Contempt of Congress: Statute of Limitations and Refusal ofPresent Administration to Bring Charges
jfnbl at earthlink.com
jfnbl at earthlink.com
Sat Jul 21 17:22:06 PDT 2007
At 4:31 PM -0500 21/7/07, Marty Lederman wrote:
>... 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. ...
Assuming the availability of a valid claim of the "presumptive
privilege" described in U.S. v. Nixon, is it (always?) subject to
abandonment or waiver by a successor to the president who might
legitimately and effectively have invoked the privilege in respect of
communications between himself and his aides? Can President Bush
effectively force aides to former President Clinton, or even former
President Clinton himself, to testify regarding privileged
deliberations within the prior administration by simply refusing to
invoke the privilege on behalf of the "office" of the chief executive?
John Noble
>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>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://balkin.blogspot.com/2007/07/why-us-attorney-will-not-prosecute.html;
><http://gulcfac.typepad.com/georgetown_university_law/files/olson.1984.opinion.pdf>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>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: <mailto:rs at robertsheridan.com>Robert Sheridan
>To: <mailto:Mark.Scarberry at pepperdine.edu>Scarberry, Mark
>Cc: <mailto:conlawprof at lists.ucla.edu>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
>>
>>
>>From:
>><mailto:conlawprof-bounces at lists.ucla.edu>conlawprof-bounces at lists.ucla.edu
>>on behalf of Marty Lederman
>>Sent: Thu 7/12/2007 3:27 PM
>>To: <mailto:lfisher at loc.gov>lfisher at loc.gov;
>><mailto:MatthewHPolSci at aol.com>MatthewHPolSci at aol.com;
>><mailto:gsilver at berkeley.edu>gsilver at berkeley.edu;
>><mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu;
>><mailto:lawcourts-l at usc.edu>lawcourts-l at usc.edu
>>Subject: Re: Constitutional Perfect Storm (almost)
>>
>>This one --
>><http://www.talkingpointsmemo.com/docs/doj-exec-priv/?resultpage=1>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>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" <<mailto:lfisher at loc.gov>lfisher at loc.gov>
>>To: <<mailto:MatthewHPolSci at aol.com>MatthewHPolSci at aol.com>;
>><<mailto:gsilver at berkeley.edu>gsilver at berkeley.edu>;
>><<mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu>;
>><<mailto:lawcourts-l at usc.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
>>>
>>>>>> <<mailto:MatthewHPolSci at aol.com>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>http://discover.aol.com/memed/aolcom30tour
>>>
>>>
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>
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