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.

Don’t Tape Me Bro!

According to The Hill, Congressman Renzi plans to raise Speech or Debate objections to the FBI’s interception of some of his telephone calls.  No doubt his attorneys will rely primarily on the DC Circuit’s decision in the Jefferson case.  As I noted previously: 

The extension of the DC Circuit’s decision to electronic surveillance also seems logical.  If the Speech or Debate Clause forbids the FBI from conducting a search that might cause it to see Speech or Debate privileged documents, it is not obvious why the same principle [would not] forbid[] it from listening in on conversations that might contain a Speech or Debate privileged discussion.  Of course, under the logic of the DC Circuit’s opinion, the FBI could record the conversations (without listening to them) and then send the tape to the Member to separate the privileged from the non-privileged portions, but the Justice Department might view this as a tad problematic from an investigative standpoint.  

Renzi’s case is in federal court in Arizona and one can expect that these issues might end up in the 9th Circuit (quite possibly before trial, since Renzi would have an immediate right of appeal with respect to any adverse decision).  There is very little Speech or Debate precedent in the 9th Circuit (the only case I can think of is Miller v. Transamerica Press, Inc., 709 F.2d 524, 528-29 (9th Cir. 1983), which denied a motion to compel testimony from a former congressmen), and it is anybody’s guess how that court might rule.

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]

Agency Intervention After the Domenici Case

          The Senate Ethics Committee has issued a “qualified admonishment” of Senator Pete Domenici for making a telephone call in October 2006 to David Iglesias, then the U.S. Attorney for the District of New Mexico.  Domenici called Iglesias to inquire about the timing of potential indictments in an ongoing federal grand jury probe of alleged public corruption.  This corruption investigation was, at the time, an issue in a hotly contested congressional race in the First Congressional District of New Mexico.   

            In its letter to Senator Domenici, the Committee noted that it found “no substantial evidence to determine that you attempted to improperly influence an ongoing investigation.”  Nonetheless, the Committee found that “you should have known that a federal prosecutor receiving such a telephone call, coupled with an approaching election which may have turned on or been influenced by the prosecutor’s actions in the corruption matter, created an appearance of impropriety that reflected unfavorably on the Senate.” 

            This may represent the first time that the Committee has ever disciplined a Member simply for a communication with an executive official or agency, and its reasoning could significantly increase the risk of ethics violations when a Senator or staffer intervenes with the executive branch.   

The only authority cited in support of the Committee’s conclusion is the “general guidance under Rule 43 to avoid communications with a federal agency on a matter in which it is ‘engaged in an on-going enforcement, investigative, or other quasi-judicial proceeding’ (Senate Ethics Manual, 2003 ed., page 179).” Rule 43 provides that Senators may contact executive officials or agencies on behalf of “petitioners” (i.e., constituents or other citizens who seek their assistance) for various purposes, including requesting information, urging “prompt consideration,” and “express[ing] judgments.” However, Rule 43 also provides that the “decision to provide assistance to petitioners may not be made on the basis of contributions or services, or promises of contributions or services, to the Member’s political campaigns or other organizations in which the Member has a political, personal or financial interest.”

As Dennis Thompson points out in Ethics in Congress (1995), Rule 43 is almost entirely “devoted to saying what members may do. . . . The only conduct specifically proscribed or even deemed questionable is providing assistance on the basis of contributions or services.” Thus, it is not surprising that, as the Senate Ethics Manual specifically points out, “neither the Senate, nor the House, has to date, disciplined a Member solely because of that Member’s intervention with an executive agency.”

As for the snippet of guidance cited by the Committee, the full sentence states: “Notwithstanding these limitations respecting court interventions, the Committee has ruled communications with an agency with respect to a matter which may be the subject of litigation in court is, nevertheless, generally permitted, where the communication is with the agency (or its attorneys, e.g., the Department of Justice) and not directed at the court, where the agency is not engaged in an ongoing enforcement, investigative or other quasi-judicial proceeding with respect to the matter, and where the communication is based upon public policy considerations and is otherwise consistent with Rule 43.”

This sentence is not exactly a model of clarity, but it is far from apparent that it means, as the Committee now interprets it, that Senators must generally avoid communications with federal prosecutors or other officials with regard to investigative or enforcement activities. In the first place, the sentence, like Rule 43 itself, focuses on what is permitted, and does not directly address what is proscribed. Moreover, the sentence, like Rule 43 itself, is directed at providing Senators with guidance on what they may do on behalf of constituents (in fact, it appears in a chapter of the Ethics Manual entitled “Constituent Service”) or other petitioners. It is not obvious that it has any application to Senator Domenici’s call, which, as far as we know, was not made on behalf of anyone else. Certainly there is no allegation that Senator Domenici received any contributions or services related to making the call.

To the extent that the sentence quoted by the Committee contains an implicit proscription of contacts with federal agencies, it would seem to relate to the prior two paragraphs of the Ethics Manual, which caution Senators against ex parte communications to the court in legal proceedings or to agencies with regard to formal adjudications or other proceedings that must be conducted “based only upon a record developed during a trial-like hearing.” Indeed, the Committee’s own “Overview of the Senate Code of Conduct and Related Laws” summarizes its guidance in this area as “EX PARTE communications may be prohibited in some judicial and quasi-judicial proceedings.”

Domenici’s conversation with Iglesias was not a prohibited ex parte communication. Anyone is free to communicate with a federal prosecutor regarding a matter that is the subject of a federal grand jury investigation, although the prosecutor is not free to provide information regarding that investigation. Thus, although Domenici’s call certainly seems inadvisable (in part because Domenici was attempting to solicit information about the timing of indictments that Iglesias could not or should not have provided), it did not appear to violate any specific prohibition contained in either Rule 43 or the Ethics Manual.

As now interpreted by the Committee, however, any communication with an executive agency regarding an investigation or enforcement activity would seem to be suspect under the ethics rules. For example, suppose a Senator communicates with the Federal Trade Commission to urge it to institute, expand or expedite an investigation of the oil companies for price gouging. Such a communication (which would seem unexceptionable under current Senate norms) could be viewed as a violation of the Committee’s guidance on agency communications and thereby subject the offending Senator to discipline. This would particularly be the case if the Senator’s communication were explicitly or implicitly linked to a political consideration such as an upcoming election.

Legislative Privilege and the Courts in America

At the time that the Constitution was ratified, it was unclear to what extent the Congress would enjoy the inherent privileges of the British Parliament.  Writing around 1800, Thomas Jefferson noted the arguments for and against recognizing congressional privileges beyond those explicitly conferred by the Constitution (such as the Speech or Debate privilege).  In favor of such recognition, it was argued “that all public functionaries are essentially invested with the powers of self-preservation; that they have an inherent right to do all acts necessary to keep themselves in a condition to discharge the trusts confided to them; that whenever authorities are given, the means of carrying them into execution are given by necessary implication; that thus we see the British Parliament exercise the right of punishing contempts; all the State Legislatures exercise the same power, and every court does the same.” 

On the other side, it was argued “that Congress have no such natural or necessary power, nor any powers but such as are given them by the Constitution; that that has given them, directly, exemption from personal arrest, exemption from question elsewhere for what is said in their House, and power over their own members and proceedings; for these no further law is necessary, the Constitution being the law.”  For any other protections Congress might deem necessary, however, it would have to enact a new law in the manner provided for by the Constitution.  In the interim, Congress would not be unprotected as “the ordinary magistrates and courts of law [were] open and competent to punish all unjustifiable disturbances or defamations.”

As this latter argument suggests, the idea that the legislature might have to rely on the courts for protection or assistance was more acceptable in the United States than it traditionally had been in Britain (see post of April 8).  For example, in 1798 the Congress enacted a law permitting a person who wished to contest a congressional election to make application to any federal, state or local court for assistance in obtaining evidence.  Under this statute, the judge or magistrate was required to issue his warrant or summons to witnesses designated by the applicant, question the summoned witnesses, and then transmit the transcription of the witness’s testimony to the Clerk of the House.  Thus, the law gave the courts a direct role in obtaining evidence for the House to use in fulfilling its constitutional responsibilities in judging elections.

               The question of whether the House and Senate could exercise inherent but unenumerated privileges was settled by the Supreme Court in Anderson v. Dunn, 19 U.S. 204 (1821), in which the Court held that the House could exercise its contempt power to punish a private citizen who attempted to bribe a Member.  Echoing the pro-privilege position articulated by Jefferson, the Court stated that failure to recognize the House’s inherent power to punish for contempt would result in “the total annihilation of the power of the House of Representatives to guard itself from contempts, and leave[] it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument from which it is derived.”           

The Anderson Cout noted, however, that the House’s power to punish was not unlimited; thus, it could not imprison a contumacious individual beyond the time of legislative adjournment.  The Court acknowledged that the exercise of legislative privilege entailed a risk of the “caprice which has sometimes disgraced deliberative assemblies, when under the influence of strong passions or wicked leaders” but observed that “American legislative bodies have never possessed, or pretended to the omnipotence which constitutes the leading feature in the legislative assembly of Great Britain, and which may have led occasionally to the exercise of caprice, under the specious appearance of merited resentment.”  

In Kilbourn v. Thompson, 103 U.S. 168 (1881), the House exercised its inherent contempt powers to arrest and imprison a witness who refused to respond to questions posed by a committee investigating a real estate financing partnership that had gone bankrupt.  The witness brought a false imprisonment suit against the Sergeant at Arms of the House, as well as several members.  The Supreme Court rejected the argument that Congress enjoyed the same powers to judge its own privileges as the British Parliament, holding instead that the House’s claim of legislative privilege could be reviewed by the courts.  (It concluded that the House had exceeded its authority because the investigation in question was beyond its jurisdiction). Although much of Kilbourn’s reasoning (which reads much like Jefferson’s anti-privilege argument) has been overruled by later cases, its holding that the courts may review the exercise of the contempt power by Congress remains the law, and has not been seriously challenged since. 

Anderson, Kilbourn and later cases establish that the House and Senate may exercise the inherent power to punish for contempt, including contempt by witnesses who refuse to testify or provide information demanded by either body, but that this power is subject to judicial review.  In Britain, each House of Parliament was, at least historically, the sole judge of its own privileges, and the courts had no role to play with regard legislative contempt proceedings.  In the United States, however, the courts have the final say with regard to the scope of inherent legislative privilege and the exercise of the power to enforce such privilege may be challenged by way of an application for a writ of habeas corpus or an action for false imprisonment.   

Coconut Road Investigation Takes an Unconstitutional Detour

Yesterday, the Senate rejected Senator Coburn’s proposal to establish a joint House-Senate investigation of the Coconut Road earmark and instead adopted an amendment sponsored by Senator Boxer that would “direct” the Justice Department to conduct an investigation.  According to an article in The Hill, Majority Leader Reid’s office circulated a memo supporting the Boxer amendment and arguing that the Coburn amendment was a “poison pill” that would raise “major Constitutional issues under the Speech and Debate clause because it allows one chamber to investigate another’s members.”

 This is a specious argument.   Whether the Speech or Debate Clause would pose a difficulty for the investigation proposed by Senator Coburn depends on the answer to two questions: (1) does the Senate constitute “any other place” within the meaning of the Speech or Debate Clause when the speech or debate questioned took place in the House? and (2) if so, would a joint Senate-House committee constitute “any other place”?  These are interesting questions that, as far as I know, are not directly addressed by any precedent.  Based on my experience, I would say that the answers are (1) probably not and (2) almost certainly not, but I cannot say that the questions are settled ones.

On the other hand, it is undeniable that a Justice Department investigation does constitute “any other place” within the meaning of the Speech or Debate Clause. Thus, while there may or may not be a constitutional problem with the solution proposed by Senator Coburn, there is unquestionably such a problem with the solution proposed by Senator Boxer. Even assuming that the alteration of the text of the Coconut Road earmark violated some law (which is far from apparent), the Justice Department could not constitutionally prosecute any Member or staffer for such action. Moreover, the Justice Department would be barred from obtaining any information from the House regarding the circumstances of the alteration, thus very likely making it impossible for it even to establish the facts of what occurred.

Leaving the legal technicalities aside, it is difficult to imagine what could be more offensive to separation of powers generally and the Speech or Debate Clause in particular than for the Congress to call upon the executive branch to investigate the very core of the legislative process, namely how a bill is physically prepared for enrollment. It is astounding that the same Congress with one breath can decry the “politicization” of the Department of Justice and, with the other, outsource its own constitutional responsibilities to that Department.

Legislative Privilege in Britain

Legislative privilege is a concept that long pre-dates the Constitution, and was inherited from the British Parliament by the colonial legislatures, then by the state legislatures and finally by the Congress.  As Jefferson wrote in opening the discussion of privilege in his Manual of Parliamentary Practice (a work he prepared for his own guidance as President of the Senate from 1797 to 1801): “The privileges of members of Parliament, from small and obscure beginnings, have been advancing for centuries with a firm and never yielding pace.”                


          In Britain, questions of parliamentary privilege were considered separate and apart from the common law.Although breaches of parliamentary privilege were initially punished by application to the King, by the sixteenth century the Houses of Parliament themselves began punishing contempt.By the seventeenth century, Parliament had rejected the notion that the common law courts had any proper role with regard to matters of parliamentary privilege.For example, in 1604 a committee of the House of Commons declared the House to be a court with regard to issues of parliamentary privilege and opined that the common law courts cannot “bring any prejudice to this High Court of Parliament, whose power being above the law, is not founded on the Common Law, but have their Rights and Privileges peculiar to themselves.”Similarly, one of the grievances set forth by Parliament in the preamble to the 1689 English Bill of Rights was that of “prosecutions in the court of Kings bench, for matters and causes cognizable only in parliament.”

         When the courts attempted to interfere in matters of parliamentary privilege, the Houses of Parliament would typically respond with a forceful—in a literal sense—defense of their prerogatives.As described in J.Chafetz, Democracy’s Privileged Few, not only would the Houses imprison litigants who attempted to seek judicial redress with regard to matters the Houses considered to involve parliamentary privilege, they would imprison officials carrying out court orders and, on occasion, even the judges themselves.With regard to the House of Commons, Chafetz explains that the theory of legislative privilege “denied that the courts (whose judges were royally appointed and whose highest court of appeals was the entire body of the House of Lords) could have any say as to the content, or even the extent, of the House’s privileges; [and] it allowed the House to use its punitive powers to attack anyone who threatened its power and prestige. . . .”Democracy’s Privileged Few 237.

         It is difficult to translate this recognition of a nearly unlimited right of Parliament to define its own privileges into a limitation on the legislature’s ability to seek judicial relief or assistance if it is so inclined.Certainly the purpose of the doctrine was to protect Parliament from the courts and other outsiders, not to protect the courts from Parliament.

         Nor was there any relationship between the doctrine of legislative privilege and the concreteness of the injury that was suffered.Chafetz describes, for example, how Parliament maintained that legislative privilege prohibited the courts from punishing several Members who assaulted the Speaker of the House of Commons on the floor in 1629.Democracy’s Privileged Few73-74.Needless to say, the assault produced a concrete, not an abstract, injury, but this was not thought to have any bearing on the application of legislative privilege.

          Nevertheless, it remains the case that questions of legislative privilege were, by the late eighteenth century, viewed as beyond the province of the British courts. But, as I will discuss in a future post, this broad separation between legislative privilege and the courts, which might be described as a kind of political question doctrine on steroids, was never transplanted to American soil.