DoJ Makes It Official: Contempt Stops in Congress

From TPM:



Or as the letter (you can read it here), sent to the committee yesterday by Principal Deputy Assistant Attorney General Brian A. Benczkowski, put it:


"As it considers the contempt resolutions, we think it is important that the Committee appreciate fully the longstanding Department of Justice position, articulated during Administrations of both parties, that "the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege."

That last quote is indeed from a 1995 opinion from Clinton's Justice Department, which The Washington Post reported on this weekend


From the Post:


[Walter E. Dellinger III, who headed the Office of Legal Counsel and signed that 1995 memo] and several other legal experts from the Clinton era said yesterday that the Bush administration is fundamentally correct in its assertion that lawmakers cannot force the Justice Department to pursue a course that undermines a president's prerogative, including his power to protect information through executive privilege.


"Congress can determine what's unlawful but not determine who should be prosecuted," said Dellinger, who is now a Duke University law professor. "It's an important part of the separation of powers. . . . The real issue in this case is whether the claims of executive privilege are valid," a matter that he said would have to be adjudicated on its merits in the courts.


Christopher H. Schroeder, a Duke University law professor who was OLC deputy chief from 1994 to 1997, said that the administration's stance "as a legal matter may leave the Democrats without an effective remedy." He described the administration's legal argument as "a little over the line, but it's not that far out there."


Schroeder said that, if Congress passes a contempt citation that the administration blocks, lawmakers still have the option of initiating a civil proceeding against White House officials, but such an action could take years to settle.



Walter E. Dellinger III, who headed the Office of Legal Counsel at the Justice Department then, wrote in a 1995 legal opinion that "the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege." Contempt of Congress is a federal crime, but a sitting president has the authority to commute the sentence or pardon anyone convicted or accuses of any federal crime. Congress can hold a person in contempt if that person obstructs proceedings or an inquiry by a congressional committee. Congress has used contempt citations for two main reasons: to punish someone for refusing to testify or refusing to provide documents or answers, and for bribing or libeling a member of Congress. Remember former Environmental Protection Agency official Rita Lavelle?



The last time a full chamber of Congress voted on a contempt citation was 1983. The House voted 413-0 to cite former Environmental Protection Agency official Rita Lavelle for contempt of Congress for refusing to appear before a House committee. Lavelle was later acquitted in court of the contempt charge, but she was convicted of perjury in a separate trial. This is simply a showdown between Congress vs. President and separation of powers vs. dictatorship.