Constitutional Law

There is no authority by which persons may wholly ignore a subpoena and fail to appear as directed because a President unilaterally instructs them to do so.  Even if a subpoenaed witness intends to assert a privilege in response to questions, the witness is not at liberty to disregard the subpoena and fail to appear at the required time and place.  Surely, your Department would not tolerate that type of action if the witness were subpoenaed to a federal grand jury.  Short of a formal assertion of executive privilege, which cannot be made in this case, there is no authority that permits a President to advise anyone to ignore a duly issued congressional subpoena for documents.

Speaker Pelosi cited 2 U.S.C. § 194 as the governing statutory language, which states:

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 [by] . . . any committee or subcommittee of either House of Congress, . . . it shall be the duty of the . . . Speaker of the House . . . to certify . . . the statement of facts aforesaid under the seal of the . . . House, . . . to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.

In Attorney General Mukasey's written response [PDF], issued on February 29, 2008, he asserted 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." The letter also cites Harriet Miers's "constitutional immunity from compelled congressional testimony." The February 29, 2008 letter cites a June 24, 2007 letter that relies on two Office of Legal Counsel opinions by Paul Clement (June 27, 2007) and Steven G. Bradbury (June 10, 2007) for the legal proposition that "the assertion of privilege and immunity were legally proper." [Note: it is unclear how a letter dated June 24, 2007 cites a letter dated June 27, 2007]

In response to Mukasey’s order to take no action, Speaker Pelosi released this statement:

Anticipating this response from the Administration, the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly.  The American people demand that we uphold the law.  As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.

ACSBlog summarized a Congressional Research Service Report on Congress’s contempt powers. Additional resources from ACS on the proper role of the Department of Justice are available here.

Full post as published by ACS Blog on March 03, 2008 (boomark / email).