TiredFed

Why Inherent Contempt is the Way to Go

My sense from reading the CRS report on Congress’ Contempt Power is that the way to go is inherent contempt, for the following reasons:

1. Inherent contempt does not involve the Justice Department, the U.S. Attorney for D.C., or conservative judges in the U.S. District Court. Only the Supreme Court has any standing to review inherent contempt cases, and even their review is strictly limited.

2.  A standing committee or a new special committee could be authorized by the full House to hear the evidence in an inherent contempt case and only rely on the full House to put it to a vote. It would not take up the attention of the full House except for the final vote. With Congress in recess, hearings could be held during August, with no resulting impact on Congress’ other work priorities.

3.  Inherent contempt is the appropriate vehicle to use to coerce compliance, and that’s what Congress wants. Congress does not want to punish Harriet Meirs, Josh Bolten, Sara Taylor, Scott Jennings, Alberto Gonzales or Karl Rove, they want the truth, the whole truth and nothing but the truth. Congress wants evidence, in the form of testimony and internal Administration documents (emails).

4.  The criminal contempt statute and corresponding procedure are punitive in nature. It is used when the House or Senate wants to punish a recalcitrant witness and, by doing so, to deter others from similar contumacious conduct. The criminal sanction is not coercive because the witness generally will not be able to purge himself by testifying or supplying subpoenaed documents after he has been voted in contempt by the committee and the House or Senate. Consequently, once a witness has been voted in contempt, he lacks an incentive for cooperating with the committee.

5.  A finding of inherent contempt against an executive branch official does not appear to be subject to the President’s Pardon power.

Any questions?

Tests You Have To Meet

Authorization and Jurisdiction.

A contempt conviction will not be upheld if the committee’s investigation has not been clearly authorized by the full House or Senate. The investigation, and the questions posed, must be within the scope of the committee’s jurisdiction.

Legislative Purpose.

A committee’s investigation must have a legislative purpose or be conducted pursuant to some other constitutional power of the Congress, such as the authority of each House to discipline its own Members, judge the returns of the their elections, and to conduct impeachment proceedings.

Moreover, when the purpose asserted is supported by reference to specific problems which in the past have been, or in the future may be, the subject of appropriate legislation, it has been held that a court cannot say that a committee of the Congress exceeds its power when it seeks information in such areas. In addition, Congress’ power to investigate such diverse matters as foreign and domestic subversive activities, labor union corruption, and organizations that violate the civil rights of others — have all been upheld by the Supreme Court.

Pertinency.

Two different issues of pertinency arise in regard to a contempt prosecution. First, a witness’s refusal to answer questions or provide subpoenaed documents will be punished as a contempt only if the questions posed (or documents requested) by the committee are, in the language of the statute, “pertinent to the question under inquiry.”

In determining general questions of the pertinency of inquiries, the courts have required only that the specific inquiries be reasonably related to the subject matter under investigation. Given the breadth of congressional investigations, the courts have long recognized that pertinency in the legislative context is broader than in the judicial contenxt, which relies primarily on the law of evidence’s standard of relevance. For example, the D.C. Circuit has stated that:

A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress. ... A judicial inquiry relates to a case, and the evidence to be admissible must be measured by the narrow limits of the pleadings. A legislative inquiry anticipates all possible cases which may arise thereunder and the evidence admissible must be responsive to the scope of the inquiry which generally is very broad.

The second pertinency issue concerns the Fifth Amendment’s Due Process Clause. According to the Supreme Court in Deutch v. United States, the pertinency of a “committee’s inquiry must be brought home to the witness at the time the questions are put to him.”

In addition, according to commentators, a witness is entitled “to understand the specific aspect of the committee’s jurisdiction under its authorizing resolution [or House or Senate rule] to which the question relates.” Finally, it appears that the committee must specifically rule on a pertinency objection and, if the objection is overruled, inform the witness of that fact before again directing him to answer the question.

Willfulness.

A conviction for statutory criminal contempt cannot be sustained unless the failure to appear before the committee, to produce documents, or to respond to questions is a willful, intentional act. However, an evil motive does not have to be established. Because of the willfulness requirement, and to satisfy constitutional due process standards, when a witness objects to a question or otherwise refuses to answer, the chairman or presiding member should rule on any objection and, if the objection is overruled, the witness should be clearly directed to answer.

Other Procedural Requirements.

A contempt conviction can be reversed on other non-constitutional grounds. The cases make clear that committees must closely follow their own rules and the rules of their parent body in authorizing subpoenas and conducting investigations and hearings. It appears that a witness can be convicted of criminal contempt, but not of perjury, where a quorum of the committee was not present.

Source: CRS Report dated 7/24/07

(Internal citations removed; emphasis added)

Civil Contempt in the House of Representatives.

While the House of Representatives cannot pursue actions under the Senate’s civil contempt statute, there are numerous examples of the House, by resolution, affording special investigatory committees authority not ordinarily available to its standing committees. Such special panels have often been vested with staff deposition authority, and given the particular circumstances, special panels have also been vested with the authority to obtain tax information, as well as the authority to seek international assistance in information gathering efforts abroad. In addition, several special panels have been specifically granted the authority to seek judicial orders and participate in judicial proceedings.

For example, in 1987, the House authorized the creation of a select committee to investigate the covert arms transactions with Iran (Iran-Contra).

A review of modern House precedents indicates at least 5 other special or select committees that have been granted, via House resolution, both subpoena authority as well as the ability to seek and participate in judicial actions. These include: The October Surprise Investigation; The White House Travel Office Inquiry; The House Campaign Finance Investigation; The Select Committee on National Security Commercial Concerns; and The Teamsters Election Investigation.

Source: CRS Report dated 7/24/07

(Internal citations removed; my bold)

Civil Contempt in the Senate.

As an alternative to both the inherent contempt power of each House and the criminal contempt statutes, in 1978 Congress enacted a civil contempt procedure, which is applicable only to the Senate. The statute gives the U.S. District Court for the District of Columbia jurisdiction over a civil action to enforce, secure a declaratory judgment concerning the validity of, or to prevent a threatened failure or refusal to comply with, any subpoena or order issued by the Senate or a committee or subcommittee. Generally such a suit will be brought by the Senate Legal Counsel, on behalf of the Senate or a Senate committee or subcommittee.

Civil contempt, however, has limitations. Most notable is that the statute granting jurisdiction to the courts to hear such cases is, by its terms, inapplicable in the case of a subpoena issued to an officer or employee of the federal government acting in their official capacity.

During the course of the debates regarding this legislation, the executive branch strongly opposed conferring jurisdiction upon the federal courts to decide such sensitive issues between Congress and the executive branch. Testifying before a subcommittee of the Senate Committee on Governmental Operations, then-Assistant Attorney General Antonin Scalia argued that weighing the legislature’s need for information against the executive’s need for confidentiality is “the very type of ‘political question’ from which ... the courts [should] abstain.” In response, Congress amended the proposed legislation excluding from its scope federal officers and employees acting in their official capacity. However, as noted in a report from the House Judiciary Committee in 1988, the exclusion was to apply only in cases in which the President had directed the recipient of the subpoena not to comply with its terms. 

Source: CRS Report dated 7/24/07

(Internal citations removed; emphasis added)

This is the first in a series of posts on the new Congressional Research Service (CRS) Report on Congress' Contempt Power (dated July 24, 2007). The report was apparently developed to answer certain questions about the three main types of contempt citations. It is quite good, but a little long, so I thought it would be a good idea to share some of the better passages. I think looseheadprop is going like it.

What is Inherent Contempt?

Congress’ inherent contempt power has been upheld by the Supreme Court in Anderson v Dunn (1821) and McGrain v. Daugherty (1927). Both decisions were made without dissent.

Under the inherent contempt power the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned in the Capitol jail. The purpose of the imprisonment or other sanction may be either punitive or coercive.  Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least by the House, beyond the end of a session of the Congress) until he agrees to comply.

When a witness is cited for contempt under the inherent contempt process, prompt judicial review appears to be available by means of a petition for a writ of habeas corpus.  In such a habeas proceeding, the issues decided by the court might be limited to (a) whether the House or Senate acted in a manner within its jurisdiction, and (b) whether the contempt proceedings complied with minimum due process standards.

In comparison with the other types of contempt proceedings, inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches. The House or Senate can, on its own, conduct summary proceedings and cite the offender for contempt. Furthermore, although the contemnor can seek judicial review by means of a petition for a writ of habeas corpus, the scope of such review may be relatively limited, compared to the plenary review accorded by the courts in cases of conviction under the criminal contempt statute.

Proceedings under the inherent contempt power might be facilitated, however, if the initial fact-finding and examination of witnesses were to be held before a special committee – which could be directed to submit findings and recommendations to the full body – with only the final decision as to guilt being made by the full House or Senate.

As such, it would appear that one of the suggested reasons for the apparent abandonment of the use of Congress’s inherent contempt power, namely, that it became to cumbersome and time consuming to try contemptuous behavior on the floor of the body, is no longer compelling.

The criminal contempt statute and corresponding procedure are punitive in nature. It is used when the House or Senate wants to punish a recalcitrant witness and, by doing so, to deter others from similar contumacious[1] conduct. The criminal sanction is not coercive because the witness generally will not be able to purge himself by testifying or supplying subpoenaed documents after he has been voted in contempt by the committee and the House or Senate. Consequently, once a witness has been voted in contempt, he lacks an incentive for cooperating with the committee.

Arguably, an inherent contempt proceeding takes place wholly outside the criminal code, is not subject to executive execution of the laws and prosecutorial discretion, and thus, appears completely beyond the reach of the executive branch. Furthermore, as previously indicated, inherent contempt, unlike criminal contempt, is not intended to punish, but rather to coerce compliance with a congressional directive. Thus, a finding of inherent contempt against an executive branch official does not appear to be subject to the President’s Pardon power–as an inherent contempt arguably is not an “offense against the United States,” but rather is an offense against a House of Congress.

The assertion that the legislative history of the 1857 statute establishing the criminal contempt process demonstrates that it was not intended to be used against executive branch official is not supported by the historical record. The floor debates leading to the enactment of the statute make it clear that the legislation was intended as an alternative to, not a substitute for, the inherent contempt authority.  This understanding has been reflected in numerous Supreme Court opinions upholding the use of the criminal contempt statute.  A close review of the floor debate indicates that Representative H. Marshall expressly pointed out that the broad language of the bill “proposes to punish equally the Cabinet officer and the culprit who may have insulted the dignity of this House by an attempt to corrupt a Representative of the people.”1

Source: CRS Report dated 7/24/07

(Internal citations removed; my bold)

There were some interesting questions the past few days about the interplay of impeachment and the Presidential power of pardons. I thought some clarification might help. An impeachment and conviction results in removal from office, bars the convicted individual from ever serving again, and can result in the loss of emoluments (such as government pensions). Once removed, the convicted person cannot exercise the power of that office. Ergo, the President cannot pardon anyone (including himself) once he’s been impeached and convicted. The exception to the use of the pardon power (which includes commutations and such) is in cases of impeachment. What this means is that the President cannot preemptively pardon himself or anyone else to preclude an impeachment proceeding or to prevent or overturn the result.

And this made me lol.

 low-tech cyclist (formerly RT) says:
July 12th, 2007 at 6:43 pm

I'm wondering why Comey’s so-called appointment (not what I would call it) of Patrick Fitzgerald as Special Counsel in the Plame scandal really matters. So what if it wasn’t technically valid? What difference would it make if some court found the “appointment” to be technically invalid? Isn’t that a moot point, since Fitz was already a U.S. Attorney, fully empowered to investigate, bring charges, etc.?

First of all, Fitz was already a U.S. Attorney, nominated by the President and confirmed by the Senate. He could only be removed by the President. So why would Comey’s delegation memo make him subject to lesser regs like the Special Counsel reg, that would apply to outsiders like Ken Starr, but not high-ranking insiders like a U.S. Attorney? Per 28 USC 600.3, “The Special Counsel shall be selected from outside the United States Government.” These regs simply don’t apply to Fitz as a U.S. Attorney.

Second, I don’t see why everyone keeps calling this an appointment. Fitz was already a Fed. He already had a U.S. Attorney appointment. Comey just delegated his authority as acting AG limited to this investigation, since the AG had already recused himself and Comey was Acting AG at the time. He didn’t appoint Fitz to anything, he gave him limited delegated authority to investigate and prosecute this case.

Third, what is this removal issue about? The AG could have removed Fitz from the case, but not his position as U.S. Attorney. Only the President has the power to remove a U.S. Attorney (oops, guess someone should tell all those folks who were fired last year to get back to work). The delegation was by an (Acting) Attorney General, therefore it is obvious that another Attorney General (other than one who had recused himself) could have cancelled it or otherwise removed Fitz from the case. Is that really not obvious?

Lastly, my contention is that this wasn’t an appointment as a “Special Counsel” (as Comey so nicely tried to point out in his second memo on the subject), but merely a delegation of authority to fill in the missing blanks between Fitz’ status as a U.S. Attorney and his needs in this particular investigation (e.g., working outside his home district). 28 CFR 510 permits the AG to delegate any function of the AG to any officer, employee or agency of DOJ. So what’s the problem? This kind of thing goes on all the time. We have delegations of authority all over the place. Do you think the AG does any real work? Well, certainly not this AG.

Huh. MS wont let me embed a graphic here. I was trying to insert Comey's December 30, 2003 memo here. Oh well.

Here's some US Code if you're having trouble sleeping. 

US Code

TITLE 28 > PART II > CHAPTER 31 > § 508

§ 508. Vacancies

(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.

§ 509. Functions of the Attorney General

All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General except the functions—

(1) vested by subchapter II of chapter 5 of title 5 in administrative law judges employed by the Department of Justice;

(2) of the Federal Prison Industries, Inc.; and

(3) of the Board of Directors and officers of the Federal Prison Industries, Inc.

§ 510. Delegation of authority

The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

§ 515. Authority for legal proceedings; commission, oath, and salary for special attorneys

(a) The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.

(b) Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.

[Note: Keep in mind Fitz was already a U.S. Attorney and only needed certain parts of this section as  Special Counsel.]