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Are Congressional Grants of Immunity, as Currently Implemented, Constitutional?

The House Judiciary Committee wants Monica Goodling to testify at a hearing about the firing of the U.S. Attorneys. Goodling pleads the Fifth. The House Judiciary Committee did what prosecutors often do when they want someone to testify despite the privilege against self-incrimination -- they granted immunity against prosecution based on the testimony. This means Goodling need no longer worry that her testimony will incriminate herself about past crimes, and thus can't claim the Fifth Amendment. (She still has to testify truthfully, or face a perjury prosecution, but the Fifth Amendment doesn't speak to that.)

But is this constitutional? My sister-in-law Hanah Metchis Volokh has a new article arguing that it's not, because such unilateral action by a House Committee violates the separation of powers. (Of course, the article is about immunity grants generally, not the Goodling grant in particular.) Here's an excerpt from the Introduction:

The privilege against self-incrimination requires the government to make a decision: it can either prosecute someone on criminal charges and allow him to remain silent, or it can grant immunity, compel him to testify, and give up the prosecution. In some circumstances, compelled testimony is a good choice -- it can lead to the conviction of a "bigger fish" or allow Congress to gather information that will lead to beneficial legislation or better government oversight. In other cases, the compelled testimony would bring disappointing results and a criminal would nonetheless go free.

The essential separation of powers question is whether Congress has the constitutional authority to make the choice between these competing goals, or whether that choice is committed to the prosecutorial discretion of the executive branch. A federal statute, 18 U.S.C. ยง 6005, allows a single house or committee of Congress to vote to grant a congressional witness immunity from prosecution, thereby requiring the witness to give full and complete testimony at the hearing.

I argue in this Note that the congressional immunity statute is unconstitutional because it violates separation of powers doctrine. The statute unconstitutionally allows a committee of Congress to dictate prosecutorial decisions to the executive branch and to make changes to legal rights and duties without using the legislative process laid out in the Constitution. Whether the power to grant immunity is characterized as executive or legislative, it may not be exercised by a congressional committee. The decision whether or not to prosecute and the decision of which evidence should be used in pursuing a conviction are matters within executive branch control. Congress can make binding decisions in these areas only by statute.

Tom Holsinger (mail):
Only by statute? Statutes can be vetoed by the Executive.

Ding, ding, DING!

WE HAVE A WINNER in this week's Unclear On The Concept contest!

If the Executive can veto a Congressional investigation of the Executive, we have yet another Separtion of Powers violation, of the Legislative branch's investigative power by the Executive branch.

Perhaps an argument can be made that immunity can only be granted by a joint resolution of both houses of Congress, but this contention that a statute is required is right up there with contentions that the income tax is unconstitutional.
4.25.2007 7:24pm
Bill Poser (mail) (www):
Since it is admitted that Congress can grant immunity by the passage of a private law, it seems to me that what this comes down to is really whether Congress can pass a generic bill and delegate specific decisions to a committee. Offhand I don't know why it can't, but then I know nothing about jurisprudence on delegation.
4.25.2007 7:28pm
Anderson (mail) (www):
Holsinger nails it. I would add only that the immunity grant has to be approved by the U.S. district court. Therefore, two branches (legislative &judicial), combined, can check the third.

Also, does it make a difference whether Goodling is the target of a grand jury investigation? I could see an argument that, for ex, it would've been wrong for Scooter Libby, after being told he was a target, to've been granted immunity by the Republican Congress, so he could come up &confess to whatever he did.

But where there's no such investigation, just the bare prospect of one, that's a rather thin reed.
4.25.2007 7:32pm
LawMan 5000:
In order to have standing to challenge this law, would the U.S. Attorney (or another prosecutor) have to prosecute Goodling, and then she would claim the immunity granted by congress? If this is the case, there is probably no risk for congress even if the statute were unconstitutional because it is my conjecture that Goodling is not really worried about legally incriminating herself, rather, she hid behind the 5th Amendment in order to avoid having to embarrass the DOJ and the administration. I am not sure Regents law school actually explained to her what the 5th Amendment means, though 40% of her class did pass the bar.

Nonetheless, I have little doubt that the statute is constitutional and it is probably a better alternative than a new independent prosecutor law, which may be even more questionable constitutionally. The system of checks and balances is unsustainable without some mechanism for an independent investigation of the executive of possible illegal acts.

Unless, of course you are a John Yoo-type believer in the unitarian executive or find the Nixonian "If the president does it, it isn't illegal" persuasive. I do not consider either of them serious legal thinkers, though I guess one could make an argument for Nixon.
4.25.2007 8:03pm
Humble Law Student (mail):
Wow, the Volokhs are legal powerhouses. Can I marry into the family?
4.25.2007 8:30pm
Hanah Volokh (mail) (www):
Holsinger et al.: I address the problem of how Congress can provide effective oversight of the executive branch in the article. My analysis is that Congress has an inherent power to conduct investigations, which has been recognized since the Founding era. That power includes the ability to compel testimony from witnesses -- even without granting immunity for potentially incriminating testimony.

If a witness is required to give testimony that ends up being incriminating, the Fifth Amendment privilege against self-incrimination should still be applicable at a later trial. The result would be substantially the same -- the judge in the case would apply the privilege to exclude evidence that came from the congressional compulsion. The only practical difference is that Congress can't promise in advance that the evidence will be excluded. The application of the Constitution to the situation is up to the judge.
4.25.2007 8:36pm
I'm Not Ollie North's Lawyer, but:
I recall that Oliver North was granted immunity to testify about his involvement in Iran-Contra and that the Justice Dept. had to seal all of its investigation up to that point to show that it had everything it needed to prosecute him BEFORE his testimony to Congress (which was given in exchange for use immunity).

I don't recall a separation of powers concern as to the granting of the immunity -- Congress plowed ahead despite pleas by Justice to hold off.
4.25.2007 8:39pm
Hanah Volokh (mail) (www):
Anderson: Way to investigate the technical details of the immunity statute! I'm impressed! However, the district court's approval of the immunity grant is only a ministerial task to ensure that the congressional committee followed the proper procedures. The district court has no power under the statute to deny an immunity grant properly voted on by the committee. That is, the statue says the district court "shall issue" the immunity order, and past cases have held that the court has no discretion on the matter. So it's really just Legislature v. Executive, not Legislature-Judiciary v. Executive.
4.25.2007 8:46pm
BruceM (mail) (www):
they're not saying she can't be prosecuted for X crime, they're just saying her testimony can't be used as evidence in such a prosecution. Congress can make rules of evidence (such as the federal rules of evidence), so I don't see why they can't make a rule of evidence applicable to just one person (so long as it's in that person's favor rather, or else there'd be a due process issue).
4.25.2007 8:48pm
Eugene Volokh (www):
BruceM: Congress can make rules of evidence; the question is whether a single committee of a single House can grant immunity, not whether Congress can.
4.25.2007 9:03pm
Tom Holsinger (mail):
Ms. Volokh,

Somehow I doubt that a court would uphold punishment of a Congressional witness based on a contempt of Congress resolution if the witness refused to testify on 5th Amendment grounds and was ordered to testify anyway.

But a former client of mine would love to retain you concerning his contention that the income tax is unconstitutional.
4.25.2007 9:06pm
Tom Holsinger (mail):
oops, I should have added, "absent immunity".
4.25.2007 9:08pm
Anderson (mail) (www):
That is, the statue says the district court "shall issue" the immunity order, and past cases have held that the court has no discretion on the matter.

Josh Marshall and I thank you!

Re: the "Congress can compel w/out immunity" theory, would it not follow that, in any subsequent prosecution, the accused could move to bar any evidence obtained as a result of the compelled testimony? That seems like a big problem -- it seems very implausible that the prosecutors could insulate themselves from the testimony.
4.25.2007 9:18pm
John Herbison (mail):
The Oliver North case is instructive. I haven't recently read the appellate court opinion, but if I recall correctly, his conviction was reversed, and the special prosecutor declined to reprosecute, because of the government's inability to show that the inculpatory evidence presented at trial was not tainted by disclosures made in his immunized Congressional testimony.
4.25.2007 9:43pm
zooba:
Anderson: You are correct, if the accused in the subsequent prosecution is the same person whose testimony was compelled. See UNITED STATES V. HUBBELL,
KASTIGAR v. UNITED STATES.

The prosecution would have the burden to prove that the evidence used at trial was wholly independent from the disclosed testimony, a burden that would only be more difficult wrt Congressional testimony, because it is much more likely to get publicity and therefore contaminate other sources. (See Oliver North).

Hanah:
I'll have to dispute the sentence "The application of the Constitution to the situation is up to the judge." I know it probably says more than you mean, but the Congress is equally bound by oath to uphold the constitution. If the Congress knew that the testimony might be used in a way that, in its own independent judgment, violated the Constitution, it would be morally bound to refuse to compel the testimony, or otherwise promulgate legislation that prevented its use (Secret hearings, deny executive access to the transcripts).

Also, if your reasoning was correct, it would equally extend to compelled testimony in civil cases which could disclose criminal activity. The problem is, the clause "nor shall be compelled in any criminal case to be a witness against himself" is too narrow to be effective on its plain meaning, as long as evidentiary rules allow out of court statements, one could get around the rule in a variety of ways.

I think the central problem with your thesis is that it ignores the distinction between transactional and use-and-derivative-use immunity. If Congress was issuing transactional immunity, it would "dictate prosecutorial decisions to the executive branch and to make changes to legal rights and duties."

However, since the current section 6002 only applies use-and-derivative-use immunity, it hardly seems the case that Congress is dictating prosecutorial decisions or altering legal rights, it's just controlling the use of information that Congress itself is, in a sense, creating. Similarly, if you argue that somehow that Congress's granting of use-and-derivative-use immunity violates seperation of powers, then it implies that a federal attorney's use of use-and-derivative-use immunity violates a state's federalism rights to the extent that such immunity prohibits a state form using that testimony in subsequent prosecution in matters wholly beyond the Federal power to regulate. Yet, the courts have not blinked at extending federal immunity to state law crimes.
4.25.2007 10:36pm
David in NY (mail):
I see no reason whatsoever why Congress cannot delegate its power to grant immunity to one of its own committees. Think of all the other things it can delegate, even to organs of one of the other branches. And those organs, such as executive agencies, for example, are accorded great deference in the decisions they make, under Chevron. It seems a fortiori to me that there is no problem here. I think the lack of any serious contest of this question to this point in history supports my view.

Of course, it would be politically convenient just now if there were reasons to contest this power, since it is in the interest of the cabal which has been making the Justice Department a wholly-owned subsidiary of the Republican Party to have a basis to thwart any investigation into their appalling activities until after November, 2008. I'm sure Alfredo Gonzales thanks you.
4.25.2007 11:37pm
K. Williams (mail):
I feel like I'm missing something here. The abstract says: "The essential separation of powers question is whether Congress has the constitutional authority to grant immunity, or whether that choice is committed to the prosecutorial discretion of the executive branch."

But it seems clear, as a number of the commenters here have pointed out, and as Eugene himself has said, that there's no debate that Congress has the constitutional power to grant immunity via statute. (That is, Congress could pass a law granting Goodling immunity.) Therefore, there is no separation-of-powers question at issue here --the only potential question is whether Congress can delegate its constitutional powers to its committees. I, like David, think the answer, particularly in this case, is pretty obviously yes, but regardless, I'm mystified by the attempt to make this a separation-of-powers issue. What am I missing?
4.25.2007 11:54pm
Tom Holsinger (mail):
K.Williams,

It's the difference between the general and the specific. Congress has enacted a statute which authorizes Congress to grant immunity under certain conditions, among those being delegation of decisions when to grant immunity in particular instances to Congressional committees. 18 USC 6005.

Ms. Volokh, as I understand it, contends that statutes granting immunity are necessary for each individual instance of testimony, as opposed to the 18 USC 60005 statute which delegates the decisions about immunity for individual instances of testimony to a committee.

My point was that her contention gives the Executive branch a veto power over legislation giving immunity to a particular witness, and so would violate separation of powers by letting the Executive branch obstruct Congressional investigations.

Her response to that was to say that a Congressional committee could simply hold a witness in contempt for invoking a 5th Amendment privilege, and so force the witness to decide between incarceration for contempt of Congress, and risking later use of his/her testimony against him in a criminal prosecution.

That directly conflicts with our concept of ordered liberty.

Robert Bork would be proud of her.
4.26.2007 12:17am
Sasha Volokh (mail) (www):
K. Williams, David in NY, etc.: There are two problems with the "Congress can do it, therefore Congress can delegate it to its committee" theory.

In the first place, when we say "Congress can do it" in this context, we mean "Congress-plus-the-President can do it": Congress needs to pass the law by both houses and then the President needs to sign it. The committee business here not only doesn't require both houses, it also doesn't require the President. That's a separation of powers issue.

In the second place, even if the President agreed, Congress-plus-the-President can't delegate to a Congressional committee the stuff that they can delegate to an administrative agency. Agency delegation is O.K. precisely because the agency is in the executive branch, which a Congressional committee of course isn't. Bowsher v. Synar (about the Gramm-Rudman-Hollings deficit reduction statute giving work to the Comptroller General, who works for Congress) is the case on point here. So this too is a separation of powers issue.
4.26.2007 12:21am
A. Zarkov (mail):
Oliver North was granted immunity so he could testify in Congress about the Iran-Contra affair, yet he got indicted, tried and convicted. While his conviction got overturned on appeal, his ordeal shows that immunity isn't worth squat when the matter is primarily political. Anyone called to testify before Congress on any matter that could potentially put him at risk of prosecution is well advised to plead the Fifth Amendment. It's probably even worth risking contempt in most cases.
4.26.2007 1:05am
Eugene Volokh (www):
David in NY: You say Congress can delegate its powers to committees; I say Chadha.
4.26.2007 1:10am
Thief (mail) (www):
You say Congress can delegate its powers to committees; I say Chadha.


Well, if Congress can delegate the power to grant immunity from criminal prosecution (under the laws that Congress itself has passed) to the Executive branch, certainly it can delegate that same power to one of its own committees.

If we pour Ms. Volokh's goose sauce on the gander, wouldn't a private bill be required, passed by both Houses and signed by the President, every time anyone in the Executive Branch conferred immunity from criminal prosecution on anyone?
4.26.2007 2:18am
David M. Nieporent (www):
Thief:
Well, if Congress can delegate the power to grant immunity from criminal prosecution (under the laws that Congress itself has passed) to the Executive branch, certainly it can delegate that same power to one of its own committees.
I'm sorry, but I don't begin to see the logic there. You seem to be ignoring the fact that the executive branch and legislative branch have different roles in our government. Congress isn't "delegating" the power to grant immunity to the executive branch, any more than establishing an army is "delegating" the power to defend our borders to the executive branch. Executing the laws passed by Congress is the executive branch's job, not a mere "delegation" of power by Congress.


Tom H:
My point was that her contention gives the Executive branch a veto power over legislation giving immunity to a particular witness, and so would violate separation of powers by letting the Executive branch obstruct Congressional investigations.
First, it's not a violation of separation of powers, because the Executive has the specific constitutional power to veto.

Second, the Executive branch already had a veto, when Congress passed the law in question. Do you think that was a violation of separation of powers?

Third, Congress could of course override any veto, so the Executive only has limited power to veto a grant of immunity.

Fourth, your argument is severely flawed. Think about this: how can Congress compel anybody to testify? Its only power to do so lies in the fact that someone can be held in contempt if he refuses. But Congress would have to rely upon the executive branch to prosecute someone who was held in contempt of Congress. The executive could decline to do so. By your logic, the fact that the Congress has to rely upon the executive branch is a "violation of separation of powers by letting the Executive branch obstruct Congressional investigations," and therefore Congress should be able to prosecute contempt without the executive.
4.26.2007 2:42am
Luddite:
Thief, You respond: "Well, if Congress can delegate the power to grant immunity from criminal prosecution (under the laws that Congress itself has passed) to the Executive branch, certainly it can delegate that same power to one of its own committees."

Of course, Prof. Volokh could again respond "Chadha" since you haven't answered his point. But I will elaborate on it.

There is a crucial difference between allowing Congress to delegate to the President and allowing it to delegate to a Committee: if legislators are allowed to hold power outside of bicameralism and presentment they can avoid the accountability that comes from the formal legislative process. As Justice Stevens observed in Bowsher v. Synar:
If Congress were free to delegate its policymaking authority to one of its components, or to one of its agents, it would be able to evade 'the carefully crafted restraints spelled out in the Constitution.' That danger -- congressional action that evades constitutional restraints -- is not present when Congress delegates lawmaking power to the executive or to an independent agency."

Thus, allowing Congress to influence regulation following broad delegations is an open invitation for further delegation, and a circumvention of constitutional safeguards.

Professor John Manning has developed for further academic commentary on the subject.

Best,
luddite
4.26.2007 3:16am
zooba:
I don't see Bowsher or Chadha really providing the answer.

Bowsher simply says that, if someone is under control of the Congress, they are a Congress official, and therefore cannot perform executive functions. The question in this case under Bowsher is whether or not the granting of immunity is an executive function.

I'd argue that transactional immunity would be an executive function, because it alters legal rights (it prohibits prosecution, rather than restricts evidence), and therefore "has the force of law," whereas use and derivative use immunity simply limits the executive's use of information that would not exist absent Congress's exercise of its investigative power. Congress could equally not make this information available to the executive at all, as there is no requirement for Congress's sessions to be open to the public (many meetings are in secret now, and in the past, many more were). In fact, there is explicit authorization to keep information secret ("Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy").

Since Congress can wholly prevent the information from getting to the executive simply by exercising its "power to act alone in determining specified internal matters" it does not seem to be an exercise of executive power to condition such information on the guarantee it will not be used and thereby violate the constitutional rights of the person giving testimony.

Similarly, under INS v. Chadha, the question is whether one House, without presenting to the President, could take an action having the force of law. That is, whether the action was the invocation of the legislative power to make laws. Investigating the grant of immunity under Chadha, it seems that the limitation on the use of information from Congressional investigation is far more akin to the "power to act alone in determining specified internal matters," as it determines the scope of a particular Congressional investigation.

Most problematically, arguments going towards either failure to meet requirements of bicameralism/ or improper delegation of legislative power to a part of Congress and arguments of improper exercise of executive authority would apply equally to the power to use subpoenas. Far more than a limitation on the use of Congressionally created information, the subpoena substantially affects the legal rights of the person served, as failure to obey the subpoena can result in a Contempt of Congress conviction. Yet, SCOTUS has upheld both the use of subpoenas as necessary to the investigative process and the delegation of subpoena authority to committees and sub-committees of individual houses. EASTLAND v. UNITED STATES SERVICEMEN'S FUND; WATKINS v. UNITED STATES.
4.26.2007 3:21am
a bean:

If the Executive can veto a Congressional investigation of the Executive, we have yet another Separtion of Powers violation, of the Legislative branch's investigative power by the Executive branch.

Uh, how about ding-ding: assumes facts not in evidence. Congressional investigation 'powers' is a short-hand for something certainly, but what it absolutely is not is a constitutional power within all extents of that phrase.

Congress has in interest in investigating the workings of the other branches; however, it lacks the constitutional powers to do so. That it has granted itself certain legal rights by way of statute is hardly the same thing.
4.26.2007 4:07am
Hanah Volokh (mail) (www):
zooba: I address all of these things in my paper. Please download it from SSRN and read all about it!

David in NY: There are different (and much stricter) rules for what Congress can delegate to one of its own committees, as opposed to what it can delegate to the executive branch. See, e.g., INS v. Chadha.

K. Williams: Good point -- I really should rephrase that part of my introduction. What I really mean is whether a committee of Congress can make this choice, or rather, whether Congress can delegate the choice to a committee. I'll put this on the list of revisions for the next draft.

Thief: Prosecutors can grant immunity from prosecution without a private bill because doing so is within their prosecutorial discretion. They are not required to prosecute everyone they think has violated a law. (Actually, some statutes do purport to require prosecutions of all violators, and whether that's constitutionally permissible is an interesting question for further study. But in most cases, there is no explicit requirement that the executive branch prosecute all offenders.) Because of limited resources, both money and manpower, the executive branch has to set priorities on who will be prosecuted. And so, they are allowed prosecutorial discretion to decide when to prosecute, how many resources to devote, and how to go about it. An immunity grant from a prosecutor is basically a contract that is within the prosecutor's discretion to make: if you give us this information, we either won't prosecute you at all (transactional immunity) or won't use certain evidence against you if we do decide to prosecute you (derivative use immunity). The reason a congressional committee can't do the same thing is that they don't have prosecutorial discretion -- they're not prosecutors, and they're not in the executive branch, and they're forbidden from exercising executive power (see Bowsher).

David Nieporent: Here's an interesting historical note I came across in my research. Congress does now rely on the executive branch to prosecute for contempt of Congress. But originally, each House of Congress would conduct its own prosecutions for contempt! The accused would be tried at the bar of the House or Senate, and if found guilty, would be imprisoned in the basement of the Capitol until the end of the congressional term! Wacky! There's quite a judge-in-your-own-case problem here (though contempt of court judgments have the same issue), but at least the accused could be comforted to know that the maximum sentence was 2 years, and you could commit contempt with impunity on the last day of the term.

Sasha and Eugene: Thanks for your helpful explanations. I agree with everything you have said so far!
4.26.2007 4:45am
Oren (mail):

If a witness is required to give testimony that ends up being incriminating, the Fifth Amendment privilege against self-incrimination should still be applicable at a later trial. The result would be substantially the same -- the judge in the case would apply the privilege to exclude evidence that came from the congressional compulsion.


If the result is substantially the same, what (aside from the finer constitutional points) have we gained here? This is especially true under the prevailing application of derivative-use immunity since it has been held to virtually exclude prosecution on the matter discussed (except, perhaps in some ultra-technical case where the evidence is 100% physical AND was all gathered before the grant). The judge presumably doesn't have much discretion here - she must throw out anything tainted by the testimony and thus pretty much the entire case.

In other words, I see two ways this could play out and neither are particularly good.
4.26.2007 5:53am
zooba:
Hanah:
I read your article, and it seems you agree with me on transactional immunity and I would agree on non-derivative use immunity. The only difference is derivative use immunity. You conclude that because Appellate Courts have construed the derivative use ban broadly and basically because prosecutors are seemingly powerless to prevent the contamination of witnesses, that derivative use infringes too greatly on executive power to be within the investigatory power of Congress.

I'm not utterly convinced of the second point, but you have to at least concede the first point essentially says that Congress's actions are unconstitutional because the (intermediate courts) have made certain holdings regarding the breadth of derivative use. The other conclusion could be, of course, that the broad interpretations of derivative use by the DC Circuit and some other appellate courts are wrong.

Secondly, if the source of the problem is not in the inherently executive nature of the granting of non-derivative use immunity, but rather its effect, how is it better if a court decides to exclude evidence under a derivative use immunity standard based on compelled testimony without an explicit congressional grant of immunity? In either way, the prosecution's case is effectively torpedoed. Essentially you are promoting a formalist interpretation of the issue in Part IV and a functionalist interpretation of it in Part III, and they don't seem to be reconcilable.
4.26.2007 7:04am
David in NY (mail):
"In the second place, even if the President agreed, Congress-plus-the-President can't delegate to a Congressional committee the stuff that they can delegate to an administrative agency." "Congress needs to pass the law by both houses and then the President needs to sign it."

This is not worthy of a first (well, third) year law student. Congress-plus-the-President has already agreed to this delegation in the very statute that authorizes it, which was signed by the President. Can't change the rules in the middle of the game, I think. There's a perfectly constitutional delegation in force, one to which the Executive agreed.
4.26.2007 10:53am
David in NY (mail):
Oh come on -- Chadha, Schnada, I say. Chadha involved a decision that the Court found amounted to legislation that was carried out by less than a full Congress. What's legislative here? Here there's simply invocation of a mechanism that is useful both to Congress for carrying out its powers in and to the Executive in enforcing the laws. Next, I suppose, Congress will have to pass a law for one of its committees to issue a subpoena. This is absurd.
4.26.2007 11:24am
David in NY (mail):
Finally, Congress has the independent power to impeach Executive officials who commit, say, obstruction of justice by hindering prosecutions for electoral gain. The Executive plays no part in this. Congress certainly has the power to employ all necessary means, consistent with the due process clause, to do so. It thus may grant immunity in an investigation of impeachable offenses, and there is no reason why it cannot delegate this power to its committees. Indeed, grants of immunity are delegated to subordinates even in the Executive. The President is not required to personally sign such grants; the full Congress is not required to pass a law for them.
4.26.2007 12:28pm
r78:

That power includes the ability to compel testimony from witnesses -- even without granting immunity for potentially incriminating testimony.

Let's leave the waterboarding to the executive branch, please.
4.26.2007 1:43pm
cathyf:
Folks are dealing with the hypothetical of Goodling, but how about a different hypothetical: Could a committee of either House or Senate subpeona William "Cold Cash" Jefferson, grant him immunity, and thus torpedo the DoJ's prosecution of him?
4.26.2007 2:09pm
markm (mail):
Cathy: IIRC, 30-some years ago a Congressional committee chairman (House or Senate Armed Forces Committee, I think) deliberately prevented the prosecution of all the enlisted men who might have been involved in the massacre at My Lai, leaving only Lt. Calley and Capt. Medina exposed to prosecution for this war crime. However, this committee used a different tactic. They called them in to testify, then refused to release transcripts of their Congressional testimony to their defense attorneys. Use immunity should not have stopped a prosecution; there was still a ditch full of bullet-riddled bodies, testimony of others, and photographs of the massacre in progress (some of them published in Life Magazine), all of this evidence provably available before they testified, but those unreleased transcripts were an absolute bar to prosecution. (I have no idea if the law about that has been changed since then.)

This wasn't an unfortunate byproduct of a legitimate investigation, but a deliberate use of technicalities to stymie an investigation. Not that I blame the committee or its chairman, I'd have likely done the same thing. To apply the Nuremberg principle (that following orders is no excuse) to enlisted men utterly ignores the realities of military service. It's a lot to expect of an officer to decide that an order is illegal and disobey it, but they are well-educated and trained and expected to make some decisions independently. Enlisted personnel (especially back then) are often too poorly educated to know an illegal order, are trained just to follow orders, and generally should not be held responsible for anything but following orders and regulations to the best of their ability.[1] Calley was one of the lowliest of officers, but there was a huge gap between his privileges and those of every man under his command - and part of the price of those privileges is a higher level of responsibility. He should have known that if orders from above seemed to mean "shoot unarmed noncombatant women and children" in the situation on the ground, he was either misunderstanding his orders, misapplying them to an unanticipated situation, or had received an illegal order, and if it became clear it was an illegal order his position required that he have the guts to stand up and refuse.

[1] Note that one of the great strengths of the American military has long been that not all the enlisted men fit into this mold - when things go badly wrong in battle leaving them without effective leadership and orders that make sense, enough of them will improvise new solutions, creatively re-interpret out of date orders to reach towards the real goal, and lead the rest. But it's still a minority of the enlisted men that do such things, and requiring it of them would destroy the military heirarchy.
4.26.2007 6:15pm
Kelvin McCabe:

Or cathyf, can loyal republican scott bloch use his office of special counsel to snare up all the executive branch issues currently under congressional investigation to torpedo congress' investigation of gonzales, rove, et al.?

"Bloch, whose office typically investigates federal employee complaints, such as retaliation for whistle-blowing, told the Los Angeles Times this week that he "will not leave any stone unturned" in this investigation. He wants to know whether US Attorneys were fired for political reasons, what happened to those Republican National Committee e-mails missing from laptops used by Rove's staff, and whether the White House pressured appointees to discharge their duties with an eye toward party politics."

"So the question is, will Bloch be Rove's worst nightmare, striking from within the party, or will he act as Rove's protector, whitewashing the scandals in-house and declaring them clean?"

Will it be a race between congress and office of special counsel to get to all the emails and hatch act violations first? Rep Barney Frank thinks so. "This is a pre-emption, trying to cover up and not have a real investigation," he says. "I'm appalled."

Interesting. So what happens when the Office of Special Counsel initiates an investigation into the same attorney firings, and wants Goodling to provide answers to them, after she is granted immunity from Congress? Anybody have any thoughts on this?
4.26.2007 6:36pm
David M. Nieporent (www):
Oh come on -- Chadha, Schnada, I say. Chadha involved a decision that the Court found amounted to legislation that was carried out by less than a full Congress. What's legislative here? Here there's simply invocation of a mechanism that is useful both to Congress for carrying out its powers in and to the Executive in enforcing the laws. Next, I suppose, Congress will have to pass a law for one of its committees to issue a subpoena. This is absurd.
Even assuming that it really is "absurd" to suggest that, your analogy fails. The subpoena to testify is an internal congressional matter. But the grant of immunity actively impinges on the power of the executive branch to prosecute crimes.
4.28.2007 9:07am