Showdown in the Rose Garden: Congressional Contempt, Executive Privilege, and the Role of the Courts

Tim Mastrogiacomo

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In early 2007, the U.S. House Committee on the Judiciary launched an investigation into the 2006 dismissal of seven U.S. Attorneys from the Department of Justice. The Committee issued subpoenas to White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers, ordering both to produce documents related to the dismissals and Miers to testify before the Committee. Bolten and Miers failed to comply, citing the President’s decision to invoke executive privilege. On February 14, 2008, the House of Representatives voted to hold the pair in contempt of Congress. Speaker Pelosi sent the Committee’s contempt report to the U.S. Attorney for the District of Columbia, with the intent that he press charges against Bolten and Miers under two federal contempt statutes. Attorney General Michael Mukasey ordered the U.S. Attorney to disregard this command. The Committee on the Judiciary then filed a suit in the D.C. District Court, seeking civil enforcement of its subpoenas.1 The court held that Miers was not immune from being compelled to testify before Congress, but could claim privilege in response to individual questions; the court also ordered Miers and Bolten to produce the non-privileged documents requested in the subpoena and a list of all documents withheld under a claim of executive privilege.2 Shortly thereafter, however, the court of appeals granted Miers and Bolten’s motion to stay the district court order pending their appeal and denied the Committee’s motion to expedite the appeal process.3 In 2009, Miers and Bolten reached an agreement with the Committee to testify and provide documents for the investigation.

The House of Representatives attempted to use both criminal contempt and civil enforcement to force Miers and Bolten to comply with the Judiciary Committee’s subpoenas. It did not, however, use its oldest enforcement power: inherent contempt. The inherent contempt power allows either house of Congress to enforce its subpoenas without seeking the aid of the other branches of government. When the House voted to hold Miers and Bolten in contempt in February 2008, instead of taking steps to initiate a criminal indictment, the House could have dispatched the Sergeant at Arms to arrest and drag them to Capitol Hill for testimony. If Miers and Bolten still refused to testify, the House could have, absent successful petitions for writs of habeas corpus, imprisoned them in the Capitol until the term of the 110th Congress ended in January 2009.  Inherent contempt is not merely a theoretical power; on at least one occasion Congress used it to arrest an executive branch official.4

While inherent contempt is a potent weapon, if Congress were to use it against the Executive it would risk a public-relations nightmare or, worse, a violent confrontation between the branches. Despite these risks, various observers have argued that Congress should have used inherent contempt in the U.S. Attorney firings investigation.5 In their view, Congress weakens its position by seeking the aid of the other branches of government for criminal or civil enforcement of its subpoenas. Proponents of inherent contempt argue that it is less vulnerable to judicial review than Congress’s other enforcement powers. This is incorrect.

Disagreement over the potential advantages of Congress’s inherent contempt power is part of a larger debate. Some observers suggest that, regardless of which enforcement power Congress uses, the courts cannot consider defensive claims of executive privilege and may only conduct a jurisdictional review—a check to ensure that Congress is acting within the scope of its valid legislative function.6 These observers feel that judicial weighing of executive privilege against congressional information seeking is always inappropriate; some argue that inherent contempt cuts off the courts’ opportunity to engage in such behavior. At the other extreme, some observers argue that Congress’s use of either criminal or inherent contempt must automatically fail when an executive branch official makes a claim of privilege.8 It allows Congress, under its own power, to arrest, try, and punish individuals who fail to comply with Congressional subpoenas or otherwise violate the privileges of Congress. Congress has not used its inherent contempt power since 1935.9 Congress established criminal statutory contempt in 1857 as an alternative method of punishing contempt, at least in part because inherent contempt can be difficult to use (Congress must detain and try the contemnor) and offers limited punishment options.10 The 1857 criminal contempt statute is currently codified under 2 U.S.C. §§ 192 and 194, which provide for a fine of up to one thousand dollars and up to one year in prison for failure to comply with subpoenas for testimony or documents.11 Finally, Congress enacted a civil enforcement statute in 1978, currently codified as 28 U.S.C. § 1365, which gives the District Court for the District of Columbia original jurisdiction over claims brought by the U.S. Senate to enforce or issue declarative judgments regarding congressional subpoenas or orders.12 The House has no comparable civil enforcement statute. In Miers, however, the D.C. District Court held that the House may sue to enforce subpoenas under the Declaratory Judgment Act and that Article I of the Constitution provides an additional implied cause of action.13

In Barenblatt v. United States, the Supreme Court recognized two distinct types of limitations on Congress’s investigatory and contempt powers: (1) Congress may only inquire into matters on which it could validly legislate (this can be described as a “jurisdictional” limit), and (2) even if Congress can validly legislate on a certain subject or matter, it may not violate independent constitutional protections and limitations.14 Because executive privilege is a matter of degree rather than a hard limit on congressional action, it is better categorized as an independent limit, not a jurisdictional limit. The D.C. District and Circuit Courts’ holdings in Senate Select Committee v. Nixon15 reflect this: courts’ use of balancing tests to consider the Executive’s claim of privilege in this case was similar to the Supreme Court’s use of a balancing test to consider the First Amendment claim of the defendant in Barenblatt. In Barenblatt, the defendant appealed his criminal contempt conviction on multiple grounds.16 After concluding that the House Committee on Un-American Activities acted within the proper scope of its legislative authority in questioning the defendant, the Court considered whether the Committee’s inquiry into his Communist Party affiliations violated the First Amendment.17 “[T]he issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.”18 Similarly, the district court in Senate Select Committee balanced “the public interests that would be served by disclosure” against the President’s claim of privilege and the impact disclosure would have on expected criminal trials, and required the Committee to demonstrate a “pressing need” for the tapes.19 While the court acknowledged that “[t]he Committee itself must judge whether” seeking the tapes serves the public interest and serves its legislative function, it “exercise[d] its discretion not to enforce a subpoena which would exacerbate the pretrial publicity in areas that are specifically identified with pending criminal charges.”20 The circuit court did not use the same “balancing” language, but engaged in a similar weighing of interests.21

If executive privilege is an independent constitutional limitation on congressional action, an executive branch official may raise, and courts may consider, an authorized claim of executive privilege regardless of what type of enforcement power Congress uses against him. There is no guarantee that a court would conclude the claim of executive privilege outweighs Congress’s information-gathering privilege, but the official could nevertheless raise the claim—either as a defense in criminal or civil proceedings, or through a writ of habeas corpus if Congress uses inherent contempt. Some observers suggest that executive branch officials enjoy even greater protection from congressional subpoena enforcement—they argue that Congress may not use either criminal or inherent contempt against executive branch officials in the first instance. These arguments are unconvincing. Congress is generally free to use any of its enforcement powers against executive branch officials and courts are generally free to hear authorized claims of privilege.

While Congress’s enforcement options are roughly equivalent from a legal standpoint, they offer different practical advantages. Which option is most advantageous depends on Congress’s ultimate goal and how it wants the public to perceive its action. If Congress seeks merely to punish an executive branch official for refusing to comply, it should use criminal contempt. If it is primarily concerned with obtaining the subpoenaed information, it should use civil enforcement. And if it seeks the opportunity for a public-relations coup, it should use inherent contempt; but because this last option involves a high-stakes gamble, Congress should only use it when confronting a badly weakened Executive.

Commentators on both sides of the congressional versus executive privilege debate suggest that the courts should remain uninvolved. While judicial refereeing is likely to continue, it is not guaranteed. If the Supreme Court were to declare the intersection of executive privilege with all forms of congressional contempt a nonjusticiable political question, or if courts failed to resolve such claims in a timely manner, it would harm the efficient functioning of the nation’s government. The public interest would not be served by an imbalance of power favoring either Congress or the Executive. Congress must be able to monitor the federal government and must receive all information necessary for effective lawmaking. The Executive must be able, when necessary, to deliberate in confidence. Precedent indicates that the courts can balance the interests of both branches against one another—hopefully they will.

Congressional and executive branch awareness of the standards governing the interaction between the two branches’ privileges is chronically myopic. Congressional subpoenas of executive branch officials fall out of vogue when the same party controls both branches, and because the minority party cannot issue subpoenas without support from the majority, the Executive is often free to withhold cooperation when congressional committees request testimony. Only after the electorate divides control of the government, and political tensions rise, does Congress issue and attempt to enforce subpoenas against the Executive. While judicial balancing of executive and congressional privilege is necessary to preserve the efficient operation of government, when a court conducts such balancing some observers will inevitably cry that it is playing politics. However, the courts act much more fairly—and are less partisan—when they intervene than when they fail to intervene. Before Watergate, Congress and the Executive made great efforts to reach negotiated compromise. Since Watergate, the branches have been somewhat more willing to engage in, or threaten to engage in, constitutional brinksmanship. The courts have laudably encouraged negotiation and cooperation. Luckily, precedent suggests that regardless of which enforcement power Congress uses in next battle of the branches, the courts can continue to mediate.

Tim Mastrogiacomo, Georgetown Law, J.D. expected 2012; Georgetown University, B.A., 2008.

Acknowledgments: I would like to thank Professor Irvin B. Nathan for his helpful feedback.

Copyright © 2010 Georgetown Law Journal.

  1. Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 64 (D.D.C. 2008); see also H.R. Res. 980, 110th Cong. (2008).
  2. Miers, 558 F. Supp. 2d at 108.
  3. Comm. on the Judiciary v. Miers, 542 F. 3d 909, 911 (D.C. Cir. 2008) (holding that, even if expedited, the appeal would continue until after the end of the term of the 110th Congress, at which point the Committee would cease to be a legal entity and the suit would be rendered moot).
  4. In 1879, the House held George Seward, the U.S. Minister to China, in contempt for ignoring its subpoena and had the Sergeant at Arms arrest him. Josh Chafetz, Executive Branch Contempt of Congress, 76 U. Chi. L. Rev. 1083, 1135–37 (2009).
  5. See, e.g., id. at 1086; Jeffrey K. Tulis, On Congress and Constitutional Responsibility, 89 B.U. L. Rev. 515, 524 (2009); Michael A. Zuckerman, The Court of Congressional Contempt, 25 J.L. & Pol. 41, 44 (2009); John W. Dean, Harriet Miers’s Contempt of Congress: Are Conservatives About To Neuter Congress, While Claiming Full Legal Justification for this Separation-of-Powers Violation?, FindLaw (July 13, 2007)
  6. See, e.g., Chafetz, supra note 4, at 1143–55 (arguing that courts cannot properly consider claims of executive privilege in either civil or inherent contempt cases).
  7. See, e.g., Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101, 139, 140 & n.42 (1984); Response to Congressional Requests for Information Regarding Decision Made Under the Independent Counsel Act, 10 Op. Off. Legal Counsel 68, 86 (1986).
  8. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230–231 (1821).
  9. See Morton Rosenberg & Todd B. Tatelman, Cong. Research Serv., RL 34097, Congress’s Contempt Power: Law, History, Practice, and Procedure 15 (2008). Congress’s last use of the inherent contempt power was reviewed by the Supreme Court in Jurney v. MacCracken, 294 U.S. 125 (1935).
  10. See Rosenberg & Tatelman, supra note 9, at 20–21.
  11. 2 U.S.C. §§ 192, 194 (2006).
  12. 28 U.S.C. § 1365 (2006).
  13. Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 66–78 (D.D.C. 2008); see also Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202 (2006).
  14. See 360 U.S. 109, 111–12 (1959).
  15. 498 F.2d 725 (D.C. Cir. 1974); 370 F. Supp. 521 (D.D.C. 1974).
  16. 360 U.S. at 115–16.
  17. Id. at 122, 126.
  18. Id. at 126. The Court ultimately held that no First Amendment violation had occurred. Id. at 134.
  19. 370 F. Supp. at 522.
  20. Id. at 524.
  21. 498 F.2d at 732.

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