Patterico's Pontifications


Separation of Powers Expert Changes His Tune

Filed under: General — Patterico @ 11:55 am

At CNN, a fellow named Peter Shane discusses the potential ramifications of Eric Holder’s contempt citation. One point he makes is that prosecutors would not necessarily be compelled to prosecute Holder for contempt:

The House could ask the U.S. attorney for the District of Columbia to prosecute Holder for contempt, but the Justice Department long ago took the position — in a very careful opinion written by then Assistant Attorney General Theodore Olson — that the department is not required by law to prosecute executive officials for contempt when the ground for subpoena noncompliance is a claim of executive privilege.

This is interesting, because when Harriet Miers was in contempt of Congress, there was a “separation of powers expert” who said the complete opposite. This fellow opined that the DoJ would be required to take the contempt case to the grand jury — executive privilege or no:

Some legal experts questioned interpreting the law [providing for contempt of Congress prosecutions] to mean that persons who cite executive privilege for failing to cooperate are exempt from prosecution.

The contempt statute refers such matters to “the appropriate U.S. attorney, whose duty it shall be to bring the matter before the grand jury for its action.”

It is “unambiguous,” said Peter Shane, an Ohio State law professor who is an expert in executive privilege.

That name sound familiar??

I even had an entire debate with Shane about his remarkable claim that prosecutors could be forced to bring cases they didn’t believe in.

Apparently I have finally convinced Shane that contempt prosecutions need not be prosecuted if the DoJ doesn’t believe in them.

All it took was for the political tables to be turned.

25 Responses to “Separation of Powers Expert Changes His Tune”

  1. If there is an explanation for this sudden change of heart other than political hackery, please let me know.

    Patterico (906cfb)

  2. LMAO… What a transparent hypocrite, just like his President.

    Libertarian Advocate (c660ae)

  3. Gotta love those impartial media-appointed experts. What would we do without them.

    Amphipolis (d3e04f)

  4. I’m sure that’s a principled stand, sarc

    narciso (8bfa44)

  5. He is just doing his job to help get BO re-elected. Nothing more.

    Ipso Fatso (7434b9)

  6. this is completely unexpected and unprecedented…

    /white smoke 8)

    redc1c4 (403dff)

  7. Does not the two houses of Congress have the privilege of directly petitioning – jointly, or separately – the DC Circuit for the appointment of a Special Prosecutor that would short-circuit any involvement of the DoJ?

    AD-RtR/OS! (b8ab92)

  8. Too much grammar forgotten….
    Do not the two Houses of Congress……

    AD-RtR/OS! (b8ab92)

  9. I think you might have put this a little bit wrong.

    Political hackery doesn’t explain his change of heart, It explains why he took his position in the first place.

    His position wasn’t actually that DOJ should do it. His position was that the decision to prosecute a person for contempt of Congress was up to a U.S. Attorney and should not be interfered with by the Attorney General. And I guess also, that a U.S. Attorney doesn’t decide on his own that laws are unconstitutional. And furthermore it was his duty to bring such charges, meaning he could face ethics charges in his local bar association if he didn’t.

    Should the AG order the US Attorney not to go to the grand jury, then the AG and the U.S. Attorney would be violating the obligation of the executive “to take care that the laws be faithfully executed.”

    Now if the local U.S. Attorney personally felt the law was wrong, then, according to Peter Shane, he should appoint a special counsel. More generally, a court should decide matters of law. That’s what he said.

    He never confronted this hypothetical, a hypothetical that has come to pass in less than five years:

    Imagine that the parties are reversed, and a Republican Congress seeks to force a Democratic president to have his Department of Justice prosecute an executive official (for contempt or any other crime) when the DoJ thinks there’s no case there. Isn’t there a point when this violates separation of powers — even if a grand jury indicts?

    I suppose the answer to that hypothetical is that there are more Democrats than Republicans in state and local bar associations or that the Republicans would never do that.

    Sammy Finkelman (d22d64)

  10. It is nice to see the light of reason eventually prevail, until political expedience once again demands the good professor take a different position.

    daleyrocks (bf33e9)

  11. Does anyone want this government to take a pee in the same bathroom with self?

    If the contempt citation sells, Issa can file in Federal District court, no?

    gary gulrud (dd7d4e)

  12. I’m sure it’s the same entirely reasonable, non-partisan reason that Dean Chemerinsky had for flip-flop-flipping on the constitutionality of the judicial-confirmation filibuster.

    Mitch (341ca0)

  13. When the constitution was adopted, prosecuting crimes was not yet seen as the exclusive prerogative of the executive branch. If the executive didn’t want to prosecute an alleged criminal, the victim could do so.

    In the British system that the framers inherited, charges of contempt of Parliament are not even prosecuted in court but in Parliament itself; the accused is brought before the bar of the House, and if convicted Parliament can sentence him. The framers probably intended the same thing to happen in the USA, and would not see that as a Bill of Attainder.

    But given that the way the system evolved we would now see the judiciary as the proper place to prosecute contempt of Congress, they would still have said that Congress itself should prosecute, rather than rely on the DoJ to do so.

    Milhouse (312124)

  14. You are oversimplifying and deceptively editing. If you look at the actual statute you will see that there is a clause that states that Democrats are absolved of this requirement as nobody expects Democrats to be held accountable for their crimes as they obviously meant to do the right thing. Needless to say this does not hold for Republicans as they are evil and only do the right thing by accident.

    Michael (fba835)

  15. What people need to understand is that Peter Shane did not change his position about Executive Privilege, because he never gave a whit about it in the first place. Back when Bush was president, he was simply advancing the “agenda”, just as he is doing now, so no hypocrisy involved. Just remember this irrefutable fact: ALL leftists, liberals, progressives, feminists, environmentalists, socialists, union bosses, the MSM, academia, greens, social justice types, UN lovers, PC supporters, multiculturalists, antiwar activists, PETA members, OWS supporters, one-worlders, Hollywood, anyone who believes in Global Warming, and Democrats care about one, and only one thing—the advancement of worldwide Marxism/Socialism. And thus, all their life’s work is devoted to that goal, and nothing else.

    FrancisChalk (8bed0e)

  16. Re #16, I can’t believe that. I can’t believe “ALL” of any group are part of a giant conspiracy/movement to change everything fundamentally (in either a dextrose or levose direction).

    I think there is a significant minority that want that…and their motivation tends to couple with ambition so they’re the ones we see pushing the ball. But they’re backed by a vast number of “useful idiots” who are just well-meaning but benighted, thinking we should somehow have a safety net that catches everybody, or can live on the planet without harming a single living thing, or that there’s an endless source of Other People’s Money (TM) to funnel into whatever purpose, if they just cared hard enough.

    It’s kind of like a lottery. It only works because there’s a whole crap-ton of people who are really, really bad at math.

    rtrski (90622f)

  17. The reason I changed my mind is simple — a couple of years ago, I came across the Olson opinion and found it legally persuasive. I would still disagree, I believe, with Mr. Olson on one point. Although his opinion does not primarily rest on the point, he seems to think Congress would be acting unconstitutionally if it passed a statute that DID mandate a prosecution under these circumstances. I believe Congress does have such a power. But, in interpreting the statute, he was more careful than I — ironically, I took a Scalia-ish plain meaning approach, and Mr. Olson looked at the background of the statute more carefully. I was wrong. He was right.

    Why must every change of mind be treated as some kind of “flip-flop?” Shouldn’t adults, confronted with better arguments, be willing to change their minds?

    Peter Shane (c69dde)

  18. Defending ‘recess appointments’ that happen in open session, that seems to strike a certain sense of academic pragmatism, that some might consider

    narciso (8bfa44)

  19. Ace has teh scoop on this Peter Shane fellow…

    Colonel Haiku (425909)

  20. I wonder why they didnt disclose that Mr Shane previously experted for the other side of the same argument.

    I have no wonder why they didn’t disclose his being a flaming leftist moveon Dem donor over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over again.

    JD (318f81)

  21. Prof. Shane’s characterization of the DOJ’s interaction with Congress on Fast and Furious makes it seem like either he has not been paying attention or is being deliberately misleading. The DOJ has been anything but cooperative and the 7,600 pages produced is a drop in the bucket of what has been requested and often duplicative of documents already in the hands of Congress.

    The DOJ has made critical witnesses unavailable to Congress, embarked on a campaign of intimidation against witnesses and whistle blowers and suffered a bout of mass amnesia concerning the operation. Holder is unable or unwilling to say who authorized this fundamentally flawed operation which armed violent Mexican drug cartels with no attempts to track the weapons or warn the Mexican government that such an operation was underway. The statements that nobody at DOJ in Washington knew the operational details of F&F are contradicted by numerous documents provided by whistle blowers, indicating DOJ witnesses repeatedly lied in Congressional testimony.

    daleyrocks (bf33e9)

  22. They can’t imagine another viewpoint, the fact that Obama flouted the campaign laws and McCain abided by them;

    narciso (8bfa44)

  23. It’s not like there is an established precedent for piercing deliberative privilege for official malfeasance that an expert would be aware of or anything, right?

    daleyrocks (bf33e9)

  24. Will the rule of law be the latest casualty from the Gunwalkergate scandal?

    Ere (97bbb8)

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