Proposed Legislation to Grant Additional Power to the President's Commission on Organized Crime ( 1983 )

Proposed Legislation to Grant Additional Power to
The President’s Commission on Organized Crime
The President’s Com m ission on O rganized Crime, a Presidential advisory committee with
m em bers from the Legislative and Judicial Branches, may be granted subpoena power without
violating the Appointm ents Clause, U.S. Const, art. II, § 2, cl. 2, or the Incompatibility
Clause, id., art. I, § 6, cl. 2. As statutory aids to its investigation, the Commission should also
seek the pow er to adm inister oaths and to have false statem ents punished as perjury.
C onstitutional and policy concerns m ilitate against seeking independent authority for the Com ­
m ission to enforce subpoenas by holding individuals in contem pt, or to grant use immunity.
The pow er to grant use immunity raises questions about the Com m ission’s advisory role and
the propriety o f service by members of the Legislative and Judicial Branches.
August 24, 1983
M em o ran d um O p in io n f o r t h e A s s o c ia t e A t t o r n e y G e n e r a l
On July 28, 1983, President Reagan established the President’s Commission
on Organized Crime (Commission), as an advisory committee under the Fed­
eral Advisory Committee Act (FACA), 5 U.S.C. app. I. See Exec. Order No.
12435,48 Fed. Reg. 34723 (1983). Its duties are purely investigatory in nature,
and will culminate in a final report to the President and the Attorney General.1
The Commission’s membership includes a federal judge, two members of
Congress and numerous private citizens.2
1 As stated in § 2(a) o f the Executive O rder:
The C om m ission shall m ake a full and com plete national and region-by-region analysis o f organized crime;
d efine th e nature o f traditional organized c rim e as w ell as em erging organized crim e groups, the sources and
am ounts o f organized crim e ’s income, an d the uses to which organized crim e puts its income; develop in-
depth inform ation on the participants in o rganized crim e netw orks; and evaluate Federal laws pertinent to the
effo rt to com bat organized crim e. The C om m ission shall advise the President and the A ttorney G eneral with
respect to its findings and actions which c an be undertaken to improve law enforcem ent efforts directed
against organized crim e, and m ake recom m endations concerning appropriate adm inistrative and legislative
im provem ents and im provem ents in the adm inistration o f justice.
2 See L eslie M aitland W em er, President C hooses 20 as M em bers o f O rganized Crime Commission, N.Y.
T im es, Ju ly 19, 1983, at A l, col. 2. T h e m em bers include Judge Irving R. Kaufman, Senator Strom
T hurm ond, R epresentative Peter W. R odino. Jr., form er Suprem e Court Justice Potter Stew art, as well as
sixteen o th er individuals draw n from o u tsid e the federal governm ent. As this office has stated on many
occasions, m em ber o f C ongress and federal ju d g es may sit on purely advisory com m ittees w ithout violating
eith e r the A ppointm ents C lause, U.S. C onst, art. II, § 2, cl. 2, o r the Incom patibility Clause, id., art. I, § 6, cl.
2. M em bership on a purely advisory com m ittee does not constitute holding an “O ffice” under the Constitu­
tion because such com m ittees possess no enforcem ent authority o r pow er to bind the Government. See 26 Op.
A tt’y G en. 247 (1907); 24 Op. A tt’y Gen. 12 (1902); 22 Op. A tt’y Gen. 184 (1898); H.R. Rep. No. 2205, 55th
Continued
128
Pursuant to your request, this memorandum addresses the issue of what
additional powers the Commission might seek from Congress as aids to its
investigation. Of the five that have been suggested — the power to issue
subpoenas, to administer oaths, to hold individuals in contempt, to grant
individuals immunity, and to have false statements to the Commission be
subject to prosecution for perjury — we believe that the Department should
only seek the powers to issue subpoenas and administer oaths and to have false
statements punished as perjury.
I. The Power to Issue Subpoenas and Administer Oaths
A subpoena is a formal demand that instructs an individual to produce either
testimonial or documentary evidence.3 Some have suggested that the grant of
subpoena powers will in some fashion preclude the Commission from being a
purely advisory body. We disagree. As discussed below, the subpoena power
has been used by all three branches of the Government and by the public as an
investigative tool. Issuing a subpoena is not a purely executive function which
may only be exercised by officers of the Government nor is it a coercive or
adjudicatory power that may only be exercised by the judiciary. Rather, it is a
power that may be granted to those authorized to investigate, regardless of their
other functions.
Subpoena power has been granted to groups and individuals in many con­
texts. These include investigations conducted by members of all three branches
of the Government, i.e., Congress, 2 U.S.C. § 190m, the Judiciary, 43 U.S.C.
§ 1619(d)(8), and Executive Branch agencies, 49 U.S.C. § 12(1), as well as
civil suits where any party may request one. Fed. R. Civ. P. 45.4 Historically,
the power has also been given to some Presidential commissions.5
2 ( . . . continued)
Cong., 3d Sess. 4 8 -5 4 (1899); E. C orw in, Presidential Pow er and the C onstitution 73-74 (R . Loss ed. 1977).
For the discussion o f judges serving in the Executive Branch in more than advisory capacities, see Indepen­
dence o f Judges: Sh o u ld They Be Used fo r N on-Judicial W ork9, 33 A.B.A.J. 792 (1947). See also 40 Op.
A tt’y Gen. 423 (1945); M emorandum for Ramsey Clark, A ssistant A ttorney General, Lands Division from
Norbert A. Schlei, A ssistant A ttorney General, O ffice o f Legal Counsel (Nov. 27, 1963) (“W hether the
President should call upon Federal judges to engage in nonjudiciai functions fo r the Federal G overnm ent is
basically a m atter o f policy.”). Ironically, the very absence o f an Incom patibility Clause for judges m akes
them more vulnerable than Congressm en to criticism . Because they are able to accept positions in the
Executive B ranch, the public’s attention is focused on the issue and questions are raised about whether the
independence o f the judiciary is being compromised.
3 See, e.g., 1 U .S.C . § 2717 (investigation o f egg production by the Secretary of A griculture) (“For the
purpose o f such investigation, the Secretary is em pow ered to adm inister oaths and affirm ations, subpoena
witnesses, compel th eir attendance, take evidence, and require the production of any books, papers, and
docum ents which are relevant to the inquiry.” ).
4 O riginally, the courts resisted congressional grants o f subpoena power to agencies, see In re Pacific Ry.
C om m ’n, 32 F. 241 (N. C ir Ca. 1887), and for many years the Supreme C ourt read the grants restrictively.
Jones v. SEC, 298 U.S. 1 (1936); F T C v. Baltim ore G rain, 261 U.S. 5 86(1924). This attitude began to change
in the 1940s, how ever, and it is now firm ly settled that agencies may issue investigatory subpoenas that will
be enforced by the courts if the investigation is authorized and the inform ation sought is relevant. Oklahom a
Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946). See generally 3 B. Mezines, J. Stein, J. G ruff,
A dm inistrative Law § 20.01 (1982) (M ezines); K. D avis, A dm inistrative Law Treatise (1958) (Davis).
5 M ezines, supra note 4, § 19.01, at 192 n.2; infra notes 7, 8.
129
The reason that subpoena powers may be granted to so many diverse groups
without running afoul of either the Appointments Clause, U.S. Const, art. II,
§ 2, cl. 2, or the Incompatibility Clause, id., art. I, § 6, cl. 2, or the general
doctrine mandating separation of powers, is two-fold. First, the subpoena
power is not tied to any particular branch; it is not one of the functions
described by the Supreme Court as lodged exclusively in either the Executive,
the Judiciary or Congress. Buckley v. Valeo, 424 U.S. 1, 137-41 (1976).
Second, the power to issue a subpoena has not been viewed as the exercise of a
coercive power; thus, no matter what the issuing agent finds out, it cannot, in
the absence of any other power, use the information to do anything, such as
enact or execute a law, adjudicate a dispute, or otherwise “take any affirmative
action which will affect an individual’s rights.” Hannah v. Larche, 363 U.S.
420,441 (1960) (describing powers of the Civil Rights Commission). Thus, the
power to issue a subpoena does not intrude upon either the powers of a
particular branch or the legal rights of an individual. Although the document
issued is styled as a command, the issuing authority is in fact dependent upon
the courts for enforcement:
Though often complied with — to earn good will, for other
tactical reasons, or out of ignorance that no obligation has yet
attached — an agency subpoena typically has no independent
force . . . . The obligation to respond is determined only upon
judicial review of the underlying order.
W. Gellhom, C. Byse, P. Strauss, Adm inistrative Law 553-54 (1979). It is only
when we reach the issue of actually enforcing subpoenas, discussed below, that
constitutional issues about functions reserved to the individual branches arise.
Therefore, this Office has, on more than one occasion, approved the grant by
Congress of subpoena powers to Presidential commissions that are purely
advisory in nature and that have members of the Legislative or Judicial Branch
on them. For example, in 1963 this Office approved a bill establishing the
Commission on Political Activity of Government Personnel, 5 U.S.C. App.
§ 118i note (Supp. II 1965-66), a commission composed of at least four
congressmen and two members of the Executive Branch and charged with
investigating federal laws that limited political activity by federal employees.
Pub. L. No. 89-617, §§2, 7, 80 Stat. 868 (1966).6 The Commission was
granted subpoena powers, id. § 8(a), and we were specifically asked whether
the presence of congressmen created any legal problems. Our response was
clear: “We are not aware of any grounds, based upon legal, constitutional or
policy considerations, upon which to question the provisions of § 8(a).” Memo­
randum for Nicholas deB. Katzenbach, Deputy Attorney General from Norbert
A. Schlei, Assistant Attorney General, Office of Legal Counsel (Dec. 20, 1963).7
6 M em orandum fo r N icholas deB. K atzenbach, D eputy A ttorney G eneral from N orbert A. Schlei, A ssistant
A ttorney G eneral, O ffice o f Legal Counsel (M ay 1, 1963).
7 In passing, w e pointed out two sim ilar com m issions th at had had subpoena pow ers — the Hoover
C om m ission, and the C om m ission on Intergovernm ental R elations. See Pub. L. No. 8 3 -1 8 4 ,2 , 3, 67 Stat.
C ontinued
130
We have reached the same conclusion where the Commission includes mem­
bers of the Judiciary, such as the Warren Commission.8 Memorandum for J.
Lee Rankin, General Counsel, The President’s Commission from Norbert A.
Schlei, Assistant Attorney General, Office of Legal Counsel (Jan. 16, 1964).
An earlier commission headed by a judge was the Commission to Investigate
the Japanese Attack of December 7, 1941, on Hawaii, chaired by Associate
Justice Owen J. Roberts. Exec. Order No. 8983, 3 C.F.R. 1046 (1938-1943
Comp.); Pub. L. No. 77-370, 55 Stat. 853 (1941) (granting subpoena powers).
See also National Commission on the Causes and Prevention of Violence,
Exec. Order No. 11412, 3 C.F.R. 726 (1966-70 Comp.); Pub. L. No. 90-338,
82 Stat. 176 (1968) (Judge A. Leon Higginbotham, Jr.).
We believe, therefore, that it is permissible for the Department to seek
subpoena powers for the Commission. There is no difficulty with the members
of the Commission also being given the power to administer oaths. This is
commonly included when Congress grants the power to issue subpoenas.9 The
power to administer oaths is useful not only in creating an air of serious
purpose but also in bringing peijury charges.
n . The Power to Enforce Subpoenas by Holding
an Individual in Contempt
When an individual refuses to comply with a subpoena, an agency must go to
court, represented either by agency lawyers or by the Attorney General, to have
it enforced.10 We do not believe that the Department should seek independent
contempt authority for the Commission — i.e., legislation that would permit
7 ( . . . continued)
142, 143 (1953) (C om m ission on the O rganization o f the Executive Branch o f the G overnm ent); Pub. L. No.
83-185, § 2, 67 Stat. 145 (1953). See also President’s C om m ission on the A ccident at Three M ile Island,
Exec. O rder No. 12130, 3 C.F.R. 380 (1980 C om p.); Pub. L. No. 96 -12, 93 Stat. 26 (1979) (granting
subpoena powers); C om m ission on Security and C ooperation in Europe, 22 U .S.C. § 3001 (1976); National
C om m ission on Electronic Fund Transfers, 12 U.S.C. § 2401 (1976); C om m ission on Federal Paperw ork, 44
U.S.C. § 3501 note (1976); C om m ission on G overnm ent Procurem ent, 41 U.S.C. § 251 note (1970); C om m it­
tee to Investigate Federal Expenditures, 26 U .S.C. § 3600 (1946); Tem porary National Econom ic C om m ittee,
Pub. L. No. 7 5-456, 52 Stat. 705 (1938).
8 The W arren Com m ission was form ally known as the C om m ission to Report Upon the A ssassination of
President John F. K ennedy, Exec. O rder No. 11130, 3 C.F.R. 795 (1 959-63 Com p.). Subpoena pow ers were
granted in Pub. L. No. 8 8 -2 0 2 , 77 Stat. 362 (1963).
9 See, e.g., 25 U .S.C. § 174 note (1976), where the A m erican Indian Policy Review C om m ission is granted
the power:
to adm inister such oaths and affirm ations and to take such testim ony . . . as it deem s advisable
. . . . The Chairm an o f the C om m ission o r any m ember thereof may adm inister oaths or
affirm ations to w itnesses.
Id.\ Pub. L. No. 9 3 -5 8 0 , § 3(a), 88 Stat. 1910 (1975).
10 As a general rule, application is m ade to the ju d g e for an order directing the subpoenaed individual to
comply. W. G ellhom , C. Byse, P. Strauss, Adm inistrative Law 573 (1979). If that o rder is ignored, a separate
proceeding is held to determ ine w hether the individual should be held in contem pt for failure to obey the
court order. Id. Som e statutes com press these two steps into a one-stage proceeding in w hich the agency
certifies to the court that its subpoena has been disobeyed; then the court is supposed to hold a summary
hearing to determ ine if this is true and, if so, to punish as for contem pt o f court. Id. at 575. “In actuality, the
courts behave under these statutes ju st about as they do in the tw o-stage proceedings discussed earlier.'’ Id.
131
the Commission to hold individuals in contempt on its own motion — because
of both constitutional and policy objections.
In 1894, the Supreme Court stated that the Interstate Commerce Commission
could not, consistent with due process, enforce its own subpoenas by being
given the power to commit or fine people for disobedience. ICC v. Brimsort,
154 U.S. 447 (1894). Brimson involved the issue of whether Congress had the
authority to authorize the ICC to enforce its subpoenas in court. In concluding
that it did, the Court appeared to say that in fact only the courts could enforce
the subpoenas:
The inquiry whether a witness before the Commission is bound
to answer a particular question propounded to him, or to pro­
duce books, papers, etc., in his possession and called for by that
body, is one that cannot be committed to a subordinate adminis­
tration or executive tribunal for final determination. Such a body
could not, under our system of government, and consistently
with due process law, be invested with authority to compel
obedience to its orders by a judgment of fine or imprisonment.
Except in the particular instances enumerated in the Constitu­
tion, and considered in Anderson v. Dunn, 6 Wheat. 204, and in
K ilbou m v. Thompson, 103 U.S. 168, 190, of the exercise by
either house of Congress of its right to punish disorderly behav­
ior upon the part of its members, and to compel the attendance of
witnesses, and the production of papers in election and impeach­
ment cases, and in cases that may involve the existence of those
bodies, the power to impose fine or imprisonment in order to
compel the performance of a legal duty imposed by the United
States, can only be exerted, under the law of the land, by a
competent judicial tribunal having jurisdiction in the premises.
See W hitcom b’s Case, 120 Mass. 118, and authorities there
cited.
Id. at 485. Since then, Congress has consistently required agencies to apply to
the courts for an order to compel compliance with a subpoena. It has “never”
conferred the power to enforce a subpoena on an issuing agency. L. Jaffe & N.
Nathanson, Administrative L aw 439 (1976). Thus, there has been no occasion
for the Court to re-examine the issue of whether the dictum in Brimson is still
good law.
There has been continuing debate on the issue among the commentators.11
B rim son’s analysis appears to rest upon the idea “that the contempt power is
necessarily judicial, and [yet] the Supreme Court has unanimously held that
legislative bodies may punish for contempt.” 12 One commentator has noted
11 See D avis, supra note 4, at 214-15; N o te, Use o f Contem pt Pow er to Enforce Subpoenas a nd Orders o f
A dm in istra tive A gencies, 71 Harv. L. Rev. 1541 (1958).
12 D avis, su p ra note 4, at 214 (citing J u m e y v. M acCracken, 294 U.S. 125 (1935) and M cG ram v.
D augherty, 273 U.S. 135 (1927)).
132
that grants of contempt power to both Congress and the courts are grounded in
expediency, not in the particular nature of the power:
The power of contempt is said to inhere in courts only because
they must have it to perform their functions. The judicial exten­
sion of the power to Congress was justified solely on grounds of
expediency. To the extent, therefore, that the agency requires the
contempt power for the proper performance of its duties, the theo­
retical argument seems as strong as that which justifies the existence
of the contempt powers of the other branches of government.
Note, Use o f Contem pt Power to Enforce Subpoenas and Orders o f Adminis­
trative Agencies, 71 Harv. L. Rev. 1541, 1551 (1958) (footnotes omitted). At
least one federal court, irritated by the delay engendered by resistance to
agency subpoenas, has criticized the continued denial of contempt power to
federal agencies.13 The fact remains, however, that Brimson is the Supreme
Court’s last word on the subject and in that case the Court did distinguish Congress’
contempt power as being rooted in the Constitution and historical precedent.
Although modem legal theory is less hostile to agency action than when
Brimson was decided, there is at the same time more sensitivity to arguments
that due process requires that the prosecutor not also be the judge.14 We are
reluctant to advise that it is permissible to seek contempt authority for the
Commission. This is especially true when there is no need to press for this
extraordinary power. Other Presidential commissions, charged with equally
important tasks, have been able to rely on the courts to enforce their subpoenas.
Likewise, federal agencies have functioned to Congress’ satisfaction for de­
cades without this power. Moreover, there are policy objections to seeking the
authority. Requesting contempt power would be very controversial, endanger­
ing the Department’s ability to secure the most important part of the legislation
— the subpoena power. Traditional notions of fair play and substantial justice,
as well as concerns about the separation of powers, tend to militate against, at
least on policy grounds, granting such a power to a Commission composed, as
this one is, of members from all three branches of the federal government.
In fact, over the years Congress has decided that agencies should not have
the power, perhaps in part due to a concern that agencies will misuse it, as the
judiciary and legislatures themselves at times have done.15 As Justice Frank­
furter observed:
13 Federal M aritim e Comm 'n v. New York Term inal Conference, 373 F.2d 424 (2d Cir. 1967). Judge
Friendly said:
Congress m ight w ell consider w hether the long record o f frustrations and less restrictive m odem
notions o f the separation o f pow ers m ight not make it wise to em pow er at least some adm inistra­
tive agencies to enforce subpoenas without having to resort to the courts in every case.
Id. at 426 n.2 (citations om itted). Some states have given their agencies the pow er to punish for contem pt
w hile others have denied it. D avis, supra note 4, at 215.
14 See, e.g.. W ard v. Village o f M onroeville, 409 U.S. 57 (1972); M orrissey v. Brewer, 408 U.S. 471, 4 8 5 -
86(1972 ).
15 See, e.g.. H olt v. Virginia, 381 U.S. 131 (1965) (state court); Groppi v, Leslie, 404 U.S. 496 (1972)
(W isconsin legislature).
133
Beginning with the Interstate Commerce Act in 1887, it became
a conventional feature o f Congressional regulatory legislation to
give administrative agencies authority to issue subpoenas for
relevant information. Congress has never attempted, however,
to confer upon an administrative agency itself the power to
compel obedience to such a subpoena. It is beside the point to
consider whether Congress was deterred by constitutional diffi­
culties. That Congress should so consistently have withheld
powers of testimonial compulsion from administrative agencies
discloses a policy that speaks with impressive significance.
Pennfield Co. v. SEC, 330 U.S. 585,603-04 (1947) (Frankfurter, J., dissenting)
(dictum). It is unlikely that Congress, having denied the power to permanent
agencies — including those with quasi-judicial functions — for almost one
hundred years, is going to confer such power on a temporary advisory commis­
sion. Requesting the authority would suggest to Congress either a disquieting
ignorance of historical precedent or a presumptuous disregard of it. We do not
believe the Department should ask Congress to grant contempt power to the
Commission.
III. The Power to Grant Immunity
It has also been suggested that the Department ask that the Commission be
given the power to grant “use” immunity.16 We assume that this would be done
by adding the Commission to the list of authorized agencies in 18 U.S.C.
§6001(1).17 Authorized agencies may, with the approval of the Attorney
General, issue an order to an individual who is claiming his Fifth Amendment
privilege, requiring him to testify.18 Information derived from such testimony
is barred from use against the witness in any criminal case.
16 “U se” im m unity provides immunity from prosecution based on the com pelled testimony o r evidence
derived from th at testim ony, as distinguished from “transactional" im m unity, which grants full immunity
from prosecution o f the offense to which th e com pelled testim ony relates Use immunity was found to be
coextensive w ith the Fifth A m endm ent's guarantee against self>incnm ination in K astigar v U nited States,
406 U.S. 441 (1972).
17 C ongress enacted the present immunity statute in 1970. 18 U.S.C. §§ 6001-6005. Authorized agencies
are the basic executive and military departm ents, 5 U .S.C. §§ 101, 102, and about fifteen other agencies. 18
U .S.C . § 6 0 0 1 (1 ).
18 18 U .S .C § 6004 provides.
(a) In the case o f any individual w h o has been o r who may be called to testify or provide other
inform ation at any proceeding before an agency o f the U nited States, the agency may, w ith the
approval o f the A ttorney General, issue, in accordance w ith subsection (b) of this section, an
o rd er requiring the individual to g iv e testim ony o r provide other information which he refuses to
g ive o r provide on the basis of his privilege against self-incnm ination. Such order to become
e ffective as provided in section 6002 o f this part.
(b) An agency o f the United States may issue an order under subsection (a) of this section only
if in its ju d g m en t —
(1) the testim ony o r other inform ation from such individual may be necessary to the public
in terest; and
(2) such individual has refused o r is likely to refuse to testify o r provide other inform ation on
the basis o f his privilege against self-incrim ination
134
Although the grant of use immunity to witnesses has been described as an
executive function by some courts,19 it is not clearly executive in the sense
described in Buckley v. Valeo, 424 U.S. 1 (1976), because rather than being a
power committed wholly to the Executive Branch, it is a statutory creation that
has also been given to Congress and its committees. 18 U.S.C. § 6005.20 The
power to grant immunity is, however, a function that raises doubts about the
Commission’s role and the propriety of service on it by members of the
legislature. As noted above, see supra note 2, we have described advisory
committees as those that do not have the power to bind the Government. The
power to grant use immunity is the power to bind the Government not to
prosecute an individual for criminal conduct revealed through his testimony.
Although it may not be an executive function for Congress to grant immunity
for testimony heard pursuant to a legislative investigation, it may be an execu­
tive function for the Commission to grant immunity to witnesses in the course
of an Executive Branch investigation. Executive functions may be performed
only by officers of the government — which Congressmen may not be. Were a
court to conclude that the Congressmen were without authority either to sit on
the Commission or to vote on the grants of immunity, the work of the Commis­
sion could be imperiled. A court might nullify grants of immunity or restrict the
Congressmen’s role on the Commission. The same arguments can be made
with respect to judges because the judiciary has neither inherent nor statutory
power to grant immunity for judicial investigations.
The power to grant immunity is inevitably tied to prosecutorial decisions.
This is especially true when the Commission is charged with investigating an
area of special concern to federal prosecutors, such as organized crime. If, as
seems likely, the Commission calls as a witness someone who has evidence of
a crime or is the target of an ongoing criminal investigation, there are several
ways a grant of immunity by the Commission might interfere with the
Department’s ability to prosecute. Most obviously, granting immunity could
deprive the Department of a desired conviction by immunizing the witness.
Given the current trend towards complicated, multi-year undercover opera­
tions, the Attorney General’s statutory veto power, 18 U.S.C. § 6004(b), does
not solve the problem. Even refusing to concur may alert an individual to the
fact that he is the target of an ongoing or proposed investigation. Moreover,
given the Commission’s advisory nature, there is much less chance that there
will be effective coordination with the Department’s many units, scattered
across the country, in order to avoid entanglement with such investigations.
That the Department may have built a complete case without the compelled
testimony — and, therefore, still be able to prosecute — is small comfort
19 See U nited States v. D 'A spice, 664 F.2d 75, 77 (5th Cir. 1981) (judiciary has no inherent pow er to grant
use immunity); U nited States v. Lenz, 616 F 2d 960, 962 (6th Cir.), cert, denied, 447 U.S. 929 (1980)
20 The im m unity statute covers only use immunity. If the statute granted transactional immunity, there
would be a serious constitutional problem. G ranting transactional immunity means that the individual cannot
be prosecuted for the illegal conduct. We believe that the decision to grant transactional im m unity is
essentially a decision not to prosecute, and the decision w hether to prosecute is an executive function in the
Buckley sense. 424 U.S. at 138.
135
because the individual will undoubtedly try to prove that the case is derived
from the compelled testimony and the burden of proof will be on the govern­
ment to show the independent derivation of the case. See, e.g., United States v.
Provenzano, 620 F.2d 985, 1005 (3d Cir.), cert, denied, 449 U.S. 889 (1980).
Thus, a straightforward prosecution could suddenly be jeopardized by the
intrusion of an unnecessary hurdle. We believe that this issue should be
carefully reviewed before any final decision is made.
The same policy rationale that argues against seeking contempt powers also
argues against seeking immunity. The power to grant immunity is an extraordi­
nary tool given to a small core group of Executive Branch agencies, whose use
should be carefully guided by consideration of potential or ongoing investiga­
tions. Obviously, the Commission might discover more if given the right to
grant immunity; nevertheless, other Presidential commissions have done their
work satisfactorily without it, and its availability seems unnecessary in light of
the Commission’s generally phrased task. We would strongly urge that the
Department not seek the power to grant immunity for the Commission.
IV. IPirosecunttnoini for Perjury
There are presently two general statutes covering peijury and subornation of
perjury. 18 U.S.C. §§ 1621, 1622.21 Although these two statutes are occasion­
ally incorporated by reference in statutes dealing with particular programs, see,
e.g., 30 U.S.C. §49e; 8 U.S.C. § 1357(b), they may also be referred to by
implication where, for example, a specific statute will merely say that the
“person so falsely swearing shall be deemed guilty of peijury.” 46 U.S.C.
§ 170(13). See also 22 U.S.C. § 4221. Other statutes set up their own punish­
ments for false statements. See 18 U.S.C. § 1546. Which course to adopt would
appear to be a policy choice but we would suggest that the litigating divisions,
especially the Criminal Division, be consulted. If it is decided to rely on the
general peijury statute, we are not aware of any reason why the Commission
21 18 U .S.C . § 1621 states:
W hoever —
(1) having taken an oath before a com petent tribunal, officer, or person, in any case in which a
law o f the U nited States authorizes an oath to be adm inistered, that he will testify, declare,
depose, o r certify truly, or that an y w ritten testim ony, declaration, deposition, or certificate by
him subscribed, is true, willfully an d contrary to such oath states or subscnbes any material
m atter w hich he does not believe to be true; o r
(2) in any d eclaration, certificate, verification, o r statem ent under penalty o f perjury as
p erm itted under section 1746 o f title 28, U nited States Code, w illfully subscribes as true any
m aterial m atter w hich he does not believe to be true; is guilty o f peijury and shall, except as
otherw ise expressly provided by la w , be fined not m ore than $2,000 o r imprisoned not more than
five y ears, o r both. T his section is applicable w hether the statem ent or subscription is made
w ithin o r w ithout the United States.
18 U .S .C . § 1622 states:
W hoever procures an o th er to commit an y peijury is guilty o f subornation o f peijury, and shall be fined not
m ore than $2,000 o r im prisoned not m ore than five years, o r both.
See a lso 28 U .S.C . § 1746 (making unsw orn statem ents subject to punishm ent for perjury).
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would not fall within the category of “competent tribunal.”22 Nevertheless, we
recommend that any proposed legislation include a specific provision referring
to 18 U.S.C. § 1621 to eliminate any doubt that the general statute applies.23
V. Possible Phrasing of Legislation
Grants of subpoena power vary, both in specificity and in the limits placed
upon the grants.24 The basic grant, which also includes the administration of
oaths, is often phrased in terms similar to the following:
The Commission shall have the power to issue subpoenas re­
quiring the attendance and testimony of witnesses and the pro­
duction of any evidence that relates to any matter under investi­
gation by the Commission. The Commission or any member of
the Commission may administer oaths and affirmations, exam­
ine witnesses, and receive evidence. Such attendance of wit­
nesses and the production of such evidence may be required
from any place within the United States at any designated place
of hearing.
The next paragraph will generally cover the contempt power.
In case of contumacy or refusal to obey a subpoena issued to any
person under the previous paragraph, any district court of the
United States, upon application by the Attorney General, shall
have jurisdiction to issue to such person an order requiring a
witness to appear before the Commission or its members, there
to produce evidence if so ordered, or there to give testimony
touching the matter under investigation or in question; and any
failure to obey such order of the court may be punished by the
court as a contempt thereof.
This basic formula can be varied in many ways: by permitting individual
Commission members, when authorized, to issue subpoenas;25 by limiting the
subpoena to witnesses only, not documents;26 by expanding the courts to which
22 Testimony before investigative com m ittees has often resulted in perjury convictions. See U nited States v.
Haldeman, 559 F.2d 31, 102-04 (D.C. Cir. 1976) (Senate Select Com m ittee on Presidential C am paign
Activities), cert, denied, 431 U.S. 933 (1977); M eyers v. United States, 171 F.2d 800, 811 (D.C. Cir. 1948)
(Senate subcom m ittee), cert, denied, 336 U.S. 912 (1949); Boehm v. U nited States, 123 F.2d 791, 800-01
(8th Cir. 1941) (SEC ), cert, denied, 315 U.S. 800 (1942); State v. Reuther, 81 So. 2d 387, 388-89 (La. 1955)
(Special C itizens Investigating Com m ittee).
23 Competence may also be affected by procedural requirem ents. For exam ple, for a legislative com m ittee
to be com petent, a properly constituted quorum must be present. See C hristojfel v. U nited States, 338 U .S. 84
(1949); United S tates v. Reincke, 524 F.2d 435, 437 (D.C. Cir. 1975).
24 Compare 5 U .S.C. § 8126(1) (Secretary o f Labor) w ith 22 U.S.C. § 1623(c) (Foreign Claims Settlem ent
Commission).
25 Pub. L. No. 9 6 -1 2 , § 2(a), 93 Stat. 26 (1979). A lternatively, issuance o f subpoenas by the Com m ission
could be made pursuant to a vote o f tw o-thirds or three-quarters o f the members, rather than a simple
majority.
26 5 U.S.C. § 304(a).
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the Attorney General may apply;27 by limiting the distance witnesses may be
forced to travel;28 or by permitting witnesses to be excused by the court if the
required testimony or evidence would tend to incriminate them or subject them
to a criminal penalty.29 The method of service may also vary,30 and the
payment of witness fees may be specifically included.31 The Commission may
be permitted to apply to the court for enforcement of the subpoena through its
own staff attorneys, rather than through the Attorney General.32 Which of these
items to include is obviously a policy choice.33
Conclusion
The Commission may be given subpoena powers by Congress without
casting any doubt on the propriety of the service of either Judge Kaufman,
Senator Thurmond or Representative Rodino. We do not believe that the
Department should seek contempt or immunity powers for the Commission.
Whichever powers are sought, care should be taken that their use does not raise
any suggestion that the Commission is targeting particular individuals. Courts
have in various contexts been critical of the practice of parallel civil and
criminal investigations because of their concern that information obtained in
one context will be improperly used to aid an investigation.34 As we understand
it, the Commission’s mandate is to survey the general nature of organized
crime, not to uncover its members, and the prudential use of whichever powers
are granted should protect against accusations that the Commission is being
used as a stalking horse for the Department’s own investigations.
Ra lph W . T arr
D eputy Assistant Attorney General
Office o f Legal Counsel
11 Pub. L. No. 9 6 -1 2 , § 2(c), 93 Stat 26 (1979) (any court o f the United States); 7 U.S.C § 2917 (any court
o f the U nited States w ithin w hose jurisd ictio n the investigation is being earn ed on); Pub. L. No. 94-106,
§ 816(d)(2), 89 Stat. 540 (1975) (any d istric t court fo r any district in w hich the person is found, resides or
does business).
28 42 U .S.C . § 1975a(k) (w itness may n o t be forced to travel outside his State unless distance is 50 miles or
less).
29 Pub. L. No. 9 3 -5 5 6 , § 6(b)(3), 88 S tat. 1789 (1974).
^ M e z in e s , supra note 4, at 20-51.
3142 U .S.C . § 2201(c).
32 7 U .S.C . § 2917; 42 U .S.C . § 6299(a). T he obvious disadvantage o f Congress granting such perm ission is
a loss o f D epartm ent control over the C om m ission’s activities, particularly in cases in which coordination is
necessary to facilitate a crim inal investigation o r prosecution not involved with the C om m ission's area of
inquiry.
33 In addition to these item s, Congress m ay also consider adding restraints sim ilar to those placed on the
C ivil R ights C om m ission, w hich must, am o n g other things, perm it w itnesses to present a written statement,
be represented by counsel and to answer defam atory o r degrading evidence. 42 U.S.C. § 1975a(c), (e), (h).
34 U nited States v. Sells E n g ’g, 463 U.S. 418 (1983); U nited States v. LaSalle N a t'l Bank. 437 U.S. 298(1978).
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