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Is the U.S. Attorney Required to Present the Lois Lerner Contempt to the Grand Jury?

The House has now voted to hold Lois Lerner in contempt for her refusal to testify before the House Committee on Oversight and Government Reform. According to the process established by 2 U.S.C. § 194, the Speaker must now certify the statement of facts reflecting the contempt to the U.S. Attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

The House has consistently viewed this language as requiring the U.S. Attorney to present the contempt matter to the grand jury. (By “the House,” I mean the House leadership, majority and institutional counsel at any particular time. I would not be surprised if particular members have taken different positions when they were not in the majority.). See, for example, this 2008 letter from then-Speaker Pelosi regarding the contempt citations for Josh Bolten and Harriet Miers, explaining that “[u]nder section 194, [the U.S. Attorney] is now required ‘to bring the matter before the grand jury for its action.’” (emphasis added)

The ordinary meaning of “duty” supports the House’s position. Any dictionary will tell you that “duty” refers to an obligation, not an option. See, e.g., Black’s Law Dictionary (5th ed. 1979) (“A human action which is exactly comformable to the laws which require us to obey them. Legal or moral obligation. Obligatory conduct or service. Moral obligation to perform.”). Moreover, it seems highly unlikely that Congress used this term loosely or inadvertently. There can be little doubt that Congress wanted to ensure that its contempt citations were actually presented to the grand jury.

Nevertheless, the executive branch has declined to read section 194 as imposing a mandatory obligation. In this 1984 OLC opinion, then-Assistant Attorney General Ted Olson explained that while the language of the statute “might suggest a mandatory obligation,” the statute must be read in light of the common law doctrine of prosecutorial discretion and separation of powers considerations that preclude Congress from directing that a particular individual be prosecuted. Based on these factors, he concluded “that the United States Attorney and the Attorney General, to whom the United States Attorney is responsible, retain their discretion not to refer a contempt of Congress citation to a grand jury.”

Up until now, this reasoning has been used only to refuse to present to the grand jury contempt citations of executive branch officials who had refused to provide information to Congress in accordance with the president’s instructions. In such cases the executive branch believes that requiring the U.S. Attorney to present the matter to a grand jury would unconstitutionally infringe on the president’s executive privilege. Thus, even if the statute were read as mandatory in nature, the U.S. Attorney would be free, or rather required, to decline to present the matter to the grand jury.

Whatever the merits of this position, it is difficult to see why the mandatory language of the statute should be ignored altogether. Surely Congress’s use of mandatory language means, at a minimum, that it did not want the U.S. Attorney to exercise discretion to decide that a particular congressional contempt citation was not important enough to warrant prosecution or that official resources would be better used elsewhere.

Nevertheless, the Obama administration will likely claim, with justification, that the longstanding position of the executive branch allows it to ignore section 194’s mandatory language and refuse to present the Lerner contempt to the grand jury. Assuming that it is unwilling to take the matter to a grand jury, however, a wiser course of action would be to take the House up on its proposal to appoint a special counsel to investigate the IRS matter. Presumably the jurisdiction of that special counsel would include deciding on how to handle the Lerner case.

As they say, discretion is the better part of valor.

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