Attorney General Eric Holder today will become the first Attorney General of the United States to be found in contempt of Congress, and the highest-profile casualty to date in the long-running controversy over the "Fast and Furious" operation conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. But the ultimate legal consequences of this escalating clash between the executive and legislative branches are far from certain.
On June 20, 2012, the White House, through the Department of Justice, advised the House Committee on Oversight and Government Reform ("Committee") that it would be withholding certain documents subpoenaed by the Committee in its "Fast and Furious" investigation on the grounds of executive privilege. (The Justice Department had previously produced thousands of responsive documents.) Later that day, the Committee voted along party lines to find Attorney General Holder in contempt of Congress. In the formal Committee resolution recommending that Mr. Holder be found in contempt, the Committee exercised its statutory power of contempt, rather than its inherent, constitutionally based, contempt power.
Statutory Contempt -- A Toothless Sanction?
The contempt resolution passed by the Committee, and referred to the full House of Representatives for further action, invokes Congress's powers under Title 2 of the United States Code, Sections 192 and 194. Under 2 U.S.C. § 192, a person who has "been summoned as a witness by the authority of either House of Congress to... produce papers upon any matter under inquiry before either House [of Congress]... or any committee of either House of Congress," and who "willfully makes default... shall be deemed guilty of a misdemeanor," punishable by a fine of up to $100,000 and "imprisonment in a common jail for not less than one month nor more than twelve months." Unlike inherent contempt, where the witness can cure the contempt by answering questions posed or producing subpoenaed documents, statutory contempt is purely punitive.
In this case, the contempt resolution adopted by the Committee found that the Department of Justice did not produce documents responsive to three categories specified by a subpoena issued on Oct. 12, 2011. The Justice Department maintains that it "has substantially complied with the outstanding subpoena," but the resident, citing "deliberative process" concerns, asserted executive privilege to withhold the documents at issue from the Committee.
On its face, the statutory procedure triggered by a contempt vote of the full House of Representative appears straightforward. Title 2 of the U.S. Code, Section 194, states in pertinent part:
Whenever a witness... fails to produce any books, papers, records, or documents, as required,... and the fact of such failure... is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with... the Speaker of the House, it shall be the duty of the said... Speaker of the House... to certify, and he shall certify, the statement of facts aforesaid... to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action. (Emphasis added.)
If matters proceed as expected, the Republican majority in the House will adopt the House Oversight Committee's June 20 resolution of contempt, and Speaker of the House John Boehner will then certify the matter to Ronald Machen, the United States Attorney for the District of Columbia, for enforcement action. As highlighted above, the plain language of the statute calls for the U.S. Attorney to present a congressional contempt citation to a grand jury, and in previous decisions the U.S. District Court for the District of Columbia, in examining the contempt procedure under 2 U.S.C. § 194, has observed that the U.S. Attorney is required to bring the case before the grand jury.
Indeed, in a 1940 decision regarding a contempt found by the House Committee on Un-American Activities, the district court (in language not central to its holding) stated that Congress "left no discretion with the [prosecutor] as to what he should do about [a certification of contempt]. He is required, under the language of the statute, to submit the facts to the grand jury." At least through the mid-1960s, the government occasionally brought criminal prosecutions for contempt of Congress.
Nonetheless, whether the U.S. Attorney is legally required to bring a congressional contempt citation before a federal grand jury, particularly in the wake of an assertion of executive privilege, is a subject of dispute. In 1960, the Justice Department declined to refer three officials of the New York Port Authority to a grand jury for refusing to provide documents to the House Judiciary Committee, despite congressional contempt citations that had been referred to the U.S. Attorney and the mandatory phrasing of 2 U.S.C. § 194. A 1966 decision by the U.S. Court of Appeals for the District of Columbia, concerning the House Speaker's obligation to certify a contempt citation to the United States Attorney, could be construed as also affording discretion to the U.S. Attorney as to whether to refer the matter to a grand jury.
In 1983, the General Counsel of the U.S. House of Representatives (then controlled by a Democratic majority), argued that the Department of Justice was required to bring a criminal prosecution of Anne Gorsuch Burford, the Administrator of the Environmental Protection Agency, regarding her refusal to produce certain documents to a congressional committee, even though the Reagan Administration had prohibited Gorsuch from producing the documents on the grounds of executive privilege. After litigation in federal district court, U.S. Attorney Stanley Harris eventually brought the matter before a grand jury, but the case was dismissed after the grand jury unanimously voted not to indict. In 1984, the Office of Legal Counsel ("OLC") at the Department of Justice, then headed by Theodore Olson, issued a Memorandum Opinion for the Attorney General ("Olson OLC Opinion") in which it concluded, "as a matter of statutory interpretation and the constitutional separation of powers... that the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an Executive Branch official who asserts the President's claim of executive privilege... " During the Clinton Administration, OLC reached the same conclusion in a 1995 opinion that Assistant Attorney General Walter Dellinger provided to Attorney General Reno.
In the most recent occurrence of a congressional contempt citation against executive branch officials, U.S. Attorney Jeffrey Taylor declined in 2008 to bring before a grand jury congressional contempt citations against Joshua Bolten, Chief of Staff to the President, and Harriet Miers, the former Counsel to the President, for not complying with subpoenas issued by the House Judiciary Committee. In that case, which concerned the Justice Department's firing of several U.S. Attorneys, President George W. Bush had asserted executive privilege to preclude Bolten and Miers from complying with the subpoenas. In a letter to House Speaker Nancy Pelosi, Attorney General Michael Mukasey wrote that "the non-compliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime, and therefore the Department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers." Thus, there is ample bipartisan precedent on which Mr. Machen may rely to refrain from prosecuting a congressional contempt citation against Attorney General Holder, and it is highly unlikely that he will even bring the matter before a grand jury.
Congress's Inherent Contempt Power -- An Unpalatable Alternative
In pursuing a contempt citation against the Attorney General, the Committee could have exercised its inherent contempt power rather than its statutory contempt power. Under Congress's inherent contempt power -- a constitutionally based power twice upheld by the U.S. Supreme Court -- the House may conduct its own summary proceedings without any involvement by the executive or judicial branches of government. The individual deemed to be in contempt (the contemnor) is brought before the House of Representatives by the Sergeant-at-Arms, tried at the bar of the House (that is, within the chamber itself), and, if found guilty, imprisoned with the U.S. Capitol jail. The contemnor could then be held in custody at the Capitol until the end of the pending session of Congress. While so incarcerated, however, the contemnor may obtain judicial review regarding the legality of his detention by means of a writ of habeas corpus -- just like detainees at Guantanamo Bay, Cuba.
There are, of course, formidable complications (legal, practical, and political) in exercising Congress's inherent power of contempt. Although no court has ruled on the matter, the Olson OLC Opinion stated OLC's belief that the president's assertion of executive privilege presents a complete constitutional shield against Congress's exercise of its inherent contempt power as well as its statutory contempt power. Moreover, the question of how the Sergeant-at-Arms would arrest and take into custody the Attorney General of the United States -- particularly given limits on the geographic scope of the Sergeant-at-Arms' jurisdiction, and the potential obstacle presented by the Attorney General's security detail -- presents an intriguing, unseemly, and improbable dilemma. And if custody somehow were achieved, the House would have to interrupt its legislative proceedings to conduct a trial at the bar of the chamber. Thus, it is not surprising that neither the House nor the Senate has exercised their inherent contempt power since 1935.
A Third Option
Another option for the House, reportedly under consideration, is to file a civil action in federal court to obtain a declaratory judgment that the Committee is entitled by law to full compliance with its subpoenas. Two OLC opinions issued in the 1980s during the Reagan Administration, including the Olson OLC Opinion, acknowledged the viability of a civil action by Congress to enforce a congressional subpoena. In 2008, the House Judiciary Committee filed such an action for declaratory relief in connection with the Bush Administration's refusal to comply with congressional subpoenas regarding the Justice Department's firing of several U.S. Attorneys. If the House of Representatives pursues this option and obtains a favorable ruling from the district court, the Obama Administration will have little choice but to fully comply with the pending subpoena, just as the Nixon Administration ultimately was compelled by court rulings to produce records for which it had asserted executive privilege.