Mort Rosenberg on Congressional Investigations

          Last Thursday, the Constitution Project released a handbook on congressional oversight and investigations authored by the incomparable Mort Rosenberg, who spent more than 35 years at the Congressional Research Service not only learning everything there is to know about congressional oversight of the executive branch but participating in most of the major executive-legislative disputes during that time.  For reasons known only to itself, CRS let him retire, which means that he is now free to share his encyclopedic knowledge with the world.   

The following quote from the book summarizes its purpose: “As the title of this handbook suggests, it is designed to be an introduction to the legislative investigatory process. It is intended to shed some light on this aspect of the arcane, sometimes impenetrable, and often seemingly bizarre “Law of Congress” that can confound the most sophisticated legal practitioners representing government and private clients before an inquiring committee, and which may even elude the members and staff of committees conducting such inquiries. The law of congressional investigation consists of a complex combination of constitutional rulings and principles, statutory provisions, Byzantine internal rules adopted by the House and Senate and individual committees, informal practices, and folkways. Although there is no black letter guide for the uninitiated, we hope that this handbook will provide a first step in that direction.” 

Entitled “When Congress Comes Calling:A Primer on the Principles, Practices, and Pragmatics of Legislative Inquiry,” this book is full of cites to the kinds of “precedents” that can’t be found in Westlaw or Lexis.  Congressional investigative staff, agency lawyers and anyone who practices in this field will want to be sure to have a copy of this work on the shelf.



How the Senate Ethics Committee (and Everybody Else) Got Access to the Burris Transcript

           Since Watergate, congressional committees have from time to time sought access to confidential federal law enforcement information protected by either the rules of grand jury secrecy or by statutory limitations on disclosure of intercepted wire or oral communications.  In some cases the committee will apply directly to the court.  For example, during the impeachment proceedings against President Clinton, the House Judiciary Committee wanted to get access to memoranda prepared by the Justice Department in connection with a grand jury investigation of campaign finance violations in the 1996 presidential campaign.  As counsel to the House, I represented the committee in applying to the chief judge of the D.C. District Court for permission to access these memoranda. 

Where law enforcement officials are supportive of the congressional request, however, the normal procedure has been for the Department of Justice to file a motion seeking permission of the court to release the materials to the committee.  This was the process followed by the Senate Select Committee on Ethics, which wrote Attorney General Holder on March 19, informing him that the committee is “conducting a preliminary inquiry into the circumstances surrounding the appointment and seating of Senator Roland W. Burris.”  It requested access to wiretap and other evidence relevant to that inquiry and asked that the Department of Justice seek such court order as might necessary to respond favorably to the request.  The committee also explained that any evidence received would be treated confidentially under the committee’s rules and expressed its willingness to enter into an agreement with the Department regarding non-disclosure. 

The Justice Department subsequently filed a motion as requested, and Judge James Holderman, chief judge of the US District Court for the Northern District of Illinois, issued an order on May 26 granting the motion.  The legal issue before the court was whether the committee qualified as an “investigative or law enforcement officer” entitled to receive wiretap evidence under 18 U.S.C. § 2517(1). 

An “investigative or law enforcement officer” is defined as “any officer of the United States . . . who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.”  18 U.S.C. § 2510(7).  This definition raises three issues with respect to the Senate Ethics Committee. 

First, although not considered by Judge Holderman, is the issue of whether the committee consists of “officers of the United States.”  Depending on the context, laws using this or similar terms have sometimes been interpreted as including Members of Congress, and sometimes not.  See generally Operation Rescue Nat’l v. United States, 147 F.3d 68 (1st Cir. 1998).  The term itself is therefore ambiguous as applied to Members. 

The second issue is whether the committee is empowered “by law” to conduct investigations (it is clear that it is not empowered to make arrests).  Here the court found  the constitutional authority of disciplining Members, which is granted to each House under article I, § 5, cl. 2, implies an investigative authority, and this, combined with the delegation of this investigative authority to the committee pursuant to Senate Resolution 338, satisfies this requirement.  One might quibble with this conclusion on the grounds that the committee’s authority has been authorized by “resolution,” rather than by “law,”  but the court’s conclusion seems to me to be better view.  After all, the Constitution is the supreme law of the land and even congressional rules have been considered to have the force of law. 

The final, and most difficult, issue is whether the committee is authorized to investigate violations of federal criminal law.  The court rested its affirmative conclusion on Senate Resolution 388, which provides in pertinent part  that the committee is to “receive complaints and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct and violations of rules and regulations of the Senate, relating to the conduct of individuals in the performance of their duties as Members of the Senate, or as officers or employees of the Senate, and to make appropriate findings of fact and conclusions with respect thereto.”  The court concluded that “because the members of the Senate Ethics Committee are authorized by law to conduct investigations into misconduct that may reflect upon the Senate, including allegations of misconduct by a United States Senator that may violate the criminal laws of the United States, the members of the Senate Ethics Committee are investigative officers as defined by section 2510(7) and thus are qualified to receive disclosures under section 2517(1) for use in the performance of their official duties.” 

The problem with the court’s reasoning is that while the Senate Ethics Committee is clearly authorized to investigate whether a Senator (or Senate officer or employee) has committed a violation of law in the performance of official duties, this is rather different from an authority to investigate violations of law per se.  One could argue that the statutory definition in 2510(7) is meant to include only those who have a role in investigating offenses for the purpose of enforcing the law, while the committee’s authority is to investigate persons, not offenses, for purposes of determining whether their conduct merits discipline.  The fact that this conduct may or may not have violated a criminal statute, while relevant to the committee’s conclusion, is not determinative.   

Nonetheless, I think that the court reached the correct result here.  Because each House of Congress has broad powers to investigate and obtain information for purposes of carrying out its constitutional functions, courts should be extremely reluctant to read a statute as applying in such a way as to limit the congressional investigatory authority.  It is this overriding constitutional consideration, rather than the statutory language, which is most supportive of Judge Holderman’s ruling. 

This explains how the Senate Ethics Committee got access to the Burris transcript.  Less explicable is how that transcript got released to the general public.  The reason is that the Justice Department, in its sealed motion to Judge Holderman, attached a copy of the transcript.  When the judge decided to unseal the motion (which seems appropriate in the absence of any objection from lawyers for Senator Burris or former Governor Blagojevich), the transcript was unsealed as well. 

It seems to me that this has to have been an error.  The whole reason for the motion was that the law severely restricts the dissemination of evidence collected by wiretaps.  The Senate Ethics Committee was entitled to access only because it was found to be within the statutory exception for “law enforcement and investigative officers.”  The fortuity that the Justice Department attached the transcript to its motion certainly should not transform that exception into one for the entire world.

Obama’s First Signing Statement and the Grassley Rider

President Obama has issued his first signing statement with regard to the Omnibus Appropriations Act for FY2009.  Professor Eric Posner, at the Volokh Conspiracy, observes that Obama’s signing statement contains many of the “same old Reagan/Bush/Clinton/Bush theories” about executive power and prerogatives. 

Professor Peter Strauss, on the other hand, responds that Obama’s signing statement was in fact narrower in its claims with regard to certain whistleblower protections contained in Part D, Section 714 of the Act (which I will refer to as the “Grassley Rider” after its principal proponent in the Senate).  The Grassley Rider prevents funds from being used for the salary of any federal officer or employee who attempts to prevent “any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress” or retaliates against such officer or employee.  In short, it protects federal whistleblowers who wish to communicate with Congress about matters relating to their jobs or agencies. 

With regard to the Grassley Rider, Obama says “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.” 

Strauss claims that “[t]his is so much less of a reservation than President Bush (and his predecessors) asserted as to give hope that he is serious about transparency, and about taking the muzzle off government personnel. They would simply have ended the sentence at ‘Congress.'”  [note: Strauss’s email, along with Posner’s initial post, may be found among the VC posts for March 12]. 

Strauss is simply wrong.  Because the Grassley Rider is not a new provision, but has been included in annual appropriations measures since FY1997, one can compare Bush’s signing statements on this exact issue.  For example, in a December 10, 2004 signing statement, Bush stated that he would construe the Grassley Rider “in a manner consistent with the President’s constitutional authority to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.”   

Like Obama, Bush purported to authorize the withholding only of certain categories of information.  In reality, however, these categories are extremely broad.  Indeed, if Bush had stopped after “deliberative processes of the Executive,” his statement would have arguably covered pretty much anything the executive wanted to withhold.  As anyone who has performed congressional oversight will tell you, the deliberative process privilege can be and has been (not necessarily properly) used to withhold a great deal of information that the executive prefers not to share with Congress.  The words “or the performance of the Executive’s constitutional duties” I translate as meaning “just in case there is something that we can’t justify withholding under deliberative process or other privilege, we will still withhold it if we think it appropriate to do so.” 

How is Obama’s statement any different from Bush’s, though?  Although it uses different phrases, it amounts to exactly the same thing.  I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”  If Obama had stopped at “properly privileged,” his statement would still cover anything under Bush’s foreign relations and national security categories (executive privilege) and Bush’s deliberative process category (deliberative process privilege).  As a practical matter, this is enough to give the executive flexibility to withhold information in virtually all circumstances.  (Needless to say, the word “properly” is meaningless because it is the executive that will decide what is “properly” privileged).   

By adding “or otherwise confidential,” Obama, like Bush, leaves himself a catchall category that can be used to justify the withholding of any information that might be difficult or impossible to withhold under a deliberative process theory.  It is hard to imagine any information (other than that which is already public) that couldn’t be withheld under this catchall provision.  

The only possible difference between Bush and Obama would be if one could say that the “performance of the Executive’s constitutional duties” is somehow broader than the “otherwise confidential” category.  However, if anything, the reverse would seem to be true.  The term “confidential” could arguably cover any non-public information of any kind.  And certainly any information that the administration thought would impair the performance of its constitutional duties could be claimed to be confidential (even if it somehow could not be argued to fall within the deliberative process privilege). 

Bottom line, both Bush and Obama claim an executive branch prerogative to withhold any information from Congress when it is (allegedly) in the public interest to do so.   

So how do we know that it is really in the public interest?  Bush and Obama have the same answer—trust us.


DOJ’s Brief in Miers–Right Without Remedy?

The Department of Justice brief in the Miers case argues that Congress has no judicial remedy when the executive branch refuses to provide it with information and, moreover, that the Constitution bars Congress, or either House thereof, from ever having a judicial remedy when such information is withheld.  Specifically, DOJ contends that the House Judiciary Committee lacks standing to enforce subpoenas to current and former executive officials.

            DOJ relies primarily on historical practice to support its position.  As it notes, “[f]or over two hundred years, inter-branch struggles have been resolved outside the scope of judicial review under Article III by the political branches exercising the political tools at their disposal to reach accommodation.”  From this history it concludes that Congress is limited to using “political tools,” such as the appropriations and advice and consent powers, in order to force the executive branch to provide information. 

While DOJ makes its argument well, its position is really quite radical and raises fundamental questions about the nature of Congress’s authority to demand information.


In general, of course, while Congress has the authority to oversee the executive branch’s execution of the law, Congress cannot direct the executive branch in that execution, except by passing a new law. Let’s say, for example, that Congress appropriates funds for homeland security grants to be distributed among different states and localities, and sets forth guidelines that the Department of Homeland Security is to use in making the distribution. If the congressional committees that oversee DHS disagree with how the department interprets or applies those guidelines, they cannot order DHS to change its decision. Nor would the committees have standing to seek judicial relief for such an order (as opposed to potential recipients of the grants, who likely would have standing).

Congress nonetheless has political tools that it can use to influence agency behavior. Thus, in the example above, the congressional committees could threaten to reduce the authorized level of funding for DHS or some program that DHS supports. Such a threat might very well cause DHS to decide, upon reflection, that it agrees with the committees about how the grants should be allocated. But this doesn’t change the fact that the committees have no right to direct the allocation of the grants. In short, neither the committees nor the Houses to which they belong suffer a judicially cognizable injury merely because the executive branch has violated either the law or the Constitution.

This, it seems to me, is the best way to understand the standing issue in Raines v. Byrd, 521 U.S. 811 (1997). Suppose Congress had passed an appropriations bill and the president, rather than vetoing it, had simply refused to spend some of the appropriated funds. No matter how blatantly illegal the president’s action might be, it is clear that neither House of Congress, nor individual members of either, could sue the president. In Raines, the situation was no different, except that the president’s action was explicitly authorized by the line item veto act, which purported to give him the authority to cancel individual spending items. In denying members of Congress standing, the Supreme Court simply found that the mere fact that this act created a greater likelihood of future unconstitutional cancellations of spending items did not cause a cognizable injury to the members. Moreover, as the Court suggested, allowing standing in Raines would require that standing be permitted whenever one of the political branches asserts an allegedly unconstitutional authority that diminishes the power of the other.

If DOJ’s position in Miers is correct, Congress’s ability to get information from the executive is really no different than its ability to demand that the executive comply with the law generally. That is to say, Congress may request information and may pressure the executive to comply with these requests through actual or threatened use of the political tools at its disposal, but, at the end of the day, Congress has, and can have, no legal remedy to force compliance.

This position is subtly, but significantly, different from the position that the executive and legislative branches have traditionally taken with regard to struggles over congressional access to executive information. It is true that the branches have generally treated these struggles as political, rather than legal. It is also true that the absence of a practical or readily available legal remedy has been a background fact, sometimes explicitly acknowledged, in these struggles.

For example, in 1909 the Senate demanded documents from the Attorney General and the head of the Bureau of Corporations regarding the reasons that antitrust proceedings had not been brought against a particular company. Senator Bacon offered a resolution to affirm the right of the Senate to obtain all documents in the files of the executive department, but acknowledged “there was no present or immediate remedy in case the head of a department or the President should refuse.”

The absence of a “present or immediate remedy,” however, is quite different than the absence of any possible remedy (of a legal nature), which is the position taken now by DOJ. Relying on a 1984 OLC opinion authored by Ted Olson (“Prosecutions for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101 (1984)), DOJ maintains that “the criminal contempt statute is inapplicable, and therefore that it will not pursue criminal contempt prosecutions, where an Executive Branch official in good faith relies on the President’s assertion of Executive Privilege and testimonial immunity.” In the same memo, OLC stated that “the same reasoning that suggests the statute could not be constitutionally be applied against a Presidential assertion of privilege applies to Congress’ inherent contempt powers as well.”

Critical to OLC’s conclusions (but unmentioned by DOJ in its brief) was the availability of an alternative civil remedy to obtain executive branch information. The Olson memo states that “[a]lthough Congress has a legitimate and powerful interest in obtaining any unprivileged documents necessary to assist it in its lawmaking function, Congress could obtain a judicial resolution of the underlying privilege claim and vindicate its asserted right to obtain any documents by a civil action for enforcement of a congressional subpoena.” Moreover, the memo denies any constitutional impediment to such an enforcement action, noting that “there is little doubt that . . . Congress may authorize civil enforcement of its subpoenas and grant jurisdiction to the courts to entertain such cases.”

The OLC, which was very familiar with the history of congressional efforts to obtain executive branch information (see “History of Refusals by Executive Branch to Provide Information Demanded by Congress,” 6 Op. O.L.C. 751 (1982)), understood that there was no inconsistency between that history and recognition of a civil remedy to enforce congressional subpoenas. On the contrary, that history shows a recognition by all three branches of the congressional power of inquiry and investigation, and the corresponding right of each House to demand information necessary to assist it in its lawmaking function.

This right is fundamentally different from the general congressional interest in ensuring executive branch compliance with the law. As discussed in previous posts, refusals to comply with congressional demands for information fall within the ambit of legislative privilege. Legislative privilege, as Chafetz defines it, consists of “those special rights that individual Members or Houses of the legislature possess in order to facilitate their legislative duties.” Unlike the interests advanced in Raines, which involved indirect impacts on the legislative process, legislative privilege protects rights that have historically been considered fundamental to maintaining legislative independence and integrity.

Traditionally, legislative privilege has been vindicated through the inherent contempt powers of each House. There are practical reasons why it is difficult to use this process against executive officers (and, as a matter of constitutional structure, it is probably impossible to use it against a sitting President). However, as OLC implicitly recognized in the 1984 Olson memo, this remedy would be available against subordinate executive officers unless there is an alternative mechanism by which the House or Senate can vindicate its rights.

Since DOJ has now repudiated the position of the 1984 OLC memo with respect to the availability of a civil remedy, the question remains whether it also repudiates the memo’s denial of an inherent contempt remedy. If so, then the effect of DOJ’s position would be to push the branches toward unseemly confrontations in which congressional agents would arrest current or former executive officers. Ultimately, such disputes would still have to be resolved by courts acting upon habeas petitions or other actions brought by the arrested officers. One wonders why this game would be worth the candle.

On the other hand, DOJ may now be claiming that there is no possible legal remedy for executive refusals to provide information to Congress. Such a position would be inconsistent with the historical understanding of a congressional right to obtain information from the executive. Without any potential remedy, the right would be illusory, the legislative privilege chimerical, and the congressional investigative power undermined.

The Significance of Reed

            While the novelty of the situation presented in Reed is apparent, neither the congressional nor the judicial response suggest that the specter of a congressional committee seeking judicial relief was viewed as a radical departure from historical practice or one that threatened established constitutional principles.  From the congressional perspective, the select committee viewed the action as a logical extension of the established law that authorized federal courts “to render assistance to the National Government by appropriate remedy in the exercise of a sovereign power or in the discharge of a sovereign duty” and to decide cases involving the exercise of the congressional investigatory and contempt powers.

This was not merely an idiosyncratic view on the part of the members of the select committee, nor a position concocted simply for purposes of the litigation. The Senate’s action in adopting a rule permitting its committees to sue, a rule which has remained in effect to the present day, demonstrates that the Senate as a whole saw no constitutional impediment.

With regard to the judicial reaction, the district court held that it lacked the constitutional power to hear the select committee’s suit, but only on the grounds that the suit required it to interpret ambiguous Senate resolutions and thus impinged on the Senate’s rulemaking authority. The Supreme Court did not even endorse this limited holding, resting its decision solely upon the absence of evidence that the Senate intended to authorize the select committee to sue.

This judicial reaction is not surprising in light of the law as it had developed in the United States prior to 1927. First, it was firmly established that in the United States, unlike in Britain, the courts had the power to hear actions brought by witnesses who had been imprisoned or sanctioned for contempt by either House of Congress and in so doing to determine the lawfulness of a particular congressional investigation or demand for information (see, eg, Kilbourn v. Thompson, 103 U.S. 168 (1880)). Second, the Congress had passed, and the Court had upheld, the congressional contempt statute which gave the courts an affirmative role in aiding congressional investigations (see In re Chapman, 166 U.S. 661 (1897)). Finally, it was established that other government entities had standing to seek judicial assistance in aid of their investigatory functions, and that authorizing the federal courts to provide such assistance did not violated constitutional limitations (see, e.g., ICC v. Brimson, 154 U.S. 447 (1897)).

In light of these precedents, there could be no serious question that the select committee’s claim for relief was one that could be judicially cognizable under the Constitution.

The Supreme Court Decision in Reed

             After the Court of Appeals affirmed the district court, the select committee petitioned the Supreme Court for certiorari, emphasizing that the questions presented “are of such importance to the proper exercise by the Senate of the United States of its separate constitutional powers, that the petitioners, as a committee of the Senate, deem it their duty to present, for the first time in the history of this Government, on behalf of the Senate and in pursuance of the powers vested in them by the Senate, a petition to this Court for writ of certiorari in order to maintain and preserve the coordinate authority of the Senate and the Legislative branch of the Government.”

The first question that the select committee presented to the Court was “whether there is presented a case or controversy of which the Federal courts may under the Constitution be vested by the Congress with jurisdiction to determine.” The select committee argued that there was a “real conflict between the claims of these parties” with “each side claim[ing] to be entitled to the present possession of . . . the ballot boxes and election papers.” The select committee contended that the issue of entitlement to this evidence was a proper judicial question, and that the issue of its authority to act was merely an incidental question that the court could decide in the course of resolving the case.

The select committee’s argument sidesteps the central point of the district court’s decision, namely that the select committee’s authority to act should be determined by the Senate itself, not by the court. The district court’s ruling reflected a principle that would be explicitly adopted by the D.C. Circuit many years later: courts may not take it upon themselves to interpret ambiguous congressional rules because the Constitution gives each House the authority to determine its own rules.

By the time the case reached the Supreme Court, however, the Senate had already passed a resolution that explicitly provided that the select committee’s authority had continued after the March 4, 1927 adjournment, and reaffirmed the select committee’s continuing authority to act under Senate rules. Perhaps because this action mooted the district court’s reason for dismissing the case, the Supreme Court did not address the reasoning of the court below. The Court also did not directly address the question, raised by the select committee, of whether there was presented a “case or controversy” over which the federal courts could constitutionally exercise jurisdiction.

Instead, the Court issued a brief opinion, in which it ruled that the district court lacked jurisdiction because the select committee was not “authorized by law to sue,” as required by the jurisdictional statute under which it was proceeding. The Court noted that the “suit cannot be maintained unless the committee or its members were authorized to sue” by Senate resolutions, “even if it be assumed that the Senate alone may give that authority.” The resolutions in question, however, gave no such express authority.

The resolutions provided that the select committee could “do such other acts as may be necessary in the matter of said investigation.” However, the Court rejected the suggestion that this language provided implied authority to sue. It cited the custom of both the Senate and the House to rely on their own powers to compel the attendance of witnesses and production of evidence. It also noted that Congress had enacted the congressional contempt statute (providing for criminal prosecution of those who refuse information demanded by congressional committees) to facilitate its investigations. These were the traditional methods of enforcing congressional demands for information, and “[i]n the absence of some definite indication of that purpose, the Senate may reasonably be held to have intended to depart from its established usage.”

Nowhere did the Court suggest that there was any constitutional barrier to prevent a congressional committee from seeking judicial assistance. Indeed, the Court’s opinion implicitly invited Congress to authorize its committees to sue if it were so inclined, an invitation that caused the Senate, shortly after the Reed decision was issued, to pass a rule authorizing all of its committees to sue.

The Reed Case and Congressional Standing

            Because the analysis of congressional standing in the Miers case depends heavily on an understanding of the history of legislative privilege, attention must be paid to the case of Reed v. County Commissioners, 277 U.S. 376 (1928).  Reed involved a select Senate committee formed in the spring of 1926 to investigate alleged fraudulent and unlawful election practices.  After the November 1926 senatorial election in Pennsylvania was contested, the Senate authorized the select committee to take custody of the ballot boxes and to investigate allegations of fraud, illegal expenditures and other irregularities relating to that election.  However, when the Congress adjourned sine die on March 4, 1927, the select committee had not yet taken possession of the ballot boxes and the Senate had not voted on a resolution to continue the select committee’s existence after adjournment.


            Subsequently, the select committee demanded that county officials in Delaware County, Pennsylvania deliver to it all ballot boxes and certain other election records.  The county officials responded that they were under legal obligation to maintain custody of the records in question, and could not deliver them to the select committee in the absence of a court order establishing the select committee’s right to the records.  The select committee sought the assistance of the Senate sergeant at arms, who declined to intervene because of questions about the select committee’s authority following adjournment. The select committee then petitioned the federal court for an injunction directing the county officials to turn over the records.  To my knowledge, this was the first time that a congressional committee directly sought the assistance of a court.


The District Court Decision

The district court dismissed the case for lack of jurisdiction. It acknowledged the “broad doctrine of the right of the government as parens patriae in promoting the interest of the public, to have the assistance of its courts by injunctive remedy to promote the public interest and prevent injury to public welfare is sustained by ample authority cited by [the select committee]. Reed v. County Commissioners, 21 F.2d 144, 147 (E.D. Pa. 1927). Nevertheless, the court viewed the case before it as different because the select committee’s authority to act after the Senate’s adjournment was at issue. If the question of the select committee’s authority to direct the sergeant at arms had arisen while the Senate was still in session, the court noted, “the question of their authority to act and to have the sergeant at arms comply with their orders, would be determined by the Senate itself.” The court concluded that it lacked the power to make that determination in the Senate’s stead as “the determination of that question is, under the Constitution, conferred upon the Senate alone” and was therefore a legislative, not a judicial, question.

The court had some difficulty in reconciling its conclusion with the established principle, which had been reaffirmed by the Supreme Court earlier that year in McGrain v. Daugherty, 273 U.S. 135 (1927), that individuals imprisoned for contempt of Congress were entitled to judicial review through habeas proceedings. This precedent established, as the court recognized, that controversies regarding the exercise of congressional investigatory power are judicially cognizable. However, as the court noted, such cases were distinguishable on the grounds that the process came from the Senate as a whole, not a committee acting on its own. In these cases, any questions regarding the proper interpretation or application of Senate rules would have been resolved by the Senate itself in the course of holding the individual in contempt.

The court, however, seemed not to be entirely satisfied with this distinction. To bolster its conclusion, it pointed to the fact that a writ of habeas corpus is a right guaranteed by the Constitution and that therefore it is a proper judicial function to resolve habeas cases in which there are “questions of life, liberty, or property between the individual and one depriving him of those rights.” This language could be read to suggest that the nature of the action (i.e., a claim for habeas relief by an individual rather than a claim for injunctive relief by a congressional committee), rather than the question presented (the interpretation of ambiguous congressional rules), determines whether the matter is a judicial or a legislative issue.

To the extent that the court was going in this direction, it was mistaken. The fact that the writ of habeas corpus is mentioned in the Constitution has no bearing on whether the writ authorizes judicial review of congressional contempt proceedings. In Britain the courts consistently found that the right of habeas did not extend to individuals imprisoned by Parliament, and American courts could have taken the same view. Moreover, American courts have allowed actions other than habeas, such as false imprisonment suits, to challenge congressional contempt proceedings.

Ultimately, however, the court did not find that congressional committees were barred in all cases from seeking judicial relief in support of investigations. The court left open the possibility that such an action would be permitted where the committee’s authority to act was clear, noting that “[w]hether or not, if a remedy through the courts be open to them, it would be by proceeding in a court having jurisdiction over the person of the sergeant at arms, has not been considered or suggested by either party.” This interesting observation raises the question of whether the court’s ability to resolve the controversy requires jurisdiction over the congressional official with the power to arrest individuals who refuse congressional orders.

If the judicial power extends to a claim for relief by an individual who has been sanctioned by Congress for refusing to provide information, it must also extend to a congressional action alleging that the individual is subject to sanction for this refusal. The only distinction between the two actions is which party is the plaintiff and which is the defendant. This distinction might be significant if the court lacked the power to provide relief to the congressional plaintiff— but this could not be so once the declaratory judgment became an available remedy. It might also be argued that the sergeant at arms is a necessary party to the action, a possibility hinted at by the passage quoted above.

[My next post will analyze the Supreme Court decision]

When the Justice Department Takes the Fifth

From Chris Wallace’s interview of Representative Pete Hoekstra (ranking member of the House intelligence committee, also known as “HPSCI”) yesterday:

WALLACE: On Friday, the Justice Department moved to block congressional investigations of the destruction of these CIA tapes, saying that it would jeopardize its own probe.

Congressman Hoekstra, does that mean your committee is going to stand down?

HOEKSTRA: No, I don’t think so. I think what we’re going to do is we want to hold the community accountable for what’s happened with these tapes. I think we will issue subpoenas.

And once these witness appear in front of the committee, then I think we’ll have to make the decision as to whether we’re going to provide them with immunity or not. But our investigation should move forward.

            At first blush, Hoekstra’s reference to the granting of immunity seems like a non sequitur.  After all, he was asked whether HPSCI would continue its investigation of the tape destruction despite DOJ’s apparent opposition.  What does that have to do with whether HPSCI might take the extraordinary step of granting immunity to witnesses, assuming that one or more of these witnesses invoke the Fifth Amendment privilege against self-incrimination? 

The reference to immunity is understandable, however, in the context of Hoekstra’s prior experience in conducting investigations in parallel with ongoing DOJ investigations. In these situations witnesses who are cooperating with DOJ, even those who have already reached a plea agreement or immunity deal, will nonetheless assert a Fifth Amendment privilege vis a vis Congress. This practice stands the purposes of the Fifth Amendment on its head, since the privilege protects individuals from testifying in criminal trials, not in congressional hearings. However, by condoning or encouraging this practice, DOJ can frustrate congressional investigations that it views as nuisances.

An example of how this works is Duke Cunningham, the former congressman now serving time in federal prison for accepting millions of dollars in bribes. Cunningham’s plea agreement required him to cooperate with federal and state law enforcement agents and attorneys, and protected him against potential criminal prosecution for truthful statements made in the course of that cooperation. However, it did not (at least expressly) require cooperation with Congress. The plea agreement also gave DOJ a great deal of leverage over Cunningham because it promised him the possibility of a reduced sentence if his cooperation was satisfactory to the Justice Department.

As a consequence, when HPSCI wanted to interview Cunningham as part of its inquiry (which I led) into his activities as a member of the committee, his lawyer, Lee Blalack, refused to allow Cunningham to cooperate absent permission from the Justice Department. As Blalack more or less acknowledged, his concern was not really that Cunningham would be prosecuted for statements made to HPSCI—instead, he believed that DOJ might retaliate against Cunningham for cooperating with the committee by refusing to seek a reduction in sentence. In effect, this gave DOJ a veto right over Cunningham’s appearance before HPSCI. Thus, when DOJ not only refused to give permission for Cunningham to cooperate but actually asked HPSCI to stop trying to interview him, Blalack informed the committee that Cunningham would not cooperate voluntarily and, if subpoenaed, would assert the Fifth in response to any questions.

What do experiences such as this mean for HPSCI’s investigation into the tape destruction? The chances that HPSCI will actually grant immunity to any witnesses are slim at best. Nor should it do so, at least with respect to witnesses who are cooperating with federal law enforcement. Instead, HPSCI should insist that any agreements, explicit or otherwise, that DOJ reaches with witnesses must also provide for congressional access to these witnesses on the same terms. The Fifth Amendment is supposed to be a shield against compelled self-incrimination in criminal cases, not a sword for the executive branch to use against congressional inquiries.

DOJ Politicization Program

           Today I attended a DC Bar program entitled “Politics Inside the Department of Justice: Did the Bush Administration Cross the Line?”  The panel consisted of Bud Cummins, (former U.S. Attorney for the Eastern District of Arkansas, one of eight US attorneys who were fired), Joseph Rich (formerly of the DOJ Civil Rights Div) and Lee Casey (Baker Hostetler partner who formerly served in the Office of Legal Counsel and Office of Legal Policy in the Reagan Administration).  Charlie Savage, Pulitzer Prize-winning reporter for the Boston Globe and author of the new book “Takeover,” served as moderator. 

            The most interesting insights came from Cummins, who gave a candid and balanced assessment of the US attorney firings.  Cummins said that he does not view the US attorney firings as part of some master plan to politicize the Justice Department (what he described as the “Karl Rove/Dr. Strangelove” theory).  Instead, he believes that the plan was really motivated by the desire of mid-level DOJ officials (like Kyle Sampson) to open up some US Attorney slots that they or their friends could fill.  He is mostly critical of senior DOJ officials for (a) failing to exercise “adult supervision” over their subordinates and (b) for falsely telling Congress that the terminations were based on performance.   

            During the discussion, Savage referred to the May 11, 2006 email sent by Kyle Sampson, telling another DOJ official that “[t]he real problem we have right now with Carol Lam that leads me to conclude that we should have someone ready to be nominated on 11/18, the day her 4-year term expires.”  Although  the email says nothing about what the “real problem” was, Savage argued that the timing suggests that Lam’s firing was related to the search warrant executed on CIA official Dusty Foggo a couple of days later.

             After the panel discussion, I talked with Savage, who seems like a nice young man, and tried to persuade him that this inference is patently ridiculous.  As I explained to him, there is absolutely no evidence that (a) Sampson knew anything about the Foggo search warrant, or (b) anyone at DOJ or the WH cared about, or ever tried to stop, either the Foggo search warrant or the Cunningham investigation more broadly.  Add to this the fact that Lam was on the list of US attorneys to be fired long before there was a Cunningham investigation, and the fact that there are other DOJ emails in the same time frame indicating that the “real problem” with Lam related to her handling of immigration cases and had nothing to do with Cunningham or Foggo.  (I have written a more extensive analysis of this issue, which I will put up on this site once we get the capability).    

             Savage didn’t dispute these facts and said that he wasn’t asserting that Lam had in fact been dismissed for reasons relating to the Foggo/Cunningham investigation, only that there was evidence (“smoke” as he put it) to suggest the possibility.  I suggested that if he really believes this, he should investigate and determine whether there is any substantiation for this theory.  He is an investigative reporter after all.

Inherent Contempt 101

There is an interesting article from the Politico regarding the enforcement options available to Congress with respect to the refusal of Harriet Miers and other former or current Administration officials to provide information in the investigation of the firing of US attorneys.   The article focuses in particular on the potential for using “inherent contempt,” which it describes as a “really odd” but “technically legal” process.

Inherent contempt is the term used for the procedure by which a legislative body, such as the House or Senate, may arrest, try and imprison a person for contempt.  The Supreme Court has long recognized that the power of each House of Congress to punish contempt, although not explicitly granted by the Constitution, is “essential to the effective exertion of other powers expressly granted, and therefore [] implied.”  McGrain v. Daugherty, 273 U.S. 135, 169 (1927); see Anderson v. Dunn, 19 U.S. 204 (1821) (first Supreme Court case recognizing the power of the House to punish contempt).  The House and Senate exercised this power on a regular basis until the early 20th Century, but the House has not used it since 1916 and the Senate has not used it since 1935.

Although inherent contempt may seem archaic, and the idea of Congress putting people in prison may be unsettling, there is no serious question that the power exists and could be lawfully exercised under the proper circumstances.  It is, however, remarkable that this long-dormant power has enjoyed such a resurgent popularity in recent months.  Not only are many bloggers at sites such as TPM Muckraker evidently eager to see this power used to lock up various Bush Administration officials, but even House Judiciary Committee Chairman John Conyers asserted, in a July 19, 2007 letter to WH Counsel Fred Fielding, that inherent contempt might be used against WH Chief of Staff Josh Bolten.  To appreciate how unusual this is, consider that during the Clinton Administration, Republican Committee Chairman (Dan Burton, eg) wrote hundreds of letters complaining about failure to provide information or respond to subpoenas, but to my knowledge not one made reference to the possibility of inherent contempt.  Indeed, inherent contempt has never been used, or even attempted to be used, as a means of resolving an executive-legislative dispute.

The emerging fan base of inherent contempt may wish to consider a few things before they become too enamored of the idea.  Inherent contempt can be used not only against contumacious witnesses, but against anyone who violates the dignity of legislative proceedings (eg, demonstrators who disrupt committee hearings).  Moreover, it can be used not only by Congress, but by state legislatures as well.  While I agree that inherent contempt is a lawful power which can and should be used under appropriate circumstances, it is important to recognize that it is not only cumbersome (as explained below), but is potentially subject to abuse.

For more information on the inherent contempt process, continue below.


1.Legal Basis. It has long been recognized that the power of each House of Congress to punish contempt, although not explicitly granted by the Constitution, is “essential to the effective exertion of other powers expressly granted, and therefore [] implied.”McGrain v. Daugherty, 273 U.S. 135, 169 (1927); see Anderson v. Dunn, 19 U.S. 204 (1821) (first Supreme Court case recognizing the power of the House to punish contempt).The power derives from the Constitution itself; thus, “Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended.”In re Chapman, 166 U.S. 661, 671-72 (1897).The power extends to punishment of witnesses who refuse to testify on matters pertinent to a valid legislative inquiry because “the power of inquiry– along with process to enforce it– is an essential and appropriate auxiliary to the legislative function.”McGrain, 273 U.S. at 174.More recently, in discussing the power of a state legislature to punish contempt, the Supreme Court noted that “[t]he past decisions of this Court expressly recognizing the power of the Houses of the Congress to punish contemptuous conduct leave little question that the Constitution imposes no general barriers to the legislative exercise of such power.”Groppi v. Leslie, 404 U.S. 496, 499 (1972).

2.Historical Usage.From the late 18th Century to the early 20th Century, both the House and Senate exercised the inherent contempt power on numerous occasions.A November 22, 1977 memorandum of the Congressional Research Service summarizes approximately three dozen cases in which the House or Senate imprisoned contumacious persons.In addition to punishing recalcitrant witnesses, the contempt power was used for punishing such interferences with the legislative processes as assault and bribery.It appears that the last use of the inherent contempt power by the House occurred in 1916, when the House imprisoned a United States Attorney for writing an allegedly defamatory letter about a committee.This use of the contempt power was held to be invalid in Marshall v. Gordon, 243 U.S. 521 (1917), on the ground that it exceeded what was necessary for the preservation of the legislative power.The last use of the inherent contempt power by the Senate occurred in 1935.See Jurney v. McCracken, 294 U.S. 125 (1935).

3.Committee Action.The inherent contempt process typically begins with a committee issuing a report to the House finding that a witness has failed to comply with a subpoena or to answer pertinent questions at a hearing.The report recommends that the House adopt a resolution such as that set forth in paragraph 4 below.

4.House Resolution #1.The House then considers and adopts the resolution recommended by the committee.An example of such as resolution follows:


WHEREAS, it appears from the report of the _______ Committee that a witness, ___________, called before the Committee making inquiry as directed by House Res. _ (or by House Rule _), declined to answer certain questions (or failed to comply with a subpoena) relevant and pertinent to the matter then under inquiry:

RESOLVED, That the Speaker issue his warrant directed to the Sergeant at Arms, or his deputy, to take in custody wherever to be found the body of ______ and the same in custody to keep, and that the said _________ be forthwith brought to the bar of the House of Representatives, then and there or elsewhere, as it may direct, to answer questions pertinent to the matter under inquiry or show cause why he should not be punished for contempt, and in the meantime to keep the said _____ in his custody to await the further order of the House; and the Speaker shall designate a room to be used for such purpose;

RESOLVED further, That upon his arrest, _________ be furnished with a copy of this resolution and a copy of the report of the Committee;

RESOLVED further, That when the said _______ shall be brought before the bar of the House to answer the charge of contempt of the House of Representatives, as set forth above, the Speaker shall then cause to be read to said ________ the findings by the Committee; the Speaker shall then inquire of said _________ if he desires to be heard, and to have counsel on the charge of being in contempt of the House of Representatives.If the said ________ desires to avail himself of either of these privileges, the same shall be granted to him.If not, the House shall thereupon proceed to take order in the same manner.


5.Arrest.The Speaker then issues the warrant to the Sergeant at Arms, who proceeds to arrest the witness.The arrest may be effected by the Deputy Sergeant at Arms if the resolution so permits.See McGrain, 279 U.S. at 155-56.It is less clear, however, whether the power of arrest could be delegated to the Capitol Police.See, e.g., 40 U.S.C. 212a (defining arrest power of Capitol Police and providing that they shall act under the direction of the Capitol Police Board).The witness is then brought before the bar of the House, and the Sergeant at Arms announces that he has taken the witness into custody in accordance with the resolution.

6.Hearing.The hearing is generally conducted immediately after the arrest of the witness.The hearing is normally conducted before the bar of the House, but on some occasions the House has provided that the hearing be conducted before a committee.The charges are read to the witness, and he is provided an opportunity to be heard.He may have counsel to represent him.

7.Resolution # 2.If the House finds that the witness is in contempt, it adopts a resolution such as the following:

RESOLVED, That _______, having been heard pursuant to the citation heretofore issued directing him to show cause why he should not be punished for contempt for failing to answer the questions of the Committee (or failing to comply with the subpoena issued by the Committee) after subpoena issued, and having failed to show sufficient cause why he should not be punished, ______ is adjudged to be in contempt of the House.


8.Resolution # 3.The House issues a resolution imposing imprisonment until such time that the witness purges himself of contempt.At times such imprisonment has been in the Capitol itself; on some occasions the House has ordered that the witness be imprisoned in the District of Columbiajail.An example of the resolution would be:

RESOLVED, That the Sergeant at Arms be directed to hold said ______ in close custody until he shall purge himself of said contempt, or until discharged by order of the House.

9.Duration of Imprisonment.The imprisonment of a contumacious witness may not exceed the termination of the legislative body.See Anderson, 19 U.S. at 231.Arguably, the witness must be released upon adjournment sine die or even a periodic adjournment.

10.Judicial Review.A witness who has been arrested or imprisoned by the House may challenge the House’s action through a petition for habeas corpus or through an action for false imprisonment against the Sergeant at Arms.