Contempt of Congress: Statute of Limitations and RefusalofPresent Administration to Bring Charges

Marty Lederman marty.lederman at comcast.net
Sat Jul 21 21:54:37 PDT 2007


Re: Contempt of Congress: Statute of Limitations and Refusal ofPresent Administration to Bring ChargesThe Court itself has addressed this question, in Nixon v. Administrator (a case brought after Nixon resigned), and was a bit cryptic about its resolution, suggesting that the former President can invoke the privilege, but will have an uphill battle if the current President disclaims it:
  Unlike United States v. Nixon, in which appellant asserted a claim of absolute Presidential privilege against inquiry by the coordinate Judicial Branch, this case initially involves appellant's assertion of a privilege against the very Executive Branch in whose name the privilege is invoked. The nonfederal appellees rely on this apparent anomaly to contend that only an incumbent President can assert the privilege of the Presidency. Acceptance of that proposition would, of course, end this inquiry. The contention draws on United States v. Reynolds, 345 U.S. 1, 7 -8 (1953), where it was said that the privilege "belongs to the Government and must be asserted by it: it can neither be claimed nor waived by a private party." The District Court believed that this statement was strong support for the contention, but found resolution of the issue unnecessary. 408 F. Supp., at 343-345. It sufficed, said the District Court, that the privilege, if available to a former President, was at least one that "carries much less weight than a claim asserted by the incumbent himself." Id., at 345. 

  It is true that only the incumbent is charged with performance of the executive duty under the Constitution. And an incumbent may be inhibited in disclosing confidences of a predecessor when he believes that the effect may be to discourage candid presentation of views by his contemporary advisers. Moreover, to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, see United States v. Nixon, 418 U.S., at 714 ; cf. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501 -503 (1975); Dombrowski v. Eastland, 387 U.S. 82, 84 -85 (1967) (per curiam), a former President is in less need of it than an incumbent. In addition, there are obvious political checks against an incumbent's abuse of the privilege. 

  Nevertheless, we think that the Solicitor General states the sounder view, and we adopt it: 


    "This Court held in United States v. Nixon . . . that the privilege is necessary to provide the confidentiality required for the President's conduct of office. Unless he [433 U.S. 425, 449]   can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure." Brief for Federal Appellees 33. 

  At the same time, however, the fact that neither President Ford nor President Carter supports appellant's claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch. This necessarily follows, for it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.
  ----- Original Message ----- 
  From: Sanford Levinson 
  To: jfnbl at earthlink.com ; conlawprof at lists.ucla.edu 
  Sent: Saturday, July 21, 2007 10:42 PM
  Subject: RE: Contempt of Congress: Statute of Limitations and RefusalofPresent Administration to Bring Charges


  If we analogize executive privilege to the attorney-client privilege in corporate settings, it's absolutely clear that the new owners of a company have complete control over the privilege and can waive it regarding the former management.  So why should it be any different when new management takes over the White House.  There is no serious argument that the executive privilege is a "personal privilege."  It is an assertion of what kinds of confidentiality are necessary to protect the interests of the presidency.  If a new president believes that the institution can tolerate waiver (or, as with President Ford, the actual giving of testimony to Congress), then I can't see why a predecessor would have any standing to object.

  sandy


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  From: conlawprof-bounces at lists.ucla.edu on behalf of jfnbl at earthlink.com
  Sent: Sat 7/21/2007 7:22 PM
  To: conlawprof at lists.ucla.edu
  Subject: Re: Contempt of Congress: Statute of Limitations and Refusal ofPresent Administration to Bring Charges


  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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