Prosecutorial Discretion Regarding
Citations for Contempt of Congress
A United States Attorney to whom a contempt of Congress citation is referred retains
traditional prosecutorial discretion regardless of whether the contempt citation is
related to an assertion of executive privilege.
June 16, 2014
LETTER OPINION FOR THE UNITED STATES ATTORNEY
FOR THE DISTRICT OF COLUMBIA
This letter responds to an inquiry sent to our Office on your behalf on
May 22, 2014. See E-mail for Karl R. Thompson, Principal Deputy Assis-
tant Attorney General, Office of Legal Counsel, from Matthew Jones,
Counsel to the United States Attorney, Office of the U.S. Attorney for the
District of Columbia (May 22, 2014) (“Jones E-mail”). The inquiry indi-
cates that you have reviewed a 1984 OLC opinion entitled Prosecution for
Contempt of Congress of an Executive Branch Official Who Has Asserted
a Claim of Executive Privilege,
8 Op. O.L.C. 101 (1984) (“1984 Opin-
ion”). That opinion concluded (among other things) that a United States
Attorney is not required by “the criminal contempt of Congress statute,
2 U.S.C. §§ 192, 194, . . . [to] prosecute or refer to a grand jury a citation
for contempt of Congress issued with respect to an Executive Branch
official who has asserted a claim of executive privilege in response to
written instructions from the President of the United States.” Id.; see also
id. at 102, 128. Having reviewed that opinion, you have asked whether
this prosecutorial discretion is limited to circumstances in which the
conduct cited for contempt is based on a claim of executive privilege, or
whether it is also available when a United States Attorney concludes,
following a review of the factual and legal sufficiency of the contempt
citation, that no violation of the law has occurred for reasons other than an
assertion of executive privilege.
In our view, the 1984 Opinion resolves your question, and concludes
that a United States Attorney to whom a contempt of Congress citation is
referred retains traditional prosecutorial discretion regardless of whether
the contempt citation is related to an assertion of executive privilege. The
1984 Opinion considered two distinct questions. “The first specific ques-
tion [was] whether the United States Attorney is required to refer every
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38 Op. O.L.C. 1 (2014)
contempt of Congress citation to a grand jury.”
Id. at 118. The second
question was, “aside from the issue of prosecutorial discretion, whether
the criminal contempt of Congress statute is intended to apply, or consti-
tutionally could be applied, to Presidential claims of executive privilege.”
Id. at 129. In our view, your question is resolved by the 1984 Opinion’s
analysis of the first question. The opinion concludes that, “as a matter of
statutory construction strongly reinforced by constitutional separation of
powers principles, we believe that the United States Attorney and the
Attorney General, to whom the United States Attorney is responsible,
retain their discretion not to refer a contempt of Congress citation to a
grand jury.”
Id. at 128.
In reaching this conclusion, the 1984 Opinion first clarified that, “as a
matter of statutory interpretation, there is no doubt that the contempt of
Congress statute does not require a prosecution” because it
does not on its face actually purport to require the United States At-
torney to proceed with the prosecution of a person cited by a house
of Congress for contempt; by its express terms the statute discusses
only referral to a grand jury. Even if a grand jury were to return a
true bill, the United States Attorney could refuse to sign the indict-
ment and thereby prevent the case from going forward.
Id. at 118. Thus, “the only question is whether [the contempt provision]
requires referral to the grand jury.”
Id.
Turning to this question, the 1984 Opinion concluded that the statute
does not require United States Attorneys to refer contempt of Congress
citations to a grand jury, for four main reasons. First, the Justice Depart-
ment had previously taken the position that the contempt provision did not
require referral to a grand jury, including in connection with contempt
citations of officials of the Port of New York Authority.
Id. at 119–20.
(Notably, there had been no assertion of the President’s executive privi-
lege in that matter. See United States v. Tobin,
195 F. Supp. 588, 596–97,
608–09 (D.D.C. 1961), rev’d,
306 F.2d 270, 271–72 (D.C. Cir. 1962).)
Second, judicial opinions interpreting the language of section 194 in
other contexts reflected an understanding that the United States Attorney
retains discretion not to make a referral to the grand jury, despite the
apparently mandatory language of the statute. 1984 Opinion, 8 Op. O.L.C.
at 120–22. These contexts included consideration of whether the Speaker
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Prosecutorial Discretion Regarding Citations for Contempt of Congress
of the House’s duty to refer contempt citations to United States Attorneys
under section 194 is mandatory, see id. at 120–21 (discussing Wilson v.
United States,
369 F.2d 198 (D.C. Cir. 1966)), and rejection of private
parties’ motions to quash congressional subpoenas on the grounds that
those parties would have adequate opportunities to challenge any con-
tempt finding by, inter alia, persuading the U.S. Attorney not to refer the
citation to a grand jury, see
id. at 121–22 (discussing Ansara v. Eastland,
442 F.2d 751 (D.C. Cir. 1971), Sanders v. McClellan,
463 F.2d 894 (D.C.
Cir. 1972), and U.S. Servicemen’s Fund v. Eastland,
488 F.2d 1252 (D.C.
Cir. 1973), rev’d on other grounds,
421 U.S. 491 (1975)).
Third, “the common-law doctrine of prosecutorial discretion,” which
embodies a “wide scope of . . . discretion in determining which cases to
bring,” precluded interpreting the statute to “require[] automatic referral”
to the grand jury, at least in the absence of a “clearly and unequivocally
stated” congressional intent to displace the traditional prosecutorial dis-
cretion.
Id. at 122–24.
Finally, construing section 194 to permit the exercise of prosecutorial
discretion was “reinforced by the need to avoid the constitutional prob-
lems that would result if section 194 were read to require referral to a
grand jury.”
Id. at 124–25. A contrary construction, the opinion ex-
plained, would “create two distinct problems with respect to the [consti-
tutional] separation of powers”: it would both “strip[] the Executive of its
proper constitutional authority” and “vest[] improper power in Con-
gress,” in contravention of the principle that, as “[t]he courts have de-
clared,” “the ultimate decision with respect to prosecution of individuals
must remain an executive function under the Constitution.” Id. at 127;
see also, e.g., id. at 114–15 (citing Buckley v. Valeo,
424 U.S. 1, 138
(1976) (per curiam) (“A lawsuit is the ultimate remedy for a breach of
the law, and it is to the President, and not to the Congress, that the Con-
stitution entrusts the responsibility to ‘take care that the laws be faithful-
ly executed.’”), and Smith v. United States,
375 F.2d 243, 246–47 (5th
Cir. 1967) (recognizing that the Executive’s prosecutorial discretion not
to arrest or prosecute is rooted in the constitutional separation of pow-
ers));
id. at 126 (citing United States v. Nixon,
418 U.S. 683, 693 (1974)
(“the Executive Branch has exclusive authority and absolute discretion to
decide whether to prosecute a case”)).
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38 Op. O.L.C. 1 (2014)
We recognize that there are general caveats in the 1984 Opinion stating
that its conclusions are “limited to the unique circumstances” that
prompted it.
Id. at 102; see also
id. at 103, 142. We agree that the 1984
Opinion’s “general statements of legal principles should be applied in
other contexts only after careful analysis.”
Id. at 103. But it is a key
characteristic of “legal principles” that they can apply in cases other than
the specific ones in which they are stated as grounds for decision. And we
do not read the analysis supporting the 1984 Opinion’s conclusion regard-
ing prosecutorial discretion as turning on whether the conduct underlying
a contempt citation is based on an assertion of executive privilege. The
opinion does not state or suggest that the underlying basis for a contempt
citation must be analyzed in determining whether a prosecutor retains the
discretion not to refer a contempt citation to a grand jury. Nor does the
opinion state or suggest that the United States Attorney to whom a cita-
tion is referred would lack traditional prosecutorial discretion if the cita-
tion were not related to an assertion of executive privilege. As noted
above, the opinion describes and relies in part on a specific prior instance
in which the Justice Department declined to refer contempt citations to a
grand jury, in a case that did not involve a presidential assertion of execu-
tive privilege. See
id. at 119–20 (discussing contempt citations of Port of
New York Authority officials). And the cases the opinion cites in which
courts treated section 194 as if it did not make grand jury referrals manda-
tory involved situations in which the underlying contempt citations did
not concern executive privilege. See
id. at 121–22 (discussing Ansara,
442 F.2d 751, Sanders,
463 F.2d 894, and U.S. Servicemen’s Fund,
488
F.2d 1252). We therefore believe that the 1984 Opinion’s conclusion
regarding prosecutorial discretion—that U.S. Attorneys to whom con-
tempt of Congress citations are referred retain the traditional prosecutorial
discretion not to prosecute or refer those citations to a grand jury—applies
regardless of whether the contempt citations are related to an assertion of
executive privilege.
KARL R. THOMPSON
Acting Assistant Attorney General
Office of Legal Counsel
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