Prosecution for Contempt of Congress of an Executive
Branch Official Who Has Asserted a Claim of Executive
Privilege
As a matter of statutory construction and separation of powers analysis, a United States Attorney
is not required to refer a congressional contempt citation to a grand jury or otherwise to
prosecute an Executive Branch official who carries out the President's instruction to invoke
the President’s claim of executive privilege before a committee of Congress.
M ay 30, 1984
M em o ran d u m O pinio n for th e Atto rney G en eral
I. Introduction
This memorandum memorializes our formal response to your request for our
opinion whether, pursuant to the criminal contempt of Congress statute, 2
U.S.C. §§ 192,194, a United States Attorney must prosecute or refer to a grand
jury a citation for contempt of Congress issued with respect to an Executive
Branch official who has asserted a claim of executive privilege in response to
written instructions from the President of the United States. Your inquiry
originally arose in the context of a resolution adopted by the House of Repre
sentatives on December 16, 1982, during the final days of the 97th Congress,
which instructed the Speaker of the House of Representatives to certify the
report of the Committee on Public Works and Transportation concerning the
“contumacious conduct of [the] Administrator, United States Environmental
Protection Agency, in failing and refusing to furnish certain documents in
compliance with a subpena duces tecum of a duly constituted subcommittee of
said committee .. . to the United States Attorney for the District of Columbia,
to the end that the Administrator . . . may be proceeded against in the manner
and form provided by law.” H.R. Res. 632, 97th Cong., 2d Sess. (1982).1
Section 192 of Title 2, United States Code, provides, in general, that willful
failure to produce documents in response to a congressional subpoena shall be
a misdemeanor. Section 194 provides that if such a failure is reported to either
house of Congress it “shall” be certified to the “appropriate United States attorney
whose duty it shall be to bring the matter before the grand jury for its action.”
1 Although the December 1982 dispute is now a matter of history, it raises recurring issues.
101
Your inquiry presents a number of complex issues that will be considered in
this memorandum. The first issue is whether the Executive retains some
discretion with respect to referral of a contempt of Congress citation to a grand
jury. This issue raises questions of statutory construction and the separation of
powers with respect to the scope of the Executive’s exercise of prosecutorial
discretion. The second issue is whether the criminal contempt of Congress
statute applies to an Executive Branch official who, on the orders of the
President, asserts the President’s claim of executive privilege. This issue also
involves questions of statutory interpretation and the constitutional separation
of powers.
As we have previously discussed with you, and as we explain in detail in this
memorandum, we have concluded that, as a matter of both statutory construc
tion and the Constitution’s structural separation of powers, a United States
Attorney is not required to refer a contempt citation in these circumstances to a
grand jury or otherwise to prosecute an Executive Branch official who is
carrying out the President’s instruction in a factual context such as that pre
sented by the December 16, 1982, contempt citation. First, as a matter of
statutory interpretation reinforced by compelling separation of powers consid
erations, we believe that Congress may not direct the Executive to prosecute a
particular individual without leaving any discretion to the Executive to deter
mine whether a violation of the law has occurred. Second, as a matter of
statutory interpretation and the constitutional separation of powers, we believe
that the contempt of Congress statute was not intended to apply and could not
constitutionally be applied to an Executive Branch official who asserts the
President’s claim of executive privilege in this context.
Our conclusions are predicated upon the proposition, endorsed by a unani
mous Supreme Court less than a decade ago, that the President has the author
ity, rooted inextricably in the separation of powers under the Constitution, to
preserve the confidentiality of certain Executive Branch documents. The
President’s exercise of this privilege, particularly when based upon the written
legal advice of the Attorney General, is presumptively valid. Because many of
the documents over which the President may wish to assert a privilege are in
the custody of a department head, a claim of privilege over those documents
can be perfected only with the assistance of that official. If one House of
Congress could make it a crime simply to assert the President’s presumptively
valid claim, even if a court subsequently were to agree that the privilege claim
were valid, the exercise of the privilege would be so burdened as to be nullified.
Because Congress has other methods available to test the validity of a privilege
claim and to obtain the documents that it seeks, even the threat of a criminal
prosecution for asserting the claim is an unreasonable, unwarranted, and there
fore intolerable burden on the exercise by the President of his functions under
the Constitution.
Before setting out a more detailed explanation of our analysis and conclu
sions, we offer the caveat that our conclusions are limited to the unique
circumstances that gave rise to these questions in late 1982 and early 1983.
102
Constitutional conflicts within the federal government must be resolved care
fully, based upon the facts of each specific case. Although tensions and friction
between coordinate branches of our government are not novel and were, in fact,
anticipated by the Framers of the Constitution, they have seldom led to major
confrontations with clear and dispositive resolutions.
The accommodations among the three branches of the govern
ment are not automatic. They are undefined, and in the very
nature of things could not have been defined, by the Constitu
tion. To speak of lines of demarcation is to use an inapt figure.
There are vast stretches of ambiguous territory.
Frankfurter and Landis, Power of Congress Over Procedure in Criminal
Contempts in “Inferior" Federal Courts, 37 Harv. L. Rev. 1010, 1016 (1924)
(emphasis in original). ‘The great ordinances of the Constitution do not estab
lish and divide fields of black and white.” Springer v. Philippine Islands, 277
U.S. 189, 209 (1928) (Holmes, J., dissenting). Therefore, although we are
confident of our conclusions, prudence suggests that they should be limited to
controversies similar to the one to which this memorandum expressly relates,
and the general statements of legal principles should be applied in other
contexts only after careful analysis.
II. Background
Because the difficult and sensitive constitutional issues that we consider in
this opinion could conceivably be resolved differently depending upon the
specific facts of a controversy, this analysis is presented in the context of the
December 16, 1982, actions of the House of Representatives. The facts sur
rounding this dispute will be set out in detail in the following pages.
A. EPA’s Enforcement of the Superfund Act
On December 16, 1982, the House of Representatives cited the Administra
tor of the Environmental Protection Agency (EPA) because she declined to
produce, in response to a broad subcommittee subpoena, a small portion of the
subpoenaed documents concerning the Comprehensive Environmental Re
sponse, Compensation, and Liability Act, 42 U.S.C. §§ 9601, 9657 (Supp. V
1981) (Superfund Act). The Superfund Act, adopted in December of 1980,
authorizes the federal government to take steps to remedy the hazards posed by
abandoned and inactive hazardous waste sites throughout the United States.2
The EPA, which was delegated part of the President’s authority to enforce the
Superfund Act in August of 1981,3 has considerable flexibility with respect to
2 Another statute, the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.% provides federal
authority to deal with the current disposal of hazardous industrial wastes.
3 See Executive Order No. 12316, “Responses to Environmental Damage” (Aug. 14, 1981).
103
how this goal may be accomplished. EPA may request the Department of
Justice to proceed immediately against those responsible for the hazardous
waste sites to “secure such relief as may be necessary to abate” an “imminent
and substantial endangerment to the public health or welfare or the environ
ment.” See 42 U.S.C. § 9606. Alternatively, EPA may initiate clean-up efforts
itself by using funds from the $1.6 billion Superfund. See 42 U.S.C. § 9631. If
EPA itself implements the clean-up efforts, it may subsequently sue those
responsible for the hazardous waste to recover the clean up cost and, in some
instances, may obtain treble damages. See 42 U.S.C. § 9607. These two basic
enforcement mechanisms are supplemented by other broad enforcement pow
ers, which authorize the issuance of administrative orders “necessary to protect
the public health and welfare and the environment” and to require designated
persons to furnish information about the storage, treatment, handling, or dis
posal of hazardous substances. See 42 U.S.C. §§ 9606, 9604(e)(1). Finally, the
Superfund Act imposes criminal liability on a person in charge of a facility
from which a hazardous substance is released, if that person fails to notify the
government of the release. See 42 U.S.C. § 9603.
Prior to the initiation of judicial proceedings, EPA must undertake intensive
investigation and case preparation, including studying the nature and the extent
of the hazard present at sites, identifying potentially responsible parties, and
evaluating the evidence that exists or that must be generated to support govern
ment action. See Amended Declaration of Robert M. Perry, Associate Admin
istrator for Legal and Enforcement Counsel and General Counsel, EPA, filed in
United States v. House of Representatives, Civ. No. 82-3583 (D.D.C. Jan. 14,
1983). Many sites apparently involve hundreds of waste generators; hence, the
initial investigation of a site can take months and involve the examination of
tens of thousands of documents. Id.
Based on its initial investigations of hazardous waste sites throughout the
country, EPA created a comprehensive national enforcement scheme and de
veloped during 1982 an interim priorities list, which identified the 160 sites
that posed the greatest risk to the public health and welfare and the environ
ment.4 EPA also promulgated enforcement guidelines to direct the implemen
tation of the Superfund Act against these potentially hazardous sites. See 47
Fed. Reg. 20664 (1982).
Under this basic enforcement scheme, EPA commenced actual enforcement
of the Superfund Act. As part of the enforcement effort with respect to each
site, EPA generally develops a strategy for conducting negotiations and litiga
tion consistent with its overall enforcement goals and the individual facts of
each particular case. Once a case strategy has been developed, EPA notifies
responsible parties that it intends to take action at a site unless the parties
undertake an adequate clean up program on their own. Following the issuance
of notice letters, EPA typically negotiates with responsible parties to agree on a
4 Subsequently, EPA published a proposed national priorities list (to replace the interim list), which
identified the 418 sites that, in EPA’s judgm ent, required priority in use of the Superfund to effect clean up.
See 47 Fed. Reg. 58476 (1982)
104
clean up plan. These negotiations may involve hundreds of potentially respon
sible parties and millions of dollars in clean up costs. Depending upon the
strengths and weaknesses of individual cases and the effect on the overall
enforcement effort, EPA may decide to settle with some but not all parties and
proceed to litigation with a certain number of potential defendants. If EPA
decides to bring a lawsuit, it refers the case to the Land and Natural Resources
Division of this Department, which is responsible for conducting the actual
litigation.5
During EPA’s enforcement of the Superfund Act, the agency created or
received hundreds of thousands of documents concerning various aspects of
the enforcement process. Many of these documents concerned the facts relating
to specific hazardous waste sites; others involved general agency strategy and
policies with respect to the Superfund Act; still others, a small portion of the
enforcement files, were attorney and investigator memoranda and notes that
contained discussions of subjects such as EPA’s enforcement strategy against
particular defendants, analyses of the strengths and weaknesses of the
government’s case against actual or potential defendants, consideration of
negotiation and settlement strategy, lists of potential witnesses and their antici
pated testimony, and other litigation planning matters. Enforcement officials at
both the career and policy level at EPA and in the Land and Natural Resources
Division at the Department of Justice determined that some of those docu
ments, which concerned the legal merits and tactics with respect to individual
defendants in open enforcement files, were particularly sensitive to the en
forcement process and could not be revealed outside the agencies directly
involved in the enforcement effort without risking injury to EPA’s cases
against these actual and potential defendants in particular and the EPA enforce
ment process in general.6
B. The House Subcommittee’s Demands fo r Enforcement Files
In the midst of EPA’s ongoing enforcement efforts under the Superfund Act,
the Subcommittee on Oversight and Investigations of the House Committee on
Public Works and Transportation (Public Works Subcommittee), chaired by
Rep. Levitas, began hearings to review EPA enforcement of the Act. In the
course of these hearings, the Public Works Subcommittee first demanded
access to, and then subpoenaed, a wide range of documents concerning en
forcement of the Superfund Act with respect to the 160 sites that were on the
5 We understand that as of January 14, 1983, EPA had sent more than 1,760 notice letters, undertaken
Superfund financed action at 112 sites involving the obligation of in excess of $236 million, instituted
Superfund claims in 25 judicial actions, and obtained one criminal conviction. As of the early months of
1983, EPA and the Department of Justice had reached settlements in 23 civil actions providing for the
expenditure of more than $121 million to conduct clean up operations and were actively negotiating with
responsible parties concerning the clean up of 56 sites throughout the country. See Amended Declaration of
Robert M. Perry, Associate Administrator for Legal and Enforcement Counsel and General Counsel of the
EPA, filed in United States v. House of Representatives, Civ. No. 82-3583 (D.D.C. Jan. 14, 1983).
6 Id.
105
agency’s interim priorities list. The documents demanded by the Public Works
Subcommittee included not only documents concerning the facts relating to
these sites and EPA’s general policies, but also the sensitive material contained
in open case files that set out discussions concerning case strategy with respect
to actual and potential defendants.7 The Public Works Subcommittee subpoena
was dated November 16,1982, and was served on November 22,1982. It called
for production of the subpoenaed documents eleven days later on December 2,
1982. The EPA Administrator responded to the Public Works Subcommittee’s
subpoena by offering to provide the Public Works Subcommittee with access to
an estimated 787,000 pages of documents within the scope of the subpoena.8
The EPA and the Land and Natural Resources Division officials responsible for
conducting EPA enforcement litigation determined, however, that release out
side the enforcement agencies of a limited number of the most sensitive
enforcement documents contained in open files concerning current and pro
spective defendants would impair EPA’s ongoing enforcement efforts and
prevent EPA and the Department of Justice from effectively implementing the
Superfund Act.
Therefore, in accordance with the explicit guidelines adopted by the Presi
dent to govern possible claims of executive privilege, see Memorandum re:
Procedures Governing Responses to Congressional Requests for Information
(Nov. 4,1982), EPA suggested that some of the documents be withheld under a
claim of executive privilege and consulted with this Office and the Office of
the Counsel to the President in order to determine whether such a claim might
be asserted to avoid impairing the constitutional responsibility of the President
to take care that the laws be faithfully executed. A further review of the
documents in question by enforcement officials at EPA and the Land and
Natural Resources Division was then undertaken to confirm that the particular
documents selected for consideration for an executive privilege claim were, in
the judgment of those officials, sufficiently sensitive that their disclosure
outside the Executive Branch might adversely affect the law enforcement
process. The documents were then reviewed by officials in this Office and
officials in the Office of the Counsel to the President to confirm that the
documents were of the type described by the enforcement officials. Various
unsuccessful efforts were thereafter made to resolve the dispute short of a final
confrontation. The President, based upon the unanimous recommendation of
all Executive Branch officials involved in the process, ultimately determined to
assert a claim of executive privilege with respect to 64 documents from open
enforcement files that had been identified as sufficiently enforcement sensitive
7 The subpoena required Che EPA Administrator to produce: all books, records, correspondence, memo-
randa, papers, notes and documents draw n or received by the Administrator and/or her representatives since
December 11, 1980, the date of enactment o f the Superfund Act, including duplicates and excepting shipping
papers and other commercial or business documents, contractor and/or other technical documents, for those
sites listed as national priorities pursuant to Section 105(8)(B) of the Superfund Act. See United States v.
House of Representatives, 556 F. Supp. 150, 151 (D.D.C. 1983).
8 See Testimony o f Administrator Gorsuch before the Public Works Subcommittee, attached as Exhibit C to
Declaration of Robert M. Perry, supra.
106
as of the return date of the subpoena that their disclosure might adversely affect
pending investigations and open enforcement proceedings. The President imple
mented this decision in a memorandum dated November 30, 1982, to the EPA
Administrator, which instructed her to withhold the particularly sensitive docu
ments from disclosure outside the Executive Branch as long as the documents
remained critical to ongoing or developing enforcement actions. The legal
basis for this decision was explained in letters from the Attorney General on
November 30, 1982, to the House Public Works Subcommittee and one other
House subcommittee.9 On December 2, 1982, 64 of the most sensitive docu
ments were withheld from the Subcommittee.10
C. The Contempt of Congress Proceedings in the House of Representatives
The President’s assertion of executive privilege, and the Attorney General’s
explanation of the law enforcement considerations and constitutional justifica
tion for the decision not to release the documents outside the Executive Branch
while enforcement proceedings were ongoing, did not dissuade the congres
sional subcommittees from pressing their demands for the withheld material.
After the EPA Administrator asserted the President’s claim of privilege at a
December 2, 1982, Public Works Subcommittee hearing, the Subcommittee
immediately approved a contempt of Congress resolution against her. The full
Committee did likewise on December 10, 1982, and rejected a further proposal
by the Department of Justice to establish a formal screening process and
briefings regarding the contents of the documents.11 The full House adopted
the contempt of Congress resolution on December 16, 1982,12 and the follow
9 See Letters to Hon. Elliott H. Levitas and Hon. John D. Dingell from Attorney General William French
Smith (Nov. 30, 1982). The Subcommittee on Oversight and Investigations of the House Energy and
Commerce Committee (Energy and Commerce Subcommittee), chaired by Representative John D. Dingell,
was pursuing a parallel demand for similar documents relating to enforcement of the Superfund Act with
respect to certain specific sites that were among the 160 on the interim priorities list. While the Energy and
Commerce Subcommittee sought documents relative to three specific hazardous waste sites, the Public
Works Subcommittee subpoena demanded production o f virtually all documents for all 160 sites. The
President's assertion of executive privilege applied to both subpoenas. Although the Energy and Commerce
Subcommittee approved a contempt of Congress resolution against the EPA Administrator, this resolution
never reached the full Committee or the floor of the House of Representatives.
10 As of that date, EPA had been able to examine only a portion of the hundreds of thousands of pages of
documents that had been subpoenaed. The 64 documents that were withheld were those among the subpoe
naed documents that had been reviewed and determined to fall within the President’s instruction not to
produce documents the release of which would adversely affect ongoing enforcement proceedings See
Amended Declaration of Robert M. Perry, supra
11 See Letter to Hon. EHiott H. Levitas from Robert A. McConnell, Assistant Attorney General, Office of
Legislative Affairs (Dec. 9, 1982).
12 The contempt resolution stated:
Resolved, That the Speaker of the House of Representatives certify the report of the Committee
on Public Works and Transportation as to the contumacious conduct of Anne M. Gorsuch, as
Administrator, United States Environmental Protection Agency, in failing and refusing to furnish
certain documents in compliance with a subpena duces tecum o f a duly constituted subcommittee
of said committee served upon Anne M. Gorsuch, as Administrator, United States Environmental
Protection Agency, and as ordered by the subcommittee, together with all o f the facts in
Continued
107
ing day Speaker O’Neill certified the contempt citation to the United States
Attorney for the District of Columbia for prosecution under the criminal
contempt of Congress statute.
D. The Criminal Contempt o f Congress Statute
The criminal contempt of Congress statute contains two principal sections, 2
U.S.C. §§ 192 & 194.13 Section 192, which sets forth the criminal offense of
contempt of Congress, provides in pertinent part:
Every person who having been summoned as a witness by the
authority of either House of Congress to give testimony or to
produce papers upon any matter under inquiry before either
House . .. or any committee of either House of Congress, will
fully makes default, or who, having appeared, refuses to answer
any question pertinent to the question under inquiry, shall be
deemed guilty of a misdemeanor, punishable by a fine of not
more than $1,000 nor less than $100 and imprisonment in a com
mon jail for not less than one month nor more than twelve months.
Section 194 purports to impose mandatory duties on the Speaker of the House
or the President of the Senate, as the case may be, and the United States
Attorney, to take certain actions leading to the prosecution of persons certified
by a house of Congress to have failed to produce information in response to a
subpoena. It provides:
Whenever a witness summoned as mentioned in section 192
of this title fails to appear to testify or fails to produce any
books, papers, records, or documents, as required, or whenever
any witness so summoned refuses to answer any question perti
nent to the subject under inquiry before either House .. . or any
committee or subcommittee of either House of Congress, and
the fact of such failure or failures is reported to either House
while Congress is in session or when Congress is not in session,
a statement of fact constituting such failure is reported and filed
with the President of the Senate or the Speaker of the House, it
shall be the duty of the said President o f the Senate or the
Speaker o f the House, as the case may be, to certify, and he shall
so certify, the statement of facts aforesaid under the seal of the
12 ( ... continued)
connection therewith, under seal o f the House of Representatives, to the United States attorney
for the Distnct of Columbia, to th e end that Anne M. Gorsuch, as Administrator, United States
Environmental Protection Agency, may be proceeded against in the manner and form provided
by law.
128 Cong. Rec. 31754 (1982).
13 A third provision, 2 U.S.C. § 193, which denies the existence of any testimonial privilege for a witness to
refuse to testify on the ground that this testimony would disgrace him, is not relevant to the issues discussed
in this memorandum.
108
Subsequent to the trial court decision, the two branches engaged in negotia
tions to reach a compromise settlement. The parties eventually reached an
agreement under which the Public Works Subcommittee would have limited
access to the withheld documents and would sponsor a resolution to “with
draw” the contempt citation against the EPA Administrator. Pursuant to the
agreement, the Subcommittee reviewed the documents, and the House later
adopted a resolution withdrawing the contempt citation. H.R. Res. 180, 98th
Cong., 1st Sess. (Aug. 3, 1983). The issue whether the House of Representa
tives in the 98th Congress could “withdraw” the contempt citation of the House
during the 97th Congress was never resolved.
During the pendency of the lawsuit and the subsequent settlement negotia
tions, the United States Attorney for the District of Columbia refrained from
referring the contempt citation to the grand jury. The United States Attorney
took the position that referral would have been inappropriate during that period
and that the statute left him with discretion to withhold referral. See Testimony
of Stanley S. Harris before the House Committee on Public Works and Trans
portation, 98th Cong., 1st Sess. 100-07 (June 16,1983). Following the passage
of the resolution withdrawing the contempt citation, “the relevant facts and
documents were presented . . . to a federal grand jury, which voted unani
mously not to indict [the EPA Administrator].” Letter from Stanley S. Harris,
United States Attorney, District of Columbia, to Honorable Thomas P. O’Neill,
Jr., Speaker of the House of Representatives (Aug. 5, 1983).
HH. Generally Applicable Legal Primciples: The Separation! off
Powers, tlhe Dirties off line Executive to Emfforce the Law, and
ttltoe Derivation and Scope off tine Primciples off Prosecutorial
Discretion] amd Executive Privilege
A. The Separation o f Powers
The basic structural concept of the United States Constitution is the division
of federal power among three branches of government. Although the expres
sion “separation of powers” does not actually appear in the Constitution, the
Supreme Court has emphasized that the separation of powers “is at the heart of
our Constitution,” and has recognized “the intent of the Framers that the
powers of the three great branches of the National Government be largely
separate from one another.” Buckley v. Valeo, 424 U.S. 1, 119-20 (1976). It
needs little emphasis that the separation of powers doctrine is vital to any
analysis of the relative responsibilities of the branches of our government, inter
se. In The Federalist No. 47, James Madison, who believed that “no political
truth is certainly of greater intrinsic value, or is stamped with the authority of
more enlightened patrons of liberty” than the concept of the separation of
powers, defended this tripartite arrangement in the Constitution by citing
F. Resolution of the EPA Dispute
110
Montesquieu’s well-known maxim that the legislative, executive, and judicial
departments should be separate and distinct:
The reasons on which Montesquieu grounds his maxim are a
further demonstration of his meaning. “When the legislative and
executive powers are united in the same person or body,” says
he, “there can be no liberty, because apprehensions may arise
lest the same monarch or senate should enact tyrannical laws to
execute them in a tyrannical manner.” Again: “Were the power
of judging joined with the legislative, the life and liberty of the
subject would be exposed to arbitrary control, for the judge
would then be the legislator. Were it joined to the executive
power, the judge might behave with all the violence of an
oppressor.”
The Federalist No. 47, at 303 (J. Madison) (C. Rossiter ed. 1961); see Buckley
v. Valeo, 424 U.S. at 120-21.16
Of the three branches of the new government created in Philadelphia in
1787, the legislature was regarded as the most intrinsically powerful, and the
branch with powers that required the exercise of the greatest precautions.
Madison warned that the “legislative department is everywhere extending
the sphere of its activity and drawing all power into its impetuous vortex.” The
Federalist No. 48, supra, at 309. He admonished that because of their experi
ences in England, the founders of the thirteen colonies had focused keenly on
the danger to liberty from an “overgrown and all-grasping prerogative of an
hereditary magistrate, supported and fortified by an hereditary branch of the
legislative authority,” but had tended to ignore the very real dangers from
“legislative usurpations, which, by assembling all power in the same hands,
must lead to the same tyranny as is threatened by executive usurpations.” Id.
Reflecting the views of many of his colleagues, Madison believed that although
the risk of tyranny would naturally come from the King in an hereditary
monarchy, in a representative republic, like that created by the constitutional
convention, in which executive power was “carefully limited, both in the extent
and duration of its power,” the threat to liberty would come from the legislature,
which is inspired, by a supposed influence over the people, with
an intrepid confidence in its own strength; which is sufficiently
numerous to feel all the passions which actuate a multitude, yet
not so numerous as to be incapable of pursuing the objects of its
passions by means which reason prescribes; it is against the
enterprising ambition of this department that the people ought to
indulge all their jealousy and exhaust all their precautions.
Id.
16 Madison characterized Montesquieu as the “oracle who is always consulted and cited on [the] subject [of
the separation of powers].” See The Federalist No. 47, supra, at 301.
I ll
The Framers feared that the legislature’s power over the purse would foster a
dependence by the executive departments on the legislature “which gives still
greater facility to encroachments” by the legislature on the powers of the
Executive. Id. at 310. The concerns of the Framers with respect to the power of
the legislature have been recognized by the Supreme Court. The Court, citing
many of the above statements, has observed that because of the Framers’
concerns about the potential abuse of legislative power, “barriers had to be
erected to ensure that the legislature would not overstep the bounds of its
authority and perform functions of the other departments.” United States v.
Brown, 381 U.S. 437, 444 (1965). Justice Powell noted that “during the
Confederation, the States reacted by removing power from the executive and
placing it in the hands of elected legislators. But many legislators proved to be
little better than the Crown.” IN S\. Chadha, 462 U.S. 917,961 (1983) (Powell,
J. concurring). After citing several specific legislative abuses that had been of
particular concern to the Framers, Justice Powell concluded that it “was to
prevent the recurrence of such abuses that the Framers vested the executive,
legislative, and judicial powers in separate branches.” Id. at 962.
Thus, the careful separation of governmental functions among three branches
of government was a very deliberate and vital structural step in building the
Constitution. The Framers understood human nature and anticipated that well-
intentioned impulses would lead each of the branches to attempt to encroach on
the powers allocated to the others. They accordingly designed the structure of
the Constitution to contain intrinsic checks to prevent undue encroachment
wherever possible. Particular care was taken with respect to the anticipated
tendency of the Legislative Branch to swallow up the Executive. The Framers
did not wish the Legislative Branch to have excessive authority over the
individual decisions respecting the execution of the laws: “An elective despo
tism was not the government we fought for.” T. Jefferson, Notes on the State of
Virginia 120 (Univ. N.C. Press ed. 1955)17 The constitutionally prescribed
separation of powers creates enforceable abuses that had been of particular
concern to the Framers, Justice Powell concluded that it “was to prevent the
recurrence of such abuses that the Framers vested the executive, legislative,
and judicial powers in separate branches.” Id. The division of delegated powers
was designed “to assure, as nearly as possible, that each Branch of government
would confine itself to its assigned responsibility.” INS v. Chadha, 462 U.S. at
951. The doctrine of separated powers “may be violated in two ways. One
branch may interfere impermissibly with the other’s performance of its consti
17 It is noteworthy, at least from an historical perspective, that the House of Representatives, because of its
immense powers, was considered to be the governmental body least vulnerable to encroachments by other
segments of government and, at the same time, because of its popular origin and frequent renewal of authority
by the people, the body whose encroachment on the other branches would be least distrusted by the public.
The Supreme Court later noted:
It is all the more necessary, therefore, that the exercise of power by this body, when acting
separately from and independently of all other depositories of power, should be watched with
vigilance, and when called in question before any other tribunal having the right to pass upon it
that it should receive the most careful scrutiny.
Kilboum v. Thompson, 103 U.S. 168, 192 (1881).
112
tutionally assigned function. Alternatively, the doctrine may be violated when
one branch assumes a function that more properly is entrusted to another. Id. at
963 (Powell, J. concurring) (citations omitted). Although the Supreme Court
has recognized that “a hermetic sealing off of the three branches of Govern
ment from one another would preclude the establishment of a Nation capable of
governing itself effectively,” it has also emphasized that the Court “has not
hesitated to enforce the principle of separation of powers embodied in the
Constitution when its application has proved necessary for the decision of
cases or controversies properly before it.” Buckley v. Valeo, 424 U.S. at 121,
123. Therefore, although the Constitution does not contemplate “a complete
division of authority between the three branches,” each branch retains certain
core prerogatives upon which the other branches may not transgress. Nixon v.
Administrator of Gen. Servs., 433 U.S. 425, 443 (1977). Each branch must not
only perform its own delegated functions, but each has an additional duty to
resist encroachment by the other branches. “The hydraulic pressure inherent
within each of the separate Branches to exceed the outer limits of its power,
even to accomplish desirable objectives, must be resisted.” INS v. Chadha, 462
U.S. at 951 (emphasis added).
B. The Duties of the Executive to Enforce the Law
The fundamental responsibility and power of the Executive Branch is the
duty to execute the law. Article II, § 1 of the Constitution expressly vests the
executive power in the President. Article II, § 3 commands that the President
“take Care that the Laws be faithfully executed.” Enforcement of the laws is an
inherently executive function, and by virtue of these constitutional provisions,
the Executive Branch has the exclusive constitutional authority to enforce
federal laws. Since the adoption of the Constitution, these verities have been at
the heart of the general understanding of the Executive’s constitutional author
ity. During the debates on the Constitution, James Wilson noted that the “only
powers he conceived strictly executive were those of executing the laws.” 1 M.
Farrand, The Records of the Federal Convention of 1787, at 65-66 (1937).
During the first Congress, James Madison stated that “if any power whatsoever
is in its nature executive, it is the power of appointing, overseeing, and
controlling those who execute the laws.” 1 Annals o f Congress 481 (1789). The
Supreme Court has recognized this fundamental constitutional principle. In
Springer v. Philippine Islands, 277 U.S. 189 (1928), the Court observed:
Legislative power, as distinguished from executive power, is the
authority to make laws, but not to enforce them or appoint the
agents charged with the duty of such enforcement. The latter are
executive functions.
Id. at 202. More recently, Judge Wilkey, writing for a unanimous panel of the
United States Court of Appeals for the District of Columbia Circuit in a
decision later affirmed by the Supreme Court, recognized that the Constitution
113
prevents Congress from exercising its power of “oversight, with an eye to
legislative revision,” in a manner that amounts to “shared administration” of
the law. Consumer Energy Council o f America v. Federal Energy Regulatory
Commission, 673 F.2d 425, 474 (D.C. Cir. 1982), a jfd sub nom. Process Gas
Consumers Group v. Consumer Energy Council of America, 43 U.S. 1216
(1983). It thus seems apparent that the drafters of the Constitution intended
clearly to separate the power to adopt laws and the power to enforce them and
intended to place the latter power exclusively in the Executive Branch.18 As a
practical matter, this means that there are constitutional limits on Congress’
ability to take actions that either disrupt the ability of the Executive Branch to
enforce the law or effectively arrogate to Congress the power of enforcing the
laws.
C. The Derivation and Scope o f Prosecutorial Discretion and Executive
Privilege
The issues addressed by this memorandum involve two important constitu
tional doctrines that spring from the constitutional limits imposed by the
separation of powers and the Executive’s duty to enforce the laws: prosecutorial
discretion and executive privilege.
1. Prosecutorial Discretion
The doctrine of prosecutorial discretion is based on the premise that because
the essential core of the President’s constitutional responsibility is the duty to
enforce the laws, the Executive Branch has exclusive authority to initiate and
prosecute actions to enforce the laws adopted by Congress. That principle was
reaffirmed by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976), in
which the Court invalidated the provision of the Federal Election Act that
vested the appointment of certain members of the Federal Election Commis
sion in the President pro tempore of the Senate and the Speaker of the House. In
so holding, the Court recognized the exclusively executive nature of some of
the Commission’s powers, including the right to commence litigation:
The Commission’s enforcement power, exemplified by its
discretionary power to seek judicial relief, is authority that
cannot possibly be regarded as merely in aid of the legislative
function of Congress. A lawsuit is the ultimate remedy for a
breach of the law, and it is to the President, and not to the
Congress, that the Constitution entrusts the responsibility to
“take care that the laws be faithfully executed.” Art. II, § 3.
424 U.S. at 138.
18 O f equal concern was the need to separate the judicial power from the executive power. The drafters
intended to preserve the impartiality of the judiciary as “neutral arbiters in the criminal law” by separating the
judiciary from the prosecutorial function. Nader v. Saxbe, 497 F.2d 676, 679 n.18 (D.C Cir. 1974).
114
The Executive’s exclusive authority to prosecute violations of the law gives
rise to the corollary that neither the Judicial nor Legislative Branches may
directly interfere with the prosecutorial discretion of the Executive by directing
the Executive Branch to prosecute particular individuals. This principle was
explained in Smith v. United States, 375 F.2d 243 (5th Cir.), cert, denied, 389
U.S. 841 (1967), in which the court considered the applicability of the Federal
Tort Claims Act to a prosecutorial decision not to arrest or prosecute persons
injuring plaintiffs business. The court ruled that the government was immune
from suit under the discretionary decision exception of the Act on the ground
that the Executive’s prosecutorial discretion was rooted in the separation of
powers under the Constitution:
The President of the United States is charged in Article 2,
Section 3, of the Constitution with the duty to “take Care that the
Laws be faithfully executed.” The Attorney General is the
President’s surrogate in the prosecution of all offenses against
the United States. . . . The discretion of the Attorney General in
choosing whether to prosecute or not to prosecute, or to abandon
a prosecution already started, is absolute. . .. This discretion is
required in all cases.
We emphasize that this discretion, exercised in even the
lowliest and least consequential cases, can affect the policies,
duties, and success of a function placed under the control of the
Attorney General by our Constitution and statutes.
375 F.2d at 246—47. The court went on to state that this prosecutorial discretion
is protected “no matter whether these decisions are made during the investiga
tion or prosecution of offenses.” Id. at 248.
The limits and precise nature of the Executive’s prosecutorial discretion are
discussed in greater detail below. At this point in our examination of the issues
considered in this memorandum, it is sufficient to observe that meaningful and
significant separation of powers issues are raised by a statute that purports to
direct the Executive to take specified, mandatory prosecutorial action against a
specific individual designated by the Legislative Branch.
2. Executive Privilege
The doctrine of executive privilege is founded upon the basic principle that
in order for the President to carry out his constitutional responsibility to
enforce the laws, he must be able to protect the confidentiality of certain types
of documents and communications within the Executive Branch. If disclosure
of certain documents outside the Executive Branch would impair the President’s
ability to fulfill his constitutional duties or result in the impermissible involve
ment of other branches in the enforcement of the law, then the President must
be able to claim some form of privilege to preserve his constitutional preroga
115
tives. This “executive privilege” has been explicitly recognized by the Su
preme Court, which has stated that the privilege is “fundamental to the opera
tion of Government and inextricably rooted in the separation of powers under
the Constitution.” United States v. Nixon, 418 U.S. 683, 708 (1974). We
believe that it is beyond peradventure that the constitutionally mandated sepa
ration of powers permits the President to prevent disclosure of certain Execu
tive Branch documents under the doctrine of executive privilege and that the
ability to assert this privilege is fundamental to the President’s ability to carry
out his constitutionally prescribed duties.
The Supreme Court has suggested that in some areas the President’s execu
tive privilege may be absolute and in some circumstances it is a qualified
privilege that may be overcome by a compelling interest of another branch.
United States v. Nixon, 418 U.S. at 713; see also Senate Select Comm, on
Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en
banc). Nevertheless, the unanimous Supreme Court decision in Nixon clearly
stands for the proposition that there is a privilege, that it stems from the
separation of powers, and that it may be invoked (although perhaps overridden
by a court) whenever the President finds it necessary to maintain the confiden
tiality of information within the Executive Branch in order to perform his
constitutionally assigned responsibilities.19
The scope of executive privilege includes several related areas in which
confidentiality within the Executive Branch is necessary for the effective
execution of the laws. First, as the Supreme Court has held, the privilege
protects deliberative communications between the President and his advisors.
The Court has identified the rationale for this aspect of the privilege as the valid
need for protection of communications between high government officials and
those who advise and assist them in the performance of their manifold duties;
the importance of this confidentiality is too plain to require further discussion.
Human experience teaches that those who expect public dissemination of their
remarks may well temper candor with a concern for appearances and for their
own interests to the detriment of the decisionmaking process. United States v.
Nixon, 418 U.S. at 705 (footnotes omitted).
Another category of Executive Branch material that is subject to a President’s
claim of privilege is material necessary “to protect military, diplomatic, or
sensitive national security secrets.” United States v. Nixon, 418 U.S. 683, 706
(1974). In Nixon, the Court stated:
As to those areas of Art. II duties the courts have traditionally
shown the utmost deference to Presidential responsibilities. In
C.& S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111
19 Presidents have invoked the privilege throughout our history for a variety of reasons. See, e.g., “History
o f Refusals by Executive Branch to Provide Information Demanded by Congress,” 6 Op. O.L.C. 751 (1982);
Memorandum from John Harmon, Assistant Attorney General, Office of Legal Counsel, to Robert Lipschutz,
Counsel to the President (June 8, 1977); Position of the Executive Department Regarding Investigative
Reports, 40 Op. A tt’y Gen. 45 (1941).
116
(1948), dealing with Presidential authority involving foreign
policy considerations, the Court said:
“The President, both as Commander-in-Chief and as the
Nation’s organ for foreign affairs, has available intelli
gence services whose reports are not and ought not to be
published to the world. It would be intolerable that courts,
without the relevant information, should review and per
haps nullify actions of the Executive taken on information
properly held secret.”
In United States v. Reynolds, 345 U.S. 1 (1953), dealing with a
claimant’s demand for evidence in a Tort Claims Act case
against the Government, the Court said:
“It may be possible to satisfy the court, from all the
circumstances of the case, that there is a reasonable dan
ger that compulsion of the evidence will expose military
matters which, in the interest of national security, should
not be divulged. When this is the case, the occasion for the
privilege is appropriate, and the court should not jeopar
dize the security which the privilege is meant to protect by
insisting upon an examination of the evidence, even by the
judge alone, in chambers.” Id. at 10.
No case of the Court, however, has extended this high degree of
deference to a President’s generalized interest in confidentiality.
Nowhere in the Constitution, as we have noted earlier, is there
any explicit reference to a privilege of confidentiality, yet to the
extent this interest relates to the effective discharge of a
President’s powers, it is constitutionally based.
418 U.S. at 710-11.
An additional important application of executive privilege, which, as noted
earlier, relates centrally to the discharge of the President’s constitutional du
ties, involves open law enforcement files. Since the early part of the 19th
century, Presidents have steadfastly protected the confidentiality and integrity
of investigative files from untimely, inappropriate, or uncontrollable access by
the other branches, particularly the legislature.20 The basis for this application
20 As explained by Attorney General (later. Supreme Court Justice) Robert Jackson in April 1941:
Disclosure of the reports could not do otherwise than seriously prejudice law enforcement.
Counsel for a defendant or prospective defendant, could have no greater help than to know how
much or how little information the Government has, and what witnesses or sources of informa
tion it can rely upon.
40 Op. A tt'y Gen. 45, 46 (1941). As similarly expressed a few years later by Deputy Assistant Attorney
Genera] K auper
Over a number of years, a number of reasons have been advanced for the traditional refusal of
the Executive to supply Congress with information from open investigational files. Most impor-
Continued
117
of the privilege is essentially the same as for all aspects of executive privilege;
the Executive’s ability to enforce the law would be seriously impaired, and the
impermissible involvement of other branches in the execution and enforcement
of the law would be intolerably expanded, if the Executive were forced to
disclose sensitive information on case investigations and strategy from open
enforcement files.
IV. Tlhe ©unity off the Executive Branncli WItaeim aim Executive Official
Has l e a Cited for Comtempt off Comgress (For Assenting
CUne IPresidennt’s Claim off Executive Privilege
A. Prosecutorial Discretion
The first specific question that is presented by the circumstances that gave
rise to this memorandum is whether the United States Attorney is required to
refer every contempt of Congress citation to a grand jury. This question raises
issues of statutory construction as well as the constitutional limits of prosecutorial
discretion. We deal first with the statutory questions.
As a preliminary matter, we note that § 194 does not on its face actually
purport to require the United States Attorney to proceed with the prosecution of
a person cited by a house of Congress for contempt; by its express terms the
statute discusses only referral to a grand jury. Even if a grand jury were to
return a true bill, the United States Attorney could refuse to sign the indictment
and thereby prevent the case from going forward. United States v. Cox, 342
F.2d 167 (5th Cir.) (en banc), cert, denied, 381 U.S. 935 (1965); In re Grand
Jury, January, 1969, 315 F. Supp. 662 (D. Md. 1970). See Hamilton &
Grabow, A Legislative Proposal for Resolving Executive Privilege Disputes
Precipitated by Congressional Subpoenas, 21 Harv. J. on Legis. 145, 155
(1984). Thus, as a matter of statutory interpretation, there is no doubt that the
contempt of Congress statute does not require a prosecution; the only question
is whether it requires referral to the grand jury.21
20 (. .. continued)
tant, the Executive cannot effectively investigate if Congress is, in a sense, a partner in the
investigation. If a congressional committee is fully apprised of all details of an investigation as
the investigation proceeds, there is a substantial danger that congressional pressures will influ*
ence the course of the investigation.
Memorandum for the Deputy Counsel to the President from Deputy Assistant Attorney General Kauper re:
Submission of Open CID Investigation Files (Dec. 19, 1969). This significant constitutional privilege
provides a foundation for our discussion below of the penalties that Congress may attach to the President’s
assertion of the privilege in response to a congressional subpoena.
21 Although it is by no means certain as a matter of law, if the case were referred to a grand jury, the United
States Attorney might be required to take certain steps short o f signing the indictment, and the grand jury’s
decision might well become public. In Cox, a majority of the court (made up of the three dissenting judges
and one concurring judge) took the view that the United States Attorney could be required to prepare an
indictment for use by the grand jury. In addition, the district court in
In re Grand Jury, supra, held that even
though the United States Attorney could not be required to sign an indictment, in the circumstances o f that
case “the substance of the charges in the indictment should be disclosed, omitting certain portions as to which
Continued
118
1. Previous Department of Justice Positions Concerning Prosecutorial
Discretion Under the Contempt of Congress Statute
In the past, the Department of Justice has taken the position that if Congress
cited an executive officer for contempt because of an assertion of executive
privilege and “the Department determined to its satisfaction that the claim was
rightfully made, it would not, in the exercise of its prosecutorial discretion,
present the matter to a grand jury.” Testimony of Assistant Attorney General
(now Solicitor General) Rex Lee, Hearings on Representation of Congress and
Congressional Interests in Court, Before the Subcomm. on Separation of
Powers o f the Senate Committee on the Judiciary, 94th Cong., 2d Sess. 8
(1976).
This principle of prosecutorial discretion under the contempt of Congress
statute was followed by the Department in the cases of three officials of the
Port of New York Authority who were cited for contempt of Congress in 1960
for refusing to produce documents to the House Judiciary Committee. As a part
of an investigation of the Port Authority, which had been established by an
interstate compact approved by Congress, the Judiciary Committee subpoe
naed a large number of documents concerning the Port Authority’s operations,
most of which the Port Authority declined to produce on the orders of the
governors of New York and New Jersey (the states within which the Port
Authority was located). Because of the failure to produce the documents, the
Committee recommended, and the House adopted, contempt resolutions against
three principal officials of the Port Authority.22 On August 23, 1960, these
resolutions were referred to the United States Attorney for prosecution. See
N.Y. Times, Aug. 24,1960, at 1. The United States Attorney never referred any
of these citations to the grand jury. On November 16, 1960, the Department of
Justice announced that it would proceed against the officials by information
21 (... continued)
the Court, in the exercise of its discretion, concludes that the public interest in disclosure is outweighed by the
private prejudice to the persons involved, none of whom are charged with any crime in the proposed
indictment." 315 F Supp. at 678-79. Under this analysis, if the contempt citation were to reach a grand jury
and the grand jury were to vote a true bill, a court might be able to require the United States Attorney to
prepare an indictment and then might order the disclosure of that indictment as voted by the grand jury. For
the reasons set out in our discussion o f prosecutorial discretion, the court could not, however, order the
United States Attorney to prosecute.
Because the contempt o f Congress statute does not require the United States Attorney to refer to a grand
jury a citation for contempt of Congress issued to an executive official who has asserted the President’s claim
of executive privilege, we have not attempted to determine definitively what additional steps, if any, the
United States Attorney could be required to take if such a matter were referred to a grand jury.
22 See 106 Cong. Rec. 17313 (1960) (citation against Austin J. Tobin, Executive Director of the Authority);
id. at 17316 (citation against S. Sloan Colt, Chairman of the Board); id. at 17319 (citation against Joseph G.
Carty, Secretary). The contempt resolution in each case read as follows:
Resolved, That the Speaker o f the House o f Representatives certify the report of the Committee
on the Judiciary as to the contumacious conduct of [name] in failing and refusing to furnish
certain documents in compliance with a subpena duces tecum of a duly constituted subcommittee
of said committee served upon him and as ordered by the subcommittee, together with all of the
facts in connection therewith, under seal o f the House of Representatives, to the United States
attorney for the District of Columbia, to the end that [name] may be proceeded against in the
manner and form provided by law.
119
rather than indictment, and therefore would not present the citations to a grand
jury. See N.Y. Times, Nov. 17, 1960, at 1. On November 25, 1960, the
Department announced that it would file an information against only one of the
Port Authority officials, Executive Director Austin Tobin, and would not
prosecute the remaining two officials. See N.Y. Times, Nov. 26,1960, at 1. The
trial began in January 1961 and continued under the supervision of the new
Attorney General, Robert F. Kennedy, who never altered the decision not to
prosecute the two remaining officials, in spite of a congressional request to do
so. Ultimately Tobin’s conviction was reversed by the United States Court of
Appeals for the District of Columbia Circuit. Tobin v. United States, 306 F.2d
270 (D.C. Cir.), cert, denied, 371 U.S. 902 (1962).23
In the foregoing instance, the Department (under two administrations) exer
cised its prosecutorial discretion not to refer contempt of Congress citations to
a grand jury, notwithstanding the seemingly mandatory phrasing of the stat
ute.24 For the reasons set forth more fully below, we continue to adhere to the
conclusion that the Department retains prosecutorial discretion not to refer
contempt citations to a grand jury.
2. Judicial Opinions Interpreting the Language of § 194
Section 194 imposes similarly worded, nominally mandatory, referral obli
gations on both the Speaker of the House (or the President of the Senate) and
the United States Attorney once a contempt of Congress resolution has been
adopted by the House or Senate:
it shall be the duty of the said President of the Senate or the
Speaker of the House as the case may be, to certify, and he shall
so certify, the statement of facts aforesaid under the seal of the
Senate or House, as the case may be, to the appropriate United
States attorney, whose duty it shall be to bring the matter before
the grand jury for its action.
(Emphasis added.)
Although the language, “it shall be the duty of’ and “whose duty it shall be,”
might suggest a nondiscretionary obligation, the United States Court of Ap
peals for the District of Columbia Circuit has expressly held, at least with
respect to the Speaker of the House, that the duty is not mandatory, and that, in
fact, the Speaker has an obligation under the law, at least in some cases, to
exercise his discretion in determining whether to refer a contempt citation.
Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966). In Wilson, the court
reversed a conviction for contempt of Congress on the ground that the Speaker
had assumed that the statute did not permit any exercise of discretion by him
23 The Court of Appeals ruled lhat the documents requested by the Committee went beyond the investiga-
tive authority delegated to the Committee by the House.
24 W e know of at least two other individuals who were cited for contempt of Congress, but whose cases
were not referred to a grand jury by the D epartment of Justice. See Department of Justice File No. 51-51-484
(1956). The file was closed because the Department concluded that there was an insufficient basis for
prosecution.
12 0
and he had therefore automatically referred a contempt citation to the United
States Attorney while Congress was not in session. The court based its conclu
sion that the Speaker was required to exercise his discretion on the longstanding
practice of both the House and Senate and on congressional debates on con
tempt citations in which the houses had recognized their own discretion not to
approve a contempt resolution. The court concluded that because full House
approval of a contempt citation is necessary when Congress was in session, the
Speaker is required to exercise some discretion when the House is not in
session. 369 F.2d at 203-04.
Although the reasons underlying the court’s decision not to impose a manda
tory duty on the Speaker in Wilson do not necessarily require the same conclu
sion with respect to the United States Attorney, the decision at least supports
the proposition that the seemingly mandatory language of § 194 need not be
construed as divesting either the Speaker or the United States Attorney of all
discretion.25
In several cases, the United States Court of Appeals for the District of
Columbia Circuit has at least assumed that the United States Attorney retains
discretion not to refer a contempt of Congress citation to a grand jury. In these
cases, the court refused to entertain challenges to congressional subpoenas, at
least in part on the ground that the prospective witnesses woiild have adequate
subsequent opportunities to challenge a committee’s contempt finding, includ
ing the opportunity to persuade the United States Attorney not to refer the case
to a grand jury. For example, in Ansara v. Eastland, 442 F.2d 751 (D.C. Cir.
1971), the court declined to entertain a suit to quash a congressional subpoena
on the ground that it would be inappropriate, as a matter of the exercise of its
equitable power, to interfere with an ongoing congressional process. The court
stated that protections were available “within the legislative branch or else
where,” and then in a footnote indicated that these protections resided “perhaps
in the Executive Branch which may decide not to present the matter to the
grand jury (as occurred in the case of the officials of the New York Port
Authority); or perhaps in the Grand Jury which may decide not to return a true
bill.” 442 F.2d at 754 n.6 (emphasis added).26 See also Sanders v. McClellan,
23 In this respect, we believe that Wilson implicitly disapproved the dictum of Ex parte Frankfeld, 32 F.
Supp. 91S (D.D.C. 1940), in which the district court stated:
It seems quite apparent that Congress intended to leave no measure of discretion to either the
Speaker of the House or the President of the Senate, under such circumstances, but made the
certification o f facts to the distnct attorney a mandatory proceeding, and it 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.
Id at 916. The Frankfeld court expressly linked the responsibilities of the Speaker and the United States
Attorney Wilson ruled that the Speaker’s duty is discretionary, at least when the House is not in session.
Therefore, since the Speaker’s duty is in pari materia with the duty of the United States Attorney, the law, at
least in the District o f Columbia Circuit, seems to be that both duties should be viewed as containing some
elements of discretion.
26 Ansara v. Eastland was cited with approval three times by Judge Smith in United States v. House of
Representatives, 556 F. Supp. 150, 152-53 (D.D.C 1983). Thus, although the opinion made a passing
reference to the mandatory nature of referral. Judge Smith must have recognized that the United States
Attorney retained prosecutorial discretion.
121
463 F.2d 894 (D.C. Cir. 1972). In United States Servicemen’s Fund v. Eastland,
488 F.2d 1252 (D.C. Cir. 1973), rev’don other grounds, 421 U.S. 491 (1974),
the court agreed to review a challenge to a congressional subpoena brought by
a third party, and it distinguished Ansara and McClellan on the ground that,
because the congressional subpoena was issued to a third party, the plaintiffs
had no alternative means to vindicate their rights. 488 F.2d at 1260. Among the
alternative means the court cited was the right to “seek to convince the
executive (the attorney general’s representative) not to prosecute.” Id.
These cases emphasize the particular significance of prosecutorial discretion
in the context of the contempt of Congress statute. In general, with respect to
any criminal allegation, prosecutorial discretion plays an important role in
protecting the rights of the accused by providing an additional level of review
with respect to the factual and legal sufficiency of the charges. This role is even
more important when dealing with the contempt of Congress statute because,
as the above cases demonstrate, witnesses generally have no opportunity to
challenge congressional subpoenas directly. Thus, as the cases indicate,
prosecutorial discretion serves a vital purpose in protecting the rights of the
accused in contempt cases by mitigating the otherwise stem consequences of
asserting a right not to respond to a congressional subpoena.
Thus, the practice of the Congress and the available judicial authority
support the proposition that the seemingly mandatory duties imposed on con
gressional officials by 2 U.S.C. § 194 are and were intended to be discretion
ary. The practice of the Executive Branch and the court decisions reflect a
similarly discretionary role under the statute for the United States Attorney.
Because, as the balance of this memorandum reveals, these interpretations are
consistent with other common-law principles and avoid conclusions that would
be at odds with the separation of powers, we believe that a correct reading of 2
U.S.C. § 194 requires recognition of the prosecutor’s discretion with respect to
referral to a grand jury.
3. Common-Law Prosecutorial Discretion
In addition to the court decisions that suggest that the United States Attorney
may decide not to refer a contempt citation to a grand jury, the common-law
doctrine of prosecutorial discretion weighs heavily against and, in our opinion,
precludes an interpretation that the statute requires automatic referral. Because
of the wide scope of a prosecutor’s discretion in determining which cases to
bring, courts, as a matter of law, do not ordinarily interpret a statute to limit that
discretion unless the intent to do so is clearly and unequivocally stated. The
general rule is that “the Executive Branch has exclusive authority and absolute
discretion to decide whether to prosecute a case.” United States v. Nixon, 418
U.S. 683, 693 (1974). See also Confiscation Cases, 74 U.S. (7 Wall.) 454
(1869). The Attorney General and his subordinates, including the United States
Attorneys, have the authority to exercise this discretion reserved to the Execu
tive. United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); The Gray
122
Jacket, 72 U.S. (5 Wall.) 370 (1866). In general, courts have agreed with the
view of Judge (now Chief Justice) Burger:
Few subjects are less adapted to judicial review than the exer
cise by the Executive of his discretion in deciding when and
whether to institute criminal proceedings, or what precise charge
shall be made, or whether to dismiss a proceeding once brought.
Newman v. United States, 382 F.2d 479,480 (D.C. Cir. 1967). See also United
States v. Batchelder, 442 U.S. 114 (1979); Bordenkircher v. Hayes, 434 U.S.
357 (1978).
Courts have applied this general principle of prosecutorial discretion in
refusing to interfere with a prosecutor’s decision not to initiate a case, despite
the specific language of 28 U.S.C. § 547, which states in part that “each United
States Attorney, within his district, shall. .. prosecute for all offenses against
the United States.” (Emphasis added.) For example, in Powell v. Katzenbach,
359 F.2d 234 (D.C. Cir. 1965), cert, denied, 384 U.S. 906 (1966), the court
denied a mandamus petition that sought to force the Attorney General to
prosecute a national bank. The court ruled: “It is well settled that the question
of whether and when prosecution is to be instituted is within the discretion of
the Attorney General. Mandamus will not lie to control the exercise of this
discretion.” Id. at 234. See also United States v. Brown, 481 F.2d 1035 (8th Cir.
1973); Bass Anglers Sportsman’s Society v. Scholze Tannery, Inc., 329 F.
Supp. 339 (E.D. Tenn. 1971); Pugach v. Klein, 193 F. Supp. 630 (S.D.N.Y.
1961); United States v. Brokaw, 60 F. Supp. 100 (S.D. 111. 1945).
Courts exhibit the same deference to prosecutorial discretion even when the
specific statute involved uses words that would otherwise have mandatory,
nondiscretionary implications. For example, 42 U.S.C. § 1987 states that United
States Attorneys are “authorized and required .. . to initiate prosecutions
against all persons violating any of the provisions of [the federal criminal civil
rights statutes].” (Emphasis added.) Although a number of cases have been
initiated to force a United States Attorney to bring civil rights actions on the
ground that this statute imposes a nondiscretionary duty to prosecute, see Note,
Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L.J. 1297 (1965),
the courts uniformly have rejected the contention that the statute limits a
prosecutor’s normal discretion to decide not to bring a particular case. For
example, in Inmates o f Attica Correctional Facility v. Rockefeller, A ll F.2d
375 (2d Cir. 1973), the court ruled that the “mandatory nature of the word
‘required’ as it appears in § 1987 is insufficient to evince a broad Congres
sional purpose to bar the exercise of executive discretion in the prosecution of
federal civil rights crimes.” 477 F.2d at 381. The court noted that although
similar mandatory language was contained in other statutes, “[s]uch language
has never been thought to preclude the exercise of prosecutorial discretion.” Id.
Accord Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970); Moses v. Kennedy, 219
F. Supp. 762 (D.D.C. 1963), a ffd sub nom. Moses v. Katzenbach, 342 F.2d 931
(D.C. Cir. 1965). The language employed in 2 U.S.C. § 194 is neither stronger
123
nor more clearly mandatory than the language of § 1987, which the courts have
decided is insufficient to limit the normal prosecutorial discretion.
In fact, there is nothing to distinguish the contempt of Congress statute from
any other statute where the prosecutor retains discretion with respect to who
shall be prosecuted. Since the early part of the 19th century, it has been
recognized that offenses against Congress that are punishable by Congress
through its inherent contempt power may also be violations of the criminal
laws and, as such, offenses against the United States, with respect to which the
normal rules governing criminal prosecutions apply. See 2 Op. Att’y Gen. 655
(1834) (concluding that an assault against a congressman could be prosecuted
consistent with the Double Jeopardy Clause under the criminal laws, even if the
defendant had already been punished by Congress, because the act created two
separate offenses, one against Congress and one against the United States).
This principle was adopted by the Supreme Court when it upheld the constitu
tionality of the contempt of Congress statute. In re Chapman, 166 U.S. 661
(1897). In Chapman, the Court held that the contempt statute did not violate the
Double Jeopardy Clause even though a defendant could be punished through
Congress’ inherent contempt power as well as under the contempt statute. The
Court concluded that a refusal to testify involved two separate offenses, one
against Congress and one against the United States, and that
it is quite clear that the contumacious witness is not subjected to
jeopardy twice for the same offence, since the same act may be
an offence against one jurisdiction and also an offence against
another; and indictable statutory offenses may be punished as
such, while the offenders may likewise be subjected to punish
ment for the same acts as contempts, the two being diverso
intuitu and capable of standing together.
166 U.S. at 672.
The import of the Court’s conclusion in this context is clear. Congress’
inherent contempt power is the remedy for the offense against Congress, and
that remedy remains within Congress’ control. The crime of contempt of
Congress, like any other federal statutory crime, is an offense against the
United States that should be prosecuted as is any other crime. This criminal
offense against the United States properly remains subject to the prosecutorial
control of the Executive Branch. Therefore, because the contempt statute
should be treated as are other federal criminal statutes, we do not believe that
§194 should be read to limit the common law prosecutorial discretion of the
United States Attorney. There is nothing in the legislative history of the
contempt of Congress statute that is inconsistent with this conclusion. See 42
Cong. Globe, 34th Cong., 3d Sess. 4030-44 (1857).
4. Constitutional Considerations
Our construction of § 194 is reinforced by the need to avoid the constitu
tional problems that would result if § 194 were read to require referral to a
124
grand jury. As discussed above, the constitutionally prescribed separation of
powers requires that the Executive retain discretion with respect to whom it
will prosecute for violations of the law. Although most cases expressly avoid
this constitutional question by construing statutes not to limit prosecutorial
discretion, the cases that do discuss the subject make it clear that common law
prosecutorial discretion is strongly reinforced by the constitutional separation
of powers. See, e.g.. Inmates of Attica Correctional Facility v. Rockefeller, A ll
F.2d 375 (2d Cir. 1973); Powell v. Katzenbach, 359 F.2d 234 (D.C. Cir. 1965),
cert, denied, 384 U.S. 906 (1966).
A number of courts have expressly relied upon the constitutional separation
of powers in refusing to force a United States Attorney to proceed with a
prosecution. For example, in Pugach v. Klein, 193 F. Supp. 630 (S.D.N.Y.
1961), the court declined to order the United States Attorney to commence a
prosecution for violation of federal wiretap laws on the ground that it was
clear beyond question that it is not the business of the Courts to
tell the United States Attorney to perform what they conceive to
be his duties.
Article II, § 3 of the Constitution, provides that “[the President]
shall take Care that the Laws [shall] be faithfully executed.” The
prerogative of enforcing the criminal law was vested by the
Constitution, therefore, not in the Courts, nor in private citizens,
but squarely in the executive arm of the government.
193 F. Supp. at 634. See also Goldberg v. Hoffman, 225 F.2d 463, 464-65 (7th
Cir. 1955).27
The Fifth Circuit, sitting en banc, has underscored the constitutional founda
tions of prosecutorial discretion. United States v. Cox, 342 F.2d 167 (5th Cir.)
(en banc), cert, denied, 381 U.S. 935 (1965). In Cox, the court overturned a
district court’s order that a United States Attorney prepare and sign an indict
ment that a grand jury had voted to return. The plurality opinion stated:
The executive power is vested in the President of the United
States, who is required to take care that the laws be faithfully
executed. The Attorney General is the hand of the President in
taking care that the laws of the United States in legal proceed-
27 These conclusions are not inconsistent with Rule 48(a) of the Federal Rules of Criminal Procedure, which
requires leave of court before dismissal of a criminal action. This provision is intended primarily to protect
defendants against repeated prosecutions for the same offense, and a court's power to deny leave under this
provision is extremely limited. See Rinaldi v. United States, 434 U.S. 22 (1977); United States v. Hamm, 659
F.2d 624 (5th Cir. 1981); United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973). The United States Court
of Appeals for the Fifth Circuit has stated that the constitutionality of Rule 48(a) is dependent upon the
prosecutor’s unfettered ability to decide not to commence a case in the first place. United States v. Cox, 342
F.2d 167 (5th Cir.) (en banc), cert, denied, 381 U.S. 935 (1965). Moreover, Judge Weinfeld has stated that
even if a court denied leave to dismiss an indictment, a court “in that circumstance would be without power to
issue a mandamus or other order to compel prosecution of the indictment, since such a direction would invade
the traditional separation of powers doctrine.” United States v. Greater Blouse, Skirt & Neckwear Contrac
tors Ass’n, 228 F. Supp. 483 (S.D.N.Y. 1964).
125
ings and in the prosecution of offenses, be faithfully executed.
The role of the grand jury is restricted to a finding as to whether
or not there is probable cause to believe that an offense has been
committed. The discretionary power of the attorney for the
United States in determining whether a prosecution shall be
commenced or maintained may well depend upon matters of
policy wholly apart from any question of probable cause. Al
though as a member of the bar, the attorney for the United States
is an officer of the court, he is nevertheless an executive official
of the Government, and it is as an officer of the executive
department that he exercises a discretion as to whether or not
there shall be a prosecution in a particular case. It follows, as an
incident of the constitutional separation of powers, that courts
are not to interfere with the free exercise of the discretionary
powers of the attorneys of the United States in their control over
criminal prosecutions.
342 F.2d at 171 (footnotes omitted). See also id. at 182-83 (Brown, J. concur
ring); id. at 190-93 (Wisdom, J., concurring). Even the three dissenting judges
in Cox conceded that, although they believed that the United States Attorney
could be required to sign the indictment, “once the indictment is returned, the
Attorney General or the United States Attorney can refuse to go forward.” Id. at
179. See United States v. Nixon, 418 U.S. 683, 693 (1974) (“the Executive
Branch has exclusive authority and absolute discretion to decide whether to
prosecute a case”) (citing, inter alia, Cox).
Although prosecutorial discretion may be regulated to a certain extent by
Congress and in some instances by the Constitution, the decision not to pros
ecute an individual may not be controlled because it is fundamental to the
Executive’s prerogative. For example, the individual prosecutorial decision is
distinguishable from instances in which courts have reviewed the legality of
general Executive Branch policies. See Nader v. Saxbe, 497 F.2d 676 (D.C.
Cir. 1974); Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) (en banc)
(per curiam); NAACP v. Levi, 418 F. Supp. 1109 (D.D.C. 1976). In these cases
the courts accepted jurisdiction to rule whether an entire enforcement program
was being implemented based on an improper reading of the law. The cases
expressly recognize, however, both that a decision to prosecute in an individual
case involves many factors other than merely probable cause, and that “the
balancing of these permissible factors in individual cases is an executive, rather
than a judicial function which follows from the need to keep the courts as
neutral arbiters in the criminal law generally .. . and from Art. II, § 3 of the
Constitution, which charges the President to ‘take Care that the Laws be
faithfully executed.’” Nader v. Saxbe, 497 F.2d at 679 n.18. Similarly distin
guishable are the cases concerning the constitutional limits on selective pros
ecution, which hold that prosecutorial discretion may not be exercised on the
basis of impermissible factors such as race, religion, or the exercise of free
126
speech. See, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 249 (1980); Oyler v.
Boles, 368 U.S. 448 (1962).
If the congressional contempt statute were interpreted to divest the United
States Attorney of discretion, then the statute would create two distinct prob
lems with respect to the separation of powers. “The doctrine of separated
powers is implemented by a number of constitutional provisions, some of
which entrust certain jobs exclusively to certain branches while others say that
a given task is not to be performed by a given branch.” United States v. Brown,
381 U.S. 437, 443 (1965). Divesting the United States Attorney of discretion
would run afoul of both aspects of the separation of powers by stripping the
Executive of its proper constitutional authority and by vesting improper power
in Congress.
First, as the cases cited above demonstrate, Congress may not deprive the
Executive of its prosecutorial discretion. In areas where the President has
specific executive authority, Congress may establish standards for the exercise
of that authority, but it may not remove all Presidential authority. For example,
Congress may require the President to make appointments to certain executive
positions and may define the qualifications for those positions, but it may not
select the particular individuals whom the President must appoint to those
positions. See Buckley v. Valeo, 424 U.S. 1 (1976). Similarly, Congress may
adopt the criminal provisions for which individuals may be prosecuted and
impose certain qualifications on how the Executive should select individuals for
prosecution, but it may not identify the particular individuals who must be pros
ecuted. The courts have declared that the ultimate decision with respect to prosecu
tion of individuals must remain an executive function under the Constitution.
Second, if Congress could specify an individual to be prosecuted, it would be
exercising powers that the Framers intended not be vested in the legislature. A
legislative effort to require prosecution of a specific individual has many of the
attributes of a bill of attainder and would seem to be inconsistent with many of
the policies upon which the Constitution’s prohibition against bills of attainder
was based. See United States v. Brown, 381 U.S. 437 (1965); United States v.
Lovett, 328 U.S. 303 (1946). The constitutional role of Congress is to adopt
general legislation that will be applied and implemented by the Executive
Branch. “It is the peculiar province of the legislature to prescribe general rules
for the government of society; the application of those rules to individuals in
society would seem to be the duty of other departments.” Fletcher v. Peck, 10
U.S. (6 Cranch) 87, 136 (1810); see United States v. Brown, 381 U.S. 437,446
(1965). The Framers intended that Congress not be involved in such prosecutorial
decisions or in questions regarding the criminal liability of specific individuals.
As the Supreme Court stated in Lovett:
Those who wrote our Constitution well knew the danger
inherent in special legislative acts which take away the life,
liberty, or property of particular named persons, because the legisla
ture thinks them guilty of conduct which deserves punishment.
127
328 U.S. at 317. Justice Powell has echoed this concern: “The Framers were
well acquainted with the danger of subjecting the determination of the rights of
one person to the ‘tyranny of shifting majorities.’” INS v. Chadha, 462 U.S.
917, 961 (1983) (Powell, J. concurring). As we have shown above, courts may
not require prosecution of specific individuals, even though the Judicial Branch
is expressly assigned the role of adjudicating individual guilt. A fortiori, the
Legislative Branch, which is assigned the role of passing laws of general
applicability and specifically excluded from questions of individual guilt or
innocence, may not decide on an individual basis who will be prosecuted.
These constitutional principles of prosecutorial discretion apply even though
the issue here is referral to the grand jury and not commencement of a criminal
case after indictment. A referral to a grand jury commences the criminal
prosecution process. That step is as much a part of the function of executing the
laws as is the decision to sign an indictment. The cases expressly recognize that
prosecutorial discretion applies at any stage of the investigative process, even
to the decision whether to begin an investigation at all. See Inmates of Attica
Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973); Smith v.
United States, 375 F.2d 243, 248 (5th Cir.), cert, denied, 389 U.S. 841 (1967).
In the latter case, the court emphasized that prosecutorial discretion was
protected “no matter whether these decisions are made during the investigation
or prosecution of offenses.” 375 F.2d at 248. Moreover, if the Executive has
already determined that, as a matter of law, no violation of the law has
occurred, it would serve no practical purpose to refer a case to the grand jury.
Given the importance of these constitutional principles and the fundamental
need to preserve the Executive’s power to enforce the laws, we see no reason
for distinguishing between the decision to prosecute and the decision to refer to
the grand jury in this case.28
For all of the above reasons, as a matter of statutory construction strongly
reinforced by constitutional separation of powers principles, we believe that
the United States Attorney and the Attorney General, to whom the United
States Attorney is responsible, retain their discretion not to refer a contempt of
Congress citation to a grand jury. It follows, of course, that we believe that
even if the provision of a statute requiring reference to a grand jury were to be
upheld, the balance of the prosecutorial process could not be mandated.
28 A statute giving one house of Congress the power to direct an Executive Branch official to take any
particular action also raises a separate issue under the Supreme Court’s decision in INS v. Chadha, 462 U.S.
917 (1983). Under the current contempt statute, the role o f the House or Senate in simply referring a matter to
the United States Attorney for possible prosecution raises no substantial issue under Chadha because the
House or Senate is acting, in a sense, as a private citizen would — by reporting a possible violation of federal
crim inal law. Thus, Chadha's proscription of actions by one house (or two houses or a congressional
committee) that are designed to have “the purpose and effect of altering the legal rights, duties, and relations
of persons . . . outside the Legislative Branch” would be inapplicable.
Id at 952. If the contempt statute
precluded prosecutorial discretion, however, one house would be empowered to impose on the United States
Attorney an affirmative legal duty to initiate a prosecution and to take certain steps in that prosecution. To
em power one house of Congress in that manner would appear to be contrary to the clear language and
rationale of Chadha. This is not, of course, to say that Congress’ attempt to impose such an obligation on the
United States Attorney by plenary legislation in a specific case would be constitutional; it is to say that a
permanent mechanism to be triggered by the vote of one house raises a significant additional constitutional concern.
128
B. Whether the Criminal Contempt of Congress Statute Applies to an
Executive Official Who Asserts, On Direct Orders of the President,
the President’s Claim o f Executive Privilege
We next consider, aside from the issue of prosecutorial discretion, whether
the criminal contempt of Congress statute is intended to apply, or constitution
ally could be applied, to Presidential claims of executive privilege.
1. Previous Department of Justice Interpretations of the Contempt of
Congress Statute
The Department of Justice has previously taken the position that the criminal
contempt of Congress statute does not apply to executive officials who assert
claims of executive privilege at the direction of the President. In 1956, Deputy
Attorney General (subsequently Attorney General) William P. Rogers took this
position before a congressional subcommittee investigating the availability of
information from federal departments and agencies. In a lengthy memorandum
of law, Deputy Attorney General Rogers set forth the historical basis of
executive privilege and concluded that in the context of Presidential assertions
of the privilege, the contempt of Congress statute was “inapplicable to the
executive departments.” See Hearings Before a Subcommittee of the House
Committee on Government Operations, 84th Cong., 2d Sess. 2933 (1956).29
We are not aware of any subsequent Department position that reverses or
weakens this conclusion, and we have found no earlier Department position to
the contrary.
We believe that the Department’s long-standing position that the contempt
of Congress statute does not apply to executive officials who assert Presidential
claims of executive privilege is sound, and we concur with it. Our conclusion is
based upon the following factors: (1) the legislative history of the contempt of
Congress statute demonstrates that it was not intended to apply to Presidential
assertions of executive privilege; and (2) if the statute were construed to apply
to Presidential assertions of executive privilege, it would so inhibit the President’s
ability to make such claims as to violate the separation of powers.
2. The Legislative History of the Contempt of Congress Statute
Neither the legislative history nor the historical implementation of the con
tempt statute supports the proposition that Congress intended the statute to
apply to executive officials who carry out a Presidential assertion of executive
privilege. The criminal contempt statute was originally enacted in 1857 during
proceedings in the House of Representatives to consider a contempt of Con
gress citation against a New York Times correspondent who had refused to
29 The memorandum cited, inter alia, a 1909 Senate debate over the issue of executive privilege in which
Senator Dolliver questioned “where Congress gets authority either out of the Constitution or the laws of the
United States to order an executive department about like a servant.” 43 Cong. Rec. 3732 (1909) Other
historical examples cited by the report are discussed below.
129
answer questions put to him by a select committee appointed by the House to
investigate charges of bribery of certain Representatives. As a result of the
committee’s unavailing efforts to obtain the reporter’s testimony, the commit
tee chairman introduced a bill designed “more effectually to enforce the
attendance of witnesses on the summons of either House of Congress, and to
compel them to deliver testimony.” 42 Cong. Globe 404 (1857). The bill was
supported as a necessary tool in the House’s efforts to investigate the allega
tions of bribery. See id. at 405 (remarks of the Speaker), 426 (remarks of Sen.
Toombs), 421 (remarks of Rep. Davis), 445 (remarks of Sen. Brown). The bill
was rushed through Congress in less than a week in order to permit the House
to bring greater pressure on the reporter to reveal the alleged source of the
congressional corruption. That the bill was sponsored by the select committee,
and not the Judiciary Committee, further demonstrates that the bill was not the
result of a general consideration of Congress’ contempt power, but was enacted
as an expedient to aid a specific investigation. Thus, the circumstances of the
bill’s passage certainly do not affirmatively suggest that Congress anticipated
application of the statute to instances in which the President asserted a claim of
executive privilege.
In fact, the sponsor of the bill disclaimed any such far-reaching implications.
Representative Dunn asked the sponsor, Representative Orr, what impact the
proposed bill would have on diplomatic secrets, one of the principal areas in
which the President had historically asserted a privilege of confidentiality.
Representative Dunn stated that use of the contempt statute by Congress to
force disclosure of such material “might be productive of great mischief, and in
time of war of absolute ruin of the country.” 42 Cong. Globe 431 (remarks of
Rep. Dunn). Representative Orr replied, “I can hardly conceive such a case”
and emphasized that the bill should not be attacked “by putting instances of the
extremest cases” because the “object which this committee had in view was,
where there was corruption in either House of Congress, to reach it.” Id. at 431
(remarks of Rep. Orr). The implication is that Congress did not intend the bill
to apply to Presidential assertions of privilege.30
30 The legislative history contains one reference to the application o f the statute against executive officials.
During the floor debates, Representative Marshall attacked the bill by claiming that it “proposes to punish
equally the Cabinet officer and the culprit who may have insulted the dignity of this House by an attempt to
corrupt a Representative of the people.” 42 Cong. Globe at 429. This statement does not, however, suggest
that the statute was intended to apply to Presidential assertions of executive privilege. Indeed, virtually all
previous assertions of executive privilege against Congress had been made by the President himself, and
Congress expressed no intent to utilize the criminal contempt provisions against the President. Representative
M arshall’s statement, therefore, simply lends support to the proposition, with which we agree, that there are
certain circumstances in which the congressional contempt statute might be utilized against an executive
official, such as instances in which an executive official, acting on his own, engaged in disruptive and
contumacious conduct during a congressional hearing, or in which an executive official, acting on his own,
com mitted an offense. See Marshall v. Gordon, 243 U.S. 521 (1917). As the remainder of Representative
M arshall’s remarks demonstrate, the principal force driving the bill was Congress’ desire to obtain an
expeditious method for investigating questions regarding the integrity of Congress and not to provide
Congress with a statute requiring the President to prosecute criminally those who had asserted the President’s
constitutionally based claim of executive privilege. We have found no evidence in the legislative history that
supports an intention to apply the proposed statute in such a context.
130
In the years preceding the adoption of the statute, the President had, on a
number of occasions, withheld documents from Congress under a claim of
executive privilege, arid many of these instances had been hotly contested in
the public arena, and at least five of these instances occurred within the decade
immediately preceding the enactment of the congressional contempt statute.
See supra note 19 (collecting authorities). In spite of these highly visible
battles over the subject of executive privilege, we have located no indication in
the legislative history of the criminal contempt statute that Congress intended
the statute to provide a remedy for refusals to produce documents pursuant to a
Presidential claim of executive privilege.
The natural inference to be drawn from this vacuum in the legislative history
is reinforced by Congress’ failure, as far as we know, ever to utilize its inherent
power of arrest to imprison Executive Branch officials for contempt of Con
gress for asserting claims of executive privilege, even though Congress had
previously asserted and exercised its clearly recognized right to do so with
respect to other instances of contempt by private citizens. See Anderson v.
Dunn, 19 U.S. (6 Wheat.) 204 (1821); Ex Parte Nugent, 18 F. Cas. 471
(C.C.D.C. 1848). The absence of any congressional discussion of the use of the
contempt power against Presidential claims of executive privilege and Con
gress’ previous failure ever to attempt to use its inherent contempt power in such
cases, strongly suggest that the statute was not intended to apply to such assertions.
This conclusion is supported by the subsequent history of the congressional
contempt statute. Since enactment of the statute in 1857, there have been
numerous instances in which the President has withheld documents from
Congress under a claim of executive privilege. Despite the fact that many of
these disputes were extraordinarily controversial, until the citation of the EPA
Administrator in December 1982, 125 years after the contempt statute was
enacted, neither house of Congress had ever voted to utilize the contempt
statute against a Presidential assertion of executive privilege. In fact, during
congressional debates over Presidential refusals to produce documents to Con
gress, there have been express acknowledgements by members of Congress
that Congress had no recourse against the Executive if the President asserted
executive privilege. In 1886, the Senate engaged in a prolonged debate over
President Cleveland’s order to his Attorney General not to produce to Congress
documents concerning the dismissal of a United States Attorney. The debate
was intense, controversial, and memorable; 23 years after the debate a Senator
termed it the “most remarkable discussion which was ever had upon this
question [of the President’s right to withhold documents from Congress].” 43
Cong. Rec. 841 (1909) (remarks of Sen. Bacon). During this debate, even
Senators who insisted upon the Senate’s right to receive the documents recog
nized that if the President ordered them not to be produced, “there is no
remedy.” 17 Cong. Rec. 2800 (1886) (remarks of Sen. Logan); see also id. at
2737 (1886) (remarks of Sen. Voorhees).31
31 The only remedy then recognized by the Senators was the ultimate sanction of impeachment. See 17
Continued
131
Congress’ failure to resort to the contempt statute during any of the multi
tude of robust conflicts over executive privilege during the previous century
and one quarter and Congress’ own explicit recognition that it was without a
remedy should the President order the withholding of documents, strongly
suggest that Congress never understood the statute to apply to an executive
official who asserted the President’s claim of executive privilege.32
3. Prudential Reasons for Construing the Contempt Statute Not To Apply
to Presidential Assertions of Privilege
Courts traditionally construe statutes in order to avoid serious doubts about a
statute’s constitutionality. Califano v. Yamasaki, 442 U.S. 682, 693 (1979);
Crowell v. Benson, 285 U.S. 22, 62 (1932). As stated by the United States
Court of Appeals for the District of Columbia Circuit, “when one interpretation
of a statute would create a substantial doubt as to the statute’s constitutional
validity, the courts will avoid that interpretation absent a ‘clear statement’ of
contrary legislative intent.” United States v. Brown, 483 F.2d 1314,1317 (D.C.
Cir. 1973) (quoting United States v. Thompson, 452 F.2d 1333,1337 (D.C. Cir.
1971), cert, denied, 405 U.S. 998 (1972)).
When a possible conflict with the President’s constitutional prerogatives is
involved, the courts are even more careful to construe statutes to avoid a
constitutional confrontation. A highly significant example may be found in the
procedural history and holding of United States v. Nixon, 418 U.S. 683 (1974),
in which the Court construed the limitation in 28 U.S.C. § 1291 (that appeals be
taken only from “final” decisions of a district court) in order to permit the
President to appeal an adverse ruling on his claim of executive privilege
without having to place himself in contempt of court. Although the plain
language of that statute seemed to preclude an appeal of a lower court’s
31 ( .. . continued)
Cong. Rec. 2737, 2800 (1886). As we note below, a much more effective and less controversial remedy is
available — a civil suit to enforce the subpoena — which would permit Congress to acquire the disputed
records by judicial order. See also Senate Select Committee on Presidential Campaign Practices v. Nixon,
498 F.2d 725 (D.C. Cir. 1974) (en banc).
32 Congress’ practices with respect to the contempt statute and the absence of any previous application of
the statute to an Executive Branch official in these circumstances are highly probative of the meaning and
applicability of the statute. In general, the Supreme Court has examined historical practice to determine the
scope of Congress’ powers. For example, in determining the scope o f Congress’ power to call and examine
witnesses, the Court looked to the historical experience with respect to investigations and concluded:
when [Congress’] practice in the m atter is appraised according to the circumstances in which it
was begun and to those in which it has been continued, it falls nothing short of a practical
construction, long continued, o f the constitutional provisions respecting their powers; and
therefore should be taken as fixing the meaning of those provisions, if otherwise doubtful.
McGrain v. Daugherty, 273 U.S. 135, 174 (1927); see also Fairbank v. United States, 181 U.S. 283, 308
(1901). Moreover, the Court traditionally gives great weight to a contemporaneous construction of a statute
by the agency charged with its execution. See Power Reactor Development Co. v. Electricians, 367 U.S. 396,408
(1961); Unemployment Compensation Comm’n v. Aragon, 329 U S. 143,153 (1946). In this instance, Congress is
responsible for taking the first step in implementing the contempt statute. Therefore, Congress’ previous interpreta
tions and past uses of the statute are analogous to the contemporaneous construction of the agency charged with
implementation o f the statute, and are of significance in determining the meaning of the statute.
132
interlocutory ruling on an evidentiary matter, the Court construed the statute to
permit an immediate appeal, without going through the otherwise required
contempt proceeding:
The traditional contempt avenue to immediate appeal is pecu
liarly inappropriate due to the unique setting in which the ques
tion arises. To require a President of the United States to place
himself in the posture of disobeying an order of a court merely
to trigger the procedural mechanism of the ruling would be
unseemly, and would present an unnecessary occasion for con
stitutional confrontation between two branches of the government.
418 U.S. at 691-92.
Congress itself has previously recognized the impropriety of resolving ex
ecutive privilege disputes in the context of criminal contempt proceedings.
During the dispute over the Watergate tapes, Congress provided a civil en
forcement mechanism through which to test the President’s claim of executive
privilege. Senator Ervin, the sponsor of the bill, noted in his explanatory
statement to the Senate that the use of criminal contempt “may be inappropri
ate, unseemly, or nonefficacious where executive officers are involved.” 119
Cong. Rec. 35715 (1973). In defending the civil enforcement procedure before
the district court, Congress argued that in that case the contempt procedures
would be “inappropriate methods for the presentation and resolution of the
executive privilege issue,” and that a criminal proceeding would be “a mani
festly awkward vehicle for determining the serious constitutional question here
presented.” Plaintiffs Memorandum of Points and Authorities in Support of
Motion for Summary Judgment, Senate Select Committee on Presidential
Campaign Activities v. Nixon, Civ. No. 1593-73, at 5 (D.D.C. Aug. 28, 1973).
The United States Court of Appeals for the District of Columbia Circuit has
stated on several occasions that criminal contempt proceedings are an inappro
priate means for resolving document disputes, especially when they involve
another governmental entity. In Tobin v. United States, 306 F.2d 270 (D.C.
Cir.), cert, denied, 371 U.S. 902 (1962), the court reversed a contempt of
Congress conviction on the ground that the congressional subpoena had gone
beyond the investigative authority delegated to the committee that issued the
subpoena. After deciding this issue, however, the court felt “inclined to add a
few words in conclusion” concerning the problems involved in a criminal
contempt of Congress case against a public official. In dictum, the court noted
that the “conflicting duality inherent in a request of this nature is not particu
larly conducive to the giving of any satisfactory answer, no matter what the
answer should prove to be,” and it cited the “eloquent plea” of District Judge
Youngdahl in the case below, which read in part:
Especially where the contest is between different governmental
units, the representative of one unit in conflict with another
should not have to risk jail to vindicate his constituency’s rights.
133
Moreover, to raise these issues in the context of a contempt case
is to force the courts to decide many questions that are not really
relevant to the underlying problem of accommodating the inter
est of two sovereigns.
306 F.2d at 276. See also United States v. Fort, 443 F.2d 670, 677-78 (D.C.
Cir. 1970), cert, denied, 403 U.S. 932 (1971).
The analysis contained in United States v. Nixon demonstrates that prin
ciples of the separation of powers compel the application of special rules when
a Presidential claim of a constitutional privilege is in tension with the request of
another branch for confidential Executive Branch records. In discussing the
issue of executive privilege in that case in response to a judicial subpoena, the
Court stressed that the President’s assertion of privilege was not to be treated as
would a claim of a statutory or common law privilege by a private citizen. 418
U.S. at 708, 715. The President’s constitutional role as head of one of three
separate branches of government means that special care must be taken to
construe statutes so as not to conflict with his ability to carry out his constitu
tional responsibilities. See, e.g., Myers v. United States, 272 U.S. 52 (1926)
(upholding the President’s removal power against limitations Congress sought
to impose). The same special attention is provided, of course, to the other two
branches when they assert responsibilities or prerogatives peculiar to their
constitutional duties. See, e.g., Gravel v. United States, 408 U.S. 606 (1972)
(extending immunity of Speech and Debate Clause to congressional assis
tants); Pierson v. Ray, 386 U.S. 547 (1967) (granting absolute civil immunity
for judges’ official actions).
In this case, the congressional contempt statute must be interpreted in light
of the specific constitutional problems that would be created if the statute were
interpreted to reach an Executive Branch official such as the EPA Administra
tor in the context considered here.33 As explained more fully below, if execu
tive officials were subject to prosecution for criminal contempt whenever they
carried out the President’s claim of executive privilege, it would significantly
burden and immeasurably impair the President’s ability to fulfill his constitu
tional duties. Therefore, the separation of powers principles that underlie the
doctrine of executive privilege also would preclude an application of the
contempt of Congress statute to punish officials for aiding the President in
asserting his constitutional privilege.34
33 The same principle applies to protect the constitutional functions o f the other branches. The separation of
powers would similarly seem to require that a statute that made it a crime to disregard a statute passed by
Congress be read not to apply to a judge who struck down a congressional enactment as unconstitutional.
34 In addition to the encroachment on the constitutionally required separation of powers that prosecution of
an Executive Branch official in this context would entail, there could be a serious due process problem if such
an official were subjected to criminal penalties for obeying an express Presidential order, an order which was
accompanied by advice from the Attorney General that compliance with the Presidential directive was not
only consistent with the constitutional duties of the Executive Branch, but also affirmatively necessary in
order to aid the President in the performance of his constitutional obligations to take care that the law was
faithfully executed. See Cox v. Louisiana, 379 U.S. 559 (1965); Raley v. Ohio, 360 U.S. 423 (1959).
Continued
134
4. The Constitutional Implications of Application of the Contempt of Con
gress Statute to Executive Branch Officials Who Assert the President’s
Claim of Privilege
The Supreme Court has stated that, in determining whether a particular
statute
disrupts the proper balance between the coordinate branches,
the proper inquiry focuses on the extent to which it prevents the
Executive Branch from accomplishing its constitutionally as
signed functions. United States v. Nixon, 418 U.S. at 711-712.
Only where the potential for disruption is present must we then
determine whether that impact is justified by an overriding need
to promote objectives within the constitutional authority of
Congress.
Nixon v. Administrator of General Services, 433 U.S. 425,443 (1977). Thus, in
analyzing this separation of powers issue, one must look first to the impact that
application of the congressional contempt statute to Presidential assertions of
executive privilege would have on the President’s ability to carry out his
constitutionally assigned functions. Then, if there is a potential for disruption,
it is necessary to determine whether Congress’ need to impose criminal con
tempt sanctions in executive privilege disputes is strong enough to outweigh
the impact on the Executive’s constitutional role.
In this instance, at stake is the President’s constitutional responsibility to
enforce the laws of the United States and the necessarily included ability to
protect the confidentiality of information vital to the performance of that task.
As explained earlier in this memorandum, the authority to maintain the integ
rity of certain information within the Executive Branch has been considered by
virtually every President to be essential to his capacity to fulfill the responsi
bilities assigned to him by the Constitution. Thus, as discussed above, and as
the Supreme Court has recognized, the capacity to protect the confidentiality of
some information is integral to the constitutional role of the President.
For these reasons, the Supreme Court has ruled that the President’s assertion
of executive privilege is presumptively valid and can be overcome only by a
clear showing that another branch cannot responsibly, carry out its assigned
constitutional function without the privileged information. United States v.
Nixon, 418 U.S. at 708. In Nixon, the Court stated that “upon receiving a claim
34 (... continued)
Furthermore, a person can be prosecuted under § 192 only for a “willful" failure to produce documents in
response to a congressional subpoena. See United States v. Murdock, 290 U.S. 389,397-98 (1933); Townsend
v. United States, 95 F.2d 352, 359 (D.C. Cir.), cert, denied, 303 U.S. 664 (1938). There is some doubt
whether obeying the President's direct order to assert his constitutional claim of executive privilege would
amount to a “willful” violation of the statute. Moreover, reliance on an explicit opinion of the Attorney
General may negate the required mens rea even in the case of a statute without a willfulness requirement. See
Model Penal Code § 2.04(3)(b); United States v. Barker, 546 F.2d 940, 955 (D.C. Cir. 1976) (Mehrige J.,
concurring).
135
of privilege from the Chief Executive, it became the further duty of the District
Court to treat the subpoenaed material as presumptively privileged.” 418 U.S.
at 713. The United States Court of Appeals for the District of Columbia Circuit
has stated that this presumptive privilege initially protects documents “even
from the limited intrusion represented by in camera examination of the conver
sations by a court.” Senate Select Committee on Presidential Campaign Activities v.
Nixon, 498 F.2d 725,730 (D.C. Cir. 1974) (en banc). The court went on to note:
So long as the presumption that the public interest favors confi
dentiality can be defeated only by a strong showing of need by
another institution of government a showing that the responsi
bilities of that institution cannot responsibly be fulfilled without
access to records of the President’s deliberations we believed in
Nixon v. Sirica, and continue to believe, that the effective func
tioning of the presidential office will not be impaired.
Id. at 730. In order to overcome the presumptively privileged nature of the
documents, a congressional committee must show that “the subpoenaed evi
dence is demonstrably critical to the responsible fulfillment of the Committee’s
functions.” Id. at 731 (emphasis added). Thus, the President’s assertion of
executive privilege is far different from a private person’s individual assertion
of privilege; it is entitled to special deference due to the critical connection
between the privilege and the President’s ability to carry out his constitutional
duties.
Application of the criminal contempt statute to Presidential assertions of
executive privilege would immeasurably burden the President’s ability to
assert the privilege and to carry out his constitutional functions. If the statute
were construed to apply to Presidential assertions of privilege, the President
would be in the untenable position of having to place a subordinate at the risk
of a criminal conviction and possible jail sentence in order for the President to
exercise a responsibility that he found necessary to the performance of his
constitutional duty. Even if the privilege were upheld, the executive official
would be put to the risk and burden of a criminal trial in order to vindicate the
President’s assertion of his constitutional privilege. As Judge Learned Hand
stated with respect to the policy justifications for a prosecutor’s immunity from
civil liability for official actions,
to submit all officials, the innocent as well as the guilty, to the
burden of a trial and to the inevitable danger of its outcome,
would dampen the ardor of all but the most resolute, or the most
irresponsible, in the unflinching discharge of their duties. Again
and again the public interest calls for action which may turn out
to be founded on a mistake, in the face of which an official may
later find himself hard put to it to [sic] satisfy a jury of his good faith.
Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert, denied, 339 U.S.
949 (1950). The Supreme Court has noted, with respect to the similar issue of
136
executive immunity from civil suits, that “among the most persuasive reasons
supporting official immunity is the prospect that damages liability may render
an official unduly cautious in the discharge of his official duties.” Nixon v.
Fitzgerald, 457 U.S. 731, 752 n.32 (1982); see also Harlow v. Fitzgerald, 457
U.S. 800 (1982); Butz v. Economou, 438 U.S. 478 (1978). Thus, the courts have
recognized that the risk of civil liability places a pronounced burden on the
ability of government officials to accomplish their assigned duties, and have
restricted such liability in a variety of contexts. Id.35 The even greater threat of
criminal liability, simply for obeying a Presidential command to assert the
President’s constitutionally based and presumptively valid privilege against
disclosures that would impair his ability to enforce the law, would unquestion
ably create a significant obstacle to the assertion of that privilege. See United
States v. Nixon, 418 U.S. 683 (1974).
By contrast, the congressional interest in applying the criminal contempt
sanctions to a Presidential assertion of executive privilege is comparatively
slight. Although Congress has a legitimate and powerful interest in obtaining
any unprivileged documents necessary to assist it in its lawmaking function,
Congress could obtain a judicial resolution of the underlying privilege claim
and vindicate its asserted right to obtain any documents by a civil action for
enforcement of a congressional subpoena.36 Congress’ use of civil enforcement
power instead of the criminal contempt statute would not adversely affect
Congress’ ultimate interest in obtaining the documents. Indeed, a conviction of
an Executive Branch official for contempt of Congress for failing to produce
subpoenaed documents would not result in any order for the production of the
documents.37 A civil suit to enforce the subpoena would be aimed at the
congressional objective of obtaining the documents, not at inflicting punish
ment on an individual who failed to produce them. Thus, even if criminal
sanctions were not available against an executive official who asserted the
President’s claim of privilege, Congress would be able to vindicate a legitimate
desire to obtain documents if it could establish that its need for the records
outweighed the Executive’s interest in preserving confidentiality.
The most potent effect of the potential application of criminal sanctions
would be to deter the President from asserting executive privilege and to make
it difficult for him to enlist the aid of his subordinates in the process. Although
35 See also Barr v. Matteo, 360 U.S. 564 (1959), Spalding v. Vilas, 161 U.S. 483 (1896) Some officials,
such as judges and prosecutors, have been given absolute immunity from civil suits arising out of their
official acts. Imbler v. Pachtman, 424 U.S. 409 (1976), Pierson v. Ray, 386 U.S. 547 (1967).
36 It is arguable that Congress already has the power to apply for such civil enforcement, since 28 U.S C.
§ 1331 has been amended to eliminate the amount in controversy requirement, which was the only obstacle
cited to foreclose jurisdiction under § 1331 in a previous civil enforcement action brought by the Senate. See
Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973). In
any event, there is little doubt that, at the very least, Congress may authorize civil enforcement of its
subpoenas and grant jurisdiction to the courts to entertain such cases. See Senate Select Committee on
Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C Cir. 1974) (en banc); Hamilton and Grabow,
A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoe
nas, 21 Harv. J on Legis. 145 (1984).
37 See Hamilton and Grabow, supra, 21 Harv J. on Legis. at 151.
137
this significant in terrorem effect would surely reduce claims of executive
privilege and, from Congress’ perspective, would have the salutary impact of
virtually eliminating the obstacles to the obtaining of records, it would be
inconsistent with the constitutional principles that underlie executive privilege
to impose a criminal prosecution and criminal penalties on the President’s
exercise of a presumptively valid constitutional responsibility. The in terrorem
effect may be adequate justification for Congress’ use of criminal contempt
against private individuals, but it is an inappropriate basis in the context of the
President’s exercise of his constitutional duties. In this respect it is important to
recall the statement of Chief Justice Marshall, sitting as a trial judge in the Burr
case, concerning the ability of a court to demand documents from a President:
“In no case of this kind would a court be required to proceed against the
President as against an ordinary individual.” United States v. Burr, 25 F. Cas.
187, 192 (C.C. Va. 1807).38 This fundamental principle, arising from the
constitutionally prescribed separation of powers, precludes Congress’ use against
the Executive of coercive measures that might be permissible with respect to
private citizens. The Supreme Court has stated that the fundamental necessity
of maintaining each of the three general departments of government entirely
free from the control or coercive influence, direct or indirect, of either of the
others, has often been stressed and is hardly open to serious question. So much
is implied in the very fact of the separation of the powers of these departments
by the Constitution; and in the rule which recognizes their essential equality.
Humphrey’s Executor v. United States, 295 U.S. 602, 629-30 (1935).
Congress’ use of the coercive power of criminal contempt to prevent Presi
dential assertions of executive privilege is especially inappropriate given the
presumptive nature of the privilege. In cases involving congressional subpoe
nas against private individuals, courts start with the presumption that Congress
has a right to all testimony that is within the scope of a proper legislative
inquiry. See Barenblatt v. United States, 360 U.S. 109 (1959); McGrain v.
Daugherty, 273 U.S. 135 (1927). As noted above, however, the President’s
assertion of executive privilege is presumptively valid, and that presumption
may be overcome only if Congress establishes that the requested information
“is demonstrably critical to the responsible fulfillment of the Committee’s
functions.” See Senate Select Committee on Presidential Campaign Activities
v. Nixon, 498 F.2d at 731; see also United States v. Nixon, 418 U.S. at 708-09.
If Congress could use the power of criminal contempt to coerce the President
either not to assert or to abandon his right to assert executive privilege, this
clearly established presumption would be reversed and the presumptive privi
lege nullified.
Congress has many weapons at its disposal in the political arena, where it has
clear constitutional authority to act and where the President has corresponding
political weapons with which to do battle against Congress on equal terms. By
wielding the cudgel of criminal contempt, however, Congress seeks to invoke
38 The Nixon Court thought this statement significant enough in the context of an executive privilege
dispute to quote it in full at two separate places in its decision United States v. Nixon, 418 U.S. at 708, 715.
138
the power of the third branch, not to resolve a dispute between the Executive
and Legislative Branches and to obtain the documents it claims it needs, but to
punish the Executive, indeed to punish the official who carried out the President’s
constitutionally authorized commands,39 for asserting a constitutional privi
lege. That effort is inconsistent with the “spirit of dynamic compromise” that
requires accommodation of the interests of both branches in disputes over
executive privilege. See United States v. American Telephone & Telegraph
Co., 567 F.2d 121, 127 (D.C. Cir. 1977). In the AT&T case, the court insisted
on further efforts by the two branches to reach a compromise arrangement on
an executive privilege dispute and emphasized that
the resolution of conflict between the coordinate branches in
these situations must be regarded as an opportunity for a con
structive modus vivendi, which positively promotes the func
tioning of our system. The Constitution contemplates such ac
commodation. Negotiation between the two branches should
thus be viewed as a dynamic process affirmatively furthering
the constitutional scheme.
Id. at 130. Congress’ use of the threat of criminal penalties against an executive
official who asserts the President’s claim of executive privilege, flatly contra
dicts this fundamental principle.40
The balancing required by the separation of powers demonstrates that the
contempt of Congress statute cannot be constitutionally applied to an executive
official in the context under consideration. On the one hand, Congress has no
39 One scholar (former Assistant Attorney General for the Civil Division, and now Solicitor General, Rex
Lee) has noted that
when the only alleged criminal conduct of the putative defendant consists of obedience to an
assertion o f executive privilege by the President from whom the defendant’s governmental
authority derives, the defendant is not really being prosecuted for conduct of his own. He is a
defendant only because his prosecution is one way of bringing before the courts a dispute
between the President and the Congress. It is neither necessary nor fair to make him the pawn in
a criminal prosecution in order to achieve judicial resolution o f an interbranch dispute, at least
where there is an alternative means for vindicating congressional investigative interests and for
getting the legal issues into court.
Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three
Powers, and Some Relationships, 1978 B.Y U. L Rev. 231, 259.
40 Even when a privilege is asserted by a cabinet official, and not the President, courts are extremely
reluctant to impose a contempt sanction and are willing to resort to it only in extraordinary cases and only
after all other remedies have failed. In In re Attorney General, 596 F.2d 58 (2d Cir.), cert, denied, 444 U.S.
903 (1979), the court granted the government's mandamus petition to overturn a district court’s civil
contempt citation against the Attorney General for failing to turn over documents for which he had asserted a
claim of privilege. The court recognized that even a civil contempt sanction imposed on an Executive Branch
official “has greater public importance, with separation of powers overtones, and warrants more sensitive
judicial scrutiny than such a sanction imposed on an ordinary litigant.” 596 F.2d at 64. Therefore, the court
held that holding the Attorney General of the United States in contempt to ensure compliance with a court
order should be a last resort, to be undertaken only after all other means to achieve the ends legitimately
sought by the court have been exhausted. Id. at 65. In the case of a Presidential claim of executive privilege,
there is even more reason to avoid contempt proceedings because the privilege claim has been made as a
constitutionally based claim by the President himself and the sanction involved is criminal and not civil
contempt. The use of criminal contempt is especially inappropriate in the context under discussion because
Congress has the clearly available alternative of civil enforcement proceedings.
139
compelling need to employ criminal prosecution in order to vindicate its rights.
The Executive, however, must be free from the threat of criminal prosecution if
its right to assert executive privilege is to have any practical substance. Thus,
when the major impact on the President’s ability to exercise his constitutionally
mandated function is balanced against the relatively slight imposition on
Congress in requiring it to resort to a civil rather than a criminal remedy to
pursue its legitimate needs,41 we believe that the constitutionally mandated
separation of powers requires the statute to be interpreted so as not to apply to
Presidential assertions of executive privilege.42
The construction of the statute that is dictated by the separation of powers is
consistent with the legislative history of the statute and the subsequent legisla
tive implementation of the statute. Although at the time the criminal statute was
enacted, Congress was well aware of the recurring assertions of the right to
protect the confidentiality of certain Executive Branch materials, it gave no
indication that it intended the contempt statute to tread upon that constitution
ally sensitive area. In the many debates on executive privilege since the
adoption of the statute, Congress at times has questioned the validity of a
Presidential assertion of privilege, but, until December of 1982, it never at
tempted to utilize the criminal contempt sanction to punish someone for a
President’s assertion of privilege. Regardless of the merits of the President’s
action, the fundamental balance required by the Constitution does not permit
Congress to make it a crime for an official to assist the President in asserting a
constitutional privilege that is an integral part of the President’s responsibilities
under the Constitution. We therefore conclude that the contempt of Congress
statute does not apply to an executive official who carries out the President’s
claim of executive privilege.
Nearly every President since George Washington has found that in order to
perform his constitutional duties it is necessary to protect the confidentiality of
certain materials, including predecisional Executive Branch deliberations, na
tional security information, and sensitive law enforcement proceedings, from
disclosure to Congress. No President has rejected the doctrine of executive
privilege; all who have addressed the issue have either exercised the privilege,
attested to its importance, or done both. Every Supreme Court Justice and every
Judge of the United States Court of Appeals for the District of Columbia
Circuit who has considered the question of executive privilege has recognized
its validity and importance in the constitutional scheme. Executive privilege,
properly asserted, is as important to the President as is the need for confidenti
41 See Hamilton and Grabow, A Legislative Proposal for Resolving Executive Privilege Disputes Precipi
tated by Congressional Subpoenas, 21 Harv. J. on Legis. 145 (1984).
42 We believe that this same conclusion would apply to any attempt by Congress to utilize its inherent
“civil” contempt powers to arrest, bring to trial, and punish an executive official who asserted a Presidential
claim of executive privilege. The legislative history of the criminal contempt statute indicates that the reach
o f the statute was intended to be coextensive with Congress’ inherent civil contempt powers (except with
respect to the penalties imposed). See 42 Cong. Globe 406 (remarks of Rep. Davis). Therefore, the same
reasoning that suggests that the statute could not constitutionally be applied against a Presidential assertion of
privilege applies to Congress’ inherent contem pt powers as well.
140
ality at certain times in the deliberations of the Justices of the Supreme Court
and in the communications between members of Congress and their aides and
colleagues. Congress itself has respected the President’s need for confidential
ity; it has never arrested an executive official for contempt of Congress for
failing to produce subpoenaed documents and never, prior to the heated closing
moments of the 97th Congress in December of 1982, did a House of Congress
seek to punish criminally an executive official for asserting a President’s claim
of privilege.
Naturally, Congress has and always will resist claims of executive privilege
with passion and vigor. Congress aggressively asserts its perceived institu
tional prerogatives, and it will surely oppose any effort by the President to
withhold information from it. If it could eliminate claims of executive privilege
by requiring that an official who asserts such a claim on behalf of the President
be prosecuted criminally, it would surely be in favor of doing so. Thus, the
tension between the relative strengths and institutional prerogatives of Con
gress and the President necessarily reaches a high level of intensity in any case
involving a claim of executive privilege. The specter of mandatory criminal
prosecution for the good-faith exercise of the President’s constitutional privi
lege adds a highly inflammatory element to an already explosive environment.
We believe that the courts, if presented the issue in a context similar to that
discussed in this memorandum, would surely conclude that a criminal prosecu
tion for the exercise of a presumptively valid, constitutionally based privilege
is not consistent with the Constitution. The President, through a United States
Attorney, need not, indeed may not, prosecute criminally a subordinate for
asserting on his behalf a claim of executive privilege. Nor could the Legislative
Branch or the courts require or implement the prosecution of such an individual.
In some respects, the tensions between the branches, which become exacer
bated during these conflicts, and the pressure placed on the President and his
subordinates in this context, call to mind the comments of Chief Justice Chase
concerning the impeachment trial of President Andrew Johnson, over which
the Chief Justice presided. One of the charges against President Johnson was
that he had fired Secretary of War Stanton in violation of the Tenure of Office
Act, which purported to strip the President of his removal power over certain
Executive Branch officials.43 Chief Justice Chase declared that the President
had a duty to execute a statute passed by Congress which he believed to be
unconstitutional “precisely as if he held it to be constitutional.” However, he
added, the President’s duty changed in the case of a statute which
directly attacks and impairs the executive power confided to
him by [the Constitution]. In that case it appears to me to be the
clear duty of the President to disregard the law, so far at least as
it may be necessary to bring the question of its constitutionality
before the judicial tribunals.
43 The Tenure of Office Act was, of course, later declared to have been unconstitutional. Myers v. United
States, 272 U.S. 52(1926).
141
*
How can the President fulfill his oath to preserve, protect, and
defend the Constitution, if he has no right to defend it against an
act of Congress, sincerely believed by him to have been passed
in violation of it?44
If the President is to preserve, protect, and defend the Constitution, if he is
faithfully to execute the laws, there may come a time when it is necessary for
him both to resist a congressional demand for documents and to refuse to
prosecute those who assist him in the exercise of his duty. To yield information
that he in good conscience believes he must protect in order to perform his
obligation, would abdicate the responsibilities of his office and deny his oath.
To seek criminal punishment for those who have acted to aid the President’s
performance of his duty would be equally inconsistent with the Constitution.
In the narrow and unprecedented circumstances presented here, in which an
Executive Branch official has acted to assert the President’s privilege to
withhold information from a congressional committee concerning open law
enforcement files, based upon the written legal advice of the Attorney General,
the contempt of Congress statute does not require and could not constitution
ally require a prosecution of that official, or even, we believe, a referral to a
grand jury of the facts relating to the alleged contempt. Congress does not have
the statutory or constitutional authority' to require a particular case to be
referred to the grand jury. In addition, because the Congress has an alternative
remedy both to test the validity of the Executive’s claim of privilege and to
obtain the documents if the courts decide that the privilege is outweighed by a
valid and compelling legislative need, a criminal prosecution and the concomi
tant chilling effect that it would have on the ability of a President to assert a
privilege, is an unnecessary and unjustified burden that, in our judgment, is
inconsistent with the Constitution.
Th eo d o r e B. O lso n
Assistant Attorney General
Office of Legal Counsel
44 R. Warden, An Account o f the Private Life and Public Services of Salmon Portland Chase 685 ( 1874).
Chief Justice Chase’s comments were made in a letter written the day after the Senate had voted to exclude
evidence that the entire cabinet had advised President Johnson that the Tenure of Office Act was unconstitu
tional. Id. See M. Benedict, The Impeachment and Trial o f Andrew Johnson 154-55 (1973). Ultimately, the
Senate did admit evidence that the President had desired to initiate a court test of the law. Id. at 156.
142