NOTES
Showdown in the Rose Garden: Congressional
Contempt, Executive Privilege, and
the Role of the Courts
TIMOTHY T. MASTROGIACOMO*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
164
I. NATURE AND LIMITS OF CONGRESS’S ENFORCEMENT POWERS . . . . . .
167
A.
NATURE OF CONGRESS’S ENFORCEMENT POWERS
............
167
B.
INHERENT CONTEMPT: NOT AN ABSOLUTE POWER
............
168
C.
LIMITS TO CONGRESS’S ENFORCEMENT POWERS
.............
171
1.
Valid Legislative Purpose . . . . . . . . . . . . . . . . . . . . . . .
172
2.
Limits Created by Constitutional Protections . . . . . . . . .
173
D.
EXECUTIVE PRIVILEGE AS AN INDEPENDENT CONSTITUTIONAL LIMIT
TO CONGRESS’S ENFORCEMENT POWERS
..................
174
II. USE OF CONGRESS’S ENFORCEMENT POWERS AGAINST EXECUTIVE
BRANCH OFFICIALS AND INVOCATION OF EXECUTIVE PRIVILEGE AS A
DEFENSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
177
A.
CRIMINAL CONTEMPT
...............................
177
B.
INHERENT CONTEMPT
...............................
179
C.
CIVIL ENFORCEMENT OF SUBPOENAS
.....................
181
D.
THIRD-PARTY SUBPOENAS: A THREAT TO BOTH CONGRESSIONAL
...........................
183
III. IMPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
184
AND EXECUTIVE PRIVILEGE
A.
THREE EQUAL METHODS TO COMPEL EXECUTIVE COMPLIANCE?
...
184
B.
SELECTING A CONTEMPT OPTION FOR PRACTICAL ADVANTAGE
...
185
C.
PUBLIC POLICY IMPLICATIONS OF JUDICIAL REVIEW
...........
186
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
187
* Georgetown Law, J.D. expected 2012; Georgetown University, B.A. 2008. © 2010, Timothy T.
Mastrogiacomo. I would like to thank Professor Irvin B. Nathan for his helpful feedback.
163
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INTRODUCTION
In early 2007, the U.S. House Committee on the Judiciary launched an
investigation into the 2006 dismissal of seven U.S. Attorneys from the Department of Justice.1 The Committee issued subpoenas to White House Chief of
Staff Josh Bolten and former White House Counsel Harriet Miers, ordering both
to produce documents related to the dismissals and Miers to testify before the
Committee.2 Bolten and Miers failed to comply, citing the President’s decision
to invoke executive privilege.3 On February 14, 2008, the House of Representatives voted to hold the pair in contempt of Congress.4 Speaker Nancy Pelosi
sent the Committee’s contempt report to the U.S. Attorney for the District of
Columbia, with the intent that he press charges against Bolten and Miers under
two federal contempt statutes.5 Attorney General Michael Mukasey ordered the
U.S. Attorney to disregard this command.6 The Committee on the Judiciary then
filed a suit in the D.C. District Court, seeking civil enforcement of its subpoenas.7 The court held that Miers was not immune from being compelled to testify
before Congress, but could claim privilege in response to individual questions;
the court also ordered Miers and Bolten to produce the non-privileged documents requested in the subpoena and a list of all documents withheld under a
claim of executive privilege.8 Shortly thereafter, however, the court of appeals
granted Miers and Bolten’s motion to stay the district court order pending their
1. Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 57–58 (D.D.C. 2008).
2. Id. at 61. The subpoenas were issued on June 13, 2007. Id.
3. Id. at 61–62. The President invoked privilege on the recommendation of both Acting Attorney
General Paul Clement and the Office of Legal Counsel. Id.
4. Id. at 63; H.R. Res. 982, 110th Cong. (2008) (adopting H.R. Res. 979, 110th Cong. (2008),
requiring that steps be taken to file criminal contempt charges against Bolten and Miers, and H.R. Res.
980, 110th Cong. (2008), authorizing the Committee on the Judiciary to initiate civil proceedings to
enforce the subpoenas).
5. Miers, 558 F. Supp. 2d at 63; see also 2 U.S.C. §§ 192, 194 (2006). It is ambiguous whether the
Executive has discretion not to file charges under §§ 192 and 194. See infra section II.A.
6. Miers, 558 F. Supp. 2d at 63–64 (“[T]he Attorney General [stated] that because Ms. Miers and
Mr. Bolten were acting pursuant to the direct orders of the President, ‘the Department has determined
that noncompliance . . . with the Judiciary Committee subpoenas did not constitute a crime, and
therefore the Department will not bring the congressional contempt citations before a grand jury or take
any other action to prosecute . . . .’”).
7. Id. at 64; see also H.R. Res. 980.
8. Miers, 558 F. Supp. 2d at 108. Judge Bates held that the Committee had standing after rejecting
the defendants’ claims that the case presented no cognizable personal injury and that the case was not
“the type of dispute traditionally capable of resolution before an Article III court”: the Committee’s
“being denied access to information” was a sufficient injury, and United States v. Nixon, 418 U.S 683
(1974), and Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725 (D.C.
Cir. 1974), indicated that the issue was the sort “traditionally amenable to judicial resolution.” Miers,
558 F. Supp. 2d at 66–78. Bates further held the Declaratory Judgment Act provided a cause of action,
and that Article I of the Constitution provides an additional implied cause of action. Id. at 78–94.
Although Bates declared that Miers is not immune from compelled testimony, he did not directly order
her to testify. Id. at 105–06, 108.
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appeal and denied the Committee’s motion to expedite the appeal process.9 In
2009, Miers and Bolten reached an agreement with the Committee to testify and
provide documents for the investigation.10
The House of Representatives attempted to use both criminal contempt and
civil enforcement to force Miers and Bolten to comply with the Judiciary
Committee’s subpoenas.11 It did not, however, use its oldest enforcement
power: inherent contempt.12 The inherent contempt power allows either house
of Congress to enforce its subpoenas without seeking the aid of the other
branches of government. When the House voted to hold Miers and Bolten in
contempt in February 2008, instead of taking steps to initiate a criminal
indictment, the House could have dispatched the Sergeant at Arms to arrest and
drag them to Capitol Hill for testimony. If Miers and Bolten still refused to
testify, the House could have, absent successful petitions for writs of habeas
corpus, imprisoned them in the Capitol until the term of the 110th Congress
ended in January 2009.13 Inherent contempt is not merely a theoretical power;
on at least one occasion Congress used it to arrest an executive branch official.14
Although inherent contempt is a potent weapon, if Congress were to use it
against the Executive it would risk a public-relations nightmare or, worse, a
violent confrontation between the branches. Despite these risks, various observers have argued that Congress should have used inherent contempt in the U.S.
Attorney firings investigation.15 In their view, Congress weakens its position by
seeking the aid of the other branches of government for criminal or civil
9. Comm. on the Judiciary v. Miers, 542 F. 3d 909, 911 (D.C. Cir. 2008) (holding that, even if
expedited, the appeal would continue until after the end of the term of the 110th Congress, at which
point the Committee would cease to be a legal entity and the suit would be rendered moot).
10. Miers and Bolten agreed to testify under oath, but off camera and without a public audience. Carrie
Johnson, Deal Clears Rove, Miers To Discuss Prosecutor Firings, WASH. POST, Mar. 5, 2009, at A8.
11. The House used criminal contempt by forwarding the contempt report to the U.S. Attorney, see
supra note 5 and accompanying text, and used civil enforcement when it filed the suit in the D.C.
District Court, see supra note 7 and accompanying text.
12. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 225–31 (1821) (recognizing Congress’s implied
inherent contempt power); see also infra section I.B.
13. See Morton Rosenberg & Todd B. Tatelman, CONG. RESEARCH SERV., RL 34097, CONGRESS’S
CONTEMPT POWER: LAW, HISTORY, PRACTICE, AND PROCEDURE 12–13 (2008).
14. In 1879, the House held George Seward, the U.S. Minister to China, in contempt for ignoring its
subpoena and had the Sergeant at Arms arrest him. Josh Chafetz, Executive Branch Contempt of
Congress, 76 U. CHI. L. REV. 1083, 1135–37 (2009); see also infra note 68.
15. See Chafetz, supra note 14, at 1086 (“[W]hile both the executive and judicial branches are
comfortable pushing their powers to their limits, Congress has become too timid to do so.”); Jeffrey K.
Tulis, On Congress and Constitutional Responsibility, 89 B.U. L. Rev. 515, 524 (2009) (“The modern
Congress is unwilling to stand up for itself. It is unwilling to find or restore the tools necessary to
defend its constitutional prerogatives.”); Michael A. Zuckerman, The Court of Congressional Contempt,
25 J.L. & POL. 41, 44 (2009) (“Congress should again look to its [inherent] power to punish for
contempt in an effort to reclaim its role in the political system and restore the effectiveness of the
national legislature.”); John W. Dean, Harriet Miers’s Contempt of Congress: Are Conservatives About
To Neuter Congress, While Claiming Full Legal Justification for this Separation-of-Powers Violation?,
FINDLAW (July 13, 2007) http://writ.news.findlaw.com/dean/20070713.html (former counsel to the
Senate Judiciary Committee and White House Counsel to President Nixon) (calling inherent contempt
Congress’s “most powerful tool to require Executive cooperation” and arguing that the House should
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enforcement of its subpoenas. Proponents of inherent contempt argue that it is
less vulnerable to judicial review than Congress’s other enforcement powers.
This Note will argue that this is incorrect.
Disagreement over the potential advantages of Congress’s inherent contempt
power is part of a larger debate. Some observers suggest that, regardless of
which enforcement power Congress uses, the courts cannot consider defensive
claims of executive privilege and may only conduct a jurisdictional review—a
check to ensure that Congress is acting within the scope of its valid legislative
function.16 These observers feel that judicial weighing of executive privilege
against congressional information seeking is always inappropriate; some argue
that inherent contempt cuts off the courts’ opportunity to engage in such
behavior. At the other extreme, some observers argue that Congress’s use of
either criminal or inherent contempt must automatically fail when an executive
branch official makes a claim of privilege.17 In their view, use of these enforcement powers in the presence of executive privilege violates the constitutional
separation of powers. They argue that civil enforcement is the only constitutionally acceptable way to enforce congressional subpoenas against executive branch
officials.
At its essence, this debate revolves around two competing privileges: in
arguing that Congress cannot use certain enforcement powers against the Executive or that courts cannot weigh claims of executive privilege made in response
to Congress’s use of its enforcement powers, commentators are actually suggesting that one branch should ride roughshod over the other.18 This Note will argue
that Congress may use all of its enforcement powers against the Executive, and
that courts can and should consider and balance claims of executive privilege
regardless of which power Congress exercises. While Congress’s enforcement
powers each have practical advantages and disadvantages, none, including
inherent contempt, provides a legal shield from judicial review of claims of
privilege.
Part I of this Note will provide an overview of the nature, origin, and scope of
Congress’s enforcement powers, and will argue that, like the other enforcement
powers, inherent contempt is not an absolute power. It will review case law to
demonstrate that court-imposed limits to Congress’s enforcement powers fall
have used it in the U.S. Attorney dismissals investigation because inherent contempt does “not need the
cooperation of the other branches to enable [Congress] to conduct proper oversight”).
16. See, e.g., Chafetz, supra note 14, at 1143–55 (arguing that courts cannot properly consider
claims of executive privilege in either civil or inherent contempt cases); Adam K. Magid, Note, The
Negative Executive Privilege, 20 STAN. L. & POL’Y REV. 561, 575–79 (2009) (arguing that no affirmative executive privilege exists to limit congressional information seeking in either civil or criminal
cases); see also infra section I.D and Part II.
17. See, e.g., Prosecution for Contempt of Congress of an Executive Branch Official Who Has
Asserted a Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101, 139, 140 & n.42 (1984);
Response to Congressional Requests for Information Regarding Decision Made Under the Independent
Counsel Act, 10 Op. Off. Legal Counsel 68, 86 (1986); see also infra sections II.A–B.
18. See infra section III.C.
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into one of two categories: “jurisdictional” limitations (also known as the valid
legislative purpose requirement) and independent constitutional prohibitions on
government action. Part I will then argue that executive privilege belongs to the
second category. Part II will argue that Congress may use any of its enforcement
powers against executive branch officials, that those officials may make authorized claims of executive privilege as a defense, and that courts can balance
those claims against Congress’s information-gathering privilege. Part III will
argue that Congress’s three enforcement options, while roughly legally equivalent, offer varying degrees of practical advantage. This Part will conclude that
the public interest is served by active judicial balancing of executive privilege
and Congress’s use of its investigatory powers.
I. NATURE AND LIMITS OF CONGRESS’S ENFORCEMENT POWERS
A. NATURE OF CONGRESS’S ENFORCEMENT POWERS
Because the development of Congress’s enforcement powers has been described in detail elsewhere,19 this section will provide only a brief chronological
overview.
Congress’s oldest enforcement power is inherent contempt; it was recognized
by the Supreme Court as an implied constitutional power in 1821.20 It allows
Congress, under its own power, to arrest, try, and punish individuals who fail to
comply with Congressional subpoenas or otherwise violate the privileges of
Congress.21 Congress has not used its inherent contempt power since 1935.22
Congress established criminal statutory contempt in 1857 as an alternative
method of punishing contempt, at least in part because inherent contempt can be
difficult to use (Congress must detain and try the contemnor) and offers limited
punishment options.23 The 1857 criminal contempt statute is currently codified
under 2 U.S.C. §§ 192 and 194, which provide for a fine of up to one thousand
dollars and up to one year in prison for failure to comply with subpoenas for
testimony or documents.24 While statutory contempt allows Congress to lighten
its workload while ensuring that adequate punishments are imposed, it must rely
19. See, e.g., Chafetz, supra note 14, at 1127–43; Rosenberg & Tatelman, supra note 13, at 4–46;
Zuckerman, supra note 15, at 50–68.
20. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230–31 (1821); see also infra section I.B.
21. Inherent contempt may be used both to encourage compliance with congressional orders and to
punish failures to comply or for other forms of contempt. See Jurney v. MacCracken, 294 U.S. 125, 150
(1935) (holding that inherent contempt may be used to punish past contempt); McGrain v. Daugherty,
273 U.S. 135, 175 (1927) (holding that Congress may enforce subpoenas via inherent contempt).
22. Rosenberg & Tatelman, supra note 13, at 15. Congress’s last use of the inherent contempt power
was reviewed by the Supreme Court in Jurney.
23. See Rosenberg & Tatelman, supra note 13, at 20–21; see also infra note 39 and accompanying
text.
24. 2 U.S.C. §§ 192, 194 (2006). Congress cannot punish other forms of contempt, such as bribery
of a congressman, using these statutes, but it may still do so using inherent contempt. See Rosenberg &
Tatelman, supra note 13, at 22–23 (citing House floor debate from 1857 indicating that Congress did
not intend criminal contempt to replace or limit inherent contempt); In re Chapman, 166 U.S. 661,
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on the Executive Branch to bring the criminal indictment.25
Finally, Congress enacted a civil enforcement statute in 1978, currently
codified as 28 U.S.C. § 1365, which gives the District Court for the District of
Columbia original jurisdiction over claims brought by the U.S. Senate to
enforce or issue declarative judgments regarding congressional subpoenas or
orders.26 Like inherent contempt, civil enforcement has the advantage of providing fines or imprisonments tied to the continued refusal of the contemnor to
comply,27 and it may provide for a more swift resolution than criminal contempt.28 Section 1365, however, contains an exception for executive branch
officers or employees who make a claim of privilege that the Executive has
authorized.29 The House has no comparable civil enforcement statute. In Miers,
however, the D.C. District Court held that the House may sue to enforce
subpoenas under the Declaratory Judgment Act and that Article I of the Constitution provides an additional implied cause of action.30
B. INHERENT CONTEMPT: NOT AN ABSOLUTE POWER
The modern inherent power of legislatures to punish contempts against their
privileges originated in the British House of Commons, where the power was
and is absolute.31 Parliament originally exercised this power with the consent of
the King, but eventually claimed it as an inherent power that could be used even
against royal officers and the King himself. The rise of the contempt privilege
671–72 (1897) (discussing the 1857 act and noting that “[C]ongress could not devest itself, or either of
its houses, of the essential and inherent power to punish for contempt ”).
25. It is ambiguous whether the Executive is legally required to indict. See discussion infra section
II.A.
26. 28 U.S.C. § 1365 (2006). The statute was originally included in the Ethics in Government Act of
1978, Pub. L. No. 95-521, § 705(f)(1), 92 Stat. 1824, 1879. This is not the first civil enforcement statute
Congress has passed; during the Watergate investigation it passed a law granting the D.C. District Court
original jurisdiction over any civil action brought by the Senate Select Committee on Presidential
Campaign Activities to enforce a subpoena or to secure a declaration concerning the validity of a
subpoena. An Act to Confer Jurisdiction upon the District Court of the United States of Certain Civil
Actions Brought by the Senate Select Committee on Presidential Campaign Activities, and for Other
Purposes, Pub. L. No. 93-190, 87 Stat. 736, 736 (1973).
27. When Congress uses civil enforcement, coercion is supplied through the court’s use of its civil
contempt powers. Civil enforcement, therefore, is not a type of congressional contempt power, but does
operate in a similar fashion.
28. Rosenberg & Tatelman, supra note 13, at 36 (arguing that civil enforcement may lead to quicker
judicial resolutions because courts will likely give less weight to the defendant’s constitutional rights);
see also S. REP. NO. 95-170, at 16, 41 (1977), reprinted in 1978 U.S.C.C.A.N. 4216, 4232, 4257 (stating that
civil enforcement should be used when Congress seeks compliance, and criminal contempt when
Congress seeks to punish past contempt). The Committee on Governmental Affairs also noted in its
report on the civil enforcement bill that past reluctance of congressional committees to enforce their
subpoenas with criminal contempt was an additional reason for creating the civil enforcement option.
Id. at 17, reprinted in 1978 U.S.C.C.A.N. 4216, 4233.
29. 28 U.S.C. § 1365(a) (2006).
30. Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 66–78 (D.D.C. 2008); see also Declaratory
Judgment Act, 28 U.S.C. §§ 2201–2202 (2006).
31. Watkins v. United States, 354 U.S. 178, 188 (1957) (“The rudiments of the power to punish for
‘contempt of Congress’ come to us from the pages of English history.”).
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as an absolute power coincided with the rise of parliamentary supremacy.32
Parliament is not just a legislature, but also Britain’s highest court. Parliament
denied the lower courts jurisdiction to review its use of the contempt power,33
and courts after the English Civil War determined that they could not review
parliamentary contempt orders through writs of habeas corpus because the
orders were the binding commands of a superior judicial body.34 In his article
Executive Branch Contempt of Congress, Josh Chafetz argues that the inherent
contempt power of Congress today is similarly not subject to judicial review:
“[E]ach house is properly understood as the final arbiter of disputes arising out
of its contempt power . . . legislative–executive disputes over the contempt
power should be understood to be nonjusticiable.”35 However, as the Supreme
Court has held, this type of contempt power is not compatible with the Constitution’s separation of powers.
The Supreme Court first recognized Congress’s inherent contempt power in
Anderson v. Dunn.36 After the House of Representatives ordered Sergeant at
Arms Thomas Dunn to arrest John Anderson for attempting to bribe a congressman, Anderson sued Dunn for assault, battery, and false imprisonment.37 Counsel for Dunn urged the Court to adopt British common law precedent holding
that legislatures have an inherent ability to protect their privileges, “that they are
the exclusive judges whether those privileges have been violated in the particular instance and that their decisions upon the subject cannot be questioned in
32. See Chafetz, supra note 14, at 1093–116. After becoming frustrated with the House of Commons
for, among other things, subpoenaing documents from royal officers and investigating the Attorney
General, King Charles I dismissed Parliament for eleven years. Id. at 1111. After reconvening Parliament, Charles clashed with the House of Commons for several more years before bringing treason
charges against several members. Id. at 1111–12. When those charged were not delivered to royal
officials, Charles entered the Commons with troops; the next day a resolution was passed calling the
King’s action a “high Breach of the Rights and Privileges of Parliament.” Id. at 1114. The six-year
English Civil War then followed, culminating in the execution of Charles. Id. at 1115. The preamble to
the treason charges Charles was convicted on stated that he had violated the “right and power of
frequent and successive Parliaments.” Id. at 1115–16.
33. JOSH CHAFETZ, DEMOCRACY’S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN
THE BRITISH AND AMERICAN CONSTITUTIONS 32 (2007) (describing a 1642 resolution of the House of
Commons, which “denied that the common-law courts ‘hath any Cognizance or Jurisdiction touching
the Commitment of any Person who stands committed by Order of both or either said Houses of
Parliament’”; also describing a 1647 resolution ordering the sergeant to show the cause of contemnors’
detention before the court, but noting that courts opted to instead follow the 1642 resolution).
34. Id. at 32–33 (citing Streater’s Case, (1653) 5 St. Tr. 365, 376–86 (U.B.), in which the court held
it could not review the legality of plaintiff’s imprisonment, even though the arrest warrant did not state
the details of his alleged contempt); id. at 35 (“The House of Commons is a Supreme Court, and they
are judges of their own privileges and contempts. . . . The House of Commons is the only judge of its
own proceedings.” (quoting Brass Crosby’s Case, (1771) 95 Eng. Rep. 1005, 1014 (K.B.) (Blackstone,
J., concurring)).
35. See Chafetz, supra note 14, at 1085–86.
36. 19 U.S. (6 Wheat.) 204 (1821).
37. Id. at 204, 215.
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any other Court or place.”38 The Court held that Congress does have an implied
power to protect itself from contempts, “which, from their very nature, admit of
no precise definition,” but it also imposed limits on the punishments available to
Congress.39 The Court did not cite British common law precedent for the basis
of its holding, and its imposition of limits to Congress’s power to punish
contempt indicates that Anderson did not establish an absolute power of Congress similar to that held by Parliament.40
The Supreme Court has acknowledged that the nature of Congress’s inherent
contempt power differs greatly from that of the British Parliament. In Marshall v.
Gordon, Chief Justice White observed that while the power of the House of Commons to punish contempt “without the intervention of courts . . . rested upon an
assumed blending of legislative and judicial authority,” at the time of the founding of
the United States “the incompatibility of the intermixture of the legislative and judicial
power was recognized and the duty of separating the two was felt.”41 Unlike the
“absolute and plenary” contempt power of Parliament, “from the very outset the use
of contempt power by [Congress] was deemed subject to judicial review.”42 While it
might be possible to argue that historical evidence instead indicates that a British-style
understanding of legislative contempt powers as absolute was predominant at the
nation’s founding,43 the Supreme Court’s view is clear. Because Congress’s contempt
38. Id. at 221–24 & n.a (citing Burdett v. Abbott, (1811) 104 Eng. Rep. 501 (K.B.), in which the
Court of King’s Bench dismissed the writ of habeas corpus of a contemnor alleging that his arrest
warrant did not allege the facts and circumstances surrounding his contempt).
39. Id. at 230–31 (limiting the punishment for contempt to imprisonment lasting no longer than the
current term of the House). It is ambiguous whether a similar time limit exists for the Senate’s use of
inherent contempt. Compare McGrain v. Daugherty, 273 U.S. 135, 181 (1927) (suggesting that the Senate, as a
“continuing body,” has inherent contempt powers that are not limited in duration), with Aaron-Andrew
P. Bruhl, Burying the “Continuing Body” Theory of the Senate, 95 IOWA L. REV. 1401 (2010) (arguing
that the Senate is not a continuing body and that the Senate’s inherent contempt power is thus limited in
duration).
40. Compare Anderson, 19 U.S. at 232–35, with CHAFETZ, supra note 33, at 33 (“‘[W]hen Parliaments do dissolve, their acts do not cease. Besides, a parliament is the Supreme Court . . . it is not for
other courts to question [its] proceedings.’” (quoting Streater’s Case, (1653) 5 St. Tr. 365, 392 (U.B.))).
41. 243 U.S. 531, 533–35 (1917) (citing the explicit limitations of state legislature contempt powers
in the state constitutions of Maryland and Massachusetts, limitations “wholly incompatible with judicial
authority,” as indicia of the prevailing attitude at the time the Federal Constitution was written); see
also Kilbourn v. Thompson, 103 U.S. 168, 189 (1880) (“[T]he powers and privileges of the House of
Commons of England, on the subject of punishment for contempts, rest on principles which have no
application to other legislative bodies, and certainly can have none to the House of Representatives of
the United States,—a body which is in no sense a court, which exercises no functions derived from its
once having been a part of the highest court of the realm . . . .”).
42. Watkins v. United States, 354 U.S. 178, 188, 192 (1957); see also Marshall v. Gordon, 243 U.S.
521, 547 (stating that the “the implied power to deal with contempt as ancillary to the legislative
power” is not “judicial authority”).
43. See Chafetz, supra note 14, at 1124–27 (arguing that many state constitutions at the time of the
nation’s founding provided “broad” contempt powers, and noting that a constitutional provision proposed to Article I by Charles Pinckney at the Philadelphia Convention would have stated: “Each House
shall be the Judge of its own privileges, and shall have authority to punish by imprisonment every
person violating the same.”). But see THOMAS JEFFERSON, A MANUAL OF PARLIAMENTARY PRACTICE: FOR
THE USE OF THE SENATE OF THE UNITED STATES 19 (Applewood Books 1993) (1801) (“[I]f one branch
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power entirely owes its legal validity to recognition by the Supreme Court, it is the
Court’s view that counts.
Finally, inherent contempt does not pose a nonjusticiable political question.
On the contrary, the Court’s treatment of Congress’s inherent contempt power is
consistent with its treatment of Congress’s other powers and protections. While
the Court in Nixon v. United States held that the use of another congressional
power, the impeachment power, was beyond judicial review, neither of the
factors the Court based this holding on applies to the implied contempt power.44
In Nixon, the Court held that “[a] controversy is nonjusticiable . . . where there
is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable
standards for resolving it . . . .’”45 Nonjusticiability in Nixon was supported both
by the Impeachment Clauses’ grant to Congress of the “sole Power” of impeachment46 and by historical evidence from the Philadelphia Convention that reflected a clear intent to disallow judicial review.47 Conversely, judicial tailoring
of Congress’s contempt power is appropriate because there is no textual commitment of the power in the Constitution48 and because historical evidence from
the founding regarding how much discretion Congress was understood to have
in using the power to protect its privileges is ambiguous.49 Finally, as with
Congress’s Speech or Debate Clause protection,50 the Court has found justiciable standards governing its use.51
C. LIMITS TO CONGRESS’S ENFORCEMENT POWERS
In Barenblatt v. United States, the Supreme Court summarized the scope and
nature of the limits on Congress’s investigatory and contempt powers:
may assume its own privileges without control; if it may do it on the spur of the occasion, conceal the
law in its own breast, and . . . make its sentence both the law and the judgment on that fact; if the
offence is to be kept undefined . . . and there be no limitation either in the manner or measure of the
punishment, the condition of the citizen will be perilous indeed.”).
44. 506 U.S. 224 (1993).
45. Id. at 228 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
46. U.S. CONST. art. I, §§ 2, 3.
47. Chief Justice Rehnquist noted that multiple proposals placing the impeachment power in the hands of
the Judiciary were rejected, 506 U.S. at 233, and concluded that the Framers felt the sole delegation of the
impeachment power to the legislature was necessary to limit the powers of the otherwise independent Judiciary
Branch. Id. at 235 (“This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own
judges.” (quoting THE FEDERALIST NO. 79 (Alexander Hamilton))).
48. Cf. United States v. Nixon, 418 U.S. 683, 704 (1974) (“Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the
Court has authority to interpret claims with respect to powers alleged to derive from enumerated
powers.”) (emphases added).
49. See supra note 43 and accompanying text.
50. See, e.g., United States v. Brewster, 408 U.S. 501, 528–29 (1972) (holding that Speech or Debate
Clause protection does not extend to bribes); Gravel v. United States, 408 U.S. 606, 627 (1972) (holding that the protection does not allow senators to publish classified government documents in a
newspaper).
51. See supra note 39 and accompanying text; infra note 57 and accompanying text.
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Since Congress may only investigate into those areas in which it may
potentially legislate or appropriate, it cannot inquire into matters which are
within the exclusive province of one of the other branches of the Government.
Lacking the judicial power given to the Judiciary, it cannot inquire into
matters that are exclusively the concern of the Judiciary. Neither can it
supplant the Executive in what exclusively belongs to the Executive. And the
Congress, in common with all branches of the Government, must exercise its
powers subject to the limitations placed by the Constitution on governmental
action . . . .52
This description includes two conceptually distinct limitations: (1) Congress
may only inquire into matters on which it could validly legislate, and (2) even if
Congress can validly legislate on a certain subject or matter, it may not violate
independent constitutional protections and limitations.53
1. Valid Legislative Purpose
The courts’ ability to evaluate the valid legislative purpose requirement is
limited by the protections of the Speech or Debate Clause.54 The Supreme Court
has held that because the Clause’s protections are absolute, it precludes courts
from investigating Congress’s purpose for seeking information.55 Therefore, the
Court has adopted a presumption of valid legislative purpose, “so long as
Congress might possibly have some legislative purpose for a given investigation.”56 This presumption makes it extremely difficult for contemnors to invoke
constitutional protections based on the motive or intent of the government
52. 360 U.S. 109, 111–12 (1959). The Court continued, “more particularly in the context of this case
the relevant limitations of the Bill of Rights.” Id. at 112.
53. Barenblatt is not the only case in which the Court distinguished these two types of limits. See
Quinn v. United States, 349 U.S. 155, 161 (1955) (holding that, in addition to the prohibition on Congress investigating matters unrelated to a valid legislative purpose, “[s]till further limitations on the
power to investigate are found in the specific individual guarantees of the Bill of Rights”). While some
observers recognize these two categories of limits, see, e.g., Randall K. Miller, Congressional Inquests:
Suffocating the Constitutional Prerogative of Executive Privilege, 81 MINN. L. REV. 631, 636–37
(1997), most focus on the first, jurisdictional limit announced by the Court and give little if any
attention to the second, see, e.g., Ronald L. Claveloux, The Conflict Between Executive Privilege and
Congressional Oversight: The Gorsuch Controversy, 1983 DUKE L.J. 1333, 1339–40 (1983).
54. See U.S. CONST. art. I, § 6, cl. 1 (“[F]or any Speech or Debate in either House, [Senators and
Representatives] shall not be questioned in any other Place.”).
55. United States v. Brewster, 408 U.S. 501, 525 (1972) (“[T]he Speech or Debate Clause protects
against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.”); see also Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 508–09 (1975).
56. Martin Shapiro, Judicial Review: Political Reality and Legislative Purpose: The Supreme
Court’s Supervision of Congressional Investigations, 15 VAND. L. REV. 535, 550 (1962). Before
Barenblatt and Eastland, the Court had warned Congress that it might be willing to investigate
congressional motive. See Watkins v. United States, 354 U.S. 178, 200 (1957) (“We have no doubt that
there is no congressional power to expose for the sake of exposure.”). Beyond a reluctance to consider
motive, the presumption of valid legislative purpose also signals the Court’s enlargement of what
subject matter is included within the valid legislative sphere of Congress. See, e.g., Kilbourn v.
Thompson, 103 U.S. 168, 195 (1880) (holding that an investigation into the private affairs of
individuals who are not officers of the government is outside of Congress’s valid legislative sphere).
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actor.57 However, the valid legislative purpose requirement still prevents Congress from using its contempt power to punish actions that plainly have no
legislative function.58
2. Limits Created by Constitutional Protections
While the courts cannot consider claims that Congress is using its contempt
power to aid in an improperly motivated investigation, it can consider claims
that the use of the contempt power violates a constitutional protection.59 For
example, the Court has suggested that the Constitution prohibits Congress from
infringing on First Amendment protections more than is necessary to pursue its
valid investigatory needs,60 from violating Fourth Amendment protection against
unreasonable searches and seizures by issuing unduly burdensome subpoenas,61
from violating a witness’s Fifth Amendment right against self-incrimination,62
and from violating a witness’s Fifth Amendment due process rights by failing to
tell him why a particular question or document is relevant to an investigation.63
57. See Eastland, 421 U.S. at 495, 503–06 (explaining that the Court’s inability to question the
motives of Congress prevented it from considering the merits of the plaintiff ’s claim that a Congressional subpoena violated the First Amendment because “the ‘sole purpose’ of the Subcommittee
investigation was to force ‘public disclosure of beliefs, opinions, expressions and associations of
private citizens which may be unorthodox or unpopular,’ and . . . the ‘sole purpose’ of the subpoena was
to ‘harass, chill, punish and deter . . . in their exercise of their rights and duties under the First
Amendment . . . .’”).
58. See Marshall v. Gordon, 243 U.S. 521, 530–33, 545 (1917) (holding that Congress could not use
its inherent contempt power to punish a U.S. Attorney for alleging that members of Congress were
attempting to interfere with grand jury proceedings by sending an anonymous letter to a newspaper and
later a signed letter to the investigating committee).
59. See, e.g., Watkins, 354 U.S. at 198 (“[T]he mere semblance of legislative purpose would not
justify an inquiry in the face of the Bill of Rights.”); id. at 188 (“The Bill of Rights is applicable to
[Congressional] investigations as to all forms of governmental action. Witnesses cannot be compelled
to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor
can the First Amendment freedoms of speech, press, religion, or political belief and association be
abridged.”).
60. See id. at 198 (considering defendant’s First Amendment defense to his criminal contempt
conviction and noting that “[t]he critical element is the existence of, and the weight to be ascribed to,
the interest of the Congress in demanding disclosures from an unwilling witness”; defendant’s
conviction was overturned on other grounds); see also Barenblatt v. United States, 360 U.S. 109, 126
(1959) (applying balancing test in criminal contempt case but finding the congressional investigation to
be within permissible limits).
61. See McPhaul v. United States, 364 U.S. 372, 382–83 (1960) (suggesting that a congressional
subpoena may not require an unduly burdensome production of materials, but requiring that the
defendant raise his Fourth Amendment objection to the congressional committee, and thus give the
committee a chance to remedy the burden if necessary, before raising this claim as an affirmative
defense at his criminal trial).
62. See Quinn v. United States, 349 U.S. 155, 161, 170 (1955) (upholding the Court of Appeals’
reversal of defendant’s criminal contempt conviction). Congress can avoid this limitation by granting
witnesses immunity, as it did with Oliver North and John Poindexter during the Iran–Contra investigation. See Frederick M. Kaiser & Walter J. Oleszek, CONG. RESEARCH SERV., RL 30240, CONGRESSIONAL
OVERSIGHT MANUAL 35 (2007). Congress has codified the process for granting such immunity at 18
U.S.C. §§ 6002, 6005 (2006).
63. See Deutch v. United States, 367 U.S. 456, 471 (1961) (overturning defendant’s criminal
contempt conviction); cf. Groppi v. Leslie, 404 U.S. 496 (1972) (reviewing a Wisconsin state legislature
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D. EXECUTIVE PRIVILEGE AS AN INDEPENDENT CONSTITUTIONAL LIMIT TO CONGRESS’S
ENFORCEMENT POWERS
The Supreme Court has never considered whether executive privilege limits
Congress’s contempt power. After describing a number of conflicts between the
Legislative and Executive Branches,64 Chafetz observes that “[u]ntil Watergate,
the courts never inquired into a contempt judgment against an executive branch
official that the house of Congress was jurisdictionally competent to make,”65
and argues that judicial consideration of executive privilege in congressional
contempt cases is improper.66 Prior to Watergate, however, Congress and the
President either resolved or backed down from conflicts over the branches’
privileges before judicial intervention became necessary,67 and Congress both
respected the constitutional rights of executive branch officials68 and paid high
deference to the Executive’s need for confidentiality.69 As Chief Justice Warren
observed, “It is not surprising, from the fact that the Houses of Congress so
sparingly employed the power to conduct investigations, that there have been
few cases requiring judicial review of the power.”70 Simply because courts did
not find the need to impose certain limits in the past does not mean that they
would not ever have been imposed, given the right abuse by Congress. The
lower courts’ later recognition and protection of executive privilege was compatible with Supreme Court precedent—executive privilege is the sort of limitation
the Court anticipated in Watkins and Barenblatt.
contempt action). For background information, see Rosenberg & Tatelman, supra note 13, at 58–65
(discussing all constitutional limits on Congress’s contempt powers).
64. See infra note 67.
65. Chafetz, supra note 14, at 1148.
66. Id. at 1146–47.
67. In 1834, after fighting with President Jackson over the scope of his executive authority, the
Senate censured Jackson for his “breach of the privileges of the Senate”; the resolution was later
expunged from the Senate record. Id. at 1133. In 1842, the House passed a similar resolution chastising
President Tyler, but took no further action. Id. at 1133–34. In 1866, the House declared that the Provost
Marshal General of the Army was guilty of a “gross violation of [its] privileges” and abolished the
Provost Marshal General’s office. Id. at 1134–35. In none of these cases did Congress exercise its
contempt powers against an executive branch official. One commentator concludes that, “throughout
the nineteenth century, resolution of disputes over congressional access to executive documents took
the form of negotiated compromise.” Todd D. Peterson, Prosecuting Executive Branch Officials for
Contempt of Congress, 66 N.Y.U. L. REV. 563, 569 (1991).
68. In 1879, the House held George Seward, the U.S. Minister to China, in contempt for ignoring its
subpoena and had the Sergeant at Arms arrest him. The Sergeant at Arms apprehended Seward and
brought him to the House. The House did not force Seward to testify, however, after he invoked his
Fifth Amendment right against self-incrimination (impeachment proceedings were also brought against
Seward, which the House Judiciary Committee decided gave merit to his Fifth Amendment defense).
Chafetz, supra note 14, at 1135–37.
69. See Peterson, supra note 67, at 569 (“On a number of . . . occasions, Congress expressly
authorized the President to exclude material that he thought confidential.”). In 1807, 1825, 1854, and
1861, Congress passed resolutions asking presidents to produce certain information unless the President
felt doing so would harm the public interest. Id. at 569 n.33; President Franklin Pierce, Special Message
to the Senate of the United States (Aug. 1, 1854), available at http://www.presidency.ucsb.edu/ws/
?pid⫽67847.
70. Watkins v. United States, 354 U.S. 178, 193 (1957).
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The Supreme Court recognized the existence of executive privilege in
United States v. Nixon,71 but only the District of Columbia District and Circuit
Courts have held it to limit the investigatory powers of Congress.72 The
extension of executive privilege to limit Congress’s investigatory powers is
consistent both with the Supreme Court’s recognition of executive privilege and
with the Court’s past enforcement of constitutional limits in congressional
contempt cases. The D.C. federal courts properly applied executive privilege as
an independent constitutional limit, rather than as part of the valid legislative
purpose requirement, on Congress’s information-seeking and contempt powers.
This assertion is admittedly controversial. Some observers argue that the legislative purpose requirement is controlling—if Congress is acting within its proper
legislative sphere, a claim of executive privilege must fail.73 Such a view,
however, fails to consider that executive privilege is likely among the handful
of constitutional protections that limit Congress’s contempt power, and that
some of these limitations apply through careful balancing.74
In Senate Select Committee v. Nixon, the Senate Select Committee on Presidential Campaign Activities filed suit in the D.C. District Court to enforce a subpoena for tape recordings of presidential conversations.75 President Nixon had
refused to comply with the subpoenas, citing executive privilege.76 Before the
71. 418 U.S. 683, 707, 713 (1974) (holding that executive privilege protects presidential communications against subpoenas in criminal cases where the communications are not “essential” to the justice of
the pending case); see also id. at 711–12 (“In this case we must weigh the importance of the general
privilege of confidentiality of Presidential communications in performance of the President’s responsibilities against the inroads of such a privilege on the fair administration of criminal justice.”).
72. See Senate Select Comm. v. Nixon, 498 F.2d 725, 731–33 (D.C. Cir. 1974); Senate Select
Comm. v. Nixon, 370 F. Supp. 521, 524 (D.D.C. 1974); see also Jonathan K. Geldert, Presidential
Advisors and Their Most Unpresidential Activities: Why Executive Privilege Cannot Shield White
House Information in the U.S. Attorney Firings Controversy, 49 B.C. L. REV. 823, 827 & nn.24–25
(2008). In Nixon the Supreme Court was careful to avoid this issue. See 418 U.S. at 712 n.19 (“We are
not here concerned with the balance between the President’s generalized interest in confidentiality
and . . . congressional demands for information . . . .”).
73. See, e.g., Magid, supra note 16, at 575 (“[E]xecutive privilege derives from the absence of power to
compel information disclosure rather than the affirmative power to foreclose compelled disclosure.”);
id. at 581 (arguing that the only “privilege” claims available to executive branch officers arise when
Congress is not seeking information “relevant to any possible legal purpose”). One observer concedes
that executive privilege does limit Congress’s information-seeking power in some limited national
security or “state secret” matters, but argues that it is nevertheless only a part of the valid legislative
purpose requirement. See J. Richard Broughton, Paying Ambition’s Debt: Can the Separation of Powers
Tame the Impetuous Vortex of Congressional Investigations?, 21 WHITTIER L. REV. 797, 823–24, 830
(2000) (arguing that executive privilege prevents Congress from inquiring into areas “not . . . within the
legitimate legislative sphere” and that “executive privilege . . . should not prevail when a congressional
inquiry involves legitimate legislative interests that do not invade specific military or state secrets
related to the President’s commander-in-chief authority and do not strip the President of ‘exclusive
control’ over his Article II powers”).
74. One observer appears to agree with this assertion. See Miller, supra note 53, at 638, 692 (calling
executive privilege a “constitutionally-based prerogative” and concluding that courts must employ “a
functional balancing test that asks whether the executive interest in secrecy outweighs the congressional
interest in disclosure”).
75. 370 F. Supp. at 521–22.
76. Id. at 522.
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Committee filed the suit, Congress passed a special jurisdiction-granting statute
to allow the court to hear the case;77 the Senate had not, however, voted to hold
the President in contempt for failing to comply with the Committee’s subpoena.
The district court found that the Committee failed to demonstrate a need
sufficient to overcome the President’s claim of privilege.78 The circuit court
upheld the district court, though it relied on somewhat different reasoning.79
Neither the district nor circuit court held that the Senate Committee was
investigating a matter outside of its proper legislative sphere.80 Rather, they
held that executive privilege imposes an additional requirement on the Committee: the district court required the Committee to show a “pressing need” for the
subpoenaed materials,81 and the circuit court required a showing that the
materials are “critical to the performance of its legislative functions.”82 This
heightened requirement bears no resemblance to the highly deferential valid
legislative purpose requirement.
The D.C. federal courts’ use of balancing tests to consider the Executive’s
claim of privilege in Senate Select Committee was similar to the Supreme
Court’s use of a balancing test to consider the First Amendment claim of the
defendant in Barenblatt. In Barenblatt, the defendant appealed his criminal
contempt conviction on multiple grounds.83 After concluding that the House
Committee on Un-American Activities acted within the proper scope of its
legislative authority in questioning the defendant, the Court considered whether
the Committee’s inquiry into his Communist Party affiliations violated the First
Amendment.84 “[T]he issue always involves a balancing by the courts of the
competing private and public interests at stake in the particular circumstances
shown.”85 Similarly, the district court in Senate Select Committee balanced “the
public interests that would be served by disclosure” against the President’s
claim of privilege and the impact disclosure would have on expected criminal
trials, and required the Committee to demonstrate a “pressing need” for the
tapes.86 While the court acknowledged that “[t]he Committee itself must judge
whether” seeking the tapes serves the public interest and serves its legislative
function, it “exercise[d] its discretion not to enforce a subpoena which would
77. Act of Dec. 18, 1973, Pub. L. No. 93-190, 87 Stat. 736.
78. Senate Select Comm., 370 F. Supp. at 522.
79. Senate Select Comm. v. Nixon, 498 F.2d 725, 733 (D.C. Cir. 1974).
80. The district court stated that “[t]he Committee itself must judge whether” seeking the tapes
serves the public interest and serves its legislative function. Senate Select Comm., 370 F. Supp. at 524.
The circuit court stated that “[t]he investigative authority of the Judiciary Committee with respect to
presidential conduct has an express constitutional source.” Senate Select Comm., 498 F.2d at 732.
81. Senate Select Comm., 370 F. Supp. at 522.
82. Senate Select Comm., 498 F.2d at 732 (emphasis added). The court also characterized this requirement as “demonstrably critical to the responsible fulfillment of the Committee’s functions.” Id. at
731.
83. Barenblatt v. United States, 360 U.S. 109, 115–16 (1959).
84. Id. at 122, 126.
85. Id. at 126. The Court ultimately held that no First Amendment violation had occurred. Id. at 134.
86. 370 F. Supp. at 522.
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exacerbate the pretrial publicity in areas that are specifically identified with
pending criminal charges.”87 The circuit court did not use the same “balancing”
language, but engaged in a similar weighing of interests.88 Because executive
privilege is a matter of degree rather than a hard limit on congressional action, it
is better categorized as an independent limit, not a jurisdictional limit.
II. USE OF CONGRESS’S ENFORCEMENT POWERS AGAINST EXECUTIVE BRANCH
OFFICIALS AND INVOCATION OF EXECUTIVE PRIVILEGE AS A DEFENSE
If executive privilege is an independent constitutional limitation on congressional action, an executive branch official may raise, and courts may consider,
an authorized claim of executive privilege regardless of what type of enforcement power Congress uses against him. There is no guarantee that a court
would conclude the claim of executive privilege outweighs Congress’s information-gathering privilege, but the official could nevertheless raise the claim—
either as a defense in criminal or civil proceedings, or through a writ of habeas
corpus if Congress uses inherent contempt. Some observers suggest that executive branch officials enjoy even greater protection from congressional subpoena
enforcement—they argue that Congress may not use either criminal or inherent
contempt against executive branch officials in the first instance. These arguments are unconvincing. Congress is generally free to use any of its enforcement powers against executive branch officials and courts are generally free to
hear authorized claims of privilege. However, one scenario does exist in which
a court could not consider a claim of privilege: congressional subpoenas of
privileged information from private third parties. Such a situation, especially if
it involves national security information, poses a clash of absolute privileges
that the courts might not be able to resolve.
A. CRIMINAL CONTEMPT
It seems likely that executive privilege is available as an affirmative defense
to criminal contempt charges: the Supreme Court has recognized executive
privilege in grand jury proceedings89 and it has enforced other constitutional
protections in criminal contempt cases.90
Although the executive privilege defense would likely be available to executive branch officials facing criminal contempt charges, it is ambiguous whether
the Department of Justice is, or could be, required to press such charges in the
first place. Although 2 U.S.C. § 194 states that the “duty” of the U.S. Attorney
87. Id. at 524.
88. Senate Select Comm. v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974).
89. See United States v. Nixon, 418 U.S. 683, 707 (1974). The Court’s consideration of executive
privilege in the context of pending criminal charges in Nixon suggests that privilege would remain
relevant after charges are made: “Since we conclude that the legitimate needs of the judicial process
may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner
that preserves the essential functions of each branch.” Id.
90. See supra section I.C.2.
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“shall be to bring the matter before the grand jury,” it is unclear whether the
U.S. Attorney has discretion not to bring the indictment. If the statute limits the
prosecutorial discretion of the Executive, it may be unconstitutional.91 In the
2007 investigation of U.S. Attorney dismissals, Attorney General Mukasey
effectively halted the efforts of the House to bring criminal contempt charges
against executive branch officials.92 In 2009, Representative Brad Miller introduced the Special Criminal Contempt of Congress Procedure Act in the House.93
Aimed at preventing future blocking of criminal contempt indictments, the bill
provides for the appointment of a Special Counsel to bring an indictment if the
U.S. Attorney fails to do so within thirty days.94 If passed, this law—or a
slightly modified version of it—would likely withstand constitutional scrutiny
under Morrison v. Olson.95 If it does, it would clear the way for the future use of
criminal contempt against executive branch officials.
Commentators have provided two arguments that Congress may not use its
criminal contempt power against executive branch officials—neither withstands
scrutiny. First, in a 1984 Office of Legal Counsel memo, Ted Olson argued that
because Congress can choose civil enforcement rather than criminal contempt,
91. See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a
Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101, 102, 126 (1984) (citing Nixon, 418 U.S. at
693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether
to prosecute a case.”)). But see Ex parte Frankfeld, 32 F. Supp. 915, 916 (D.D.C. 1940) (discussing § 192 in
dicta) (“[Congress] left no discretion with the district attorney as to what he should do about it. He is
required, under the language of the statute, to submit the facts to the grand jury.”).
92. See supra note 6 and accompanying text.
93. H.R. 277, 111th Cong. (2009). Miller introduced H.R. 277 as a response to Mukasey’s actions
during the U.S. Attorney dismissals controversy. Discussion with Rep. Brad Miller (Nov. 19, 2009).
The bill provides “an alternate procedure for the prosecution of certain criminal contempts referred for
prosecution by the House.” H.R. 277.
94. H.R. 277.
95. 487 U.S. 654 (1988). The Supreme Court held that the independent counsel provisions of the
Ethics in Government Act were constitutional, in part because “with the exception of the power of
impeachment—which applies to all officers of the United States—Congress retained for itself no
powers of control or supervision over an independent counsel.” Id. at 694. H.R. 277 contains the same
removal provisions, compare 28 U.S.C. § 596(a) (2006), with H.R. 227, § 4(a), 111th Cong. (2009), and
contains a similar requirement that the counsel make a progress report to Congress, compare 28 U.S.C.
§ 595(a)(2) (2006) (requiring an annual report on the independent counsel’s “activities,” including the
“progress of any investigation,” and allowing the omission of “any matter that in the judgment of the
independent counsel should be kept confidential”), with H.R. 277, § 3(g) (requiring an annual report
including the same information, but not excepting the inclusion of confidential information). But unlike the independent counsel provisions, which authorized any litigation “that [the] independent counsel
considers necessary,” 28 U.S.C. § 594(a)(2) (2006), H.R. 277 limits the counsel’s prosecutorial jurisdiction to the specific violation alleged by Congress, H.R. 277, § 3(a)(2). This discrepancy creates
doubt as to whether H.R. 277 avoids impermissibly burdening the Executive’s prosecutorial discretion
under Morrison, see 487 U.S. at 696, and Nixon, see 418 U.S. at 708–09, because it means that
Congress could require prosecutions of specific individuals. Additionally, while the independent
counsel provisions required the Attorney General to request judicial appointment of the counsel,
28 U.S.C. § 592 (2006), H.R. 277 provides for automatic appointment if the Attorney General fails to
bring a statutory contempt indictment. If H.R. 277 were struck down on this or one of the previously
mentioned grounds, Congress could rewrite the law to more closely parallel the independent counsel
provisions of the Ethics in Government Act.
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and because the threat of criminal sanction makes executive officials less likely
to risk a claim of privilege, “the constitutionally mandated separation of powers
requires the statute to be interpreted so as not to apply to Presidential assertions
of privilege.”96 This argument is unconvincing. It seems unlikely that the threat
of criminal sanctions would dissuade executive branch officials from invoking
privilege when the president has asked—or ordered—them to do so; the officials know that if they are convicted, the President will likely pardon them.97
Even if the threat of criminal sanctions does have some negative effect on
officials’ willingness to invoke privilege, this same effect is created by the threat
that a court will use its contempt power to force compliance with its orders
when Congress seeks civil enforcement.98 Second, some observers cite legislative history to argue that Congress never intended the criminal contempt statute
to be able to reach executive branch officials.99 However, the legislative history
shows that while members of Congress intended the statute to provide a means
of deterring corruption within Congress, they also recognized its potential to aid
in investigation of the Executive Branch.100
B. INHERENT CONTEMPT
Executive privilege is probably also available as a defense to Congress’s use
of inherent contempt. Habeas corpus provides a means of raising claims that
96. Prosecution for the Contempt of Congress of an Executive Branch Official Who Has Asserted a
Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101, 140 (1984); see also Response to
Congressional Requests for Information Regarding Decision Made Under the Independent Counsel Act,
10 Op. Off. Legal Counsel 68, 86 (1986).
97. If the officials threatened with contempt, knowing the full extent of wrongdoing that may have
occurred, fear that the President will ultimately be impeached, the rationale that executive privilege
should be available at all breaks down. Executive privilege exists to enable the President to better serve
his constitutional functions, not to protect a criminal conspiracy.
98. For an alternate view, see Miller, supra note 53, at 677–79 (“If executive privilege is a
constitutional prerogative that is presumptively valid, as the Court ruled in Nixon, then an executive
officer should not have to become a criminal defendant, being prosecuted by fellow executive officers,
in order to successfully assert the privilege against Congress.”).
99. See, e.g., 8 Op. Off. Legal Counsel 101, 130 (1984) (citing [34th] Cong. 3d Sess. 431 (1857))
(interpreting floor statement of Representative Orr: “The implication is that Congress did not intend the
bill to apply to Presidential assertions of privilege.”); Peterson, supra note 67, at 624 & n.344 (same).
100. Both supporters and opponents of the bill assumed its reach extended to demands made of the
Executive. Representative Marshall, worried that the criminal contempt statute “takes within its scope
every man, woman, and child in the Republic,” introduced an amendment intended to limit its scope to
matters “[t]ouching the official conduct of any [congressman], or of any officer of the Government of
the United States.” See CONG. GLOBE, 34th Cong. 3d Sess. 429 (1857). Representative Dunn expressed
concern that the statute would allow Congress to discover and divulge “what was transpiring in the
executive department of the Government . . . [where] such a disclosure might be productive of great
mischief, and in time of war of absolute ruin to the country.” Id. at 431. To the notion that the power
would be used maliciously, Representative Orr replied that he could “hardly conceive of such a case,”
but Orr also stated that forced disclosures from the Executive Branch, such as those in the Secret
Service Fund investigation, were “right and proper.” Id. See generally Morton Rosenberg & Todd B.
Tatelman, CONG. RESEARCH SERV., RL 34114, CONGRESS’S CONTEMPT POWER: A SKETCH 12–13 (2008),
(discussing the exchange and providing background information on the Secret Service Fund investigation of 1846).
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Congress has improperly used inherent contempt,101 but the Supreme Court has
only previously limited the inherent contempt power when Congress did not use
it for a valid legislative purpose—when it exceeded the jurisdictional scope of
the power.102 In Marshall v. Gordon, the Court stated that because the contempt
power (at that time) did not include the power to punish, constitutional limitations typical of judicial proceedings had no relevance in inherent contempt
proceedings.103 In Jurney v. MacCracken, however, the Court decided that
Congress could use inherent contempt for a wholly punitive purpose.104 The
extension of constitutional protections to individuals upon whom Congress uses
its inherent contempt powers would therefore appropriately reflect the current
ability of Congress to use the power to punish. Such an extension of constitutional protections is also consistent with both the Court’s indications that
Congress’s contempt power (even in the form of inherent contempt) is not
absolute105 and the assertion that the Court holds the ultimate power to determine the scope of executive privilege.106
Separation of powers doctrine does not prevent Congress from using inherent
contempt against the Executive. The Office of Legal Counsel does not believe
that Congress can use its inherent contempt power against executive branch
officials: in his 1984 memo, Ted Olson argued that separation of powers
doctrine prohibits the use of inherent contempt power against the Executive for
the same reason that it prohibits use of criminal contempt.107 In a brief filed in
Miers, the Department of Justice called the claim that inherent contempt allows
“arrest of the President or his closest aides for refusing to testify or provide
privileged documents, at the President’s discretion” a “dubious proposition.”108
The district court in Miers argued that, if the House had used its inherent
contempt power to compel Bolten and Miers to comply with its subpoenas, the
defendants’ claims of absolute immunity—and, it might be inferred, their claims
of executive privilege—would be justiciable through a writ of habeas corpus.109
The court in Miers reached the right conclusion. The notion that Congress
101. Courts have granted writs of habeas corpus in several inherent contempt cases (not an
inconsiderable amount, considering how seldom Congress has used inherent contempt). See Jurney v.
MacCracken, 294 U.S. 125, 152 (1935); McGrain v. Daugherty, 273 U.S. 135, 182 (1927); Marshall v.
Gordon, 243 U.S. 521, 548 (1917).
102. Marshall, 243 U.S. at 547; Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 215 (1821) (limiting
length of punishment the House may impose to the term of the current session). Chafetz argues that
habeas review may not exceed such jurisdictional considerations. See Chafetz, supra note 14, at 1152.
103. 243 U.S. at 547–48.
104. 294 U.S. at 152 (upholding use of inherent contempt power, where power was used only after
the contempt ended).
105. See supra section I.B.
106. United States v. Nixon, 418 U.S. 683, 705 (1974); see also Comm. on the Judiciary v. Miers,
558 F. Supp. 2d 53, 56 (D.D.C. 2008).
107. Prosecution for the Contempt of Congress of an Executive Branch Official Who Has Asserted a
Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101, 140 & n.42 (1984).
108. Reply in Support of Defendant’s Motion to Dismiss at 22 (2008 WL 2443291), Miers,
558 F. Supp. 2d 53 (D.D.C. 2008).
109. Miers, 558 F. Supp. 2d at 92.
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might use its inherent contempt power against the Executive should not be
dismissed out of hand.110 Congress has used the power against the Executive in
the past, and did so with respect for constitutional protections.111 If Congress
were to overreach in its use of inherent contempt, the courts could step in to
enforce executive privilege through habeas corpus consideration. If, rather than
waiting to petition for a writ of habeas corpus,112 the Executive were to refuse
to surrender an official to the Sergeant at Arms, the courts would still be able to
intervene. Congress could seek declaratory and injunctive relief from the Judiciary; the case would not lack ripeness, as a standoff at gunpoint is invariably a
“controversy,” and the reviewing court would be unlikely to hold the issue to be
a nonjusticiable political question.113
C. CIVIL ENFORCEMENT OF SUBPOENAS
Finally, executive privilege is available as a defense to Congress’s use of civil
enforcement of its subpoenas. The extension of constitutional protections to
individuals whom courts order to comply with congressional subpoenas is
appropriate not only because such coercion can create criminal liability (as
when an individual is forced to testify against himself), but also because
constitutional protections limit all government action. While the Senate’s civil
enforcement statute does not apply to officials making a claim of executive
privilege,114 Congress is free to pass a broader civil enforcement statute, and as
the court held in Miers, the Constitution itself may create an implied cause of
action.115
Judicial enforcement of constitutional protections is not available until Congress uses, or asks a court to use, coercive force: an executive branch official
cannot file a civil suit invoking executive privilege to enjoin the enforcement of
a congressional subpoena before Congress has used one of its contempt powers
or seeks civil enforcement. In Eastland v. United States Servicemen’s Fund, the
Supreme Court held that that the Speech or Debate Clause is “an absolute bar to
interference” with the issuance of subpoenas.116 The D.C. District Court in
United States v. House of Representatives followed this rule when it dismissed a
civil suit filed by the Executive to enjoin enforcement of a congressional
subpoena issued to the Administrator of the Environmental Protection Agency.117
110. See, e.g., Response to Congressional Requests for Information Regarding Decision Made
Under the Independent Counsel Act, 10 Op. Off. Legal Counsel 68, 86 (1986).
111. See supra note 68 (discussing the Seward incident); see also supra note 69 (discussing the
deference Congress extended in its requests for information to the Executive’s need for confidentiality
throughout the nineteenth century).
112. In Miers, Judge Bates expressed concern that this “serious constitutional crisis” could occur.
558 F. Supp. 2d at 83.
113. See supra section I.B.
114. See supra note 29 and accompanying text.
115. See supra note 30 and accompanying text.
116. 421 U.S. 491, 503 (1975).
117. 556 F. Supp. 150, 152 (D.D.C. 1983).
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The court held that judicial resolution of the Executive’s claim of privilege “will
never become necessary unless Administrator Gorsuch becomes a defendant in
either a criminal contempt proceeding or other legal action taken by Congress.”118
When a house of Congress itself initiates a civil action to enforce a subpoena
it does not waive its Speech or Debate Clause protection—the Court has even
suggested that it might be impossible to waive this protection.119 Congress
retains its Speech or Debate Clause protection in its ongoing investigation, but
this protection does not preclude the court from considering an executive
official’s defense claim of privilege.120 Retention of immunity in the ongoing
congressional investigation means that while the court can decline to enforce
the subpoena, it cannot enjoin future subpoenas or activities in the investigation.121 Though the Senate’s civil enforcement statute cannot be used to enforce
subpoenas against officials validly claiming executive privilege, the statute’s
legislative history reveals that Congress feels the courts have only limited
jurisdiction when reviewing civil enforcement actions. The Senate Report accompanying the original 1978 version of the statute stated:
Congress does not waive its immunity from court interference with its exercise of its constitutional powers. When the court is petitioned solely to enforce
a congressional subpoena, the court’s jurisdiction is limited to the matter
Congress has brought before it, that is whether or not to aid Congress in
enforcing the subpoena or order.122
But while Congress retains its Speech or Debate Clause protection, it cannot
limit courts’ jurisdiction to prevent the courts from considering constitutional
issues. The civil enforcement statute Senate Report seems to imply that a
reviewing court may only consider whether a subpoena was issued pursuant to a
valid legislative purpose: “the court will first determine the validity of the
congressional proceeding before it will impose a sanction on the party.”123 The
118. Id. at 153 (emphasis added). While some observers viewed the court’s ruling as an indication
that it would not consider the claim of executive privilege unless it was made in response to a criminal
contempt citation, see Miller, supra note 53, at 659 & n.149; David A. O’Neil, The Political Safeguards
of Executive Privilege, 60 VAND. L. REV. 1079, 1091 & n.52 (2007), the court was simply acknowledging that it had no power to intervene until Congress took some action to enforce its subpoena—
including a civil enforcement action.
119. See United States v. Helstoski, 442 U.S. 477, 490–91 (1979) (expressing doubt whether an
individual congressman can waive Speech or Debate Clause immunity from criminal prosecution for
legislative actions, and holding that, if it is possible, any such waiver would need to be “explicit and
unequivocal”).
120. See generally Geldert, supra note 72 (reaching the same conclusion).
121. This continuing congressional privilege is consistent with Eastland, and Congress has signaled
that conferral of jurisdiction on the courts to hear its enforcement claims does not limit the privilege.
See supra note 116 and accompanying text.
122. S. REP. NO. 95-170, at 94 (1977) (report accompanying Pub. L. No. 93-190, 87 Stat. 736); see
also supra note 26 (discussing 87 Stat. 736).
123. S. REP. NO. 95-170, at 41 (emphasis added).
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Constitution’s Exceptions Clause allows Congress to limit courts’ subject matter
jurisdiction124 but does not allow it to skirt constitutional protections, such as
the limited protection afforded by executive privilege.125 The Senate’s civil
enforcement statute uses aggressive language, but does not actually limit the
jurisdiction of the court to consider constitutional claims:
Nothing in this section shall confer upon such court jurisdiction to affect by
injunction or otherwise the issuance or effect of any subp[o]ena or order of
the Senate or any committee or subcommittee of the Senate or to review,
modify, suspend, terminate, or set aside any such subp[o]ena or order.126
While this remains true of judicial review of all congressional subpoena civil
enforcement actions (whether conducted under § 1365 or otherwise), if the
court declines to enforce a subpoena, the subpoena becomes a dead letter. If it
has not already tried, Congress can attempt to enforce the subpoena with
inherent or criminal contempt, but the court would almost certainly halt these
efforts for the same reason it denied civil enforcement.
D. THIRD-PARTY SUBPOENAS: A THREAT TO BOTH CONGRESSIONAL AND
EXECUTIVE PRIVILEGE
One scenario exists that may threaten both Congress’s absolute protection
under the Speech or Debate Clause and the Executive’s ability to make claims
of privilege: congressional subpoenas of privileged information from private
parties. The D.C. federal courts faced this issue in United States v. AT&T.127 In
this case, the Executive filed a civil suit to enjoin AT&T from complying with a
House subcommittee subpoena to turn over phone records related to the subcommittee’s investigation of warrantless wiretaps, claiming that release of the information would compromise national security.128 Because the Executive enjoys heightened privilege in matters involving national security,129 and because
under Eastland subpoenas cannot be challenged absent a Congressional enforcement action,130 the D.C. Circuit Court recognized a “[c]lash of [a]bsolutes.”131
124. U.S. CONST. art. III, § 2, cl. 2 (“In all the other Cases . . . the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.”).
125. See Christopher T. Handman, The Doctrine of Political Accountability and Supreme Court
Jurisdiction: Applying a New External Constraint to Congress’s Exceptions Clause Power, 106 YALE L.J.
197, 209 (1996) (“[E]ven absolutists concede that general constitutional provisions external to Article III, such as the Bill of Rights, equal protection, and prohibitions contained in section 9 of Article I
remain applicable to congressional exercise of the exceptions power. Congress’s power under the
Exceptions Clause, as absolutists conceive it, ‘cannot be exercised in a manner which violates some
other Constitutional rule.’” (footnotes omitted)).
126. 28 U.S.C. § 1365(b) (2006).
127. 551 F.2d 384 (D.C. Cir. 1976).
128. Id. at 385–88.
129. See United States v. Reynolds, 345 U.S. 1, 10 (1963).
130. See supra section II.C.
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Ultimately, the court upheld a partial injunction, allowing limited compliance with the subpoena given judicial in camera review, and stated that “the
immunity from judicial inquiry afforded by the Speech or Debate Clause is
personal to members of Congress. Where they are not harassed by personal suit
against them, the clause cannot be invoked to immunize the congressional
subpoena from judicial scrutiny.”132 While the circuit court reached an admirable resolution in this case, it came dangerously close to violating Congress’s
Speech or Debate protection. If the Executive had brought its suit against the
Congress directly, instead of against AT&T, or if AT&T had filed an injunctive
suit against Congress, Eastland might have required dismissal.
III. IMPLICATIONS
A. THREE EQUAL METHODS TO COMPEL EXECUTIVE COMPLIANCE?
Before choosing to use civil enforcement, rather than inherent contempt, to
force Miers and Bolten to comply with subpoenas in the U.S. Attorney dismissals investigation, the House concluded that inherent contempt would not offer
greater protection from the contemnors’ claims of executive privilege.133 Similarly, when the Senate passed the civil enforcement statute in 1978, it concluded
that “[c]ommencing a civil action to enforce a subp[o]ena or order . . . creates
no new dependence by Congress on the courts and no new right of a court to
review congressional actions. It does provide flexibility in enforcing congressional subpoenas.”134 As the investigation of case precedent and history in Parts
I and II has shown, these conclusions are likely correct. Additionally, as Part II
has shown, each form of contempt offers a viable means of forcing executive
branch compliance, but each is also subject to a court’s balancing of executive
privilege.135 Therefore, the argument of some observers—that Congress should
have used inherent contempt instead of civil enforcement during the U.S.
Attorney dismissals investigation because it would have provided a legal advantage136—is without merit. But although no enforcement option can provide Congress
with a legal shield from an authorized claim of executive privilege, the enforcement
powers do offer different practical advantages and disadvantages.
131. AT&T, 551 F.2d at 391.
132. United States v. AT&T, 567 F.2d 121, 130 (D.C. Cir. 1977).
133. Discussion with Irvin B. Nathan, counsel for the House in Comm. on the Judiciary v. Miers,
558 F. Supp. 2d 53 (D.D.C. 2008) (Sept. 17, 2009).
134. S. REP. NO. 95-170, at 41 (1977) (arguing that the scope of judicial review is the same regardless of what type of enforcement power the Senate uses).
135. While Congress currently has difficulty using criminal contempt against executive branch
officials, proposed legislation would solve this problem in a way that courts are likely to uphold. See
supra section II.A. And even if Miers incorrectly found an implied cause of action for civil enforcement
of subpoenas, Congress could pass a new expansive civil enforcement statute. It could not, however,
limit this jurisdiction to prevent courts from considering a claim of executive privilege. See supra
section II.C.
136. See supra note 15 and accompanying text.
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B. SELECTING A CONTEMPT OPTION FOR PRACTICAL ADVANTAGE
While Congress’s enforcement options are roughly equivalent from a legal
standpoint, they offer different practical advantages. Which option is most advantageous depends on Congress’s ultimate goal and how it wants the public to
perceive its action.
Criminal contempt has a greater ability than both inherent contempt and civil
enforcement to intimidate the contemnor,137 but because the sanction cannot be
made contingent on continued refusal to comply, criminal contempt is less
suited for ensuring compliance than the other options. Additionally, while
Congress can likely require executive branch officials to bring criminal contempt citations without violating the Executive’s prosecutorial discretion,138 this
does require passing a new law. Because Congress typically uses its enforcement powers against the Executive during times of heightened political tension,
the Senate might not be able to rally sixty votes for such a bill—and Congress
likely lacks the foresight and motivation to pass such a bill before the need to
force a criminal contempt citation arises.139 Where Congress seeks only to
punish an impeachable executive branch official, it may in some instances be
more advantageous to simply impeach him because the official could not raise a
justiciable claim of executive privilege.140 Impeachment, however, requires the
cooperation of both houses of Congress, whereas a single house can bring a
criminal contempt citation.
Inherent contempt allows Congress to enforce its subpoenas without aid
from the other branches, but long delays may be created when the contemnors
file writs of habeas corpus. These delays may ultimately lead to the expiration
of the inherent contempt power with the end of the current term of Congress.
The Senate, however, might not face this drawback.141 Using inherent contempt
also risks either a public relations disaster or a constitutional crisis. While the
judiciary would be unlikely to find the issue nonjusticiable,142 it is possible that
a standoff could occur when Congress initially attempts to enforce its inherent
contempt arrest order. Such a situation could either end with the executive
branch official being hauled to Congress in front of news cameras or with a
violent confrontation. Congressman Brad Miller, the sponsor of the 2009 criminal contempt procedure bill,143 called the possibility of an executive branch
official being dragged through the streets of Washington by the Sergeant at
137. The intimidation effect of criminal contempt will be even greater if Congress passes H.R. 227,
as it raises the maximum penalty to two years imprisonment and a one million dollar fine. H.R. 277,
111th Cong. § 6 (2009).
138. See supra notes 93–95 and accompanying text.
139. See infra text accompanying note 155.
140. See Broughton, supra note 73, at 834–36.
141. See supra note 39 (citing opposing views on whether the Senate is a “continuing body” and
thus has contempt powers of indefinite duration).
142. See supra sections I.B., II.B.
143. See supra note 93 and accompanying text.
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Arms a “distasteful spectacle,” and the possibility of a violent confrontation a
“nightmare scenario.”144 Congress might nevertheless find the opportunity to
publicly arrest an executive branch official desirable; like the public arrests and
“perp walks” of investment bankers suspected of insider trading in the 1980s,145
Congress could use inherent contempt as a public relations weapon.
As with inherent contempt, civil enforcement risks dismissal of the case as
moot if it is not resolved before the end of the current term of Congress,146 but
civil enforcement does not create a risk of violence or a public relations
debacle. Civil enforcement is probably Congress’s best option when its goal is
to actually obtain subpoenaed information, rather than to punish the Executive
or tarnish the reputation of individual officials: unlike inherent contempt, which
is likely to invoke either a defensive or aggressive response from the Executive,
a civil enforcement action is likely to lead to either cooperation or deal-making.
In Miers, even though the D.C. Circuit indicated that the House would likely
lose its case due to the expiration of the current term of Congress,147 the parties
nevertheless reached a compromise.148 In certain situations, however, Congress
may not want to portray itself as cooperating with the Executive: if the
Executive was mired in a crippling scandal, it might be more advantageous for
Congress to use inherent contempt to distance itself from the President’s
administration.
From a practical standpoint, which enforcement power Congress should use
depends on its objective. If Congress seeks merely to punish an executive
branch official for refusing to comply, it should use criminal contempt. If it is
primarily concerned with obtaining the subpoenaed information, it should use
civil enforcement. And if it seeks the opportunity for a public-relations coup, it
should use inherent contempt; but because this last option involves a highstakes gamble, Congress should only use it when confronting a badly weakened
Executive.
C. PUBLIC POLICY IMPLICATIONS OF JUDICIAL REVIEW
Commentators on both sides of the congressional versus executive privilege
debate suggest that the courts should remain uninvolved. While this Note has
shown that judicial refereeing is likely to continue, it is not guaranteed. If the
Supreme Court were to declare the intersection of executive privilege with all
forms of congressional contempt a nonjusticiable political question,149 or if
144. Discussion with Rep. Brad Miller (Nov. 19, 2009).
145. See Joel Cohen, No More ‘Perp Walks,’ NAT’L L.J., Aug. 5, 2002, at A25.
146. The D.C. Circuit recognized this possibility in Miers. See supra note 9.
147. See supra note 9.
148. See supra note 10.
149. It seems unlikely that the Court would do this. The limits of Congress’s enforcement powers—
even of inherent contempt—are not themselves nonjusticiable political questions, see notes 44–51 and
accompanying text, and the Court has held that it holds the ultimate power to determine the scope of
executive privilege, see United States v. Nixon, 418 U.S. 683, 705 (1974).
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courts failed to resolve such claims in a timely manner, it would harm the
efficient functioning of the nation’s government.
Advocates of judicial noninvolvement in disputes between congressional and
executive privilege actually advocate that one branch’s privilege should dominate the other.150 A rationale for judicial noninvolvement favoring the Executive
is that Congress does not need contempt power capable of reaching the Executive because it has other means to protect its interests: Congress controls the
power of the purse, grants approval of the President’s executive branch nominations, and can appeal to the press.151 Rationales for judicial noninvolvement
favoring the Congress are that the free flow of information to Congress promotes democratic governance,152 and courts are ill-suited to determine what
information Congress does or does not have a proper need for.153 These views
allow for no balance. Without any judicial intervention, the Executive’s claim of
privilege could win in every case—because the Executive has more guns than
Congress, the Sergeant at Arms would probably not realistically be able to take
executive branch officials into custody. With courts intervening but only going
so far as to issue orders to the Executive to comply with congressional demands,154 executive privilege ceases to exist, except in so far as Congress
allows it to.
The public interest would not be served by an imbalance of power favoring
either Congress or the Executive. Congress must be able to monitor the federal
government and must receive all information necessary for effective lawmaking. The Executive must be able, when necessary, to deliberate in confidence. Precedent indicates that the courts can balance the interests of both
branches against one another—hopefully they will.
CONCLUSION
Congressional and executive branch awareness of the standards governing the
interaction between the two branches’ privileges is chronically myopic. Congressional
subpoenas of executive branch officials fall out of vogue when the same party
150. One observer calls the theory supporting judicial nonintervention the “escalation model,” and
explains that it is based on the notion that “each branch possesses powers sufficient to defend itself in a
particular dispute, but each knows that using such weapons carries a potentially high price in political
capital.” See O’Neil, supra note 118, at 1084–85. The branches will escalate, the theory goes, until one
branch decides that “the continued expenditure of political capital does not justify the institutional
benefits of victory.” Id. O’Neil rejects this view, and concludes that “[c]ourts must provide a moderating influence, stabilizing the flow of information between the branches in a way that political
safeguards alone cannot.” Id. at 1137.
151. See Peterson, supra note 67, at 625, 629; cf. Goldwater v. Carter, 444 U.S. 996, 1004 (1979)
(Rehnquist, J., concurring) (arguing that judicial resolution of the President’s ability to nullify treaties
without congressional approval is improper, in part because Congress has various other means to
protect and assert its interests).
152. See Magid, supra note 16, at 595–96.
153. See Chafetz, supra note 14, at 1150.
154. This would be the case if the courts merely require Congress to act within a valid legislative purpose.
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controls both branches, and because the minority party cannot issue subpoenas
without support from the majority, the Executive is often free to withhold cooperation
when congressional committees request testimony.155 Only after the electorate divides
control of the government, and political tensions rise, does Congress issue and attempt
to enforce subpoenas against the Executive.156 While this Note has argued that
judicial balancing of executive and congressional privilege is necessary to preserve
the efficient operation of government, when a court conducts such balancing some
observers will inevitably cry that it is playing politics. However, the courts act much
more fairly—and are less partisan—when they intervene than when they fail to
intervene. Before Watergate, Congress and the Executive made great efforts to reach
negotiated compromise. Since Watergate, the branches have been somewhat more
willing to engage in, or threaten to engage in, constitutional brinksmanship. The
courts have laudably encouraged negotiation and cooperation. Luckily, precedent
suggests that regardless of which enforcement power Congress uses in the next battle
of the branches, the courts can continue to mediate.
155. After two uninvited guests crashed a White House state dinner on November 24, 2009—an
incident the press quickly dubbed “Crashergate”—the House Homeland Security Committee launched
an investigation. The Committee requested that, among others, White House Social Secretary Desiree
Rogers testify; White House Press Secretary Robert Gibbs soon stated that, “based on separation of
powers, staff here don’t go to testify in front of Congress . . . . She will not be testifying in front of
Congress tomorrow.” Sam Youngman, Social Secretary Not Testifying on State Dinner Crashers, THE
HILL, Dec. 2, 2009, http://thehill.com/homenews/administration/70247. Republican members of the
Homeland Security Committee thereafter failed to secure enough votes to subpoena Rogers. Glen
Thrush & Jake Sherman, No Subpoena for Desiree Rogers, POLITICO, Dec. 4, 2009, http://www.
politico.com/news/stories/1209/30177.html.
156. Even if a congressional committee takes the unusual step of subpoenaing executive branch
officials when the same party controls both branches, enforcement is unlikely. On April 19, 2010, the
Senate Homeland Security and Governmental Affairs Committee issued subpoenas ordering Defense
Secretary Robert Gates and Attorney General Eric Holder to produce documents and identify witnesses
related to the attack at Fort Hood, Texas perpetrated by Major Nidal Hasan. J. Taylor Rushing &
Roxana Tiron, Lieberman Subpoenas Ft. Hood Records, THE HILL, Apr. 19, 2010, http://thehill.com/blogs/
blog-briefing-room/news/93085. Gates and Holder did not fully cooperate with the subpoena; they
argued that doing so would jeopardize the criminal case against Hasan. Richard A. Serrano, Legal
Battles Brew over Ft. Hood Suspect’s History, L.A. TIMES, May 23, 2010, at A30, available at http://
www.latimes.com/news/nationworld/nation/la-na-hood-hasan-20100523,0,1430366.story. Neither the
Homeland Security Committee nor the Senate took steps to enforce the subpoena. See id. The
Committee was likely able to overcome partisan opposition to issuing the subpoena because it was
chaired by Senator Joe Lieberman, an independent. Enforcement of the subpoena, however, would have
required the cooperation of the Senate, which was controlled by a Democratic majority. See supra
section I.A.