Colonel Anderson’s Contempt

To continue our discussion of Congress’s contempt power (sometimes referred to as the inherent contempt power), let us examine the first case in which the U.S. Supreme Court had occasion to consider the existence and scope of this power. The case arose from an attempt by Colonel John Anderson, who had numerous claims pending against the federal government, to bribe Representative Lewis Williams of North Carolina, the chairman of the Committee on Claims. See Donald G. Morgan, Congress and the Constitution: A Study of Responsibility 102 (1966). When this came to the House’s attention in early 1818, it was understandably enraged and unanimously authorized the Speaker (Henry Clay) to issue a warrant for Colonel Anderson’s arrest. 31 Annals of Congress 581.

The Congressional Debate

After the Sergeant-at-Arms took Anderson into custody, the House proceeded to spend more than a week debating whether it had the power to punish him. The House “retraced the excellent arguments” made in the prior Randall/Whitney and Aurora contempts (see here for details) but, according to Professor Currie, “added little of importance.” David P. Currie, The Constitution in Congress, The Jeffersonians, 1801-1829 315 n. 214 (2001). Be that as it may, Professor Morgan praises the House for conducting a high quality legal argument that “not only provided a guidepost to the Court” but educated its own members and the public on the relevant constitutional principles. Morgan, Congress and the Constitution 119.

The debate was long and often repetitive (or, as one member remarked, “tedious”). It did, however, cover all the key arguments that would subsequently be addressed by the Supreme Court and did so more thoroughly than the Court would. Morgan summarizes the “anti-contempt” side of the argument as taking “the strict constructionist line in the interest of individual liberty, state reserved powers, and an exclusive judicial cognizance of contempts.” Morgan, Congress and the Constitution 104. The major points of this side included: (1) the framers were well acquainted with the undefined and encroaching nature of parliamentary privilege in Britain; (2) by carefully enumerating certain privileges in the Constitution, they evinced an intent to exclude others historically claimed by Parliament or the state legislatures; (3) recognizing unenumerated privileges would be inconsistent with the limited nature of congressional power under a written constitution, separation of powers principles (which prohibit Congress from exercising judicial powers), and specific constitutional protections of individual liberties; and (4) once unenumerated privileges are recognized, there is no logical stopping point in terms of the House’s authority to define the scope of contempt/breach of privilege or to impose punishment therefor.

On the other side, the “[s]upporters of the power relied on broad construction, congressional precedents, and practical necessities.” Morgan, Congress and the Constitution 104. Typically, they acknowledged that British parliamentary privileges were not inherited by Congress in any direct sense. However, they also denied that British practices were simply a product of unique historical circumstances or a feature of the unlimited sovereignty enjoyed by Parliament. Instead, they contended that the precedents of Parliament, as well as of the colonial and state legislatures, were evidence that the power to punish for contempt was an inherent and necessary attribute of any legislative  body.

A critical aspect of the debate was the concession by most (though not all) of those on the “anti-contempt” side that the House could punish nonmembers for contempts committed within the walls of the House. Seizing on this concession, their opponents pointed out, somewhat ad nauseam, that they had undermined their own enumeration argument. If the House had some unenumerated power to punish contempt, why should that power not extend to Anderson’s flagrant attempt to corrupt the institution? No good answer to this question was offered. (As we shall see, this point would also play a key role in the Supreme Court’s decision).

Another major point of contention was the “anti-contempt” side’s claim that contempt was an inherently judicial power. In response, it was pointed out that “[b]oth Houses of Congress have powers strictly judicial in their nature and application.” 31 Annals of Congress 638 (Rep. Mercer); see also id. at 697 (Rep. Smyth points out the House is a court “with authority to try certain causes”). As noted in my last post, impeachment was offered as a prime example of a judicial process for which the House needed the contempt power. See also 31 Annals of Congress 701-02 (Rep. Settle). In particular, it was noted that the House needed a power of punishment independent of the executive, which might be the source of corruption it was trying to investigate in the first place. Id. at 634 (Rep. Tucker). Again, the “anti-contempt” camp seemed to have no rejoinder to this argument.

There was also some discussion of what punishments could be inflicted for contempt (with opponents of contempt suggesting they might include indefinite detention, corporal punishment, or worse). Supporters of contempt asserted because the power was one of self-protection, punishment was limited to imprisonment while the House was in session. 31 Annals of Congress 691 (Rep. McLane); id. at 703 (Rep. Settle). No one directly stated that the House had the power to fine, but there were occasional approving references to the fact that courts could impose fines for contempt. See, e.g., id. at 697 (Rep. Smyth). And one contempt opponent accused supporters of wanting to authorize the House “to fine and imprison at discretion.” Id. at 760 (Rep. Beecher).

At the end of the lengthy debate, the House rejected the arguments against recognizing the contempt power. 31 Annals of Congress 776. Anderson was tried and found guilty of contempt. Id. at 789. He was then brought to the bar of the House, reprimanded by the Speaker, and discharged from custody. Id. at 789-90. Continue reading “Colonel Anderson’s Contempt”

Representative Forsyth on Impeachment and the Contempt Power

As part of my series on impeachment and the contempt power, I have been reading the 1818 House debate on the contempt proceeding against Colonel John Anderson. I will have more to say on this subject presently, but today I want to flag an argument made by Representative Forsyth, who was one of the leading figures in the debate. The question before the House was whether it possessed the power to punish Anderson, who had attempted to bribe a member of the House. Forsyth argued strongly that the House did indeed possess this power.

In citing these remarks, it is important to emphasize that Anderson’s case had nothing whatsoever to do with impeachment or with any alleged misconduct by the president or any executive branch officer. Rather, Forsyth discusses impeachment (as did several others on his side of the argument) as evidence that the Constitution necessarily contemplated that the House could exercise the contempt power:

Judging that the time might arrive when a President would conspire with corrupt and ambitious men, of his own country or of a foreign nation, to change his temporary and limited authority to a permanent and despotic power, [the framers] supposed a sufficient barrier was erected to defeat such conspiracy, by giving to this House the power of impeachment, and the Senate the authority to judge and punish the offender, when brought to the bar by the charges of the people, and convicted by proper evidence. Has it not occurred to the members of this House, especially those [who argued the House lacked the power to punish for contempt], that the efficacy of this provision resides wholly in the power of the House and Senate, respectively, to issue process of attachment for contempt?

31 Annals of Congress 745 (emphasis added). Again, Forsyth is advancing a hypothetical that illustrates most clearly, in his view, that the House may punish for contempt. He continues:

A President forms treasonable designs against the United States. By one those fortunate events which, in the order of Providence, usually occurs to defeat the machinations of guilt, a partial discovery of the design is made, and an inquiry is instituted; you ascertain the sources from which which accurate and certain information is to be procured. How are you to compel the production of the treasonable correspondence in their custody? By attachment for contempt.

Id. (emphasis added). Forsyth had a vivid imagination, did he not?

But he doesn’t stop there. He anticipates the argument that a law could be passed making it a crime to withhold information from Congress (as it would be about 40 years later). Such a law would be inadequate:

Sir, it is vain to say we can provide by law for such an occurrence. Such provision is impossible. You make laws, but these laws are nugatory. You may provide penalties, but to inflict them must be judicial process, trial, conviction and sentence. The inevitable delay is ruinous to the country, and gives to the traitors the time to consummate their horrible designs. But even the guilty witness, the contemner of your authority, escapes the punishment provided by your law. The same Constitution under which you defined his offense, and annexed an appropriate punishment, gives to the President, for whom he commits it, the power of pardoning the offender. You have the consolation to know that he is convicted, and he has the consolation of laughing at an impotent branch of the Legislature, called, in derision, the Grand Inquest of the Nation!

Id. (emphasis added).

Note that Forsyth anticipated that a statutory contempt procedure would be inadequate because it would take too long and because the president would in any event pardon the guilty witness who was acting on his behalf. But he did not anticipate that the president could block prosecution in the first place.

Even Forsyth could not imagine the Office of Legal Counsel.

Contempt and Charles Pinckney

Whether Congress (or, more precisely, each house of Congress) has the power to punish nonmembers is a question not directly addressed by the Constitution. See Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 171 (2017) (“Unlike the congressional houses’ authority to punish their members . . ., their authority to punish nonmembers has no explicit textual basis in the federal Constitution.”); Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 212 (2007) (“The Houses’ power to punish non-Members for contempt rests upon shakier footing than their power to punish Members.”). Like whether a sitting president can be indicted or prosecuted, the existence (and scope) of the congressional contempt power was understood to be an open question from the earliest days of the Republic. But while the Supreme Court has never had occasion to address the former question, it has seemingly resolved the latter, having repeatedly upheld the exercise of the contempt power against nonmembers.

I say “seemingly” because, as we shall see, there is reason to believe the executive branch would relitigate this fundamental issue should the necessity arise. Therefore, in today’s post I will lay out the background of the original debate about the contempt power through the story of Charles Pinckney, who was (among other things) a delegate from South Carolina to the Philadelphia Convention. I do so not only because it is an interesting and untold (or at least undertold) story, but because it may very well play a significant role in any future litigation over the validity of the contempt power. For a foretaste of this argument, see Professor Michael McConnell’s claim in a recent Fox News interview that the Convention “voted down” Pinckney’s proposal to give Congress the contempt power. (This claim is not exactly accurate, as the Convention did not actually take a vote on the proposal, but it is close enough for government work.) Continue reading “Contempt and Charles Pinckney”

Inherent Contempt and Impeachment

Recently the Good Government Now organization (with which I am loosely affiliated) has been advocating the revival of inherent contempt as a means of compelling executive branch officials to provide information demanded by Congress. As you probably know (if you read this blog), inherent contempt allows either house of Congress to arrest individuals who defy its orders and imprison them until they comply. Under a proposal by my friend and former colleague Mort Rosenberg, the House would adopt a new inherent contempt procedure in which fines, rather than imprisonment, would be the principal sanction to compel executive branch officials to comply with subpoenas and other demands for information.

While I do not object to the use of inherent contempt in the proper circumstances, I have long been skeptical of using it as a means of resolving legislative-executive disputes over information. This is so both for constitutional and practical reasons. The constitutional issues we will get into in more detail in future posts. For now, the important point is that those issues arise primarily in the context of ordinary congressional oversight. The calculus is different in the context of a judicial proceeding such as impeachment. The argument for employing inherent contempt against recalcitrant witnesses, including executive branch officials, in an impeachment proceeding is constitutionally much stronger for reasons I will endeavor to explain in upcoming posts.

The practical problems, on the other hand, are another matter. See Andrew McCanse Wright, Congressional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881, 933 (2104) (“To say the least, it would be impractical and unwise for congressional security forces to attempt to detain executive branch officials and haul them off to the congressional brig, although commentators occasionally call for it.”).  For one thing, there is not actually any “congressional brig,” at least not one suitable for holding anyone for a significant period of time. For another, there is the “specter of interbranch violence,” particularly for detainees that have their own security details. See id. These problems are not ameliorated by the fact that the proceeding involves impeachment rather than oversight.

Arguably, the use of fines could help to address the practical problem. As a general rule, I doubt that Congress has the authority to impose fines as a form of punishment, but I think there may be a way to use them in the context of an impeachment proceeding that would stand up in court. Therefore, if the House is considering formally authorizing an impeachment proceeding, it should seriously consider a provision to authorize the use of inherent contempt, including monetary fines, against those who withhold information from the inquiry. Importantly, however, this authority should be limited to impeachment.

I will lay out the reasons for my position in a series of posts, beginning with some historical background on legislative privilege and contempt.

Resources on Congressional Oversight and Executive-Legislative Information Disputes

As there appears to a current demand for resources on congressional oversight, executive privilege and the process for resolving executive-legislative disputes over information, I thought I would post a few suggestions as to places to look for such materials. First, there is this Congressional Investigations Research Page hosted by Georgetown Law (hat tip: Andy Wright). Second, the Congressional Oversight Manual has a list of selected readings starting at page 136. Third, Daniel Schuman has been collecting resources on the congressional oversight and subpoena power, particularly reform proposals.

Finally, here is a link to a 2002 brief filed by BLAG in Waxman v. Evans, which describes in some detail how executive-legislative information disputes have been resolved historically. To the best of my knowledge, this document has not previously been available on line.

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.

 

Recalibrating the “Subpoena Cannon”

(I know some artillery expert from Quora is going to correct my title but you get the idea).

To continue the martial metaphors, the House’s investigatory offensive against the Trump administration is meeting stiff resistance on all fronts or, one might say, running into a stone wall. The administration is refusing to cooperate with any oversight or investigation it considers to be hostile or partisan (so, basically all of them). This noncooperation can take the form of refusing to comply with document requests or subpoenas outright, simply ignoring them, delaying a final response (as in the case of the Ways & Means committee request to the treasury secretary for the Trump tax returns), placing conditions on compliance (as where the White House is refusing to allow witnesses to testify at congressional depositions unless a representative from the counsel’s office is also allowed to attend), instructing or encouraging former executive officials or others not to comply with congressional demands (as the administration apparently plans to do with respect to the Judiciary committee subpoena to former White House counsel Don McGahn), and even bringing legal action to prevent third parties from providing information to Congress (as discussed in my last post).

The situation has given rise to much handwringing in Congress, where House Democrats are predictably characterizing the administration’s actions as “massive, unprecedented obstruction.” The frustration is entirely understandable, but I agree with Andy Wright that it is a bit overwrought to describe the situation as a “constitutional crisis,” particularly at this early stage. The basic problems are ones faced by Congress in every administration, even though the scope of the investigations and sheer number of information disputes is unusual. Moreover, while it may be accurate to describe the administration as engaged in unprecedented stonewalling, it should also be remembered that the Mueller report provides Congress with an exceptional degree of visibility into the areas of the administration about which it is most concerned.

It will come as no surprise to readers of this blog that the House faces a difficult set of challenges in responding to the administration’s recalcitrance because there is no clearly established mechanism for enforcing congressional subpoenas against the executive branch. If an executive branch official refuses to testify or produce documents based on the assertion of executive privilege at the direction of the president, the Justice Department has long maintained that it will not (and constitutionally may not) prosecute the official for contempt of Congress. See, e.g.,  Response to Congressional Requests for Information Regarding Decisions made Under the Independent Counsel Act, 10 OLC 68, 85 (Apr. 28, 1986). Thus, while a House committee may vote to hold this official in contempt and report the contempt to the full House, which in turn may adopt a resolution referring the matter to the U.S. attorney pursuant to 2 U.S.C. § 194, the U.S. attorney will not present the matter to a grand jury and thus the House’s action will be largely symbolic.

It should be noted, however, that this calculus is arguably somewhat different in the case of a former executive branch official. While it is clear that the executive branch would contend that a former official should obey the president’s instructions as to the assertion of executive privilege, and it is highly likely that it would employ similar reasoning to avoid presenting any contempt citation to a grand jury, there is at least some possibility that a future administration might reach a different conclusion, placing the former official in legal jeopardy. At the very least, the former official might worry that having a formal citation of contempt by the House on the record might generate legal expenses or other collateral consequences down the road.

With criminal contempt largely useless, then, the House is considering other options, including inherent contempt. Again, as readers well know, this is the process by which the House (or Senate) can send the Sergeant at Arms to take a recalcitrant witness into custody, bring him before the bar of the house to explain his refusal to testify, and remand him to custody until he changes his mind. Although members of Congress are starting to make noises about reviving this process (something that happens periodically whenever there is divided government), these threats are not very credible in light of the fact that the House has not used it in about a century.

To solve that problem, the estimable Mort Rosenberg has proposed a House rule that would use fines, rather than arrest and detention, as the primary means of forcing executive branch officials to comply with congressional subpoenas. Judiciary committee chairman Nadler has apparently raised this as a way “to put teeth in his party’s numerous investigative inquiries, many of which Trump officials are stonewalling or simply ignoring.”

Not surprisingly, the Justice Department has suggested that it would be unconstitutional to employ inherent contempt against executive branch officials in situations where (it claims) separation of powers principles prohibit the use of criminal contempt. See 10 OLC at 86. There are also obvious practical problems that would be involved with attempting to detain an executive official. See id. (“it seems most unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison an Executive Branch official who claimed executive privilege”). The House’s “cannon” is, after all, only metaphorical, and the executive branch has the Sergeant at Arms and the Capitol Police pretty well out-gunned. Imposing fines instead of imprisonment might mitigate, or at least postpone, this problem, but if the House wanted to have this option available it should have included it in the rules package that was adopted at the beginning of the congress.

Another suggestion is that the House could use political remedies, such as the appropriations process, to punish officials or agencies that refuse to comply with congressional demands for information. Professor Josh Chafetz is a big proponent of this technique. It seems to me that this can be effective when the resistance to congressional demands is coming from the agency level, but it is much harder to do when it is coming from the president (and harder still with this president). To the extent the House has leverage in the appropriations process vis a vis the Senate and the president, it is likely to use it for higher priority items than winning disputes over information access. Put another way, I don’t see the House shutting down the government to get an unredacted copy of the Mueller report.

This leaves what is most commonly thought of as the House’s best legal remedy, a civil action seeking declaratory or injunctive relief to enforce its right to obtain information. Most commonly, this would take the form of an action to enforce a subpoena, but other actions are also possible. For example, the Ways & Means committee could bring suit to enforce its statutory rights to obtain tax return information under 26 U.S.C. § 6103(f). Note that such an action would be analogous to an action to enforce congressional rights to information under 5 U.S.C. § 2954 (commonly known as the Rule of Seven), which is at issue in the case of Cummings v. Murphy currently pending in the D.C. Circuit (though likely presenting a stronger case for congressional standing than Cummings if the committee’s action were authorized by House resolution).

Civil enforcement of subpoenas presents its own set of challenges, namely (1) the absence of any clearly defined process for bringing such actions and unsettled legal issues of justiciability; (2) the fact that courts do not like to be in the middle of political disputes between the legislative and executive branches; and (3) the length of time that it would take to obtain a final enforceable court order, particularly because even if the House prevails at the district court level there will be inevitable appeals to the D.C. Circuit and the Supreme Court. Some of these problems could have been mitigated had the House adopted a brilliant proposed rule (still my blog) on civil enforcement of subpoenas, but alas it failed to do so. Nevertheless, civil enforcement remains the most promising avenue for legal vindication of the House’s constitutional rights. Continue reading “Recalibrating the “Subpoena Cannon””

The Justice Department’s Inventive New Process for (Not) Responding to Congressional Questions

Acting Attorney General Matthew Whitaker was scheduled to appear before the House Committee on the Judiciary tomorrow. According to the latest communication by the Department of Justice, however, he may refuse to appear because the committee has authorized a subpoena for his testimony (even though the subpoena has not actually been served on him). [Update: it seems he will appear after all].

This unusual chain of events began in early January, when Judiciary Committee Chair Jerry Nadler invited Whitaker to testify before the committee at a general oversight hearing regarding the Department of Justice’s operations. Nadler identified a broad range of areas regarding which the committee would likely have questions. Some of these areas related specifically to the investigation of Special Counsel Robert Mueller; others involved completely unrelated areas. The former included questions about Whitaker’s decision not to recuse himself from matters involving the investigation and the question of how the investigation is currently being supervised at the Department of Justice. In addition, Nadler notes “[w]e must discuss the impact of the President’s near-daily statements attacking the integrity of the Department of Justice, the FBI, and Special Counsel Robert Mueller’s investigation.”

After some back and forth over scheduling, Whitaker agreed to testify at a February 8 hearing. On January 22, Nadler sent him a follow-up letter listing a series of specific questions Whitaker could expect to be asked at the hearing. Some of these questions fell clearly within the subjects delineated in Nadler’s earlier letter; others were arguably beyond the scope. For example, some of the questions focused on discussions with President Trump about the investigation by the U.S. Attorney for the Southern District of New York, something that was not specifically mentioned in Nadler’s first letter but is closely related the Special Counsel’s investigation as well as Trump’s general attacks on the Department of Justice.

In any event, Nadler explained that he was sending these questions because “your responses may implicate communications with the President of the United States.” Nadler directed Whitaker to “take any steps that may be necessary for the White House to consider these communications and for the President to determine whether he will invoke executive privilege.” Absent such a formal invocation of privilege by the president, Nadler stated “I will expect you to answer these questions fully and to the best of your knowledge.”

Earlier today, the committee held a business meeting for the purpose of authorizing a testimonial subpoena to Whitaker. According to Nadler, this was necessary “[i]n an abundance of caution to ensure Mr. Whitaker both appears in the hearing room on Friday morning and answers our questions cleanly . . . .”

As a legal matter, it is not clear why this step was deemed necessary. If Whitaker had simply failed to show up at the hearing after saying that he would (which seems unlikely), the committee would presumably have had to subpoena him for a future hearing, which could be easily done whether or not a subpoena had previously been authorized. On the other hand, if Whitaker showed up voluntarily, he would be under the same obligation to answer questions as he would have been under subpoena. See Sinclair v. United States, 279 U.S. 263, 291 (1929) (holding that the congressional contempt statute’s penalty for refusing to answer questions “plainly extends to a case where a person voluntarily appears as a witness without being summoned as well as to the case of one being required to attend.”).

In any event, the Department of Justice (through Assistant Attorney General for Legislative Affairs Stephen E. Boyd) responded to the committee’s authorization of a subpoena by demanding a written assurance “that the Committee will not issue a subpoena to the Acting Attorney General on or before February 8, and that the Committee will engage in good faith negotiations with the Department before issuing a subpoena.”

The first part of this demand is simply the flip side of the committee’s position and is rather silly. If Whitaker shows up at the hearing, there is no reason for the committee to serve him with a subpoena. Conversely, there is no reason to demand that the committee not serve him with a subpoena if he shows up. It really does not matter.

The second part of the demand, however, is different. The Department is using the committee’s theatrical and unnecessary authorization of a subpoena as an opportunity to establish a new and (as far as I know) unprecedented position regarding the process for responding to congressional questions at a hearing. According to Boyd’s letter, the appropriate process for responding to questions that may implicate executive privilege is that first the committee must ask the questions at a hearing in which the witness appears voluntarily, then there must be a period of negotiation in which the parties attempt to resolve differences and, only then, if an accommodation cannot be reached, the committee may issue a subpoena and the president may choose to formally invoke executive privilege.

This is ridiculous. In support of this theory, Boyd quotes an opinion by the once (and presumably future) Attorney General, Bill Barr. But Barr’s opinion related to the process for producing documents, not oral testimony. Although there is nothing prohibiting a committee from issuing a document subpoena in the first instance, the ordinary process is to begin with a document request, have a period of negotiation and the proceed to a subpoena. Indeed, my proposed House rule would formalize that process and add deadlines to ensure that committees are able to get a final response (including a decision by the president whether or not to invoke executive privilege) within a timeframe that is useful for fulfilling their oversight functions.

The proposed rule does not address oral testimony, however, because there the process is different. A committee is free to ask witnesses any questions pertinent to a matter within the committee’s jurisdiction. If the witness declines to answer on grounds of executive privilege (or, more precisely, that the question is one on which the president might decide to invoke executive privilege), theoretically the committee could move immediately to hold the witness in contempt. There is no need to issue a subsequent subpoena because, as we have already seen, the witness is under a legal obligation to answer at the time the questions are asked. As a matter both of practice and practicality, however, the committee should give the witness an opportunity to consult with White House counsel and others to determine whether the president intends to formally invoke the privilege before moving forward with contempt.

The problem is that there is no deadline within which the president must make this decision. The executive branch can (and does) drag the process out indefinitely, often citing the layers of legal counsel that must be consulted before a decision is reached (agency counsel, if applicable, then the Office of Legal Counsel, then the Attorney General, then the White House counsel, etc.). If Congress proceeds with contempt in the meantime, the president can invoke executive privilege immediately before the final contempt vote or even thereafter. And there is little Congress can do about it.

By informing Whitaker of the specific questions before the hearing, Chairman Nadler is cleverly trying to speed up this process (in a manner analogous to my proposed rule on document subpoenas). Whitaker is clearly on notice as to the types of questions that will be asked and has had an opportunity to consult with others in the Department and the White House as to where to draw the lines. But it would not be advisable to press this too far. Until the hearing is actually held, there is no way to say for sure what questions will be asked, whether the committee will be satisfied with Whitaker’s answers to particular questions, what follow up questions might be asked, etc. So assuming that the president does not formally invoke executive privilege before the hearing, the committee should provide Whitaker with a limited but reasonable period of time to determine whether the privilege will be invoked. If the time period expires without any invocation, the committee will be in as strong a position as possible to move forward with contempt.

Of course, the committee still has the problem of how to enforce the contempt. But we will leave that problem for another day.

Congressional Subpoenas, Contempt, and Executive Privilege: Molly Reynolds and Stan Brand Discuss

There will undoubtedly be a lot of content appearing in the next few months about congressional subpoenas and how to enforce them, along with the related topics of contempt of Congress and executive privilege. Most of this will be review for the regular readers of this blog (you can click on the “congressional investigations,” “contempt of Congress” or “executive privilege” categories to see Point of Order’s prior posts on these topics), but you still might want to check out this podcast featuring Molly Reynolds of Brookings and former House General Counsel Stan Brand, which provides a good overview of the subject as well as some history of the House Counsel’s office (you can find out, for example, why Neil Gorsuch might not be the biggest fan of the congressional subpoena power).

As Stan explains, the biggest problem with congressional subpoenas is that there is no clearly established mechanism to enforce them against the executive branch. Civil contempt is the only currently usable method, but it faces a number of obstacles, the greatest of which is that it is somewhere between extremely difficult and impossible to get a resolution within the time frame of a two-year congress. This gives the Justice Department and its clients a strong incentive to delay as much as possible, knowing that by the time a court gets around to deciding the dispute, it is likely that the whole matter will be moot.

As it happens, I have proposed a reform to House rules designed to address this problem (you can read about it here). Thus far the House in its wisdom has not seen fit to adopt this proposal, but perhaps someone will bring it to the attention of the new House Select Committee on the Modernization of Congress.

An Update on Parliament’s Contempt Power

So at virtually the same time I told you that Parliament’s contempt power was in a state of desuetude, this happened. The House of Commons held the British government in contempt for its failure to publish the Attorney General’s legal advice regarding Brexit as the House had previously demanded.

To be sure, my prior post related to the use of contempt to impose punitive measures such as fines or imprisonment. These were not involved in yesterday’s contempt vote, which the article describes as “largely symbolic.” Yet it appears that the government intends to comply with the Commons’ demands as a consequence of the contempt vote. Moreover, while the use of contempt to impose rebukes is more common than fines or imprisonment, it is still extremely rare. According to this 2012 analysis I referred to yesterday, the last time someone was called to the bar of the house to be admonished by the Speaker was in the 1956-57 session. And it is apparently the first time ever that the British government itself has been held in contempt.

It should be noted that Congress’s inherent power of contempt derives from Parliament’s power (and thus has been recognized as being an “inherent” part of the legislative power conveyed in Article I). From time to time, the idea of using the inherent contempt power against a recalcitrant executive branch has been broached, but the idea always founders on practical considerations (e.g., what happens if the recalcitrant executive official is protected by security that does not want to surrender him/her to the custody of the Sergeant at Arms?).

If the House (or Senate) were to follow the procedure apparently used in the House of Commons yesterday, however, these problems largely disappear. The Commons simply voted on a resolution holding the government in contempt, without following the normal practice of referring the matter to the Committee on Privileges. No trial was held, nor was anyone (it appears) called to the bar of the house.

If Congress were to follow such a process, it would more closely resemble a censure or similar resolution, as opposed to a finding of contempt. It could be argued that such a largely symbolic action would have little impact in our system, where the continuation of the government does not depend on majority support in the legislature. On the other hand, if contempt were used, it would be possible for a trial to be held, with an executive official (or the entire executive branch) as the “defendant.” It would be up to the executive branch whether it wanted to attend or mount a defense. One can imagine that such a process could be more powerful as a display of soft power than a simple vote on a resolution.

We will see if some enterprising member of Congress picks up on this.