“The House of Representatives…shall have the sole Power of Impeachment.” —U.S. Constitution (1789)
“…no person can be punished for contumacy as a witness before either house, unless his testimony is required in a matter into which that house has jurisdiction to inquire…” —Kilbourn v. Thompson (1880)
"… neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances…” — United States v. Nixon (1974)
House Judiciary Chair Jerrold Nadler and Speaker Nancy Pelosi both say that the stalemate between Congress and the White House over the Mueller Report is a “constitutional crisis.” They’re right, but not completely.
A more aggressive and scholarly argument was made Sunday by Jamie Raskin (D-MD.), a young House member and constitutional scholar. Citing no less than James Madison in The Federalist Papers, he reminded that among our three branches of government “the legislative authority necessarily predominates.” And he quoted Rep. Thaddeus Stevens’ view from 1868, that “the sovereign power of the nation rests in Congress,” and its members stand around the president “as watchmen to enforce his obedience to the law and the Constitution.”
This is hardly the first contentious challenge to Congress’ contempt power. In Donald Trump’s lifetime, we have seen the loyalty cases in the McCarthy era, labor cases investigated by the McClellan Committee, the civil rights contempt of court cases in the JFK and LBJ eras, even a U.S. House of Representatives special investigation of Adam Clayton Powell (I was a counsel to that House Committee and testified as an expert), and now, of course, the ongoing clash over the extent of the powers of Articles I and II of the U.S. Constitution.
Congress’ constitutional powers have an interesting history, evolving from the British Parliament which had judicial (Lords) and legislative (Commons) powers. The American colonies adopted many of England’s procedures and exercised the contempt power to compel testimony and protect their dignity, deemed an inherent power of those bodies. Our courts and Congress adopted the contempt power, considering it an inherent necessity for any government body in order to operate efficiently. England’s contempt power included a summary power to jail a person who refused to cooperate with its legislative functions. It is deemed a civil contempt—the contemnor is thought to hold the keys to his jail cell, simply by cooperating.
Pelosi recently reminded in her wry way: “We do have a little jail down in the basement of the Capitol, but if we were arresting all of the people in the administration, we would have an overcrowded jail situation. And I’m not for that…” The DC jail has housed contempt of Congress convicts; one of them (a Hollywood Ten writer who refused to testify before Congress) wrote to me about a cover article I’d written about that jail in The New Republic describing his dreary experiences.
Civil contempt was deemed inherent in courts and Congress and used to be summarily available to judges, still is in some places. I successfully argued a case in the U.S. Supreme Court (US v. Harris), that ruled that the unlimited summary power of contempt by courts was unconstitutional.
Criminal contempt of Congress is governed by a statute, 2 USC 192, “Refusal of witness to testify or produce papers.” When that happens, the Speaker of the House certifies the case to the local U.S. Attorney, who is required to present it to the grand jury. But to complicate matters, the U.S. Attorneys are appointed by the President and their work is administered by the Attorney General. That feature hasn’t frustrated Congress in its use of the congressional contempt power in the past, but is likely to now.
Historians have documented that Congress cited 113 cases for contempt between 1857 and 1949, and then 117 between 1950 and 1952. Since 1955, at least 24 individuals have received citations for criminal contempt of Congress.
Civil contempt cases either produced the testimony or evidence sought, or led to an agreement with Congress that avoided formal citations. The criminal contempt cases are tried like all other crimes in the D.C. federal courts. Contempt of Congress is subject to all constitutional criminal defenses, against self-incrimination and double jeopardy, for example, so Congress’ power is not unlimited. The most challenging defense is the relatively recent claim of executive privilege barring congressional inquiry.
As University of Chicago law professor Aziz Huq recently pointed out, the Constitution says nothing about executive privilege. Huq referred to impeachment scholar Raoul Berger’s comment that executive privilege is “a constitutional myth.” Professor Huq concluded that “the president had a primary obligation of disclosure to lawmakers, not a license for reticence.”
The Supreme Court dealt with executive privilege as a defense to the Special Prosecutor’s attempt to obtain White House office records of the President’s communications in its famous 1974 case, United States v. Nixon. One can wonder what communications might ever be deemed more private, and arguably privileged.
The court determined that executive privilege was implied in the Constitution because it was “fundamental to the operation of Government and inextricably rooted in the Separation of Powers.” But it also stated that “the President’s ‘generalized’ assertion of privilege ‘cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.’”
When the president only has such a “generalized interest” in the material over which privilege is asserted, courts will undertake a balancing test. That test compares the genuine interests of Congress’ legislative work with the executive branch’s ability to participate in direct candor without concerns about subsequent analysis of it, and the public’s and society’s interest in being informed that evidence needed for unusually special criminal investigations and prosecutions. Later, the court found that executive privilege only applies to presidential communications made in the course of the president’s official conduct, specifically those made “in the process of shaping policies and making decisions,” not in obstructing justice as he is sworn not to do. That case was brought by former President Nixon when President Ford signed the law relating to public access to presidential recordings.
The current battle between Congress and the White House is likely to lead to disposition by the courts. That could lead to interesting and unique questions.
Should it get to the U.S. Supreme Court, might Justice Neil Gorsuch be subject to recusal because his mother, when she was head of the Environmental Protection Agency, was charged for contempt of Congress? The citation was never presented to a grand jury, though, because Congress and the DOJ ultimately resolved their dispute through negotiations, which resulted in Congress’ withdrawal of its contempt citation.
If Gorsuch isn’t recused, how about Justice Brett Kavanaugh who owes his recent, very personal, controversial, narrow appointment to President Trump?
President George W. Bush asserted executive privilege to shield his adviser Karl Rove from having to testify about the mass firing of nine White House attorneys. Rove was never found in contempt because he ultimately did testify in a closed-door hearing.
President Obama invoked executive privilege in order to prevent Congress from forcing then-Attorney General Eric Holder from testifying on the failed “Fast and Furious” initiative, in which Arizona government officials allowed firearm sales to drug cartel members, hoping that they would be able to keep track of them more effectively. Congress voted in favor of issuing Holder a citation of criminal contempt of Congress. That case was not adjudicated in court so is moot.
No president has—or should—call for total blanket executive privilege for all federal officials before they even appear and claim the privilege and their reasons for it. If Nadler and Pelosi think we are facing a major separation of powers clash between the executive and the legislature now, they should think ahead. The courts get the last word in our tripartite government. If the current Barr and especially the Mnuchin cases eventually ended up in court, as is likely, the Circuit Court of Appeals Chief Judge Merrick Garland may write the interim governing opinion.
And if that is appealed, I expect that Justices Gorsuch and Kavanaugh would be asked to recuse themselves. The Supreme Court’s odd recusal law leaves to the sitting Supreme Court justice himself the right to decide whether or not to recuse, and there is no review or appeal of his decision. That bizarre procedure reeks of prejudice and bias and needs to be changed.
You can’t make up a story with such confounding irony! It reminds me of the 1950 movie, All About Eve. Actress Celeste Holm asks Bette Davis: “Is it over, or is it just beginning?”
Davis replies, “Fasten your seatbelts. It’s going to be a bumpy night.”
Ronald Goldfarb is a Washington DC attorney and author who served in the RFK Department of Justice as a prosecutor of organized crime. His book The Contempt Power, published by Columbia University Press in 1963 and in paperback by Anchor Books in 1971, was based on his doctoral thesis at Yale Law School. He has written and contributed to 15 books and authored approximately 600 articles, op-eds and book reviews.