In his confirmation hearing, Attorney General-designate Michael Mukasey was asked for his views on possible criminal contempt of Congress charges against executive officials such as Harriet Miers and Josh Bolten. Mukasey told the Senate Judiciary Committee that if an official who had asserted executive privilege was referred for contempt of Congress, he would look at whether the US Attorney could say that it was unreasonable for the official to have relied on “the privilege or the order of the President.” Mukasey explained that unless the US Attorney could say that the reliance was unreasonable, the person “can’t be found to have had the state of mind necessary to warrant charging her or him with criminal contempt.”
At first blush, Mukasey’s position might seem to represent a significant shift from the executive branch position reflected in a 1984 Office of Legal Counsel opinion and followed by Republican and Democratic Administrations since. The OLC opinion argued that the congressional contempt statute simply does not apply to an executive official who carries out the President’s claim of executive privilege. It based this conclusion both on the legislative history and historical implementation of the statute, and on the claim that the statute would be unconstitutional were it applied in this context. The opinion in fact states that “[t]he President, through a United States Attorney . . . may not . . . prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege.”
Mukasey’s statement, although ambiguous, implies that the congressional contempt statute could be applied in some circumstances to an official who asserted executive privilege on the President’s behalf. It also suggests that the difficulty in prosecuting such an official would not lie in any special protection for the assertion of executive privilege, but in the need to establish that the official had the mens rea necessary to violate the statute.
If this is Mukasey’s view, however, it is inconsistent with the Supreme Court’s holding in Sinclair v. United States, 279 U.S. 263 (1929), where the Court made clear that an honest mistake of law is not a defense to a charge of violating the congressional contempt statute: “There is no merit in appellant’s contention that he is entitled to a new trial because the court excluded evidence that in refusing to answer he acted in good faith on the advice of competent counsel. The gist of the offense is refusal to answer pertinent questions. No moral turpitude is involved. Intentional violation is sufficient to constitute guilt. There was no misapprehension as to what was called for. The refusal to answer was deliberate. The facts sought were pertinent as a matter of law, and section 102 made it appellant’s duty to answer. He was bound rightly to construe the statute. His mistaken view of the law is no defense.”
On the other hand, Mukasey’s view may be that executive officials, unlike private citizens, are immune from prosecution for contempt when they have a mistaken, but reasonable, view of the law. If so, the difference between his position and that of the OLC opinion may be less than appeared at first. It presumably would be a very rare circumstance where the Justice Department found that an official’s reliance on instructions of the President or on the written advice of the Department itself was unreasonable. Indeed, it could turn out that Mukasey’s statement was nothing more than a more diplomatic and judicious-sounding phrasing of the executive branch’s longstanding position on congressional contempt referrals.