Government agency criticizes Bush plan to ignore criminal contempt charges
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A report issued last week by the non-partisan Congressional Research Service casts doubt on the Bush administration's claim that assertions of executive privilege protect current and former White House officials from criminal contempt citations by Congress.
"Factual, legal, and constitutional aspects of these OLC opinions are open to question and potentially limitations," write Morton Rosenberg, a Specialist in American Public Law and Todd B. Tatelman, a Legislative Attorney, both in the CRS's American Law Division.
The CRS is a non-partisan agency of the Library of Congress that responds to inquiries on policy questions offered by Members of Congress and their staffs. The agency's findings are not officially made available for public consumption.
Three current or former White House staff members are possibly facing criminal contempt charges from the House or Senate. Current White House Chief of Staff Joshua Bolten ignored a Congressional subpoena to deliver documents to the House Judiciary Committee on the firing of a group of US Attorneys. Additionally, both Harriet Miers, former White House Counsel, and Karl Rove, a top White House adviser, ignored subpoenas to testify before the House and Senate Judiciary Committees respectively. All three acted on the basis of the President's assertion of executive privilege.
The Bush administration has floated the idea that the US Attorney for the District of Columbia will not be required to prosecute any of these three officials under the criminal contempt statute, pointing to a series of findings from the Justice Department's Office of Legal Counsel.
The OLC opinions emerged after a 1982 dispute between President Reagan's Environmental Protection Agency and two House committees over an investigation into Superfund toxic site clean-up projects. In one key 1984 opinion, the OLC stated that, "a U.S. Attorney is not required to refer a contempt citation to a grand jury or otherwise to prosecute an executive branch official who is carrying out the President’s direction to assert executive privilege."
In their July 24 report, Rosenberg and Tatelman criticize the OLC's reasoning, suggesting that it missed some key details from the historical record on which it relies.
"The assertion that the legislative history of the 1857 statute establishing the criminal contempt process demonstrates that it was not intended to be used against executive branch official is not supported by the historical record," they write. "A close review of the floor debate indicates that Representative H. Marshall expressly pointed out that the broad language of the bill '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.'"
The CRS researchers also point out that the drafters of the 1857 criminal contempt statute rejected considerations of attorney-client privilege when they authored their bill.
"Representative Orr responded that the House has and would continue to follow the practice of the British Parliament, which 'does not exempt a witness from testifying upon any such ground. He is not excused from testifying there. That is the common law of Parliament,'" they wrote. "Later in the same debate, a proposed amendment to expressly recognize the attorney-client privilege in the statute was overwhelmingly defeated."
Ultimately, they conclude, Congress took into account the executive branch's needs when the House's criminal contempt statute was completed.
"[T]he House was, in 1857, sensitive to and cognizant about its oversight and investigative prerogatives vis-a-vis the executive branch," Rosenberg and Tatelman noted. "It therefore appears arguable that in the context of the debate, the contempt statute was not intended to preclude the House’s ability to engage in oversight of the executive branch."
The CRS report on criminal contempt of Congress was first made available on July 25 by Secrecy News, a publication of the Project on Government Secrecy at the Federation of American Scientists.
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