Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act ( 1986 )

Response to Congressional Requests for Information
Regarding Decisions made Under
the Independent Counsel Act
W ith one narrow exception, the Attorney General may not disclose to Congress the contents of
any application or report filed with the court pursuant to the Independent Counsel Act unless
the court agrees.
All congressional requests for information about a decision regarding the appointment o f an
independent counsel m ust be supported by a legitim ate legislative purpose. In addition, before
such disclosures are m ade other considerations, such as whether or not to assert executive
privilege, w hether the information is covered by the attom ey-client privilege, and whether the
inform ation m ust be kept confidential to preserve the integrity o f the prosecutorial function,
must be reviewed.
C ongress may not, as a m atter of statutory or constitutional law, invoke the criminal contempt of
Congress procedure against the head of an Executive agency acting on the President’s
instructions to assert executive privilege in response to a congressional subpoena.
An assertion o f executive privilege m ust be based upon an evaluation of the Executive B ranch’s
interest in keeping the requested inform ation confidential, the strength of Congress’ need for
the inform ation, and whether those needs can be accom m odated in some other way.
April 28, 1986
M em o ran d um O p in io n for t h e Attorney General
I. Introduction and Summary
You have asked this Office to review the legal principles that should inform
the Department’s response to congressional inquiries about any decision re­
garding appointment of an independent counsel under the Independent Counsel
Act, 28 U.S.C. §§ 591 et seq. (Act). The scope and nature of any such response
would, of course, depend on the facts of the particular situation, including the
scope and nature of the request, the congressional interests at stake, the status
of the investigation and/or decision-making process within the Department,
and your judgment as to the particular harm that would result from release of
the requested information. To some extent the decision whether or how to
respond to such congressional requests must weigh factors, such as political
constraints that affect the Department’s position vis-a-vis Congress, which are
beyond our expertise. Our discussion here is therefore necessarily quite general
and is limited to those constitutional and legal considerations that should be
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reflected in the Department’s response to possible congressional inquiries into
decisions made under the Act. As we discuss below, we believe that the
Department’s response to any such inquiry must take account of: (1) the
provisions of the Independent Counsel Act requiring that memoranda, reports,
and other documents filed with the special division of the court remain confi­
dential unless otherwise authorized by the court; (2) the scope of Congress’
legitimate interest in obtaining the information; and (3) the Justice Department’s
responsibility to protect the integrity of ongoing criminal investigations and of
prosecutorial decision-making. These considerations, which flow largely from
the constitutionally mandated principle of separation of powers, would also
shape any formal Presidential claim of executive privilege, in the unlikely
event such a claim proves necessary to resist a congressional subpoena.
In addition to our discussion of the substantive legal principles, we outline
below the procedural steps that would be involved if Congress pursued its
requests through a subpoena, and possible defenses that could be raised to any
such subpoena.
II. Confidentiality Requirements of the Independent Counsel Act
The Independent Counsel Act itself contains strict confidentiality require­
ments. Section 592(d)(2) broadly provides:
No application or any other documents, materials, or memoran­
dums supplied to the division of the court . . . shall be revealed
to any individual outside the division of the court or the Depart­
ment of Justice without leave of the division of the court.
28 U.S.C. § 592(d)(2).
Other, narrower provisions limit the disclosure of any report finding no
grounds for appointment of an independent counsel,1 as well as the report
required to be filed by the independent counsel at the completion of his
investigation.2 Even the name and prosecutorial jurisdiction of any indepen­
dent counsel appointed by the court remain confidential until an indictment is
returned or a criminal information is filed, unless the Attorney General re­
quests public disclosure prior to that time or the court determines “that disclo­
sure of the identity and prosecutorial jurisdiction of such independent counsel
would be in the best interests of justice.” 28 U.S.C. § 593(b).
1 If the Attorney General notifies the court under § 592(b)(1) that “there are no reasonable grounds to
believe that further investigation o r prosecution is w arranted," the mem orandum filed w ith the court sum m a­
rizing the D epartm ent's investigation “shall not be revealed to any individual outside the division o f the court
or the D epartm ent o f Justice w ithout leave o f the division o f the court.” 28 U.S.C. § 592(b)(3).
2The independent counsel m ust file a report with the court describing “fully and com pletely . . . the w ork o f
the independent counsel, including the disposition o f all cases brought, and the reasons for not prosecuting
any m atter w ithin the prosecutorial jurisdiction o f such independent counsel which was not prosecuted." The
court may release this report “to the Congress, the public, or to any appropriate person,” subject to “ such
orders as are appropriate to protect the rights o f any individual named in such report and to prevent undue
interference w ith any pending prosecution.” 28 U.S.C § 595(b)(2), (3).
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The confidentiality provisions were regarded as “crucial to the general
scheme” of the Act. S. Rep. No. 170,95th Cong., 2d Sess. 58 (1978). Congress
recognized that “(j]ust because a person holds a high level position does not
justify making unsubstantiated allegations of criminal conduct public, no[r]
does it justify publicly announcing the initiation of a criminal investigation at a
very early stage of the investigation.” Id. In fact. Congress contemplated that
there would be situations in which an independent counsel would be appointed
“when the public is not at all aware that a criminal investigation is underway.”
Assuming that the independent counsel’s investigation does not result in pros­
ecution, “[i]t is conceivable that this whole process could take place without
the public even knowing that there were serious allegations against such a high
level official.” Id.
In cases in which there has already been considerable publicity about the
allegations and the requirements of the Independent Counsel Act, Congress
recognized that “there does not appear to be any purpose to keeping the fact
that application for a special prosecutor has been made confidential.” S. Rep.
No. 170, supra, at 58. However, even if the court agrees to disclose that an
application has been made or to announce the identity and jurisdiction of an
independent counsel, “there may still be justification for keeping the contents
of an application for a special prosecutor. .. confidential because of unsub­
stantiated allegations and other information which may be contained in the
application for appointment.” Id.
The language of the Act’s confidentiality provisions that the documents
“shall not be revealed to any individual outside the division of the court or the
Department of Justice” is carefully drafted, and on its face prohibits disclosures
to Congress no less than disclosures to the public. The legislative history of the
Act supports this interpretation of the statute’s unambiguous language. ‘The
contents of the report by the Attorney General after a preliminary finding of
some impropriety is to remain secret, available only to the court and I presume,
to the special prosecutor, but may not be released to the public or to Congress
without of special leave of this new court.” 124 Cong. Rec. 3462 (1978)
(remarks of Rep. Wiggins) (emphasis added).3
In general, then, the Act restricts the Attorney General’s ability to of disclose
to Congress the contents of any application or report filed with of the court,
unless and until the court agrees. This blanket confidentiality requirement,
however, is subject to a narrow exception triggered when Congress requests
under § 595(e)4 that the Attorney General apply for an independent counsel. If
the Attorney General receives such a request, he is required to “provide written
notification of any action. . . taken in response to such request and, if no
3 A lth o u g h the language o f the confidentiality provisions refers only to docum ents actually filed with the
co u rt, the provisions obviously cannot law fully be circum vented by disclosing the contents o f the documents.
See 124 C ong. R ec. at 3462 (‘T h e contents o f the re p o r t. . . [are] to remain s e c re t. . . .” ); S. Rep. No. 170,
supra, at 58.
4 Sectio n 595(e) o f the A ct authorizes “ [a] m ajority o f m ajority party m embers or a m ajority o f all
nonm ajo rity party m em bers o f the Committee on the Judiciary o f either H ouse o f the C ongress” to request the
A ttorney G eneral to apply for the appointment o f an independent counsel. 28 U.S.C. § 595(e).
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application has been made to the division of the court, why such application
was not made.” 28 U.S.C. § 595(e). Because such a notification must necessar­
ily disclose at least some information that is included in the confidential report
filed with the court, § 595(e) appears to create a narrow exception to the
general rule of confidentiality.5
The legislative history of this provision suggests, however, that the scope of
the required notification is very limited; disclosure of particular details of the
investigatory findings and the prosecutorial decision is not contemplated:
[T]he Attorney General might respond that he had already ap­
plied for the appointment of a special prosecutor or he might
respond that upon the conclusion of a preliminary investigation,
he made a finding and filed the requisite memorandum indicat­
ing that the matter was so unsubstantiated as to not warrant
further investigation or prosecution. If no application for the
appointment of a special prosecutor has been made to the divi­
sion of the court, the Attorney General is required to explain the
specific reasons why a special prosecutor is not required under
the standard set forth in § 592(e). I f the reason fo r not appoint­
ing a special prosecutor is the fa ct that the matter is so unsub­
stantiated as to not warrant further investigation or prosecu­
tion, the Attorney General’s explanation under this subsection
need only state that fact. The Committee does not intend that the
Attorney General go into any detail with regard to the basis fo r
the decision made in the exercise o f his prosecutorial discretion
that a matter simply did not warrant any further investigation or
prosecution after the conclusion o f a preliminary investigation.
S. Rep. No. 170, supra, at 72 (emphasis added). That history also makes clear
that Congress contemplated that the names of implicated individuals would be
included in the required notification.6
Based on this legislative history and the overriding concern reflected in the
Act with preserving confidentiality, we believe that, unless the court has
approved disclosure, the notification required by § 595(e) need (and may)
encompass only a statement that an application for an independent counsel has
been filed as to a particular individual or individuals, or that after investigation
the Attorney General determined that the allegations against particular indi­
viduals did not warrant further investigation. Obviously, if the Attorney Gen­
eral determined, on some ground other than the sufficiency and credibility of
the evidence, that he need not apply for an independent counsel — for example,
5 Disclosure is not authorized to the public, although the com m ittee may, either “on its ow n initiative or
upon the request o f the Attorney G eneral, m ake public such portion or portions o f such notification as w ill not
in the com m ittee’s judgm ent prejudice the rights o f any individual." 28 U.S.C. § 595(e).
6 In discussing cases in which the inform ation contained in the notification should be kept confidential by
Congress, the Senate Report specifically notes that “the C o m m itte e . . . m ay decide to delete the nam es o f
individuals m entioned in the notification especially if those individuals are not the subject of the alleged
crim inal activity.” S. Rep. No. 170, supra , at 73.
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if he determined that the facts, if true, would nonetheless not constitute a non-
petty criminal offense or that the individual is not covered by the Act — the
notification to Congress would set forth that rationale.7
The Act also contemplates that the independent counsel will provide “from
time to time” reports to Congress and to the public containing “such informa­
tion as [the] independent counsel deems appropriate,” 28 U.S.C. § 595(a), and
that the independent counsel “shall advise the House of Representatives of any
substantial and credible information which such independent counsel receives
that may constitute grounds for an impeachment.” Id. § 595(c). Oversight
jurisdiction “with respect to the official conduct of any independent counsel” is
given to the “appropriate committees of Congress” and the independent coun­
sel “shall have the duty to cooperate with the exercise of such oversight
jurisdiction.” Id. § 595(d). The legislative history of these provisions govern­
ing disclosures by the independent counsel is sparse and provides little guid­
ance as to what extent the independent counsel would be bound by the Act’s
confidentiality restrictions when making such disclosures.
III. Protecting tHrne Integrity of CraiiniaE Imvestigaitioes
A separate consideration is how disclosure of information about any inde­
pendent counsel decision would affect the Attorney General’s responsibilities
as the Nation’s chief law enforcement officer and the ability of the Department
to investigate and prosecute criminal offenses.8 There are a number of factors,
arising out of the separation of powers between the executive and legislative
branches, that should be weighed in making that determination.
A. Constitutional Division o f Responsibilities
Article II of the Constitution places the power to enforce the laws solely in
the Executive Branch of government. The executive therefore has the exclusive
authority to enforce the laws adopted by Congress, and neither the judicial nor
legislative branches may directly interfere with the prosecutorial discretion of
the Executive Branch by directing the executive to prosecute particular indi­
viduals.9 United States v. Nixon, 418 U.S. 683, 693 (1974); Confiscation
7 Sim ilarly, if the A ttorney General ap p lies for an independent counsel for an individual not nam ed in
§ 591 (b), because investigation by the D epartm ent “may result in a personal, financial, o r political conflict o f
interest,” 28 U .S.C. § 591(c), he would h av e to provide some specific description o f the facts giving rise to
the conflict.
8 O bviously, to the extent the confidentiality provisions o f the Independent Counsel Act bar disclosure, the
m ore generalized considerations we outline here need not be considered. However, there may be some
inform ation such as details o f the deliberative process that are not encom passed by the confidentiality
restrictio n s o f the A ct, o r are not reflected in the report filed w ith the court. M oreover, at som e point the court
m ight authorize disclosure o f some or all inform ation contained in the report, which would remove any
statutory bar to fu rth er disclosures.
9 For th is reason the executive branch has expressed constitutional qualm s about the Act itself, which
allow s an individual not appointed by the P resident or an o fficer o f the executive branch nonetheless to carry
out prosecutorial functions. Despite these doubts, the D epartm ent o f Justice has thus far taken the position
Continued
72
Cases, 74 U.S. (7 Wall.) 454,457 (1869); Smith v. United States, 375 F.2d 243,
247 (5th Cir.), cert, denied, 389 U.S. 841 (1967); United States v. Samango ,
607 F.2d 877, 881 (9th Cir. 1979); accord Newman v. United States, 382 F.2d
479,480 (D.C. Cir. 1967). The Framers intended that Congress not be involved
in such prosecutorial decisions or in questions regarding the criminal liability
of specific individuals. See United States v. Lovett, 328 U.S. 303, 317 (1946);
INS v. Chadha, 462 U.S. 919,961-62 (1983) (Powell, J., concurring).10‘“ When
the legislative and executive powers are united in the same person or body,’
says [Montesquieu] ‘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.’” The Federalist No. 47, at 303 (J. Madison) (C. Rossiter
ed. 1961) (emphasis in original).
The constitutional role of Congress is to adopt general legislation that will be
implemented — “executed” — 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). The courts have recognized that this general legislative interest gives
Congress broad rein to investigate. Both Houses of Congress have broad
power, “through their own process, to compel a private individual to appear
before it or one of its committees and give testimony needed to enable it
efficiently to exercise a legislative function belonging to it under the Constitu­
tion.” McGrain v. Daugherty, 273 U.S. 135, 160 (1927). The issuance of
subpoenas in aid of this function “has long been held to be a legitimate use by
Congress of its power to investigate,” Eastland v. United States Servicemen’s
Fund, 421 U.S. 491, 504 (1975), provided that the investigation is “related to,
and in furtherance of, a legitimate task of the Congress.” Watkins v. United
States, 354 U.S. 178, 187 (1957). See also McGrain v. Daugherty, 273 U.S. at
177 (inquiry must pertain to a subject “on which legislation could be had”).
This sphere of legitimate legislative activity “is as penetrating and far reaching
as the potential power to enact and appropriate under the Constitution.”
Barenblatt v. United States, 360 U.S. 109, 111 (1959). See also Watkins v.
United States, 354 U.S. at 187. The power of investigation can be delegated by
either House of Congress to committees, subcommittees, or even individual
legislators, see Eastland v. United States Servicemen’s Fund, 421 U.S. at 505;
Watkins v. United States, 354 U.S. at 200-01, as long as “the instructions to an
9 (. . . continued)
that it will abide by the provisions o f the Independent Counsel Act. See Letter to M ichael Davidson, Senate
Legal Counsel from W illiam French Smith, Attorney G eneral (Apr. 17, 1981), reprinted in Hearings on the
Ethics in Government Act Amendments o f 1982 before the Subcomm. on Oversight o f Government Manage­
ment o f the Senate Comm, on Governmental Affairs, 97th Cong., 2d Sess. 115 (1982).
10 In fact, the C onstitution specifically excludes C ongress from the decision whether to prosecute particular
cases. A legislative effort to require prosecution o f a specific individual has many of the attributes o f a bill of
attainder and w ould seem to be inconsistent with many o f the policies upon which the C onstitution’s
prohibition against bills o f attainder was based. See Selective Service System v. Minnesota Public interest
Research Group, 468 U.S. 841, 853-54 (1984); United States v. Brown, 381 U.S. 437, 447 (1965); United
States v. Lovett, 328 U.S. at 315.
73
investigating committee spell out that group’s jurisdiction and purpose with
sufficient particularity.” Id. at 201. The scope of judicial inquiry on these
matters is narrow, and ‘“should not go beyond the narrow confines of deter­
mining that a committee’s inquiry may fairly be deemed within its province.’”
Eastland v. United States Servicemen’s Fund, 421 U.S. at 506 (quoting Tenny
v. Brandhove, 341 U.S. 367, 378 (1951)).
Nonetheless, the investigative power of Congress is not unlimited. Congress
cannot, for example, inquire into matters “which are within the exclusive
province of one of the other branches of Government. . . . Neither can it
supplant the Executive in what exclusively belongs to the Executive.” Barenblatt
v. United States, 360 U.S. at 111; see also Kilboum v. Thompson, 103 U.S.
168, 192 (1881) (Congress cannot exercise judicial authority). Congress must
be able to articulate a legitimate legislative purpose for its inquiry; if Congress
lacks constitutional authority to legislate on the subject (or to authorize and appro­
priate funds), arguably Congress has no jurisdiction to inquire into the matter.11
Accordingly, a threshold inquiry that should be made upon receipt of any
congressional request for information is whether the request is supported by
any legitimate legislative purpose.12 The clearest application of this constraint
on congressional requests for information is with respect to matters that are
vested exclusively in the President (such as the removal of executive offic­
ers).13 Given the breadth of Congress’ legislative jurisdiction, particularly its
authority regarding the appropriation of funds, it may be difficult to articulate
more precise limits. With respect to decisions made by the Attorney General
under the Independent Counsel Act, we believe that Congress could not justify
an investigation based on its disagreement with the prosecutorial decision
regarding appointment of an independent counsel for a particular individual.
Congress simply cannot constitutionally second-guess that decision. Congress
does, however, have a legitimate legislative interest in overseeing the
Department’s enforcement of the Independent Counsel Act and relevant crimi­
nal statutes and in determining whether legislative revisions to the Act should
be made. Given the general judicial reluctance to look behind congressional
assertions of legislative purpose, such an assertion would likely be deemed
sufficient to meet the threshold requirement for congressional inquiry.
11 M oreover, there m ust be a subject m atter for the inquiry, the investigation m ust be authorized by
C ongress, there m ust be a valid legislative purpose, the w itness must be accorded certain constitutional
protections, and the inform ation demanded m ust be pertinent to the inquiry. See Gojack v. United States , 384
U .S. 702, 7 0 4 -0 5 , 714 (1966); Wilkinson v. United States, 365 U .S. 3 9 9 ,4 0 8 -0 9 (1961); Barenblatts. United
States , 360 U .S. at 111; Watkins v. United States, 354 U.S. at 187; United States v. Rumely, 345 U.S. 41, 4 4 -
46 (1953); McGrain v. Daugherty , 273 U .S . at 173, 176; Kilboum v. Thompson , 103 U.S. at 190.
12 The relevance o f this inquiry is not lim ited to the question whether the Department should respond, but
affects also how it should respond. If C o n g ress' legitim ate legislative interest is relatively narrow, the
D epartm ent m ay be able to satisfy the in q u iry w ithout disclosing confidential information.
13 For exam ple, the D irector o f the O ffice o f Personnel M anagem ent recently refused to answ er questions
asked by a congressional subcommittee concerning the rem oval of the D eputy D irector o f OPM, on the
ground that the rem oval w as a judgm ent that rested exclusively with the President. The appointment o f
o fficers presents a som ew hat more difficult problem , at least fo r those officers who m ust be appointed with
the advice and consent o f the Senate In such cases, the S enate can claim a legitim ate interest in obtaining
inform ation about the nom inee.
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B. Executive Privilege
Assuming that Congress has a legitimate legislative purpose for its inquiry,
the Executive Branch’s interest in keeping the information confidential must be
assessed. That interest is usually discussed in terms of “executive privilege,”
and we will use that convention here. The question, however, is not strictly
speaking just one of executive privilege. Although the considerations that
support the concept and assertion of executive privilege apply to any congres­
sional request for information, the privilege itself need not be claimed formally
vis-a-vis Congress except in response to a lawful subpoena; in responding to an
informal congressional request for information, the Executive Branch is not
necessarily bound by the limits of executive privilege.
1. Constitutional Basis of Executive Privilege
The Constitution nowhere states that the President, or the Executive Branch
generally, enjoys a privilege against disclosing information requested by the
courts, the public, or the legislative branch. The existence of such a privilege,
however, is a necessary corollary of the executive function vested in the
President by Article II of the Constitution, has been asserted by numerous
Presidents from the earliest days of our Nation, and has been explicitly recog­
nized by the Supreme Court. United States v. Nixon, 418 U.S. at 705-06.
2. Protection of Law Enforcement Files
Although the principle of executive privilege is well established, there are
few clear guidelines regarding its practical application. The privilege has most
frequently been asserted in the areas of foreign affairs and military and domes­
tic secrets, but it has also been invoked in a variety of other contexts. In 1954,
President Eisenhower asserted that the privilege extends to deliberative com­
munications within the Executive Branch. In a letter to the Secretary of De­
fense, he stated:
Because it is essential to effective administration that employ­
ees of the Executive Branch be in a position to be completely
candid in advising with each other on official matters, and
because it is not in the public interest that any of their conversa­
tions or communications or any documents or reproductions
concerning such advice be disclosed, you will instruct employ­
ees of your Department that in all of their appearances before
the Subcommittee of the Senate Committee on Government
Operations regarding the inquiry now before it they are not to
testify to any such conversations or communications or to pro­
duce any such documents or reproductions . . . .
1954 Pub. Papers 483-84 (May 17, 1954).
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Moreover, the policy of the Executive Branch throughout our Nation’s
history has generally been to decline to provide committees of Congress with
access to, or copies of, open law enforcement Files except in extraordinary
circumstances. This policy with respect to Executive Branch investigations
was first expressed by President Washington and has been reaffirmed by or on
behalf of most of our Presidents, including Presidents Jefferson, Jackson,
Lincoln, Theodore Roosevelt, Franklin Roosevelt, and Eisenhower. No Presi­
dent, to our knowledge, has departed from this position affirming the confiden­
tiality and privileged nature of open law enforcement files. See “History of
Refusals by Executive Branch Officials to Provide Information Demanded by
Congress” (Part I), 6 Op. O.L.C. 751 (1982).
This policy is grounded primarily on the need to protect the government’s
ability to prosecute fully and fairly. Attorney General Robert H. Jackson
articulated the basic position over forty years ago:
It is the position of this Department, restated now with the
approval of and at the direction of the President, that *11 investi­
gative reports are confidential documents of the executive de­
partment of the Government, to aid in the duty laid upon the
President by the Constitution to “take care that the Laws be
faithfully executed,” and that congressional or public access to
them would not be in the public interest.
Disclosure of the reports could not do otherwise than seri­
ously 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 information it can rely upon. This
is exactly what these reports are intended to contain.
40 Op. Att’y Gen. 45, 46 (1941). Similarly, this Office has explained that “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 influence the course of the investigation.” Memo­
randum for Edward L. Morgan, Deputy Counsel to the President from Thomas
E. Kauper, Deputy Assistant Attorney General, Office of Legal Counsel (Dec.
19, 1969). Other grounds for objecting to the disclosure of law enforcement
files include the potential damage to proper law enforcement that would be
caused by the revelation of sensitive techniques, methods, or strategy; concern
over the safety of confidential informants and the chilling effect on other
sources of information; sensitivity to the rights of innocent individuals who
may be identified in law enforcement files but who may not be guilty of any
violation of law; and well-founded fears that the perception of the integrity,
impartiality, and fairness of the law enforcement process as a whole will be
damaged if sensitive material is distributed beyond those persons necessarily
involved in the investigation and prosecution process.
76
Quite apart from the concern that disclosure would prejudice the particular
prosecution prompting congressional inquiry is the purely internal concern that
disclosure might hamper prosecutorial decision-making in future cases. Cf.
United States v. Nixon, 418 U.S. at 708. Employees of the Department would
likely be reluctant to express candidly their views and recommendations on
controversial and sensitive matters if those views could be exposed to public
scrutiny by Congress upon request.
In addition, potential targets of enforcement actions are entitled to protection
from premature disclosure of investigative information. It has been held that
there is “no difference between prejudicial publicity instigated by the United
States through its executive arm and prejudicial publicity instigated by the
United States through its legislative arm.” Delaney v. United States, 199 F.2d
107, 114 (1st Cir. 1952). Pretrial publicity originating in Congress, therefore,
can be attributed to the government as a whole and can require postponement or
other modification of the prosecution on due process grounds. Id. Moreover, a
person who is ultimately not prosecuted may be subjected to unfair and prejudi­
cial publicity — and thus suffer substantial and lasting damage to his profes­
sional and community standing — based on unfounded allegations.14
There are, of course, circumstances in which the Attorney General may
decide to disclose to Congress information about his prosecutorial decisions.
Once an investigation has been closed without further prosecution, many of the
considerations previously discussed lose some of their force. Access by Con­
gress to details of closed investigations does not pose as substantial a risk that
Congress will be a partner in the investigation and prosecution or will other­
wise seek to influence the outcome of the prosecution; likewise, if no prosecu­
tion will result, concerns about the effects of undue pretrial publicity on a jury
would disappear. Still, such records should not automatically be disclosed to
Congress. Obviously, much of the information in a closed criminal enforce­
ment file, such as unpublished details of allegations against particular individu­
als and details that would reveal confidential sources, and investigative tech­
niques and methods, would continue to need protection (which may or may not
be adequately afforded by a confidentiality agreement with Congress). In
addition, the Department and the Executive Branch have a long-term institu­
tional interest in maintaining the integrity of the prosecutorial decision-making
process. The Supreme Court has recognized that “[h]uman 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. It therefore is important to weigh the potential “chilling effect” of a
disclosure of details of the deliberative process against the immediate needs of
14 D epartm ent o f Justice officials, as attorneys, are directed to observe the C ode o f Professional R esponsi­
bility to the extent it does not prevent their loyal service to the U nited States. See 28 C.F.R. § 45 7 3 5 -1 . The
Code prohibits a lawyer w ho is associated with an investigation from making or participating in m aking "an
extrajudicial statem ent that a reasonable person would expect to be dissem inated by m eans o f public
com m unication and that does more than state without elaboration" already public or highly generalized
inform ation about the m atter. Model C ode o f Professional R esponsibility, DR 7-107(A ) (1979).
77
Congress and of the Department. After assessing all of these factors, on
occasion the Department has briefed Congress on prosecutorial decisions and
has disclosed some details of the underlying investigation, once the investiga­
tion has been closed.
3. Attomey-Client Communications
Some of the communications relevant to an Independent Counsel Act deci­
sion could conceivably fall within the scope of the common law evidentiary
privilege for attomey-client communications.15 Although the attomey-client
privilege may be invoked by the government in litigation and under the Free­
dom of Information Act separately from any “deliberative process” privilege,16
it is not generally considered to be distinct from the executive privilege in any
dispute between the executive and legislative branches. The interests impli­
cated under common law by the attomey-client privilege generally are sub­
sumed by the constitutional considerations that shape executive privilege, and
therefore it is not usually considered to constitute a separate basis for resisting
congressional demands for information. As this Office has previously noted,
for the purpose of responding to congressional requests, communications be­
tween the Attorney General, his staff, and other Executive Branch “clients”
that might otherwise fall within the common law attomey-client privilege
should be analyzed in the same fashion as any other intra-Executive Branch
communications. See “Confidentiality of the Attorney General’s Communica­
tions in Counseling the President,” 6 Op. O.L.C. 481, 490 & n.17, 494 & n.24
(1982).17
Nonetheless, when the Attorney General is acting in his role as the President’s
chief legal adviser, his communications to the President may warrant greater
confidentiality than those of some other Cabinet advisers because of the nature
of the Attorney General’s responsibilities to the executive and his special areas
of expertise, e.g., legal advice and law enforcement. This Office has previously
emphasized the particular importance of protecting the President’s ability to
receive candid legal in advice:
15 The a tto m ey -clien t privilege generally em braces confidential disclosures o f a client to his attorney, made
in ord er to obtain legal assistance and not fo r the purpose o f com m itting a crim e o r tort. 8 W igm ore, Evidence
§ 2290 (M cN aughton rev. 1961). In order to prevent inadvertent disclosures, either directly o r by implication,
o f inform ation w hich th e clien t had previously confided to the attorney, as well as to foster the attorney’s
ability to give sound and inform ed professional advice, the privilege has generally been extended to include
an a tto rn e y 's com m unications to his client. Mead Data Central v. Department o f the A ir Force, 566 F.2d 242,
25 2 -5 5 (D .C . C ir. 1977).
16 See, e.g., Brinton v. Department of State, 6 3 6 F .2 d 600, 605 (D.C. C ir. 1980), cert, denied , 452 U.S. 905(1981); M ead Data Central, Inc. v. Department o f the A ir Force , 566 F.2d at 252; Coastal States Gas Corp.
v. DOE , 617 F.2d 854, 865 (D.C. Cir. 1980); 5 U.S.C. § 552(b)(5) (docum ents exem pted from mandatory
disclo su re un d er the Freedom o f Inform ation Act include those “w hich would not be available by law to a
party . . . in litigation w ith the agency”).
17 L ikew ise, com m unications that would b e protected in litigation or under the Freedom o f Inform ation Act
by the w ork product privilege would g en erally be considered part o f the governm ent's deliberative process,
and therefore subsum ed under executive privilege, fo r the purpose o f responding to congressional requests
for inform ation. See generally 6 Op. O .L.C . at 4 9 7 -9 8 n.32.
78
[T]he reasons for the constitutional privilege against the com­
pelled disclosure of executive branch deliberations have special
force when legal advice is involved. None of the President’s
obligations is more solemn than his duty to obey the law. The
Constitution itself places this responsibility on him, in his oath
of office and in the requirement of article II, section 3 that “he
shall take Care that the Laws be faithfully executed.” Because
this obligation is imposed by the Constitution itself, Congress
cannot lawfully undermine the President’s ability to carry it out.
Moreover, legal matters are likely to be among those on which
high government officials most need, and should be encouraged
to seek, objective, expert advice. As crucial as frank debate on
policy matters is, it is even more important that legal advice be
“candid, objective, and even blunt or harsh,” see United States
v. Nixon, 418 U.S. 683,708 (1974), where necessary. Any other
approach would jeopardize not just particular policies and pro­
grams but the principle that the government must obey the law.
For these reasons, it is critical that the President and his advisers
be able to seek, and give, candid legal advice and opinions free
of the fear of compelled disclosure.
Memorandum for the Attorney General from John M. Harmon, Assistant
Attorney General, Office of Legal Counsel 26 (Jan. 13, 1981).
4. Independent Counsel Act Decisions
We believe that these considerations we have outlined apply to decisions
whether to recommend appointment of an independent counsel no less than
they apply to any other prosecutorial decision made by this Department.
Although the ultimate decision whether to prosecute a particular individual
rests with the independent counsel, the threshold decisions whether to investi­
gate and whether to recommend appointment of an independent counsel are
critical steps in that ultimate prosecutorial judgment. The decision whether*
“there are reasonable grounds to believe that further investigation or prosecu­
tion is warranted” is quintessential^ a prosecutorial decision, akin to those
made every day in the course of the Department’s enforcement of the criminal
laws. In fact, the Act specifically recognizes that the Attorney General’s
decision whether to seek appointment of an independent counsel is unreviewable
by the courts, like any other exercise of prosecutorial discretion.18
18 The Act provides that the A ttorney G eneral’s decision to apply for appointm ent o f an independent
counsel “ shall not be review able in any court.” 28 U .S.C. § 592(0- The nonreview ability provision applicable
to the A ttorney G eneral’s decision not to seek appointm ent is phrased in som ew hat different terms U nder
§ 592(b)(1), if the A ttorney G eneral reports to the court that “there are no reasonable grounds to believe that
further investigation o r prosecution is w arranted,” the court “shall have no pow er to appoint an independent
C ontinued
79
A decision not to apply for an independent counsel could be treated as a
closed investigation, in accordance with the Department’s practice. If the
Attorney General seeks appointment of an independent counsel, however, the
investigation would be very much alive, as the independent counsel would step
into the Department’s shoes and continue the investigation into the allegations
of wrongdoing.19 In fact, the Department could still be quite involved in
assisting the independent counsel, including providing information, personnel,
and other resources. See 28 U.S.C. § 594(d). It seems clear, therefore, that all
the considerations that counsel against disclosure of information relevant to
open investigations being conducted by the Department itself apply equally
when the investigation is being conducted by the independent counsel.
The more difficult question is whether any distinction between “closed” and
“open” investigations could or should be drawn in a case in which the Attorney
General determines that the evidence warrants further investigation of some,
but not all, of those individuals against whom allegations have been directed.
That determination would rest in large part on the facts and documents at issue
and would in most cases probably require a particularized judgment as to
whether some information relating to “closed” cases could be reasonably
segregated and disclosed to Congress without undue risk of prejudicing the
independent counsel’s “open” investigation. We are obviously not in a position
to make that judgment, and would defer to the Criminal Division. It seems to
us, however, that in many, perhaps most, cases the evidence may be so
intertwined that no separation is possible. In other cases, especially those of a
simple nature in which the allegations against particular individuals are only
marginally related, separation may be feasible.
In addition, because the Attorney General’s decision not to seek an indepen­
dent counsel for particular individuals must be based on his determination that
“there are no reasonable grounds to believe that further investigation or pros­
ecution is warranted, “the interests of those individuals in continued confiden­
tiality would seem particularly strong. Moreover, even though the decision by
the Attorney General not to seek appointment of an independent counsel is
nonreviewable, in an interrelated investigation the possibility always exists
that the independent counsel’s investigation may uncover new information that
will result in further investigation.20
18 (. . . continued)
counsel.” Id. § 592(b)(1). In Banzhaf v Smith, 737 F.2d 1167, 1169 (D .C . Cir. 1984), the Court o f Appeals
held that this provision w as intended by C ongress to b ar any “judicial review , at the behest o f m embers of the
public, o f the A ttorney G e n eral's decisions not to investigate particular allegations and not to seek appoint­
m ent o f independent c o u n sel.”
19 It could be argued that even if the A ttorney G eneral applies to the court for appointm ent o f an
independent counsel, the D epartm ent's investigations may technically be considered “closed,” because
§ 597(a) requires the D epartm ent to “suspend all investigations and proceedings regarding [a] m atter [within
the prosecutorial discretion o f an independent counsel]” unless the independent counsel “agrees in writing
that such investigation o r proceedings m ay be continued by the D epartm ent of Justice.” For (he leasons set
forth above, w e believe this argument is w ith o u t merit.
20The independent c o u n se l's jurisdiction is, o f course, lim ited to that specified by the court, based on the
application filed by the A ttorney General. See 28 U.S.C. §§ 592(d)(1), 593(b), 594(a). Although the language
C ontinued
80
Thus, we believe there are strong constitutional and policy considerations,
flowing from the doctrine of separation of powers, the obligation to preserve
the integrity of the prosecutorial function, and the need to protect the rights of
those who are the target of criminal investigations, that should inform and
guide the Department’s response to a congressional request for information
about independent counsel decisions. It may be that any such request could be
accommodated through a process of negotiation with Congress. Only rarely do
congressional requests for information result in a subpoena of an Executive
Branch official or in any congressional action. In most cases the informal
process of negotiation and accommodation mandated by President Reagan in
his November 4, 1982, Memorandum for the Heads of Executive Departments
and Agencies on “Procedures Governing Responses to Congressional Requests
for Information” is sufficient to resolve any dispute.21 On occasion, however,
the process breaks down, and a subpoena is issued by a congressional commit­
tee or subcommittee. At that point, it would be necessary to consider what
procedures and defenses are available to the Executive Branch.
We outline below some of the issues that would be raised if Congress
subpoenaed the Attorney General in connection with a congressional request
for information about an independent counsel decision. Our particular focus
here is on the House of Representatives, because it is far more likely that such
action would be taken by the House than by the Senate.
IV. Subpoena Authority of the House of Representatives
A. Basis o f Subpoena Authority
As previously noted, Congress has a broad, but not unlimited, investigative
authority. See McGrain v. Daugherty, 273 U.S. at 174. This investigative
20 ( . . . continued)
o f the Act, see 28 U.S.C. §§ 592(d)(1), 593(b), and its legislative history, see S Rep. No. 170, supra , at 64,
suggest that the court may have some flexibility in defining the independent counsel's jurisdiction, we do not
believe that the court can grant the independent counsel — o r that the independent counsel can assum e — any
jurisdiction in excess o f that recom m ended by the Attorney G eneral. Any other interpretation w ould com ­
pletely circum vent the clear congressional judgm ent that the A ttorney G eneral’s decision w hether to seek an
independent counsel be unreview able. In addition, the Act itself provides several avenues by which the
jurisdiction o f the independent counsel could be expanded, all o f which require the participation o f the
A ttorney G eneral For exam ple, if the Attorney General receives additional inform ation “sufficient to
constitute grounds to investigate about the m atter to which such m emorandum related,” his obligation to
investigate and report is renew ed, see 28 U.S.C. § 592(c)(2); the A ttorney General may ask the independent
counsel “to accept referral o f a m atter that relates to a m atter within that independent counsel’s prosecutorial
jurisdiction," id. § 592(e); and the independent counsel him self may ask the Attorney G eneral or the court to
“refer m atters related to [his] prosecutorial jurisdiction” or “may accept referral of a m atter by the A ttorney
G eneral,” see id. § 594(e). Finally, our constitutional qualm s about the role of the independent counsel would
be considerably exacerbated if the critical decision as to w hat individuals and offenses may be prosecuted
were taken com pletely out o f the hands o f the A ttorney General
21 That mem orandum states that “[t]he policy o f this A dm inistration is to com ply w ith C ongressional
requests for inform ation to the fullest extent consistent with the constitutional and statutory obligations o f the
Executive Branch . . . . [EJxecutive privilege will be asserted only in the most com pelling circum stances, and
only after careful review dem onstrates that assertion o f the privilege is necessary. H istorically, good faith
negotiations betw een C ongress and the Executive Branch have m inim ized the need for invoking executive
privilege, and this tradition o f accom m odation should continue as the prim ary m eans o f resolving conflicts
betw een the Branches.”
81
authority necessarily presupposes some means of compelling the cooperation
of contumacious witnesses:
A legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the leg­
islation is intended to affect or change; and where the legislative
body does not itself possess the requisite information. . . re­
course must be had to others who do possess it. Experience has
taught that mere requests for such information are unavailing,
and also that information which is volunteered is not always
accurate or complete; so some means of compulsion are essen­
tial to obtain what is needed.
Id. at 175. Because the subpoena power is regarded as inherent in Congress’
Article I power, it does not require enactment of a statute. Nonetheless, the
exercise of subpoena power must be authorized by the relevant House. See,
e.g., Reed v. County Commissioners, 277 U.S. 376, 389 (1928); McGrain v.
Daugherty, 273 U.S. at 158.
Since 1974, the House Rules have given standing committees and subcom­
mittees the authority to authorize and issue subpoenas.22 House Rule X3(m)(l)(B)
authorizes any committee or subcommittee “to require, by subpoena or other­
wise, the attendance and testimony of such witnesses and the production of
such books, records, correspondence, memorandums, papers, and documents
as it deems necessary.” Subpoenas may be issued by a committee or subcom­
mittee “only when authorized by a majority of the members voting, a majority
being present,” except that “ the power to authorize and issue subpoenas . . .
may be delegated to the chairman of the committee pursuant to such rules and
under such limitations as the committee may prescribe.” House Rule
XI(m)(2)(A). Any authorized subpoena must be signed by the chairman of the
committee or by a member designated by the chairman. Id. The rules of each
standing committee flesh out somewhat the requirements for issuance of a
subpoena, specifying in particular if, or under what circumstances, the
chairman of the full committee may issue a subpoena without a vote of the
committee.
B. Enforcement o f Subpoenas
If a subpoenaed witness refuses to respond fully to a subpoena, the subcom­
mittee or committee, as the case may be, can vote to hold the witness in
contempt of Congress. As a matter of consistent historical practice, a contempt
of Congress vote by a subcommittee is referred to the full committee, although
there appears to be no technical requirement to interpose committee approval
22 P rio r to adoption o f the Hansen proposals in 1974, subpoena authority w as granted only on a case-by-case
basis. See C ongressional Q uarterly, Guide to the Congress 164 (1982).
82
between a subcommittee contempt resolution and referral to the full
House.23
By operation of House Rule XI(m)(2)(B), any action to enforce compliance
with a committee or subcommittee subpoena must be approved by and the
House. See In re B eef Industry Antitrust Litigation, 589 F.2d 786,790 (5th Cir.
1979) (House approval required for intervention in private antitrust suit to gain
access to documents subpoenaed by subcommittee from a party to the litiga­
tion); see generally Wilson v. United States, 369 F.2d 198, 201 (D.C. Cir. 1966)
(suggesting that referrals under 2 U.S.C. §§ 192-194 require a vote of the full
House or Senate, except during adjournments).
The House would have three alternatives available to enforce the subpoena:
(1) referral to the United States Attorney for prosecution under 2 U.S.C.
§§ 192-194; (2) arrest by the Sergeant-at-Arms; or (3) a civil suit seeking
declaratory enforcement of the subpoena. The first two of these alternatives
may well be foreclosed by advice previously rendered by this Office.
1. Referral Under 2 U.S.C. §§ 192-194The criminal contempt of Congress statute contains two principal sections, 2
U.S.C. §§ 192 and 194.24 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
H ouse,. . . 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
common jail for not less than 1 month nor more than 12 months, p 5]
23 The courts have underscored the im portance o f the procedural safeguards built into the contem pt of
Congress process and, in particular, the m ultiple steps o f review that must take place before a contem pt of
Congress prosecution is brought. See Wilson v. United States, 369 F.2d 198, 203 (D.C. Cir. 1966); see also
United States Fund v. Eastland , 488 F.2d 1252, 1260 (D.C. Cir. 1973), rev’d on other grounds, 421 U.S. 491(1975); Sanders v. McClellan, 463 F.2d 894 (D.C. Cir. 1972); Ansara v. Eastland , 442 F.2d 751, 754 (D.C.
Cir. 1971). It could therefore be argued that com m ittee consideration o f a subcom m ittee contem pt resolution
would be necessary in order to provide an additional check upon the contem pt o f C ongress process. No court,
however, has so held, and w e have not found any requirem ent in the H ouse o r any com m ittee rules for referral
to the full com m ittee. N either have w e found any instance in w hich a subcomm ittee referred a contem pt
resolution directly to the House, w ithout seeking approval from the full com m ittee. For exam ple, the
contem pt resolution voted by the Subcom m ittee on O versight and Investigations o f the H ouse C om m ittee on
Public W orks and Transportation against EPA A dm inistrator Burford was referred to the full Com m ittee, and
reported by that C om m ittee to the House.
24 A third provision, 2 U.S.C. § 193, denies the existence o f any testim onial privilege for a w itness to refuse
to testify on the ground that his testim ony would disgrace him.
25 This statute has been found constitutionally valid as a punitive supplem ent to C ongress’ inherent
coercive pow er to im prison for contem pt. See, e.g.. United States v. Fort, 443 U.S. 670,677 (D .C. Cir. 1970),
cert. denied , 403 U.S. 942 (1971).
83
Section 194 imposes certain responsibilities on the Speaker of the House or the
President of the Senate, as the case may be, and on the United States Attorney
to take 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 pertinent
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 President of the Senate or 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.
Under this provision, the committee would refer a resolution of contempt to the
House, which would then have to approve the resolution and instruct the
Speaker to certify the contempt to the United States Attorney for presentation
to the grand jury.26
The contempt of Congress procedure has been used only once against an
Executive Branch official who refused to comply with a subpoena on executive
privilege grounds. In 1982, EPA Administrator Burford, acting at the President’s
direction, refused to release certain enforcement sensitive documents in re­
sponse to a subpoena from the Subcommittee on Oversight and Investigations
of the House Committee on Public Works and Transportation. The Subcommit­
tee and subsequently the full Committee approved a contempt of Congress
resolution, and on December 16, 1982, the full House adopted the resolution.
On December 17, Speaker O’Neill certified the contempt to the United States
Attorney for the District of Columbia for prosecution under § 192. The United
States Attorney declined to refer the contempt citation to the grand jury,
pending resolution of a lawsuit filed by the Executive Branch to block enforce­
ment of the subpoena27 and completion of negotiations between the executive
and legislative branches to reach a compromise settlement.28
26 By its term s, § 194 w ould permit the S p eak er (or P resident pro tempore) to certify a contem pt w ithout the
approval o f the H ouse, if the House were n o t in session. This option, how ever, w ould appear to be foreclosed
by the H ouse rules, w hich clearly require fu ll House approval for any enforcem ent action
27 United States v. House o f Representatives, 556 F. Supp. 150 (D .D .C. 1983).
28 T hose negotiations eventually resulted in an agreem ent and w ithdraw al o f the contem pt citation.
84
During the EPA matter, this Office rendered advice to the Attorney General,
since memorialized in a memorandum, on the applicability of §§ 192 and 194
to Executive Branch officials who assert claims of executive privilege on
behalf of the President.29 In brief, we concluded that a United States 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
instruction to assert executive privilege. Our conclusion rested partly on the
need to preserve traditional prosecutorial discretion, i.e., that Congress may not
direct the executive to prosecute a particular individual without leaving any
discretion in the executive to determine whether a violation of the law has
occurred. We also concluded more broadly, however, that the contempt of
Congress statute simply was not intended to apply and could not constitution­
ally be applied to an Executive Branch official who asserts the President’s
claim of executive privilege. We noted that neither the legislative history nor
the subsequent implementation of §§ 192 and 194 suggest that Congress in­
tended the statute to apply to executive officials who carry out a Presidential
assertion of executive privilege. Moreover, as a matter of constitutional law,
we concluded that the threat of criminal prosecution would unduly chill
the President’s ability to protect presumptively privileged Executive Branch
deliberations:
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 therefore intoler­
able burden on the exercise by the President of his functions
under the Constitution.
8 Op. O.L.C. at 102. Therefore, Congress could not, as a matter of statutory or
constitutional law, invoke the criminal contempt of Congress procedure set out
in 2 U.S.C. §§ 192 and 194 against the head of an Executive Branch agency, if
he acted on the instructions of the President to assert executive privilege in
response to a congressional subpoena.
29 See “ Prosecution for C ontem pt o f C ongress o f an Executive Branch O fficial Who Has A sserted a C laim
o f Executive Privilege," 8 Op. O .L.C. 101 (1984).
85
2. Inherent Contempt Power of Congress
The second alternative is for the House to instruct the Sergeant-at-Arms to
arrest the Executive Branch official and detain him in the Capitol guardroom.
The arrest could then be challenged by application for a writ of habeas corpus.
28 U.S.C. §§ 2241 et seq.
The Supreme Court has ruled in the past that Congress has the inherent
constitutional authority to imprison individuals for contempt. See Jum ey v.
M acCracken, 294 U.S. 125 (1935); Anderson v. D unn, 19 U.S. (6 Wheat.) 204
(1821). The authority is one of self preservation and is accordingly limited to
“the least possible power adequate to the end proposed.” Id. at 231.
Although the authority has been cited by a court as recently as 1970, see
United States v. Fort, 443 F.2d at 676, Congress has not attempted to use it for
approximately 50 years30 and it seems most unlikely that Congress would
dispatch the Sergeant-at-Arms to arrest and imprison an Executive Branch
official who claimed executive privilege. Moreover, while Supreme Court
precedents support the right o f Congress to imprison individuals for contempt,
there is some question whether such authority would continue to be upheld. In
recent years the Supreme Court has been more wary of Congress’ exercising
judicial authority:
Those who wrote our Constitution well knew the danger inher­
ent in special legislative acts which take away the life, liberty, or
property of particular named persons, because the legislature
thinks them guilty of conduct which deserves punishment.
United States v. Lovett, 328 U.S. at 317; see also United States v. Brown, 381
U.S. 437 (1965); IN S v. Chadha, 462 U.S. at 962,966 (Powell, J., concurring).
The Court has also been careful in recent cases to restrict Congress to its
legislative functions and not to permit it to exercise authority belonging to another
branch. See INS v. Chadha, supra ; Buckley v. Valeo, 424 U.S. 1 (1976). The current
Court therefore may not afford Congress the same latitude with respect to its
inherent contempt power that was provided during the 19th and early 20th centuries.
See Memorandum for the Deputy Attorney General from Robert B. Shanks, Deputy
Assistant Attorney General, Office of Legal Counsel (Oct. 18, 1984).
In any event, the same considerations that inform the analysis of the applica­
bility of §§ 192 and 194 to Executive Branch officials are relevant to an
exercise of Congress’ inherent contempt power. In our 1984 memorandum to
the Attorney General discussing §§ 192 and 194, we noted that the reach of the
criminal contempt statute was intended to be coextensive with Congress’
inherent civil contempt powers (except with respect the penalties imposed),
and concluded that “the same reasoning that suggests that the statute could not
constitutionally be applied against a Presidential assertion of privilege applies
to Congress’ inherent contempt powers as well.” 8 Op. O.L.C. at 140 n.42.
30 See M arshall v. Gordon, 243 U.S. 521 (1917); C ongressional Q uarterly, Guide to the Congress 162
(1982).
86
3. Civil Suit for Enforcement of a Subpoena
The most likely route for Congress to take would be to file a civil action
seeking enforcement of the subpoena. There is no statute that expressly grants
the federal courts jurisdiction over such suits.31 There are, however, at least
two precedents for bringing such civil suits under the grant of federal question
jurisdiction in 28 U.S.C. § 1331. In 1973, the Senate Select Committee on
Presidential Campaign Finances sought civil enforcement of its subpoena for
tapes and documents; the Committee urged, inter alia, that § 1331 provided
subject matter jurisdiction. The district court found that the $10,000 jurisdic­
tional amount in controversy requirement was not met and held that jurisdic­
tion was therefore lacking under section 1331. The court did not be suggest that
there was any other basis for denying federal question jurisdiction. Senate
Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp.
51, 59-61 (D.D.C. 1973). Legislation was subsequently enacted to authorize
jurisdiction over that particular suit. See Senate Select Committee on Presiden­
tial Campaign Activities v. Nixon, 498 F.2d 725,727 (D.C. Cir. 1974). Section
1331 has since been amended to be eliminate the $10,000 amount in contro­
versy limitation in actions brought against the United States. Pub. L. No. 96-
486, § 2(a), 94 Stat. 2369 (1980).
General federal question jurisdiction was also used as a basis for the be civil
suit filed by the Department of Justice against the House in the EPA matter. See
United States v. House o f Representatives, C.A. No. 82-3583 (D.D.C. 1983).
The Department took the position in that case that the controversy arose under
the Constitution and laws of the United States, because resolution “depend[ed]
directly on construction of the Constitution [and the] Court has consistently
held such suits are authorized by [section 1331].” Powell v. McCormack, 395
U.S. 486,516 (1969). Relying upon the decision in United States v. AT&T Co.,
551 F.2d 384 (D.C. Cir. 1976), which held that an action brought by the United
States to block a response by a third party to a congressional subpoena met the
threshold jurisdictional requirements of section 1331, the Department argued
31 U nder 2 U.S.C. § 288d, the Senate Legal Counsel “(w]hen directed to do so [by the Senate] . . . shall
bring a civil action . . . to enforce, to secure a declaratory judgm ent concerning the validity of, or to prevent
a threatened failure or refusal to com ply with, any subpoena or order issued by the Senate or a com m ittee or
a subcom m ittee o f the Senate authorized to issue a subpoena o r o rd e r/’ The U nited States District C ourt for
the D istrict o f C olum bia has jurisdiction over such actions, but its jurisdiction does not extend to any actions
brought “to enforce, to secure a declaratory judgm ent concerning the validity of, or to prevent a threatened
refusal to comply with, any subpoena or o rder issued to an officer or em ployee o f the Federal G overnm ent
acting within his official capacity.” 28 U.S.C. § 1364(a).
The argum ent could be made that this authority provides the exclusive route for either H ouse to bring a civil
action to enforce its subpoenas, and thus, that no route exists for civil enforcem ent against an executive
branch officer. The legislative history o f these statutes, how ever, counsels against th at conclusion. The
legislative history specifically notes that the jurisdictional exception for executive branch subpoenas “ is not
intended to be a Congressional finding that the Federal courts do not now have the authority to hear a civil
action to enforce a subpoena against an officer or em ployee o f the Federal G overnm ent," but rather was
intended specifically to provide th e Senate with a less drastic rem edy than crim inal contem pt for refusals by
private citizens to comply w ith subpoenas, and to avoid reliance on the D epartm ent o f Justice to enforce such
subpoenas. See S. Rep. No. 170, 95th Cong., 2d Sess. 8 8 -8 9 (1978).
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that subject matter jurisdiction similarly exists in a suit to halt enforcement of a
subpoena addressed directly to the Executive Branch.32 The rationale used by
the Department in that suit would appear to apply equally to suits filed by a
House of Congress seeking enforcement of its subpoena against executive
privilege claims.
In addition, the courts may be willing to entertain a civil suit brought by the
House in order to avoid any question about the possible applicability of the
criminal contempt provisions of §§ 192 and 194. When a possible impairment
of the President’s constitutional prerogatives is involved, the courts are par­
ticularly careful to construe statutes to avoid a constitutional confrontation. In
United States v. Nixon, for example, the Court construed the limitation in 28
U.S.C. § 1291 (that appeals be taken only from “final” decisions of a district
court) to permit the President to appeal an adverse ruling on his claim of
executive privilege without having to place himself in contempt of court:
[T]he 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 o f disobeying an order of a court merely
to trigger the procedural mechanism for review of the ruling would
be unseemly, and would present an unnecessary occasion for consti­
tutional confrontation between two branches of the Government.
418 U.S. at 691-92. The U.S. Court of Appeals for the District of Columbia 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. See Tobin v. United States, 306 F.2d 270 (D.C.
Cir.), cert, denied, 371 U.S. 902 (1962); see also United States v. Fort, 443
F.2d at 677-78. The Fifth Circuit appears to have held that no government
official need subject himself to contempt in order to obtain review of his claim
that the government is privileged to refuse to comply with a court’s demand for
documents. See Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th Cir.
1973); C arr v. Monroe Manufacturing Co., 431 F.2d 384, 387 (5th Cir. 1970),
cert, denied, 400 U.S. 1000 (1971); but see In re the Attorney General, 596
F.2d 58, 62 (2d Cir.), cert, denied, 444 U.S. 903 (1979). Thus, although the
civil enforcement route has not been tried by the House, it would appear to be a
viable option.33
32 The d ecisio n o f the district court in United States v House o f Representatives does not directly address
the ju risd ictio n al question, although it casts considerable doubt on w hether the Executive Branch can seek
review in a civil action, w hen the legislative branch has chosen to use the crim inal contem pt provisions. 556
F. Supp. at 153. N onetheless, the court did not foreclose any civil actions by the House:
Judicial resolution o f this constitutional claim , how ever, will never become necessary unless
A dm inistrator G orsuch becomes a defen d an t in either a criminal contem pt proceeding or other
legal action taken by Congress
Id. (em phasis added).
33 Any notion that the courts may not o r should not review such disputes is dispelled by United States v.
Nixon , 418 U.S. at 7 0 3 -0 5 , in which the C ourt clearly asserted its role as ultimate arbiter of executive
C ontinued
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It is also possible that Congress might attempt to invoke the provisions of the
Independent Counsel Act, which require the Attorney General to conduct an
investigation “whenever he receives information sufficient to constitute grounds
to investigate” that any of the enumerated Executive Branch officials “has
committed a violation of any Federal criminal law other than a violation
constituting a petty offense.” 28 U.S.C. §591. The crime of contempt of
Congress is a non-petty criminal offense. See 2 U.S.C. § 192; 18 U.S.C. § 1.
Thus a contempt citation against a covered official would arguably trigger the
Attorney General’s obligation under the Act. Invocation of the Act would not,
however, necessarily require the Attorney General to apply for the appointment
of an independent counsel. As this Office has advised on prior occasions, the
Attorney General retains a certain measure of discretion with respect to whether
to apply for an independent counsel.
B. Defenses to Congressional Subpoenas
1. Lack of Jurisdiction
As we discussed above, Congress’ investigative power, while broad, is not
unlimited. Thus, short of asserting executive privilege, there may be other lines
of defense against a subpoena. The most promising line is that the subcommit­
tee has no jurisdiction to request the information, either because Congress as a
whole has no authority to inquire into the matter, or because Congress has not
given the committee the requisite authority.
a. Scope of Congress’ Jurisdiction
The Supreme Court has not articulated with precision whether there are
particular limits to the jurisdiction of Congress to request information from the
Executive Branch. Nonetheless, as we have previously set forth, Congress
must at a minimum be able to articulate a legitimate legislative purpose for its
inquiry. We will not repeat that discussion here, except to say that if the matter
either falls exclusively within the province of another branch, see Kilboum v.
Thompson, 103 U.S. at 192, or Congress cannot point to some rational nexus
between the inquiry and its legislative power, see Barenblatt v. United States,
360 U.S. at 111, we believe the subpoena would be held invalid for lack of
authority, and could be challenged on that basis.
b. Scope of Committee’s Jurisdiction
Not only must the investigation fall within Congress’ jurisdiction, but the
committee or subcommittee must also have been specifically authorized by the
33 ( . . . continued)
privilege questions. The need for ju dicial review in fact was em phasized by this D epartm ent in the United
States v. House o f Representatives litigation as a basis for the court to entertain the suit. The D epartm ent
argued that, in som e circum stances, only judicial intervention can prevent a stalem ate between the other tw o
branches that could result in a partial paralysis o f governm ent operations.
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relevant House to conduct the investigation. Since defiance of a subpoena
raises the possibility of criminal prosecution, “a clear chain of authority from
the House to the questioning body is an essential element of the offense.”
Gojack v. United States, 384 U.S. at 716. It “must appear that Congress
empowered the Committee to act, and further that at the time the witness
allegedly defied its authority the Committee was acting within the power
granted to it.”34 Id. (quoting United States v. Lamont, 18 F.R.D. 27 (S.D.N.Y.
1955), a ffd , 236 F.2d 312 (2d Cir. 1956)). See also Watkins v. United States,
354 U.S. at 204—05,214-15; Eastland v. United States Servicemen’s Fund, 421
U.S. at 505-06. Thus, a witness cannot be compelled to answer questions that
fall outside of the investigative jurisdiction of a committee or subcommittee.
See United States v. Rumely, 345 U.S. at 44—45; Bergman v. Senate Select
Committee on Aging, 389 F. Supp. 1127, 1130 (S.D.N.Y. 1975); United States
v. Cuestra, 208 F. Supp. 401, 406 (D.P.R. 1962).
Although this general principle is well recognized by the courts, in practice
they have given considerable deference to a committee’s definition of its
jurisdiction. In cases in which the courts have refused to enforce a subpoena
because the inquiry fell outside of the committee’s jurisdiction, the primary
defect was that the investigative authority given to the committee was simply
so broad and ill-defined that it gave the witness no fair notice of the scope of the
inquiry. See, e.g., Watkins v. United States, 354 U.S. at 204; United States v.
Rumely, 345 U.S. at 43. In many cases, the courts have considered the “legisla­
tive history” of the committee’s investigation (e.g., the language and back­
ground of the authorizing resolution, remarks made by the chairman or mem­
bers of the committee to outline the scope of the investigation, the existence
and scope of similar investigations) to determine whether a particular matter
falls within a committee’s jurisdiction. “Just as legislation is often given
meaning by the gloss of legislative reports, administrative interpretation and
long usage, so the proper meaning of an authorization to a congressional
committee is not to be derived alone from its abstract terms unrelated to the
definite context furnished them by the course of congressional actions.”
Barenblatt v. United States, 360 U.S. at 117. See also Wilkinson v. United
States, 365 U.S. at 408; Tobin v. United States, 306 F.2d at 275-76; United
States v. Fort, 443 F.2d at 682. This analysis, of course, cuts both ways. If a
committee has historically exercised investigative jurisdiction over a particular
subject, and makes the nexus between its investigative jurisdiction and the
particular subject matter clear, the courts may hesitate to second guess to that
judgment. See, e.g., Barenblatt v. United States, 360 U.S. at 119-20. On the
other hand, if the committee has not previously asserted investigative jurisdic­
tion over the subject matter, and the subject matter to is not clearly linked to the
committee’s jurisdiction, the courts may lean to in favor of protecting the
34 B ecause th e legality o f the com m ittee’s action is ju d g e d as o f the tim e the w itness defies the subpoena, a
subsequent vote by the full House to e n fo rc e the subpoena (through contem pt or otherw ise) will not cure any
jurisd ictio n al defect. Gojack , 384 U.S. a t 175 n.12.
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witness’ prerogative to refuse to testify, particularly if constitutional interests
are implicated.35 See Tobin v. United States, 306 F.2d at 275-76.
The courts have also suggested that the power of either the witness or the
court to define for itself the scope of a committee’s jurisdiction is limited. In
Barenblatt, 360 U.S. at 124, the Court noted that it “goes without saying that
the scope of the Committee’s authority was for the House, not a witness, to
determine, subject to the ultimate reviewing responsibility of this Court.”
Similarly, “it is appropriate to observe that just as the Constitution forbids the
Congress to enter fields reserved to the Executive and Judiciary, it imposes on
the Judiciary the reciprocal duty of not lightly interfering with Congress’
exercise of its legitimate powers.” Hutcheson v. United States, 369 U.S. 599,
622 (1962). See also McSurely v. McClellan, 521 F.2d 1024, 1038 (D.C. Cir.
1975) (prerogative of the judiciary to determine whether the investigation is
within the jurisdiction of a particular committee is “extremely limited”).
Nevertheless, it is clear that a witness may refuse to answer on the ground
that the inquiry has not been authorized by the relevant House. Particularly
where constitutional concerns are raised by compelled testimony, courts may
be reluctant to countenance a far-ranging inquiry by a particular committee or
subcommittee that does not appear to fall within the jurisdiction granted by
Congress.
2. Executive Privilege
Finally, the subpoena could be resisted on the ground that the information
requested is protected by the executive privilege. It is important to remember,
however, that assertion of the privilege does not just involve an evaluation of
the Executive Branch’s interest in keeping the information confidential; it also
involves an evaluation of the strength of Congress’ need for that information,
and whether those needs can be accommodated in some other way.
Thus, Congress must be able to articulate its need for the particular materials
— to “point[ ] to . . . specific legislative decisions that cannot responsibly be
made without access to materials uniquely contained” in the presumptively
privileged documents (or testimony) it has requested, and to show that the
material “is demonstrably critical to the responsible fulfillment of the
Committee’s functions.” Senate Select Committee on Presidential Campaign
Activities v. Nixon, 498 F.2d at 731, 733. In Senate Select Committee, for
example, the court held that the committee had not made a sufficient showing
of need for copies of the Presidential tape recordings, given that the President
had already released transcripts of the recordings. The committee argued that it
33 The judicial decisions dealing w ith C ongress’ subpoena authority have for the most part involved refusals
by private individuals to testify. In those cases the courts have been sensitive to First, Fourth, and Fifth
A m endm ent concerns raised by the defendants, and have weighed those interests in the balance in determ in­
ing how specific Congress must be in authorizing a com m ittee’s investigation. See, e.g.. United States v.
Rumely, 345 U.S. at 45; Watkins v. United States , 354 U.S. at 204-05. Although the constitutional interests
im plicated by a subpoena o f an executive branch official arise from A rticles 1 and II, rather than the Bill o f
Rights, a court should be equally sensitive to those constitutional concerns.
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needed the tape recordings “in order to verify the accuracy o f ’ the transcripts,
to supply the deleted portions, and to gain an understanding that could be
acquired only by hearing the inflection and tone of voice of the speakers. But
the court answered that in order to legislate a committee of Congress seldom
needs a “precise reconstruction of past events.” Id. at 732. “The Committee
has .. . shown no more than that the materials deleted from the transcripts may
possibly have some arguable relevance to the subjects it has investigated and to
the areas in which it may propose legislation. It points to no specific legislative
decisions that cannot responsibly be made without access to materials uniquely
contained in the tapes or without resolution of the ambiguities that the tran­
scripts may contain.” Id. at 733. For this reason, the court stated, “the need
demonstrated by the Select Committee . . . is too attenuated and too tangential
to its functions” to override the President’s constitutional privilege. Id.
Moreover, in cases in which Congress has a legitimate need for information
that will help it legislate and the Executive Branch has a legitimate, constitu­
tionally recognized need to keep information confidential, the courts have
referred to the obligation of each branch to accommodate the legitimate needs
of the other. See United States v. AT&T Co., 567 F.2d 121, 130 (D.C. Cir.
1977).
Here, the considerations outlined above — particularly the need to preserve
the position of the Executive Branch as the sole entity that enforces the
criminal laws — would weigh strongly in favor of nondisclosure by the
Executive Branch. Ultimately it would be those interests in maintaining confi­
dentiality that must be balanced against Congress’ interest in gaining access to
particular information for legitimate legislative purposes. As noted above, it is
difficult for us to speculate as to what legitimate interests Congress would have
in gaining access to the details o f a prosecutorial decision made by the Attorney
General — a decision that Congress constitutionally could not alter or interfere
with. The decision to assert executive privilege in response to a congressional
subpoena, however, is the President’s to make. Under the terms of the Reagan
Memorandum, executive privilege cannot be asserted vis-a-vis Congress with­
out specific authorization by the President, based on recommendations made to
him by the concerned department head, the Attorney General, and the Counsel
to the President. That decision must be based on the specific facts of the
situation, and therefore it is impossible to predict in advance whether executive
privilege could or should be claimed as to any particular types of documents or
information.
C h a r l e s J. C o o p e r
Assistant Attorney General
Office o f Legal Counsel
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