A True Assault on Prosecutorial Independence
Glenn Greenwald has argued that the showdown between Congress and President Bush over executive privilege is an example of one branch of government asserting extraordinary and unprecedented powers that properly belong to another branch. He says that the overreaching branch is mounting an “assault on prosecutorial independence.”
He’s right about that. But he’s wrong about which branch is out of control. It’s not the executive branch. It’s Congress.
We are witnessing an attempt by Congress to take over a core function of the executive branch: the duty to execute the laws, which includes the discretion over when to prosecute violations of criminal law. Despite what Big Media would have you believe, this controversy isn’t about President Bush exerting undue influence over United States Attorneys. It’s about Congress trying to usurp the executive’s constitutional powers, by trying to force the Department of Justice to bring a prosecution that DoJ believes should not be brought. And it’s about congressional attempts to destroy any notion of executive privilege, by summoning executive officials before various congressional committees to interrogate them about high-level executive deliberations.
President Bush’s arguments on these issues are consistent with similar assertions of privilege made by at least six presidential administrations — both Republican and Democrat — since the 1950s. His position is supported by case law, logic, and the structure of the Constitution.
The controversy has two aspects: whether executive privilege prevents Congress from questioning Harriet Miers about high-level executive deliberations, and whether Congress may mandate that the executive branch prosecute her for her failure to appear.
First, let’s get a quick refresher on executive privilege — and who better to give it than our old friend Pat Leahy, in a lecture delivered during the Clinton years, back when Leahy actually believed in executive privilege:
Executive privilege is used by the President and the executive branch to shield presidential communications, advice, and national security information from disclosure in judicial proceedings, congressional investigations and other arenas. While the proper scope of executive privilege is the subject of much debate, at a minimum, it covers presidential communications, and may also protect the decision-making, or deliberative process, of the executive branch in general.
Courts have recognized a “presumptive privilege” for presidential communications that is grounded in “a President’s generalized interest in confidentiality” and is viewed as important to preserving the candor of presidential advisors and protecting the freedom of the president and his advisors to “explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” U. S. v. Nixon, 418 U.S. 683, 708, 711 (1974); In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997). This privilege is “inextricably rooted in the separation of powers under the Constitution” and “flow[s] from the nature of enumerated powers” of the President. Id., 418 U.S. at 705; 121 F.3d at 743.
According to a recent D.C. Circuit case, “[t]he President can invoke the privilege when asked to produce documents or other materials that reflect Presidential decision making and deliberations and that the President believes should remain confidential.” Id., 121 F.3d at 744. As to the scope of this privilege, the court found, in the context of the criminal proceeding, it to cover “communications made by presidential advisers in the course of preparing advice for the President, . . . even when these communications are not made directly to the President.” Id. at 751-52.
I recognize that the presidential communications privilege is not absolute. For instance, in the context of a criminal case (one of the Watergate cases), the Supreme Court found that an assertion of executive privilege “based only on the generalized interest in confidentiality . . . must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 418 U.S. at 713. In the context of a congressional investigation, the privilege would be more difficult to overcome and require a showing that the information sought to be obtained is “demonstrably critical to the responsible fulfillment of the Committee’s functions.” Senate Select Committee v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974). This would be a difficult task in this matter given the peculiarly executive nature of the clemency process.
Similarly, dismissal of U.S. Attorneys is a core executive function.
The U.S. Attorney controversy is not Watergate. Congress is not conducting a criminal investigation. The absence of an ongoing criminal investigation is a critical fact which, as my friend William Dyer has cogently argued in this post and this comment, makes the current situation
much less like the Nixon Watergate tapes case, United States v. Nixon, 483 U.S. 683 (1974), in which the assertion of executive privilege was held to be outweighed and the qualified privilege overcome, than it is like the Cheney/national energy policy policy group case, Cheney v. United States District Court, 542 U.S. 367 (2004), in which an executive privilege claim was sustained.
Absent a criminal investigation, Congress simply can’t summon high-level officials to Capitol Hill and give them the third degree about their conversations with the President on matters squarely within his executive power, such as whether to retain or dismiss a U.S. Attorney. If Congress could do that, executive privilege would disappear.
And I know that would upset Pat Leahy very much — because he takes it very seriously.
But if there is anything worse than Congress trying to abolish executive privilege, it’s Congress trying to usurp the President’s core function of determining when to prosecute a criminal case. I had an e-mail exchange about this recently with Prof. Peter Shane of Ohio State University’s Moritz College of Law. Prof. Shane is a very genial and bright man who completely disagrees with me on these issues. I contacted him because he was quoted in an L.A. Times article as an expert on this issue.
The views of the L.A. Times‘s favored expert strike me as sweeping and quite radical. You can be sure that I will not distort his views and get away with it, for two reasons: 1) I have set forth our entire correspondence in a separate post, so that you can see our exchange for yourself, and 2) he has been popping up in the comments here, and I expect him to be monitoring this comment thread as well.
Prof. Shane believes a special counsel should be appointed to present Harriet Miers’s contempt citation to a grand jury, based on a statute that purports to require the U.S. Attorney for D.C. to present to a grand jury all citations for contempt of Congress. But what I find even more startling is his view that it might very well be proper for Congress to mandate a prosecution of an individual by the Department of Justice for contempt of Congress — even if DoJ believes that such a prosecution is not warranted because it believes the individual has properly invoked executive privilege.
I wrote Professor Shane to get his reaction to Eugene Volokh‘s views on the matter of forcing DoJ to prosecute an individual for contempt of Congress, when DoJ believes the person has properly invoked executive privilege. Volokh approvingly cited a Reagan-era memo on the matter, and concluded:
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.
Did Prof. Shane agree? I wanted to know, so I sent him a link to Prof. Volokh’s post and asked him if he agreed. Anyone who reads through the entirety of our correspondence will see that I pressed hard time and time again for an answer to the core questions: 1) when the Justice Department takes the view that a witness is properly claiming executive privilege, should the DoJ prosecute the witness for contempt of Congress? and 2) may Congress constitutionally force DoJ to prosecute under these circumstances?
Prof. Shane firmly opined that Congress may constitutionally require DoJ (or a special counsel) to present a contempt citation to a grand jury. In arguing this position, he advanced a startling claim that I had not heard before, namely, that criminal law enforcement is not an inherently executive function:
The statute does deprive the executive branch of some discretion it ordinarily enjoys — namely, whether to go to a grand jury. However, as in Morrison v. Olson, this strikes me as a limited incursion into ordinary executive discretion, limited to a context in which the executive’s conflict of interest is painfully obvious. This does not deprive the President of any policy making discretion that was deemed in the eighteenth century to be inherently executive, because there was no eighteenth century consensus that criminal law enforcement was an inherently executive function, much less that the “chief executive” was entitled to control all policy making with regard to criminal law enforcement.
(All emphasis is mine.) Prof. Shane reinforced this view in a later e-mail:
I do not believe the framers of the Constitution regarded policy discretion involved in pursuing criminal prosecution to be inherently executive in nature.
Now, Prof. Shane is regarded as a separation of powers expert and I am not, so I will avoid making any unequivocal pronouncements here. But I admit to being shocked by this statement. If he monitors this thread, I’d love to get him to elaborate on the evidence supporting this view of his. Because it seems quite at odds with everything I thought I knew about the executive function.
After all, Art. II, section 3 of the Constitution states that it is the President’s duty to “take Care that the Laws be faithfully executed.” In U.S. v. Nixon, Chief Justice Burger conceded that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . .” The Reagan-era memo cited by Volokh quotes the case of Springer v. Phillipine Islands, 277 U.S. 189 (1928) in which the Supreme Court said:
Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.
That memo also quotes James Madison to the effect that “appointing, overseeing, and controlling those who execute the laws” is a core executive function.
And Eugene Volokh’s post on the matter says that it is a “quintessentially executive decision whether a federal prosecutor would prosecute someone in federal court.”
I agree. I find it impossible to imagine a legislative body ordering me to prosecute someone. I would think that would be completely improper.
So Prof. Shane and I are coming from quite different places on the issue of whether prosecutorial discretion is an aspect of core executive power. But I’m always open to being educated.
Getting to the specifics, I pressed Prof. Shane on the question of whether Congress could make DoJ go forward with a prosecution. As he stated in the L.A. Times, he told me that he believes that the law has no exceptions; a U.S. Attorney or special counsel must refer Congress’s contempt citation to a grand jury.
As I explained yesterday, the view espoused by Prof. Shane — that the command of the statute is absolute and leaves no room for prosecutorial discretion, especially in the face of a colorable assertion of executive privilege — flies in the face of the interpretation given by six different administrations since the 1950s, including the JFK and Clinton administrations. The Reagan-era memo also cites numerous cases that assume (without squarely deciding) that DoJ would have the discretion to refuse to present a contempt citation to a grand jury.
Prof. Shane places great weight on the seemingly unambiguous language of the statute. But the Reagan-era memo notes that similarly unambiguous language — regarding the duty of the President of the Senate or Speaker of the House to refer a contempt citation — has been squarely held by a court not to impose a mandatory duty, as the language suggests. Also, the memo notes that cases have held other facially mandatory laws purporting to require prosecution in all situations are subject to prosecutorial discretion.
Concerned about the possible trampling of prosecutorial discretion, I pressed Prof. Shane on the issue of whether Congress could mandate prosecution. He cautioned that the statute requires only that it be presented to the grand jury:
The statute in question does not require prosecution, I believe, but presentation to a grand jury. To that extent, what Congress is demanding is not that a particular individual be tried, but that the question of indictment be put before a neutral adjudicator (the grand jury), which will decide whether the prosecution goes forward.
Wait a second. The trouble with this view is that a grand jury cannot require a prosecution to go forward. It can determine whether there is probable cause — but after an indictment issues, prosecutors still retain discretion to dismiss a case.
As the Fifth Circuit stated, in a case cited in the Reagan-era memo on executive privilege:
The role of the grand jury is restricted to a finding as to whether there is probable cause to believe that an offense has been committed. The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause. [Such as the application of executive privilege. — Ed.] Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case.
United States v. Cox, 342 F.2d 167 (5th Cir.) (en banc), cert. denied, 381 U.S. 935 (1965).
I kept pressing Prof. Shane for an answer: can Congress constitutionally mandate that the executive branch prosecute someone? We’re not talking here about merely presenting the case to a grand jury. Can Congress actually tell DoJ to prosecute someone — such as, for example, Harriet Miers — for contempt of Congress?
I felt that it was hard to get Prof. Shane to commit to an answer, but I read his ultimate answer as a cautious “yes.” He gave this caveat:
I do think there would be potential due process problems if Congress were to assert power to demand that a particular individual be brought to trial.
(I would characterize it as separation of powers problems, but forget the semantics.) But despite these potential problems, he said:
Whether a U.S. Attorney who successfully applies to a grand jury for an indictment, and thereafter fails to present the indictment, has violated the statute is clearly an open question. I think the answer is, yes — what else would be the point of the presentment? — but the obvious contrary answer is that the statute does not so explicitly.
That answer is carefully hedged, but cut through the qualifications, and here is your bottom line:
Prof. Shane thinks that Congress may (and has) by statute constitutionally mandated that a prosecutor pursue a prosecution.
This is the view that I find radical and sweeping.
As Eugene Volokh says in his post, stripping prosecutors of prosecutorial discretion “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.”
Now, from our e-mail exchange, I can tell that Prof. Shane would rely heavily on the Morrison v. Olson case, which was decided after the Reagan-era memo was written. But I don’t read that case as supporting a Congressional mandate that DoJ (or a special counsel) prosecute a case — especially one that DoJ has concluded should not be prosecuted. Whatever you think of the case, Morrison v. Olson did not demolish the concept that prosecuting violations of criminal law is a core function of the executive branch. Indeed, Chief Justice Rehnquist’s opinion repeatedly notes the (albeit imperfect) controls that the executive had over the special prosecutor.
I once again find solace in the agreement of Eugene Volokh, who says:
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.
I recognize that many will find my view frustrating. We don’t have a king! the cry goes. If a President or his subordinates get to decide who is prosecuted, then there is no check on their lawlessness! they will say.
I disagree. For one thing, the executive’s exclusive discretion over criminal prosecution is no more startling or unchecked than the pardon power. If the President can pardon anybody he likes, why would we howl at the fact that only the President’s branch of government may initiate a prosecution?
Second, there is a constitutional solution if such powers are abused. Congress retains the impeachment power. And as in Watergate, a criminal investigation may be pursued if there is sufficient cause. DoJ can still appoint a special counsel — and if it completely refuses, Congress can initiate an impeachment. If it has the evidence and the votes, it could succeed.
So enough with the talk about a king, Greenwaldians. Kings could not be impeached. Presidents can be. Which is not to suggest that this President should be, of course. I seek only to rebut the Greenwaldian hysterics who suggest that there is no check on executive power if Congress can’t drag officials before it for interrogation on high-level deliberations concerning core executive matters — and mandate prosecution of all who fail to comply.
That, and not Bush’s invocation of executive privilege, is the true overreaching — and the true assault on prosecutorial independence.
OK, I’ve said my piece. Now I want Bill Dyer (aka Beldar) and Prof. Shane to have at it in the comments.
I don’t get why you are arguing with Greenwald and calling attention to his blathering. The guy is a moron. Really. A moron. And devoting all of this attention has probably delivered his words to more eyeballs via your blog than he gets on his own if he were simply ignored.
Anyone who has the slightest clue about how our government works (probably 0.05% of the population, I will grant you that) knows that Congress can’t simply create its own authority out of thin air and that the executive branch DOES have certain powers granted by the constitution. Greenwald doesn’t realize that but the people who matter DO know that. Yes, the sad truth is that Greenwald doesn’t matter. How tragic.crosspatch (8a67b7) — 7/25/2007 @ 1:56 am
Interesting Reagan-era memo:
“Our conclusions are predicated upon the proposition, endorsed by a unanimous Supreme Court less than a decade ago, that the President has the authority, rooted inextricably in the separation of powers under the Constitution, to preserve the confidentiality of certain Executive Branch documents.”
Mr. Olson seems to have discovered a right to privacy hidden in the Constitution.alphie (015011) — 7/25/2007 @ 2:25 am
crosspatch, I appreciate that you are trying to help out Patterico … but really, no one owns Greenwald like Patterico owns him.Robin Roberts (6c18fd) — 7/25/2007 @ 2:27 am
its really no surprise that this congress has indulged in this orgy of investigations and hearings by members of far left ideology after spending 14 years in the minority. heres hoping they spend the rest of their term doing the same as its giving the republicans some really good opportunities heading into the ’08 prez race. reid and pelosi simply dont seem to realize they are squandering the dems political capital on worthless issues, i note the approval rating of this congress is now at 14%… GO HARRY n NANCY!!!james conrad (7cd809) — 7/25/2007 @ 3:08 am
In response to Patterico’s well-written post, I shall try to state my position as straightforwardly as possible. First, however, I must begin by stating the view of the statute I am trying to defend. When it comes to criminal prosecutions for contempt of Congress, Congress is mandating that the prosecution go forward to the extent it is supported by facts and law. Whether a contempt prosecution against a member of the executive branch can go forward consistent with the law of executive privilege is a question Congress would have resolved by a trial court, not by the prosecutor.
When Congress enacts a law that requires implementation by others, that implementation always entails two aspects. One is the mechanics of implementation. The other is policy discretion about how the mechanics ought best be implemented. What Patterico objects to is that my view of the statute would deprive the executive of policy discretion not to go through with the prosecution unless the prosecution cannot be justified by the facts or if a *court* would regard the prosecution as barred as a matter of law. Since the Constitution explicitly authorizes Congress to make all laws necessary and proper for carrying into execution the powers of ANY officer or department of the government, there are only two reasons why such a limit on prosecutorial discretion could be a problem. One is that such discretion, constitutionally speaking, must be regarded as inherently within the powers of the executive, and thus not subject to legislative limitation. The second is that, as a matter of due process, this comes too close to Congress actually enforcing the law itself.
The founding generation was well acquainted with criminal prosecution, and did not regard the function as “inherently executive.” The following history is taken from a law review article I wrote in 1989, which may be found (complete with footnotes) at 57 Geo. Wash. L. Rev. 596.
The Judiciary Act of 1789 originally provided for the judicial appointment of district attorneys, which would strongly belie the argument from original understanding that criminal prosecution was inherently executive. Yes, the provision was changed by Congress, which authorized the President instead to appoint United States attorneys. Such a change would support the originalist case against independent counsels, except that there is no evidence that the change was perceived as a matter of constitutional compulsion, rather than of policy choice. Indeed, the early functioning of United States attorneys fails to substantiate any expectation that the President would provide some unifying supervision. As summarized by another scholar: “Prosecution was decentralized during the federalist period, and it was conducted by district attorneys who were private practitioners employed by the United States on a fee-for-services basis.”
If federal evidence alone is deemed inconclusive, however, other evidence regarding the founding generation’s likely perceptions regarding criminal prosecution and its constitutional status is both consistent and telling. States had prosecutors, and state practice in the late eighteenth century most strongly suggests that there was no late eighteenth century expectation that criminal prosecution was an inherently executive function, to be conducted solely by gubernatorial appointees and under exclusive executive supervision. Indeed, there appear at least five states in which clear evidence belies any such understanding.
In 1787, Virginia was operating under its Constitution of 1776, under which ‘the executive powers of government’ were vested in a governor. That Constitution provided, however, that the Attorney General would be appointed by the ‘two Houses of Assembly . . . by joint ballot.’ The North Carolina Constitution of 1776 and the South Carolina Constitution of 1778, also operational in 1787, likewise provided for their respective legislatures to appoint each state’s Attorney General, although each Constitution vested the ‘executive power’ in the governor. Moreover, a North Carolina statute of 1777 empowered county courts to appoint additional prosecuting attorneys.
In 1784, Connecticut provided by statute for the appointment of state’s attorneys by the county courts. This practice persisted until at least 1854, notwithstanding the adoption of a new Constitution in 1818 to replace the Charter of 1662 as the state’s fundamental law. The Constitution of 1818 not only vested the executive power in the governor, but required the governor to take care that the laws be faithfully executed–in a charge identical to the President’s. Moreover, there is no provision in the article on the judiciary independently authorizing the judicial appointment of prosecutors. Thus, Connecticut’s practice o judicial appointments for criminal prosecutors persisted in the face of a separation of powers system worded identically in relevant respects to the federal Constitution.
Finally, under the Delaware Constitution of 1776, the Attorney General was appointed by the Governor together with a privy council consisting of four members of the legislature. Moreover, courts had statutory authority to appoint prosecutors in any case in which the Attorney General or a designated deputy failed to appear.
If criminal prosecution were conventionally thought to fall inherently under executive authority, the links just recounted between prosecuting authorities and state courts or legislatures would be anomalous. The one other piece of contemporary evidence as to common understanding, however, bolsters the conclusion that prosecution need not be an executive function, and that the state practices just recounted were consistent with conventional understanding. In England, criminal prosecution was still largely a private function. There was a degree, now enlarged, to which the English Attorney-General could supervise criminal prosecutions. In making prosecutorial decisions, however, the Attorney-General was regarded as an independent officer, personally accountable to Parliament, whose judgments were not controlled by the Crown or by the Prime Minister.
From the foregoing, I think it clear that any limit on prosecutorial discretion cannot be regarded as a limit on something the founders intended to be treated as inherently, and inviolably, executive. The provision of the Constitution that requires the President to take care that the laws be faithfully executed is actually a ban on the executive suspension of statutes, handed down from the English Bill of Rights. It actually would support, in this context, a limit on the executive’s prerogative not to prosecute on the basis of self-claimed privileges.
So that leaves the due process question: Has Congress so constrained prosecutorial discretion that it has stepped beyond the legislative power to become a prosecutor itself? In this extraordinary context, I think not. Indeed, the scheme I have outlined is much more protective of individual liberty than the practice of the Senate imprisoning contemnors on its own unilateral authority, which is also historically sanctioned. No one will be found guilty unless there is probable cause to proceed, as found by one neutral arbiter, the grand jury, and no law excuses the contempt, as found by another neutral arbiter, the court.
Thanks, Patrick, for so much air time to make this analysis clear.Peter M. Shane (da96d0) — 7/25/2007 @ 3:44 am
although not a lawyer, it seems to me that patterico is correct here. if prof shane is correct, we do indeed have a new king ( congress). they not only get to legislate the law they also get to mandate who gets prosecuted, why stop there professor? why not let our new king (congress) declare them guilty or innocent as well? gee wiz, we could save a hell of alotta money with this system as we could do away with both the executive and judical branches of goverment, GREAT IDEA!!!james conrad (7cd809) — 7/25/2007 @ 3:46 am
James, When it comes to contempt of Congress, the Senate was historically regarded as authorized to imprison contemnors on its own. As I explained, my view of the statute is far less offensive to values of due process. The reason not to allow Congress to declare innocence or guilt is because it is unfair to have the same party make and prosecute the law (even if constitutional in a limited case). Mandating a prosecution where supported by facts and law as judged by independent third parties is obviously different from unilaterally determining guilt or innocence. The answer to your question, why not do away with the other branches, is fairness to the individual defendant.
PeterPeter M. Shane (da96d0) — 7/25/2007 @ 4:08 am
Prof Shanerwallis (f09a05) — 7/25/2007 @ 4:59 am
The reason not to allow Congress to declare innocence or guilt is because it is unfair to have the same party make and prosecute the law (even if constitutional in a limited case).
doesn’t this destroy your argument or are you saying that the congress can both make and prosecute the law even if it is unfair?
#8, At the risk of redundancy, I will say again: Congress is not prosecuting. It is leaving the mechanics of prosecution to another branch. It is leaving the judgments of facts and law to the grand jury and the court.
(I guess the Senate right of unilateral imprisonment is an exception to ordinary requirements of fairness — probably why the current contempt statute was enacted.)Peter M. Shane (da96d0) — 7/25/2007 @ 5:11 am
“But he’s wrong about which branch is out of control. It’s not the executive branch. It’s Congress.”AF (4a3fa6) — 7/25/2007 @ 5:41 am
You argue abstractions without context. I guess you didn’t watch Gonzales’ absurd performance yesterday.
Yeah, AF, I guess I should have supported that statement. Maybe by writing a long post with citations to authority and arguments explaining why I made that statement.
Hey, wait . . .Patterico (2a65a5) — 7/25/2007 @ 5:46 am
Patterico, if prosecution is a core executive function, then that means you, as a prosecutor, are answerable to the Governor of California. Correct or incorrect?
Also, have there even been cases, to your knowledge, where an indictment has been issued but the prosecutor decided not to initiate a prosecution?
More importantly, you are making a mistake about executive privilege. EP is is a defense which would be pled by the defendant, just as self defense is pled by a person who is charged with homicide. The burden is on the person charged with contempt to prove he is entitled to EP. Otherwise the prosecutor would be obliged to prove the lack of EP in every contempt citation, and a prosecutor would be obliged to prove the lack of self defense in every homicide he prosecutes. Similarly, EP is a defense to subpoenas, but the burden is on the person subpoenaed to prove it, not on the body issuing the subpoena to prove it doesn’t apply.
Of course, whether the defendant could successfully prove EP or self defense is something the prosecutor should consider while deciding to bring the prosecution, and a prosecutor who in good faith believes that the defense is applicable would exercise his discretion not to prosecute because he believes the crime could not be proved.
Ultimately, Congress is not usurping an executive function here. Even if you are correct that prosecution is a core executive function, this is so. As a parliamentary body, Congress has the power to arrest and try anyone who breaches its privileges or refuses its subpoenas before itself. Contempt of the Senate is triable before the Senate. The statute is merely delegating that power to the US attorney.
If you think that power should not be delegated, then you had better approve of the idea of the VP or AG being arrested and tried for contempt of Congress–not impeached, but arrested and tried. For the sake of a fair trial, which would you rather have as their judges–a grand jury and a federal court, or the House of Representatives?kishnevi (7c4a73) — 7/25/2007 @ 6:07 am
While we’ve got you here, I have a few points/questions which are related, but which I’ll separately number for ease of response.
1) As I understand your historical examples, legislatures sometimes had a power of appointment of prosecutors, and in some contexts prosecutors had independent prosecutorial discretion not controlled by the executive (or legislature). But you provide no authority for congressional limitations on prosecutorial discretion, do you?
2) Isn’t there an intefererence with prosecutorial discretion for Congress to require DoJ to appoint a special counsel for the express purpose of carrying out an action that DoJ believes is not warranted?
3) What if the special counsel determined that the indictment should not be presented for reasons of executive privilege? Does he have discretion not to — or are you going with the literal terms of the statute?
4) I’m possibly repeating a question from our exchange, but I’m not sure I ever got a square answer to this: if a prosecutor (USA or special counsel) presents the case to the grand jury and gets an indictment, can he refuse to take the case to trial on the grounds that he believes executive privilege applies? Can he refuse to press the case in any way if he believes executive privilege applies? Or must he act as the puppet of Congress regardless of his personal beliefs, in order to get the privilege question before a court?
5) We never really discussed the underlying privilege question in our e-mails. If Harriet Miers is called before Congress and interrogated about deliberative advice she gave the President on the issue of retaining or dismissing U.S. Attorneys, and there is no criminal investigation in progress, is it your view that her advice to the president would be privileged?
6) If the answer to #5 is no, then is there literally no tether on Congress’s ability to haul executive officers before a committee to be questioned on advice to the president? Is there any such thing as executive privilege any more? if so, in what circumstances could an executive official refuse to answer Congress’s questions, in your view?
7) And if there is some limit — and if Congress exceeds that limit by demanding answers to questions that even you would consider covered by executive privilege — would your analysis be the same regarding a failure to answer? May Congress punish as contempt any invocation of executive privilege, no matter how appropriately asserted?
Thanks for showing up in this comment thread! I hope you stay a while. High-level discussions are the ideal in the blog world, but are not always attained. I think your presence here will help us approach the ideal.Patterico (2a65a5) — 7/25/2007 @ 6:16 am
I’m answerable to an elected D.A.
Cases are dismissed after indictments are returned (or preliminary hearings held, which is the same idea — a probable cause hearing) all the time. Prosecutors have discretion to do this.
And if a prosecutor agrees with a defendant’s assertion of executive privilege, that’s what they would do, in this scenario.Patterico (2a65a5) — 7/25/2007 @ 6:23 am
No, it doesn’t mean that. Even the Attorney General doesn’t answer to the governor in that state, as he is elected by popular vote. The AG of the United States, however, does answer to the President, and that’s the level of government we are talking about.Xrlq (44e5d0) — 7/25/2007 @ 6:24 am
The first part of the controversy is whether executive privilege prevents Congress from questioning Miers at all, not exclusively about high-level executive deliberations as you say. Sure questions about conversations with Bush and Rove would likely be the most interesting to Congress, but those aren’t the only possible questions. I still don’t see why she couldn’t take a position like Taylor and answer some questions, but not others.Crust (399898) — 7/25/2007 @ 6:45 am
Aren’t we also skirting Bill of Attainder territory? The Congress may not be declaring a conviction but being put in jeopardy by itself is considered bad enough to be prohibited elsewhere in the Constitution. Could the Congress certify that “NK is guilty of skulking with intent to loiter” and obligate a prosecutor to take the case to a Grand Jury?nk (1c6c66) — 7/25/2007 @ 6:48 am
“Hey, wait . . .”
No need to wait Pat.
As I said elsewhere, “you’re making an argument concerning necessary sensitivity to certain issues into one of necessary principle. Executive privilege does not meet that standard.”AF (4a3fa6) — 7/25/2007 @ 6:49 am
Your argument is a political one based on your views of the significance (or lack thereof) of the actions under review. Gonzales’ behavior yesterday goes to the issue of significance. Was his performance pathetic or not? Was it mocked by Republicans and Democrats alike? Yup.
If you want to ignore the facts feel free, but it weakens your argument. You said Congress is out of control. Given the context, that’s a crock. And there’s more and more “context” every day.
1. The Constitution authorizes Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [of Congress], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” On its face, this allows Congress to set the boundaries of prosecutorial discretion, unless to do so would transgress some other limitation that the Constitution imposes. My post explains why there is no such limit from the separation of powers, but only from due process, and why the due process limit does not apply here.
2. Yes, it’s a permissible limit on prosecutorial discretion for the reasons just stated.
3. I would go with the literal terms of the statute. Unless there is NO way of implementing a statute consistent with the Constitution, I think the obligation of faithful execution requires the executive to do whatever possible to achieve Congress’s purposes in a constitutional manner.
4. You are dressing up your question with a lot of hyperbolic metaphors! I think Congress can insist that the prosecutor leave the resolution of a privilege question to the court unless there is no plausible argument to be made in opposition to the privilege claim that can be made consistent with the prosecutor’s obligations to the court.
5. I think anything Miers said to GWB about any official matter is presumptively privileged. The question is whether the qualified privilege might be superseded in particular matters because of Congress’s constitutionally superior claim.
6. The presidential communication privilege is a qualified privilege. The fact that another branch may have a superior claim to the information in dispute in a particular case does not mean that the privilege does not exist. It just means that the privilege is not absolute.
7. I think Congress can insist that claims of privilege be decided in court unless it is prepared to impeach the President for claiming privilege or to use its inherent arrest powers, subject (I assume – I haven’t researched this) to habeas corpus. As Prof. Volokh indicates, another legal option might be civil contempt. And, of course, Congress can use its funding powers to try to leverage a more favorable deal.Peter Shane (da96d0) — 7/25/2007 @ 7:03 am
Believing Bush/Fredo are operating from principle here is like thinking Clinton was operating from principle when he didn’t want his Secret Service agents testifying about the layout of his office (and where he could get his bj in a little privacy).
The 25-percent remnant Bushbots are trying to claim that because the firing of the US Attorneys was lawful, it is therefore unreviewable. Even granting the premise, arguendo, this is rubbish. I don’t see why alleged political motivation of the Congressional investigation disqualifies it. The firing of the attorneys also had political motivation. Indeed, Karl Rove sent minions out to give GOP pep talks in every corner of the government. What makes a two-party system better than a one-party system is that each party can keep an eye on the overreach of the other.
What combination of impeachment and inherent contempt proceedings is needed to repair Bush’s perversion of the DoJ I’ll leave for others to argue.Andrew J. Lazarus (99d0de) — 7/25/2007 @ 7:06 am
Also, can I say “political question” here? The Constitution has one more safety valve for catfights between the President and the Congress — elections. A new President will be sworn in in about a year and half and will be able to appoint new prosecutors. Likewise, one-third of the Senate could turn over if the people wished. Since this is criminal contempt (statute of limitations aside) the contemnors can be prosecuted then if that’s what we the people want — if we elect a Senate and President willing to prosecute them.
Sometimes we forget that not every answer to every question is, or need be, in the existing body of law.nk (1c6c66) — 7/25/2007 @ 7:44 am
Of course it’s lawful. What law was broken?
The question here is the scope and extent of Executive Privilege and nothing else.
And if you’re referring to approval ratings in relation to an Executive v. Legislative seperation of powers struggle, you ought to mention Congress’ 14% approval. But of course, it’s completely irrelevant to the discussion, which really doesn’t need any mudslinging.Pablo (99243e) — 7/25/2007 @ 8:01 am
Patterico, the problem with your argument and that of Prof. Volokh is that it is premised on the assumption that the DOJ has, in good faith, determined that the various claims of executive privilege are valid.
However, that is not what the stories state. For instance, in the original Washington Post story the point is made that the White House is ordering the DOJ not to prosecute any contempt charges issued by Congress.
The reliance on a 20 year old opinion that expressly states that it only applies to the 1982 battle over the contempt charges filed against the head of the EPA (and incidently, the issue there was whether, after filing the information before a grand jury, the U.S. Attorney could hold the case in abeyance while another court ruled on the validity of the EP claim by the EPA) is simply not a credible argument that the Executive is “faithfully executing the laws”.
That is what this case is about. The White House ordering the DOJ not to prosecute (potential) crimes committed by White House officials regardless of whether the DOJ believes or disbelieves that those crimes can be proved in a court of law.Bob Smith (469c2b) — 7/25/2007 @ 8:06 am
Neither side wants a judge to settle the question about the limits of executive privilege, for fear of losing.
Grandstand, then settle.
Same song, different verse.steve (29e466) — 7/25/2007 @ 8:20 am
RE: #24…..BINGO, i think we got a winner here. i am just enjoying congress making fools of themselves with these political witch hunts. its well known that this administration feels congress has over reached its authority in the power vacuum created during the watergate era. most admins from carter thru clinton also felt this way, its just that GWB has decided to contest these issues where others did not.james conrad (7cd809) — 7/25/2007 @ 8:34 am
IANAL, so it’s a privilege (heh) to have a ringside seat to this debate. I am disturbed by the practical implications of Patterico’s position because of his comment on impeachment as a remedy near the end of this post.
In this instance, Congress can vote to hold Meirs in Contempt of Congress; her defense would be to assert that the President’s assertion of the principle of EP makes her non-contemptible.
These battling contentions have to play out in a court empowered to render a decision, and–if a guilty verdict is delivered–a punishment. Otherwise, the concept of “Contempt of Congress” is actually “C of C, but only when the President concurs.”
As head of the Executive branch, the President can compel his agent to decline prosecution. Thus, every case where C of C collides with Executive Privilege will, by definition, recreate the Meirs situation.
As Patterico says, the House may take the President’s obstructive actions so seriously that it votes to impeach. Leaving Congress with only that drastic response to preventing assertion of EP from trumping C of C is, itself, drastic. In practice, it means that a claim of EP turns Contempt of Congress into a toothless charge, in all but the most outrageous of cases.
With respect to co-equal branches of government, that seems like a bad outcome.
(As an aside, the Capitol Police strikes me as a curious institution–an ‘executive’ (law enforcement) agency that reports to the Legislature. Could that be an example of the sort of limited ‘executive’ power that Prof. Shane is arguing for?)AMac (c822c9) — 7/25/2007 @ 9:15 am
Peter Shane, as Patterico said in another thread, it’s really great to see you participating so thoughtfully. This is what the blogosphere should be about.Crust (399898) — 7/25/2007 @ 9:22 am
DRUDGE is reporting that the house judiciary committee has approved, on a straight party line vote a contempt resolution against bolten & miers. as a non lawyer, it seems to me that theres a big difference between a criminal inquiry and a political fishing expedition. i would love to see the roberts court slap down some of these watergate era statutes that congress has grown so fond of.james conrad (7cd809) — 7/25/2007 @ 9:33 am
Am I missing some special significance of “the law” regarding prosecutorial/executive discretion that is lacking from “the facts”? I ask because you say that the prosecution should go forward “to the extent” it is supported by “facts and law” but the court should determine to what “extent” the “law” supports prosecution. (In this case whether the law on executive privilege bars it altogether). Do you mean to imply the prosecutor/executive still retains the discretion to determine the “extent” that “facts” support prosecution? If so, why is a determination of law different? (You again distinguish them in a later paragraph:”What Patterico objects to is that my view of the statute would deprive the executive of policy discretion not to go through with the prosecution unless the prosecution cannot be justified by the facts or if a *court* would regard the prosecution as barred as a matter of law.”) Is there any support for that distinction? Does it mean that if the DoJ said “There are no facts supporting an action” that Congress has to just say “oh, well” but if the DoJ says “there is no law supporting an action” Congress can say “file it anyway”?Linus (cc24db) — 7/25/2007 @ 9:42 am
James conrad, the vote was 22-17. So that doesn’t sound like a party-line vote. Maybe some Republicans abstained from voting, making it party line among those who did vote?Crust (399898) — 7/25/2007 @ 9:43 am
” …there’s a big difference between a criminal inquiry and a political fishing expedition.”
Again, staed with no reference to recent action (on inaction) by Justice or the Executive. The fact that Abu G. may well have perjured himself yesterday would seem relevant.AF (4a3fa6) — 7/25/2007 @ 9:49 am
Re: 29. I hope this is responsive to your question. By a determination of the facts, I mean, is there probable cause to believe that a violation of Title 2, U.S.C. has occurred, given the elements of the offense as prescribed in the relevant statutes? This would be determined by the grand jury. By a determination of law, I mean, in this particular case, which is constitutionally weightier, the executive claim of privilege or the congressional claim of investigative access? This would be determined by the court.
Re: 27. Thanks much. I am astonished by how little vituperation has appeared in these threads. It may help that, while the political struggle providing the context for the current separation of powers fight is partisan, views about the scope of executive prerogative tend to cross party lines (and conservative-liberal labels).Peter M. Shane (da96d0) — 7/25/2007 @ 10:06 am
Isn’t the claim of executive privilege weakened somewhat if the president himself never talked to anyone at all about the fired U.S. attorneys?
Q Are you afraid that they’ll be able to go through and find inconsistencies in testimony if there’s a transcript?
MR. SNOW: No, they’ll be able to do it.
Q Okay. You keep saying the Justice Department, the response — that these emails, the 3,000 pages is unprecedented, is very responsive. Why, then, is there this gap from mid-November to about December 4th, right before the actual firings? Why is there a gap in the emails?
MR. SNOW: I don’t know. Why don’t you ask them?
Q Well, you’re the White House, the Justice Department serves under —
MR. SNOW: I know, but I’m not going to be the fact witness on Justice.
Q But you’re the one representing that this has been very responsive. Now when there’s a gap you say go to them.
MR. SNOW: Yes, and I’ve been led to believe that there’s a good response for it, but I’m going to let you ask them because they’re going to have the answer.
Q There is one email from November 15th from Mr. Sampson to Harriet Miers, I believe, “Who will determine whether this requires the President’s attention?”
MR. SNOW: Right.
Q And then there’s a gap in emails. Was there any — perhaps any emails about the President in there? And did the President have to sign off on this? Because the question was raised —
MR. SNOW: The President has no recollection of this ever being raised with him.
http://www.whitehouse.gov/news/releases/2007/03/20070321-4.htmlalphie (015011) — 7/25/2007 @ 10:39 am
Not in the way that you mean. Congress doesn’t conduct criminal inquiries (except insofar as you might consider the special case of impeachment). Everything that Congress does in the course of its duties is in some sense political. Whether it’s a legitimate use of Congressional power (for an example among many, to amend the law to return appointment power over US Attorneys to the judicial branch) or a fishing expedition is a value judgment that can’t really be incorporated into the limits of acceptable inquiry.
As for Pablo: the fact that the President could dismiss US Attorneys does not mean that it was done lawfully. For example, it might be an illegal act in furtherance of a conspiracy to obstruct justice. Or in furtherance of a conspiracy to compromise voting rights. Or it might have been done by persons not legally entitled to make such dismissals. And on top of all that, saying that the issue was “political” does not consitute a “Perjure yourself for free” card.
As for the approval rating for Congress, all polls I’ve read suggest the problem is too little pushback against the Bush Maladministration, not too little.
Yeah, and AF is right: it’s silly to look at this issue outside the context of a perjurious, incompetent Attorney General.Andrew J. Lazarus (7d46f9) — 7/25/2007 @ 11:04 am
We don’t know that Bush never got the advice. But even if he didn’t, I believe (I’m going from memory here) that the privilege still applies. See the Reagan-era memo, which I believe addresses this point.Patterico (e04b96) — 7/25/2007 @ 11:26 am
Patterico, I just said it weakened the case for executive privilege in this case.
The memo you cited said executive privilege has to be decided on a case by case basis.
I don’t think Bush was in the loop at all on these firings. Two days before the press conference I linked to above:
Q Thank you, Mr. President, President Calder n. On the dismissal of U.S. attorneys, there have been allegations that political motivations were involved. Is political loyalty to your administration an appropriate factor? And when you talked to Attorney General Alberto Gonzales last year, what did you say, and what did you direct him to do?
PRESIDENT BUSH: Thanks, Kelly. I’ve heard those allegations about political decision-making; it’s just not true. Secondly, just so you know, I get asked — I get complaints all the time from members of Congress on a variety of subjects — this senator, this congressperson so-and-so — there’s occasionally frustration with the executive branch. And they will pull me aside and say, are you aware of this, are you aware of that? And I did receive complaints about U.S. attorneys.
I specifically remember one time I went up to the Senate and senators were talking about the U.S. attorneys. I don’t remember specific names being mentioned, but I did say to Al last year — you’re right, last fall — I said, have you heard complaints about AGs, I have — I mean, U.S. attorneys, excuse me — and he said, I have. But I never brought up a specific case nor gave him specific instructions.
http://www.whitehouse.gov/news/releases/2007/03/20070314-2.htmlalphie (015011) — 7/25/2007 @ 11:33 am
Good to have you here taking on questions. I have one:
Can Congress require that the Prosecutor do a “good job” when taking the case before a grand jury?
If so, can Congress find the Prosecutor in contempt for failing to do a “good job” as the Congress sees it? And can Congress tell the Prosecutor what evidence and arguments he must and must not use in order to avoid such a judgement?
And if not, then what is the point of this whole exercise? Couldn’t the Prosecutor go before a grand jury and say: “Some idiots want you to indict this woman, but I think she’s innocent. I have no evidence to present to you.”?DWPittelli (2e1b8e) — 7/25/2007 @ 11:52 am
Contempt of Congress! At least 250 million Americans are guilt of that charge.Not a Yank (a47dbe) — 7/25/2007 @ 12:03 pm
Members of Congress, like all of us, have to rely on the good faith of the executive branch to do its assigned tasks. If DOJ were to take the special counsel route, it would be politically unwise to select someone who could not be counted on to do a conscientious job. Executive branch lawyers, especially career lawyers, tend — in my experience — to take their jobs very seriously. When you consider the vigor of the military lawyers working on behalf of Guantanamo detainees, I’m not really worried about whether DOJ would be able to find a lawyer in the executive branch ready, willing and able to stand up to the President.Peter M. Shane (da96d0) — 7/25/2007 @ 12:19 pm
“The reason not to allow Congress to declare innocence or guilt is because it is unfair to have the same party make and prosecute the law (even if constitutional in a limited case).”
Sooooooo…. if such is true, (on a bit broader case), then how is it that we allow an almost total monopoly of the legal industry to both create law and of course prosecute, defend and judge defendants under the same law the legal industry created?TC (b48fdd) — 7/25/2007 @ 12:59 pm
Here is a highlight reel of AG’s performance yesterrday.AF (4a3fa6) — 7/25/2007 @ 1:10 pm
It’s the context for the debate you’re having here. And it’s that context that renders the title and argument of this post… “A True Assault on Prosecutorial Independence” little more than absurd.
It was indeed a party-line vote in the committee. The numbers are correct, and match exactly the partisan composition of the committee.Tully (e4a26d) — 7/25/2007 @ 1:45 pm
Prof. Shane: “I’m not really worried about whether DOJ would be able to find a lawyer in the executive branch ready, willing and able to stand up to the President.”
But what if the Prosecutor in question (the one with jurisdiction, or the one first asked to look into the matter) decided the case was B.S.? As I understand it, a Prosecutor is not supposed to prosecute when he feels prosecution is unwarranted. On the other hand, we have had some problems whereby Independent Counsels on both sides appear to go on forever due to some sort of institutional momentum. It seems to me that putting prosecutorial discretion under the elected Executive (or other elected official, in some states at least) has worked better than other actual or proposed methods of deciding what and who should be prosecuted.DWPittelli (2e1b8e) — 7/25/2007 @ 2:02 pm
I’m also not sure how a person or institution acts in “good faith” when choosing someone to prosecute people whom said institution thinks are acting properly.DWPittelli (2e1b8e) — 7/25/2007 @ 2:16 pm
Even if your historical analysis is correct (and I will add to it that in Louisiana, the district attorneys are nominally placed by our constitution in the judicial branch of state government, along with the sheriffs and the coroners), isn’t there an argument to be made that Congress, having placed the U.S. Attorneys in the Executive Branch and made them answerable to the President, has made them officers of the United States, and thus subject to Presidential control (and removal) like any other clearly executive branch official?
Additionally, and I am working on a post on this topic now, I don’t think the language of 2 USC 194 clearly imposes a mandatory obligation on the U.S. Attorney. “Shall be his duty to present” is very similar in language to the general assignment of authority to U.S. Attorneys in criminal cases. I think the doctrine of constitutional avoidance would mandate construing the statute similarly to 28 U.S.C. § 547 – “each United States attorney, within his district, shall … [inter alia] prosecute for all offenses against the United States …”
Additionally, under your argument, Congress would have the constitutional authority to mandate all sorts of criminal prosecutions whenever a judge could conceivably find that probable cause existed or that the law could be read a particular way in order to find a crime. Imagine this statute:
“In all cases where a law enforcement officer has obtained a search warrant, the U.S. Attorney shall present the case to a grand jury, regardless of his own opinion of the facts or the law, and prosecute any resulting indictment.”
By definition, a search warrant comes from a finding of probable cause by a judge. Any claim of privilege or legal argument that no crime was really committed can be resolved by the trial judge. Your earlier argument also suggested that the prosecutor must proceed with the case if the grand jury returns a true bill. If Congress can do it in this case, there’s no limitation on its authority to do so in other cases.
As a practical matter, what if (as other commenters have suggested) a “special prosecutor” independently comes to the same conclusion? Is Congress entitled to hire its own lawyer, advocating its position rather than the product of his own thinking? I’m not sure that Congress has the constitutional authority to prosecute a criminal case in the name of the United States. It can’t be the “client”. So must it take pot luck and accept the legal conclusion of the lawyer appointed as special counsel (even leaving aside all the constitutional infirmities of special counsels), or must the lawyer disregard his own opinion and advocate for a legal position which he does not find compelling?PatHMV (7f2300) — 7/25/2007 @ 2:18 pm
I don’t think Jeffrey Taylor is the only U.S. Attorney Congress can bring a cotempt charge to, DW.
The law only say the “appropriate” U.S. Attorney.
Harriet Miers did a lot of traveling last fall…who knows where she sent her e-mails from?
Maybe Congress can do a bit of “venue shopping?”
Besides, as an interim U.S. Attorney appointed under the squirrely Patriotic Act amendments, I think Jeffrey Taylor is out on Oct. 12, less than a month after the House will begin to even consider the contempt charges as a whole.
I doubt he will have to make any decisions.alphie (015011) — 7/25/2007 @ 2:19 pm
OT, but pertinent, nonetheless Patterico;
Remember when I asked you (unanswered) if the DEA
would be emboldened by the “Bong Hits for Jesus”
case to ratchet up their raids on Medical Marijuana
You may be aware that a Hollywood facility was raided today. Med records of 300 patients was
confiscated along with computers and product.
How do you feel about State’s Rights?
Villaregosa has not responded to my email.
Called Schwarzeneger’s office in LA and was informed the governor doesn’t see the need to do anything because, although a STRONG supporter
of State’s Rights, he doesn’t believe this is an incursion into that Constitutional issue.
Do you?Semanticleo (4741c2) — 7/25/2007 @ 2:42 pm
3000, NOT 300 patients records.Semanticleo (4741c2) — 7/25/2007 @ 2:43 pm
Not pertinent at all, cleo. let’s not see this very good thread diverted into marijuana. No thread hijacking.Robin Roberts (6c18fd) — 7/25/2007 @ 2:52 pm
STFU, Robin. Allow the host his due,Semanticleo (4741c2) — 7/25/2007 @ 3:32 pm
Allow the host his due
by sticking to the topic at hand, Miss Cleo.Paul (8077b1) — 7/25/2007 @ 3:40 pm
“STFU”, cleo? Time for the soap in your mouth again?Robin Roberts (6c18fd) — 7/25/2007 @ 3:43 pm
“by sticking to the topic at hand, Miss Cleo.”
Miss Robin doesn’t need any help controllingSemanticleo (4741c2) — 7/25/2007 @ 3:45 pm
the dialogue, Pauline.
Miss Robin doesn’t need any help controlling
the dialogue, Pauline.
But you are showing disrespect to the host by bringing up something irrelevant to the thread, Little Miss Cleo.Paul (8077b1) — 7/25/2007 @ 4:00 pm
I’d prefer that you stay on topic, and that you be civil. Here we have Prof. Shane expressing amazement at the lack of ugliness in the thread, and then you telling another commenter to “STFU.”
Your point about the general assignment of authority was made in the Reagan-era meme, which really is excellent. That’s in part what I was alluding to when I said:
I think your points are very good, and I hope the professor addresses them.
Where is Beldar???Patterico (7a7081) — 7/25/2007 @ 4:06 pm
Actually, by the time the USA was founded kings could be “impeached”. That was the point established by the Glorious Revolution, and the reason such people as Tom Paine celebrated its anniversary every year. (The fact that the GR was actually nothing of the sort, that it was actually a foreign invasion and conquest, retroactively authorised by a Parliament convened by the victor after the king’s supporters were dead or banished, is a mere irrelevancy… The principle that it was thought to stand for in the 18th century was that Parliament was sovereign, and could hire and fire kings as it chose.)Milhouse (c4a90c) — 7/25/2007 @ 4:18 pm
I note one other little problem with the professor’s analysis. If his history is correct and prosecutor’s in the late 18th century were judicial officers, then wasn’t the Congress’ act in placing prosecutors within the Executive branch an unconstitutional usurpation of the power of the judicial branch?
Further as to the argument that Congress can make all laws necessary for the functioning of the Officers and Departments of the United States, I don’t think that the President is an Officer or Department, and Article II clearly says that executive power is vested in the President.edward (b42366) — 7/25/2007 @ 5:18 pm
So NOW can we talk about perjury?AF (4a3fa6) — 7/25/2007 @ 5:21 pm
I note one other little problem with the professor’s analysis. If his history is correct and prosecutor’s in the late 18th century were judicial officers, then wasn’t the Congress’ act in placing prosecutors within the Executive branch an unconstitutional usurpation of the power of the judicial branch?
I don’t think that follows. Or, at any rate, I don’t think it’s a more compelling argument than the argument that, in the 18th century, the lines between judicial and executive power were more blurry than they are today, and that it is unreasonable to project the modern definition into the past.
That is to say: my understanding of the argument is that in the 18th century it was unclear whether prosecution was a judicial or an executive function. (I take no opinion on the validity of that argument).aphrael (e0cdc9) — 7/25/2007 @ 5:21 pm
What’s the history of contempt of Congress charges? Is “contempt of Congress” a crime defined in the statute book, or is the notion somehow implicit in the common law? If the latter, how did it evolve and what did it evolve out of?
I suppose the argument could be made that the Congress has an inherent right to summon members of the Executive and question them, and that this is an undeniably Legislative function. In making that argument, though, you’d have to point at behavior by Parliament — and, depending on what era you drew your precedent from, it could be misleading: Parliament exercised judicial functions well into the eighteenth century. So is that interrogatory power a legislative one or a judicial one?
Assuming it’s a legislative power, what else comes bundled with that power? Does Congress have the power to subpoena, and to of its own authority compel attendance, through the Capitol Police, without using the Executive? Could it use the Capitol Police to detain people for questioning?aphrael (e0cdc9) — 7/25/2007 @ 5:27 pm
Further as to the argument that Congress can make all laws necessary for the functioning of the Officers and Departments of the United States, I don’t think that the President is an Officer or Department, and Article II clearly says that executive power is vested in the President.
I find that slightly peculiar. Article I grants to Congress the power 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.”
So, regardless of whether or not the President is an officer of the US government (and, note, I find it an odd assertion that he isn’t), he is part of the government, and thereby Congress can make all laws which shall be necessary and proper for carrying out any powers vested in him.aphrael (e0cdc9) — 7/25/2007 @ 5:32 pm
I discuss briefly the history and source of Congressional subpoena power here.
The scary thing is that the answer to your question is yes. Not the Capitol Police, necessarily, but the Sergeant at Arms and his deputies. As the professor alluded to, some of the precedents on Congressional subpoena power present truly horrifying due process concerns.PatHMV (0e077d) — 7/25/2007 @ 5:34 pm
Aphrael, thank you for your comments to my post. You help me to clarify.
My real point on the history issue is that, as you say, there seems to have been some ambiguity as to whether prosecution was a judicial or executive function, but since when is the legislature entitled to stick its nose in? We cannot refer to the British Parliament because it is essentially a continuously sitting constitutional convention. I submit that the framers would have been very nervous about involving the legisative branch in prosecutions. The constitutional provision against Bills of Attainder is evidence.
As to the President not being an “Officer” is concerned, Congress can create “Officers”. That is set forth in Article I, and presumably Congress has much to say about their powers and duties. However, the President is a creation of Article II and not so limited. Executive power is vested in the President. (Yeah, I know, whatever that means.) The interesting question is whether the President is ever under any compulsion to actually use any of his Officers. (Note that some presidents have conducted foreign policy through their Secretary of State, some through other channels.) It’s been over 25 years since I went to law school, but I remember discussing some of these issues in Con Law then, and, at that time, there were no definitive answers.edward (b42366) — 7/25/2007 @ 6:13 pm
The statute prof shane relies on is irrelevant. You cannot use a statute to interpret the contours of Constitutional separation of powers, because if the law goes beyond what the legislature is permitted under the Constitution, then the statute itself is unconstitutional. Prof shane is engaged what is known in the law as “bootstrapping.” Try as one might the physical laws of gravity make it impossible to lift oneself by the bootstraps.
Without the statute he has no argument.Peter (88484b) — 7/25/2007 @ 6:13 pm
Due process? Putting someone in jail for refusing to cooperate in an investigation…AF (4a3fa6) — 7/25/2007 @ 6:16 pm
where have I heard that one before?
let me think…
The answers to your questions are in the links in the post. Specifically, Volokh’s post and a link to the statute (quoted here in the comments by Prof. Shane).Patterico (2a65a5) — 7/25/2007 @ 6:41 pm
This infringes on the executive in nearly an identical manner that a bill of attainder would infringe on the judiciary.greg (3586e0) — 7/25/2007 @ 8:14 pm
The point of which, I see now, has already been alluded to.greg (3586e0) — 7/25/2007 @ 8:15 pm
That seems like a stretch, greg.
All federal courts besides the Supreme Court “serve” at the pleasure of Congress.
Congress has as much right to abolish them as the president has to fire U.S. attorneys.alphie (015011) — 7/25/2007 @ 8:59 pm
IMHO, investing Congress with Executive powers is setting the stage for Civil War. The Glorious Revolution was just that, a civil war between the King and Parliment: Parliment won!
Ever since Watergate, we have seen a Congress that has pushed back against the accumulation of Executive power that has occured since the Great Depression – an accumulation made with the express complicity of the Congress.
Congress grants powers to Executive Agencies that are unprecedented when compared to legislation written in the 19th Century, and then has a hissie-fit when the bureaucracy does what it does best – accumulate more power to itself.
BTW, if Congress has express executive power but is told by the Judiciary (SCOTUS) that it has erred, will it then take to itself Judicial Power? I realize that all lessor courts are creations of Congress and they can expand and contract those areas as they see fit, but what happens when they bump up against the Supremes – Are they going to hold SCOTUS in CofC?
More and more it seems that a good starting point in returning some sense of civility and national purpose to government would be the ouster of all incumbents. It’s a dream, but will never happen because the average voter just doesn’t care (not even taking into account the 40% who can’t even be bothered to register).
Another thing: As CEO, the President can direct his officers to do certain things, and if they demurr, he can remove them: Saturday Night Massacre, anyone? Plus, the career employees can always tender resignations en masse to protest a course of action. This is when it gets really messy, and we would have a complete political meltdown.
Lastly, on any Contempt of Congress prosecution, the President has the last word, and it is unreviewable: Presidential Pardon.Another Drew (8018ee) — 7/25/2007 @ 9:14 pm
Would any of the Constitutional lawyers care to comment on this? It’s unclear to this non-lawyer if this is true for contempt arising out of refusal to appear. Is that a crime which may be pardoned, or is it a form of compulsion not criminal in nature? As an analogy, I don’t see how the President could pardon away someone civilly committed to a mental institution or involuntary medical quarantine. (And doesn’t separation of powers work both ways? If Congress can’t order a US Attorney, how can Dear Leader command the Senate Sergeant-at-Arms?)Andrew J. Lazarus (f22042) — 7/25/2007 @ 10:01 pm
I don’t know enough about the law at hand to have a firm opinion… although having read the thread, I lean towards Patterico’s thoughts that it boils down to congress ordering a prosecutor or even a special prosecutor to proceed with something they feel isn’t supported by the law, which is unethical.
However, you’ve presented your views cogently even if I don’t concur with your conclusions.
I want to say I appreciate your joining our conversation. Patterico’s is one of the most interesting blogs I read despite it arguably not being entirely relevant to me (I’m a Canadian so there’s an example of why).
But it’s the best political, legal, and current event interactive discussion I have found online. Admittedly, I haven’t searched hard.
I hope you will bookmark this site and join us again even if on another topic. The demands of time being what they are, perhaps we’ll see you here only on a limited occasional basis, but from my point of view you are most assuredly welcome.
One sad thing is, with a few exceptions (assistant devil’s advocate comes to mind), many of the liberal commentators here make a hard hitting point… then run away from it or obfuscate if problems are shown with their thinking. And they often make it personal.
You, on the other hand, have contributed thoughts I would never have otherwise had on my own (including the pointed observation that, well, yes on the one hand it’s less than ideal for congress to direct a prosecution, for the administration to take the contrary view that we just don’t feel like investigating ourselves is troubling too… and you make a suggestion of a special prosecutor in such a case) that are worth throwing into the mill for processing.
Even if, and forgive the mangled metaphor, I don’t buy them lock, stock, and barrel.
Patterico occasionally invites productive thoughtful commentators to post and it would tickle me pink for you to take him up on that, if he extended the offer, at some time. You may see things differently, but he obviously respects your viewpoint.
I’ll note that the detail and attention you’ve given us in this thread are no less work than an independent post!Christoph (92b8f7) — 7/25/2007 @ 11:59 pm
[…] 26th, 2007 by scrubone Patterico explains why the media have it backwards in the “showdown between Congress and President Bush […]Executive Privilege « Something should go here, maybe later. (98bdb4) — 7/26/2007 @ 2:34 am
“Lastly, on any Contempt of Congress prosecution, the President has the last word, and it is unreviewable: Presidential Pardon.”
And I posted this twice already:
“…under historic and undisturbed law, Congress can enforce its own orders against recalcitrant witnesses without involving the executive branch and without leaving open the possibility of presidential pardon.”AF (4a3fa6) — 7/26/2007 @ 4:25 am
I think AF and his link are persuasive as to Civil Contempt not being pardonable. Even if it were, a pardon cannot be prospective: Congress could again summon a witness, and again declare him in contempt. (I’m not sure how this sort of repeated showdown would play out.)
Perhaps one reason these witnesses have failed to show up altogether, rather than show up and refuse to answer some/most/all questions, is to keep themselves out of the practical reach of the sergeant-at-arms.DWPittelli (2e1b8e) — 7/26/2007 @ 4:45 am
With all due respect, Peter #65, the statute is very relevant. There is no crime without it. Any analysis must start with the impact of the statute as written and as applied and then proceed to its constitutional deficiencies. Actually, the constitutional analysis comes last and is avoided whenever possible.nk (1c6c66) — 7/26/2007 @ 5:05 am
Dear Fellow Posters,
I regret lacking time to respond to each question or challenge posed to points I have made; in any event, others have ably anticipated my response to those challenges. As with all of you, there is a paying day job to attend to (and yesterday, a veterinary emergency — with a happy ending). If my frequency of contribution drops off, please understand that it is just life taking over, not any lack of appreciation for the quality of discourse Patterico is hosting.
I very much appreciate Christoph’s comments at #75. I will try to revisit and certainly will respond if Patterico thinks there is some fray into which I can usefully jump. Whenever I teach Separation of Powers law, I find, somewhat to my bemusement, that my most supportive students tend to include those least likely to share my political views. In any event, having students attack these questions from perspectives different from my own forces me to read, think and articulate more carefully, which is a great service.
For those who want to read a lot more about the history, law and procedure related to congressional contempt, the CRS has a new report at http://www.scotusblog.com/movabletype/archives/crs.contempt.report.pdf that is well worth looking at.Peter M. Shane (da96d0) — 7/26/2007 @ 5:21 am
Sorry – my last post should have referenced Christoph at 73, not 75.Peter M. Shane (da96d0) — 7/26/2007 @ 5:22 am
“Without the statute he has no argument.”
Even though I have not bought into Professor Shane’s position as I make clear in #73 above, he has a valid position still in that it would be very troubling if the administration could just arbitrarily decide it doesn’t want to investigate itself or someone under it’s sway.
That would make the law an ass, the constitution notwithstanding.
So if Professor Shane is bootstrapping, and that’s my concern too, I’d like to hear his comment on that… he could certainly fall back on the argument, if not the accepted fact, that their ought to be some recourse if the administration refuses to investigate itself.
Impeachment may not be an option in such an instance because it’s authorized in the constitution for high crimes and misdemeanors, not recalcitrance.
In other news and completely off topic, please don’t allow it to interrupt the conversation on the thread; instead, just read it and think about it independently, you’re winning the war in Iraq.Christoph (92b8f7) — 7/26/2007 @ 5:50 am
*Christoph (92b8f7) — 7/26/2007 @ 5:56 am
* but change tense from present continuous to … I’m kidding. I’m being overly pedantic here, the one thing Patterico encourages; which is helpful for debate, admittedly… you know what I mean.
🙂Christoph (92b8f7) — 7/26/2007 @ 5:58 am
At the final level our government must operate on an assumption of good faith. Pat and others here argue abstract principle without context.
“Winning the war in Iraq.” That’s the context for your arguments. We’ll see what history shows us.AF (4a3fa6) — 7/26/2007 @ 6:19 am
Re #65 and 80. I don’t understand what you mean about bootstrapping. I have not cited any statute to prove what the Constitution means. I have cited statutory practices contemporary with the framing of the Constitution to indicate what late 18th Century folks thought they meant or didn’t mean when they used the phrase “executive power.” The idea that those who shaped the Constitution regarded criminal prosecution as a function that Congress was compelled to lodge in the executive branch is not just supported by historical fact. That’s my point.
In my judgment, the first Congress could actually have placed prosecutors in the judicial branch, regarding them as inferior officers subject to judicial appointment. It was entirely sensible for them not to do so, but placing them under the loose supervision of the State Department — there was no DOJ until 1870 — hardly proves that Congress was constitutionally compelled to regard prosecution as an executive function.
My original point is that, when Congress uses its legislative discretion to place a task with the executive branch — building a dam, regulating social security, prosecuting a crime — it can also, subject to such other constitutional limits as may apply, place boundaries on the scope of policy discretion that the President and his subordinates get to exercise in fulfilling those tasks.Peter M. Shane (da96d0) — 7/26/2007 @ 6:29 am
Yes. The contempt charge is pardonable. Congressional subpoena is not, and that, along with their very limited powers of enforcement, are what is referred to in “Congress can enforce its own orders against recalcitrant witnesses…”
Keep reading the piece you’re citing:Pablo (99243e) — 7/26/2007 @ 6:32 am
In which case, Pablo, the President could do nothing if Congress used its inherent contempt powers and sent the Sergeant at Arms.Andrew J. Lazarus (d00432) — 7/26/2007 @ 6:43 am
To do what? Try and convict, or compel testimony? It isn’t the former. And suppose the latter takes place and the subject simply refuses to speak? Then we’re right back to prosecuting contempt, which is pardonable.Pablo (99243e) — 7/26/2007 @ 6:45 am
Pablo, here’s the next paragraph:AF (4a3fa6) — 7/26/2007 @ 7:30 am
“But no law says that indictment and prosecution by the Justice Department is the exclusive means to enforce congressional prerogative.”
And there’s a jail in the building.
Uh, no. There’s a holding cell in the building. And there’s that whole “right to a trial by a jury of your peers” thing. Congress has no power to keep prisoners. This is veering off into the absurd, which would be unfortunate given the quality of the discussion thus far.
What other means of enforcing congressional prerogative do you suppose there is?Pablo (99243e) — 7/26/2007 @ 7:55 am
Again from the same article I posted before and which you cherry pick:
“Thus, the congressional alternative. Instead of referring a contempt citation to the U.S. attorney, a house of Congress can order the sergeant-at-arms to take recalcitrant witnesses into custody and have them held until they agree to cooperate — i.e., an order of civil contempt. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.”AF (4a3fa6) — 7/26/2007 @ 9:47 am
False.Andrew J. Lazarus (d00432) — 7/26/2007 @ 10:16 am
I should retract and revise, in keeping with my previous statements. Clearly, Congress can theoretically take an individual into custody to compel testimony. But they cannot convict and sentence on a contempt charge. And they lack the ability to hold someone indefinitely, so their power to compel is toothless. The only way a person can be sentenced as being in contempt of Congress is though prosecution, which is pardonable if the Executive chooses to do so.Pablo (99243e) — 7/26/2007 @ 4:50 pm
Patterico: thank you for the recommendation, and my apologies for not reading the links in advance. Volokh refers to a post at Balkinization which seems to refer to cases decided in the twentieth century, which doesn’t quite answer my question about how old the power to hold people in contempt is; what I was driving at is this: if Parliament had a contempt power, was it considered to be a legislative power or a judicial power? That is to say: we know that Parliament acted in some instances as a judicial body; did its power to hold people in contempt stem from that, or from innate legislative powers?
This has a bearing on the conversation because, if contempt power was a judicial power and not a legislative one, then arguably the legislative power delegated in the constitution does not allow for Congress to hold people in contempt. (I’m trying to reason from first principles here).
A book i’m reading — based on some lectures a British professor of law gave in the 1880s — on the history of English Constitutional Law has informed me that the House of Commons had the power to hold people in contempt, and used it on at least one occasion during the Tudor period; and, since the judicial powers of Parliament were vested in the House of Lords, exercise by the Commons suggests that it was considered a Legislative power.
Where I was going with this is this: it seems to me that the inclusion within the definition of Legislative power of the ability to hold people in Contempt of Congress ought to mean that Congress can simply arrest someone for contempt, without reference to the executive branch whatsoever. If that is true, i’m puzzled as to the reason for the entire conversation about forcing the US Attorney to do it; that would seem to be unnecessary, even if it is customary.aphrael (9e8ccd) — 7/26/2007 @ 10:39 pm
Another Drew, at #71: I think the point of the dispute is not to invest Congress with Executive power, but to determine what recourse Congress has when the Executive refuses to enforce the law as Congress understands the law. It may be that that recourse is limited to impeachment.
That said, I think it’s clear from the history of the contempt power (see my previous comment) that holding people in contempt for failure to testify was considered to be part of the Legislative power well before the revolution, and so is included within the Constitutional grant of Legislative authority.aphrael (9e8ccd) — 7/26/2007 @ 10:43 pm
Pablo, I’m curious: why do you believe that Congress has no power to keep prisoners? We know that Parliament did this somewhat often.aphrael (9e8ccd) — 7/26/2007 @ 10:47 pm
On an almost completely unrelated topic: I find the conjunction of President Bush’s invocation of Executive Privilige (being hailed by Republicans and criticized by Democrats) and Governor Spitzer’s doing the same (being hailed by Democrats and criticized by Republicans) to be amusing: it suggests that far too many people are deciding where they stand based on partisan allegiances rather than on the institutional issues.aphrael (9e8ccd) — 7/26/2007 @ 10:53 pm
Spitzer’s claims “being hailed by Democrats”AF (4a3fa6) — 7/27/2007 @ 7:20 am
I’m sure some are, but give me some links anyway.
You Want to Impeach Bush? For What?
Rush Limbaugh, on his radio show yesterday, pulled one of his usual tongue-in-cheek news alerts when he announced that there was a new shortage in Washington-a shortage of subpoena forms. Seems the Democrats in Congress have used them all up during the course of their various investigations and hearings into government wrongdoing in the Bush Administration. Seriously though, the Democrats seem to be determined to dog Bush to the end of his presidency if not find enough dirt to start impeachment proceedings against him and most certainly, Dick Cheney. That they are doing this in a time of war strikes me as disgraceful. Yet, I must concede that a war would not suffice to protect a truly criminal president from removal. However, let’s look at the so-called scandals that the Dems are investigating.
As for the charge that Bush lied us into a war on Iraq based on false claims of WMD, I say this: If Bush lied about WMD, then a lot of other people lied as well. That long list would include Bill Clinton, Hillary Clinton, Madelyn Albright, Sandy Berger, William Cohen, John Kerry, the inteligence agencies of the Brits, French, Israelis, as well as the CIA. Were they all lying? No, actually. For starters, Saddam used chemical weapons against Iran in his war against that nation. He also used them against his own people after the first Gulf War, killing thousands of innocent men, women and children in one village alone. Bush, in the wake of 9-11, simply was not prepared to wait until Saddam started passing off WMD to terrorists to use against the US and Israel. You can disagree with his reasoning and decision, but there was nothing devious and criminal about it.
Another “scandal” is the NSA wiretapping program that Bush authorized after 9-11 to monitor conversations between Al-Quaida suspects overseas and their contacts in the US. I can’t believe the opposition that the Democrats have to this program in the first place. If Bush hadn’t done it, he should have been impeached for gross negligence. Do you have any doubt that during World War II, wiretaps were going on all over the country? Besides, what was the reason? So Bush could spy on his political enemies like Nixon did in Watergate? No. It was done to prevent attacks-to save lives.
Now there is the big deal over the firings of eight US Attorneys. So what? It was done for political purposes you say? Of course. So what? US Attorneys are political appointees. They are usually appointed by incoming presidents as political plums. A US Attorney serves at the pleasure of the President. Bill Clinton, when he came into office, replaced 93 US Attorneys with his own people, including the US Attorney in Chicago, who was nearing an indictment of Democrat member of Congress, Dan Rostenkowski for corruption, as well the US Attorney in Little Rock who was investigating Whitewater, replacing him with a former law school student of his. No one said a peep when Clinton canned these 93 people and put his own people in. Now, the Democrats want explanations. The first scalp they are going for is that if Attorney General, Alberto Gonzalez, who has been raked over the coals and all but called a perjuror by the likes of Schumer. Advice to Gonzalez-tell the truth about the firings. You fired them-tough! Don’t become the next Scooter Libby.
The Democrats also want to subpoena Bush’s top advisors to testify as to what they ever told Bush about anything at anytime. Bush is claiming “Executive Privilege”, and the Democrats (principally Chucky Schumer, John Conyers and Henry Waxman) are waxing indignant over the issue that seems to arise in every administration. Now, Russ Feingold wants to start Censure proceedings against Bush.
My only advice for the Administration is to tell the Democrats to go pound sand. But if anyone does have to testify, just tell the damn truth. If the Democrats really want to push these issues, in the end, they will alienate the public. Bush’s approval ratings may be low, but they are head and shoulders above those for Congress. What most people really want to see Congress do is get to work on something constructive, like shutting down the border and supporting our troops who are fighting in Iraq and Afghanistan.
gary fousefouse, gary c (629ad9) — 7/27/2007 @ 8:16 pm
[…] The US government has accountability structures to help inhibit corruption and misuse of power. There are complaints and allegations that the Executive branch is stepping all over the Legislative and Judicial as a part of the ongoing political battle. The reality is much more dangerous than the allegations convey. We are witnessing an attempt by Congress to take over a core function of the executive branch: the duty to execute the laws, which includes the discretion over when to prosecute violations of criminal law. Despite what Big Media would have you believe, this controversy isn’t about President Bush exerting undue influence over United States Attorneys. It’s about Congress trying to usurp the executive’s constitutional powers, by trying to force the Department of Justice to bring a prosecution that DoJ believes should not be brought. And it’s about congressional attempts to destroy any notion of executive privilege, by summoning executive officials before various congressional committees to interrogate them about high-level executive deliberations. [A True Assault on Prosecutorial Independence] […]Whispers in the airstreams » Blog Archive » Oversight, accountability, and independence (4a7c5b) — 7/30/2007 @ 7:13 am
It would be really interesting to see if Congress did ever try to imprison someone on Contempt charges and proceeded to ignore a Presidential Pardon? What happens then?
Does the President then order the US Marshalls to liberate the captive being held by Congress? Why does this sound like something Tom Clancy would write on one of his off days?Teche (c003f1) — 7/30/2007 @ 8:50 am