Copyright 
Dow Jones & Company Inc May 28, 1997 Congress's authority to impose contempt sanctions was demonstrated once again last week. In response to a subpoena for documents relevant to a House investigation into campaign finance abuse, the White House had withheld 2,000 pages of documents and had censored others on the ground of attorney-client or attorney work-product privilege. But after Rep. Dan Burton (R., Ind.) scheduled a vote of the House Government Reform and Oversight Committee to cite White House Counsel Charles Ruff for criminal contempt, an agreement to produce the documents was swiftly reached. Last year a similar measure convinced then-White House Counsel Jack Quinn to comply with a request by the same committee to turn over documents concerning the White House Travel Office firings.
Congress's power to compel members of the executive branch to obey its legitimate requests for information has long been deemed critical to the functioning of our democracy and has been upheld by the Supreme Court. In the early days of the Republic, Congress enjoyed unchecked power to sanction individuals at its own discretion. In 1796, for example, the House of Representatives itself tried and convicted a man for attempting to corrupt two congressmen; the House even imprisoned the guilty man itself.
In 1857 Congress limited its own powers by enacting a law that established the modern power of criminal contempt. The law imposes a fine of not more than $1,000 and jail time of up to one year for willful refusal to appear or to answer questions before a congressional hearing.
If an individual refuses to cooperate, the law requires that the congressional committee first vote to hold the person in contempt. The committee's inquiries must further an independent legislative purpose related either to legislation, possible legislation or oversight into government administration.
The Supreme Court has interpreted the statute to require that the committee's investigation be authorized by the full House or Senate, and that the investigation actually rest within the delegated authority. The statute demands that the questions be "pertinent" to the investigation, and that the relationship between the question and the purpose of the inquiry be proven at trial beyond a reasonable doubt. A witness must be informed of this relationship with the same notice and lack of vagueness that is required of all criminal laws. The defendant must have acted willfully, another fact that must be proven at trial beyond a reasonable doubt.
If the full House or Senate approves a contempt citation, the speaker of the House or the president of the Senate is obliged to refer it "to the appropriate United States attorney, whose duty it shall be to bring the matter before the Grand Jury for its action." Although Democrats who sought to use the contempt power against the Reagan administration argued that the U.S. attorney must begin grand jury proceedings, such a requirement is surely unconstitutional. The president and his subordinates have the exclusive discretion to bring or to decline to bring prosecutions for violations of federal law.
Prosecutorial discretion allows the president to order the U.S. attorney not to initiate contempt of Congress proceedings against an executive branch official, even if that official is withholding information from Congress. Such an order is essentially unreviewable by the courts; a president could decline to prosecute not only because he believed his subordinate had a legitimate reason to refuse to answer questions, but also because he simply wanted to protect a trusted aide.
If the latter seems unlikely, examine the case of Ira Magaziner, who apparently misrepresented the truth (as lying is called these days) to federal Judge Royce Lamberth concerning Hillary Clinton's health care task force. Using a procedure similar to the contempt of Congress law, Judge Lamberth referred possible contempt of court and perjury charges to Eric Holder, the U.S. attorney for the District of Columbia. Mr. Holder refused to prosecute Mr. Magaziner. Mr. Clinton has since nominated Mr. Holder for the No. 2 job at the Justice Department. While the two events may be unrelated, they suggest the pressures that a president can bring to bear to prevent an unwanted contempt prosecution.
Even if the U.S. attorney were to bring a case before the grand jury, a conviction is not foreordained. The 1857 contempt statute requires that a federal court try the case. A defendant would be entitled to all of the protections of the Bill of Rights that apply in any criminal proceeding. He would have the right to a jury trial in a jurisdiction, the District of Columbia, whose inhabitants have experienced little reluctance to engage in jury nullification and who have voted more than 85% Democratic in the last two presidential elections. Finally, the president could pardon any official convicted of contempt of Congress, just as he could anyone else convicted of a federal crime.
Despite all of these safeguards against abuse of Congress's criminal contempt power, its overuse can raise difficult separation of powers problems. The public good will suffer if government officials must worry about paying fines and spending time in jail whenever they make a policy decision that the House or Senate may disagree with.
Congress, especially a Republican Congress, ought to be wary of using criminal penalties to fight a separation-of-powers dispute, especially when the individual officials involved honestly believe that they are pursuing the national interest. During the 1980s Republicans fought against abuse of the contempt power when congressional Democrats used it in the case of EPA Director Anne Burford to force the disclosure of law enforcement documents. Similar abuse of the independent counsel statute by congressional Democrats led to the investigation of Theodore Olson for his actions as assistant attorney general in advising the president to invoke executive privilege in the Burford case.
For the first 125 years of the contempt statute, neither the House or the Senate ever voted to use the law against a presidential claim of privilege. It was congressional Democrats in the Burford controversy who first invoked it in a dispute over information.
As with the independent counsel statute, Democrats again are experiencing the bitterness of reaping what they have sown. It is unfortunate that a Republican Congress must take advantage of such precedents to press their investigation. The extreme measure of criminal contempt, however, has become necessary to handle an administration that provokes conflicts with Congress when neither national security, diplomatic or law enforcement information is at stake.
----
Mr. Yoo, general counsel to the Senate Judiciary Committee from 1995-96, is an acting professor at Boalt Hall School of Law, the University of California at Berkeley.
My Research
