Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege

Prosecution for Contempt of Congress of an Executive

Branch Official Who Has Asserted a Claim of Executive

Privilege

As a m atter o f statutory construction and separation of powers analysis, a United States Attorney

is not required to refer a congressional contem pt citation to a grand jury or otherw ise to

prosecute an Executive Branch official who carries out the President's instruction to invoke

the President’s claim o f executive privilege before a committee of Congress.

M a y 30, 1984

M e m o r a n d u m O p in io n for th e Atto rn ey G eneral

I. Introduction

This memorandum memorializes our formal response to your request for our

opinion whether, pursuant to the criminal contempt of Congress statute, 2

U.S.C. §§ 192,194, a United States Attorney must prosecute or refer to a grand

jury a citation for contempt of Congress issued with respect to an Executive

Branch official who has asserted a claim of executive privilege in response to

written instructions from the President of the United States. Your inquiry

originally arose in the context of a resolution adopted by the House of Repre­

sentatives on December 16, 1982, during the final days of the 97th Congress,

which instructed the Speaker of the House of Representatives to certify the

report of the Committee on Public Works and Transportation concerning the

“contumacious conduct of [the] Administrator, United States Environmental

Protection Agency, in failing and refusing to furnish certain documents in

compliance with a subpena duces tecum of a duly constituted subcommittee of

said committee . . . to the United States Attorney for the District of Columbia,

to the end that the Administrator . . . may be proceeded against in the manner

and form provided by law.” H.R. Res. 632, 97th Cong., 2d Sess. (1982).1

Section 192 of Title 2, United States Code, provides, in general, that willful

failure to produce documents in response to a congressional subpoena shall be

a misdemeanor. Section 194 provides that if such a failure is reported to either

house of Congress it “shall” be certified to the “appropriate United States attorney

whose duty it shall be to bring the matter before the grand jury for its action.”

1 A lthough the D ecem ber 1982 dispute is now a m atter o f history, it raises recurring issues.

101

Your inquiry presents a number of complex issues that will be considered in

this memorandum. The first issue is whether the Executive retains some

discretion with respect to referral of a contempt of Congress citation to a grand

jury. This issue raises questions of statutory construction and the separation of

powers with respect to the scope of the Executive’s exercise of prosecutorial

discretion. The second issue is whether the criminal contempt of Congress

statute applies to an Executive Branch official who, on the orders of the

President, asserts the President’s claim of executive privilege. This issue also

involves questions of statutory interpretation and the constitutional separation

of powers.

As we have previously discussed with you, and as we explain in detail in this

memorandum, we have concluded that, as a matter of both statutory construc­

tion and the Constitution’s structural separation of powers, a United States

Attorney is not required to refer a contempt citation in these circumstances to a

grand jury or otherwise to prosecute an Executive Branch official who is

carrying out the President’s instruction in a factual context such as that pre­

sented by the December 16, 1982, contempt citation. First, as a matter of

statutory interpretation reinforced by compelling separation of powers consid­

erations, we believe that Congress may not direct the Executive to prosecute a

particular individual without leaving any discretion to the Executive to deter­

mine whether a violation of the law has occurred. Second, as a matter of

statutory interpretation and the constitutional separation of powers, we believe

that the contempt of Congress statute was not intended to apply and could not

constitutionally be applied to an Executive Branch official who asserts the

President’s claim of executive privilege in this context.

Our conclusions are predicated upon the proposition, endorsed by a unani­

mous Supreme Court less than a decade ago, that the President has the author­

ity, rooted inextricably in the separation of powers under the Constitution, to

preserve the confidentiality o f certain Executive Branch documents. The

President’s exercise of this privilege, particularly when based upon the written

legal advice of the Attorney General, is presumptively valid. Because many of

the documents over which the President may wish to assert a privilege are in

the custody of a department head, a claim of privilege over those documents

can be perfected only with the assistance of that official. If one House of

Congress could make it a crime simply to assert the President’s presumptively

valid claim, even if a court subsequently were to agree that the privilege claim

were valid, the exercise of the privilege would be so burdened as to be nullified.

Because Congress has other methods available to test the validity of a privilege

claim and to obtain the documents that it seeks, even the threat of a criminal

prosecution for asserting the claim is an unreasonable, unwarranted, and there­

fore intolerable burden on the exercise by the President of his functions under

the Constitution.

Before setting out a more detailed explanation of our analysis and conclu­

sions, we offer the caveat that our conclusions are limited to the unique

circumstances that gave rise to these questions in late 1982 and early 1983.

102

Constitutional conflicts within the federal government must be resolved care­

fully, based upon the facts of each specific case. Although tensions and friction

between coordinate branches of our government are not novel and were, in fact,

anticipated by the Framers of the Constitution, they have seldom led to major

confrontations with clear and dispositive resolutions.

The accommodations among the three branches of the govern­

ment are not automatic. They are undefined, and in the very

nature of things could not have been defined, by the Constitu­

tion. To speak of lines of demarcation is to use an inapt figure.

There are vast stretches of ambiguous territory.

Frankfurter and Landis, P ow er o f Congress Over Procedure in Criminal

Contempts in “Inferior" Federal Courts, 37 Harv. L. Rev. 1010, 1016 (1924)

(emphasis in original). ‘The great ordinances of the Constitution do not estab­

lish and divide fields of black and white.” Springer v. Philippine Islands, 277

U.S. 189, 209 (1928) (Holmes, J., dissenting). Therefore, although we are

confident of our conclusions, prudence suggests that they should be limited to

controversies similar to the one to which this memorandum expressly relates,

and the general statements of legal principles should be applied in other

contexts only after careful analysis.

II. Background

Because the difficult and sensitive constitutional issues that we consider in

this opinion could conceivably be resolved differently depending upon the

specific facts of a controversy, this analysis is presented in the context of the

December 16, 1982, actions of the House of Representatives. The facts sur­

rounding this dispute will be set out in detail in the following pages.

A. E P A ’s Enforcement o f the Superfund A ct

On December 16, 1982, the House of Representatives cited the Administra­

tor of the Environmental Protection Agency (EPA) because she declined to

produce, in response to a broad subcommittee subpoena, a small portion of the

subpoenaed documents concerning the Comprehensive Environmental Re­

sponse, Compensation, and Liability Act, 42 U.S.C. §§ 9601, 9657 (Supp. V

1981) (Superfund Act). The Superfund Act, adopted in December of 1980,

authorizes the federal government to take steps to remedy the hazards posed by

abandoned and inactive hazardous waste sites throughout the United States.2

The EPA, which was delegated part of the President’s authority to enforce the

Superfund Act in August of 1981,3 has considerable flexibility with respect to

2 A nother statute, the R esource C onservation and R ecovery Act, 42 U.S.C. §§ 6901 et seq.%provides federal

authority to deal with the current disposal o f hazardous industrial wastes.

3 See Executive O rder No. 12316, “R esponses to Environm ental Damage” (A ug. 14, 1981).

103

how this goal may be accomplished. EPA may request the Department of

Justice to proceed immediately against those responsible for the hazardous

waste sites to “secure such relief as may be necessary to abate” an “imminent

and substantial endangerment to the public health or welfare or the environ­

ment.” See 42 U.S.C. § 9606. Alternatively, EPA may initiate clean-up efforts

itself by using funds from the $1.6 billion Superfund. See 42 U.S.C. § 9631. If

EPA itself implements the clean-up efforts, it may subsequently sue those

responsible for the hazardous waste to recover the clean up cost and, in some

instances, may obtain treble damages. See 42 U.S.C. § 9607. These two basic

enforcement mechanisms are supplemented by other broad enforcement pow­

ers, which authorize the issuance of administrative orders “necessary to protect

the public health and welfare and the environment” and to require designated

persons to furnish information about the storage, treatment, handling, or dis­

posal of hazardous substances. See 42 U.S.C. §§ 9606, 9604(e)(1). Finally, the

Superfund Act imposes criminal liability on a person in charge of a facility

from which a hazardous substance is released, if that person fails to notify the

government of the release. See 42 U.S.C. § 9603.

Prior to the initiation of judicial proceedings, EPA must undertake intensive

investigation and case preparation, including studying the nature and the extent

of the hazard present at sites, identifying potentially responsible parties, and

evaluating the evidence that exists or that must be generated to support govern­

ment action. See Amended Declaration of Robert M. Perry, Associate Admin­

istrator for Legal and Enforcement Counsel and General Counsel, EPA, filed in

U nited States v. H ouse of R epresentatives, Civ. No. 82-3583 (D.D.C. Jan. 14,

1983). Many sites apparently involve hundreds of waste generators; hence, the

initial investigation of a site can take months and involve the examination of

tens of thousands of documents. Id.

Based on its initial investigations of hazardous waste sites throughout the

country, EPA created a comprehensive national enforcement scheme and de­

veloped during 1982 an interim priorities list, which identified the 160 sites

that posed the greatest risk to the public health and welfare and the environ­

ment.4 EPA also promulgated enforcement guidelines to direct the implemen­

tation of the Superfund Act against these potentially hazardous sites. See 47

Fed. Reg. 20664 (1982).

Under this basic enforcement scheme, EPA commenced actual enforcement

of the Superfund Act. As part of the enforcement effort with respect to each

site, EPA generally develops a strategy for conducting negotiations and litiga­

tion consistent with its overall enforcement goals and the individual facts of

each particular case. Once a case strategy has been developed, EPA notifies

responsible parties that it intends to take action at a site unless the parties

undertake an adequate clean up program on their own. Following the issuance

of notice letters, EPA typically negotiates with responsible parties to agree on a

4 Subsequently, EPA published a proposed national priorities list (to replace the interim list), which

identified the 418 sites that, in EPA’s ju d g m en t, required priority in use o f the Superfund to effect clean up.

See 47 Fed. R eg. 58476 (1982)

104

clean up plan. These negotiations may involve hundreds of potentially respon­

sible parties and millions of dollars in clean up costs. Depending upon the

strengths and weaknesses of individual cases and the effect on the overall

enforcement effort, EPA may decide to settle with some but not all parties and

proceed to litigation with a certain number of potential defendants. If EPA

decides to bring a lawsuit, it refers the case to the Land and Natural Resources

Division of this Department, which is responsible for conducting the actual

litigation.5

During EPA’s enforcement of the Superfund Act, the agency created or

received hundreds of thousands of documents concerning various aspects of

the enforcement process. Many of these documents concerned the facts relating

to specific hazardous waste sites; others involved general agency strategy and

policies with respect to the Superfund Act; still others, a small portion of the

enforcement files, were attorney and investigator memoranda and notes that

contained discussions of subjects such as EPA’s enforcement strategy against

particular defendants, analyses of the strengths and weaknesses of the

government’s case against actual or potential defendants, consideration of

negotiation and settlement strategy, lists of potential witnesses and their antici­

pated testimony, and other litigation planning matters. Enforcement officials at

both the career and policy level at EPA and in the Land and Natural Resources

Division at the Department of Justice determined that some of those docu­

ments, which concerned the legal merits and tactics with respect to individual

defendants in open enforcement files, were particularly sensitive to the en­

forcement process and could not be revealed outside the agencies directly

involved in the enforcement effort without risking injury to EPA’s cases

against these actual and potential defendants in particular and the EPA enforce­

ment process in general.6

B. The House Subcom m ittee’s Demands f o r Enforcement Files

In the midst of EPA’s ongoing enforcement efforts under the Superfund Act,

the Subcommittee on Oversight and Investigations of the House Committee on

Public Works and Transportation (Public Works Subcommittee), chaired by

Rep. Levitas, began hearings to review EPA enforcement of the Act. In the

course of these hearings, the Public Works Subcommittee first demanded

access to, and then subpoenaed, a wide range of documents concerning en­

forcement of the Superfund Act with respect to the 160 sites that were on the

5 We understand that as o f January 14, 1983, EPA had sent more than 1,760 notice letters, undertaken

Superfund financed action at 112 sites involving the obligation o f in excess o f $236 m illion, instituted

Superfund claim s in 25 ju d icial actions, and obtained one criminal conviction. As of the early months of

1983, EPA and the D epartm ent o f Justice had reached settlem ents in 23 civil actions providing for the

expenditure o f m ore than $121 million to conduct clean up operations and were actively negotiating with

responsible parties concerning the clean up o f 56 sites throughout the country. See A m ended D eclaration of

Robert M. Perry, A ssociate A dm inistrator for Legal and Enforcem ent Counsel and General Counsel o f the

EPA, filed in United States v. House o f Representatives, Civ. No. 82 -3 5 83 (D.D.C. Jan. 14, 1983).

6 Id.

105

agency’s interim priorities list. The documents demanded by the Public Works

Subcommittee included not only documents concerning the facts relating to

these sites and EPA’s general policies, but also the sensitive material contained

in open case files that set out discussions concerning case strategy with respect

to actual and potential defendants.7 The Public Works Subcommittee subpoena

was dated November 16,1982, and was served on November 22,1982. It called

for production of the subpoenaed documents eleven days later on December 2,

1982. The EPA Administrator responded to the Public Works Subcommittee’s

subpoena by offering to provide the Public Works Subcommittee with access to

an estimated 787,000 pages o f documents within the scope of the subpoena.8

The EPA and the Land and Natural Resources Division officials responsible for

conducting EPA enforcement litigation determined, however, that release out­

side the enforcement agencies of a limited number of the most sensitive

enforcement documents contained in open files concerning current and pro­

spective defendants would impair EPA’s ongoing enforcement efforts and

prevent EPA and the Department of Justice from effectively implementing the

Superfund Act.

Therefore, in accordance with the explicit guidelines adopted by the Presi­

dent to govern possible claims of executive privilege, see Memorandum re:

Procedures Governing Responses to Congressional Requests for Information

(Nov. 4,1982), EPA suggested that some of the documents be withheld under a

claim of executive privilege and consulted with this Office and the Office of

the Counsel to the President in order to determine whether such a claim might

be asserted to avoid impairing the constitutional responsibility of the President

to take care that the laws be faithfully executed. A further review of the

documents in question by enforcement officials at EPA and the Land and

Natural Resources Division was then undertaken to confirm that the particular

documents selected for consideration for an executive privilege claim were, in

the judgment of those officials, sufficiently sensitive that their disclosure

outside the Executive Branch might adversely affect the law enforcement

process. The documents were then reviewed by officials in this Office and

officials in the Office of the Counsel to the President to confirm that the

documents were of the type described by the enforcement officials. Various

unsuccessful efforts were thereafter made to resolve the dispute short of a final

confrontation. The President, based upon the unanimous recommendation of

all Executive Branch officials involved in the process, ultimately determined to

assert a claim of executive privilege with respect to 64 documents from open

enforcement files that had been identified as sufficiently enforcement sensitive

7 The subpoena required Che EPA A dm inistrator to produce: all books, records, correspondence, memo-

randa, papers, notes and documents draw n o r received by the A dm inistrator and/or her representatives since

D ecem b er 11, 1980, the date o f enactment o f the Superfund A ct, including duplicates and excepting shipping

papers and o th e r com m ercial or business docum ents, contractor and/or other technical docum ents, for those

sites listed as national priorities pursuant to Section 105(8)(B ) o f the Superfund Act. See United States v.

House o f Representatives , 556 F. Supp. 150, 151 (D .D .C . 1983).

8 See Testim ony o f A dm inistrator G orsuch before the Public W orks Subcom m ittee, attached as Exhibit C to

D eclaration o f R obert M. Perry, supra.

106

as of the return date of the subpoena that their disclosure might adversely affect

pending investigations and open enforcement proceedings. The President imple­

mented this decision in a memorandum dated November 30, 1982, to the EPA

Administrator, which instructed her to withhold the particularly sensitive docu­

ments from disclosure outside the Executive Branch as long as the documents

remained critical to ongoing or developing enforcement actions. The legal

basis for this decision was explained in letters from the Attorney General on

November 30, 1982, to the House Public Works Subcommittee and one other

House subcommittee.9 On December 2, 1982, 64 of the most sensitive docu­

ments were withheld from the Subcommittee.10

C. The Contempt o f Congress Proceedings in the House o f Representatives

The President’s assertion of executive privilege, and the Attorney General’s

explanation of the law enforcement considerations and constitutional justifica­

tion for the decision not to release the documents outside the Executive Branch

while enforcement proceedings were ongoing, did not dissuade the congres­

sional subcommittees from pressing their demands for the withheld material.

After the EPA Administrator asserted the President’s claim of privilege at a

December 2, 1982, Public Works Subcommittee hearing, the Subcommittee

immediately approved a contempt of Congress resolution against her. The full

Committee did likewise on December 10, 1982, and rejected a further proposal

by the Department of Justice to establish a formal screening process and

briefings regarding the contents of the documents.11 The full House adopted

the contempt of Congress resolution on December 16, 1982,12 and the follow­

9 See Letters to Hon. Elliott H. Levitas and Hon. John D. Dingell from Attorney General W illiam French

Smith (Nov. 30, 1982). The Subcom m ittee on O versight and Investigations o f the House Energy and

Com m erce Com m ittee (E nergy and C om m erce Subcom m ittee), chaired by R epresentative John D. D ingell,

was pursuing a parallel dem and for sim ilar docum ents relating to enforcem ent o f the Superfund Act with

respect to certain specific sites that were am ong the 160 on the interim priorities list. W hile the Energy and

Com m erce Subcom m ittee sought docum ents relative to three specific hazardous waste sites, the Public

W orks Subcom m ittee subpoena dem anded production o f virtually all docum ents for all 160 sites. The

P resident's assertion o f executive privilege applied to both subpoenas. Although the Energy and Commerce

Subcom m ittee approved a contem pt o f Congress resolution against the EPA A dm inistrator, this resolution

never reached the full Com m ittee or the floor o f the H ouse o f Representatives.

10 As o f that date, EPA had been able to exam ine only a portion o f the hundreds of thousands o f pages o f

docum ents that had been subpoenaed. The 64 docum ents that were w ithheld were those am ong the subpoe­

naed docum ents that had been review ed and determ ined to fall w ithin the President’s instruction not to

produce docum ents the release o f which would adversely affect ongoing enforcem ent proceedings See

Am ended D eclaration o f R obert M. Perry, supra

11 See Letter to Hon. EHiott H. Levitas from Robert A. M cConnell, Assistant A ttorney G eneral, O ffice o f

Legislative A ffairs (Dec. 9, 1982).

12 The contem pt resolution stated:

Resolved, That the Speaker o f the H ouse o f Representatives certify the report o f the Com m ittee

on Public W orks and Transportation as to the contum acious conduct o f Anne M. G orsuch, as

A dm inistrator, United States Environm ental Protection Agency, in failing and refusing to furnish

certain documents in com pliance w ith a subpena duces tecum o f a duly constituted subcom m ittee

of said com m ittee served upon A nne M. Gorsuch, as A dm inistrator, United States Environm ental

Protection Agency, and as ordered by the subcom m ittee, together with all o f the facts in

C ontinued

107

ing day Speaker O’Neill certified the contempt citation to the United States

Attorney for the District o f Columbia for prosecution under the criminal

contempt of Congress statute.

D. The C rim inal Contempt o f Congress Statute

The criminal contempt of Congress statute contains two principal sections, 2

U.S.C. §§ 192 & 194.13 Section 192, which sets forth the criminal offense of

contempt of Congress, provides in pertinent part:

Every person who having been summoned as a witness by the

authority of either House of Congress to give testimony or to

produce papers upon any matter under inquiry before either

House . . . or any committee of either House of Congress, will­

fully makes default, or who, having appeared, refuses to answer

any question pertinent to the question under inquiry, shall be

deemed guilty of a misdemeanor, punishable by a fine of not

more than $1,000 nor less than $100 and imprisonment in a com­

mon jail for not less than one month nor more than twelve months.

Section 194 purports to impose mandatory duties on the Speaker of the House

or the President of the Senate, as the case may be, and the United States

Attorney, to take certain actions leading to the prosecution of persons certified

by a house of Congress to have failed to produce information in response to a

subpoena. It provides:

Whenever a witness summoned as mentioned in section 192

of this title fails to appear to testify or fails to produce any

books, papers, records, or documents, as required, or whenever

any witness so summoned refuses to answer any question perti­

nent to the subject under inquiry before either House . . . or any

committee or subcommittee of either House of Congress, and

the fact of such failure or failures is reported to either House

while Congress is in session or when Congress is not in session,

a statement of fact constituting such failure is reported and filed

with the President of the Senate or the Speaker of the House, it

shall be the duty o f the said President o f the Senate or the

Speaker o f the House, as the case may be, to certify, and he shall

so certify, the statem ent o f fa c ts aforesaid under the seal of the

12 ( . . . continued)

connection therew ith, under seal o f the H ouse o f R epresentatives, to the U nited States attorney

fo r the D istn ct o f Columbia, to th e end that A nne M . G orsuch, as A dm inistrator, United States

Environm ental Protection A gency, may be proceeded against in the m anner and form provided

by law.

128 C ong. R ec. 31754 (1982).

13 A third provision, 2 U .S.C. § 193, w hich denies the existence o f any testim onial privilege for a w itness to

refuse to testify on the ground that this testim ony w ould disgrace him , is not relevant to the issues discussed

in th is m em orandum .

108

Senate or House, as the case may be, to the appropriate United

States attorney, whose duty it shall be to bring the m atter before

the grand ju r y fo r its action.

(Emphasis added.)

E. The D epartm ent o f Justice Civil Suit

Immediately after the House passed the resolution adopting the finding that

the EPA Administrator was in contempt of Congress, the Department of Justice

filed a civil suit in the United States District Court for the District of Columbia

to obtain a ruling that “insofar as [the EPA] Administrator . . . did not comply

with the Subpoena, her non-compliance was lawful” because of a valid Presi­

dential claim of executive privilege.14 The House moved to dismiss the

Department’s complaint on jurisdictional grounds, and the Department cross

moved for summary judgment on the merits. In a letter to Speaker O’Neill

dated December 27, 1982, the United States Attorney indicated that during the

pendency of the lawsuit, he would take no further action with respect to the

Speaker’s referral of the contempt citation. The Speaker responded in a letter

dated January 4, 1983, in which he took the position that the United States

Attorney must, as a matter of law, immediately refer the matter to a grand jury.

The trial court responded to the cross-motions for dismissal and summary

judgment by exercising its discretion under equitable rules of judicial restraint not to

accept jurisdiction over the lawsuit, and it dismissed the suit. The court concluded:

When constitutional disputes arise concerning the respective

powers of the Legislative and Executive Branches, judicial in­

tervention should be delayed until all possibilities for settlement

have been exhausted. .. .

The difficulties apparent in prosecuting [the] Administrator . ..

for contempt of Congress should encourage the two branches to

settle their differences without further judicial involvement.

United States v. House o f Representatives, 556 F. Supp. 150, 152-53 (D.D.C.

1983). No appeal was taken.15

l*See A m ended C om plaint in United States v. House o f Representatives, Civ. No. 82-3583 (D.D.C. Dec.

29, 1982).

15 A lthough the U nited States C ourt o f A ppeals for the D istrict o f C olum bia Circuit previously had been

willing to entertain a civil action to resolve a conflict betw een a congressional subpoena for docum ents and a

Presidential claim o f executive privilege when the action was brought by a congressional com m ittee, Senate

Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir 1974) (en banc), the

trial court decision in the EPA m atter casts some doubt on the viability o f such an action w hen C ongress, as in

this case, does not wish to resolve the controversy in a civil suit. W e must assum e, for the purpose o f this

opinion, that a civil suit is an avenue that is open to Congress, but closed to the Executive, absent a legislature

willing to have the m atter resolved in a civil proceeding.

O f course, the courts m ight be more amenable to a civil action challenging a contem pt c itation if they felt

that a crim inal prosecution in this context was untenable. The d istn c t court judge in the EPA m atter noted but

did not attem pt to consider in depth the “difficulties” o f prosecuting an executive official for carrying o ut the

P resident’s constitutional responsibility.

109

F. Resolution o f the EPA Dispute

Subsequent to the trial court decision, the two branches engaged in negotia­

tions to reach a compromise settlement. The parties eventually reached an

agreement under which the Public Works Subcommittee would have limited

access to the withheld documents and would sponsor a resolution to “with­

draw” the contempt citation against the EPA Administrator. Pursuant to the

agreement, the Subcommittee reviewed the documents, and the House later

adopted a resolution withdrawing the contempt citation. H.R. Res. 180, 98th

Cong., 1st Sess. (Aug. 3, 1983). The issue whether the House of Representa­

tives in the 98th Congress could “withdraw” the contempt citation of the House

during the 97th Congress was never resolved.

During the pendency of the lawsuit and the subsequent settlement negotia­

tions, the United States Attorney for the District of Columbia refrained from

referring the contempt citation to the grand jury. The United States Attorney

took the position that referral would have been inappropriate during that period

and that the statute left him with discretion to withhold referral. See Testimony

of Stanley S. Harris before the House Committee on Public Works and Trans­

portation, 98th Cong., 1st Sess. 100-07 (June 16,1983). Following the passage

of the resolution withdrawing the contempt citation, “the relevant facts and

documents were presented . . . to a federal grand jury, which voted unani­

mously not to indict [the EPA Administrator].” Letter from Stanley S. Harris,

United States Attorney, District of Columbia, to Honorable Thomas P. O’Neill,

Jr., Speaker of the House of Representatives (Aug. 5, 1983).

HH. Generally Applicable Legal Primciples: The Separation! off

Powers, tlhe Dirties off line Executive to Emfforce the Law, and

ttltoe Derivation and Scope off tine Primciples off Prosecutorial

Discretion] amd Executive Privilege

A. The Separation o f Powers

The basic structural concept of the United States Constitution is the division

of federal power among three branches of government. Although the expres­

sion “separation of powers” does not actually appear in the Constitution, the

Supreme Court has emphasized that the separation of powers “is at the heart of

our Constitution,” and has recognized “the intent of the Framers that the

powers of the three great branches of the National Government be largely

separate from one another.” Buckley v. Valeo, 424 U.S. 1, 119-20 (1976). It

needs little emphasis that the separation of powers doctrine is vital to any

analysis of the relative responsibilities of the branches of our government, inter

se. In The F ederalist No. 47, James Madison, who believed that “no political

truth is certainly of greater intrinsic value, or is stamped with the authority of

more enlightened patrons of liberty” than the concept of the separation of

powers, defended this tripartite arrangement in the Constitution by citing

110

Montesquieu’s well-known maxim that the legislative, executive, and judicial

departments should be separate and distinct:

The reasons on which Montesquieu grounds his maxim are a

further demonstration of his meaning. “When the legislative and

executive powers are united in the same person or body,” says

he, “there can be no liberty, because apprehensions may arise

lest the same monarch or senate should enact tyrannical laws to

execute them in a tyrannical manner.” Again: “Were the power

of judging joined with the legislative, the life and liberty of the

subject would be exposed to arbitrary control, for the judge

would then be the legislator. Were it joined to the executive

power, the ju d g e might behave with all the violence of an

oppressor.”

The Federalist No. 47, at 303 (J. Madison) (C. Rossiter ed. 1961); see Buckley

v. Valeo , 424 U.S. at 120-21.16

Of the three branches of the new government created in Philadelphia in

1787, the legislature was regarded as the most intrinsically powerful, and the

branch with powers that required the exercise of the greatest precautions.

Madison warned that the “legislative department is everywhere extending

the sphere of its activity and drawing all power into its impetuous vortex.” The

Federalist No. 48, supra, at 309. He admonished that because of their experi­

ences in England, the founders of the thirteen colonies had focused keenly on

the danger to liberty from an “overgrown and all-grasping prerogative of an

hereditary magistrate, supported and fortified by an hereditary branch of the

legislative authority,” but had tended to ignore the very real dangers from

“legislative usurpations, which, by assembling all power in the same hands,

must lead to the same tyranny as is threatened by executive usurpations.” Id.

Reflecting the views of many of his colleagues, Madison believed that although

the risk of tyranny would naturally come from the King in an hereditary

monarchy, in a representative republic, like that created by the constitutional

convention, in which executive power was “carefully limited, both in the extent

and duration of its power,” the threat to liberty would come from the legislature,

which is inspired, by a supposed influence over the people, with

an intrepid confidence in its own strength; which is sufficiently

numerous to feel all the passions which actuate a multitude, yet

not so numerous as to be incapable of pursuing the objects of its

passions by means which reason prescribes; it is against the

enterprising ambition of this department that the people ought to

indulge all their jealousy and exhaust all their precautions.

Id.

16 M adison characterized M ontesquieu as the “oracle who is always consulted and cited on [the] subject [of

the separation o f pow ers].” See The Federalist No. 47, supra, at 301.

I ll

The Framers feared that the legislature’s power over the purse would foster a

dependence by the executive departments on the legislature “which gives still

greater facility to encroachments” by the legislature on the powers of the

Executive. Id. at 310. The concerns of the Framers with respect to the power of

the legislature have been recognized by the Supreme Court. The Court, citing

many of the above statements, has observed that because of the Framers’

concerns about the potential abuse of legislative power, “barriers had to be

erected to ensure that the legislature would not overstep the bounds of its

authority and perform functions of the other departments.” United States v.

Brown, 381 U.S. 437, 444 (1965). Justice Powell noted that “during the

Confederation, the States reacted by removing power from the executive and

placing it in the hands of elected legislators. But many legislators proved to be

little better than the Crown.” I N S \. Chadha, 462 U.S. 917,961 (1983) (Powell,

J. concurring). After citing several specific legislative abuses that had been of

particular concern to the Framers, Justice Powell concluded that it “was to

prevent the recurrence of such abuses that the Framers vested the executive,

legislative, and judicial powers in separate branches.” Id. at 962.

Thus, the careful separation of governmental functions among three branches

of government was a very deliberate and vital structural step in building the

Constitution. The Framers understood human nature and anticipated that well-

intentioned impulses would lead each of the branches to attempt to encroach on

the powers allocated to the others. They accordingly designed the structure of

the Constitution to contain intrinsic checks to prevent undue encroachment

wherever possible. Particular care was taken with respect to the anticipated

tendency of the Legislative Branch to swallow up the Executive. The Framers

did not wish the Legislative Branch to have excessive authority over the

individual decisions respecting the execution of the laws: “An elective despo­

tism was not the government we fought for.” T. Jefferson, Notes on the State o f

Virginia 120 (Univ. N.C. Press ed. 1955)17 The constitutionally prescribed

separation of powers creates enforceable abuses that had been of particular

concern to the Framers, Justice Powell concluded that it “was to prevent the

recurrence of such abuses that the Framers vested the executive, legislative,

and judicial powers in separate branches.” Id. The division of delegated powers

was designed “to assure, as nearly as possible, that each Branch of government

would confine itself to its assigned responsibility.” INS v. Chadha, 462 U.S. at

951. The doctrine of separated powers “may be violated in two ways. One

branch may interfere impermissibly with the other’s performance of its consti­

17 It is notew orthy, at least from an historical perspective, that the House o f R epresentatives, because o f its

im m ense pow ers, w as considered to be th e governm ental body least vulnerable to encroachm ents by other

segm ents o f governm ent and, at the same tim e, because o f its popular origin and frequent renewal o f authority

by the people, the body w hose encroachm ent on the other branches would be least distrusted by the public.

The Suprem e C o u rt later noted:

It is all the m ore necessary, therefore, that the exercise o f pow er by this body, when acting

sep arately from and independently o f all other depositories of pow er, should be watched with

v igilance, and w hen called in question before any other tribunal having the right to pass upon it

that it should receive the most careful scrutiny.

Kilboum v. Thompson, 103 U .S. 168, 192 (1881).

112

tutionally assigned function. Alternatively, the doctrine may be violated when

one branch assumes a function that more properly is entrusted to another. Id. at

963 (Powell, J. concurring) (citations omitted). Although the Supreme Court

has recognized that “a hermetic sealing off of the three branches of Govern­

ment from one another would preclude the establishment of a Nation capable of

governing itself effectively,” it has also emphasized that the Court “has not

hesitated to enforce the principle of separation of powers embodied in the

Constitution when its application has proved necessary for the decision of

cases or controversies properly before it.” Buckley v. Valeo, 424 U.S. at 121,

123. Therefore, although the Constitution does not contemplate “a complete

division of authority between the three branches,” each branch retains certain

core prerogatives upon which the other branches may not transgress. Nixon v.

Adm inistrator o f Gen. Servs., 433 U.S. 425, 443 (1977). Each branch must not

only perform its own delegated functions, but each has an additional duty to

resist encroachment by the other branches. “The hydraulic pressure inherent

within each of the separate Branches to exceed the outer limits of its power,

even to accomplish desirable objectives, must be resisted.” INS v. Chadha, 462

U.S. at 951 (emphasis added).

B. The D uties o f the Executive to Enforce the Law

The fundamental responsibility and power of the Executive Branch is the

duty to execute the law. Article II, § 1 of the Constitution expressly vests the

executive power in the President. Article II, § 3 commands that the President

“take Care that the Laws be faithfully executed.” Enforcement of the laws is an

inherently executive function, and by virtue of these constitutional provisions,

the Executive Branch has the exclusive constitutional authority to enforce

federal laws. Since the adoption of the Constitution, these verities have been at

the heart of the general understanding of the Executive’s constitutional author­

ity. During the debates on the Constitution, James Wilson noted that the “only

powers he conceived strictly executive were those of executing the laws.” 1 M.

Farrand, The Records o f the Federal Convention o f 1787, at 65-66 (1937).

During the first Congress, James Madison stated that “if any power whatsoever

is in its nature executive, it is the power of appointing, overseeing, and

controlling those who execute the laws.” 1 Annals o f Congress 481 (1789). The

Supreme Court has recognized this fundamental constitutional principle. In

Springer v. Philippine Islands, 277 U.S. 189 (1928), the Court observed:

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.

Id. at 202. More recently, Judge Wilkey, writing for a unanimous panel of the

United States Court of Appeals for the District of Columbia Circuit in a

decision later affirmed by the Supreme Court, recognized that the Constitution

113

prevents Congress from exercising its power of “oversight, with an eye to

legislative revision,” in a manner that amounts to “shared administration” of

the law. Consum er Energy Council o f A m erica v. Federal Energy Regulatory

Com m ission, 673 F.2d 425, 474 (D.C. Cir. 1982), a j f d sub nom. Process Gas

Consum ers G roup v. Consumer Energy Council o f America, 43 U.S. 1216

(1983). It thus seems apparent that the drafters of the Constitution intended

clearly to separate the power to adopt laws and the power to enforce them and

intended to place the latter power exclusively in the Executive Branch.18 As a

practical matter, this means that there are constitutional limits on Congress’

ability to take actions that either disrupt the ability of the Executive Branch to

enforce the law or effectively arrogate to Congress the power of enforcing the

laws.

C. The D erivation an d Scope o f Prosecutorial Discretion and Executive

P rivilege

The issues addressed by this memorandum involve two important constitu­

tional doctrines that spring from the constitutional limits imposed by the

separation of powers and the Executive’s duty to enforce the laws: prosecutorial

discretion and executive privilege.

1. Prosecutorial Discretion

The doctrine of prosecutorial discretion is based on the premise that because

the essential core of the President’s constitutional responsibility is the duty to

enforce the laws, the Executive Branch has exclusive authority to initiate and

prosecute actions to enforce the laws adopted by Congress. That principle was

reaffirmed by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976), in

which the Court invalidated the provision of the Federal Election Act that

vested the appointment of certain members of the Federal Election Commis­

sion in the President p ro tem pore of the Senate and the Speaker of the House. In

so holding, the Court recognized the exclusively executive nature of some of

the Commission’s powers, including the right to commence litigation:

The Commission’s enforcement power, exemplified by its

discretionary power to seek judicial relief, is authority that

cannot possibly be regarded as merely in aid of the legislative

function of Congress. A lawsuit is the ultimate remedy for a

breach of the law, and it is to the President, and not to the

Congress, that the Constitution entrusts the responsibility to

“take care that the laws be faithfully executed.” Art. II, § 3.

424 U.S. at 138.

18 O f equal concern w as the need to separate the ju d icial pow er from the executive pow er. The drafters

intended to preserve the impartiality o f th e judiciary as “neutral arbiters in the criminal law ” by separating the

ju diciary from the prosecutorial function. Nader v. Saxbe , 497 F.2d 676, 679 n.18 (D.C Cir. 1974).

114

The Executive’s exclusive authority to prosecute violations of the law gives

rise to the corollary that neither the Judicial nor Legislative Branches may

directly interfere with the prosecutorial discretion of the Executive by directing

the Executive Branch to prosecute particular individuals. This principle was

explained in Smith v. U nited States, 375 F.2d 243 (5th Cir.), cert, denied, 389

U.S. 841 (1967), in which the court considered the applicability of the Federal

Tort Claims Act to a prosecutorial decision not to arrest or prosecute persons

injuring plaintiffs business. The court ruled that the government was immune

from suit under the discretionary decision exception of the Act on the ground

that the Executive’s prosecutorial discretion was rooted in the separation of

powers under the Constitution:

The President of the United States is charged in Article 2,

Section 3, of the Constitution with the duty to “take Care that the

Laws be faithfully executed.” The Attorney General is the

President’s surrogate in the prosecution of all offenses against

the United States. . . . The discretion of the Attorney General in

choosing whether to prosecute or not to prosecute, or to abandon

a prosecution already started, is absolute. . .. This discretion is

required in all cases.

We emphasize that this discretion, exercised in even the

lowliest and least consequential cases, can affect the policies,

duties, and success of a function placed under the control of the

Attorney General by our Constitution and statutes.

375 F.2d at 246—47. The court went on to state that this prosecutorial discretion

is protected “no matter whether these decisions are made during the investiga­

tion or prosecution of offenses.” Id. at 248.

The limits and precise nature of the Executive’s prosecutorial discretion are

discussed in greater detail below. At this point in our examination of the issues

considered in this memorandum, it is sufficient to observe that meaningful and

significant separation of powers issues are raised by a statute that purports to

direct the Executive to take specified, mandatory prosecutorial action against a

specific individual designated by the Legislative Branch.

2. Executive Privilege

The doctrine of executive privilege is founded upon the basic principle that

in order for the President to carry out his constitutional responsibility to

enforce the laws, he must be able to protect the confidentiality of certain types

of documents and communications within the Executive Branch. If disclosure

of certain documents outside the Executive Branch would impair the President’s

ability to fulfill his constitutional duties or result in the impermissible involve­

ment of other branches in the enforcement of the law, then the President must

be able to claim some form of privilege to preserve his constitutional preroga­

115

tives. This “executive privilege” has been explicitly recognized by the Su­

preme Court, which has stated that the privilege is “fundamental to the opera­

tion of Government and inextricably rooted in the separation of powers under

the Constitution.” United S tates v. Nixon, 418 U.S. 683, 708 (1974). We

believe that it is beyond peradventure that the constitutionally mandated sepa­

ration of powers permits the President to prevent disclosure of certain Execu­

tive Branch documents under the doctrine of executive privilege and that the

ability to assert this privilege is fundamental to the President’s ability to carry

out his constitutionally prescribed duties.

The Supreme Court has suggested that in some areas the President’s execu­

tive privilege may be absolute and in some circumstances it is a qualified

privilege that may be overcome by a compelling interest of another branch.

U nited States v. Nixon, 418 U.S. at 713; see also Senate Select Comm, on

P residen tial Cam paign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en

banc). Nevertheless, the unanimous Supreme Court decision in Nixon clearly

stands for the proposition that there is a privilege, that it stems from the

separation of powers, and that it may be invoked (although perhaps overridden

by a court) whenever the President finds it necessary to maintain the confiden­

tiality of information within the Executive Branch in order to perform his

constitutionally assigned responsibilities.19

The scope of executive privilege includes several related areas in which

confidentiality within the Executive Branch is necessary for the effective

execution of the laws. First, as the Supreme Court has held, the privilege

protects deliberative communications between the President and his advisors.

The Court has identified the rationale for this aspect of the privilege as the valid

need for protection of communications between high government officials and

those who advise and assist them in the performance of their manifold duties;

the importance of this confidentiality is too plain to require further discussion.

Human experience teaches that those who expect public dissemination of their

remarks may well temper candor with a concern for appearances and for their

own interests to the detriment of the decisionmaking process. United States v.

Nixon, 418 U.S. at 705 (footnotes omitted).

Another category of Executive Branch material that is subject to a President’s

claim of privilege is material necessary “to protect military, diplomatic, or

sensitive national security secrets.” U nited States v. Nixon, 418 U.S. 683, 706

(1974). In Nixon, the Court stated:

As to those areas of Art. II duties the courts have traditionally

shown the utmost deference to Presidential responsibilities. In

C.& S. A ir Lines v. W aterman S.S. Corp., 333 U.S. 103, 111

19 Presidents have invoked the privilege throughout o ur history for a variety of reasons. See, e.g., “History

o f R efusals by Executive Branch to Provide Inform ation D em anded by C ongress,” 6 Op. O.L.C. 751 (1982);

M em orandum from John H arm on, A ssistant Attorney G eneral, O ffice o f Legal Counsel, to Robert Lipschutz,

C ounsel to the P resident (June 8, 1977); Position o f the Executive D epartm ent Regarding Investigative

R eports, 4 0 O p. A tt’y Gen. 45 (1941).

116

(1948), dealing with Presidential authority involving foreign

policy considerations, the Court said:

“The President, both as Commander-in-Chief and as the

Nation’s organ for foreign affairs, has available intelli­

gence services whose reports are not and ought not to be

published to the world. It would be intolerable that courts,

without the relevant information, should review and per­

haps nullify actions of the Executive taken on information

properly held secret.”

In United States v. Reynolds, 345 U.S. 1 (1953), dealing with a

claimant’s demand for evidence in a Tort Claims Act case

against the Government, the Court said:

“It may be possible to satisfy the court, from all the

circumstances of the case, that there is a reasonable dan­

ger that compulsion of the evidence will expose military

matters which, in the interest of national security, should

not be divulged. When this is the case, the occasion for the

privilege is appropriate, and the court should not jeopar­

dize the security which the privilege is meant to protect by

insisting upon an examination of the evidence, even by the

judge alone, in chambers.” Id. at 10.

No case of the Court, however, has extended this high degree of

deference to a President’s generalized interest in confidentiality.

Nowhere in the Constitution, as we have noted earlier, is there

any explicit reference to a privilege of confidentiality, yet to the

extent this interest relates to the effective discharge o f a

President’s powers, it is constitutionally based.

418 U.S. at 710-11.

An additional important application of executive privilege, which, as noted

earlier, relates centrally to the discharge of the President’s constitutional du­

ties, involves open law enforcement files. Since the early part of the 19th

century, Presidents have steadfastly protected the confidentiality and integrity

of investigative files from untimely, inappropriate, or uncontrollable access by

the other branches, particularly the legislature.20 The basis for this application

20 As explained by A ttorney General (later. Supreme Court Justice) Robert Jackson in A pril 1941:

D isclosure o f the reports could not do otherw ise than seriously prejudice law enforcem ent.

Counsel for a defendant o r prospective defendant, could have no greater help than to know how

m uch o r how little inform ation the G overnm ent has, and w hat w itnesses or sources o f inform a­

tion it can rely upon.

40 Op. A tt'y Gen. 45, 46 (1941). As sim ilarly expressed a few years later by Deputy A ssistant A ttorney

Genera] K a u p er

O ver a num ber o f years, a num ber o f reasons have been advanced for the traditional refusal o f

the Executive to supply C ongress with inform ation from open investigational files. M ost impor-

C ontinued

117

of the privilege is essentially the same as for all aspects of executive privilege;

the Executive’s ability to enforce the law would be seriously impaired, and the

impermissible involvement o f other branches in the execution and enforcement

of the law would be intolerably expanded, if the Executive were forced to

disclose sensitive information on case investigations and strategy from open

enforcement files.

IV. Tlhe ©unity off the Executive Branncli WItaeim aimExecutive Official

Has l e a Cited for Comtempt off Comgress (For Assenting

CUne IPresidennt’s Claim off Executive Privilege

A. Prosecutorial Discretion

The first specific question that is presented by the circumstances that gave

rise to this memorandum is whether the United States Attorney is required to

refer every contempt of Congress citation to a grand jury. This question raises

issues of statutory construction as well as the constitutional limits of prosecutorial

discretion. We deal first with the statutory questions.

As a preliminary matter, we note that § 194 does not on its face actually

purport to require the United States Attorney to proceed with the prosecution of

a person cited by a house of Congress for contempt; by its express terms the

statute discusses only referral to a grand jury. Even if a grand jury were to

return a true bill, the United States Attorney could refuse to sign the indictment

and thereby prevent the case from going forward. United States v. Cox, 342

F.2d 167 (5th Cir.) (en banc), cert, denied, 381 U.S. 935 (1965); In re Grand

Jury, January, 1969, 315 F. Supp. 662 (D. Md. 1970). See Hamilton &

Grabow, A Legislative Proposal fo r Resolving Executive Privilege Disputes

Precipitated by Congressional Subpoenas, 21 Harv. J. on Legis. 145, 155

(1984). Thus, as a matter of statutory interpretation, there is no doubt that the

contempt of Congress statute does not require a prosecution; the only question

is whether it requires referral to the grand jury.21

20 (. . . continued)

tant, the E xecutive can n o t effectively investigate if Congress is, in a sense, a partner in the

investigation. If a congressional com m ittee is fully apprised o f all details of an investigation as

the investigation proceeds, there is a substantial danger that congressional pressures will influ*

ence the course o f the investigation.

M em orandum fo r the D eputy Counsel to th e President from D eputy A ssistant Attorney General K auper re:

Subm ission o f O pen C ID Investigation F iles (Dec. 19, 1969). This significant constitutional privilege

provides a foundation fo r o ur discussion b elo w o f the penalties that C ongress may attach to the President’s

assertion o f the privilege in response to a congressional subpoena.

21 A lthough it is by no m eans certain as a m atter o f law, if the case w ere referred to a grand jury, the United

States A ttorney m ight be required to take certa in steps short o f signing the indictment, and the grand ju ry ’s

decision m ight w ell becom e public. In Cox, a majority o f the court (m ade up o f the three dissenting judges

and one con cu rrin g ju d g e) took the view th a t the U nited States A ttorney could be required to prepare an

indictm ent fo r use by the grand jury. In addition, the district court in In re Grand Jury , supra, held that even

though the U nited States A ttorney could not b e required to sign an indictm ent, in the circum stances o f that

c ase “the substance o f the c harges in the indictm ent should be disclosed, om itting certain portions as to which

Continued

118

1. Previous Department of Justice Positions Concerning Prosecutorial

Discretion Under the Contempt of Congress Statute

In the past, the Department of Justice has taken the position that if Congress

cited an executive officer for contempt because of an assertion of executive

privilege and “the Department determined to its satisfaction that the claim was

rightfully made, it would not, in the exercise of its prosecutorial discretion,

present the matter to a grand jury.” Testimony of Assistant Attorney General

(now Solicitor General) Rex Lee, Hearings on Representation o f Congress and

Congressional Interests in Court, Before the Subcomm. on Separation o f

Powers o f the Senate Committee on the Judiciary, 94th Cong., 2d Sess. 8

(1976).

This principle of prosecutorial discretion under the contempt of Congress

statute was followed by the Department in the cases of three officials of the

Port of New York Authority who were cited for contempt of Congress in 1960

for refusing to produce documents to the House Judiciary Committee. As a part

of an investigation of the Port Authority, which had been established by an

interstate compact approved by Congress, the Judiciary Committee subpoe­

naed a large number of documents concerning the Port Authority’s operations,

most of which the Port Authority declined to produce on the orders of the

governors of New York and New Jersey (the states within which the Port

Authority was located). Because of the failure to produce the documents, the

Committee recommended, and the House adopted, contempt resolutions against

three principal officials of the Port Authority.22 On August 23, 1960, these

resolutions were referred to the United States Attorney for prosecution. See

N .Y. Times, Aug. 24,1960, at 1. The United States Attorney never referred any

of these citations to the grand jury. On November 16, 1960, the Department of

Justice announced that it would proceed against the officials by information

21 ( . . . continued)

the C ourt, in the exercise o f its discretion, concludes that the public interest in disclosure is outw eighed by the

private prejudice to the persons involved, none o f whom are charged with any crime in the proposed

indictm ent." 315 F Supp. at 678-79. Under this analysis, if the contem pt citation were to reach a grand ju ry

and the grand jury w ere to vote a true bill, a court m ight be able to require the United States Attorney to

prepare an indictm ent and then might order the disclosure o f that indictm ent as voted by the grand jury. For

the reasons set out in o u r discussion o f prosecutorial discretion, the court could not, how ever, order the

United States Attorney to prosecute.

Because the contem pt o f C ongress statute does not require the U nited States Attorney to refer to a grand

jury a citation for contem pt o f Congress issued to an executive official who has asserted the President’s claim

of executive privilege, w e have not attem pted to determ ine definitively what additional steps, if any, the

United States A ttorney could be required to take if such a m atter were referred to a grand jury.

22 See 106 Cong. Rec. 17313 (1960) (citation against Austin J. Tobin, Executive Director o f the A uthority);

id. at 17316 (citation against S. Sloan Colt, Chairm an o f the Board); id. at 17319 (citation against Joseph G.

Carty, Secretary). The contem pt resolution in each case read as follows:

R esolved, T hat the Speaker o f the House o f Representatives certify the report o f the Com m ittee

on the Judiciary as to the contum acious conduct o f [name] in failing and refusing to furnish

certain docum ents in com pliance with a subpena duces tecum o f a duly constituted subcomm ittee

o f said com m ittee served upon him and as ordered by the subcom m ittee, together w ith all o f the

facts in connection therew ith, under seal o f the House o f R epresentatives, to the U nited States

attorney for the D istrict o f C olum bia, to the end that [name] may be proceeded against in the

m anner and form provided by law.

119

rather than indictment, and therefore would not present the citations to a grand

jury. See N.Y. Times, Nov. 17, 1960, at 1. On November 25, 1960, the

Department announced that it would file an information against only one of the

Port Authority officials, Executive Director Austin Tobin, and would not

prosecute the remaining two officials. See N.Y. Times, Nov. 26,1960, at 1. The

trial began in January 1961 and continued under the supervision of the new

Attorney General, Robert F. Kennedy, who never altered the decision not to

prosecute the two remaining officials, in spite of a congressional request to do

so. Ultimately Tobin’s conviction was reversed by the United States Court of

Appeals for the District of Columbia Circuit. Tobin v. United States, 306 F.2d

270 (D.C. Cir.), cert, denied, 371 U.S. 902 (1962).23

In the foregoing instance, the Department (under two administrations) exer­

cised its prosecutorial discretion not to refer contempt of Congress citations to

a grand jury, notwithstanding the seemingly mandatory phrasing of the stat­

ute.24 For the reasons set forth more fully below, we continue to adhere to the

conclusion that the Department retains prosecutorial discretion not to refer

contempt citations to a grand jury.

2. Judicial Opinions Interpreting the Language of § 194

Section 194 imposes similarly worded, nominally mandatory, referral obli­

gations on both the Speaker of the House (or the President of the Senate) and

the United States Attorney once a contempt of Congress resolution has been

adopted by the House or Senate:

it shall be the duty o f the said President of the Senate or the

Speaker of the House as the case may be, to certify, and he shall

so certify, the statement of facts aforesaid under the seal of the

Senate or House, as the case may be, to the appropriate United

States attorney, whose duty it shall be to bring the matter before

the grand jury for its action.

(Emphasis added.)

Although the language, “it shall be the duty o f ’ and “whose duty it shall be,”

might suggest a nondiscretionary obligation, the United States Court of Ap­

peals for the District of Columbia Circuit has expressly held, at least with

respect to the Speaker of the House, that the duty is not mandatory, and that, in

fact, the Speaker has an obligation under the law, at least in some cases, to

exercise his discretion in determining whether to refer a contempt citation.

Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966). In Wilson, the court

reversed a conviction for contempt of Congress on the ground that the Speaker

had assumed that the statute did not permit any exercise of discretion by him

23 T he C ourt o f A ppeals ruled lhat the docum ents requested by the C om m ittee w ent beyond the investiga-

tive authority delegated to the Committee by the House.

24 W e know o f at least tw o other individuals who w ere cited for contem pt of C ongress, but w hose cases

w ere not referred to a grand ju ry by the D epartm ent o f Justice. See D epartm ent o f Justice File No. 5 1 -51-484

(1956). The file was closed because th e D epartm ent concluded that there was an insufficient basis for

prosecution.

120

and he had therefore automatically referred a contempt citation to the United

States Attorney while Congress was not in session. The court based its conclu­

sion that the Speaker was required to exercise his discretion on the longstanding

practice of both the House and Senate and on congressional debates on con­

tempt citations in which the houses had recognized their own discretion not to

approve a contempt resolution. The court concluded that because full House

approval of a contempt citation is necessary when Congress was in session, the

Speaker is required to exercise some discretion when the House is not in

session. 369 F.2d at 203-04.

Although the reasons underlying the court’s decision not to impose a manda­

tory duty on the Speaker in Wilson do not necessarily require the same conclu­

sion with respect to the United States Attorney, the decision at least supports

the proposition that the seemingly mandatory language of § 194 need not be

construed as divesting either the Speaker or the United States Attorney of all

discretion.25

In several cases, the United States Court of Appeals for the District of

Columbia Circuit has at least assumed that the United States Attorney retains

discretion not to refer a contempt of Congress citation to a grand jury. In these

cases, the court refused to entertain challenges to congressional subpoenas, at

least in part on the ground that the prospective witnesses woiild have adequate

subsequent opportunities to challenge a committee’s contempt finding, includ­

ing the opportunity to persuade the United States Attorney not to refer the case

to a grand jury. For example, in Ansara v. Eastland, 442 F.2d 751 (D.C. Cir.

1971), the court declined to entertain a suit to quash a congressional subpoena

on the ground that it would be inappropriate, as a matter of the exercise of its

equitable power, to interfere with an ongoing congressional process. The court

stated that protections were available “within the legislative branch or else­

where,” and then in a footnote indicated that these protections resided “perhaps

in the Executive Branch which may decide not to present the matter to the

grand ju ry (as occurred in the case of the officials of the New York Port

Authority); or perhaps in the Grand Jury which may decide not to return a true

bill.” 442 F.2d at 754 n.6 (emphasis added).26 See also Sanders v. McClellan,

23 In this respect, we believe that Wilson im plicitly disapproved the dictum o f Ex parte Frankfeld, 32 F.

Supp. 91S (D.D.C. 1940), in which the district court stated:

It seems quite apparent that C ongress intended to leave no measure o f discretion to either the

S peaker o f the H ouse o r the President o f the Senate, under such circum stances, but m ade the

certification o f facts to the d istn ct attorney a m andatory proceeding, and it left no discretion with

the district attorney as to what he should do about it. He is required, under the language o f the

statute, to subm it the facts to the grand jury.

Id at 916. The Frankfeld court expressly linked the responsibilities o f the Speaker and the U nited States

Attorney Wilson ruled that the Speaker’s duty is discretionary, at least when the House is not in session.

Therefore, since the Speaker’s duty is in pari materia with the duty o f the United States A ttorney, the law, at

least in the D istrict o f C olum bia C ircuit, seems to be that both duties should be viewed as containing some

elem ents o f discretion.

26 Ansara v. Eastland was cited with approval three times by Judge Smith in United States v. House o f

Representatives , 556 F. Supp. 150, 152-53 (D.D.C 1983). Thus, although the opinion m ade a passing

reference to the m andatory nature o f referral. Judge Smith m ust have recognized that the U nited States

A ttorney retained prosecutorial discretion.

121

463 F.2d 894 (D.C. Cir. 1972). In United States Servicemen’s Fund v. Eastland,

488 F.2d 1252 (D.C. Cir. 1973), rev’d o n other grounds, 421 U.S. 491 (1974),

the court agreed to review a challenge to a congressional subpoena brought by

a third party, and it distinguished Ansara and McClellan on the ground that,

because the congressional subpoena was issued to a third party, the plaintiffs

had no alternative means to vindicate their rights. 488 F.2d at 1260. Among the

alternative means the court cited was the right to “seek to convince the

executive (the attorney general’s representative) not to prosecute.” Id.

These cases emphasize the particular significance of prosecutorial discretion

in the context of the contempt of Congress statute. In general, with respect to

any criminal allegation, prosecutorial discretion plays an important role in

protecting the rights of the accused by providing an additional level of review

with respect to the factual and legal sufficiency of the charges. This role is even

more important when dealing with the contempt of Congress statute because,

as the above cases demonstrate, witnesses generally have no opportunity to

challenge congressional subpoenas directly. Thus, as the cases indicate,

prosecutorial discretion serves a vital purpose in protecting the rights of the

accused in contempt cases by mitigating the otherwise stem consequences of

asserting a right not to respond to a congressional subpoena.

Thus, the practice of the Congress and the available judicial authority

support the proposition that the seemingly mandatory duties imposed on con­

gressional officials by 2 U.S.C. § 194 are and were intended to be discretion­

ary. The practice of the Executive Branch and the court decisions reflect a

similarly discretionary role under the statute for the United States Attorney.

Because, as the balance of this memorandum reveals, these interpretations are

consistent with other common-law principles and avoid conclusions that would

be at odds with the separation of powers, we believe that a correct reading of 2

U.S.C. § 194 requires recognition of the prosecutor’s discretion with respect to

referral to a grand jury.

3. Common-Law Prosecutorial Discretion

In addition to the court decisions that suggest that the United States Attorney

may decide not to refer a contempt citation to a grand jury, the common-law

doctrine of prosecutorial discretion weighs heavily against and, in our opinion,

precludes an interpretation that the statute requires automatic referral. Because

of the wide scope of a prosecutor’s discretion in determining which cases to

bring, courts, as a matter of law, do not ordinarily interpret a statute to limit that

discretion unless the intent to do so is clearly and unequivocally stated. The

general rule is that “the Executive Branch has exclusive authority and absolute

discretion to decide whether to prosecute a case.” United States v. Nixon, 418

U.S. 683, 693 (1974). See also Confiscation Cases, 74 U.S. (7 Wall.) 454

(1869). The Attorney General and his subordinates, including the United States

Attorneys, have the authority to exercise this discretion reserved to the Execu­

tive. United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); The Gray

122

Jacket, 72 U.S. (5 Wall.) 370 (1866). In general, courts have agreed with the

view of Judge (now Chief Justice) Burger:

Few subjects are less adapted to judicial review than the exer­

cise by the Executive of his discretion in deciding when and

whether to institute criminal proceedings, or what precise charge

shall be made, or whether to dismiss a proceeding once brought.

Newman v. United States, 382 F.2d 479,480 (D.C. Cir. 1967). See also United

States v. Batchelder, 442 U.S. 114 (1979); Bordenkircher v. Hayes, 434 U.S.

357 (1978).

Courts have applied this general principle of prosecutorial discretion in

refusing to interfere with a prosecutor’s decision not to initiate a case, despite

the specific language of 28 U.S.C. § 547, which states in part that “each United

States Attorney, within his district, sh a ll. . . prosecute fo r all offenses against

the United States.” (Emphasis added.) For example, in Powell v. Katzenbach,

359 F.2d 234 (D.C. Cir. 1965), cert, denied, 384 U.S. 906 (1966), the court

denied a mandamus petition that sought to force the Attorney General to

prosecute a national bank. The court ruled: “It is well settled that the question

of whether and when prosecution is to be instituted is within the discretion of

the Attorney General. Mandamus will not lie to control the exercise of this

discretion.” Id. at 234. See also United States v. Brown, 481 F.2d 1035 (8th Cir.

1973); Bass Anglers Sportsman’s Society v. Scholze Tannery, Inc., 329 F.

Supp. 339 (E.D. Tenn. 1971); Pugach v. Klein, 193 F. Supp. 630 (S.D.N.Y.

1961); United States v. Brokaw, 60 F. Supp. 100 (S.D. 111. 1945).

Courts exhibit the same deference to prosecutorial discretion even when the

specific statute involved uses words that would otherwise have mandatory,

nondiscretionary implications. For example, 42 U.S.C. § 1987 states that United

States Attorneys are “authorized and required . . . to initiate prosecutions

against all persons violating any of the provisions of [the federal criminal civil

rights statutes].” (Emphasis added.) Although a number of cases have been

initiated to force a United States Attorney to bring civil rights actions on the

ground that this statute imposes a nondiscretionary duty to prosecute, see Note,

Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L.J. 1297 (1965),

the courts uniformly have rejected the contention that the statute limits a

prosecutor’s normal discretion to decide not to bring a particular case. For

example, in Inmates o f Attica Correctional Facility v. Rockefeller, A l l F.2d

375 (2d Cir. 1973), the court ruled that the “mandatory nature of the word

‘required’ as it appears in § 1987 is insufficient to evince a broad Congres­

sional purpose to bar the exercise of executive discretion in the prosecution of

federal civil rights crimes.” 477 F.2d at 381. The court noted that although

similar mandatory language was contained in other statutes, “[s]uch language

has never been thought to preclude the exercise of prosecutorial discretion.” Id.

Accord Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970); Moses v. Kennedy, 219

F. Supp. 762 (D.D.C. 1963), a f f d sub nom. Moses v. Katzenbach, 342 F.2d 931

(D.C. Cir. 1965). The language employed in 2 U.S.C. § 194 is neither stronger

123

nor more clearly mandatory than the language of § 1987, which the courts have

decided is insufficient to limit the normal prosecutorial discretion.

In fact, there is nothing to distinguish the contempt of Congress statute from

any other statute where the prosecutor retains discretion with respect to who

shall be prosecuted. Since the early part of the 19th century, it has been

recognized that offenses against Congress that are punishable by Congress

through its inherent contempt power may also be violations of the criminal

laws and, as such, offenses against the United States, with respect to which the

normal rules governing criminal prosecutions apply. See 2 Op. Att’y Gen. 655

(1834) (concluding that an assault against a congressman could be prosecuted

consistent with the Double Jeopardy Clause under the criminal laws, even if the

defendant had already been punished by Congress, because the act created two

separate offenses, one against Congress and one against the United States).

This principle was adopted by the Supreme Court when it upheld the constitu­

tionality of the contempt of Congress statute. In re Chapman, 166 U.S. 661

(1897). In Chapman, the Court held that the contempt statute did not violate the

Double Jeopardy Clause even though a defendant could be punished through

Congress’ inherent contempt power as well as under the contempt statute. The

Court concluded that a refusal to testify involved two separate offenses, one

against Congress and one against the United States, and that

it is quite clear that the contumacious witness is not subjected to

jeopardy twice for the same offence, since the same act may be

an offence against one jurisdiction and also an offence against

another; and indictable statutory offenses may be punished as

such, while the offenders may likewise be subjected to punish­

ment for the same acts as contempts, the two being diverso

intuitu and capable of standing together.

166 U.S. at 672.

The import of the Court’s conclusion in this context is clear. Congress’

inherent contempt power is the remedy for the offense against Congress, and

that remedy remains within Congress’ control. The crime of contempt of

Congress, like any other federal statutory crime, is an offense against the

United States that should be prosecuted as is any other crime. This criminal

offense against the United States properly remains subject to the prosecutorial

control of the Executive Branch. Therefore, because the contempt statute

should be treated as are other federal criminal statutes, we do not believe that

§194 should be read to limit the common law prosecutorial discretion of the

United States Attorney. There is nothing in the legislative history of the

contempt of Congress statute that is inconsistent with this conclusion. See 42

Cong. Globe, 34th Cong., 3d Sess. 4030-44 (1857).

4. Constitutional Considerations

Our construction of § 194 is reinforced by the need to avoid the constitu­

tional problems that would result if § 194 were read to require referral to a

124

grand jury. As discussed above, the constitutionally prescribed separation of

powers requires that the Executive retain discretion with respect to whom it

will prosecute for violations of the law. Although most cases expressly avoid

this constitutional question by construing statutes not to limit prosecutorial

discretion, the cases that do discuss the subject make it clear that common law

prosecutorial discretion is strongly reinforced by the constitutional separation

of powers. See, e.g.. Inmates o f Attica Correctional Facility v. Rockefeller, A l l

F.2d 375 (2d Cir. 1973); Powell v. Katzenbach, 359 F.2d 234 (D.C. Cir. 1965),

cert, denied, 384 U.S. 906 (1966).

A number of courts have expressly relied upon the constitutional separation

of powers in refusing to force a United States Attorney to proceed with a

prosecution. For example, in Pugach v. Klein, 193 F. Supp. 630 (S.D.N.Y.

1961), the court declined to order the United States Attorney to commence a

prosecution for violation of federal wiretap laws on the ground that it was

clear beyond question that it is not the business of the Courts to

tell the United States Attorney to perform what they conceive to

be his duties.

Article II, § 3 of the Constitution, provides that “[the President]

shall take Care that the Laws [shall] be faithfully executed.” The

prerogative of enforcing the criminal law was vested by the

Constitution, therefore, not in the Courts, nor in private citizens,

but squarely in the executive arm of the government.

193 F. Supp. at 634. See also Goldberg v. Hoffman, 225 F.2d 463, 464-65 (7th

Cir. 1955).27

The Fifth Circuit, sitting en banc, has underscored the constitutional founda­

tions of prosecutorial discretion. United States v. Cox, 342 F.2d 167 (5th Cir.)

(en banc), cert, denied, 381 U.S. 935 (1965). In Cox, the court overturned a

district court’s order that a United States Attorney prepare and sign an indict­

ment that a grand jury had voted to return. The plurality opinion stated:

The executive power is vested in the President of the United

States, who is required to take care that the laws be faithfully

executed. The Attorney General is the hand of the President in

taking care that the laws of the United States in legal proceed-

27 These conclusions are not inconsistent w ith Rule 48(a) o f the Federal Rules o f Criminal Procedure, which

requires leave o f court before dism issal o f a crim inal action. This provision is intended prim arily to protect

defendants against repeated prosecutions fo r the sam e offense, and a co u rt's pow er to deny leave under this

provision is extrem ely lim ited. See Rinaldi v. United States , 434 U.S. 22 (1977); United States v. Hamm, 659

F.2d 624 (5th Cir. 1981); United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973). The U nited States Court

o f A ppeals for the Fifth C ircuit has stated that the constitutionality o f Rule 48(a) is dependent upon the

prosecutor’s unfettered ability to decide not to com m ence a case in the first place. United States v. Cox, 342

F.2d 167 (5th C ir.) (en banc), cert, denied, 381 U.S. 935 (1965). M oreover, Judge W einfeld has stated that

even if a court denied leave to dism iss an indictm ent, a court “in that circum stance would be w ithout pow er to

issue a m andamus o r other order to com pel prosecution o f the indictm ent, since such a direction w ould invade

the traditional separation o f powers doctrine.” United States v. Greater Blouse, Skirt & Neckwear Contrac­

tors A ss’n, 228 F. Supp. 483 (S.D.N.Y. 1964).

125

ings and in the prosecution of offenses, be faithfully executed.

The role of the grand jury is restricted to a finding as to whether

or not 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. Al­

though 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. It follows, as an

incident of the constitutional separation of powers, that courts

are not to interfere with the free exercise of the discretionary

powers of the attorneys of the United States in their control over

criminal prosecutions.

342 F.2d at 171 (footnotes omitted). See also id. at 182-83 (Brown, J. concur­

ring); id. at 190-93 (Wisdom, J., concurring). Even the three dissenting judges

in Cox conceded that, although they believed that the United States Attorney

could be required to sign the indictment, “once the indictment is returned, the

Attorney General or the United States Attorney can refuse to go forward.” Id. at

179. See United States v. Nixon, 418 U.S. 683, 693 (1974) (“the Executive

Branch has exclusive authority and absolute discretion to decide whether to

prosecute a case”) (citing, inter alia, Cox).

Although prosecutorial discretion may be regulated to a certain extent by

Congress and in some instances by the Constitution, the decision not to pros­

ecute an individual may not be controlled because it is fundamental to the

Executive’s prerogative. For example, the individual prosecutorial decision is

distinguishable from instances in which courts have reviewed the legality of

general Executive Branch policies. See Nader v. Saxbe, 497 F.2d 676 (D.C.

Cir. 1974); Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) (en banc)

(per curiam); NAACP v. Levi, 418 F. Supp. 1109 (D.D.C. 1976). In these cases

the courts accepted jurisdiction to rule whether an entire enforcement program

was being implemented based on an improper reading of the law. The cases

expressly recognize, however, both that a decision to prosecute in an individual

case involves many factors other than merely probable cause, and that “the

balancing of these permissible factors in individual cases is an executive, rather

than a judicial function which follows from the need to keep the courts as

neutral arbiters in the criminal law generally . . . and from Art. II, § 3 of the

Constitution, which charges the President to ‘take Care that the Laws be

faithfully executed.’” Nader v. Saxbe, 497 F.2d at 679 n.18. Similarly distin­

guishable are the cases concerning the constitutional limits on selective pros­

ecution, which hold that prosecutorial discretion may not be exercised on the

basis of impermissible factors such as race, religion, or the exercise of free

126

speech. See, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 249 (1980); Oyler v.

Boles, 368 U.S. 448 (1962).

If the congressional contempt statute were interpreted to divest the United

States Attorney of discretion, then the statute would create two distinct prob­

lems with respect to the separation of powers. “The doctrine of separated

powers is implemented by a number of constitutional provisions, some of

which entrust certain jobs exclusively to certain branches while others say that

a given task is not to be performed by a given branch.” United States v. Brown,

381 U.S. 437, 443 (1965). Divesting the United States Attorney of discretion

would run afoul of both aspects of the separation of powers by stripping the

Executive of its proper constitutional authority and by vesting improper power

in Congress.

First, as the cases cited above demonstrate, Congress may not deprive the

Executive of its prosecutorial discretion. In areas where the President has

specific executive authority, Congress may establish standards for the exercise

of that authority, but it may not remove all Presidential authority. For example,

Congress may require the President to make appointments to certain executive

positions and may define the qualifications for those positions, but it may not

select the particular individuals whom the President must appoint to those

positions. See Buckley v. Valeo, 424 U.S. 1 (1976). Similarly, Congress may

adopt the criminal provisions for which individuals may be prosecuted and

impose certain qualifications on how the Executive should select individuals for

prosecution, but it may not identify the particular individuals who must be pros­

ecuted. The courts have declared that the ultimate decision with respect to prosecu­

tion of individuals must remain an executive function under the Constitution.

Second, if Congress could specify an individual to be prosecuted, it would be

exercising powers that the Framers intended not be vested in the legislature. A

legislative effort to require prosecution of a specific individual has many of the

attributes of a bill of attainder and would seem to be inconsistent with many of

the policies upon which the Constitution’s prohibition against bills of attainder

was based. See United States v. Brown, 381 U.S. 437 (1965); United States v.

Lovett, 328 U.S. 303 (1946). The constitutional role of Congress is to adopt

general legislation that will be applied and implemented by the Executive

Branch. “It is the peculiar province of the legislature to prescribe general rules

for the government of society; the application of those rules to individuals in

society would seem to be the duty of other departments.” Fletcher v. Peck, 10

U.S. (6 Cranch) 87, 136 (1810); see United States v. Brown, 381 U.S. 437,446

(1965). The Framers intended that Congress not be involved in such prosecutorial

decisions or in questions regarding the criminal liability of specific individuals.

As the Supreme Court stated in Lovett:

Those who wrote our Constitution well knew the danger

inherent in special legislative acts which take away the life,

liberty, or property of particular named persons, because the legisla­

ture thinks them guilty of conduct which deserves punishment.

127

328 U.S. at 317. Justice Powell has echoed this concern: “The Framers were

well acquainted with the danger of subjecting the determination of the rights of

one person to the ‘tyranny o f shifting majorities.’” INS v. Chadha, 462 U.S.

917, 961 (1983) (Powell, J. concurring). As we have shown above, courts may

not require prosecution of specific individuals, even though the Judicial Branch

is expressly assigned the role of adjudicating individual guilt. A fortiori, the

Legislative Branch, which is assigned the role of passing laws of general

applicability and specifically excluded from questions of individual guilt or

innocence, may not decide on an individual basis who will be prosecuted.

These constitutional principles of prosecutorial discretion apply even though

the issue here is referral to the grand jury and not commencement of a criminal

case after indictment. A referral to a grand jury commences the criminal

prosecution process. That step is as much a part of the function of executing the

laws as is the decision to sign an indictment. The cases expressly recognize that

prosecutorial discretion applies at any stage of the investigative process, even

to the decision whether to begin an investigation at all. See Inmates o f Attica

Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973); Smith v.

United States, 375 F.2d 243, 248 (5th Cir.), cert, denied, 389 U.S. 841 (1967).

In the latter case, the court emphasized that prosecutorial discretion was

protected “no matter whether these decisions are made during the investigation

or prosecution of offenses.” 375 F.2d at 248. Moreover, if the Executive has

already determined that, as a matter of law, no violation of the law has

occurred, it would serve no practical purpose to refer a case to the grand jury.

Given the importance of these constitutional principles and the fundamental

need to preserve the Executive’s power to enforce the laws, we see no reason

for distinguishing between the decision to prosecute and the decision to refer to

the grand jury in this case.28

For all of the above reasons, as a matter of statutory construction strongly

reinforced by constitutional separation of powers principles, we believe that

the United States Attorney and the Attorney General, to whom the United

States Attorney is responsible, retain their discretion not to refer a contempt of

Congress citation to a grand jury. It follows, of course, that we believe that

even if the provision of a statute requiring reference to a grand jury were to be

upheld, the balance of the prosecutorial process could not be mandated.

28 A statute giving one house of C ongress the pow er to direct an Executive Branch official to take any

p articu lar action also raises a separate issu e under the Suprem e C ourt’s decision in INS v. Chadha, 462 U.S.

917 (1983). U nder the current contempt statute, the role o f the House o r Senate in sim ply referring a m atter to

the U nited States A ttorney for possible prosecution raises no substantial issue under Chadha because the

H ouse o r S enate is acting, in a sense, as a private citizen w ould — by reporting a possible violation o f federal

crim inal law . Thus, Chadha's proscription o f actions by one house (or two houses or a congressional

com m ittee) that are designed to have “th e purpose and effe c t o f altering the legal rights, duties, and relations

o f persons . . . outside the Legislative B ranch” would be inapplicable. Id at 952. If the contem pt statute

precluded prosecutorial discretion, how ever, one house w ould be em pow ered to im pose on the U nited States

A ttorney an affirm ative legal duty to in itia te a prosecution and to take certain steps in that prosecution. To

em pow er one house o f Congress in th a t m anner would appear to be contrary to the clear language and

rationale o f Chadha. This is not, of co u rse, to say that C o n g ress’ attem pt to impose such an obligation on the

U nited States A ttorney by plenary legislation in a specific case w ould be constitutional; it is to say that a

permanent mechanism to be triggered by the vote o f one house raises a significant additional constitutional concern.

128

B. Whether the Criminal Contempt o f Congress Statute Applies to an

Executive Official Who Asserts, On Direct Orders o f the President,

the President’s Claim o f Executive Privilege

We next consider, aside from the issue of prosecutorial discretion, whether

the criminal contempt of Congress statute is intended to apply, or constitution­

ally could be applied, to Presidential claims of executive privilege.

1. Previous Department of Justice Interpretations of the Contempt of

Congress Statute

The Department of Justice has previously taken the position that the criminal

contempt of Congress statute does not apply to executive officials who assert

claims of executive privilege at the direction of the President. In 1956, Deputy

Attorney General (subsequently Attorney General) William P. Rogers took this

position before a congressional subcommittee investigating the availability of

information from federal departments and agencies. In a lengthy memorandum

of law, Deputy Attorney General Rogers set forth the historical basis of

executive privilege and concluded that in the context of Presidential assertions

of the privilege, the contempt of Congress statute was “inapplicable to the

executive departments.” See Hearings Before a Subcommittee o f the House

Committee on Government Operations, 84th Cong., 2d Sess. 2933 (1956).29

We are not aware of any subsequent Department position that reverses or

weakens this conclusion, and we have found no earlier Department position to

the contrary.

We believe that the Department’s long-standing position that the contempt

of Congress statute does not apply to executive officials who assert Presidential

claims of executive privilege is sound, and we concur with it. Our conclusion is

based upon the following factors: (1) the legislative history of the contempt of

Congress statute demonstrates that it was not intended to apply to Presidential

assertions of executive privilege; and (2) if the statute were construed to apply

to Presidential assertions of executive privilege, it would so inhibit the President’s

ability to make such claims as to violate the separation of powers.

2. The Legislative History of the Contempt of Congress Statute

Neither the legislative history nor the historical implementation of the con­

tempt statute supports the proposition that Congress intended the statute to

apply to executive officials who carry out a Presidential assertion of executive

privilege. The criminal contempt statute was originally enacted in 1857 during

proceedings in the House of Representatives to consider a contempt of Con­

gress citation against a New York Times correspondent who had refused to

29 The m emorandum cited, inter alia, a 1909 Senate debate over the issue of executive privilege in which

Senator D olliver questioned “where Congress gets authority either out o f the C onstitution or the laws o f the

United States to order an executive departm ent about like a servant.” 43 Cong. Rec. 3732 (1909) O ther

historical exam ples cited by the report are discussed below.

129

answer questions put to him by a select committee appointed by the House to

investigate charges of bribery of certain Representatives. As a result of the

committee’s unavailing efforts to obtain the reporter’s testimony, the commit­

tee chairman introduced a bill designed “more effectually to enforce the

attendance of witnesses on the summons of either House of Congress, and to

compel them to deliver testimony.” 42 Cong. Globe 404 (1857). The bill was

supported as a necessary tool in the House’s efforts to investigate the allega­

tions of bribery. See id. at 405 (remarks of the Speaker), 426 (remarks of Sen.

Toombs), 421 (remarks of Rep. Davis), 445 (remarks of Sen. Brown). The bill

was rushed through Congress in less than a week in order to permit the House

to bring greater pressure on the reporter to reveal the alleged source of the

congressional corruption. That the bill was sponsored by the select committee,

and not the Judiciary Committee, further demonstrates that the bill was not the

result of a general consideration of Congress’ contempt power, but was enacted

as an expedient to aid a specific investigation. Thus, the circumstances of the

bill’s passage certainly do not affirmatively suggest that Congress anticipated

application of the statute to instances in which the President asserted a claim of

executive privilege.

In fact, the sponsor of the bill disclaimed any such far-reaching implications.

Representative Dunn asked the sponsor, Representative Orr, what impact the

proposed bill would have on diplomatic secrets, one of the principal areas in

which the President had historically asserted a privilege of confidentiality.

Representative Dunn stated that use of the contempt statute by Congress to

force disclosure of such material “might be productive of great mischief, and in

time of war of absolute ruin o f the country.” 42 Cong. Globe 431 (remarks of

Rep. Dunn). Representative Orr replied, “I can hardly conceive such a case”

and emphasized that the bill should not be attacked “by putting instances of the

extremest cases” because the “object which this committee had in view was,

where there was corruption in either House of Congress, to reach it.” Id. at 431

(remarks of Rep. Orr). The implication is that Congress did not intend the bill

to apply to Presidential assertions of privilege.30

30 The legislative history contains one reference to the application o f the statute against executive officials.

D uring the flo o r debates, Representative M arshall attacked the bill by claim ing that it “proposes to punish

equally the C abinet o fficer and the culprit who may have insulted the dignity o f this House by an attem pt to

corrup t a R epresentative o f the people.” 4 2 Cong. G lobe at 429. This statem ent does not, how ever, suggest

that the statute w as intended to apply to Presidential assertions o f executive privilege. Indeed, virtually all

previous assertions o f executive privilege against C ongress had been made by the President himself, and

C ongress expressed no intent to utilize th e crim inal contem pt provisions against the President. Representative

M arsh all’s statem ent, therefore, simply le n d s support to the proposition, with which we agree, that there are

c ertain circum stances in w hich the congressional contem pt statute m ight be utilized against an executive

official, such as instances in which an executive official, acting on his own, engaged in disruptive and

contum acious conduct d u ring a congressional hearing, o r in which an executive official, acting on his own,

com m itted an offense. See Marshall v. Gordon, 243 U.S. 521 (1917). As the rem ainder o f Representative

M arsh all’s rem arks dem onstrate, the principal force driving the bill was C ongress’ desire to obtain an

expeditious m ethod fo r investigating q uestions regarding the integrity o f Congress and not to provide

C ongress w ith a statute requiring the P resident to prosecute crim inally those who had asserted the P resident’s

c onstitu tio n ally based claim o f executive privilege. W e have found no evidence in the legislative history that

supports an intention to apply the proposed statute in such a context.

130

In the years preceding the adoption of the statute, the President had, on a

number of occasions, withheld documents from Congress under a claim of

executive privilege, arid many of these instances had been hotly contested in

the public arena, and at least five of these instances occurred within the decade

immediately preceding the enactment of the congressional contempt statute.

See supra note 19 (collecting authorities). In spite of these highly visible

battles over the subject of executive privilege, we have located no indication in

the legislative history of the criminal contempt statute that Congress intended

the statute to provide a remedy for refusals to produce documents pursuant to a

Presidential claim of executive privilege.

The natural inference to be drawn from this vacuum in the legislative history

is reinforced by Congress’ failure, as far as we know, ever to utilize its inherent

power of arrest to imprison Executive Branch officials for contempt of Con­

gress for asserting claims of executive privilege, even though Congress had

previously asserted and exercised its clearly recognized right to do so with

respect to other instances of contempt by private citizens. See Anderson v.

Dunn, 19 U.S. (6 Wheat.) 204 (1821); Ex Parte Nugent, 18 F. Cas. 471

(C.C.D.C. 1848). The absence of any congressional discussion of the use of the

contempt power against Presidential claims of executive privilege and Con­

gress’ previous failure ever to attempt to use its inherent contempt power in such

cases, strongly suggest that the statute was not intended to apply to such assertions.

This conclusion is supported by the subsequent history of the congressional

contempt statute. Since enactment of the statute in 1857, there have been

numerous instances in which the President has withheld documents from

Congress under a claim of executive privilege. Despite the fact that many of

these disputes were extraordinarily controversial, until the citation of the EPA

Administrator in December 1982, 125 years after the contempt statute was

enacted, neither house of Congress had ever voted to utilize the contempt

statute against a Presidential assertion of executive privilege. In fact, during

congressional debates over Presidential refusals to produce documents to Con­

gress, there have been express acknowledgements by members of Congress

that Congress had no recourse against the Executive if the President asserted

executive privilege. In 1886, the Senate engaged in a prolonged debate over

President Cleveland’s order to his Attorney General not to produce to Congress

documents concerning the dismissal of a United States Attorney. The debate

was intense, controversial, and memorable; 23 years after the debate a Senator

termed it the “most remarkable discussion which was ever had upon this

question [of the President’s right to withhold documents from Congress].” 43

Cong. Rec. 841 (1909) (remarks of Sen. Bacon). During this debate, even

Senators who insisted upon the Senate’s right to receive the documents recog­

nized that if the President ordered them not to be produced, “there is no

remedy.” 17 Cong. Rec. 2800 (1886) (remarks of Sen. Logan); see also id. at

2737 (1886) (remarks of Sen. Voorhees).31

31 The only remedy then recognized by the Senators was the ultim ate sanction o f im peachm ent. See 17

C ontinued

131

Congress’ failure to resort to the contempt statute during any of the multi­

tude of robust conflicts over executive privilege during the previous century

and one quarter and Congress’ own explicit recognition that it was without a

remedy should the President order the withholding of documents, strongly

suggest that Congress never understood the statute to apply to an executive

official who asserted the President’s claim of executive privilege.32

3. Prudential Reasons for Construing the Contempt Statute Not To Apply

to Presidential Assertions of Privilege

Courts traditionally construe statutes in order to avoid serious doubts about a

statute’s constitutionality. Califano v. Yamasaki, 442 U.S. 682, 693 (1979);

Crowell v. Benson, 285 U.S. 22, 62 (1932). As stated by the United States

Court of Appeals for the District of Columbia Circuit, “when one interpretation

of a statute would create a substantial doubt as to the statute’s constitutional

validity, the courts will avoid that interpretation absent a ‘clear statement’ of

contrary legislative intent.” United States v. Brown, 483 F.2d 1314,1317 (D.C.

Cir. 1973) (quoting United States v. Thompson, 452 F.2d 1333,1337 (D.C. Cir.

1971), cert, denied, 405 U.S. 998 (1972)).

When a possible conflict with the President’s constitutional prerogatives is

involved, the courts are even more careful to construe statutes to avoid a

constitutional confrontation. A highly significant example may be found in the

procedural history and holding of United States v. Nixon, 418 U.S. 683 (1974),

in which the Court construed the limitation in 28 U.S.C. § 1291 (that appeals be

taken only from “final” decisions of a district court) in order to permit the

President to appeal an adverse ruling on his claim of executive privilege

without having to place himself in contempt of court. Although the plain

language of that statute seemed to preclude an appeal of a lower court’s

31 ( . . . continued)

C ong. Rec. 2737, 2800 (1886). As we n o te below, a m uch more effective and less controversial remedy is

available — a civil suit to enforce the subpoena — w hich would perm it Congress to acquire the disputed

records by ju d ic ia l order. See also Senate Select Committee on Presidential Campaign Practices v. Nixon ,

498 F.2d 725 (D .C. C ir. 1974) (en banc).

32 C o n g ress’ practices w ith respect to th e contempt statute and the absence o f any previous application o f

the statute to an Executive Branch o fficial in these circum stances are highly probative of the meaning and

applicability o f the statute. In general, th e Supreme C ourt has exam ined historical practice to determ ine the

scope o f C o n g ress’ pow ers. For exam ple, in determ ining the scope o f C ongress’ pow er to call and examine

w itnesses, the C ourt looked to the h istorical experience w ith respect to investigations and concluded:

w hen [C ongress’] practice in the m a tte r is appraised according to the circum stances in which it

was begun and to those in which it has been continued, it falls nothing short of a practical

construction, long continued, o f the constitutional provisions respecting their pow ers; and

therefore should be taken as fixing the meaning o f those provisions, if otherw ise doubtful.

McGrain v. Daugherty , 273 U.S. 135, 174 (1927); see also Fairbank v. United States , 181 U.S. 283, 308

(1901). M oreover, the C o u rt traditionally gives great w eight to a contem poraneous construction o f a statute

by the agency charged with its execution. See Power Reactor Development Co. v. Electricians, 367 U.S. 396,408

(1961); Unemployment Compensation Com m ’n v. Aragon, 329 U S. 143,153 (1946). In this instance, Congress is

responsible for taking the first step in implementing the contem pt statute. Therefore, Congress’ previous interpreta­

tions and past uses o f the statute are analogous to the contemporaneous construction o f the agency charged with

im plementation o f the statute, and are o f significance in determining the meaning o f the statute.

132

interlocutory ruling on an evidentiary matter, the Court construed the statute to

permit an immediate appeal, without going through the otherwise required

contempt proceeding:

The traditional contempt avenue to immediate appeal is pecu­

liarly inappropriate due to the unique setting in which the ques­

tion arises. To require a President of the United States to place

himself in the posture of disobeying an order of a court merely

to trigger the procedural mechanism of the ruling would be

unseemly, and would present an unnecessary occasion for con­

stitutional confrontation between two branches of the government.

418 U.S. at 691-92.

Congress itself has previously recognized the impropriety of resolving ex­

ecutive privilege disputes in the context of criminal contempt proceedings.

During the dispute over the Watergate tapes, Congress provided a civil en­

forcement mechanism through which to test the President’s claim of executive

privilege. Senator Ervin, the sponsor of the bill, noted in his explanatory

statement to the Senate that the use of criminal contempt “may be inappropri­

ate, unseemly, or nonefficacious where executive officers are involved.” 119

Cong. Rec. 35715 (1973). In defending the civil enforcement procedure before

the district court, Congress argued that in that case the contempt procedures

would be “inappropriate methods for the presentation and resolution of the

executive privilege issue,” and that a criminal proceeding would be “a mani­

festly awkward vehicle for determining the serious constitutional question here

presented.” Plaintiffs Memorandum of Points and Authorities in Support of

Motion for Summary Judgment, Senate Select Committee on Presidential

Campaign Activities v. Nixon , Civ. No. 1593-73, at 5 (D.D.C. Aug. 28, 1973).

The United States Court of Appeals for the District of Columbia Circuit has

stated on several occasions that criminal contempt proceedings are an inappro­

priate means for resolving document disputes, especially when they involve

another governmental entity. In Tobin v. United States, 306 F.2d 270 (D.C.

Cir.), cert, denied, 371 U.S. 902 (1962), the court reversed a contempt of

Congress conviction on the ground that the congressional subpoena had gone

beyond the investigative authority delegated to the committee that issued the

subpoena. After deciding this issue, however, the court felt “inclined to add a

few words in conclusion” concerning the problems involved in a criminal

contempt of Congress case against a public official. In dictum, the court noted

that the “conflicting duality inherent in a request of this nature is not particu­

larly conducive to the giving of any satisfactory answer, no matter what the

answer should prove to be,” and it cited the “eloquent plea” of District Judge

Youngdahl in the case below, which read in part:

Especially where the contest is between different governmental

units, the representative of one unit in conflict with another

should not have to risk jail to vindicate his constituency’s rights.

133

Moreover, to raise these issues in the context of a contempt case

is to force the courts to decide many questions that are not really

relevant to the underlying problem of accommodating the inter­

est of two sovereigns.

306 F.2d at 276. See also United States v. Fort, 443 F.2d 670, 677-78 (D.C.

Cir. 1970), cert, denied, 403 U.S. 932 (1971).

The analysis contained in United States v. Nixon demonstrates that prin­

ciples of the separation of powers compel the application of special rules when

a Presidential claim of a constitutional privilege is in tension with the request of

another branch for confidential Executive Branch records. In discussing the

issue of executive privilege in that case in response to a judicial subpoena, the

Court stressed that the President’s assertion of privilege was not to be treated as

would a claim of a statutory or common law privilege by a private citizen. 418

U.S. at 708, 715. The President’s constitutional role as head of one of three

separate branches of government means that special care must be taken to

construe statutes so as not to conflict with his ability to carry out his constitu­

tional responsibilities. See, e.g., Myers v. United States, 272 U.S. 52 (1926)

(upholding the President’s removal power against limitations Congress sought

to impose). The same special attention is provided, of course, to the other two

branches when they assert responsibilities or prerogatives peculiar to their

constitutional duties. See, e.g., Gravel v. United States, 408 U.S. 606 (1972)

(extending immunity of Speech and Debate Clause to congressional assis­

tants); Pierson v. Ray, 386 U.S. 547 (1967) (granting absolute civil immunity

for judges’ official actions).

In this case, the congressional contempt statute must be interpreted in light

of the specific constitutional problems that would be created if the statute were

interpreted to reach an Executive Branch official such as the EPA Administra­

tor in the context considered here.33 As explained more fully below, if execu­

tive officials were subject to prosecution for criminal contempt whenever they

carried out the President’s claim of executive privilege, it would significantly

burden and immeasurably impair the President’s ability to fulfill his constitu­

tional duties. Therefore, the separation of powers principles that underlie the

doctrine of executive privilege also would preclude an application of the

contempt of Congress statute to punish officials for aiding the President in

asserting his constitutional privilege.34

33 T h e sam e principle applies to protect th e constitutional functions o f the other branches. The separation of

pow ers w ould sim ilarly seem to require th a t a statute that made it a crim e to disregard a statute passed by

C ongress b e read not to apply to a judge w h o struck dow n a congressional enactm ent as unconstitutional.

34 In addition to the encroachm ent on th e constitutionally required separation o f pow ers that prosecution of

an E xecutive B ranch o fficial in this context would entail, th ere could be a serious due process problem if such

an o fficial w ere subjected to criminal p en alties for obeying an express Presidential order, an order which was

accom panied by advice from the Attorney G eneral that com pliance w ith the Presidential directive was not

only co n sisten t w ith the constitutional d u tie s o f the Executive B ranch, but also affirm atively necessary in

o rd e r to aid the P resident in the perform ance o f his constitutional obligations to take care that the law was

faithfully executed. See Cox v. Louisiana, 379 U.S. 559 (1965); Raley v. Ohio , 360 U.S. 423 (1959).

C ontinued

134

4. The Constitutional Implications of Application of the Contempt of Con­

gress Statute to Executive Branch Officials Who Assert the President’s

Claim of Privilege

The Supreme Court has stated that, in determining whether a particular

statute

disrupts the proper balance between the coordinate branches,

the proper inquiry focuses on the extent to which it prevents the

Executive Branch from accomplishing its constitutionally as­

signed functions. United States v. Nixon, 418 U.S. at 711-712.

Only where the potential for disruption is present must we then

determine whether that impact is justified by an overriding need

to promote objectives within the constitutional authority of

Congress.

Nixon v. Administrator o f General Services, 433 U.S. 425,443 (1977). Thus, in

analyzing this separation of powers issue, one must look first to the impact that

application of the congressional contempt statute to Presidential assertions of

executive privilege would have on the President’s ability to carry out his

constitutionally assigned functions. Then, if there is a potential for disruption,

it is necessary to determine whether Congress’ need to impose criminal con­

tempt sanctions in executive privilege disputes is strong enough to outweigh

the impact on the Executive’s constitutional role.

In this instance, at stake is the President’s constitutional responsibility to

enforce the laws of the United States and the necessarily included ability to

protect the confidentiality of information vital to the performance of that task.

As explained earlier in this memorandum, the authority to maintain the integ­

rity of certain information within the Executive Branch has been considered by

virtually every President to be essential to his capacity to fulfill the responsi­

bilities assigned to him by the Constitution. Thus, as discussed above, and as

the Supreme Court has recognized, the capacity to protect the confidentiality of

some information is integral to the constitutional role of the President.

For these reasons, the Supreme Court has ruled that the President’s assertion

of executive privilege is presumptively valid and can be overcome only by a

clear showing that another branch cannot responsibly, carry out its assigned

constitutional function without the privileged information. United States v.

Nixon, 418 U.S. at 708. In Nixon, the Court stated that “upon receiving a claim

34 ( . . . continued)

Furtherm ore, a person can be prosecuted under § 192 only for a “w illful" failure to produce docum ents in

response to a congressional subpoena. See United States v. Murdock, 290 U.S. 3 8 9 ,3 9 7 -9 8 (1933); Townsend

v. United States, 95 F.2d 352, 359 (D.C. C ir.), cert, denied , 303 U.S. 664 (1938). There is some doubt

w hether obeying the P resid en t's direct order to assert his constitutional claim o f executive privilege w ould

amount to a “w illful” violation o f the statute. M oreover, reliance on an explicit opinion o f the Attorney

General may negate the required mens rea even in the case o f a statute without a w illfulness requirem ent. See

M odel Penal C ode § 2.04(3)(b); United States v. Barker , 546 F.2d 940, 955 (D.C. Cir. 1976) (M ehrige J.,

concurring).

135

of privilege from the Chief Executive, it became the further duty of the District

Court to treat the subpoenaed material as presumptively privileged.” 418 U.S.

at 713. The United States Court of Appeals for the District of Columbia Circuit

has stated that this presumptive privilege initially protects documents “even

from the limited intrusion represented by in camera examination of the conver­

sations by a court.” Senate Select Committee on Presidential Campaign Activities v.

Nixon, 498 F.2d 725,730 (D.C. Cir. 1974) (en banc). The court went on to note:

So long as the presumption that the public interest favors confi­

dentiality can be defeated only by a strong showing of need by

another institution of government a showing that the responsi­

bilities of that institution cannot responsibly be fulfilled without

access to records of the President’s deliberations we believed in

Nixon v. Sirica, and continue to believe, that the effective func­

tioning of the presidential office will not be impaired.

Id. at 730. In order to overcome the presumptively privileged nature of the

documents, a congressional committee must show that “the subpoenaed evi­

dence is demonstrably critical to the responsible fulfillment of the Committee’s

functions.” Id. at 731 (emphasis added). Thus, the President’s assertion of

executive privilege is far different from a private person’s individual assertion

of privilege; it is entitled to special deference due to the critical connection

between the privilege and the President’s ability to carry out his constitutional

duties.

Application of the criminal contempt statute to Presidential assertions of

executive privilege would immeasurably burden the President’s ability to

assert the privilege and to carry out his constitutional functions. If the statute

were construed to apply to Presidential assertions of privilege, the President

would be in the untenable position of having to place a subordinate at the risk

of a criminal conviction and possible jail sentence in order for the President to

exercise a responsibility that he found necessary to the performance of his

constitutional duty. Even if the privilege were upheld, the executive official

would be put to the risk and burden of a criminal trial in order to vindicate the

President’s assertion of his constitutional privilege. As Judge Learned Hand

stated with respect to the policy justifications for a prosecutor’s immunity from

civil liability for official actions,

to submit all officials, the innocent as well as the guilty, to the

burden of a trial and to the inevitable danger of its outcome,

would dampen the ardor of all but the most resolute, or the most

irresponsible, in the unflinching discharge of their duties. Again

and again the public interest calls for action which may turn out

to be founded on a mistake, in the face of which an official may

later find himself hard put to it to [sic] satisfy a jury of his good faith.

Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert, denied, 339 U.S.

949 (1950). The Supreme Court has noted, with respect to the similar issue of

136

executive immunity from civil suits, that “among the most persuasive reasons

supporting official immunity is the prospect that damages liability may render

an official unduly cautious in the discharge of his official duties.” Nixon v.

Fitzgerald , 457 U.S. 731, 752 n.32 (1982); see also Harlow v. Fitzgerald, 457

U.S. 800 (1982); Butz v. Economou, 438 U.S. 478 (1978). Thus, the courts have

recognized that the risk of civil liability places a pronounced burden on the

ability of government officials to accomplish their assigned duties, and have

restricted such liability in a variety of contexts. Id.35 The even greater threat of

criminal liability, simply for obeying a Presidential command to assert the

President’s constitutionally based and presumptively valid privilege against

disclosures that would impair his ability to enforce the law, would unquestion­

ably create a significant obstacle to the assertion of that privilege. See United

States v. Nixon, 418 U.S. 683 (1974).

By contrast, the congressional interest in applying the criminal contempt

sanctions to a Presidential assertion of executive privilege is comparatively

slight. Although Congress has a legitimate and powerful interest in obtaining

any unprivileged documents necessary to assist it in its lawmaking function,

Congress could obtain a judicial resolution of the underlying privilege claim

and vindicate its asserted right to obtain any documents by a civil action for

enforcement of a congressional subpoena.36 Congress’ use of civil enforcement

power instead of the criminal contempt statute would not adversely affect

Congress’ ultimate interest in obtaining the documents. Indeed, a conviction of

an Executive Branch official for contempt of Congress for failing to produce

subpoenaed documents would not result in any order for the production of the

documents.37 A civil suit to enforce the subpoena would be aimed at the

congressional objective of obtaining the documents, not at inflicting punish­

ment on an individual who failed to produce them. Thus, even if criminal

sanctions were not available against an executive official who asserted the

President’s claim of privilege, Congress would be able to vindicate a legitimate

desire to obtain documents if it could establish that its need for the records

outweighed the Executive’s interest in preserving confidentiality.

The most potent effect of the potential application of criminal sanctions

would be to deter the President from asserting executive privilege and to make

it difficult for him to enlist the aid of his subordinates in the process. Although

35 See also Barr v. Matteo , 360 U.S. 564 (1959), Spalding v. Vilas, 161 U.S. 483 (1896) Som e officials,

such as judges and prosecutors, have been given absolute immunity from civil suits arising out o f their

official acts. Imbler v. Pachtman, 424 U.S. 409 (1976), Pierson v. Ray, 386 U.S. 547 (1967).

36 It is arguable that C ongress already has the power to apply for such civil enforcem ent, since 28 U.S C.

§ 1331 has been am ended to elim inate the amount in controversy requirem ent, which was the only obstacle

cited to foreclose jurisdiction under § 1331 in a previous civil enforcem ent action brought by the Senate. See

Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973). In

any event, there is little doubt that, at the very least, C ongress may authorize civil enforcem ent o f its

subpoenas and grant jurisdiction to the courts to entertain such cases. See Senate Select Committee on

Presidential Campaign Activities v. Nixon , 498 F.2d 725 (D.C Cir. 1974) (en banc); H am ilton and G rabow,

A Legislative Proposal fo r Resolving Executive Privilege Disputes Precipitated by Congressional Subpoe­

nas, 21 Harv. J on Legis. 145 (1984).

37 See Ham ilton and G rabow , supra, 21 Harv J. on Legis. at 151.

137

this significant in terrorem effect would surely reduce claims of executive

privilege and, from Congress’ perspective, would have the salutary impact of

virtually eliminating the obstacles to the obtaining of records, it would be

inconsistent with the constitutional principles that underlie executive privilege

to impose a criminal prosecution and criminal penalties on the President’s

exercise of a presumptively valid constitutional responsibility. The in terrorem

effect may be adequate justification for Congress’ use of criminal contempt

against private individuals, but it is an inappropriate basis in the context of the

President’s exercise of his constitutional duties. In this respect it is important to

recall the statement of Chief Justice Marshall, sitting as a trial judge in the Burr

case, concerning the ability o f a court to demand documents from a President:

“In no case of this kind would a court be required to proceed against the

President as against an ordinary individual.” United States v. Burr , 25 F. Cas.

187, 192 (C.C. Va. 1807).38 This fundamental principle, arising from the

constitutionally prescribed separation of powers, precludes Congress’ use against

the Executive of coercive measures that might be permissible with respect to

private citizens. The Supreme Court has stated that the fundamental necessity

of maintaining each of the three general departments of government entirely

free from the control or coercive influence, direct or indirect, of either of the

others, has often been stressed and is hardly open to serious question. So much

is implied in the very fact of the separation of the powers of these departments

by the Constitution; and in the rule which recognizes their essential equality.

H um phrey’s Executor v. United States, 295 U.S. 602, 629-30 (1935).

Congress’ use of the coercive power of criminal contempt to prevent Presi­

dential assertions of executive privilege is especially inappropriate given the

presumptive nature of the privilege. In cases involving congressional subpoe­

nas against private individuals, courts start with the presumption that Congress

has a right to all testimony that is within the scope of a proper legislative

inquiry. See Barenblatt v. United States, 360 U.S. 109 (1959); McGrain v.

Daugherty, 273 U.S. 135 (1927). As noted above, however, the President’s

assertion of executive privilege is presumptively valid, and that presumption

may be overcome only if Congress establishes that the requested information

“is demonstrably critical to the responsible fulfillment of the Committee’s

functions.” See Senate Select Committee on Presidential Campaign Activities

v. Nixon, 498 F.2d at 731; see also United States v. Nixon, 418 U.S. at 708-09.

If Congress could use the power of criminal contempt to coerce the President

either not to assert or to abandon his right to assert executive privilege, this

clearly established presumption would be reversed and the presumptive privi­

lege nullified.

Congress has many weapons at its disposal in the political arena, where it has

clear constitutional authority to act and where the President has corresponding

political weapons with which to do battle against Congress on equal terms. By

wielding the cudgel of criminal contempt, however, Congress seeks to invoke

38 The Nixon C ourt thought this statem ent significant enough in the context o f an executive privilege

dispute to q u o te it in full at tw o separate p laces in its decision United States v. Nixon, 418 U.S. at 708, 715.

138

the power of the third branch, not to resolve a dispute between the Executive

and Legislative Branches and to obtain the documents it claims it needs, but to

punish the Executive, indeed to punish the official who carried out the President’s

constitutionally authorized commands,39 for asserting a constitutional privi­

lege. That effort is inconsistent with the “spirit of dynamic compromise” that

requires accommodation of the interests of both branches in disputes over

executive privilege. See United States v. American Telephone & Telegraph

Co., 567 F.2d 121, 127 (D.C. Cir. 1977). In the AT&T case, the court insisted

on further efforts by the two branches to reach a compromise arrangement on

an executive privilege dispute and emphasized that

the resolution of conflict between the coordinate branches in

these situations must be regarded as an opportunity for a con­

structive modus vivendi, which positively promotes the func­

tioning of our system. The Constitution contemplates such ac­

commodation. Negotiation between the two branches should

thus be viewed as a dynamic process affirmatively furthering

the constitutional scheme.

Id. at 130. Congress’ use of the threat of criminal penalties against an executive

official who asserts the President’s claim of executive privilege, flatly contra­

dicts this fundamental principle.40

The balancing required by the separation of powers demonstrates that the

contempt of Congress statute cannot be constitutionally applied to an executive

official in the context under consideration. On the one hand, Congress has no

39 O ne scholar (form er A ssistant A ttorney G eneral for the Civil D ivision, and now Solicitor G eneral, Rex

Lee) has noted that

when the only alleged crim inal conduct o f the putative defendant consists o f obedience to an

assertion o f executive privilege by the President from whom the defendant’s governm ental

authority derives, the defendant is not really being prosecuted for conduct o f his own. He is a

defendant only because his prosecution is one way o f bringing before the courts a dispute

between the President and the Congress. It is neither necessary nor fair to make him the pawn in

a crim inal prosecution in order to achieve judicial resolution o f an interbranch dispute, at least

where there is an alternative means for vindicating congressional investigative interests and for

getting the legal issues into court.

Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three

Powers, and Some Relationships, 1978 B.Y U. L Rev. 231, 259.

40 Even when a privilege is asserted by a cabinet official, and not the President, courts are extrem ely

reluctant to im pose a contem pt sanction and are willing to resort to it only in extraordinary cases and only

after all other rem edies have failed. In In re Attorney General, 596 F.2d 58 (2d Cir.), cert, denied, 444 U.S.

903 (1979), the court granted the g overnm ent's mandamus petition to overturn a district court’s civil

contem pt citation against the Attorney G eneral for failing to turn over docum ents for which he had asserted a

claim o f privilege. The court recognized that even a civil contem pt sanction imposed on an Executive Branch

official “has greater public im portance, w ith separation o f powers overtones, and w arrants more sensitive

judicial scrutiny than such a sanction imposed on an ordinary litigant.” 596 F.2d at 64. T herefore, the court

held that holding the A ttorney General o f the U nited States in contem pt to ensure com pliance with a court

order should be a last resort, to be undertaken only after all other m eans to achieve the ends legitim ately

sought by the court have been exhausted. Id. at 65. In the case o f a Presidential claim o f executive privilege,

there is even m ore reason to avoid contem pt proceedings because the privilege claim has been m ade as a

constitutionally based claim by the President him self and the sanction involved is crim inal and not civil

contem pt. The use o f crim inal contem pt is especially inappropriate in the context under discussion because

Congress has the clearly available alternative o f civil enforcem ent proceedings.

139

compelling need to employ criminal prosecution in order to vindicate its rights.

The Executive, however, must be free from the threat of criminal prosecution if

its right to assert executive privilege is to have any practical substance. Thus,

when the major impact on the President’s ability to exercise his constitutionally

mandated function is balanced against the relatively slight imposition on

Congress in requiring it to resort to a civil rather than a criminal remedy to

pursue its legitimate needs,41 we believe that the constitutionally mandated

separation of powers requires the statute to be interpreted so as not to apply to

Presidential assertions of executive privilege.42

The construction of the statute that is dictated by the separation of powers is

consistent with the legislative history of the statute and the subsequent legisla­

tive implementation of the statute. Although at the time the criminal statute was

enacted, Congress was well aware of the recurring assertions of the right to

protect the confidentiality of certain Executive Branch materials, it gave no

indication that it intended the contempt statute to tread upon that constitution­

ally sensitive area. In the many debates on executive privilege since the

adoption of the statute, Congress at times has questioned the validity of a

Presidential assertion of privilege, but, until December of 1982, it never at­

tempted to utilize the criminal contempt sanction to punish someone for a

President’s assertion of privilege. Regardless of the merits of the President’s

action, the fundamental balance required by the Constitution does not permit

Congress to make it a crime for an official to assist the President in asserting a

constitutional privilege that is an integral part of the President’s responsibilities

under the Constitution. We therefore conclude that the contempt of Congress

statute does not apply to an executive official who carries out the President’s

claim of executive privilege.

Nearly every President since George Washington has found that in order to

perform his constitutional duties it is necessary to protect the confidentiality of

certain materials, including predecisional Executive Branch deliberations, na­

tional security information, and sensitive law enforcement proceedings, from

disclosure to Congress. No President has rejected the doctrine of executive

privilege; all who have addressed the issue have either exercised the privilege,

attested to its importance, or done both. Every Supreme Court Justice and every

Judge of the United States Court of Appeals for the District of Columbia

Circuit who has considered the question of executive privilege has recognized

its validity and importance in the constitutional scheme. Executive privilege,

properly asserted, is as important to the President as is the need for confidenti­

41 See H am ilton and G rabow , A Legislative Proposal fo r Resolving Executive Privilege Disputes Precipi­

tated by Congressional Subpoenas, 21 H arv . J. on Legis. 145 (1984).

42 W e believe that th is sam e conclusion would apply to any attem pt by C ongress to utilize its inherent

“c ivil” contem pt pow ers to arrest, bring to trial, and punish an executive official who asserted a Presidential

claim o f ex ecu tiv e privilege. The legislative history o f the crim inal contem pt statute indicates that the reach

o f the statute w as intended to be coextensive with C ongress’ inherent civil contem pt powers (except with

respect to th e penalties im posed). See 4 2 C ong. G lobe 406 (rem arks o f Rep. Davis). Therefore, the same

reasoning that suggests that the statute c o u ld not constitutionally be applied against a Presidential assertion o f

privilege applies to C o n g ress’ inherent co n tem p t pow ers as w ell.

140

ality at certain times in the deliberations of the Justices of the Supreme Court

and in the communications between members of Congress and their aides and

colleagues. Congress itself has respected the President’s need for confidential­

ity; it has never arrested an executive official for contempt of Congress for

failing to produce subpoenaed documents and never, prior to the heated closing

moments of the 97th Congress in December of 1982, did a House of Congress

seek to punish criminally an executive official for asserting a President’s claim

of privilege.

Naturally, Congress has and always will resist claims of executive privilege

with passion and vigor. Congress aggressively asserts its perceived institu­

tional prerogatives, and it will surely oppose any effort by the President to

withhold information from it. If it could eliminate claims of executive privilege

by requiring that an official who asserts such a claim on behalf of the President

be prosecuted criminally, it would surely be in favor of doing so. Thus, the

tension between the relative strengths and institutional prerogatives of Con­

gress and the President necessarily reaches a high level of intensity in any case

involving a claim of executive privilege. The specter of mandatory criminal

prosecution for the good-faith exercise of the President’s constitutional privi­

lege adds a highly inflammatory element to an already explosive environment.

We believe that the courts, if presented the issue in a context similar to that

discussed in this memorandum, would surely conclude that a criminal prosecu­

tion for the exercise of a presumptively valid, constitutionally based privilege

is not consistent with the Constitution. The President, through a United States

Attorney, need not, indeed may not, prosecute criminally a subordinate for

asserting on his behalf a claim of executive privilege. Nor could the Legislative

Branch or the courts require or implement the prosecution of such an individual.

In some respects, the tensions between the branches, which become exacer­

bated during these conflicts, and the pressure placed on the President and his

subordinates in this context, call to mind the comments of Chief Justice Chase

concerning the impeachment trial of President Andrew Johnson, over which

the Chief Justice presided. One of the charges against President Johnson was

that he had fired Secretary of War Stanton in violation of the Tenure of Office

Act, which purported to strip the President of his removal power over certain

Executive Branch officials.43 Chief Justice Chase declared that the President

had a duty to execute a statute passed by Congress which he believed to be

unconstitutional “precisely as if he held it to be constitutional.” However, he

added, the President’s duty changed in the case of a statute which

directly attacks and impairs the executive power confided to

him by [the Constitution]. In that case it appears to me to be the

clear duty of the President to disregard the law, so far at least as

it may be necessary to bring the question of its constitutionality

before the judicial tribunals.

43 The Tenure o f O ffice A ct w as, o f course, later declared to have been unconstitutional. Myers v. United

States, 272 U.S. 5 2 (1 9 2 6 ).

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*

How can the President fulfill his oath to preserve, protect, and

defend the Constitution, if he has no right to defend it against an

act of Congress, sincerely believed by him to have been passed

in violation of it?44

If the President is to preserve, protect, and defend the Constitution, if he is

faithfully to execute the laws, there may come a time when it is necessary for

him both to resist a congressional demand for documents and to refuse to

prosecute those who assist him in the exercise of his duty. To yield information

that he in good conscience believes he must protect in order to perform his

obligation, would abdicate the responsibilities of his office and deny his oath.

To seek criminal punishment for those who have acted to aid the President’s

performance of his duty would be equally inconsistent with the Constitution.

In the narrow and unprecedented circumstances presented here, in which an

Executive Branch official has acted to assert the President’s privilege to

withhold information from a congressional committee concerning open law

enforcement files, based upon the written legal advice of the Attorney General,

the contempt of Congress statute does not require and could not constitution­

ally require a prosecution of that official, or even, we believe, a referral to a

grand jury of the facts relating to the alleged contempt. Congress does not have

the statutory or constitutional authority' to require a particular case to be

referred to the grand jury. In addition, because the Congress has an alternative

remedy both to test the validity of the Executive’s claim of privilege and to

obtain the documents if the courts decide that the privilege is outweighed by a

valid and compelling legislative need, a criminal prosecution and the concomi­

tant chilling effect that it would have on the ability of a President to assert a

privilege, is an unnecessary and unjustified burden that, in our judgment, is

inconsistent with the Constitution.

T h e o d o r e B. O lso n

Assistant Attorney General

Office o f Legal Counsel

44 R. W arden, An Account o f the Private Life and Public Services o f Salmon Portland Chase 685 ( 1874).

C h ie f Ju stice C h ase’s com m ents were m ade in a letter w ritten the day after the Senate had voted to exclude

evid en ce that the entire cabinet had advised President Johnson that the T enure o f O ffice Act was unconstitu­

tional. Id. See M. B enedict, The Impeachment and Trial o f Andrew Johnson 154-55 (1973). U ltim ately, the

S enate d id adm it evidence that the President had desired to initiate a court test o f the law. Id. at 156.

142