As you may have heard, President Obama has asserted executive privilege with regard to Department of Justice documents sought by the House Committee on Oversight and Government Reform as part of its investigation of the “Fast and Furious” program, and COGR has voted to hold Attorney General Holder in contempt for failing to produce them. Rather than delving into the merits (on that subject see commentary by Todd Gaziano at Heritage’s The Foundry, John Hinderaker at PowerLine and Andrew Rudalevige at the Monkey Cage), I will lay out the procedural posture of the case in this post.
The Statutory Contempt Process
There are several ways that Congress can attempt to compel the production of information, but it appears that the House will follow the ordinary procedure, which may be referred to as criminal or statutory contempt, Understanding this process begins with a federal statute, 2 U.S.C. § 192, that states “[e]very person who having been summoned . . . to produce papers upon any matter under inquiry before . . . any committee of either House of Congress, willfully makes default . . . shall be deemed guilty of a misdemeanor . . . .”
This provision in turn must be read in conjunction with another section, 2 U.S.C. § 194, which provides:
Whenever a witness summoned as mentioned in section 192 of this title fails . . . to produce any books, papers, records, or documents, as required . . . and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.
A person relying on a literal reading of these provisions could be led seriously astray. In the first place, although nothing in the language of these sections indicates that certification by the presiding officer is a necessary prerequisite to prosecution under section 192, legislative, judicial and executive precedent clearly establishes that this is the case.
In the second place, although section 194 literally seems to require certification whenever “the fact of such failure or failures” is reported to the House or Senate, this is not the case. Before certification takes place, the House or Senate, as the case may be, must vote to hold the witness in contempt. Only then does it become the “duty” of the presiding officer to certify the contempt.
Even more perplexingly, if the House (for example) is not in session, and the “statement of fact” is presented to the Speaker, it is not the automatic duty of the Speaker to certify the contempt, although this is what section 194 seems to say. Instead, the D.C. Circuit held in Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966), that the Speaker cannot automatically certify the contempt, but must exercise some sort of discretionary review akin to that which the House would exercise if it were in session.
Finally, although the statute seems clear that the United States attorney to whom a certification is made must bring it before the grand jury for its action, this is also controversial. The executive branch has maintained that the statute cannot be interpreted to interfere with its prosecutorial discretion or with its authority to assert executive privilege. Specifically, in the one case in history where the House voted, and the Speaker certified, contempt against an executive branch official who withheld documents from a congressional committee on grounds of executive privilege, the Office of Legal Counsel opined that the United States Attorney for the District of Columbia was not required to refer the matter to the grand jury (or to initiate a prosecution). See 8 O.L.C. 101 (May 30, 1984). Although OLC’s reasoning would seem to apply to any case where an executive official asserted executive privilege at the President’s direction, it declined to announce a general rule, limiting its opinion to the specific facts of that case.
The Holder Contempt
So where does that leave us? Attorney General Holder has refused to produce documents subpoenaed by COGR, which would be at least a prima facie violation of section 192, and COGR has voted to report the fact of this failure to the House. Theoretically, COGR might try to report to the House unilaterally, but in actual practice it is up to the Speaker to determine when (and if) the report is actually transmitted to the House. If and when that happens, the House will vote on a resolution (the form of which is attached to the report approved by COGR) directing the Speaker to certify the contempt to the U.S. Attorney for the District of Columbia. Currently this vote is expected to occur next week, but the Speaker could decide to postpone it in order to engage in further negotiations (or for any other reason).
Note that if the report were not transmitted while the House was in session, there would be a question as to whether it could be transmitted to the Speaker during a recess, and certified without action by the full body. Dicta in the Wilson case casts doubt on the propriety of such an approach, but does not rule it out.
Assuming that the report is eventually transmitted to the House and the House votes to approve the resolution, the Speaker would then certify the contempt to the U.S Attorney for the District of Columbia. In all likelihood, the matter would then die, as the U.S. Attorney could be expected to apply the reasoning of the 1984 OLC opinion to decline to present the matter to the grand jury.
There are, however, two caveats in order. First, this happens to be the same U.S. Attorney who was recently appointed by Holder to co-lead the investigation of national security leaks. If he refuses to submit the contempt case against Holder to a grand jury, there will be an unbelievable hue and cry regarding his independence or lack thereof. Moreover, it would bring together two politically charged matters in a way that the Attorney General may wish to avoid.
Second, there is an election coming up (or so I hear). If there should be a change of administration, there is some possibility that a new U.S. Attorney might decide to present the contempt case to the grand jury after all. I would view this as a very remote possibility, but it cannot be ruled out entirely.
In short, although the statutory contempt process against an executive branch official is generally viewed as a purely political matter, with no real legal consequences, it may appear a little differently from Holder’s perspective. True, the chances of his being prosecuted, much less convicted, are virtually zero, but he still has some substantial incentive to avoid the unpleasantness that a House contempt vote would bring.