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Privilege Claim Not New; Congress Still Holds the Cards

On July 24, the Justice Department confirmed a rumor that it would block prosecution of any contempt of Congress charges against presidential aides covered by executive privilege. When I first heard of this possibility two weeks ago, the assertion of authority to ignore the contempt law struck me as the functional equivalent of a pre-emptive presidential pardon because it hands stay-out-of-jail-free cards to presidential subordinates.

It also effectively could put these inter-branch information disputes beyond the reach of Congress or the courts, leaving the president with an absolute, impregnable shield.

In considering this scenario, though, one name kept running through my mind: Anne Gorsuch. In December 1982, Environmental Protection Agency Administrator Gorsuch defied House subpoenas for agency documents and consequently became the first and only senior administration official to be cited by Congress for contempt. Then, as now, the administration balked at enforcing the contempt citation.

On Wednesday the House Judiciary Committee set the stage for another contempt vote by agreeing on a 22-17 party-line vote to hold White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers in contempt of Congress for resisting subpoenas related to the firings of nine U.S. attorneys.

Under the rules, when the committee report is filed, it will be read aloud. The accompanying resolution, authorizing the Speaker to certify the contempt to a U.S. attorney, can be called up and debated at any time after that -- likely in September.

Under the federal contempt statute, the Speaker certifies the facts of the contempt to the "appropriate" federal prosecutor, "whose duty it shall be to bring the matter before the grand jury for its action." If the grand jury agrees to indict and the party is subsequently found guilty, the misdemeanor conviction carries a possible fine of $100 to $1,000, as well as imprisonment of one to 12 months.

Unlike the contempt of court process (think New York Times reporter Judith Miller), a person convicted of contempt of Congress cannot purge himself or herself of the contempt by agreeing to comply with the subpoena. (While the Senate also has authority to bring civil suits to enforce its subpoenas, that authority does not extend to executive branch officials. Moreover, both chambers have "inherent [civil] contempt authority" to try contempt cases, but that is no longer considered practical.)

In November 1982, the oversight and investigations subcommittees of two House committees subpoenaed Gorsuch for documents relating to agency enforcement of the "Superfund" hazardous waste cleanup law. The Justice Department claimed the disclosure would invade the executive branch's prerogatives by interfering with ongoing prosecution efforts.

President Ronald Reagan ordered Gorsuch not to provide documents from open law enforcement files or internal deliberative materials relating to the government's enforcement strategy. (Coincidentally, the White House counsel advising Gorsuch, Fred Fielding, is back in that same capacity today.) The full Public Works and Transportation Committee voted along party lines to hold Gorsuch in contempt, and the House affirmed that action, 259-105, with 55 Republicans joining 204 Democrats in favor.

Before Speaker Tip O'Neill (D-Mass.) could certify the contempt to the U.S. attorney for the District of Columbia, Stanley Harris, the Justice Department, Harris and Gorsuch filed suit in U.S. District Court seeking a declaratory judgment that Gorsuch acted lawfully and that the House action was an unconstitutional intrusion into the president's authority to withhold information from Congress. The Justice Department announced it would not prosecute the contempt, claiming prosecution was optional.

The court granted a House motion to dismiss the suit, saying the proper forum to argue the constitutional issues would be the contempt proceeding. Justice chose not to appeal the decision and further negotiations ensued at the urging of the court. In March 1983, a compromise was reached, the documents were made available under controlled conditions, and Gorsuch (Anne Burford after remarrying that February) resigned her post. Harris subsequently brought the contempt matter before a grand jury, which dismissed the case. The House agreed by voice vote in August 1983 to cancel the contempt citation.

On May 30, 1984, Office of Legal Counsel Assistant Attorney General Theodore Olson delivered a lengthy memorandum to Attorney General William French Smith in which he concluded that a U.S. attorney "is not required to refer a contempt ... citation to a grand jury or otherwise prosecute [the] Executive Branch official who is carrying out the President's instruction."

That same reasoning was relied on by Clinton administration Office of Legal Counsel head Walter Dellinger in 1995, when he wrote that "the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege." The same case is being made today by President Bush's advisers. My guess is that by refusing to prosecute, they are itching for a House legal challenge to their assertion that prosecution is not mandatory, potentially sparing them a judgment on the merits of their executive privilege claims.

Although the criminal contempt statute is a blunt, clumsy and imprecise weapon, it has worked well as a "club behind the door" in most struggles over information. Even when the hidden club does not produce results, Congress has found other means to leverage its information needs including publicity (the political embarrassment factor), delaying executive nominations and conditioning appropriations. Both branches realize that when the tug of war ends, one side or the other could be left with just enough rope to hang itself. That is why neither side has been eager (so far, at least) to make it easier for the courts to resolve their disputes for them.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.