Mort Rosenberg on The Road to Effective Enforcement of House Committee Subpoenas

Mort Rosenberg notes that his proposal for reviving the House’s inherent contempt power goes beyond just substituting monetary fines for incarceration as the primary means of coercing compliance with congressional subpoenas. He also recommends that the House consider appointing outside counsel to prosecute contemnors. He argues as follows:

There is . . . sound support for direct appointment by the Speaker of a private attorney to conduct such prosecutions in law, history and practice. As I have indicated, the Supreme Court in Anderson v.Dunn (1821) upheld the constitutionality of the use of inherent contempt by the House and based that ruling on the analogy to its recognition of the inherent power of judges to protect their judicial integrity and authority from attack by means of contempt citations. It particularly noted that no statutory authorization was necessary because such self-protective actions were critical to the maintenance of the judiciary’s institutional independence. However, the Anderson Court’s  qualification that any imposition of jail time could not exceed the session in which the contempt occurred ultimately led to the legislative decision in 1857 to provide the alternative possibility of a criminal contempt prosecution for failures to comply with committee subpoenas. The legislative history of that enactment makes it clear that it was to apply to executive branch officials. Prosecutions under that law were to be conducted by United States Attorneys. What has been currently and conveniently overlooked by DOJ is that at that time United States Attorneys were independent contract employees; there was no Justice Department until 1870.  It must be presumed that Congress was aware of this and was simply authorizing the Speaker to  utilize those non-governmental contract attorneys in the same manner that the Andersoncourt recognized that judges could appoint private prosecutors to vindicate the integrity of their judicial responsibilities, an understanding that the Supreme Court clearly articulated in its 1987 ruling in Young v. U.S. ex re Louis Vuitton upholding court appointment of a private sector attorney to prosecute its contempt citation, which was reiterated the next year in its ruling in Morrison v. Olson. The most recent recognition of this inherent institutional authority was in the 9th Circuit’s October 2018 en banc ruling in U.S. v. Arpaio. These consistent judicial rulings note that this inherent institutional self-protective authority needs no statutory basis and is so constitutionally indispensable that it may not be obstructed by either Congress or the Executive or abandoned by the Judiciary. The indisputable legal analogy to each House’s recognized self-protective authority is evident.

Finally, the appointment of two private prosecutors to assist in the Senate’s Teapot Dome investigation arguably provides further corroboration. The Senate’s inquiry had stalled and after Harding died and was succeeded by Coolidge, Attorney General Daugherty remained in office despite being suspected of deep complicity in the oil lease scandal. The Senate Committee, with the concurrence of Coolidge, agreed to a joint resolution for the appointment of two private counsels to assist in the Senate’s investigation of the lawfulness of the oil eases and to recapture the lost assets. The joint resolution specifically prohibited any DOJ role in their investigation or litigation actions. When Daugherty was forced to resign and a new Attorney General was confirmed a Senate resolution was passed directing a Senate committee investigation of corruption in DOJ during Daugherty’s leadership. The new AG retained the two private counsel as special assistants who brought the inherent contempt citation against Daugherty’s brother that resulted in the Supreme Court’s landmark ruling in McGrain v Daugherty (1927), which established Congress’s current broad investigatory powers, and U.S. v. Sinclair (1929) allowing a criminal citation for refusing to answer committee questions on the ground that he was the subject of a pending civil action regarding the oil leases.

The long standing judicial recognition of the analogous self-protective authorities of the Houses of Congress and judges should give rise to consideration of such a prosecutorial appointment by House authorization upon a vote of a criminal contempt citation by the House. There are plausible grounds for success and the Supreme Court’s recognition of the legitimacy of concurrent or seriatum inherent and criminal contempt citations provides additional constitutional support. The availability of both inherent and criminal processes would revive the historic leverage that made the threat of congressional subpoena enforcement so formidable and successful.

Mort’s full piece may be read here.

 

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