Contempt of Congress: Statute of Limitations and Refusal ofPresent Administration to Bring Charges

[Marty Lederman]

1.  Congress does have the inherent contempt power (just as courts do).  See my post here -- http://balkin.blogspot.com/2007/07/what-would-happen-if-administration.html -- which discusses all three of the options theoretically available to Congress to enforce its subpoenas.  

But Congress almost certainly will not use that power, which has not been invoked since 1935 and (as far as I know) has never been used against current or former executive officials.  Similarly, the refusal of the Executive branch to go to the grand jury was predictable, in light of the 1984 OLC Opinion.  See http://balkin.blogspot.com/2007/07/why-us-attorney-will-not-prosecute.html; http://gulcfac.typepad.com/georgetown_university_law/files/olson.1984.opinion.pdf.

That leaves the thrid option -- a civil action for an injunction requiring compliance with the subpoenas.  If either House votes to do anything, it will almost certainly be that.

2.  Mark asks whether a Democratic Administration would start a contempt prosecution against, e.g., Miers or Bolten.  I don't think it would ever come to that.  If, for instance, a Democratic President were to conclude that there were no justification for continuing to invoke executive privilege, then Miers, et al., would freely testify.  Miers and Taylor, in particular, have asserted that the only reason they're not testifying is that the President has asserted privilege and told them not to do so.  I think they're wrong to refuse to testify, since they don't personally have any view on the privilege question -- see http://balkin.blogspot.com/2007/07/whatis-private-citizen-to-do-when.html -- but in any event, if the President withdraws the assertion of privilege, there would be nothing standing in the way of their testimony.  (This all assumes, of course, that a Democratic Congress in the next Administration would continue to want to enforce its subpoenas and have hearings continue on the U.S. Att'y scandal.)
  ----- Original Message ----- 
  From: Robert Sheridan 
  To: Scarberry, Mark 
  Cc: conlawprof at lists.ucla.edu 
  Sent: Saturday, July 21, 2007 3:15 PM
  Subject: Re: Contempt of Congress: Statute of Limitations and Refusal ofPresent Administration to Bring Charges


  The post also reported that there were two kinds of contempt-of-congress proceedings, statutory and inherent power.  Further that the kind the Justice Department  will not prosecute is the statutory; as for the inherent, Congress apparently has the power to pursue that on its own, which stands to reason.  However the article did note that Sen. Harry Reid, (D-NV), the majority leader, and other Dem leadership, did not seem anxious to assert it.


  Interesting to note the claim of inherent power by Congress, as well as the president.


  I wonder whether I, as an individual, have any claim to inherent powers.  Maybe I'll start reading Harry Potter to find out.


  rs
  sfls


  On Jul 21, 2007, at 10:18 AM, Scarberry, Mark wrote:


    The Washington Post reports that the Justice Department will not prosecute any referral for contempt made by Congress with respect to refusals to testify or provide documents on executive privilege grounds. Suppose a Democrat wins the Presidency in the next election. Does anyone know whether the Justice Department then could pursue criminal contempt sanctions, or would the statute of limitations have run?

    Mark Scarberry
    Pepperdine



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    From: conlawprof-bounces at lists.ucla.edu on behalf of Marty Lederman
    Sent: Thu 7/12/2007 3:27 PM
    To: lfisher at loc.gov; MatthewHPolSci at aol.com; gsilver at berkeley.edu; conlawprof at lists.ucla.edu; lawcourts-l at usc.edu
    Subject: Re: Constitutional Perfect Storm (almost)


    This one -- http://www.talkingpointsmemo.com/docs/doj-exec-priv/?resultpage=1&

    The one thing in this opinion that is correct is that the immunity position it expresses has been embraced by Administrations of both parties for many years.  The Reno Opinion to which it prominently refers, for instance, is here:

    http://www.usdoj.gov/olc/falnpotus.htm (se Part II)

    I'd be curious -- Does anyone think the reasoning or authority of these opinions is compelling, especially in light of such a long history of Presidents and their close advisors appearing before Congress?  Isn't it extremely telling that the opinions cite no authorities other than other OLC opinions? 


    ----- Original Message ----- 
    From: "Lou Fisher" <lfisher at loc.gov>
    To: <MatthewHPolSci at aol.com>; <gsilver at berkeley.edu>; <conlawprof at lists.ucla.edu>; <lawcourts-l at usc.edu>
    Sent: Thursday, July 12, 2007 4:08 PM
    Subject: Re: Constitutional Perfect Storm (almost)


    > Oops!  Which opinion did I refer to?
    > 
    > Lou
    > 
    >>>> <MatthewHPolSci at aol.com> 07/12/07 4:19 PM >>>
    > Is this opinion to which Lou Fisher refers in the public domain where one  
    > can find it?  Is it from OLC?
    > 
    > Matthew Holden, Jr. 
    > 
    > 
    > 
    > ************************************** Get a sneak peak of the all-new AOL at 
    > http://discover.aol.com/memed/aolcom30tour
    > 
    > 
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