Day: June 28, 2012

Even before the Speaker had certified the contempt, this letter arrived from Deputy Attorney General James Cole informing him that “the Department has determined that the Attorney General’s response to the subpoena issued by the Committee on Oversight and Government Reform does not constitute a crime, and therefore the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General.”

It should be noted that the statute, 2 U.S.C. § 194, assigns a duty to the United States Attorney, not to the “Department.” It is interesting that the letter comes from the Deputy Attorney General, not from the United States Attorney for District of Columbia, who is the official charged with the responsibility for presenting the congressional contempt case to the grand jury.

Presumably the Department would point to the fact that Attorney General Mukasey sent a similar letter in the case of the congressional contempt certifications for Josh Bolten and Harriet Miers. But the fact that something was done before doesn’t make it right, and I cannot understand why the Attorney General (or the Deputy Attorney General), rather than the U.S. Attorney, would be responsible for making the decision that the statute clearly assigns to the latter.

Presumably, in this case the letter did not come from Attorney General Holder because it would look like a conflict of interest for Holder to declare that he would not prosecute himself. But this doesn’t look much better.

 

Update: here is Senator Grassley’s letter to U.S. Attorney Machen questioning whether he has made an independent determination regarding the scope of the executive privilege claim and whether the case should be submitted to the grand jury.

The House is scheduled to vote today on holding the Attorney General in contempt for his failure to comply with congressional subpoenas seeking documents in the Fast and Furious investigation. Since my last post on this subject, the House leadership has decided in addition to voting on the resolution to certify the contempt to the U.S. Attorney, the House will vote on H. Res. 706, which would authorize the Chairman of the Committee on Oversight and Governmental Reform to initiate judicial proceedings “to seek declaratory judgments affirming the duty of Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, to comply with any subpoena [covered by the contempt resolution].”

H.Res. 706 provides COGR an alternative mechanism to attempt to enforce the subpoena. Assuming that the U.S Attorney refuses to present the contempt certification to the grand jury, COGR can file suit in federal court seeking a declaratory judgment that Holder is required to produce some or all of the documents covered by the subpoenas.

Indeed, the U.S. Attorney may look on the availability of the civil enforcement mechanism as a ground for refusing to present the matter to a grand jury, at least until there is a resolution of the civil enforcement case. He may contend that a civil suit is the most appropriate means for resolving disputes between the executive and legislative branches regarding the applicability of executive privilege. This would be consistent with the position taken by the Department of Justice during the Reagan Administration.

However, during the Bush 43 Administration, the Department took a different position. It not only flatly refused to present a congressional contempt case against White House officials to the grand jury, but it also raised numerous jurisdictional objections to the House’s attempt to have the privilege issues resolved in a civil declaratory judgment action. Instead, the Department suggested that the only way the House could enforce a subpoena against an executive branch official would be to send the Sergeant-at-Arms to arrest him or her. Fortunately, Judge Bates did not find this to be a compelling argument.

So the question is- which Department of Justice will show up this time? Will it acknowledge the jurisdiction of the federal courts to resolve a declaratory judgment action regarding executive privilege? If so, a civil enforcement suit may be a relatively attractive and expeditious way of settling the dispute here. But if the Department intends to raise standing, subject-matter jurisdiction and political question issues (and the like), the House may be better off demanding that the U.S. Attorney comply with his statutory duty to present the matter to the grand jury.

Of course, if all else fails, there is always the nuclear option of sending the Sergeant-at-Arms to arrest the Attorney General. Professor Chafetz notwithstanding, however, I think this should be a really last resort.

David Laufman has more here.