I'm not a separation-of-powers maven, but my sense is that the Reagan Administration — and, more recently, the current Administration — have been right to say no. The issue has of course come up in the executive privilege context:
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....
Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."
But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege....
The Justice Department is apparently relying on the reasoning given in this Reagan Justice Department Office of Legal Counsel memo; and my sense is that the memo is generally quite correct.
1. Recall that all this is happening because of the existence of the executive privilege — the executive branch's qualified (which is to say not absolute) right to refuse to allow testimony about confidential communications within the branch. The scope of the privilege is complex, as are the circumstances in which it can be overcome. But this is the privilege that the administration is asserting (as best I can tell at least plausibly) to block testimony and production of documents by chief of staff Joshua Bolten and former White House counsel Harriet Miers. The official view of the Justice Department (whether one thinks it right or wrong) is that the matter is covered by the executive privilege, and that Congress therefore lacks constitutional power to order the testimony and production of documents by the witnesses.
2. Now at this point, one way Congress can enforce its subpoenas is by prosecuting the witnesses in federal court for the crime of contempt of Congress (which, despite its name, in this case simply means refusal to testify when ordered to do so). But since federal prosecutions are generally initiated by the executive branch, Congress would have to get a federal prosecutor to get an indictment from a grand jury and then proceed with the prosecution. And there is a federal statute under which Congress claims the power to order prosecutors to do so.
The trouble is that this means (a) stripping the executive branch of its traditional "prosecutorial discretion," which is to say the discretion to decide whether to charge any particular potential defendant, and (b) ordering the executive branch to prosecute someone who, according to the executive branch's official view, is innocent. The executive branch's position is that Bolten and Miers have a good defense to the subpoena, much as a private lawyer ordered to testify about confidential conversations with his client would have a good defense — privilege. They are therefore not guilty of the crime of contempt of Congress.
It seems to me that action (a) is indeed a violation of the separation of powers, because it is placing in Congress's hands — rather than in the executive's — the quintessentially executive decision whether a federal prosecutor would prosecute someone in federal court. Even Morrison v. Olson, which upheld a special statute authorizing a special prosecutor who would be outside the President's authority, does not, it seems to me, go that far; among other things, it does not allow the legislature to mandate a prosecution. And action (b) is likewise solidly against our constitutional traditions, even accepting the propriety of independent prosecutors: When an independent prosecutor is prosecuting someone, I take it he believes (as prosecutors generally should believe) that there is at least probable cause to think that the target is guilty. Here the statute involves Congress ordering the Justice Department to prosecute someone who is, according to the officially decided view of that very same Justice Department, clearly innocent.
3. This having been said, firmly insisting on denying Congress any power to initiate prosecutions of people who resist its commands — commands that Congress wants to argue are lawful — would indeed make it much harder for Congress to make its commands stick. Impeachment, whether of the President or of subordinates, would still be an option, but there are many problems with it. As it happens, though, the law has long recognized two tools that Congress has here, one of which is a deep but narrow exception to the normal principles of separation of powers. Marty Lederman (Balkinization) (who I think likely disagrees with me on parts of what I say above) points to them. "Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena." And
Congress can itself prosecute the contumacious official(s) to coerce them to comply — a power that the Supreme Court has affirmed. See Jurney v. MacCracken, 294 U.S. 125 (1935); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); see also Groppi v. Leslie, 404 U.S. 496, 499 (1972). As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts — a "limited power of self-defense" for Congress, permissible because "any other course 'leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it'" (quoting Anderson).
How would such self-help work? Well, believe it or not, the Sergeant-at-Arms of the Senate or House would personally arrest the officials and detain them in the Capitol jail or guardhouse (assuming such a facility still exists). (One of my students last semester noticed this gem on the website of the current Senate Sergeant-at-Arms, Terrance Gainer: "The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States." We wondered in class: What could possibly have motivated Mr. Gainer or his staff to post that provocation?) The person would then be tried by the legislative house and, if found guilty (of civil contempt), could be detained until compliance with the subpoena or until the session of Congress ends, Anderson, 19 U.S. at 231, whichever comes first.
Congress has not invoked this authority since 1935 and, as far as I know, has never used it against a current or former government official. (The closest case was probably the contempt at issue in McGrain v. Daugherty, 273 U.S. 135 (1927), which was imposed against Mally Daugherty, a bank president and the brother of resigned and disgraced Attorney General Harry Daugherty, who Congress was investigating in connection with the Teapot Dome scandal.)
This latter approach is something that was a shocker to me when I first learned about it; after all, here Congress would not only order a prosecution, but could actually try and punish the person, though subject to certain limits. This is a deeper departure from the separation of powers than simply ordering the Justice Department to prosecute — in front of a normal judge and jury — would be.
Nonetheless, it is a departure that is sanctioned by longstanding legal doctrines, and (relatedly) by our constitutional history. It may be less pernicious in certain ways, because at least it is a departure that does not force a prosecuting office to prosecute someone who they think is innocent. But more importantly, it seems like the legally authorized approach — the use of a traditional and narrow departure from standard constitutional norms, and not a new departure.
4. My tentative view, then, is that when the Justice Department takes the view that a witness is properly claiming executive privilege, it should not prosecute the witness for contempt of Congress, and any attempts by Congress to force it into such a prosecution are unconstitutional. Congress retains tools to vindicate its interests. It's just that the tool of forcing the Justice Department to prosecute is not a permissible one.
Related Posts (on one page):
- May Congress Order the Justice Department To Prosecute People Who the Justice Department Firmly Believes are Innocent?
- Executive Privilege and Contempt Prosecutions:
It is one thing to assert that a particular question cannot be answered because of a privilege, whether that privilege is executive privilege or the 5th Amendment privilege against self-incrimination. But note, when you invoke such a privilege, you still must show up and you have to answer all questions not covered by the privilege. The executives claim is outlandish. It is not the case that they can say with a straight face that all of the questions Ms. Miers would be asked would be covered by privilege. No one can seriously dispute that Ms. Miers has a legal obligation to answer questions not covered by privilege. And no one can seriously dispute that if she had showed up to a hearing, some questions that could and would have been asked cannot plausible be covered by executive privilege. That a privilege exempts an individual from answering some questions covered by the privilege obviously does not mean that it also exempts them from answering questions not privileged. No one, no matter how expansive of a view of executive power they take, can plausible argue that Ms. Miers, now a private citizen, does not have to answer questions not covered by executive privilege!
Ms. Miers failure to show up for hearing is clearly contempt, and there is no plausible arguments to the contrary. The executive branch cannot plausible believe she has no obligation to even show up to a hearing where at least some of the questions would not be covered by privilege. Apparently, Ms. Miers thinks she is so high and mighty in her capacity as a private citizen that she is above testifying to the representatives of the people about even non-privileged questions.
A refusal by the executive branch to enforce a clear violation of the law when requested to by Congress, where, as here, there is no plausible defense or claim of innocence, (because by not showing up, Ms. Miers refused to answer even questions not plausibly covered by privilege) would be a purely lawless act.
Whatever happened to the rule of law?? This administration has demonstrated a pattern of lawlessness and arbitrary exercises of power. We apparently are degenerating into a society that is ruled by arbitrary exercises of whim, not by law. With due respect, Eugene Volokh's view on this matter is not even plausible, must less respectable.
And as the first poster noted, Miers completely and utterly failed to show up, there is no plausible argument that she is "innocent" and any declaration by a politicized DOJ to the contrary is just the more reason why an inherent legislative contempt power is necessary.
That sounds like an almost irresistible challenge. Can anyone play? How about the following:
If Congress issued a summons to the President to testify, would he be required to comply? IIRC, this is an open question. Prior administrations have taken the position that the President and members of his personal staff are not subject to the beck and call of Congress. Usually, the President makes members of his staff available to Congressional committees as a courtesy. I don't believe any prior administration has admitted there is a general obligation for members of the President's staff to honor such requests. Also as a courtesy, Congress usually does not take such testimony under oath.
If the forgoing historical summary is accurate (which I believe it is), why is it implausible for the administration to believe that this may be one of the circumstances in which it is not required to honor Congress' request for testimony from members of the President's staff? Arrangements over when and under what circumstances a member of the administration will testify before Congress are the subject of almost constant negotiations. If it is so obvious that Congress can compel the administration's testimony at will, why does Congress bother negotiating? Shouldn't it simply inform the administration when and where Mr. X or Ms. Y is to appear? What power does the administration have that forces Congress to negotiate the resolution to these questions? The fact these negotiations exist and have been ongoing in one form or another for decades suggests that it's not nearly implausible as you suggest for Ms. Meir's refusal to appear to be anything but unlawful.
Bruce, the question EV was asking was not whether Congress (or a judge) has the power to hold people in comtempt, but whether Congress has the power to force the DoJ to prosecute for contempt. And as a practical matter, how could you force someone to prosecute? Can Congress force the prosecutor to do a good job, too? Can Congress order the prosecutor to call certain witnesses?
As for the boldfaced argument, is it actually a "lawless act" to decline to prosecute someone? If a police officer stops you for jaywalking and says, "Don't do that again," is that a "lawless act" because he didn't write you a citation for a clearly illegal act? If a woman uses a gun for which she doesn't have a carry permit to defend herself against a rapist, and the prosecutor declines to prosecute her on the grounds that it would be utterly insane to do so, is this a "lawless act" or a reasonable excercise of prosecutorial discretion?
So what happens if the Sergeant-at-Arms shows up with armed guards to arrest Harriet Miers and armed guards from the FBI order the armed guards from the Sergeant-at-Arms to stand down? Do they shoot it out? Does the Sergeant-at-Arms lay seige to Miers' home? Does the Sergeant-at-Arms withdraw and wait for a time when he can snatch her unaware?
The far more prudent course of action would be for the executive to appoint a prosecutor whose job it is to make non-frivolous arguments to enforce the subpoena.
This is similar to asking the executive to defend a statute that that the executive believes is unconstitutional. As long as there are non-frivolous arguments in support of constitutionality, he exeuctive has a duty to defend the statutue. Any other solution would allow the executive to unilaterally ignore statutes by settlement agreement with like-minded people.
The DC court of appeals and the US Supreme Court are not exactly packed with liberals. Bush would be more prudent to fight the privilege fight using briefs in the courts instead of using guns in the streets.
It is no ordinary act of "prosecutorial discretion" to refuse a request by Congress to bring contempt charges where there is no basis for thinking that the defendant is innocent. This is not at all like not prosecuting jaywalking, which is an absurd comparison.
There is a statute which authorizes the Congress to order a US Attorney to bring contempt charges. There is no like statute requiring a local prosecutor to bring a jaywalking case. There is no plausible argument that this statute is unconstitutional when it comes to contempt charges for not testifying on matters not covered by privilege.
That you resort to such a lame comparison that so obviously is inapplicable tends to demonstrate that there are no plausible and respectable arguments on the other side.
Ms. Miers is no longer a member of the President's staff, but is instead merely a private citizen.
As for Professor Volokh's other arguments:
I don't disagree with much of the substance, but I think he is mistaken about the essence of the OLC argument. First, as I understand it the OLC argument does not actually require the Justice Department to believe that executive privilege was correctly raised. As I noted before, it seems the argument is that there could be no criminal prosecution at all in executive privilege cases, meritorious or not, because it would somehow chill the President from raising the privilege. That is a much bolder claim than Professor Volokh's.
Second, the OLC memo also argues that Congress could not use its inherent contempt powers to enforce its subpoenas (see footnote 42). Obviously that is not a prosecutorial discretion issue, and must depend entirely on the OLC's chilling argument.
So, the OLC's opinion is much broader than Professor Volokh suggests. The basic claim is that there should be no possibility of criminal sanctions for any executive official invoking executive privilege, in no forum and regardless of the merits of the claim.
Yikes.
Question 2: Could congress use it's power to set the court's jurisdiction (or just laws in general) to give itself the power to bring a case against witnesses who refuse to testify?
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As far as not showing up to testify at all it may be fishy in this case (I really haven't paid enough attention to say) but the president (and his advisers) must have some authority to ignore congressional summons.
Lets just consider the extreme case where a president is faced with a extremely hostile house who wants to disrupt a summit meeting the president is planning to hold with a foreign official. Can they schedule him to testify at that time? If he doesn't show does this mean they have the power to arrest him? What if congress just wants the president to resign? Could congress serve a subpoena on the president to testify every day? or otherwise so frequently request him or his staff to show up they couldn't conduct their job?
So obviously there is some power vested in the executive branch to ignore frivolous congressional subpoenas. Now things get more interesting. Suppose congress wants to subpoena the president for no other reason than to mock his policies and make him look dumb in a forum where they have the upper hand. Can the president refuse this sort of frivolous subpoena? What about his aids? If so then isn't there a plausible argument that there was no purpose in calling Harriet Miers to testify, knowing she would claim privilege, other than to have camera shots of her claiming it?
The view that the president and some sufficiently close staff have the power to ignore congressional subpoenas seems quite attractive to me for these reasons.
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However, I'm deeply troubled by congresses inability to force a prosecution when the executive disagrees with the charges. This creates the serious risk that a president engaged in criminal wrongdoing could prevent impeachment merely by effectively blocking any inquiry into his actions. Say by letting it be known that the justice department would refuse to prosecute anyone who chose not to testify on the issue and privately assuring them that he would pardon everyone on his way out the door.
As an earlier commenter pointed out the house sergeant at arms business seems disturbing as it runs the risk of armed standoffs between the house police and the president's security force. So if possible I would prefer they did this using their power over the court's jurisdiction or by passing some other law.
Surely getting an injunction is by far the easiest way to solve this problem?
Any judge has the inherent power to hold someone in contempt without having to first seek an information/indictment or other permission from the local prosecutor.
Huh? In order for a judge to do anything to someone they have to be legitimately in the judge's court. And of course due process has to be followed - Notice, etc.
When judges get their robes they don't get to automatically pick out people on the street and imprison them. This country isn't a bananna republic, although its getting there.
Maybe you would speak to whether the OLC's memo, or more to the point, this Administration, also is of the view that a Supreme Court decision upholding a contempt finding against an executive-privilege claim also falls into an "enforcement-free zone."
After all, who is the Supreme Court to tell the executive to enforce a judgment? Enforcement is, whether of a legislative or judicial law, an essential aspect of the unitary executive.
Andrew Jackson is reputed to have told John Marshall to enforce his own, and the rest of the Supreme Court's, judgment in the Indian-Removal cases.
I see no principled distinction between a SCOTUS ruling -- which is a law -- and a statute directing the executive branch to act against a contemnor.
"Judicial review," you say? Show me where in Art. II it says the president must abide by the Supreme Court's interpretation of the president's constitutional powers?
Or Art. III. Where is there any mention that the judicial branch is the final arbitor?
Sure, since Marbury that's been the way things have worked.
But this Administration has made abundantly clear to anyone willing to see that the Constitution -- that is, our system of government -- operates on a handshake. And sometimes, handshakes are made to be ignored.
It's a real shame Bush's term will be over before he has the chance to ignore a Supreme Court ruling on the Nixonian argument rejected in 1974 that each branch has final say over the constitutionality of its own actions.
Mr. Self-Proclaimed Impressive:Sure there is. The "plausible argument" — in fact, I think entirely compelling argument — is that the constitution says that Executive Power is vested in the President of the United States, not in Congress, so Congress can't order US Attorneys to do anything.
And as I said, how can they give such an order? Can they also order him to call certain witnesses? To make certain legal arguments? To appeal if a particular decision goes against him?
Yes. In the very first case concerning inherent contempt heard by the Supreme Court, (Anderson v Dunn, 1821) there is a reference to the Sergeant at Arms being ordered to arrest the individual "wherever he be found" (paraphrase). (Unfortunately, judicial language back in that day was even more difficult to understand than it is today, however, my understanding is that this case forms the precedential basis of Congress' inherent contempt powers.
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Marty Lederman (Balkinization) (who I think likely disagrees with me on parts of what I say above) points to them. "Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena."
It should be noted that the White House asserts that the courts have no authority in this matter -- i.e. that even if such a civil suit were filed, and the courts found for Congress, the Executive Branch would ignore it.
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I agree with the good professor that separation of powers requires that deference should be shown to the Executive on questions of prosecution of cases. What we are looking at here is a confrontation between two fundamental principals underlying Constitutional government -- separation of powers vs checks and balances.
IMHO, Bush's actions are designed to destroy the fundamental pricipal of "checks and balances", and the only recourse for Congress is impeachment. The House must empanel a special impeachment committee ASAP, and issue revised subpoenas for Miers, Bolton, etc that make specific reference to the impeachment proceedings. By including "impeachment" in the subpoenas, Congress strengthens its hand substantially, because the likelihood of the Courts deferring to the Executive when impeachment is at issue is far greater than if this was a case of "garden variety" oversight.
Congress should take a two-track approach -- "inherent contempt" against those not currently employed by the White House, and statutory contempt for those who are employed by the White House. Only if the courts decide in favor of the White House on the statutory contempt issue -- or should the White House refuse to act in defiance of the courts, "inherent contempt" procedings should then be instituted against current WH employees.
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As to the question of whether a sitting President could be compelled to testify by a congressional subpoena, the answer should be "no" except in cases of impeachment. (and in that case, the President could decline to testify citing 5th Amendment protections.) A reasonable President, when faced with an "oversight" subpoena from congress, would simply go to court to have it quashed -- and I suspect that the courts would agree to do so with very little difficulty. But the important thing is that the President not "defy" the subpoena, but that he address it through the courts. Defiance of a Congressional subpoena, i.e. simply ignoring it, would be an impeachable act.
But there is nothing in the Constitution that forbids Congress from limiting the discretionary powers of the executive -- and Congress is specifically empowered in Art I Sec 8 To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
The "vesting of Executive power" clause of Article II does not, IMHO, mean that Executive powers cannot be defined and limited by Congress. It simply makes the President the Chief Operating Officer, with Congress acting as the "Board of Directors".
In other words, there is a strong argument to be made that the "statutory contempt" provisions requiring prosecutors to act when ordered to by Congress can limit the President's discretionary powers over prosecutions in this particular case, because the law is "necessary and proper for carrying into execution the foregoing powers."
(Could Congress' power to set up "inferior tribunals" also enter into this equation?)
I'd give a qualified "yes" to that statement -- because while the President can pardon someone convicted under "inherent contempt", he probably does not have the power to free that person from Congressional imprisonment as long as that person remains in defiance of a subpoena.
Also, there is the matter of pardons and impeachment procedings -- I don't know exactly what the limiting clause ("except in cases of impeachment") means, and while I suspect that it was designed to prevent the President from excercising his pardon power when someone is/has been impeached and/or convicted, it can also be read to prevent the President from using his pardon power to "obstruct justice" in impeachment procedings by pardoning those who are held in contempt of Congress during such procedings.
EV's presentation of the problem seems persuasive because this Justice Dept is more in lockstep with the administration than just about any in memory, and it's inconceivable that Gonzalez et al would oppose Bush on this. But it's plausible that many lower level Justice Dept folks (perhaps even US Attorneys?) disagree with Bush. And it's from this perspective that the true tension of the "unitary executive" [sic] [snark] arises.
If I remember correctly, CIVIL contempt does not require a trial or a hearing. Do not pass Go... It's a coercive, equitable power the court uses to compel a party to act, right? Criminal contempt is considered punishment, so it gets due process and all that. The executive enforces the "law," but doesn't the Congress retain its power to enforce equitable measures?
Can't Congress hold Miers in civil contempt, throw her in jail, and then threaten the same to other hold-outs until the Court settles the privilege issue? Wouldn't this avoid the conflict between the branches?
Imagine, if you will, making the William Jefferson case simply disappear -- or a Congressional attempt to pull the plug on a special prosecutor who is taking its investigation in a direction a Congressional majority doesn't like.
And these folks claim to be against politicizing the Justice Department? The decision to fire at-will employees is nothing compared to the Congressional attempt to override the separation of powers.
So, is it your position that the executive has the right to disregard duties assigned to it by law at its own discretion? If a law allocates money to the executive branch on the condition that department X report to Congress on those expenditures, can department X spend the money but not prepare the required report? If Congress allocated X amount of money to a particular end, can the executive refuse to spend that money?
The idea that the executive can disregard the duties assigned to it by law has already been decided against the executive branch. In Train v. United States of New York, a unanimous Supreme Court ruled that President Nixon could not refuse to spend funds allocated by Congress. The President has a duty to "take care that the laws are executed." He does not have a right to violate laws that require particular duties to be performed. In that case, the particular duty to be performed that was required by law was the spending of money. Executive discretion did not include the right to disregard a duty clearly required by law. The President could not exercise his discretion to spend less than was authorized by Congress, where Congress required that the whole amount allocated be spent. Could Congress give the President more discretion? Could they have allocated say, up to $1 million but left it to the discretion of the President to spend less. Of course. But in this particular case, the law did not grant the the President such discretion and he had no choice but to follow the law as it was written.
There is no non-frivolous argument that Ms. Miers is not guilty of contempt of Congress. As a co-equal branch of government, Congress has the right to engage in investigations and coercively gather testimony from private citizens. As part of that core legislative power, Congress has the right to ensure that those who hold the Congress and the people in complete and utter contempt are appropriately sanctioned. Congress has a right to expect the executive to obey the law on this particular matter. Just as in Train, the statute here does not give the executive discretion. Just as in Train, the subject matter in which the law does not grant the executive discretion is a core legislative power of Congress. In Train, that core legislative power was the power of the purse. Here the core legislative power is the ability to engage in legislative investigation and oversight.
The executive has the right to exercise discretion when such discretion is built into the law. But it does not the right to blatantly disregard the law. When it comes to jaywalking, prosecutorial discretion is built into the law. There is no requirement that all instances of suspected jaywalking be prosecuted. And further, jaywalking has nothing to do with a core power of the legislature.
In contrast, in the case in Train v. City of New York, laws granting the executive the authority and discretion to prosecute jaywalking or not, there was no discretion built into the statute. President Nixon had to spend the money that was specifically allocated by law. He could not exercise discretion to spend less than was allocated, because the statute did not grant him that discretion. Period.
To think that the executive has the discretion to disregard the law flies in the face of Article II, which affirmatively requires that the President "shall take care that the laws be faithfully executed." When the President refuses to enforce the law, when there is no non-frivolous argument that Ms. Miers is innocent or has any defense arising from privilege, he is abusing the law, not faithfully executing it.
By completely disregarding the law, the President is violating Article II and the Constitution of the United States which he solemnly swore to uphold.
But this is nothing new for this administration, which holds our Constitution and the rule of law in utter contempt.
1) The statutory contempt law does not compel prosecution -- it compels prosecutors to present the case to a grand jury, and only if the grand jury issues an indictment would prosecution become (theoretically) compusory. The grand jury process acts as a means of preventing arbitrary and/or improper prosecutions for contempt of congress.
2) There is nothing in what I've written that suggests, or can be rationally extrapolated to suggest, that Congress has the power to stop prosecutions. (It does, of course, have that power -- it can deny funding for prosecutions, for example -- but this is irrelevant to my argument.)
Actually. Congress can order US Attorney to do something. It can order them to spend all the money that is allocated for a particular purpose. See Train v. City of New York.
Please explain how that logically follows from anything I have written.
(a) the power of Congress to "assign duties" to the president is limited; and
(b) the remedy for the president failing to do so is impeachment, rather than Congress taking the executive power upon itself.
That begs questions left and right -- like whether the law in question is constitutional in the first place. Consider the following two statutes:
(1) "X is a felony"
(2) "X is a felony; prosecutors shall prosecute people for X."
Your position seems to be that the second statute is different than the first; that the first permits the president to ignore violations if he wishes, while the second does not. But if the president's duty is to "take care that the laws be faithfully executed," then why doesn't his duty to prosecute derive from the "take care" clause of the Constitution, even in the absence of the "shall prosecute" clause of the statute? My response is that prosecutorial discretion is inherent in the executive power. It has to be, because the alternative would be that Congress can wield the executive power and direct the actions of prosecutors.
What I have found is:andBoth in Section 1.
I would suggest that "inherent contempt" is the equivalent of "civil contempt" in this case.
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And these folks claim to be against politicizing the Justice Department? The decision to fire at-will employees is nothing compared to the Congressional attempt to override the separation of powers.
I think that your concerns are justified to some extent, which is why this whole case is so troublesome. Bush is acting in bad faith, which requires Congress to assert its own powers in good faith to restore "checks and balances." But in doing so, precedent will be created that may eventually lead to another Constitutional crisis if Congress uses those precedents in bad faith. (And, as we saw with the abuse of Congress's impeachment powers in Clinton's case, Congress is certainly capable of using its powers in bad faith.)
As Mr. Impressive has so eloquently pointed out, the President is required to "faithfully execute the laws", and the Miers case is an obvious example of his defiance of that requirement under the general definition of "faithfully". What Bush is doing is not merely "rewriting the Constitution", but rewriting the dictionary as well -- creating brand new definitions for words like "faithfully" that are without precedent.
Ultimately, the best solution is going to have to wait until we have a Democratic Congress and President who can negotiate a new law defining the limits of Executive Privilege, and requiring court review of disputes that may arise under that legislation. Its unfortunate that it has come to this pass, because the Constitution was written with the assumption that all the branches of government would act in good faith -- but from the impeachment of Clinton, to Bush v Gore, to Bush's unprecedented power grabs, the last three decades demonstrate that no branch of government can be relied upon to always act in good faith.
Obviously, and as anyone who has gone to law school should know, the powers of the three branches overlap somewhat at the edges.
Or is it your position that the Sergeant at Arms of the House, the Senate Sergeant at Arms, and the Capitol Police are unconstitutional?
I would agree. The problem is how one defines "wielding". And I would suggest that legislation that prescribes or proscribes Executive action does not constitute "weilding" per se. For support, I would cite the (again) Art I, Sec 8, which empowers Congress
In other words, it seems to me that Congress is authorized in this section to define how the Executive branch "carr[ies] into execution" the powers granted to it under the Constitution.
Your missing a major point. The argument is that the statute does not give the President discretion and it goes to a core legislative function. Prosecuting X does not usually go to a core legislative function. In contrast, spending all the money allocated (since Congress holds the power of the purse) or laws against contempt of Congress (since Congress has the power to conduct investigations and oversight) go to a the very core functioning and purpose of the legislature.
There a great many things that one is legally permitted to do, but that one should not do. Joe Welch did not tell Joe McCarthy that he could not do what he was doing, because in fact McCarthy could do it. Welch famously told the senator in effect that he should not be doing what he was doing. ("Senator, have you no decency left...")
Perhaps there is a colorable case for what the Administration seems to be preparing to do, but ought they do it? Has the Executive really been so weakened over the years that it is right that they dig in their heels on this to preserve (increase?) the president's ability to govern on behalf of the country? What/whose interest(s)are they out to serve, and would what they contemplate doing serve them? Would it be about doing the best by this country at present and for the future, or about serving suspect interests (cover up of dubious practices or frank wrongdoing) of the current incumbents?
Do those who think what the Administration contemplates doing is legally permissible think that the Administration should do it? If they do, would they explain how they think the interests of this country would be well served by it, not just the interests of those who currently occupy the White House.
I don't see this contest as a "partisan" one because that might imply that in the end it really reduces to one between Dems and Repubs, whereas I believe it is more one between the public interest on one side and the power and self-interest of a few on the other. What a "gift" Bush would give this nation at a time when it could happily do without it!
But I thought the Master-At-Arms argument was a novel way of "getting" the moron-in-chief.
It's fun when the very first post is sitting there like a softball on a tee. [And does anyone not have contempt for Congress?]
Let's turn the question around & ask: can the president hold Congress in contempt?
And re:
C'mon! Who do you think the Sergeant-at-Arms is, Ronnie Earle, galavanting all over Texas from his geographically small district in Austin, indicting whomever he pleases?
The duties and authority of the Sgt-at-Arms in both Houses comes from their respective rules, which in turn come from their version of Robert's Rules of Order [Parliamentary Procedure]. The Sgt-at-Arms has immediate authority within the Session. Otherwise the Sgt-at-Arms could chase Harriet all over the country - hey, maybe all over the world - and walk her back to the Senate holding her by the ear.
And re the arguments that the President 'shall take care that the laws be faithfully executed,' the Meiers question pales into insignificance compared with the Presdent's deliberate failure to enforce federal immigrations laws. The Constitution states that the president's sworn duty is to repel invasions. The Constitution doesn't restrict its language to 'military' invasions -- which this invasion could well become.
runape:
I believe that was already settled in the affirmative by Nixon's "Saturday Night Massacre". Of course, Congress may then impeach for obstruction of justice...
Further back, someone asked in effect whether the President could suborn his subordinates to refuse to testify, lie, or otherwise obstruct an investigation. Sure he can, just like the Godfather can bump off witnesses. However, if there's anyone with any integrity among the President's men, they'll be testifying to Congress about this obstruction, and any congressman or senator with integrity will then support impeachment, regardless of party. Oh wait, integrity in DC? What was I thinking???
It seems to me that a pragmatic libertarian generally would favor strong checks running in every direction between the branches of government, since that would produce the greatest possible friction when it came to using and abusing government power.
So, I could see a libertarian NOT liking mandatory prosecution laws, since prosecutorial discretion historically has been an important check on legislative power. Conversely, I would think a libertarian would also NOT like broad executive privilege claims, since congressional oversight investigations historically have been an important check on executive power.
So, it seems to me that a pragmatic libertarian might reasonably support the inherent contempt approach, which would preserve both prosecutorial discretion and the ability of Congress to conduct oversight investigations. And while the spectacle of various government officials sticking each other in jail because they cannot resolve their disputes might cause others to be concerned about people losing confidence in the government, it seems to me that from a libertarian perspective, such an effect would just be icing on the cake.
Your turn. Executive privilege is provided for in the Constitution in Article ?
It's time to kill this stupid and dangerous doctrine once and for all.
..Smokey has it right. Bigger and much more important issues are being avoided while Congress reactivates the Angels-on-the-head-of-a-pin quarrel. Libertarians and other Bush haters have once again attacked the Presidency as a means to attack Bush. And that's not even in their short term interests. Foolish choices are their forte. Their record is intact...100% Fantasy.
As the House explained in its brief in Waxman v. Evans: "Prior to World War II, congressional subpoenas were rarely directed to executive branch officers. Modern practice has seen subpoenas increasingly used with respect to executive officials, and such subpoenas are now routinely used to compel the production of executive branch information which an executive branch agency resists providing upon simple request. If an executive official fails to comply with a subpoena, the committee can threaten to hold the official in contempt, an action that has been taken against a number of cabinet officials in the years since Watergate. In most cases the executive branch has been compelled to produce the information sought when a congressional committee has escalated a dispute to this level. However, because the executive branch controls the machinery for prosecution, there are also incentives for the legislative branch to attempt to resolve the dispute short of an actual contempt referral to the U.S. Attorney. In fact, there has been only one occasion in history where the full House has voted to refer an executive official (EPA Administrator Anne Gorsuch) to the U.S. Attorney for contempt, and this matter was resolved shortly thereafter without a prosecution."
David: Well I understand that, but the question seems premised on the position that Congress forcing the DOJ to prosecute someone is the only way for congress to have some it deems a contemnor held in contempt. Otherwise why ask the question?
Ah. But what would the first step in trying to get a law declared unconstitutional? In my mind, It would be to refuse to enforce it. If congress thinks that is wrong, they can take it to court. The defense would be something like "I don't think the law is within the constitution" (but with more supporting details, of course). Then it can work it's way through to SCOTUS and they can make a decision.
Right now in not going through court the biggest gain is that you won't lose, and by not losing you aren't in a position where you look like a sore loser (or alternatively like someone who won't take an answer they don't like regardless of where it came from). In my mind that's the main reason both sides haven't forced this to court yet. And to me that suggests they are both less sure of their footing than their bluster claims :)
I don't know that there are any self-declared "libertarians" here who "never ever" side against the executive interest. That aside, the libertarian interest is not fixed in opposition to or support of any particular branch of government.
Actually, among the other possible outcomes of a congressional investigation is Congress passing new laws.
Bruce, the question isn't premised on the position that Congress forcing the DOJ to prosecute is the only way for Congress to enforce its contempt, because EV lays out other possibilities in this very post. He asked the question, presumably, because he's interested in the question.
Mr. Impressive:Not at all. While it's true that they perform quasi-executive functions, they do so from within the legislative branch -- there's your "overlap." That's different than ordering executive branch officials around.
Is your position that they're superfluous, since Congress can just order the executive branch to do their jobs?
The rhetoric, the thirst for vindication is out-of-step with the facts. I recommend people sit-down and reflect on this Washington Post editorial which while tangential is yet another instance of this developing problem.
Bush is disgusting, but Congress is plainly descending into nothing more than political brinkmanship that is making it harder and harder for me to reflexively pull the democrats lever come election day. I'm sure they are thinking that the public will be so exhausted by all of this that people will vote "D" just to get some peace; however, I'm starting to wonder whether I'll vote at all if this keeps going.
Yes.
If they do, would they explain how they think the interests of this country would be well served by it, not just the interests of those who currently occupy the White House.
I think that the interests of the country are well served by maintaining separation of powers and not making the executive branch totally subordinate to the other branches. That is not a new and startling idea, since the last occupant of the White House felt the same way. As have all prior Presidents.
More to the point, if there were a Republican Congress attempting to engage in this sort of fishing expedition against Democrats then the vocal supporters of Congress on this thread would be silent.
This is a political squabble which certain people want transfered to the judicial sphere. It does not belong there. There is not the slightest sign that any crime has been committed which would warrant Congress issuing subpoenas to investigate. Congress is arguably abusing its own powers in this instance. Does that entitle the executive to launch an open-eneded investigation into the activities of Congress? To subpoena the confidential records of the DNC? I imagine there would be a lot of politically damaging stuff to be found in such records. On what grounds would you oppose such a move?
We lack such a conditional under the Constitution.
Also, you EV makes a huge (and unjustified) "benefit of the doubt" argument when he says that the proscutors believe in those people's innocence. Do they *really*? Also, can the prosectuors' view of their innocence actually always be coextensive with the executive's official stance on the innocence of the parties involved? Not really. The executive heads aren't lawyers and don't have the same prosecutorial ethics to uphold and whateverz, so you can't play the "ethics" card up in this peace when you know dat dat just ain't all dis is about.
According to you and Professor Volokh, the president could order the IRS agents to cease collecting taxes, because, in Volokh's formulation: the IRS firmly believes the taxpayer is innocent.
Do you really believe we live in a country where nothing could be done while the constitutionality of the tax system was litigated?
We already have the situation of a President who refuses to enforce existing immigration law or secure the borders. As far as I can tell, the proper solution to such problems lies with "we the people" at election time. We have a republic, if we can keep it.
Yes, nothing could be done while the constitutionality of the tax system was litigated. What do you think could be done differently?
I used to say my liberal friends exaggerated when they compared Bush to a dictator, but he is acting like the military leader of a banana republic, not the President of the United States.
What happens if Congress tries to send the Sergeant-at-Arms to enforce the subpoena but the President (through FBI agents or some other executive-branch police force) denies that authority? Does the FBI use armed force against the Sergeant-at-Arm's officers the same way the FBI would use armed force to stop a kidnapping?
The prudent thing for the
presidentjunta chief to do would be to let the very conservative DC Circuit and US Supreme Court resolve the issue.That sophists keep offering such pap as the Justice Dept. gets to declare people innocent helps no one but the wrongdoer.
Incidentally, how can Congress have an inherent contempt power? How is that not an unconstitutional bill of attainder?
In Tevya's word, tradition. Prof. Volokh quoted the reasoning in his post.
Then, the burden shifts to Bush to go court to get the warrant out of the system. Otherwise, the next time Miers is pulled over or questioned by any cop any place, she faces immediate arrest and detention. The warrant can be enforced by any law enforcement any place in the country. My guess is that there are plenty of Democratic county sheriffs or local police chiefs who would be happy to enforce the warrant.
At least we know the Bush Administration is not opposed to indefinite detention without due process.
P.S. (after proof-read): I just re-read "My guess is that there are plenty of Democratic county sheriffs or local police chiefs who would be happy to enforce the warrant." Bush's actions really do put us in banana republic territory.
Bush is not exactly in much of a position to oppose indefinite detention without due process.
If the President refuses to obey it, who has standing to challenge that? Will the caption read "House of Representatives v. Attorney General"? And what is the relief the court might grant? Is it mandate compelling the AG to prosecute? I think that's barred by Marbury v. Madison (has that case ever been cited for its actual holding before?).
Congress has the power of the purse.
And as soon as one party gets a veto-proof majority, then that party can enforce a demand for information to the occupant of the oval office. If s/he doesn't comply or chooses to litigate, it's amazing how quickly money for all those lawyers in the White House counsel's office or [fill in the blank] can dry up.
Until such time as a veto-proof majority holds Congress, those defending this administration -- on principle -- should be prepared for a Democrat[ ] president who treats a GOP Congress like crap.
Of course, such brilliant lawyering only denies the citizens of America an open government. But isn't that what Cheney is all about?
And you think that Bush's actions place us in banana republic terriory? What authority does Congress have to issue a warrant for somebodies arrest? Would you be comfortable with a Republican Congress possessing such power and using it to punish its political enemies?
Some people here appear to have been born yesterday, or after 2001 at any rate. But that is no excuse for not at least glancing at the blog you are commenting on, where you would learn that President Clinton made the same agruments for executive privilege that President Bush has made. In other words, Democratic presidents do treat GOP Congresses "like crap".
It's time to kill this stupid and dangerous doctrine [pros. discretion] once and for all.
wow.
So the next time you are pulled over for 72 in a 65, mandatory ticket? No "let off with a warning"?
And the 17yo kid whole gets BJ from his 16yo girlfriend...no discretion to NOT prosecute, so long as the legislature decreed that sodomy with a minor is a 20 year offense. Nope, gotta prosecute and go for the max sentence, even if Congress didn't really "mean it" when they passed the law. (After all, when does Congress get to decide they didn't mean it?)
You folks gotta stop looking at this through the lens of "Bush is Evil." In your zeal to punish Bush the Abominable and all his minions, you are going to wreck a pretty good mechanism.
Don't throw away the stove because you don't like the soup.
//Mandatory random bold and Kool Spellingz.
Fiat justitia et ruat coelum
I apologize, I mis-read your post.
The President claims that advisor's to the President can keep advice on the lawful exercise presidential power confidential as long as it isn't in order to conceal a crime.
Congress claims that congressional offices are lawless zones where there is "no controlling legal authority", where congressman can conceal evidence beyond the reach of any law.
As I understand your position, mandatory prosecution is constitutional?
This would mean that Congress (or state legislatures, as long as the state constitution doesn't interfere), could simply add a mandatory prosecution clause to each and every statute it passes.
Thus, there is no prosecutorial discretion except where Congress grants it. Prosecutorial discretion is, then, really a power of Congress, not the executive.
Why do we pretend the AG works for the President?
I doubt it -- at least if a Democratic President were attempting this kind of power grab.
The key here is orderly process when there is a dispute between branches of government. Bush has just declared war on the concept of checks and balances, rather than using the courts to determine what the limits of congressional and executive powers are.
The Miers case is the most egregious example. She is a private citizen. As such, there is no serious argument that can be made that says she does not have to show up in response to a congressional subpoena. If Miers felt that the subpoena was invalid, she had the option of going to court to have it quashed.
But instead of following the orderly procedure, she simply ignored it. And the White House has declared that she won't be prosecuted for ignoring it.
It doesn't matter if you think that the US Attorney's scandal is a stupid fishing expedition, or are convinced that the White House deliberately fired certain prosecutors in a conscious effort to obstruct justice. Congress has the power to issue subpoenas, and no individual has the right to simply ignore that subpoena.
The same thing goes for the documents subpoenaed from the RNC. Either the RNC produces the documents, or goes to court to have the subpoena quashed. They don't have the option of just ignoring the subpoena. Period.
I was personally appalled by some of the investigatory antics of the GOP during Clinton's term (I mean, investigating fan mail for Socks the Cat?). But Clinton never just said "screw you".... he abided by the law, and the traditions of trying to reach accomodation with Congress.
The big difference is that there is now a Democratic majority in Congress that respects the founding principals that underly the Constitution such as "separation of powers" and "checks and balances." The GOP doesn't give a crap about any of that --- to them, power is a tool to be utilized for maximum political advantage, regardless of what it means to fundamental principals of government.
I believe Congress can pass whatever law it wants. The President either vetoes it or a Court strikes it down. Until such time, the law is the law, and our President's duty is to faithfully execute it.
Washington Post, Sunday, July 22, 2007; Page A10:
The mission is clear: Teach those Iraqis how to abuse a constitution.
I just wanted to clarify, because saying that there are not even any plausible arguments on the other side is a very strong claim that can only be made with respect to a subset of the arguments presented by the other side.
There is no plausible or respectable argument that Ms. Miers is actually innocent or has any defense whatsoever for her criminal actions. However, whether the statute that allows Congress to direct a US attorney to prosecute an individual clearly guilty of criminal contempt to a grand jury is Constitutional is more tricky.
Train v. City of New York would suggest that Congress can direct the executive when it comes to core powers of the legislature. However, in that case, it was not Congress directly forcing the executives hand, but rather the City of New York which brought the case. Further, Congress has an alternative to forcing the executive to act to vindicate its core power. Congress could and should just order Ms. Miers arrest using the police forces already at its disposal.
I am certainly not saying that the executive would win in a showdown over whether the statute is constitutional, only that there are respectable arguments on that side. The argument that is not plausible, much less respectable is the argument that Ms. Miers is innocent of criminal contempt. Just to be clear.
Thank you for clarifying. So although you were referring to executive privilege in my earlier quote, you would indeed say roughly the same thing for prosecutorial discretion.
Thus, you would insist on receiving a speeding ticket for 72 in a 65.
Likewise, you would insist that the Georgia teenager be prosecuted to the full extent of the law for having oral sex with his teenage girlfriend.
My own interpretation of "faithfully execute" includes a significant degree of prosecutorial discretion. I see it as a safety valve available to our freely elected executive to protect us from, at best, poorly worded laws, and at worst, an overenthusiastic legislature.
It is a point on which reasonable people may disagree.
You better be a little nicer to the Professor. You might flunk out.
Anyway, we shouldn't lose sight of the fact that this whole Meiers issue is built on sand -- the absurd proposition that a president is not allowed to fire an appointee for any reason, or for no reason at all.
They are at-will employees.
That's the case for executive-issued arrest warrants, but what would prevent a friendly local sheriff or police chief from holding Miers until the Sergeant-at-Arms picked her up? Nothing. What's Bush going to do about it? Go to court? He's ruled that out. Send in the Marines or an FBI SWAT team?
As I said, Bush's antics put us in a banana republic situation.
Congress has a right to investigate actions that it thinks are merely improper. Such actions do not have to be illegal. Such investigations can inform the law-making function. It also has the right to investigate actions that it thinks are entirely proper. A positive example can also inform lawmaking.
The point isn't whether you, or I, or anyone else would embark on a particular investigation or engage in a particular sort of oversight if we were in charge of a particular Congressional committee. The point is that the Congress has a right to engage in such investigations and oversight, and it has the right to issue subpoenas. When you are issued a subpoena, you are legally obligated to show up. You are also legally obligated to answer any questions not covered by a privilege. That you disagree about whether a particular investigation should be held does not justify engaging in criminal contempt.