National Review’s legal contributing editor, Andrew McCarthy, has written two recent columns regarding the House’s use of criminal contempt. One involves Donald Trump’s political associate, Steve Bannon, who has been ordered to report to prison on July 1 to serve a four-month sentence for his refusal to comply with a subpoena to testify before the January 6 select committee. The second involves the House’s vote to hold the current attorney general, Merrick Garland, in contempt for failing to comply with the House Judiciary Committee’s subpoena for the recording of President Joe Biden’s interview with former special counsel Robert Hur.
I have some significant disagreements with McCarthy’s views, which I will discuss in future posts. Today, however, I want to provide some background on the relevant law, which is necessary for understanding the context of these disagreements.
Both matters arise under 2 U.S.C. §194, which provides that whenever a witness is summoned to testify or produce documents by a congressional committee and fails to appear, answer pertinent questions, and/or produce the documents at issue
and the fact of such failure or failures is reported to either House while Congress is in session . . . it shall be the duty of the [] President of the Senate or the Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.
You may notice that there is quite a bit of mandatory language in this statutory provision, i.e., references to “duty” and/or what a particular officer “shall” do. I particularly like the part which states “it shall be the duty of the presiding officer to certify a contempt report and then helpfully explains, in case the meaning of “duty” is unclear, “and he shall so certify.” This reminds me of the instructions for the Holy Hand Grenade of Antioch.
The underlying offense of contempt of Congress is defined by a separate statutory provision, 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 upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.
2 U.S.C. § 192.
On its face this provision requires “[e]very person” summoned by the authority of either house of Congress to produce information demanded by a congressional committee, but it also implicitly or explicitly suggests certain limits to this legal duty. First, the information must relate to a “matter under inquiry” by the committee. Second, at least in the case of a refusal to answer questions, the question must be “pertinent to the matter under inquiry.” Third, the default must be “willful,” which suggests that “non-willful” defaults (whatever that may mean) do not constitute a crime. Finally, it is well known that there are certain constitutional privileges which apply in congressional proceedings, the least controversial of which is the privilege against self-incrimination. It may therefore be inferred that the statute does not (and could not) make it a crime to assert a valid constitutional privilege.
The last of these raises another problem. Who decides if a witness has asserted a valid privilege? Put another way, what happens if a witness asserts a privilege and the committee decides that it does not constitute a valid reason for refusing to comply with its demands for information?
One possibility would be that the committee’s decision is final (or that it can only be overturned if the full legislative chamber decides not to uphold it). However, it has long been accepted that congressional contempt decisions are subject to judicial review; a witness whose assertion of privilege was overruled by a congressional committee can nonetheless assert the privilege as a defense to a contempt prosecution. If the court determines that the assertion was valid, the case will be dismissed. (The extent to which the court’s determination will or should defer to the committee’s initial decision is a nuance we need not worry about today).
On the other hand, if the court rejects the privilege, the witness is subject to prosecution, conviction and possible imprisonment, even if the privilege assertion was reasonable and made in good faith. This strikes many people as unfair. Perhaps the most notable observation on that point came in a D.C. Circuit opinion involving the executive director of the New York Port Authority, who was convicted of contempt for refusing to produce to a congressional committee certain allegedly privileged materials:
“During the House debate on the contempt citation, the Committee inserted in the Congressional Record a memorandum purporting to show that declaratory judgment procedures were not an available means for procuring judicial resolution of the basic issues in dispute in this case. Although this question is not before the Court, it does feel that if contempt is, indeed, the only existing method, Congress should consider creating a method of allowing these issues to be settled by declaratory judgment. Even though it may be constitutional to put a man to guessing how a court will rule on difficult questions like those raised in good faith in this suit, what is constitutional is not necessarily most desirable. Especially where the contest is between different governmental units, the representative of one unit in conflict with another should not have to risk jail to vindicate his constituency’s rights.”
United States v. Tobin, 306 F.2d 270, 276 (D.C. Cir. 1962) (quoting the district court opinion set forth at United States v. Tobin, 195 F. Supp. 588, 616-17 (D.D.C. 1961).
The court’s point in Tobin is reasonable and well-taken, but it is important to note that it would not be desirable to require that congressional committees seek a declaratory judgment whenever a privilege is raised. Congressional committees have limited time and resources, and it would be extremely burdensome to allow any witness to force them into a time-consuming litigation simply by asserting a privilege. Among other things, this would encourage the assertion of frivolous objections and reward witnesses whose counsel can come up with creative and novel privilege theories. (For related reasons congressional committees rarely allow counsel to make objections or arguments during their hearings, as I explained recently in this Lawfare piece). Thus, even if committees have a viable civil alternative to criminal contempt (a question we will get to in a moment), it would be burdensome and unreasonable to force them to use it in lieu of criminal contempt.
This brings us to the position of the executive branch regarding the use of the criminal contempt statute against its own officials. Despite the statute’s clear application to “every person” summoned to testify or produce records to a congressional committee, the Justice Department has long taken the position that it does not apply to executive branch officials, at least not the same way it applies to everyone else. Perhaps the earliest articulation of this position, which is cited in DOJ’s recent letter to Speaker Johnson regarding the Garland contempt, is contained in a memorandum submitted by the then-deputy attorney general, William Rogers, to a House committee in 1956. The memorandum asserts that the criminal contempt statutory provisions “apply to private citizens and persons” and “are inapplicable to the executive departments.” Availability of Information from Federal Departments and Agencies, Part 12- Panel Discussion with Government Lawyers, Hearings Before a Subcomm. of the House Comm. on Gov’t Operations 2933 (1956).
The basis for this position, to the extent there was one, was that “our Presidents have established, by precedent, that they and members of their Cabinet have an undoubted privilege and discretion to keep confidential, in the public interest, papers and information which require secrecy.” Id. at 2892. Furthermore, “[c]ourts have uniformly held that the President and heads of departments have an uncontrolled discretion to withhold the information and papers in the public interest and they will not interfere with the exercise of that discretion.” Id.
These claims were mostly bs when they were made, and there is reason to believe that the Eisenhower Justice Department knew that. Two years earlier President Eisenhower had asked the department for any legal support for his desire to direct federal personnel not to appear to testify before Congress (and specifically before Senator McCarthy’s committee) and was told “that there was no such precedent.” Stephen E. Ambrose, Eisenhower: Soldier and President 364 (1990); see also id. at 365 (“Previous Presidents had been exceedingly reluctant to withhold information or witnesses from Congress, and [Attorney General] Brownell was never able to find any convincing precedent for a doctrine of executive privilege.”).
In any event, subsequent legal developments, most importantly the Supreme Court’s decision in United States v. Nixon, 418 U.S. 683 (1974), clearly established that the president enjoyed only a limited and qualified right to withhold certain information and that courts could review his assertions of executive privilege. This required the Department of Justice to abandon the “uncontrolled discretion” nonsense and formulate a more limited defense of the president’s authority to withhold information from Congress.
In 1984, the Office of Legal Counsel issued an opinion regarding whether Anne Gorsuch, the administrator of the Environmental Protection Agency (and mother of a future supreme court justice), could be prosecuted for refusing to produce to a congressional committee certain records from “open enforcement files” at the direction of President Reagan. See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101 (1984). Although OLC purported to reaffirm the Justice Department’s “long-standing position” (as articulated in the Rogers memorandum) regarding the contempt statute, it actually employed very different reasoning. Rogers had asserted that the statute applied to “private persons” and not “the executive departments,” but OLC argued only that it did not apply to executive officials under certain circumstances, namely when they asserted executive privilege as expressly directed by the president pursuant to the authority recognized in the Nixon case.
OLC’s reasoning primarily focused on the burden that would be placed on the president’s constitutional authority recognized in Nixon if his subordinate could be threatened with criminal sanctions simply for assisting the president in exercising that authority. See 8 Op. O.L.C. at 136 (applying the contempt statute “would immeasurably burden the President’s ability to assert the privilege” and put him “in the untenable position of having to place a subordinate at the risk of a criminal conviction and possible jail sentence in order for the President to exercise a responsibility he found necessary to the performance of his constitutional duty”). It cited Nixon for the proposition the president’s assertion of executive privilege is “presumptively valid” and is “entitled to special deference.” Id. at 135-36. From this it concluded that the president’s assertion of executive privilege is “far different” than an assertion of privilege by a private individual. Id. at 136; see also id. at 138 (“The in terrorem effect may be adequate justification for Congress’ use of criminal contempt against private individuals, but it is an inappropriate basis in the context of the President’s exercise of his constitutional duties.”).
OLC contrasted this supposedly vital interest of the executive branch with the “comparatively slight” congressional interest in applying the criminal contempt statute under the specified circumstances. Id. at 137. The reason, OLC explained, is that Congress has an alternative method of obtaining disputed documents without invoking criminal sanctions:
Although 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.
Id.
The existence of this alternative civil remedy was repeatedly referred to by OLC and was integral to its conclusion that the statute could not be constitutionally applied to an executive official in the circumstances specified. See id. at 131-32 n.31, 133, 137 n.36, 139 n.39, 140 & 142: see also id. at 139 (“The balancing required by the separation of power demonstrates that the contempt of Congress statute cannot be constitutionally applied to an executive official in the context under consideration.”). OLC suggested that Congress might already have the statutory authority needed to bring such a civil action (OLC does not mention that, a few years earlier during the Carter administration, the Justice Department had opposed the enactment of a statute that would have expressly granted the Senate the authority to bring a civil action to enforce subpoenas against the executive branch), but in any event it asserted there was “little doubt” that Congress could constitutionally authorize such suits. Id. at 137 n.36.
OLC’s opinion read Nixon expansively in various ways. Nixon involved a subpoena to the president himself for what the Court characterized as presidential records (i.e., the White House tapes) of the president’s personal communications and activities, including most importantly deliberative communications between the president and his advisors; the Court explained that “the importance of [maintaining confidentiality of such communications] is too plain to require further discussion.” Nixon, 418 U.S. at 705. OLC nonetheless assumed that the Court’s observations were equally applicable to a subpoena which was not directed to the president, sought no presidential records, did not involve presidential communications or activities, and the objection to which was predicated on a theory of confidentiality (for open law enforcement files) not considered in Nixon at all.
Nevertheless, OLC emphasized the narrowness of its opinion. See 8 Op. O.L.C. at 142 (“In the narrow and unprecedented circumstances presented here, in which an Executive Branch official has acted to assert the President’s privilege to withhold information from a congressional committee concerning open law enforcement files, based upon the written legal advice of the Attorney General, the contempt of Congress statute does not require a prosecution of that official, or even, we believe, a referral to a grand jury of the facts related to the alleged contempt.”). In other words, OLC did not claim that executive officials had a blanket exemption from the contempt statute, nor that the mere assertion of a governmental privilege or immunity would be enough to avoid the application of the statute.
In subsequent years, however, OLC and the Justice Department expanded the scope of the 1984 opinion to cover much more than the “narrow circumstances” at issue in that opinion. It was applied to cover testimonial subpoenas as well as document subpoenas, former as well as current officials, impeachment proceedings as well as ordinary oversight, and a wide variety of legal theories for refusing congressional demands for information, including some (such as the imaginary doctrine of absolute immunity) which did not purport to be exercises of executive privilege at all. The one constant is that there must be a formal direction by the president not to comply with the congressional subpoena for testimony or documents.
The most important and egregious aspect of OLC’s “evolving” thinking regarding this matter relates to the existence of an alternative civil remedy for resolving interbranch information disputes. If you would like a detailed refresher on how this evolution occurred (and who wouldn’t?), see here. For now suffice to say OLC decided not only that no existing statute authorized a congressional suit to enforce a subpoena, but that no statute could constitutionally do so (at least against the executive branch and possibly against anyone at all). In the new and current position of the OLC and Justice Department, Congress lacks standing to bring civil enforcement actions against the executive branch, or executive branch officials, or former executive branch officials, or, possibly, anyone else.
Of course, this change in view would seem to blow a rather large hole in the reasoning that led OLC to conclude in 1984 that the contempt of Congress statute could not be applied to executive officials when the president invokes executive privilege. Did OLC therefore change its opinion? Did it review its original reasoning to see if its opinion could still be defended? Did it even acknowledge the problem?
I think you know the answer to those questions.
Now, with this as background, we will proceed to consider the Bannon and Garland matters.