That Was Quick

Yesterday Speaker Pelosi offered Attorney General Mukasey one week to decide whether he would prosecute Miers and Bolten for contempt of Congress.  The Attorney General apparently didn’t need that much time because he responded today that there will be no such prosecution.  Mukasey stated that “the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president’s claim of executive privilege” and therefore “the department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime.”

          Pelosi responded that “the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly.”   It now seems virtually certain that there will be a civil suit brought by the House, posing serious legal risks to both Congress and the executive branch.

           Before bringing suit, Pelosi will consult with the Bipartisan Legal Advisory Group (BLAG), a little known entity consisting of the House Majority and Minority Leaders and Whips.   It appears that this group will divide along partisan lines, with the Minority Leader and Whip opposing the bringing of a lawsuit.   

Here is the question, which I will endeavor to answer tomorrow:  is it possible to envision a principled compromise that would allow BLAG to vindicate the institutional interests of the House without descending into a political foodfight?

Game On!

        The Speaker has sent the certifications of contempt against Harriet Miers and Josh Bolten to the U.S. Attorney for the District of Columbia.  The Justice Department has previously stated that it will not prosecute Miers and Bolten because they were acting in accordance with presidential directives when they refused, respectively, to appear before Congress and to produce documents pursuant to subpoena.  The Speaker’s letter to the Attorney General (below) requests that the Justice Department  reconsider its position and “inform us of that decision within one week from today, so that the House may proceed with a civil enforcement suit in federal district court.”

        Mukasey should be furious about the position that the administration has put him in.  It is relatively easy to defend Bolten’s refusal to produce documents, but there really isn’t any plausible justification for Miers’s failure to appear before the Judiciary Committee.  Miers could have chosen to appear and simply refused to answer those questions that she deemed covered by the President’s assertion of executive privilege (as Sara Taylor did when subpoenaed to appear in the Senate).  For some reason, the administration either allowed or directed Miers to take a different path, leaving the Justice Department in a much weaker legal position as a result.

 

February 28, 2008

The Honorable Michael B. Mukasey
The Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W
Washington, D.C. 20530-0001

Dear Mr. Attorney General:

In accordance with 2 U.S.C. § 194 and the attached House Resolution 979 (adopted on February 14, 2008), I have today sent a certification to the United States Attorney for the District of Columbia, Jeffrey Taylor, advising him of the failure of former White House Counsel, Harriet Miers, to appear, testify and produce documents in compliance with a duly issued subpoena of a subcommittee of the House Judiciary Committee and of the failure of Joshua Bolten, White House Chief of Staff and custodian of White House documents, to produce documents in his custody as required by a duly issued subpoena of the House Judiciary Committee.

Under section 194, Mr. Taylor is now required “to bring the matter before the grand jury for its action.” The appropriate grand jury action is a criminal charge for violation of 2 U.S.C. § 192, which provides: “Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers . . . willfully makes default . . . shall be deemed guilty of a misdemeanor” and shall be subject to a fine and “imprisonment in a common jail for not less than one month nor more than twelve months.”

According to the testimony of your predecessor, former Attorney General Alberto Gonzales, and your recent testimony before the House Judiciary Committee, the Justice Department intends to prevent Mr. Taylor from complying with the statute and enforcing the contempt citations against Ms. Miers and Mr. Bolten. You claimed that “enforcement by way of contempt of a congressional subpoena is not permitted when the President directs a direct adviser of his… not to appear or when he directs any member of the executive not to produce documents.” Hearing on Oversight of the Dep’t of Justice Before the H. Comm. on the Judiciary, 110th Cong. 87-88 (Feb. 7, 2008). You purported to base your view on a “long line of authority,” but cited no court decision that supports this proposition.

There is no authority by which persons may wholly ignore a subpoena and fail to appear as directed because a President unilaterally instructs them to do so. Even if a subpoenaed witness intends to assert a privilege in response to questions, the witness is not at liberty to disregard the subpoena and fail to appear at the required time and place. Surely, your Department would not tolerate that type of action if the witness were subpoenaed to a federal grand jury. Short of a formal assertion of executive privilege, which cannot be made in this case, there is no authority that permits a President to advise anyone to ignore a duly issued congressional subpoena for documents.

Your press spokesman has stated that you will “act promptly” to review this matter and reach a final decision. We will appreciate your acting with appropriate dispatch on this important matter. I strongly urge you to reconsider your position and to ensure that our nation is operating under the rule of law and not at presidential whim. If, however, you intend to persist in preventing Mr. Taylor from carrying out his statutory obligation to present this matter to the grand jury in the District of Columbia, we respectfully request that you inform us of that decision within one week from today, so that the House may proceed with a civil enforcement suit in federal district court.

Thank your for your prompt consideration and attention to this matter.

best regards,

NANCY PELOSI
Speaker of the House

_____________________________

February 28, 2008

The Honorable Jeffrey A. Taylor
United States Attorney
District of Columbia

The undersigned, The Speaker of the House of Representatives of the United States, pursuant to the attached House Resolution 979, One Hundred Tenth Congress, hereby certifies to you the failure and refusal of Harriet Miers, former White House Counsel, to appear, testify, and furnish certain documents in compliance with a subpoena before a duly constituted subcommittee of the House of Representatives Committee on the Judiciary. The undersigned further certifies to you the failure and refusal of Joshua Bolten, White House Chief of Staff, to furnish certain documents in the custody of the White House in compliance with a subpoena before said committee. These failures and refusals are fully shown by the certified copy of the House Report 110-423 of said committee which is also hereto attached.

Witness my hand and seal of the House of Representatives of the United States, at the City of Washington, District of Columbia, this twenty-eighth day of February, 2008.

________________________________
Speaker of the House of Representatives

Attest:

_________________________________
Clerk of the House of Representatives

Mukasey on Contempt

         In his confirmation hearing, Attorney General-designate Michael Mukasey was asked for his views on possible criminal contempt of Congress charges against executive officials such as Harriet Miers and Josh Bolten.  Mukasey told the Senate Judiciary Committee that if an official who had asserted executive privilege was referred for contempt of Congress, he would look at whether the US Attorney could say that it was unreasonable for the official to have relied on “the privilege or the order of the President.”  Mukasey explained that unless the US Attorney could say that the reliance was unreasonable, the person “can’t be found to have had the state of mind necessary to warrant charging her or him with criminal contempt.” 

            At first blush, Mukasey’s position might seem to represent a significant shift from the executive branch position reflected in a 1984 Office of Legal Counsel opinion and followed by Republican and Democratic Administrations since.  The OLC opinion argued that the congressional contempt statute simply does not apply to an executive official who carries out the President’s claim of executive privilege.  It based this conclusion both on the legislative history and historical implementation of the statute, and on the claim that the statute would be unconstitutional were it applied in this context.  The opinion in fact states that “[t]he President, through a United States Attorney  . . . may not . . .  prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege.” 

            Mukasey’s statement, although ambiguous, implies that the congressional contempt statute could be applied in some circumstances to an official who asserted executive privilege on the President’s behalf.  It also suggests that the difficulty in prosecuting such an official would not lie in any special protection for the assertion of executive privilege, but in the need to establish that the official had the mens rea necessary to violate the statute. 

            If this is Mukasey’s view, however, it is inconsistent with the Supreme Court’s holding in Sinclair v. United States, 279 U.S. 263 (1929), where the Court made clear that an honest mistake of law is not a defense to a charge of violating the congressional contempt statute: “There is no merit in appellant’s contention that he is entitled to a new trial because the court excluded evidence that in refusing to answer he acted in good faith on the advice of competent counsel. The gist of the offense is refusal to answer pertinent questions. No moral turpitude is involved. Intentional violation is sufficient to constitute guilt. There was no misapprehension as to what was called for. The refusal to answer was deliberate. The facts sought were pertinent as a matter of law, and section 102 made it appellant’s duty to answer. He was bound rightly to construe the statute. His mistaken view of the law is no defense.” 

            On the other hand, Mukasey’s view may be that executive officials, unlike private citizens, are immune from prosecution for contempt when they have a mistaken, but reasonable, view of the law.  If so, the difference between his position and that of the OLC opinion may be less than appeared at first.   It presumably would be a very rare circumstance where the Justice Department found that an official’s reliance on instructions of the President or on the written advice of the Department itself was unreasonable.   Indeed, it could turn out that Mukasey’s statement was nothing more than a more diplomatic and judicious-sounding phrasing of the executive branch’s longstanding position on congressional contempt referrals.

 

             

See You in Court

As discussed it my last post, disputes between the executive and legislative branches over the latter’s demands for information are nothing new.They have in fact occurred continuously throughout our history, beginning with the Washington administration and occurring in virtually every other administration since. Traditionally, however, these disputes have been resolved by political accommodation and compromise, not by litigation.

One might think that this situation puts Congress at a distinct disadvantage, since a failure to reach an accommodation will leave the parties in the situation where they started, ie, the executive has the information and Congress does not.Unless Congress has a means to force the executive to comply with its demands by enlisting the aid of the judicial branch, why would the executive branch have an incentive to compromise?

This question is easily answered with respect to routine congressional requests for information.An executive agency has strong incentives to provide requested information to Congress in order to ensure favorable treatment of its budgetary requests or other legislation of critical importance to it.Whatever reasons an agency might have to withhold information from Congress, these reasons are normally less important than the need to maintain a favorable relationship with the Hill.And if the agency has reasons to withhold the information that are important to it (eg, the information is embarrassing or damaging to the agency leadership), Congress can increase the pressure by raising the public profile of the dispute (by sending letters or holding hearings that get the attention of the media) or by bringing it to the attention of higher levels of the administration.In the vast majority of cases these devices are more than sufficient to get Congress the information it seeks.

This dynamic is illustrated by the dispute over the firing of the U.S. attorneys.Initially, the Justice Department attempted to answer congressional requests for information by providing the oversight committees with closed door briefings in the hope that this would make the issue go away.It quickly became apparent, however, that these briefings merely raised more questions from Congress and the media.As a result, the department was forced to provide Congress with thousands of internal emails and to make a number of Justice Department officials, from the Attorney General on down, available for congressional hearings and interviews regarding the decisionmaking process.While some of this information was embarrassing to the Department, the political pressure to be forthcoming simply overwhelmed any incentive to refuse the congressional requests.

But of course the fact that Congress has tools to force the executive to provide most requested information does not resolve the issue of what happens when the executive decides that, on balance, it would prefer to risk congressional retribution and public criticism than to provide the information requested.This may be because it views the confidentiality of the information as an important principle, because the information in question is just too damaging or sensitive, or simply because the executive believes that a fight with Congress is in its political interest.

This problem is also illustrated by the dispute over the U.S. attorney firings.Once the congressional focus moved from the Justice Department to the White House, the administration took a much harder line and refused to provide information, except under certain conditions and limitations. Specifically, the administration stated that it would provide documents relating to communications between persons in the White House and those outside, but not relating to purely internal communications.It also said that it would make available WH staffers for interviews on the same limited subject matter, but only if the interviews were private, not under oath and not transcribed, and on the condition that the oversight committees waive their right to get any additional information.While some of these conditions seem reasonable (that the testimony be private) and some unreasonable (that the committees waive the right to seek additional information), none were acceptable to Congress.

In this situation, where the branches are truly at an impasse, it might seem that it would be in Congress’s interest to have the option to seek judicial enforcement of its right to information.This, however, is less obvious than it first appears.In the first place, if there were a readily available judicial mechanism for resolving informational disputes between the branches, there would be a natural tendency to channel the more difficult disputes toward this mechanism.This would include the relatively few disputes that ultimately would result in an impasse, but it might also include many disputes that would otherwise be resolved in Congress’s favor.In other words, the net effect of a readily available judicial mechanism might be that Congress would get less information, and/or get information in a less timely fashion than it otherwise would.

Second, submitting congressional demands for information for judicial review would provide the courts the opportunity, and perhaps the necessity, of evaluating the validity and strength of the congressional need for information.As former Senate Legal Counsel Mike Davidson has said: “Members do not want courts to weigh the executive’s claim of privilege against Congress’ claim of need.This would vest enormous powers in the courts to determine and balance Congress’ needs and the executive privilege.Congress needs to determine its need for itself.”(quoted in Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal—Do Nothing, 48 Admin. L. Rev. 109 (1996)).

As Professor Devins explains, these and other factors have resulted in congressional inaction when proposals, such as the Barney Frank legislation mentioned in my last post, have been floated to enable Congress to take its case to court.

Nonetheless, whenever the executive and legislative branches reach an impasse, as in the present situation, Members of Congress begin to sound as if they would desire nothing more than to have the dispute end up in court.For example, in its contempt report on the U.S. attorney matter, the House Judiciary Committee argues that the executive branch should be required to prosecute Josh Bolten, the WH Chief of Staff, and Harriet Miers, the former WH counsel, for refusing to comply with congressional subpoenas on grounds of executive privilege. At page 49, the committee approvingly quotes an expert on executive privilege, Mark Rozell, as characterizing the Bush administration’s refusal to prosecute as “’astonishing’ and ‘almost Nixonian in its scope and breadth’, since it would provide that the executive branch alone would ‘define the scope and limit of its own powers.’”

The logic of this position, of course, is that neither the executive branch nor the legislative branch should be able to “define the scope and limit of its own powers.”Instead, the judicial branch would be asked to mediate the dispute, with uncertain results for both sides.Whether or not Congress really wants this outcome, it is heading in that direction.