525 (1972) ("[T]he Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.");
90. see also Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 508-09 (1975).
91. Martin Shapiro, Judicial Review: Political Reality and Legislative Purpose: The Supreme Court's Supervision of Congressional Investigations, 15 VAND. L. REV. 535, 550 (1962). Before Barenblatt and Eastland, the Court had warned Congress that it might be willing to investigate congressional motive.
92. See Watkins v. United States, 354 U.S. 178, 200 (1957) ("We have no doubt that there is no congressional power to expose for the sake of exposure. "). Beyond a reluctance to consider motive, the presumption of valid legislative purpose also signals the Court's enlargement of what subject matter is included within the valid legislative sphere of Congress.
93. See, e.g., Kilbourn v. Thompson, 103 U.S. 168, 195 (1880) (holding that an investigation into the private affairs of individuals who are not officers of the government is outside of Congress's valid legislative sphere).
94. See Eastland, 421 U.S. at 495, 503-06 (explaining that the Court's inability to question the motives of Congress prevented it from considering the merits of the plaintiff 's claim that a Congressional subpoena violated the First Amendment because "the 'sole purpose' of the Subcommittee investigation was to force 'public disclosure of beliefs, opinions, expressions and associations of private citizens which may be unorthodox or unpopular,' and... the 'sole purpose' of the subpoena was to 'harass, chill, punish and deter... in their exercise of their rights and duties under the First Amendment....'").
95. See Marshall v. Gordon, 243 U.S. 521, 530-33, 545 (1917) (holding that Congress could not use its inherent contempt power to punish a U.S. Attorney for alleging that members of Congress were attempting to interfere with grand jury proceedings by sending an anonymous letter to a newspaper and later a signed letter to the investigating committee).
96. See, e.g., Watkins, 354 U.S. at 198 ("[T]he mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights.");
97. id. at 188 ("The Bill of Rights is applicable to [Congressional] investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged.").
98. See id. at 198 (considering defendant's First Amendment defense to his criminal contempt conviction and noting that "[t]he critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness"; defendant's conviction was overturned on other grounds);
99. see also Barenblatt v. United States, 360 U.S. 109, 126 (1959) (applying balancing test in criminal contempt case but finding the congressional investigation to be within permissible limits).
100. See McPhaul v. United States, 364 U.S. 372, 382-83 (1960) (suggesting that a congressional subpoena may not require an unduly burdensome production of materials, but requiring that the defendant raise his Fourth Amendment objection to the congressional committee, and thus give the committee a chance to remedy the burden if necessary, before raising this claim as an affirmative defense at his criminal trial).
101. See Quinn v. United States, 349 U.S. 155, 161, 170 (1955) (upholding the Court of Appeals' reversal of defendant's criminal contempt conviction). Congress can avoid this limitation by granting witnesses immunity, as it did with Oliver North and John Poindexter during the Iran-Contra investigation.
102. See Frederick M. Kaiser & Walter J. Oleszek, CONG. RESEARCH SERV., RL 30240, CONGRESSIONAL OVERSIGHT MANUAL 35 (2007). Congress has codified the process for granting such immunity at 18 U.S.C. §§ 6002, 6005 (2006).
103. See Deutch v. United States, 367 U.S. 456, 471 (1961) (overturning defendant's criminal contempt conviction);
104. Groppi v. Leslie, 404 U.S. 496 (1972) (reviewing aWisconsin state legislature contempt action). For background information
105. see Rosenberg & Tatelman, supra note 13, at 58-65 (discussing all constitutional limits on Congress's contempt powers).
106. See infra note 67.
107. Chafetz, supra note 14, at 1148.
108. Id. at 1146-47.
109. In 1834, after fighting with President Jackson over the scope of his executive authority, the Senate censured Jackson for his "breach of the privileges of the Senate"; the resolution was later expunged from the Senate record. Id. at 1133.
110. In 1842, the House passed a similar resolution chastising President Tyler, but took no further action. Id. at 1133-34.
111. In 1866, the House declared that the Provost Marshal General of the Army was guilty of a "gross violation of [its] privileges" and abolished the Provost Marshal General's office. Id. at 1134-35.
112. In none of these cases did Congress exercise its contempt powers against an executive branch official. One commentator concludes that, "throughout the nineteenth century, resolution of disputes over congressional access to executive documents took the form of negotiated compromise." Todd D. Peterson, Prosecuting Executive Branch Officials for Contempt of Congress, 66 N.Y.U. L. REV. 563, 569 (1991).
113. In 1879, the House held George Seward, the U.S. Minister to China, in contempt for ignoring its subpoena and had the Sergeant at Arms arrest him. The Sergeant at Arms apprehended Seward and brought him to the House. The House did not force Seward to testify, however, after he invoked his Fifth Amendment right against self-incrimination (impeachment proceedings were also brought against Seward, which the House Judiciary Committee decided gave merit to his Fifth Amendment defense). Chafetz, supra note 14, at 1135-37.
114. See Peterson, supra note 67, at 569 ("On a number of... occasions, Congress expressly authorized the President to exclude material that he thought confidential."). In 1807, 1825, 1854, and 1861, Congress passed resolutions asking presidents to produce certain information unless the President felt doing so would harm the public interest. Id. at 569 n.33;
115. President Franklin Pierce, Special Message to the Senate of the United States (Aug. 1, 1854), available at http://www.presidency.ucsb.edu/ws/?pid- 67847.
116. Watkins v. United States, 354 U.S. 178, 193 (1957).
117. 418 U.S. 683, 707, 713 (1974) (holding that executive privilege protects presidential communications against subpoenas in criminal cases where the communications are not "essential" to the justice of the pending case);
118. see also id. at 711-12 ("In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice.").
119. See Senate Select Comm. v. Nixon, 498 F.2d 725, 731-33 (D.C. Cir. 1974);
120. Senate Select Comm. v. Nixon, 370 F. Supp. 521, 524 (D.D.C. 1974);
121. see also Jonathan K. Geldert, Presidential Advisors and Their Most Unpresidential Activities: Why Executive Privilege Cannot Shield White House Information in the U.S. Attorney Firings Controversy, 49 B.C. L. REV. 823, 827 & nn.24-25 (2008). In Nixon the Supreme Court was careful to avoid this issue. See 418 U.S. at 712 n.19 ("We are not here concerned with the balance between the President's generalized interest in confidentiality and... congressional demands for information....").
122. See, e.g., Magid, supra note 16, at 575 ("[E]xecutive privilege derives from the absence of power to compel information disclosure rather than the affirmative power to foreclose compelled disclosure.");
123. id. at 581 (arguing that the only "privilege" claims available to executive branch officers arise when Congress is not seeking information "relevant to any possible legal purpose"). One observer concedes that executive privilege does limit Congress's information-seeking power in some limited national security or "state secret" matters, but argues that it is nevertheless only a part of the valid legislative purpose requirement.
124. See J. Richard Broughton, Paying Ambition's Debt: Can the Separation of Powers Tame the Impetuous Vortex of Congressional Investigations?, 21 WHITTIER L. REV. 797, 823-24, 830 (2000) (arguing that executive privilege prevents Congress from inquiring into areas "not... within the legitimate legislative sphere" and that "executive privilege... should not prevail when a congressional inquiry involves legitimate legislative interests that do not invade specific military or state secrets related to the President's commander-in-chief authority and do not strip the President of 'exclusive control' over his Article II powers").
125. One observer appears to agree with this assertion. See Miller, supra note 53, at 638, 692 (calling executive privilege a "constitutionally-based prerogative" and concluding that courts must employ "a functional balancing test that asks whether the executive interest in secrecy outweighs the congressional interest in disclosure").
126. 370 F. Supp. at 521-22.
127. Id. at 522.
128. Act of Dec. 18, 1973, Pub. L. No. 93-190, 87 Stat. 736.
129. Senate Select Comm., 370 F. Supp. at 522.
130. Senate Select Comm. v. Nixon, 498 F.2d 725, 733 (D.C. Cir. 1974).
131. The district court stated that "[t]he Committee itself must judge whether" seeking the tapes serves the public interest and serves its legislative function. Senate Select Comm., 370 F. Supp. at 524.
132. The circuit court stated that "[t]he investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source." Senate Select Comm., 498 F.2d at 732.
133. Senate Select Comm., 370 F. Supp. at 522.
134. Senate Select Comm., 498 F.2d at 732 (emphasis added). The court also characterized this requirement as "demonstrably critical to the responsible fulfillment of the Committee's functions." Id. at 731.
135. Barenblatt v. United States, 360 U.S. 109, 115-16 (1959).
136. Id. at 122, 126.
137. Id. at 126. The Court ultimately held that no First Amendment violation had occurred. Id. at 134.
138. 370 F. Supp. at 522.
139. Id. at 524.
140. Senate Select Comm. v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974).
141. See United States v. Nixon, 418 U.S. 683, 707 (1974). The Court's consideration of executive privilege in the context of pending criminal charges in Nixon suggests that privilege would remain relevant after charges are made: "Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch." Id.
142. See supra section I.C.2.
143. See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101, 102, 126 (1984) (citing Nixon, 418 U.S. at 693 (1974) ("[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.")).
144. But see Ex parte Frankfeld, 32 F. Supp. 915, 916 (D.D.C. 1940) (discussing § 192 in dicta) ("[Congress] left no discretion with the district attorney as to what he should do about it. He is required, under the language of the statute, to submit the facts to the grand jury.").
145. See supra note 6 and accompanying text.
146. H.R. 277, 111th Cong. (2009). Miller introduced H.R. 277 as a response to Mukasey's actions during the U.S. Attorney dismissals controversy. Discussion with Rep. Brad Miller (Nov. 19, 2009). The bill provides "an alternate procedure for the prosecution of certain criminal contempts referred for prosecution by the House." H.R. 277.
147. H.R. 277.
148. 487 U.S. 654 (1988). The Supreme Court held that the independent counsel provisions of the Ethics in Government Act were constitutional, in part because "with the exception of the power of impeachment - which applies to all officers of the United States - Congress retained for itself no powers of control or supervision over an independent counsel." Id. at 694.
149. H.R. 277 contains the same removal provisions, compare 28 U.S.C. § 596(a) (2006)
150. with H.R. 227, § 4(a), 111th Cong. (2009), and contains a similar requirement that the counsel make a progress report to Congress, compare 28 U.S.C. § 595(a)( 2) (2006) (requiring an annual report on the independent counsel's "activities," including the "progress of any investigation," and allowing the omission of "any matter that in the judgment of the independent counsel should be kept confidential")
151. with H.R. 277, § 3(g) (requiring an annual report including the same information, but not excepting the inclusion of confidential information). But unlike the independent counsel provisions, which authorized any litigation "that [the] independent counsel considers necessary," 28 U.S.C. § 594(a)(2) (2006)
152. H.R. 277 limits the counsel's prosecutorial jurisdiction to the specific violation alleged by Congress
153. H.R. 277, § 3(a)(2). This discrepancy creates doubt as to whether H.R. 277 avoids impermissibly burdening the Executive's prosecutorial discretion under Morrison, see 487 U.S. at 696, and Nixon, see 418 U.S. at 708-09, because it means that Congress could require prosecutions of specific individuals. Additionally, while the independent counsel provisions required the Attorney General to request judicial appointment of the counsel, 28 U.S.C. § 592 (2006)
154. H.R. 277 provides for automatic appointment if the Attorney General fails to bring a statutory contempt indictment. If H.R. 277 were struck down on this or one of the previously mentioned grounds, Congress could rewrite the law to more closely parallel the independent counsel provisions of the Ethics in Government Act.
155. Prosecution for the Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101, 140 (1984);
156. see also Response to Congressional Requests for Information Regarding Decision Made Under the Independent Counsel Act, 10 Op. Off. Legal Counsel 68, 86 (1986).
157. If the officials threatened with contempt, knowing the full extent of wrongdoing that may have occurred, fear that the President will ultimately be impeached, the rationale that executive privilege should be available at all breaks down. Executive privilege exists to enable the President to better serve his constitutional functions, not to protect a criminal conspiracy.
158. For an alternate view, see Miller, supra note 53, at 677-79 ("If executive privilege is a constitutional prerogative that is presumptively valid, as the Court ruled in Nixon, then an executive officer should not have to become a criminal defendant, being prosecuted by fellow executive officers, in order to successfully assert the privilege against Congress.").
159. See, e.g., 8 Op. Off. Legal Counsel 101, 130 (1984) (citing [34th] Cong. 3d Sess. 431 (1857)) (interpreting floor statement of Representative Orr: "The implication is that Congress did not intend the bill to apply to Presidential assertions of privilege.")
160. Peterson, supra note 67, at 624 & n.344 (same).
161. Both supporters and opponents of the bill assumed its reach extended to demands made of the Executive. Representative Marshall, worried that the criminal contempt statute "takes within its scope every man, woman, and child in the Republic," introduced an amendment intended to limit its scope to matters "[t]ouching the official conduct of any [congressman], or of any officer of the Government of the United States." See CONG. GLOBE, 34th Cong. 3d Sess. 429 (1857).
162. Representative Dunn expressed concern that the statute would allow Congress to discover and divulge "what was transpiring in the executive department of the Government... [where] such a disclosure might be productive of great mischief, and in time of war of absolute ruin to the country." Id. at 431.
163. To the notion that the power would be used maliciously, Representative Orr replied that he could "hardly conceive of such a case," but Orr also stated that forced disclosures from the Executive Branch, such as those in the Secret Service Fund investigation, were "right and proper." Id.
164. See generally Morton Rosenberg & Todd B. Tatelman, CONG. RESEARCH SERV., RL 34114, CONGRESS'S CONTEMPT POWER: A SKETCH 12-13 (2008), (discussing the exchange and providing background information on the Secret Service Fund investigation of 1846).
165. Courts have granted writs of habeas corpus in several inherent contempt cases (not an inconsiderable amount, considering how seldom Congress has used inherent contempt). See Jurney v. MacCracken, 294 U.S. 125, 152 (1935);
166. McGrain v. Daugherty, 273 U.S. 135, 182 (1927);
167. Marshall v. Gordon, 243 U.S. 521, 548 (1917).
168. Marshall, 243 U.S. at 547; Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 215 (1821) (limiting length of punishment the House may impose to the term of the current session). Chafetz argues that habeas review may not exceed such jurisdictional considerations.
169. See Chafetz, supra note 14, at 1152.
170. 243 U.S. at 547-48.
171. 294 U.S. at 152 (upholding use of inherent contempt power, where power was used only after the contempt ended).
172. See supra section I.B.
173. United States v. Nixon, 418 U.S. 683, 705 (1974);
174. see also Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 56 (D.D.C. 2008).
175. Prosecution for the Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101, 140 & n.42 (1984).
176. Reply in Support of Defendant's Motion to Dismiss at 22 (2008 WL 2443291), Miers, 558 F. Supp. 2d 53 (D.D.C. 2008).
177. Miers, 558 F. Supp. 2d at 92.
178. See, e.g., Response to Congressional Requests for Information Regarding Decision Made Under the Independent Counsel Act, 10 Op. Off. Legal Counsel 68, 86 (1986).
179. See supra note 68 (discussing the Seward incident);
180. see also supra note 69 (discussing the deference Congress extended in its requests for information to the Executive's need for confidentiality throughout the nineteenth century).
181. In Miers, Judge Bates expressed concern that this "serious constitutional crisis" could occur. 558 F. Supp. 2d at 83.
182. See supra section I.B.
183. See supra note 29 and accompanying text.
184. See supra note 30 and accompanying text.
185. 421 U.S. 491, 503 (1975).
186. 556 F. Supp. 150, 152 (D.D.C. 1983).
187. Id. at 153 (emphasis added). While some observers viewed the court's ruling as an indication that it would not consider the claim of executive privilege unless it was made in response to a criminal contempt citation, see Miller, supra note 53, at 659 & n.149;
188. David A. O'Neil, The Political Safeguards of Executive Privilege, 60 VAND. L. REV. 1079, 1091 & n.52 (2007), the court was simply acknowledging that it had no power to intervene until Congress took some action to enforce its subpoena - including a civil enforcement action.
189. See United States v. Helstoski, 442 U.S. 477, 490-91 (1979) (expressing doubt whether an individual congressman can waive Speech or Debate Clause immunity from criminal prosecution for legislative actions, and holding that, if it is possible, any such waiver would need to be "explicit and unequivocal").
190. See generally Geldert, supra note 72 (reaching the same conclusion).
191. This continuing congressional privilege is consistent with Eastland, and Congress has signaled that conferral of jurisdiction on the courts to hear its enforcement claims does not limit the privilege. See supra note 116 and accompanying text.
192. S. REP. NO. 95-170, at 94 (1977) (report accompanying Pub. L. No. 93-190, 87 Stat. 736);
193. see also supra note 26 (discussing 87 Stat. 736).
194. S. REP. NO. 95-170, at 41 (emphasis added).
195. U.S. CONST. art. III, § 2, cl. 2 ("In all the other Cases... the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.").
196. See Christopher T. Handman, The Doctrine of Political Accountability and Supreme Court Jurisdiction: Applying a New External Constraint to Congress's Exceptions Clause Power, 106 YALE L.J. 197, 209 (1996) ("[E]ven absolutists concede that general constitutional provisions external to Article III, such as the Bill of Rights, equal protection, and prohibitions contained in section 9 of Article I remain applicable to congressional exercise of the exceptions power. Congress's power under the Exceptions Clause, as absolutists conceive it, 'cannot be exercised in a manner which violates some other Constitutional rule.'" (footnotes omitted)).
197. 28 U.S.C. § 1365(b) (2006).
198. 551 F.2d 384 (D.C. Cir. 1976).
199. Id. at 385-88.
200. See United States v. Reynolds, 345 U.S. 1, 10 (1963).
201. See supra section II.C.
202. AT&T, 551 F.2d at 391.
203. United States v. AT&T, 567 F.2d 121, 130 (D.C. Cir. 1977).
204. Discussion with Irvin B. Nathan, counsel for the House in Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008) (Sept. 17, 2009).
205. S. REP. NO. 95-170, at 41 (1977) (arguing that the scope of judicial review is the same regardless of what type of enforcement power the Senate uses).
206. While Congress currently has difficulty using criminal contempt against executive branch officials, proposed legislation would solve this problem in a way that courts are likely to uphold. See supra section II.A. And even if Miers incorrectly found an implied cause of action for civil enforcement of subpoenas, Congress could pass a new expansive civil enforcement statute. It could not, however, limit this jurisdiction to prevent courts from considering a claim of executive privilege.
207. See supra section II.C.
208. See supra note 15 and accompanying text.
209. The intimidation effect of criminal contempt will be even greater if Congress passes H.R. 227, as it raises the maximum penalty to two years imprisonment and a one million dollar fine. H.R. 277, 111th Cong. § 6 (2009).
210. See supra notes 93-95 and accompanying text.
211. See infra text accompanying note 155.
212. See Broughton, supra note 73, at 834-36.
213. See supra note 39 (citing opposing views on whether the Senate is a "continuing body" and thus has contempt powers of indefinite duration).
214. See supra sections I.B., II.B.
215. See supra note 93 and accompanying text.
216. Discussion with Rep. Brad Miller (Nov. 19, 2009).
217. See Joel Cohen, No More 'Perp Walks,' NAT'L L.J., Aug. 5, 2002, at A25.
218. The D.C. Circuit recognized this possibility in Miers. See supra note 9.
219. See supra note 9.
220. See supra note 10.
221. It seems unlikely that the Court would do this. The limits of Congress's enforcement powers - even of inherent contempt - are not themselves nonjusticiable political questions, see notes 44-51 and accompanying text, and the Court has held that it holds the ultimate power to determine the scope of executive privilege, see United States v. Nixon, 418 U.S. 683, 705 (1974).
222. One observer calls the theory supporting judicial nonintervention the "escalation model," and explains that it is based on the notion that "each branch possesses powers sufficient to defend itself in a particular dispute, but each knows that using such weapons carries a potentially high price in political capital." See O'Neil, supra note 118, at 1084-85.
223. The branches will escalate, the theory goes, until one branch decides that "the continued expenditure of political capital does not justify the institutional benefits of victory." Id. O'Neil rejects this view, and concludes that "[c]ourts must provide a moderating influence, stabilizing the flow of information between the branches in a way that political safeguards alone cannot." Id. at 1137.
224. See Peterson, supra note 67, at 625, 629;
225. cf. Goldwater v. Carter, 444 U.S. 996, 1004 (1979) (Rehnquist, J., concurring) (arguing that judicial resolution of the President's ability to nullify treaties without congressional approval is improper, in part because Congress has various other means to protect and assert its interests).
226. See Magid, supra note 16, at 595-96.
227. See Chafetz, supra note 14, at 1150.
228. This would be the case if the courts merely require Congress to act within a valid legislative purpose.
229. After two uninvited guests crashed a White House state dinner on November 24, 2009 - an incident the press quickly dubbed "Crashergate" - the House Homeland Security Committee launched an investigation. The Committee requested that, among others, White House Social Secretary Desiree Rogers testify;
230. White House Press Secretary Robert Gibbs soon stated that, "based on separation of powers, staff here don't go to testify in front of Congress.... She will not be testifying in front of Congress tomorrow." Sam Youngman, Social Secretary Not Testifying on State Dinner Crashers, THE HILL, Dec. 2, 2009, http://thehill.com/homenews/administration/70247.
231. Republican members of the Homeland Security Committee thereafter failed to secure enough votes to subpoena Rogers. Glen Thrush & Jake Sherman, No Subpoena for Desiree Rogers, POLITICO, Dec. 4, 2009, http://www.politico.com/ news/stories/1209/30177.html.
232. Even if a congressional committee takes the unusual step of subpoenaing executive branch officials when the same party controls both branches, enforcement is unlikely. On April 19, 2010, the Senate Homeland Security and Governmental Affairs Committee issued subpoenas ordering Defense Secretary Robert Gates and Attorney General Eric Holder to produce documents and identify witnesses related to the attack at Fort Hood, Texas perpetrated by Major Nidal Hasan. J. Taylor Rushing & Roxana Tiron, Lieberman Subpoenas Ft. Hood Records, THE HILL, Apr. 19, 2010, http://thehill.com/blogs/blog-briefing-room/ news/93085.
233. Gates and Holder did not fully cooperate with the subpoena; they argued that doing so would jeopardize the criminal case against Hasan. Richard A. Serrano, Legal Battles Brew over Ft. Hood Suspect's History, L.A. TIMES, May 23, 2010, at A30, available at http://www.latimes.com/news/nationworld/nation/la- na-hood-hasan-20100523,0,1430366.story.
234. Neither the Homeland Security Committee nor the Senate took steps to enforce the subpoena. See id. The Committee was likely able to overcome partisan opposition to issuing the subpoena because it was chaired by Senator Joe Lieberman, an independent. Enforcement of the subpoena, however, would have required the cooperation of the Senate, which was controlled by a Democratic majority. See supra section I.A.