Everything Old is New Again

A press release from Congressman Barney Frank states as follows:

Congressman Barney Frank (D-MA) introduced legislation today that would require the appointment of a special prosecutor each time the House votes an official of the executive branch in contempt of Congress.

“After listening to the testimony of [the Attorney General] before the Judiciary Committee and his refusal to pursue House-passed contempt citation . . ., I believe we need to change the method of dealing with contempt if we are to protect Congress’ right to get information,” Frank said.  “If we make no change in the law, Congress will face future instances in which the Justice Department simply refuses to process contempt citations and we will be left without any recourse for getting documents.”

One might assume that this press release resulted from the recent refusals of White House Chief of Staff Josh Bolten and former White House Counsel Harriett Miers to provide documents and testimony in response to congressional subpoenas regarding the removal and replacement of U.S. Attorneys.  Or perhaps it stemmed from the front page article in the Washington Post on July 20, 2007, which began “Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.”

In fact, however, the Frank press release is dated April 21, 1983, nearly a quarter of a century before the Washington Post’s breathless revelation of this “bold new assertion of executive authority.”  The Bush Administration’s position in this regard may have been bold, but it certainly was not new.  Anyone familiar with the history of congressional-executive could have told the Post that the Justice Department, under this or any other administration, would not prosecute executive branch officials for asserting executive privilege in accordance with the President’s instructions.  One would think that the fact that no executive branch official has ever been prosecuted for contempt of Congress might have been a tipoff in this regard.

The current controversy is merely the latest chapter in a longstanding debate over whether the Congress has, or should have, a legal remedy when the executive branch refuses to produce information demanded by the House or Senate.  Note that this issue is distinct from the question of whether Congress has the right to obtain information from the executive branch.  Since the administration of George Washington, the Congress has asserted, and the executive branch has acknowledged, the right of the legislative branch to call upon the executive branch for information.  In 1792, the House established an investigating committee to inquire into a failed military campaign by General St. Clair against Indian tribes in Ohio.  This committee requested documents from President Washington, who assembled his cabinet to advise him on how to respond.  As reflected by Thomas Jefferson’s notes, the cabinet reached the following conclusions:

First, that the House was an inquest and therefore might institute inquiries.  Second, that they might call for papers generally.  Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would endanger the public.  Fourth, that neither the committee nor the House had a right to call on the Head of a department, who and whose papers were under the President alone, but that the committee should instruct their chairman to move the House to address the President.  

Washington produced all of the papers called for by the House in the St. Clair investigation, but in later years he refused congressional requests for other materials, such as a 1796 request from the House for documents relating to John Jay’s negotiation of a treaty with Great Britain.

Although executive branch refusals to provide information to Congress often led to major battles with Congress, historically these struggles were treated as political, not legal.   The term “political” here should not be taken to mean partisan, unprincipled or insincere, the way the term is often used today.  (Ironically, much of the dispute about the U.S. attorney matter has to do with how the word “political” is used or perceived.)  Instead, the disputes were political because they had to be resolved through political pressure and negotiation, rather than legal compulsion.  If the parties could not reach an acceptable compromise, Congress had no available remedy other than the ultimate political remedy of impeachment (which would be practical, if at all, in only the most extreme circumstances).      

For example, in 1886 during the Grover Cleveland Administration, the Senate made a demand for all papers in the Department of Justice relating to the removal of a U.S. attorney.  When the Attorney General refused this demand, the matter was referred to the Senate Judiciary Committee, which reported that when papers were “unconditionally demanded” of the President or heads of Departments, “they were under a constitutional duty and obligation to furnish to either House the papers called for.”  Further, “the committee believes it to be clear from the very nature of the powers intrusted by the Constitution to the two Houses of Congress it is a necessary incident that either House must have at all times the right to know all that officially exists or takes place in any of the Departments of the Government.”  Although the Senate ultimately adopted a resolution condemning the Attorney General’s refusal to provide the documents as “in violation of his official duty and subversive of the fundamental principles of the Government and of a good administration thereof,” it still did not get the requested documents.

It is only since World War II, and more particularly since Watergate, that Congress began thinking about its informational disputes with the executive branch as legal disputes that could be resolved through a legal remedy.  Apart from criminal prosecution under the contempt of Congress statute, the remedies potentially available to Congress would be so-called “inherent contempt,” in which the House or Senate instructs the Sergeant at Arms to arrest the contumacious witness and then proceeds to conducts its own contempt trial on the floor, or a civil action for injunctive or declaratory relief filed in federal court.  As will be discussed in later posts, each of these options had certain legal and practical drawbacks.  For now suffice to say that Congress has to date never successfully used any of these remedies against the executive branch.

Moreover, it is by no means clear that it would be to the advantage of Congress if informational disputes with the executive were to be resolved through one of these legal mechanisms.  At first blush it may seem that the absence of a remedy works to the advantage of the executive branch, which controls the information that the legislative branch wishes to obtain.  However, as I will discuss in my next post, this is not necessarily the case.