LC; :91/Y/33’ lQp‘/-.#r W3“ 53 H Report No. 86—83A 806/38 0 CONGRESS' CONTEMPT POWER by Jay R. Shampansky Legislative Attorney American Law Division February 28, 1986 ERGPERTY €H3QL§N Lifififlfifi’ gig;-gghéxgaznn Government Publications Umt AUG 0 4 1994 iwashmgm” 9”‘V9’SfTY Libraries 31- Louisa MO. 53130 \ ’§'L75'3:‘..’,3:‘Z*;".€’.;L"{'7; 7% JK 1000 C »IIIIMiwflififljmt@‘@@im@ifl@fl'1E1nu The Congressional Research Service works exclusively for the Congress, conducting research, analyzing legislation, and providing information at the request of committees, Mem- bers, and their staffs. The Service makes such research available, without parti- san bias, in many forms including studies, reports, compila- tions, digests, and background briefings. Upon request, CRS assists committees in analyzing legislative proposals and issues, and in assessing the possible effects of these proposals and their alternatives. The Service’s senior specialists and subject analysts are also available for personal consultations in their respective fields of expertise. ABSTRACT This report examines the source of the congressional contempt power, briefly reviews the historical development of early court decisions, out- lines the statutory and constitutional limitations on the contempt power, and analyzes the procedures associated with each of the three different types of contempt proceedings (inherent contempt, statutory criminal con- tempt, and statutory civil contempt) which can be employed; The last two sections of the report review the special procedural and constitutional problems encountered when the contempt power is used against an executive branch official. CRS-v EXECUTIVE SUMMARY Congress’ contempt power is the means by which Congress responds to certain acts which obstruct the legislative process in order to punish the contemnor and/or to remove the obstruction. In the last fifty years the contempt power has generally been employed only in instances of refusals of witnesses to appear before committees, to respond to questions, or to produce documents. In Kilbourn v. Thompson, 103 U.S. 168 (1881), the Supreme Court held that Congress has no power to probe into purely private affairs, such as the personal finances of an individual, on which legislation could not be enacted. The Court in that case was unwilling to concede that either House possessed a general power of punishing for contempt. The doubts raised by that case about the scope of the contempt power have essentially been removed by later cases sanctioning the use of the contempt power in investigations conducted pursuant to Congress‘ authority to discipline its Members, to judge the elections of its Members and, most importantly, in McGrain v. Daugherty, 273 U.S. 135 (1927), to legislate. In its opinion in McGrain, the Court considered the investigatory and contempt powers of Congress to be implicit in the grant of legislative power. Furthermore, the Court dis- tinguished Kilbourn, which was an investigation of personal affairs, from McGrain, which was a probe of the operation of the Justice Department. "Plainly the subject was one of which legislation could be had and would be materially aided by the information the investigation was calculated to elicit." ‘Id. at 177. There are three different kinds of contempt proceedings. Both the House and the Senate may cite a witness for contempt under their inherent contempt power or under a statutory criminal contempt procedure. The Senate also has a third option, a relatively new statutory civil contempt procedure. The inherent contempt power is not specifically granted by the Constitution, but is considered necessary for Congress to investigate and legislate effec- tively. Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned in the Capitol jail. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefi- nite period (but not, at least in the case of the House, beyond the end of the Congress) until he agrees to comply. When a witness is cited for con- tempt under the inherent contempt process, prompt judicial review is available by means of a petition for a writ of habeas corpus. In an inherent contempt proceeding, although Congress would not have to afford the contemnor the whole panoply of procedural rights available to a defendant in a criminal case, notice and an opportunity to be heard would have to be granted. Also, some of the requirements imposed by the courts under the statutory criminal contempt procedure might be mandated by the due process clause in the case of inherent contempt proceedings. The inherent contempt power has not been exercised by either House in fifty years because it has been considered to be cumbersome and time- consuming for a modern Congress with a heavy legislative workload that would be interrupted by a trial at the bar. CRS-vi Recognizing the problems with use of the inherent contempt pro- cess, a statutory criminal contempt procedure was enacted in 1857 which, with only minor amendments, is codified today as 2 U.S.C. §§ 192 and 194. Under 2 U.S.C. § 192, a person who has been subpoenaed to testify or pro- duce documents before the House or Senate or a committee and who fails to do so, or who appears but refuses to respond to questions, is guilty of a misdemeanor, punishable by a fine of up to $1,000 and imprisonment for up to one year. Section 194 establishes the procedure to be followed if the House or Senate refers a witness to the courts for criminal prose- cution. A contempt citation must be approved by the subcommittee, the full committee, and the full House or Senate (or by the presiding officer if Congress is not in session). The criminal procedure is punitive in nature. It is not coercive because a witness generally will not be able to purge himself by testifying or supplying subpoenaed documents after he has been voted in contempt by the committee and the House or the Senate. Under the statute, after a contempt has been certified by the President of the Senate or the Speaker, it is the "duty" of the U.S. Attorney "to bring the matter before the grand jury for its action." It remains un- clear whether the "duty" of the U.S. Attorney to present the contempt to the grand jury is mandatory or discretionary, since the sparse case law that is relevant to the question provides conflicting guidance. As an alternative to both the inherent contempt power of each House and criminal contempt, in 1978 Congress enacted a civil contempt procedure which is applicable only to the Senate. Upon application of the Senate, the federal district court is to issue an order to a person refusing, or threatening to refuse, to comply with a Senate subpoena. If the individual still refuses to comply, he may be tried by the court in summary proceed- ings for contempt of court, with sanctions being imposed to coerce his com- pliance. Civil contempt might be employed when the Senate is more concerned with securing compliance with the subpoena or with clarifying legal issues than with punishing the contemnor. Civil contempt can be more expeditious than a criminal proceeding and it also provides an element of flexibility, allowing the subpoenaed party to test his legal defenses in court without necessarily risking a criminal prosecution. Although the courts have upheld the authority of Congress to investi- gate and to cite a witness for contempt, they have also established limits, rooted both in the language of the criminal contempt statute and in the Constitution, on the investigatory and contempt powers. Pursuant to the statute, the courts have ruled that an individual cannot be held in contempt if the committee was not clearly authorized by its parent body to conduct the investigation or if the subject of the investigation was outside the scope of the committee's jurisdiction. Additionally, there must have been a legislative purpose for the investigation or it must have been conducted pursuant to some other constitutional power of the Congress. Also, the question which the witness refused to answer must have been pertinent to the committee's investigation, and the witness‘ refusal to answer or to produce documents must have been willful. CRS-Vii There are also constitutional limits on Congress‘ investigatory powers. The Supreme Court has held that the first amendment may be asserted in response to questioning by a comittee, but that it does not give a wit- ness an absolute right to refuse to respond to congressional demands for information. Where first amendment rights are claimed, the Court will balance the personal interest in privacy against the congressional need for the information. The fourth amendment's prohibition against unreasonable searches and seizures is applicable to congressional committees. It appears that probable cause must exist for the issuance of a congressional subpoena. The fourth amendment also protects a congressional witness against a sub- poena which is unreasonably broad or burdensome. The application of the exclusionary rule to congressional committees is in some doubt and will de- pend on the precise facts of the situation. The Court has indicated that the privilege against self-incrimination afforded by the fifth amendment is available to a witness in a congressional investigation. Where a witness asserts this privilege, the full House or the committee conducting the investigation may seek a court order which (a) directs the witness to testify and (b) grants him immunity against the use of his testimony, or other evidence derived from his testimony, in a sub- sequent criminal prosecution. Another provision of the fifth amendment, the due process clause, requires that a witness be informed of the per- tinency of the questions posed to the committee's investigation, and that he also be informed of the committee's ruling on any objections he raises or privileges which he asserts. The only instance in which the full House or Senate has voted to hold the head of an executive department or agency in contempt was in 1982 when the House of Representatives cited Anne Gorsuch Burford, the Administrator of the Environmental Protection Agency, for contempt for not complying with a committee subpoena for documents after President Reagan had asserted executive privilege. In several other instances, committees or subcommit- tees have voted contempt citations against members of the Cabinet, with each of these disputes being resolved before a contempt vote by the parent body. In some cases, the executive may refuse to produce information de- manded by a committee on the ground that a statute requires or permits the information to be withheld from Congress. In other instances, there may be a claim of executive privilege, a doctrine which, like Congress’ powers to investigate and cite for contempt, has constitutional roots. when an executive branch official refuses to comply with a congres- sional subpoena and the dispute cannot be resolved by negotiation and compromise, none of the three types of contempt proceedings is completely satisfactory. The new statutory civil contempt procedure is inapplicable in the case of a subpoena to an executive branch official. Inherent contempt has been described as "unseemly" and cumbersome. And if the criminal contempt method is utilized, the U.S. Attorney, who is an executive branch appointee, may rely on the doctrine of prosecutorial discretion as grounds for not seeking an indictment. There are various alternatives to the three modes of contempt in the case of an executive branch official. (1) The contemnor could be cited for criminal contempt, and be prosecuted by an independent counsel, rather than by the U.S. At- CRS-viii torney. (2) The committee can seek declaratory or other relief in the courts. (3) The appropriations for the agency or department involved can be cut off or reduced when requested information has not been sup- plied. (4) In an exceptional case, the official might be impeached. (5) The committee and the executive branch can compromise with regard to the materials to be made available to the committee and the conditions applicable to the disclosure. CRS-ix CONTENTS ABSTRACT ....................................................... iii EXECUTIVE SUMMARY .............................................. V I. INTRODUCTION ............................................. 1 II. THE POWER TO INVESTIGATE ................................. 3 III. THE INVESTIGATORY AND CONTEMPT POWERS: EARLY HISTORY ..... 4 IV. INHERENT CONTEMPT ........................................ 8 V. STATUTORY CRIMINAL CONTEMPT .............................. 12 VI. STATUTORY CIVIL CONTEMPT ................................. 17 VII. NON-CONSTITUTIONAL LIMITATIONS ........................... 21 Authorization and Jurisdiction ........................... 22 Legislative Purpose ...................................... 23 Pertinency ............................................... 25 Willfulness .............................................. 27 Other Procedural Requirements ............................ 28 Common Law Privileges .................................... 29 VIII. CONSTITUTIONAL LIMITATIONS ............................... 31 First Amendment .......................................... 31 Fourth Amendment ......................................... 35 Fifth Amendment Privilege against Self-Incrimination ..... 38 Fifth Amendment Due Process Rights........................ 42 IX. CONTEMPT BY AN EXECUTIVE BRANCH OFFICIAL: EXECUTIVE OCOOCCOOOCOCOOOCOOOOOOOOOOOIOOOOO O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O I O O O O O O O O I O I O O I O O O O O O O O O O O O O O O O O O I O O I O Committee Citations of Cabinet Secretaries ............... 52 X. CONTEMPT BY AN EXECUTIVE BRANCH OFFICIAL: PROBLEMS AND COO00000000000000000000000OOOOOOOOOOOOCOOOOOO OCOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO0000000000000 00000COOOOOOOOOOOOOOOOOOOOOOOOIO0 1/ CONGRESS’ CONTEMPT POWER I. INTRODUCTION Congress’ contempt power is the means by which Congress responds to certain acts which obstruct the legislative process in order to punish the contemnor and/or to remove the obstruction.2/ Although probably any action which directly obstructs the effort of Congress to exercise its 3/ constitutional powers may constitute a contempt, in the last fifty years 1/ This report is a complete revision of a 1976 study by John T. Melsheimer (CRS report No. 76-152A). The reader interested in a more detailed discussion of the older case law which established the basic limitations on the congressional contempt and investigatory powers may wish to consult the 1976 study. The present report places greater em- phasis on the procedure associated with each of the three types of con- tempt proceedings as well as the problems in citing an executive branch official for contempt. E] See generally Goldfarb, The Contempt Power (1963). §/ Compare Jurney v. Maccracken, 294 U.S. 125 (1935) (destruction of documentary evidence which had been subpoenaed can constitute contempt) with Marshall V. Gordon, 243 U.S. 521 (1917)(publication by U.S. Attorney of letter critical of Congress could not constitute contempt because it did not directly obstruct the legislative process). The Jurney decision also upheld the use of the inherent contempt power to punish a past con- tempt, even where removal of the obstruction to the legislative process was no longer possible. 294 U.S. at 147-48, 150. CRS-2 the contempt power has generally been employed only in instances of re- fusals of witnesses to appear before committees, to respond to questions, 3/ or to produce documents. This report examines the source of the contempt power, briefly reviews the historical development of the early case law, outlines the statutory and constitutional limitations on the contempt power, and analyzes the procedures associated with each of the three dif- ferent types of contempt proceedings (inherent contempt, statutory criminal 5/ Q] contempt, and statutory civil contempt) —. which can be employed. The '£/ However, in two cases, defendants entered pleas of nolo contendere to the statutory offense of contempt, a misdemeanor, rather than stand trial for perjury, a felony. United States v. Helms, Cr. No. 77-650 (D.D.C.); United States v. Kliendienst, Cr. No. 74-256 (D.D.C.). These cases are discussed in Prosecution of Contempt of Congress, Hearing before the Subcommittee on Administrative Law and Governmental Relations of the House Judiciary Committee on H.R. 2684 and H.R. 3456, 98th Cong., 1st Sess. 29 (1983) (prepared statement of Stanley Brand, former Counsel to the Clerk of the House). 5/ The inherent contempt power is not specified in a statute or con- stitutional provision but has been considered implicit in the grant to Congress of all legislative powers. In inherent contempt, the offender is tried at the bar of the House or Senate, and can be held in the Capitol fail. A statutory criminal contempt provision was first enacted in 1857 because of the inadequacies of proceedings under the inherent power. In cases of criminal contempt, the offender is cited by the subcommittee, the committee, and the full House or Senate, with subsequent indictment by a grand jury and prosecution by the U.S. Attorney. A statutory civil contempt procedure, which is applicable only to the Senate, was enacted in 1978. Under that procedure, a witness who refuses to testify before a Senate committee can, after being served with a court order, be held in contempt of court and incarcerated until he agrees to testify. The three types of contempt, and the procedures associated with them, are discussed in more detail in sections IV, V, and VI, infra. Q] It is noted that a witness who refuses to testify before a comit- tee, or who provides a committee with false or misleading testimony, could possibly be prosecuted under other criminal provisions, including 18 U.S.C. § 1001 (false statements), 18 U.S.C. § 1621 (perjury), and 18 U.S.C. § 1505 (obstruction of committee proceedings). Those offenses are beyond the scope of this report. See generally Hamilton, The Power to Probe 78 (1976). CRS-3 last two sections of the report review the special procedural and con- stitutional problems encountered when the contempt power is used against an executive branch official. II. THE POWER TO INVESTIGATE The power of Congress to punish for contempt cannot be examined with- 7/ out reference to the related power of Congress to investigate. In 8/ McGrain v. Daugherty, the Supreme Court described the power of inquiry, with the accompanying process to enforce it, as "an essential and appro- priate auxiliary to the legislative function.’ The Court explained: A legislative body cannot legislate wisely or effectively in the absence of information re- specting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information-which not infrequently is true-recourse must be had to others who possess it. Experience has taught that mere requests for such information often are un- availing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain that which is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry- with enforcing process-was regarded and em- ployed as a necessary and appropriate attribute of the power to legislate--indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative func- tion to the two houses are intended to include this attribute to the end that the function may be effectively exercised. 2/ Z] See generally Moreland, Congressional Investigations and Pri- vate Persons, 40 So. Cal. L. Rev. 189 (1967). §/ 273 U.S. 135, 174-75 (1927). _9../ L3.- CRS-4 Mr. Chief Justice Warren, speaking for the Court in Watkins v. United States, observed: The power of Congress to conduct investiga- tions is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.... It comprehends probes into departments of the Federal Government to expose corruption, inef- ficiency or waste. 19/ III. THE INVESTIGATORY AND CONTEMPT POWERS: EARLY HISTORY 11/ The contempt power was exercised both by the English Parliament 12/ and by the American colonial assemblies. Although in the earliest contempt proceedings some Members expressed serious doubts as to whether 13/ Congress possessed the power to cite a non-Member for contempt, the first Supreme Court case dealing with congressional contempt, Anderson v. Dunn, held that the power was an inherent one necessary to enable each House to protect itself against indignities and disruptions. However, the Court indicated that imprisonment could not extend beyond the ad- 14/ journment of Congress since the legislative body then ceases to exist. While in the earliest instances of contempt proceedings, both the courts _1Q/ 354 U.S. 178, 187 (1957). See also Barenblatt v. United States, 360 U.S. 109, 111 (1959); Eastland v. United States Serviceman's Fund, 421 U.S. 491 (1975). 11/ May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament 141-42 (17th ed. 1964). 1%] Clarke, Parliamentary Privilege in the American Colonies (1971); Beck, Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on Un-American Activities, 1945-1957 (1959). 1;] Eberling, Congressional Investigations at 45 g£_seq. (1928); Beck, supra note 12, at 3. _14/ 19 U.S. (6 Wheat.) 204 (1821). The limitation on imprisonment might not apply to the Senate. See infra note 36. CRS-5 and Congress itself recognized the inherent legislative power to punish for contumacious conduct, problems in exercising the inherent contempt power soon became obvious. Because inherent contempt proceedings, which involve a trial at the bar of the House concerned, were cumbersome and because punishment could not extend beyond the adjournment of Congress, in 1857 a statutory criminal contempt procedure was enacted which, with only minor amendments, is codified today as 2 U.S.C. §§ 192, 194. The statute provides for a judicial trial of the contemnor rather than trial at the bar of the House or Senate. Despite the passage of the contempt statute, for at least the first two decades after its enactment most contempts were handled by means of a trial at the bar of the House, rather than by the criminal method, apparently because Members felt that they would not be able to obtain the desired information from the witness after the criminal proceedings 12/ had been instituted. When in 1876 the House established a select committee to investigate the collapse of a real estate pool in which the United States had suffered losses as a creditor of Jay Cooke and Company, the House proceeded under both its inherent and statutory 16/ contempt powers. The witness, Hallet Kilbourn, the manager of the 12/ Moreland, supra note 7, at 205 n. 49 and accompanying text. 16/ See 2 Hinds’ Precedents of the Houes of Representatives § 1609f. Although the Court indicated in the case of In re Chapman, 166 U.S. 661, 672 (1897), that the double jeopardy clause of the Constitution would not prohibit a criminal prosecution of a witness for contempt of Congress after he had been tried at the bar of the House under the inherent contempt power, subsequent developments in the interpretation of the double jeopardy clause suggest that this aspect of the Chapman decision is no longer good law. See (continued) CRS-6 real estate pool, refused to produce certain papers, and after being jailed under the inherent contempt power, filed a suit against the Speaker, the Members of the committee, and the Sergeant-at-Arms for false arrest. In Kilbourn v. 11/ Thompson, the Supreme Court ruled in Kilbourn's favor, although the preceden- tial value of the decision has been significantly limited by subsequent case law. Nevertheless, the case continues to be cited for the proposition that the House has no power to probe into private affairs, such as the personal finances of an individual, on which legislation could not be enacted. Despite the decision in Anderson v. Dunn, the Kilbourn Court was unwilling to concede that E/ either House possessed a "general power of punishing for contempt" and specifically declined to rule "upon the existence or non-existence of [the 12/ contempt] power in aid of the legislative function." Instead, the case was decided on the ground that the matter was outside the jurisdiction of the House because judicial bankruptcy proceedings were pending relating to the collapse of the real estate pool, and it might be improper for Congress to 20/ conduct an investigation that could interfere with the judicial proceedings. (lgj continued) Grafton v. United States, 206 U.S. 333 (1907); Waller v. Florida, 397 U.S. 387 (1970). Cf. Columbo v. New York, 405 U.S. 9 (1972). However where the sanction imposed pursuant to the inherent contempt power is intended to be purely coercive, not punitive, a subsequent criminal prosecution would be permissible since the double jeopardy clause bars only dual criminal prosecutions. See generally authorities cited infra note 63. / 103 U.S. 168 (1880). l-' \l 1 O0 / Id. at 197. |--‘ KC / Id. at 189. 20/ Id. at 194. Subsequent decisions, however, make it clear that where—there is a legislative purpose, simultaneous congressional investi- gations and judicial proceedings are proper. See Sinclair v. United States, 279 U.S. 263 (1929); Hutcheson V. United States, 369 U.S. 599 (1962). CRS-7 In_diS£a, the Court indicated that the contempt power might be upheld where Congress was acting pursuant to certain specific constitutional prerogatives, such as disciplining its Members, judging their elections, or conducting 7 impeachment proceedings{;i/ The doubts raised by Kilbourn about the scope of Congress’ contempt power have essentially been removed by later cases sanctioning the use of the power in investigations conducted pursuant to Congress‘ authority to 22/ discipline its Members (in E3 Chapman) to judge the elections of its 23/ Members (Barry v. United States ex rel. Cunningham), and, most importantly, 24/ to legislate (McGrain v. Daugherty){__ The McGrain case involved a Senate investigation into the claimed failure of the Attorney General to prosecute certain antitrust violations. A subpoena was issued to the brother of the Attorney General, Mallie Daugherty, the president of an Ohio bank. The Supreme Court opinion in the case considered the investigatory and contempt powers of Congress to be implicit in the grant of legislative power.£2/ The Court distinguished Kilbourn, which was an investigation into purely personal affairs, from the instant case, which was a probe of the operation of the Justice Department. "Plainly the subject was one on which legislation could be had and would be materially aided by information the investigation was 26/ calculated to elicit.".—- The Court in McGrain was willing to presume that 21/ 103 U.S. at 189-90. ggj 166 U.S. 661 (1897). _g;/ 279 u.s. 597 (1929). 35/ 273 U.S. 135 (1927). lg§/ McGrain is quoted at length,_§up:a p. 3. _gg/ 273 U.S. at 177. CRS-8 the investigation had been undertaken to assist the committee in its legislative 21/ efforts. IV. INHERENT CONTEMPT Both the House and the Senate may cite a witness for contempt under their inherent contempt power or under the statutory criminal contempt procedure. The Senate also has a third option, a relatively new statutory civil contempt procedure. As discussed above, the inherent contempt power is not specifi- cally granted by the Constitution, but is considered necessary for Congress to investigate and legislate effectively. The inherent contempt power was upheld in the early Supreme Court decision in Anderson v. QEEE. Under the inherent contempt power, the individual is brought before the House or Sen- ate by the Sergeant-at-Arms, tried at the bar of the body, and can be im- prisoned in the Capitol ail. The purpose of the imprisonment or other 2.8] 32/ sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least by the House, beyond the end of the Congress) until he agrees to comply. One commentator has concluded that the procedure followed 2]] Ida at 177, 178. It has been said that the McGrain case "very clearly removed the doubt [that had existed after Kilbourn v. Thompson] as to whether Congress could force testimony in aid of legislation." Moreland, supra note 7, at 222. Although McGrain and Sinclair v. United States, 279 U.S. 263 (1929), involved inquires into the activities of private individuals, there was a connection to property owned by the United States and therefore it could not be said that purely personal affairs were the subjects of the investigations. The Court has indicated that Congress can probe the business and conduct of individuals to the extent that these matters are subject to congressional regulation. lCg_v. Brimson, 154 U.S. 447 (1894). 2§/ Jurney v. Maccracken, 294 U.S. 125, 147 (1935). 29] McGrain v. Daugherty, 273 U.S. at 161. CRS-9 by the House in the contempt citation that was at issue in Anderson v. Dunn is typical of that employed in inherent contempt cases. These traditional methods may be explained by using as an illustration Anderson v. Dunn. . . .In 1818, a Member of the House of Representatives accused Anderson, a non-Member, of trying to bribe him. . . . The House adopted a resolution pursuant to which the Speaker ordered the Sergeant-at-Arms to arrest Anderson and bring him before the bar of the House to answer the charge. When Anderson appeared, the Speaker informed him why he had been brought before the House and asked if he had any requests for assistance in answering the charge. Anderson stated his requests, and the House granted him counsel, compulsory process for defense witnesses, and a copy of the accusatory letter. Anderson called his witnesses; the House heard and questioned them and him. It then passed a resolution finding him guilty of contempt and directing the Speaker to reprimand him and then to discharge him from custody. ‘The pattern was thereby established of attachment by the Sergeant-at-Arms; appearance before the bar; provision for specification of charges, identifica- tion of the accuser, compulsory process, counsel, and a hearing; determination of guilt; imposition of penalty. 30/ When a witness is cited for contempt under the inherent contempt process, prompt judicial review is available by means of a petition for a writ of 31/ habeas corpus.-_’ In such a habeas proceeding, the issues decided by the court might be limited to (a) whether the House or Senate acted in a manner 30/ Legislative Contempt and Due Processzp The Groppi Cases, 46 Ind. L. J. 480, 490-91 (1971). For further discussion of the procedure in early in- herent contempt cases, see 2 Hinds’ Precedents of the House of Representa- tives §§ 1599-1603 (contempt cases of Robert Randall and Charles Whitney, the first citations for contempt by the House); 2 Hinds’ Precedents § 1604 (contempt case of William Duane, the first citation for contempt by the Senate). See also Jurney v. MacCraken, 294 U.S. 125, 143-44 (1935); Kilbourn v. Thompson, 103 U.S. 168, 173-74 (1881); Anderson v. Dunn, 19 U.S. 204, 209-11 (1821); Marshall v. Gordon, 243 U.S. 521, 532 (1917); Groppi v. Leslie, 404 U.S. 496,‘§00—01 (1972); United States v. Fort, 4Z§‘FT§d 670, 676 (0.0. Cir. 1970), cert. denied, 403 U.S. 932 (1971). 31/ See Marshall v. Gordon, 243 U.S. 521 (1917); United States v. Fort,-443 F.2d at 676. See also Sky, Judicial Review of Congressional Investigations: Is There an Alternative to Contempt, 31 Geo. Wash. L. Rev. 399, 400 n.3 (1962). CRS-10 33/ within its jurisdiction and (b) whether the contempt proceedings complied with minimum due process standards.2§/ While Congress would not have to afford a contemnor the whole panoply of procedural rights available to a defendant in criminal proceedings, notice and an opportunity to be heard would 34/ have to be granted.__ Also, some of the requirements imposed by the courts under the statutory criminal contempt procedure (e.g., pertinency of the question asked to the committee's investigation) might be mandated _3_§_/ by the due process clause in the case of inherent contempt proceedings. In comparison with the other types of contempt proceedings, inherent contempt has the advantage of not requiring the cooperation or assistance of either the executive or judicial branches. The House or Senate can, on its own, conduct summary proceedings and cite the offender for contempt. Furthermore, although the contemnor can seek judicial review by means of a petition for a writ of habeas corpus, the scope of such review may be relatively limited, compared to the plenary review accorded by the courts in cases of conviction under the criminal contempt statute. There are also certain disadvantages of the inherent contempt process. Although the contemnor can be incarcerated until he agrees to comply with the subpoena, imprisonment may not extend beyond the end of the current _§2/ See Kilbourn v. Thompson. 103 U.S. at 196; Jurney V. MacCracken, 294 U.S. 125 (1935); Ex parte Nugent, 18 F. Cas. 471 (Cir. Ct. D.C. 1848) (No. 10,375). 23/ Groppi v. Leslie, 404 U.S. 496 (1972). §£/ .12- §§/ For a discussion of these statutory limitations on the contempt power, see infra pp. 21-27. CRS-11 36/ session of Congress. Furthermore, inherent contempt has been described as "unseemly," cumbersome, time-consuming, and relatively ineffective, especially for a modern Congress with a heavy legislative workload that would be 37/ interrupted by a trial at the bar. Because of these drawbacks, the inherent 38/ contempt process has not been used by either body since 1935. Proceedings under the inherent contempt power might be facilitated if the trial were to be held before a committee, with only the final decision as to guilt being made by the full House or Senate. Although generally the proceedings in inherent contempt cases appear to have been conducted at the bar of the House of Congress involved,;2/in at least a few instances proceedings were conducted initially or primarily before a committee, but with the final decision as to whether to hold the person in contempt being made by the ,gg/ full body. 3§/ Anderson v. Dunn, 19 U.S. at 231 (dicta); Watkins v. United States, 354 U.S. 178, 207 n.45 (1957) (dicta) This limitation might not apply to the Senate which, unlike the House, is a continuing body. McGrain V. Daugherty, 273 U.S. at 181. See also 2 Hinds’ Precedents §§ 1627, 1628. 37/ See S. Rept. No. 95-170, 95th Cong., 1st Sess. 97 (1977); Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 B.Y.U.L. Rev. 231, 255 n. 71. 138/ Deschler's Precendents of the U.S. House of Representatives, ch. 15, § 17 at p. 139 n.7 (1977). See also Lee, supra note 37, at 255. 39/ See Beck, supra note 12, at 4; Eberling, supra note 13, at 289. 59] For example, in 1865, the House appointed a select committee to inquire into an alleged breach of privilege committed by Mr. A.P. Field for assaulting a Member of the House. Cong. Globe, 38th Cong., 2d Sess. 371 (1865). After taking testimony, the committee recommended, and the House adopted, a resolution directing the Speaker to reprimand Field at the bar of the House. Id, at 971, 974. CRS-12 V. STATUTORY CRIMINAL CONTEMPT Recognizing the problems with use of the inherent contempt process, 41 a statutory criminal contempt procedure was enacted in 1857._—/ With only minor amendments, those statutory provisions are codified today as 2 U.S.Co §§ 192 and 194 (1982), which state: §l94. Certification of failure to testify or produce; § 192. Refusal of witness to testify or produce papers grand jury action Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce D_apers upon any matter under inquiry before either House, or any joint committee estab- lished by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes de- fault, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a mis- demeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprison- ment m a common jail for hot less than one month nor more than twelve months. Whenever a witness summoned as mentioned in section 192 of this title fails to appear to tes- tify or fails to produce any books, papers, rec- ords, 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 joint committee es- tablished by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is report- ed to either House while Congress is in session of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty or when Congress is not in session, a statement _ of the said President of the Senate or Speaker j of the House, as the case may be, to certify, and‘ he shall so certify, the statement of facts afore- ‘ said 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. .£l/ Enactment of the 1857 law, 11 Stat. 155, was prompted by an investi- gation by a select committee during the 34th Congress into allegations of misconduct which had been made against several Members of the House The investigation was hindered by the refusal of a newspaper reporter to re- spond to certain question posed by the committee. The select committee ~reported a resolution citing the reporter for contempt, and a bill (H.R. 757sh34th Cong.) "to more effectual1y...enforce the attendance of witnesses in Eie summons of either House of Congress, and to compel them to discover is mony. See Cong. Globe., 3rd Sess. 403-04 (1857). It appears that Sleie were no printed House or Senate committee reports on the measure, 1 t Eng: it was considered in the House by the select committee (1d.) and nbt e enate by the Judiciary Committee (id. at 425-26). The bill was su sequently passed by the House (id. at 433) and the Senate (id. at 445) after being debated (id. at 404~O7, 425-45). ‘pp, ‘A The constitutionality of the statute was upheld in the case of In re Chapman, 166 U.S. 661 (1897). CRS-13 Under 2 U.S.C. § 192, a person who has been "summoned as a witness' by either House or a committee thereof to appear to testify or to produce docu- ments and who fails to do so, or who appears but refuses to respond to questions, is guilty of a misdemeanor, punishable by a fine of up to $1,000 and imprisonment for up to one year. Section 194 establishes the procedure to be followed by the House or Senate if it chooses to refer a recalcitrant witness to the courts for criminal prosecution rather than try him azzthe bar of the House or Senate. Under the procedure outlined in § 194,__— "the following steps precede judicial proceedings under [the statute]: (1) approval by committee,£§/(2) calling up and reading the committee report on the floor, (3) either (if Congress is in session) House approval of a resolution authorizing the Speaker to certify the report to the U.S. Attorney for prosecution, or (if Congress is not in 44/ session) an independent determination by the Speaker to certify the report, 32/ The language of § 194 does not provide a complete picture of the process. For a more detailed explanation of the workings of the procedure, reference should be made to the actual practice in the House and Senate. See Deschler's Precedents, supra note 38, at §§ 17-22. fig] In case of a defiance of a subcommittee subpoena, subcommittee approval of the contempt citation precedes committee action on the matter. 33/ In a decision based in part on the legislative history of the contempt statute and congressional practice under the law, it was held in Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966), that the function of the Speaker during adfournments in certifying contempts to the United States Attorney is a discretionary, not a mandatory, one. In that case, the defendants‘ convictions were reversed since the Speaker had certified the contempts without exercising this discretion. Judge Danaher, in dissent, found the language of § 194 to be "mandatory on its face." 369 F.2d at 207. See also, ids at 208 n.7. The question is further compli- cated by cases in the same circuit which suggest an opposite result based on identical language with respect to United States Attorney's role following referral, see n. 50, infra and accompanying text. CRS-14 [and] (4) certification by the Speaker to the appropriate U.S. Attorney 45/ for prosecution.’ The criminal contempt procedure is punitive in nature. It is used when the House or Senate wants to punish a recalcitrant witness and, by _‘*__6./ doing so, to deter others from similar contumacious conduct. The criminal sanction is not coercive because a witness generally will not be able to purge himself by testifying or supplying subpoenaed documents after he has been voted in contempt by the committee and the House or Senate. Consequently, once a witness has been voted in con- tempt, he lacks an incentive for cooperating with the committee. How- ever, although the courts have rejected arguments that defendants had 511/ purged themselves, in a few instances the House has certified to the U.S. Attorney that further proceedings concerning contempts were not 35/ Deschler's Precedents, supra note 38, at p. 141. While the quoted description is from the compilation of House precedents, the same procedure is employed in the Senate, but with the President of the Senate performing the functions that are the responsibility of the Speaker in cases of contempt of the House. fig] See, e.g., S. Rept. No. 95-170, 95th Cong., 1st Sess. 97 (1977). Elf United States v. Costello, 198 F.2d 200 (Zd Cir. 1952), cert. denied, 344 U.S. 874 (1952); United States V. Brewster, 154 F. Supp. 126 (D.D.C. 1957), rev'd on other grounds, 255 F.2d 899 (D.C. Cir. 1958), cert. denied, 358 U.S. 842 (1958). However, the defendant's sentence may be suspended where he complies with the committee's demand following his conviction. United States v. Tobin, 195 F. Supp. 588, 617 (D.D.C. 1961). CRS-15 necessary where compliance with subpoenas occurred after contempt citations ‘+_8_/ had been voted but before referral of the cases to grand juries. Under the statute, after a contempt has been certified by the President of the Senate or the Speaker, it is the "duty" of the United States Attorney 49/ "to bring the matter before the grand jury for its action.’ It remains unclear whether the "duty" of the U.S. Attorney to present the contempt to the grand jury is mandatory or discretionary. The sparse case law that is relevant to the question provides conflicting guidance. In a recent case involving the applicability of the contempt procedure in the case of an executive branch official, the court described the statutory scheme and observed, in dicta, that after the contempt citation is delivered to the U.S. Attorney, he "is then required to bring the matter before the grand 50/ jury.”__ However, the majority opinion in a court of appeals ruling held 4§/ Deschler's Precedents, supra note 38, ch. 15, § 21 (witness before House Committee on Un—American Activities voluntarily purged himself of his contempt); H.R. Res. 180, 98th Cong. (resolution stating that prosecu- tion of Anne Gorsuch Burford, Administrator of the Environmental Protection Agency, was not required following implementation of an agreement granting the House access to documents which had been withheld under a claim of executive privilege). See infra pp. 47-51 for further discussion of the Burford contempt. f+_9_/ 2 U.S.C. § 194. 52/ United States v. House of Representatives, 556 F. Supp. 150, 151 (D.D.C. 1983) (emphasis added). Dicta in another district court decision, involving a private citizen, also indicates that the function of the prosecutor is mandatory. Ex parte Frankfeld, 32 F. Supp. 915 (D.D.C. 1940). But see Ansara v. Eastland, 442 F.2d 751, 754 n.6 (D.C. Cir. 1971), in which the court suggested in a passing reference that "the Executive Branch...may decide not to present...[a contempt citation] to the grand jury...." The court in Ansara did not expressly consider the nature of the prosecutor's duty under § 194, nor did it provide any basis for its statement to the effect that the prosecutor may exercise discretion in determining whether to seek an indictment. CRS-16 that similar language in the statute imposing a "duty" on the Speaker and the President of the Senate to certify contempts to the U.S. Attorney was dis- _5_1_/ cretionary in nature. Despite the similarity in the statutory language, the functions of the Speaker and the President of the Senate are so different in nature under the statutory scheme from those of the U.S. Attorney that it may be improper to conclude that the function of the prosecutor was intended to be discretionary simply because that is the interpretation given to the function of the pre- 22-] siding officers. Nevertheless, it is noted that the courts have granted the United States Attorneys broad prosecutorial discretion, even where a 22/ statute uses mandatory language, and prosecutorial discretion was relied on in the decision of the U.S. Attorney not to present to the grand jury _.§1[ Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966). The dissent in Wilson would have held that the Speaker's duty was mandatory. For further discussion of Wilson, see supra note 44. £2] As the court noted in Wilson, despite its mandatory language, the statute has been implemented in a manner that makes clear Congress’ View that, when Congress is in session, a committee's contempt resolution can be referred to the U.S. Attorney only after approval by the parent body. 369 F.2d at 201-02. When Congress is not in session, review of a committee's contempt citation is provided by the Speaker or President of the Senate, rather than by the full House or Senate. ‘id. at 203-04. This review of a committee's contempt citation may be inherently discretionary in nature, whereas the prosecutor arguably is merely carrying out Congress’ directions in seeking a grand jury indictment. Congress delegated this task to the prosecutor because of the problems involved in inherent contempt proceedings at the bar of the House or Senate, and arguably did not intend the U.S. .Attorney to decline to seek an indictment in a case that a committee and the full House, or a committee and the presiding officer of the House, determined was appropriate for prosecution. __‘§§/ See Confiscation Cases, 74 U.S. (7 Wall.) 454 (1868): United States v. Nixon, 418 U.S. 683, 694 (1974); Inmates ofiAttica Correctional Facility V. Rockefeller, 477 F.2d 376 (2d Cir. 1973); Moses v. Kennedy, 219 F. Supp. 762, 765 (D.D.C. 1963), aff'd sub. nom., Moses v. Katzenbach, 342 F.2d 931 (D.C. Cir. 1965). CRS-17 the contempt citation of Environmental Protection Agency Administrator Anne Gorsuch Burford, the only head of an executive branch agency to be cited for contempt by the full House or Senate.§é/ While upholding the validity of 2 U.S.C. §§ 192 and 194, the courts have recognized that they are criminal provisions and have reversed con- victions for contempt where limitations dictated by the language of the statute itself or the Constitution have been exceeded. These limitations are discussed in section VII and VIII, infra. VI. STATUTORY CIVIL CONTEMPT As an alternative to both the inherent contempt power of each House 3/ and criminal contempt, in 1978 Congress enacted a civil contempt pro- §4/ See Examining and Reviewing the Procedures that Were Taken by the Office of the U.S. Attorney for the District of Columbia in Their Implementation of a Contempt Citation that Was Voted by the Full House of Representatives against the Then-Administrator of the Environmental Protection Agency, Anne Gorsuch Burford, Hearing before the House Com- mittee on Public Works and Transportation, 98th Cong., 1st Sess. 30 (1983) (hereafter cited as Burford Contempt Prosecution Hearing). The U.S. Attorney also suggested that it would have been inappropriate for him to institute a criminal suit against Burford while a related civil action brought by the Justice Department against the House was pending. See letter of Dec. 27, 1982, from U.S. Attorney Stanley Harris to Speaker O'Neill, reprinted in H.R. Rept No. 98-323, 98th Cong., 1st Sess. 48-49 (1983). See infra pp. 47-51 for a more detailed discussion of the Burford contempt. Of course, as a practical matter, even if the United States Attorney is required to refer a contempt under 2 U.S.C. §§ 192-194 to the grand jury, there is no apparent requirement that the United States Attorney concur in the prosecution of any subsequent indict- ment without which it cannot as forward, see Fed. R. Crim. Pro. 7(c); United States v. Cox, 342 F.2d 167 (5th Cir. 1965). 2E] The inadequacies of the inherent and criminal contempt procedures had been recognized by the Congress itself (see, e.g., Representation of Congress and Congressional Interests in Court, Hearings before the Senate Judiciary Subcommittee on Separation of Powers, 94th Cong, 2d Sess. 556- 68 (1976) (hereafter cited as Congressional Representation Hearings)), the courts (e.g., United States v. Fort, 443 F.2d 670, 677-78 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971); Tobin v. United States, 306 F.2d 270, 275-76 (D.C. Cir.), cert. denied, 371 U.S. 902 (1962)), and by students of the subject (e;g., Sky, supra note 31). CRS-18 .5_.6_/ _5_7./ cedure which is applicable only to the Senate. The new procedure gives the U.S. District Court for the District of Columbia jurisdiction over a civil action brought by the Senate Legal Counsel, on behalf of the Senate or a Senate committee or subcommittee,2§/to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened failure or refusal to comply with, any subpoena or order issued by the Senate or a committee or subcommittee. Upon application of the Senate, the district court is to issue an order to a person refusing, or threatening to refuse, to comply with a 59/ subpoena or order of the Senatef_— If the individual still refuses to §§/ Ethics in Government Act of 1978, Pub. L. No. 95-521, §§ 703, 705, 92 Stat. 1877-80 (1978), codified as 2 U.S.C. §§ 288b(b) and 288d, 28 U.S.C. § 1364. £1] The conference report accompanying the legislation which established the new procedure explained that the relevant House committees had not yet considered the proposal for judicial enforcement of House subpoenas. H.R. Rept. No. 95-1756, 95th Cong., 2d Sess. 80 (1978). 58/ Although the Senate or the committee may be represented by any attorney designated by the Senate (28 U.S.C. § 1364(d)), in most cases such an action will be brought by the Senate Legal Counsel after an authorizing resolution has been adopted by the Senate. 2 U.S.C. § 288b(b). A resolu- tion directing the Senate Legal Counsel to bring an action to enforce a committee or subcommittee subpoena must be reported by a majority of the members voting, a majority being present, of the full committee. The report filed by the comittee must contain a statement of (a) the procedure employed in issuing the subpoena; (b) any privileges or objections raised by the recipient of the subpoena; (C) the extent to which the party has already complied with the subpoena; and (d) the comparative effectiveness of the criminal and civil statutory contempt procedures and a trial at the bar of the Senate. 2 U.S.C. § 288d(c). 22/ The Senate may "ask a court to directly order compliance with [a] subpoena or order or may merely seek a declaration concerning the validity of [the] subpoena or order. By first seeking a declaration, [the Senate would give] the party an opportunity to comply before actually [being] (continued) CRS-19 comply, he may be tried by the court in summary proceedings for contempt 29/ é.1./ of court, with §anctions being imposed to coerce his compliance. The statute granting jurisdiction to the courts to hear such cases is, by its terms, inapplicable in the case of a subpoena issued to an officer or em- 62/ ployee of the federal government acting in his official capacityf__ (§9/ continued) ordered to do so by a court." S. Rept. No. 95-170, 95th Cong., lst Sess. 89 (1977). It is within the discretion of the Senate whether or not to use such a two-step enforcement process. id. at 90. Regardless of whether the Senate seeks enforcement of, or a declaratory judgement concerning a subpoena, the court will first review the subpoena's validity. ‘Ed. at 41. If the court finds that the subpoena "does not meet applicable legal standards for enforcement," the court does not have juris- diction to enjoin the congressional proceeding. Because of the limited scope of the jurisdictional statute and because of speech or debate clause immunity for congressional investigations, "when the court is petitioned solely to enforce a congressional subpoena, the court's jurisdiction is limited to the matter Congress brings before it, that is whether or not to aid Congress in enforcing the subpoena. . . . Ed. at 94. .gg/ As the statute makes clear, a party refusing to obey the court's order will be in contempt of the court, not of Congress itself. 28 U.S.C. § 1364(b). See also S. Rept. No. 95-170, supra note 59, at 41, 92. 91/ 28 U.S.C. § 1364(b). ‘§g/ 28 U.S.C. § 1364(3). The statutory exception was explained as follows in the Senate report, S. Rept. No. 95-170, supra note 59 at 91-92: This jurisdictional statute applies to a subpoena directed to any natural person or entity acting under color of state or local authority. By the specific terms of the jurisdictional statute, it does not apply to a subpoena directed to an officer or employee of the Federal Government acting within his official capacity. In the last Congress there was pending in the Comittee on Government Operations legislation directly addressing the problems associated with obtaining information from the executive branch. (See 8. 2170, "The Congressional Right to Information Act.") This exception in the statute is not intended to be a congressional finding that the federal courts do not now have the authority to hear a civil action to (continued) CRS-20 Without affecting the right of the Senate to institute criminal contempt proceedings or to try an individual for contempt at the bar of the Senate,é2/ the new procedure gives the Senate the option of a civil action to enforce a subpoena.§&/ Civil contempt might be employed when the Senate is more concerned with securing compliance with the subpoena or with clarifying legal issues than with punishing the contemnor. In the case of civil contempt, sanctions (imprisonment and/or a fine) can be imposed until the subpoenaed party agrees to complyféé/in the case of criminal contempt, (égf continued) enforce a subpoena against an officer or employee of the federal government. However, it the federal courts do not now have this authority, this statute does now confer it. §2/ Not only do the inherent and criminal contempt procedures remain available as alternatives to the new civil contempt mechanism, but the legislative history indicates that the civil and criminal statutes could both be employed in the same case. "Once a committee investigation has terminated, a criminal contempt of Congress citation under 2 U.S.C. § 192 et seq., might still be referred to the Justice Department if the Congress finds-this appropriate. Such prosecution for criminal contempt would present no double jeopardy problem." S. Rept. No. 95-170, supra note 59, at 95 (citations omitted). See also Hearings before the Senate Committee on Governmental Affairs on S. 555, 95th Cong., 1st Sess. 798-800 (1977) (hereafter cited as Civil Contempt Hearings). fig] For a more detailed analysis of the civil contempt procedure and a comparison with the other options available to the Senate when faced with a contempt, see S. Rept. No. 95-170, supra note 59, at 16-21, 40-41, 88-97. For a more complete legislative history of the new procedure, see Civil Contempt Hearings, supra note 63, at 59-62, 692 eE_§eg. (statement of Senator Abourezk and attachments); 123 Cong. 333. 20956-21019 (June 27, 1977). 65/ The act specifies that "an action, contempt proceeding, or sanction. . . shall not abate upon adjournement sine die by the Senate at the end of a Congress if the Senate or the committee or subcommittee. . . certifies to the court that it maintains its interest in securing the documents, answers, or testimony during such adjournment." 28 U.S.C. § 1364(b). In the first case brought under the new procedure, the witness unsuccessfully argued that the possibility of "indefinite incar- ceration" violates the due process and equal protection provisions of the Constitution, and allows cruel and unusal punishment. Application of (continued) CRS-21 the individual has no incentive to comply because he generally will not be able to purge himself of the contempt once criminal proceedings are instituted. Another advantage of civil contempt is that it is more expeditious than a criminal proceeding, in which the court may more closely scrutinize congressional procedures and give greater weight to the defendant's constitutional rights. The civil contempt procedure also provides an element of flexibility, allowing the subpoenaed party to raise possible constitutional and other defenses (e.g., the privilege against self-incrimination, lack of compliance with congressional procedures, or an inability to comply with the subpoena)éé/ without risking a criminal prosecution. VII. NON-CONSTITUTIONAL LIMITATIONS Although the courts have upheld the authority of Congress to investigate and to cite a witness for contempt, they have also established limits, rooted both in the language of the criminal contempt statute and in the Constitution, on the investigatory and contempt powers. Recognizing that 2 U.S.C. § 192 is a criminal statute, the courts have accorded defendants the same safeguards 67/ as defendants in other criminal proceedingsf—— (§§/ continued) the U.S. Senate Permanent Subcommittee on Investigations, 655 F.2d 1232 (D.C. Cir.), cert. denied, 454 U.S. 1084 (1981). §é/ S. Rept. No. 95-170, supra note 59, at 93. gézj Russell v. United States, 369 U.S. 749 (1962); Sinclair V. United States, 279 U.S. 263 (1929). While most of the case law in this section of the report involves decisions under the statutory criminal contempt procedure, many of the holdings would be applicable to exercises of the new civil contempt statute (cf. 8. Rept. No. 95-170, supra note 59, at 41, 94) and the inherent contempt power. CRS-22 Authorization and jurisdiction. The criminal contempt statute is applicable to contempts committed by a person "summoned as a witness by 68/ the authority of either House of Congress. . . ." The statute applies regardless of whether a subpoena has been issued by a committee or by 69/ the full House or Senate.‘— Although the statute specifically makes the contempt sanction applicable to a witness who has been 'summoned," the law applies whether the individual is subpoenaed or appears voluntarily 70/ and then refuses to testify:‘— A contempt conviction will not be upheld if the committee's invest- 71/ gation has not been clearly authorized by the full House or Senate. The investigation, and the questions posed, must be within the scope 72/ of the committee's jurisdiction. A committee cannot issue a subpoena for a subject outside the scope of its jurisdiction. Authorization from 2.3! _7i/ the parent body may take the form of a statute, a resolution, or a _6§/ 2 U.S.C. § 192 (emphasis added). 69/ McGrain v. Daugherty, 273 U.S. 135 (1927); Sinclair v. United state§f 279 U.S. 263, 296 (1929). Z9] Sinclair v. United States, supra. p A11] United States v. Rumely, 343 U.S. 41 (1953); Tobin v. United States 306 F.2d 270 (D.C. Cir.), cert. denied, 371 U.S. 902 (1962); United States v. Patterson, 206 F.2d 433 (D.C. Cir. 1953). Z2] United States v. Rumely, supra; United States v. Patterson, supra. _Z§/ E.g., 26 U.S.C. § 8021, 8022 (Joint Committee on Taxation). .Z£/ Resolutions are generally used to establish select or special committees and to delineate their authority and jurisdiction. See the various examples cited in Deschler's Precedents, supra note 38, ch. 17, § 6. CRS-23 T 75/ standing rule of the House or Senate. In the case of a subcommittee investi- gation, ghe subject matter must fall within the scope of authority granted 76/ to the subcommittee by the full comittee._—' Investigations may be conducted, and subpoenas issued, pursuant to a committee's legislative or oversight _7_7_/ jurisdiction. Legislative purpose. A committee's investigation must have a legisla- tive purpose or be conducted pursuant to some other constitutional power of the Congress, such as the authority of each House to discipline its own Members, judge the returns of their elections, and to conduct impeachment Z§/ This mode is the most common today. Both the House (House Manual, H.R. Doc. No. 98-277, 98th Cong., 2d Sess. (1985), Rule XI, cl. 1(b) and cl. 2 (m)) and the Senate (Senate Manual, S. Doc. No. 98-1, 98th Cong., 2d Sess. (1984), Rule XXVI, cl. 1) authorize standing committees to make investigations within their jurisdiction, and permit such committees and their subcommittees to issue subpoenas. 76/ Gojack v. United States, 384 U.S. 702, 706 (1966). The case involved a rule of the former House Committee on Un-American Activities, which stated that "no major investigation shall be initiated without the approval of a majority of the committee." The court reversed the contempt conviction in Gojack because the subcommittee's investigation which resulted in the contempt citation had not been approved by the committee as its rules required. Despite the provision of Senate Rule XXVI, cl. 1, authorizing sub- comittee subpoenas, the rules of at least one committee expressly prohibit subcommittee subpoenas (Committee on Small Business, Rule 3(c)) while another committee requires approval by the full committee of any subcom- mittee subpoenas (Committee on Labor and Human Resources, Rule 17). [The Senate committee rules are reprinted in 1985 Rules of Senate Committees (collected by Office of Senate Legal Counsel).] 77/ A leading study of Senate committee jurisdiction noted that "over- sight jurisdiction necessarily flows from specific legislative enactments, but it also emanates from broader and more vaguely defined jurisdiction which committees may exercise in particular subject matter areas." First Staff Report to the Temporary Select Committee to Study the Senate Committee System, 94th Cong., 2d Sess. 104 (1976). For a judicial application of over- sight jurisdiction in the investigatory context, see United States V. Kamin, 136 F. Supp. 791, 801 (D. Mass. 1956). CRS-24 78/ 79/ proceedings.—. Although the early case of Kilbourn v. Thompson'—_ held that the investigation in that case was an improper probe into the private affairs of individuals, the courts today will presume that there is a legislative purpose for an investigation, and the House or Senate rule or resolution authorizing the investigation does not have to specifically state the 80/ committee's legislative purpose._— Congress‘ power to investigate such 81/ diverse matters as foreign and domestic subversive activities,_— labor 82/ union corruption,—- and organiaations that violate the civil rights of §_3_/ _5i‘;/ others have all been upheld. A committee may be held to lack a legislative purpose if it appears to be conducting a legislative trial rather than an investigation to 85/ assist it in performing its legislative function.—“ Furthermore, although 78/ See, e.g., McGrain V. Daugherty, 273 U.S. 135 (1927); In re Chapman, 166 UTE; 661 (189 ). l19/ 103 U.S. 168 (1881). 80/ McGrain v. Daugherty, supra; Townsend v. United States, 95 F.2d 352 (ETC. Cir. 1938). See also Leading Cases on Congressional lnvestigatory Power, 94th Cong., 2d Sess. 7 (Comm. Print 1976) (hereafter cited as Leading Cases). For a different assessment of recent case law concerning the re- quirement of a legislative purpose, see Moreland, supra note 7, at 232. 81/ See, e.g., Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. Ufifféd States, 354 U.S. 178 (1957); McPhaul v. United States, 364 U.S. 372 (1960). .§2/ Hutcheson v. United States, 369 U.S. 599 (1962). 83/ Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. den1éET'393 U.S. 1024 (1969). _§£/ For an indication of the likely breadth of the power to investigate, see supra note 27. ‘85/ See United States v. Icardi, 140 F. Supp. 383 (D.D.C. 1956); United States V. Cross, 170 F. Supp. 303 (D.D.C. 1959). CRS-25 §_§_/ "there is no congressional power to expose for the sake of exposure," "so long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the §_7_/ exercise of that power." Pertinency. Two different issues of pertinency arise in regard to a 88/ contempt proseuction.-' First, a refusal to answer will be punished as a contempt only if the question posed to the witness by the committee was, in 89/ the language of the statute, "pertinent to the question under inquiry." The pertinency requirement, which is applicable both to the questions asked and 90/ the documents which are subpoenaed, is construed more broadly in the leg- islative than in the judicial sphere. "A judicial inquiry relates to a case, and the evidence to be admissible must be measured by the narrow limits of the pleadings. A legislative inquiry anticipates all possible cases which may arise thereunder and the evidence admissible must be responsible to the 91/ scope of the inquiry, which generally is very broad." §§/ Watkins v. United States, 354 U.S. 178, 200 (1957) (Warren, C.J.). However, the Chief Justice made it clear that he was not referring to the "power of the Congress to inquire into and publicize corruption, malad- ministration or inefficiency in agencies of the Government." ‘Ed. §Z/ Barenblatt v. United States, 360 U.S. 109, 132 (1959). .§§/ Deutch v. United States, 367 U.S. 456, 467-68 (1961). §2/ Barenblatt v. United States, 360 U.S. at 123; Watkins v. United States, 354 U.S. at 208. 99/ United States v. Orman, 207 F.2d 148 (3d Cir. 1953). 22/ Townsend v. United States, 95 F.2d 352 (D.C. Cir.), cert. denied, 303 U.S. 664 (1938). CRS-26 The second pertinency issue "reflects the requirement of the due process clause of the fifth amendment that the pertinency of the interrogation to the topic under the...committee's inquiry must be brought home to the witness at the time the questions are put to him.“2g/"Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investi- gative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto. To be meaningful, the explanation must decribe what the topic under inquiry is and the connec- tive reasoning whereby the precise questions asked relate to it.“2§/ A wit- ness is entitled "to understand the specific aspect of the committee's jurisdiction under its authorizing resolution [or House or Senate rule] to which the question relates.”2i/The committee must specifically rule on a pertinency objection and, if the objection is overruled, inform the witness of that fact before again directing him to answer the question.22/ The Court has observed that a witness might resort to several sources in determining the subject matter of an investigation. These include: (a) the House or Senate resolution authorizing the committee inquiry; (b) the committee resolution authorizing the subcommittee investigation; (c) the introductory statement of the chairman or other committee Members; ‘2g/ Deutch v. United States, 367 U.S. at 467-68. For a more detailed discussion of due process, see infra p. 42. 2g] Watkins v. United States, 354 U.S. at 214-15. 23/ Hamilton, supra note 6, at 241. 2E] The requirement that a committee rule on a witness’ objection is examined in more detail, infra notes 99-102 and accompanying text. CRS-27 (d) the nature of the proceedings; and (e) the chairman's response to a witness’ 96/ objections on the grounds of lack of pertinencyf__ Willfulness. A conviction for statutory criminal contempt cannot be sustained unless the failure to appear before the committee, to produce documents, or to respond to questions is a willful, intentional act.2Z/ How- ever, an evil motive does not have to be established.2§/Because of the 99/ willfulness requirement, and to satisfy constitutional due process standards;_- when a witness objects to a question or otherwise refuses to answer, the chairman or presiding Member should rule on any objection and, if the objec- lQQ/ tion is overruled, the witness should be clearly directed to answer. It has been observed that "there is no talismanic formula which [a] committee must use in directing [a] witness to answer," but he should be clearly informed "and not left to the risk of guessing upon pain of criminal penalties, whether the grounds for his objection to answering [are] accepted or rejected," and if they are rejected, he should be given another chance to ‘96/ Watkins v. United States, 354 U.S. at 209-14. 97/ Quinn v. United States, 349 U.S. 155, 165 (1955); United States v. Bryan:_339 U.S. 323 (1950). See also United States v. Josephson, 165 F.2d 82 (2d Cir. 1948), cert. denied, 333 U.S. 838 (1948); Deutch v. United States, 235 F.2d 853 (D.C. Cir. 1956), revrd on other grounds, 367 U.S. 456 (1961). 28/ See generally Moreland, supra note 7, at 239-42. 99/ For a discussion of due process, see infra p. 42. For a discus- sion of the related requirement of pertinency, see supra p. 25. 100/ Quinn v. United States, 349 U.S. 155 (1955); Emspak V. United States, 349 U.S. 190 (1955); Bart v. United States, 349 U.S. 219 (1955); Braden v. United States, 272 F.2d 653, 661 (5th Cir. 1959), aff'd, 365 U.S. 431 (1961). See also Watkins v. United States, 354 U.S. 178—(T957); Deutch v. United States, 367 U.S. 456 (1961). CRS-28 101/ answer. The procedure to be followed in responding to a witness‘ objections to questions has been described as follows: If a witness refuses to answer a question, the committee must ascertain the grounds relied upon by the witness. It must clearly rule on the witness’ objection, and if it overrules the witness’ objection and requires the witness to answer, it must instruct the wit- ness that his continued refusal to answer will make him liable to prosecution for contempt of Congress. By failing adequately to apprise the witness that an answer is required notwith- standing his objection the element of deliberate- ness necessary for conviction for contempt under 2 U.S.C. § 192 is lacking, and such a conviction cannot stand. 102/ Other procedural requirements. A contempt conviction can be reversed on other non-constitutional grounds. The cases make clear that committees must closely follow their own rules and the rules of their parent body in 103/ 6 104/ authorizing subpoenas and conducting investigations and hearings. It 105/ appears that a witness can be convicted of criminal contempt, but not 106/ of perjury, where a quorum of the committee was not present. 101/ Quinn v. United States, 203 F.2d 30, 33 (D.C. Cir. 1952), aff'd, 349 U.S. 155 (1955). 102/ Leading Cases, supra note 80, at 69. 103/ Shelton v. United States, 327 F.2d 601 (D.C. Cir. 1963); Liveright v. United States, 347 F.2d 473 (D.C. Cir. 1965). 104/ Yellin v. United States, 374 U.S. 109 (1963); Gofack v. United States, 384 U.S. 702 (1966). 105/ United States v. Bryan, 339 U.S. 323 (1950). 106/ The Court held in Christoffel v. United States, 338 U.S. 84 (1949), that afquorum of the committee must be present at the time that the perjurious testimony is given. It is not sufficient that a quorum is present at the start of the hearing. The difference in regard to the quorum requirement between the contempt (continued) CRS-29 Common law privileges. Common law rules of evidence as well as statutory enactments recognize a testimonial privilege for a witness in a judicial proceeding so that he need not reveal confidential communications between attorney and client, doctor and patient, husband and wife, or clergyman 107/ and parishioner. Although there is no court case directly on point, it appears that congressional committees are not legally required to allow 108/ a witness to decline to testify on the basis of such a testimonial privilege. Court decisions indicate that various rules of procedure applicable to judi- cial proceedings, such as the right to cross-examine and call other witnesses, 109/ need not be accorded to a witness in a congressional hearing. Furthermore, (1267 continued) statute (2 U.S.C. § 192) and the perjury statute (18 U.S.C. § 1621) is the provision in the latter that the statement must have been made before a "competent tribunal," and a quorum has been considered necessary for the tribunal to be competent. The Court in Christoffel recognized the constitutional power of each House to determine the rules of its proceedings and pursuant to this power, the Senate has authorized its committees to adopt rules under which one Member of a committee can constitute a quorum for the receipt of sworn testimony. Senate Rule XXVI, cl. 7(a)(2). The House allows committees to adopt rules providing for receipt of testimony by as few as two Members. House Rule XI, cl. 2(h). 192/ See generally 8 Wigmore, Evidence § 2285 (McNaughton ed. 1961). See also Fed. Rules Evid., Rule 501. For a recent analysis of the attorney- client privilege, see Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm, 70 Iowa L. Rev. 1091, 1112-44 (1985). _ ‘41O8/ See Attorney-ClientPrivilege: Memoranda Opinions of the American Law Division, Library of Congress, Comm. Print of the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce, 98th Cong., 1st Sess. 9-26 (1983) (hereafter cited as Attorney-Client Privilege Comm. Print). For a contrary view of the application of the privilege to committees, see id. at 41, 44 E5 seq. (legal memorandum of a witness asserting the privilege before the Subcommittee on Oversight and Investigations). See generally Moreland, supra note 7, at 265-67. 109/ United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971), citing Hannah v. Larche, 363 U.S. 420 (1960). CRS-30 pursuant to art. I, sec. 5, cl. 2 of the Constitution, each House may deter- mine the rules of its own proceedings. This rule-making authority, as well as general separation of powers considerations, suggest that Congress and its committees should not be obliged to abide by rules established by the courts 110/ to govern their own proceedings. Although congressional committees may not be legally obligated to recognize the privilege for confidential communications, they may do so in their discre- tion, with the decision as to whether or not to allow such a claim of privilege turning on a "weighing [of] the legislative need for disclosure against any 111/ 112/ possible resulting injury." The privilege is often observed by committees, but the House Committee on Foreign Affairs recently rejected an assertion of attorney-client privilege, and the witnesses were cited for contempt for re- 113/ fusing to answer. 110/ See generally Taylor, Grand Inquest: The Story of Congressional Investigations 227-28 (1974 reprint ed.). 111/ Attorney-Client Privilege Comm. Print, supra note 108, at 27, citing Hearings on an International Uranium Cartel before the Subcommittee on Over- sight and Investigations, House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess. 60, 123 (1977). 112/ See Hamilton, supra note 6, at 244; S. Rept. No. 2, 84th Cong., 1st Sess. (1955). Hamilton notes, 1d,, that John Dean, the former counsel to the President, testified before the Senate Watergate Committee after Nixon had "waived any attorney-client privilege he might have had because of their relationship." 11g] While the committee report questioned whether the attorney-client privilege must be recognized in the legislative sphere, the committee urged the U.S. Attorney to rely primarily on the ground that in this case the privilege would not have been upheld even in a judicial proceeding because the attorney who had been subpoenaed was rendering business and financial, rather than legal, advice to his client. H.R. Rept. No. 99-462, 99th Cong., 2d Sess. (1986). The contempt citation was subsequently approved by the (continued) VIII. CONSTITUTIONAL LIMITATIONS The Supreme Court has observed that "Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context 114/ of this case, the relevant limitations of the Bill of Rights.‘ There are constitutional limits not only on Congress‘ legislative powers, but also on its investigative powers. First Amendment. Although the first amendment, by its terms, is expressly applicable only to legislation that abridges freedom of speech, press, or assembly, the Court has held that the amendment also restricts Congress in 115/ conducting investigations. In the leading case involving the application of first amendment rights in a congressional investigation, Barenblatt v. 116/ United States, the Court held that "where first amendment rights are asserted to bar government interrogation resolution of the issue always in- volves a balancing by the courts of the competing private and public inter- ests at stake in the particular circumstances shown." Thus, unlike the (113/ continued) House, which gave careful consideration to the legal issues involved. 132 Cong. Rec. H666-99 (daily ed. Feb. 27, 1986). 114/ Barenblatt v. United States, 360 U.S. 109, 112 (1959). Not all of the provisions of the Bill of Rights are applicable to congressional hearings. For example, the sixth amendment right of a criminal defendant to cross-examine witnesses and to call witnesses in his behalf is not appli- cable to a congressional hearing. United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971). 115/ Watkins v. United States, 354 U.S. 178, 197 (1957). 116/ 360 U.S. 109, 126 (1959). CRS-32 fifth amendment privilege against self-incrimination, the first amendment does not give a witness an absolute right to refuse to respond to congressional 331/ demands for information. The Court has held that in balancing the personal interest in privacy against the congressional need for information, "the critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosure from an unwilling witness."ll§/In order to protect the rights of witnesses, in cases involving the first amendment the courts have emphasized the requirements discussed above concerning authorization for the investigation, delegation of power to investigate to the committee involved, and the existence of a legislative purpose.ll2/ Although the Court has recognized the application of the first amendment to congressional investigations, and although the amendment has frequently been asserted by witnesses as grounds for not complying with congressional 117/ 33. 118/ Watkins v. United States, 354 U.S. at 198. A balancing test was also used in Branzburg v. Hayes, 408 U.S. 665 (1972), the leading case on the issue of the claimed privilege of newsmen not to respond to demands of a grand jury for information. In its 5-4 decision, the Court concluded that the need of the grand jury for the information outweighed first amendment considerations, but there are indications in the opinion that "the infringement of protected first amendment rights must be no broader that necessary to achieve a permissible governmental purpose," and that "a State's interest must be 'compelling' or 'paramount' to justify even an indirect burden on first amendment rights." ‘Ed. at 699-700. For application of the compelling interest test in a legislative investigation, see Gibson v. Florida Legisla- tive Investigation Committee, 372 U.S. 539 (1963). ,119/ Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); United States v. Rumely, 345 U.S. 41 (1953). See also Deschler's Procedents, supra note 38, ch. 15, § 10, n. 15 and accompanying text. CRS-33 demands for information, the Court has never relied on the first amendment 120/ as grounds for reversing a criminal contempt of Congress conviction. However, the Court has narrowly construed the scope of a committee's 121/ authority so as to avoid reaching a first amendment issue. And the Court has ruled in favor of a witness who invoked his first amendment rights in 122/ response to questioning by a state legislative committee. In a 1976 investigation of the unauthorized publication in the press of the report of the House Select Committee on Intelligence, the Comittee on Standards of Official Conduct (often called the ethics committee) 120/ Leading Cases, supra note 38, at 42; Hamilton, supra note 6, at 234. Although it was not in the criminal contempt context, one court of appeals has upheld a witness’ first amendment claim. In Stamler v. Willis, 415 F.2d 1365 (7th Cir. 1969), cert. denied, 399 U.S. 929 (1970), the court ordered to trial a witness‘ suit for declaratory relief against the House Un-American Activities Comittee in which it was alleged that the comittee's authorizing resolution had a "chilling effect" on plaintiff's first amendment rights. In other cases for declaratory and injunctive relief brought against committees on first amenmnent grounds, relief has been denied although the courts indicated that relief could be granted if the circumstances were more compelling. Sanders v. McClellan, 463 F.2d 894 (D.C. Cir. 1972); Davis v. Ichord, 442 F. 2d 1207 (D.C. Cir. 1970); Ansara v. Eastland, 442 F.2d 751 (D.C. Cir. 1971). However, in Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), the Supreme Court held that the Constitution's speech or debate clause (art. I, sec. 6, cl. 1) generally bars suits challenging the validity of congressional subpoenas on first amendment or other grounds. Thus, a witness generally cannot raise his constitutional defenses until a subse- quent criminal prosecution for contempt unless, in the case of a Senate committee, the statutory civil contempt procedure is employed. See United States V. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983). 121/ United States v. Rumely, 345 U.S. 41 (1953). 122/ Gibson v. Flordia Legislative Investigation Committee, 372 U.S. 539 (1963). In the majority opinion, Justice Goldberg observed that "an essential prerequisite to the validity of an investigation which intrudes into the area of constitutionally protected rights of speech, press, association and petition [is] that the State convincingly show a substantial relation [or nexus] between the information sought and a subject of over- riding and compelling state interest. _Id. at 546. CRS-34 123/ subpoenaed four news media representatives, including Daniel Schorr. The Standards of Official Conduct Committee concluded that Schorr had obtained a copy of the Select Committee's report and had made it available for publication. Although the ethics committee found that "Mr Schorr's role in publishing the report was a defiant act in disregard of the expressed will of the House of Representatives to preclude publication of highly classified national security information," it declined to cite him for contempt for his refusal to disclose his source.l2£/ The desire to avoid a clash over first amendment rights apparently was a major factor in the gggj comittee's decision on the contempt matter. In another first amendment dispute, in the course of its probe of allegations that deceptive editing practices were employed in the produc- tion of the television news documentary program "The Selling of the Pentagon," the Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce subpoenaed Frank Stanton, the president of CBS, directing him to deliver to the subcommittee the "outtakes" relating to the program.lgé/When on first amendment grounds Stanton declined to provide the subpoenaed materials, the subcommittee unanimously voted a contempt citation, and the full committee by a vote 123/ H.R. Rept. No. 94-1754, 94th Cong., 2d Sess. 6 (1976). 125/ Id. at 47-48 (additional views of Representatives Spence, Teague, Hutchinson, and Flynt). ‘lg§/ The outtakes were portions of the CBS film clips that were not actually broadcast. The subcommittee wanted to compare the outtakes with the tape of the broadcast to determine if improper editing techniques had been used. CRS-35 127/ of 25-13 recommended to the House that Stanton be held in contempt. After 128/ extensive debate, the House failed to adopt the committee report. Fourth amendment. Dicta in opinions of the Supreme Court indicate that the fourth amendment's prohibition against unreasonable searches and sei- _1_2.9_/ zures is applicable to congressional committees. It appears that there _1_3£/ must be probable cause for the issuance of a congressional subpoena. The fourth amendment protects a congressional witness against a subpoena 131/ which is unreasonably broad or burdensome. The Court has outlined the standard to be used in judging the reasonableness of a congressional subpoena: 127/ H.R. Rept. No. 92-349, 92d Cong., 1st Sess. (1971). The legal argument of CBS was based in part on the claim that Congress could not constitutionally legislate on the subject of editing techniques, and that therefore the subcommittee lacked a valid legislative purpose for the investigation. T9} at 9 §t_§gq3 128/ The House voted to recommit the matter to the committee. 117 Cong. Rec. 23922-26, 24603-59, 24720-53 (1971). Several Members expressed concern that approval of the contempt citation would have a "chilling effect" on the press (id, at 24733) and would unconstitutionally involve the government in the regulation of the press (id. at 24732). 129/ Watkins v. United States, 354 U.S. 178, 188 (1957); McPhaul v. United States, 364 U.S. 372 (1960). 130/ Fourth amendment standards apply to subpoenas, such as those issued by committees, as well as to search warrants. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946). A congressional subpoena may not be used in a mere "fishing expedition." See Hearst v. Black, 87 F.2d 68, 71 (D.C. Cir. 1936), quoting, Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 306 (1924) ("It is contrary to the first principles of justice to allow a search through all the records, relevant or irrelevant, in the hope that something will turn up."). Cf. United States v. Groves, 188 F. Supp. 314 (W.D. Pa. 1937) (dicta). But see Eastland v. United States Servicemen's Fund, 421 U.S. 491, 509 (1975), in which the Court recognized that an investigation may lead "up some ‘blind alleys’ and into nonproductive enterprises. To be a valid legis- lative inquiry there need be no predictable end result." 131/ McPhaul v. United States, 364 U.S. 372 (1960); Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024 (1969). CRS-36 Petitioner contends that the subpoena was so broad as to constitute an unreasonable search and seizure in violation of the Fourth Amendment.... ‘Adequacy or excess in the breath of the subpoena are matters variable in relation to the nature, purposes, and scope of the inquiry'....The subcommittee's inquiry here was a relatively broad one...and the permissible scope of materials that could reasonably be sought was necessarily equally broad. It was not reasonable to suppose that the subcommittee knew precisely what books and records were kept by the Civil Rights Congress, and therefore the subpoena could only ‘specify ...with reasonable particularity, the sub- jects to which the documents...relate....‘The call of the subpoena for ‘all records, correspondence and memoranda' of the Civil Rights Congress relating to the specified subject describes them 'with all of the particularity the nature of the inquiry and the [subcommittee's] situation would permit'....'The description contained in the subpoena was sufficient to enable [petitioner] to know what particular documents were required and to select them accordingly.'g13g/ If a witness has a legal objection to a subpoena duces tecum or is for some reason unable to comply with a demand for documents, he must give the grounds for his noncompliance upon the return of the subpoena. As the court of appeals stated in one case: If [the witness] felt he could refuse compliance because he considered the subpoena so broad as to constitute an unreasonable search and seizure within the prohibition of the fourth amendment, then to avoid contempt for complete noncompliance he was under [an] obligation to inform the sub- committee of his position. The subcommittee would then have had the choice of adhering to the subpoena as formulated or of meeting the objection in light of any pertinent representations made by [the witness]. ‘133/ 132/ McPhaul v. United States, 364 U.S. at 832. _ 133/ Shelton v. United States, 404 F.2d at 1299-1300. See also Leading Cases, supra note 80, at 49. CRS-37 Similarly, if a subpoenaed party is in doubt as to what records are required by a subpoena or believes that it calls for documents not related to the investi- gation, he must inform the committee. Where a witness is unable to produce documents he will not be held in contempt "unless he is responsible for their unavailability...or is impeding justice by not explaining what happened to 135/ them.... The application of the exclusionary rule to congressional committees is in some doubt and will depend on the precise facts of the situation. It seems that documents which were unlawfully seized at the direction of a congressional investigating comittee may not be admitted into evidence in a subsequent unrelated criminal prosecution because of the command of ;§§/ the exclusionary rule. In the absence of a Supreme Court ruling, it remains unclear whether the exclusionary rule bars the admission into evidence in a contempt prosecution of a congressional subpoena which was issued on the basis of documents obtained by the committee following their unlawful seizure by another investigating body (such as a state 137/ prosecutor). 134/ McPhaul v. United States, 364 U.S. at 382. 135/_;g. at 378. 136/ Nelson v. United States, 208 F.2d 505 (D.C. Cir.), cert. denied, 346 U.S. 827 (1953). 1 7/ In United States v. Mcsurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972):—the court of appeals reversed contempt convictions where the sub- committee subpoenas were based on information "derived by the subcommittee through a previous unconstitutional search and seizure by [state] officials and the subcommittee's own investigator." The decision of the court of appeals in the contempt case was rendered in December, 1972. In a civil case brought by the criminal defendants, Alan and Margaret McSurely, against Senator McClellan and the subcommittee staff for alleged violations (continued) CRS-38 Fifth amendment privilege against self-incrimination. Although it has never been necessary for the Supreme Court to decide the issue, in dicta it has been indicated that the privilege against self-incrimination afforded by the fifth amendment is available to a witness in a congressional investiga- .E_§./ l_3__9./ tion. The privilege is personal in nature, and may not be invoked in _L‘:_Q/ 1511/ E21 behalf of a corporation, small partnership, labor union, or other (lgzf continued) of their constitutional rights by the transportation and use of the seized documents, the federal district court in June, 1973, denied the motion of the defendants for summary judgment. While the appeal from the decision of the district court in the civil case was pending before the court of appeals, the Supreme Court held in Calandra v. United States, 414 U.S. 338 (1974), that a grand jury is not precluded by the fourth amend- ment's exclusionary rule from questioning a witness on the basis of evidence that had been illegally seized. A divided court of appeals subsequently held in Mcsurely v. McClellan, 521 F.2d 1024, 1047 (D.C. Cir. 1975), that under Calandra "a congressional committee has the right in its investigatory capacity to use the product of a past unlawful search and seizure." The decision of the three-judge panel in the civil case was vacated and on rehearing by the full District of Columbia Circuit, five judges were of the view that Calandra was applicable to the legislative sphere and another five judges found it unnecessary to decide whether Calandra applies to committees but indicated that, even if it does apply to the legislative branch, the exclusionary rule may restrict a committee's use of unlawfully seized documents if it does not make mere "derivative use" of them but commits an independent fourth amendment violation in obtaining them. Mcsurely v. McClellan, 553 F.2d 1277, 1293-94, 1317-25 (D.C. Cir. 1976) (en banc). The Supreme Court granted certiorari in the case, 434 U.S. 888_(1977), but subsequently dismissed certiorari as improvidently granted, with no explanation for this disposition of the case, sub nom. McAdams v. Mcsurely, 438 U.S. 189 (1978). Jury verdicts were eventually returned against the Senate defendants, but were reversed in part on appeal. 753 F.2d 88 (D.C. Cir. 1985), cert. denied, 54 U.S.L.W. 3372 (Dec. 3, 1985). (For a chronology of the confusing and lengthy litigation in the Mcsurely case, see 753 F.2d at 115-17.) 138/ Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155 (1955). 139/ See McPhaul v. United States, 364 U.S. 372 (1960). See also McCormick, Evidence § 120 (Cleary ed. 1984). 140/ Hale v. Henkel, 201 U.S. 43 (1906). 141/ Bellis v. United States, 417 U.S. 85 (1974). 142/ See United States v. White, 322 U.S. 694 (1944). CRS-39 143/ "artificial" organizations. The privilege protects a witness against being compelled to testify but not against a subpoena for existing documentary 144/ evidence. However, where compliance with a subpoena duces tecum would constitute implicit testimonial authentication of the documents produced, 145/ the privilege may apply. 146/ There is no required verbal formula for invoking the privilege. A committee should recognize any reasonable indication, such as "the fifth 147/ amendment," that the witness is asserting his privilege. Where a committee is uncertain whether the witness is in fact invoking the privilege against self-incrimination or is claiming some other basis for declining to answer, the committee should direct the witness to specify his privilege 148/ or objection. The committee can review the assertion of the privilege by a witness to determine its validity, but the witness is not required to prove the pre- cise hazard that he fears. In regard to the assertion of the privilege in judicial proceedings, the Supreme Court has advised: 143/ Bellis v. United States, 417 U.S. at 90. See also Rogers v. United States, 340 U.S. 367 (1951) (Communist Party). 144/ Fisher v. United States, 425 U.S. 391, 409 (1976); Andresen v. Maryland, 427 U.S. 463 (1976). The cases concerned business records and there may be some protection available in the case of a subpoena for personal papers. See McCormick, supra note 139, at §§ 126, 127. 145/ United States v. Doe, 104 S. Ct. 1237 (1984); Fisher v. United States, 425 U.S. 391 (1976). See also Curcio v. United States, 354 U.S. 118 (1957); McCormick, supra note 139, at § 126. 146/ Although there is no case law on point, it seems unlikely that Miranda warnings are required. That requirement flows from judicial concern as to the validity of confessions evoked in an environment of a police station, isolated from public scrutiny, with the possible threat of physical and prosecutorial jeopardy; an environment clearly distinguishable from a congressional context, see Miranda v. Arizona, 384 U.S. 436 (1966). 147/ Quinn v. United States, 349 U.S. 155 (1955). 148/ Emspak v. United States, 349 U.S. 190 (1955). See also Leading Cases, supra note 80, at 63. CRS-40 To sustain the privilege, it need only be evident, from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result....To reject a claim, it should be ‘perfectly clear, from a careful consideration of all the circumstances of the case, that the witness is mistaken, and that the answers cannot possibly have a tendency‘ to incriminate. 142/ The basis for asserting the privilege was elaborated upon in a lower court decision: The privilege may only be asserted when there is reasonable apprehension on the part of the witness that his answer would furnish some evidence upon which he could be convicted of a criminal offense... or which would reveal sources from which evidence could be obtained that would lead to such conviction or to prosecution therefor....Once it has become apparent that the answers to a question would expose a witness to the danger of conviction or prosecution, wider latitude is permitted the witness in refusing to answer other questions. 159/ The privilege against self-incrimination may be waived by declining to assert it, specifically disclaiming it, or testifying on the same ‘ matters as to which the privilege is later asserted. However, because of the importance of the privilege, a court will not construe an ambiguous 151/ statement of a witness before a comittee as a waiver. 149/ Hoffman v. United States, 341 U.S. 479, 486-87 (1951). 150/ United States v. Jaffee, 98 F. Supp. 191, 193-94 (D.D.C. 1951). See also Simpson v. United States, 241 F.2d 222 (9th Cir. 1957) (privilege inapplicable to questions seeking basic identifying information, such as the witness‘ name and address). 151/ Emspak v. United States, 349 U.S. 190 (1955). See also Johnson v. v. Zerbst, 304 U.S. 458, 464 (1938). CRS-41 Where a witness asserts the privilege, the full House or the committee conducting the investigation may seek a court order which (a) directs the witness to testify and (b) grants him immunity against the use of his testimony, or other evidence derived from his testimony, in a subsequent criminal prosecutionf£:g/ The immunity that is granted is "use" imunity, not "transactional" immunity. Neither the immunized testimony that the witness gives, nor evidence derived therefrom, may be used against him in a subsequent criminal prosecution, except one for perjury or contempt relating to his testimony. However, he may be convicted of the crime (the 133/ "transaction") on the basis of other evidence. The application for the judicial immunity order must be approved by a majority of the House or Senate or by a two-thirds vote of the full committee seeking the order. The Attorney General must be notified at least ten days 154/ prior to the request for the order, and he can request a delay of twenty 155/ days in issuing the order. Although the order to testify may be issued 152/ 18 U.S.C. §§ 6002, 6005. 123/ The constitutionality of granting a witness only use immunity, rather than transactional immunity, was upheld in Kastigar v. United States, 406 U.S. 441 (1972). In United States v. Romano, 583 F.2d 1 (1st Cir. 1978), the defendant appealed from his conviction of several offenses on the ground, inter alia, that the prosecution's evidence had been derived, in part, from imunized testimony that he had given before a Senate sub- committee. Although the conviction was affirmed, the case illustrates the difficulty that the prosecutor may have in establishing that its evidence was not "tainted" but rather was derived from independent sources (see Kastigar, 406 U.S. at 461-62), especially in a case where there was some cooperation in the investigation between a committee and the Justice De- partment prior to the grant of immunity to testify before the committee. _ 154/ However, the Justice Department may waive the notice requirement. Application of Senate Permanent Subcommittee on Investigations, 655 F.2d 1232, 1236 (D.C. Cir.), cert. denied, 454 U.S. 1084 (1981). 155/ 13 U.S.C. § 6005. CRS-42 156/ before the witness‘ appearance, it does not become legally effective until the witness has been asked the question, invoked his privilege, and been presented with the court order.l2l/The role of the court in issuing the order has been held to be ministerial and thus, if the procedural requirements under the statute have been met, the court may not refuse 158 to issue the order or impose conditions on the grant of immunity. Fifth amendment due process rights. The due process clause of the fifth amendment requires that "the pertinency of the interrogation to the topic under the...committee's inquiry must be brought home to the witness at the time the questions are put to him."£22/ "Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and She 160 manner in which the propounded questions are pertinent thereto." Addi- tionally, to satisfy both the requirement of due process as well as the 156/ Application of Senate Permanent Subcommittee on Investigations, 655 F.2d at 1237. 157/ See In re McElreath, 248 F.2d 612 (D.C. Cir. 1957) (en banc). 158/ Application of U.S. Senate Select Committee on Presidential Campaign Activities, 361 F. Supp. 1270 (D.D.C. 1973). In dicta, however, the court referred to the legislative history of the statutory procedure, which suggests that although a court lacks power to review the advisa- bility of granting immunity, a court may consider the jurisdiction of Congress and the committee over the subject area and the relevance of the information that is sought to the committee's inquiry. 361 F. Supp. at 1278-79. 159/ Deutch v. United States, 367 U.S. 456, 467-68 (1961). As the court explained in that case, there is a separate statutory requirement of pertinency. For a more detailed discussion of pertinency, see supra p. 25. 160/ Watkins v. United States, 354 U.S. 178, 214-15 (1957). CRS-43 statutory requirement that a refusal to answer be "willful," a witness should be informed of the committee's ruling on any objections he raises 161/ or privileges which he asserts. IX. CONTEMPT BY AN EXECUTIVE BRANCH OFFICIAL: EXECUTIVE PRIVILEGE AND PRECEDENTS The preceding sections of this report have been mainly concerned with contempts committed by private persons. Only once has the full House or Senate voted to hold the head of an executive department or agency in con- tempt, although in several instances committees or subcommittees have voted contempt citations against members of the Cabinet, with each of these disputes being resolved before a contempt vote by the parent body. When an official of the executive branch refuses to respond to a committee's questions or to produce documentary information, unique legal issues and problems arise because of (a) the grounds that may be claimed by the executive for not complying with a committee's subpoena; (b) the inadequacies of the contempt process in such a situation; and (c) the legal and political strategies which may be employed by both branches. This section of the report briefly reviews the constitutional basis sometimes asserted by the executive for not complying with congressional requests for information as well as the few instances in which executive branch officials have been cited for contempt. The next section of the report addresses some special problems posed by contempts by executive officials and some alternatives to contempt in these kinds of cases. 161/_ld.; Deutch v. United States, 367 U.S. 456 (1961). For a more detailed discussion of the requirement that a committee rule on a witness’ objection, see supra notes 99-102 and and accompanying text. CRS-44 Executive privilege. A brief discussion of the legal grounds that may be raised by the executive is required in order to understand the nature of these kinds of disputes between the two branches. Furthermore, to the extent that these grounds have a constitutional basis, they may limit the congressional power to investigate and to cite for contempt just as the first, fourth, and fifth amendments do. In some cases, the executive may refuse to produce demanded information on the ground that a statute requires or permits the information to be withheld from Congress.lég/In other instances, there may be an assertion of executive privilege, a doctrine which, like Congress’ powers to investigate 163/ and cite for contempt, has constitutional roots. No decision of the Supreme Court resolves the question of whether there are any circumstances in which the executive branch can refuse to provide information sought by 7 164/ the Congress on the basis of executive privilege. However, in United 162/ For examples of such claims, see infra notes 195 and 196 and accompanying text. The validity of such claims is considered in Rosenthal and Grossman, Congressional Access to Confidential Information Collected by Federal Agencies, 15 Harv. J. on Legis. 74 (1977). Relevant judicial precedents cast doubt on the validity of these arguments by the executive. See Ashland Oil, Inc. v. FTC, 409 F. Supp. 297 (D.D.C.), affid 548 F.2d 977 (D.C. Cir. 1976) (Per—Euriam); Exxon Corp. v. FTC, 589 F.2d 582 (D.C. Cir. 1978). “" 163/ See supra notes 7-10, 22-26 and accompanying text for a review of the constitutional basis of these congressional powers. _164/ Such executive-legislative clashes have only recently been presented to the judiciary for resolution. Instead, the political process and negotiations have generally been employed, sometimes resulting in a compromise whereby the information is provided to Congress but under restrictive conditions, but at other times resulting in stalemate. For an historical account prepared by the Justice Department of major disputes between the Congress and the executive over access to information and documents, see Attachment C to Minority Views in H.R. Rept. No. 97-968, 97th Cong., 2d Sess. 90-117 (1982). See also Senate Committee on the Judiciary, Refusals by the Executive Branch to Provide Information to the Congress, 1964-1973 (Comm. Print 1974). CRS-45 165/ States v. Nixon, involving a judicial subpoena issued to the President 166/ at the request of the Watergate Special Prosecutor, the Supreme Court found a constitutional basis for the doctrine of executive privilege in "the supremacy of each branch within its own assigned area of constitu- 167/ tional duties" and in the separation of powers, and although it con- sidered presidential communications to be "presumptively privileged," the Court rejected the President's contention that the privilege was absolute, 168/ precluding judicial review whenever it is asserted. Having concluded that in the present case the claim of privilege was not absolute, the Court resolved the "competing interests" (the President's need for confidentiality vs. the judiciary's need for the materials in a criminal proceeding) "in a manner that preserves the essential functions 169/ of each branch," and held that the judicial need for the tapes out- 170/ VI weighed the President's "generalized interest in confidentiality.... 165/ 418 U.S. 683 (1974). 166/ The subpoena was for certain tape recordings and documents relating to the President's conversations with aides and advisors. The materials were sought for use in a criminal trial. 167/ 418 U.S. at 705, 706. See also id. at 708, 711. 168/ Ed. at 705, 708. Citing Marbury v. Madison, 1 Cranch 137, 177 (1803), the Court held that it had the authority to review the President's claim of executive privilege. 418 U.S. at 703-05. The materials in question in United States v. Nixon related to confidential communications between the President and his advisors. The Court indicated that it might proceed differently in a case involving military or diplomatic matters. Id. at 706. 169/_;g. at 707. 170/ Id. at 713. A balancing test was also employed by the district court in United States v. Tobin, 195 F. Supp. 588, 612 (D.D.C. 1961), rev'd on other grounds, 306 F.2d 270 (D.C. Cir.), cert. denied, 371 U.S. 902 (1962), in which the executive director of the Port of New York (continued) CRS-46 The Court was careful to limit the scope of its decision, noting that it was not addressing a case involving a congressional demand for information or a 171/ case involving the President's interest in preserving state secrets. Although United States v. Nixon did not involve a presidential claim of executive privilege in response to a congressional subpoena, in Senate Select Committee on Presidential Campaign Activities v. §ixon,LZE/the court of appeals reviewed the President's assertion of executive privilege as _g grounds for not complying with a committee subpoena for tape recordings.lZ£/ The court found that "the presumption that the public interest favors confidentiality [in presidential comunications] can be defeated only by a strong showing of need by another institution of government?-a showing that the responsibilities of that institution cannot responsibly be fulfilled Without access to records of the President's deliberations...." According to the court, "the showing required to overcome the presumption favoring confidentiality" rests "on the nature and appropriateness of the function (£Zg/ continued) Authority (an agency established by interstate compact and treated by the court "as a repository of both federal and state inter- ests, sui generis in the federal system," 195 F. Supp. at 610 n. 97) argued, inter alia, that executive privilege and considerations of comity between the states and the federal government barred a House subcommittee from access to certain Port Authority documents. The court of appeals reversed. To avoid reaching the difficult constitutional issues involved, the appellate court construed the authorizing resolution narrowly and found that the committee lacked authority to subpoena the documents in dispute. 171/ gg. at 712 n. 19. 172/ 498 F.2d 725 (D.C. Cir. 1974)., 173/ The subpoena was for tapes of conversations between the President and J3EE Dean. The comittee sought a declaratory judgment that its sub- poena was lawful and that the President's refusal to comply with it, on the basis of executive privilege, was illegal. CRS-47 in the performance of which the material [is] sought, and the degree to which the material [is] necessary to its fulfillment....[T]he sufficiency of the committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the committee's 174/ functions." The court found that, in the circumstances of that case, the legislative and oversight needs of the committee for the subpoenaed tapes 175/ were not sufficient to overcome the presidential claim of privilege. The Burford contempt. The only case in which the full House or Senate has voted a contempt citation against the head of an executive 176/ department or agency is that of Anne Gorsuch Burford, the Administrator of the Environmental Protection Agency (EPA). Acting pursuant to a claim of executive privilege by President Reagan, Burford refused to provide to the Subcommittee on Investigations and Oversight of the House Comittee on Public Works and Transportation certain documents in open law enforcement files which were alleged to be "enforcement sensitive."£ZZ/ The papers 174/ 498 F.2d at 730. lZ§/ The court described the committee's oversight need for the tapes as "merely cumlative" in light of the fact that the House Judiciary Committee had begun an inquiry, with express constitutional authority, into presidential impeachment, and the fact that the Judiciary Committee already had copies of the tapes subpoenaed by the Watergate Committee. Id. at 732. The court also found the Senate committee's legislative need to be_insuffi- cient to justify enforcement of the subpoena since it had not clearly established that "specific legislative decisions...cannot responsibly be made without access to materials uniquely contained in the tapes or without resolution of the ambiguities that the transcripts may contain.’ Id. at 733. 176/ Leading Cases, supra note 80, at 81f82; Hamilton and Grabow, A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas, 21 Harv. J. on Legis. 145, 147 (19845) 177/ H.R. Rept. No. 97-968, 97th Cong., 2d Sess. 16, 18, 42-43 (1982). CRS-48 178/ related to EPA's enforcement of the Superfund legislation. Both the subcommittee and the full committee approved a resolution finding Burford 179/ to be in contempt and on December 16, 1982, the full House of Representatives agreed to the resolution directing the Speaker to certify the committee's report concerning the contempt to the United States Attorney for the 180/ District of Columbia for criminal proceedings. Following the contempt vote by the House, the U.S. Attorney, relying 181/ on the doctrine of prosecutorial discretion, did not present the matter to the grand jury. Instead of instituting criminal proceedings against Burford, the U.S. Attorney joined an action brought by the Justice Department against 182/ the House, seeking a declaratory judgment that Burford's conduct was legal. The Justice Department contended that it was more appropriate to resolve the 178/ The act is officially cited as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 95-510, 94 Stat. 11 (1980). 179/ H.R. Rept. No. 97-968, supra note 177, at 20, 23. 180/ H.R. Res. 632, 97th Cong., 128 Cong. Rec. H10033-61 (daily ed. Dec. 16, 1982). 181/ See Burford Contempt Prosecution Hearing, supra note 54, at 30. ‘182/ Hamilton and Grabow, supra note 176, at 153. The U.S. Attorney also suggested that it would have been inappropriate for him to institute a criminal suit against Burford while the civil suit brought by the Justice Department was pending. See letter of Dec. 27, 1982, from U.S. Attorney Stanley Harris to Speaker O'Neill, reprinted in H.R. Rept. No. 98-323, 98th Cong., 1st Sess. 48-49 (1983). For a more detailed statement of the position of the U.S. Attorney in the Burford matter, see Burford Contempt Prosecution Hearing, supra note 54, at 27-62 (testimony of Stanley Harris). The refusal of the U.S. Attorney to seek an indictment and the actions of the Justice Department in the case prompted the chairman of the subcommittee that had issued the subpoena to request the House Judiciary Committee to consider whether the U.S. Attorney and the Attorney General should be impeached for failing to faithfully execute the law. See 129 Cong. REE, H30 (daily ed. Jan. 3, 1983); 128 Cong. Reg. HIO477-78 (daily ed. Dec. 20, 1982). CRS-49 legal issues involved in a civil suit than in a criminal proceeding for contempt of Congress,l§§/but the district court disagreed and dismissed the department's suit. Recognizing the difficult constitutional issues involved, the court followed a policy of judicial restraint and urged the parties to reach a negotiated settlement. If this were not possible, the court stated that the proper forum for raising a claim of executive privilege would be a 184/ criminal contempt trial. Following dismissal of the civil suit, an agreement was reached providing for congressional access to the EPA documents under terms intended to protect 1§§/ the confidentiality of those which were "enforcement sensitive." After the agreement was implemented, the House adopted a resolution which recited additional facts pertinent to the contempt citation, and which directed the Speaker to certify a copy of the resolution to the United States Attorney. The resolution stated that, pursuant to the agreement, the Public Works Committee had been granted access to the documents and that "further proceedings 186/ concerning the contumacious conduct of the witness were unnecessary...." 183/ See Points and Authorities in Support of Plaintiffs’ Motion for Summary Judgment, reprinted in Burford Contempt Prosecution Hearing, supra note 54, at 127, 143-44. See also Department of Justice Authorisation: Hearing before the House Judiciary Committee, 98th Cong., 1st Sess. 35, 43 (1983) (testimony of Atttorney General Smith). 184/ United States v. House of Representatives, 556 F. Supp. 150 (DODOCO 185/ Investigation of the Environmental Protection Agency: Report on the President's Claim of Executive Privilege over EPA Documents, Abuses in the Superfund Program, and Other Matters, 98th Cong., 2d Sess. 23-24 (House Energy and Commerce Comm. Print 98-AA, 1984) (hereafter cited as investigation of the EPA); Hamilton and Grabow, supra note 176, at 147. Burford resigned from the EPA on March 9, 1983, amidst allegations of conflicts of interest and manipulation of the Superfund for political purposes. 186/ H.R. Res. 180, 98th Cong., 129 Cong. Rec. H6441-47 (daily ed. Aug. 3, 1983). CRS-50 The resolution did not specifically purge Burford of the contempt,i§Z/in large part because of legal doubts as to the ability of the House to adopt a resolution purging a contempt comitted during a prior Congress,l§§/but it did clarify the legal situation that resulted from the contempt, the failure of the U.S. Attorney to seek an indictment, and the subsequent disclosure of the documentsflgg/The resolution also expressed the view of the House that sub- stantial compliance with the subpoena had occurred and that a contempt pros- ecution against Burford was no longer necessary. However, the resolution reasserted the position of the House that "no officer charged with the 187/ See H.R. Rept. No. 98-323, 98th Cong., 1st Sess. 4 n.1 (1983) (committee report on H.R. Res. 180, supra note 186). 188/ Compare H.R. Rept. No. 98-323 supra note 18/, at 60-61 (additional views of Congressmen Gene Snyder and Guy Molinari) with Burford Contempt Prosecution Hearing, supra note 54, at 18-26. The resolution was adopted pursuant to a provision in the agreement granting access to the documents. Under this provision, the subcommittee chairman represented that he would introduce a resolution containing recitals that implementation of the procedures established in the agreement constituted a purging of the con- tempt. However, at the time the agreement was being negotiated, both the executive and legislative branches were aware of the legal questions concerning legislative power to purge a contempt committed in a prior Congress. Burford Contempt Prosecution Hearing, at 22. In addition to doubts about the ability to purge a contempt in a prior Congress, the agreement was signed by the chairman of the subcommittee that had subpoenaed the documents, and he could not bind the entire House to adopt a purging resolution. Ed. at 21-22. Consequently, the various recitals in H.R. Res. 180 were included in the preamble, not in the legally binding body of the resolution. Burford Contempt Prosecution Hearing, at 22 (remarks of Stanley Brand, General Counsel to the Clerk of the House). 189/ 129 Cong. Rec. H6442 (daily ed. Aug. 3, 1983). CRS-51 responsibility to discharge duties required by [2 U.S.C. § 194] is, or was at any time, relieved of or excused from the duties imposed upon him by such 190/ law.... Apparently because the resolution, on the one hand, indicated that a contempt prosecution was no longer required but, on the other, did not relieve the U.S. Attorney of the duties imposed on him under 2 U.S.C. § 194, he sub- sequently presented the matter to the grand jury, which did not return an 191/ indictment in the case. 190/ The resolution was carefully drafted in light of the historical importance of the Burford contempt citation, and included additional recitals that clarified the limited purpose of the resolution. Specifi- cally the resolution stated in the preamble that (a) in the view of the gHouse, the statutory criminal contempt procedure is applicable to execu- tive branch officials and (b) the House did not acknowledge that substan- tial compliance with a subpoena after certification of a contempt constitutes legal compliance or that any efforts by a witness after the return date of a subpoena bars proceedings for criminal contempt. See H.R. Res. 180, supra note 186. 191/ See Report of the House Committee on the Judiciary on the Role of the_5epartment of Justice in the Withholding of Environmental Protection Agency Documents from Congress in 1982-1983, H.R. Rept. No. 99-435, 99th Cong, 1st Sess. (1985). At the time the agreement between the subcommittee and the executive branch concerning access to the documents was being negotiated, it was contemplated by the subcommittee chairman that, in the event of compliance by the executive with the agreement, the United States Attorney would present to the grand jury both the original contempt citation and the subsequent resolution of the House certifying that a prosecution was no longer required. It was hoped by the subcommittee chairman that in such an eventuality no indictment would be returned. See Burford Contempt Prosecution Hearing, supra note 54, at 22. The apparent purpose, from the legislative perspective, of having the matter presented to the grand jury after the adoption of H.R. Res. 180, supra note 186, was to establish the applicability of the statutory criminal contempt procedure to executive branch officials. CRS-52 Committee citations of Cabinet secretaries. Although Burford is the only head of an executive department or agency ever to be voted in contempt by the full House or Senate, several members of the Cabinet have been found in con- tempt by committees or subcommittees, although these disputes have been resolved before contempt votes by the parent body. In two instances members of the Cabinet have been cited for contempt by full committees. In 1975, the House Select Committee on Intelligence voted to recommend that Secretary of State Kissinger be cited for contempt for failing to comply with a subpoena calling for the production of documents relating to State Department recommendations to the National Security Council of covert actions.l22/ President Ford asserted that these documents were protected from disclosure by executive privilege. Following negotiations between the executive branch and the committee, the subpoenaed information was provided to the committee in an oral briefing. Therefore, the report of the committee recommending proceedings for contempt was recommitted before the full House could vote 133/ on it. In the second case in which a member of the Cabinet was cited for contempt by a full committee, the House Energy and Commerce Committee on Febraury 25, 1982, approved a contempt resolution against Interior Secretary Watt for refusing to provide documents subpoenaed by the Over- sight and Investigations Subcommittee. President Reagan asserted a claim of executive privilege over the documents, which related to Canada's right to reciprocal status under laws concerning leasing of mineral rights on 192/ H.R. Rept. No. 94-693, 94th Cong., 1st Sess. (1975). 193/ 121 Cong. Rec. 39730 (1975). CRS-53 federal lands. After the committee contempt vote, an agreement was reached under which the documents were made available for review by subcommittee Members, and accordingly the committee decided not to bring the contempt resolution before 194/ A the House. There have also been a few cases in recent years in which department secretaries have been cited for contempt by subcommittees, with the disputes being resolved or the information provided prior to votes on the contempt resolutions by the full committees. Perhaps the best known such incident involved Secretary of Commerce Morton, who was cited for contempt on November 11, 1975, by the Oversight and Investigations Subcommittee of the House Committee on Interstate and Foreign Commerce for failing to provide documents relating to compliance by American companies with the Arab boycott. Morton relied not on executive privilege but rather on the interpretation by the Attorney General of the confidentiality provision of the Export Administration Act. Following negotiations, Morton produced the documents 133/ prior to a vote by the full committee on the contempt resolution. Other Cabinet secretaries cited for contempt by subcommittees include 196/ Health, Education and Welfare Secretary Califano in 1978, Energy 194/ H.R. Rept. No. 97-898, 97th Cong., 2d Sess. (1982). 192/ See Contempt Proceedings against Secretary of Commerce Rogers C.B. Morton, Including Hearings and Related7Documents before the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce, 94th Cong., 1st Sess. (1975). 196/ Califano was cited by the Oversight and Investigations Subcommittee of the House Interstate and Foreign Commerce Committee for declining to disclose subpoenaed documents about the processing methods of drug manufac- turers. The Secretary relied on an interpretation by the Attorney General of a statutory confidentiality provision, 21 U.S.C. § 331(j). After the subcommittee contempt vote, Califano provided an edited version of the information sought. CRS-54 197/ 198/ Secretary Duncan in 198Q, Energy Secretary Edwards in 1981, and Attorney 199/ General Smith in 1984. X. CONTEMPT BY AN EXECUTIVE BRANCH OFFICIAL: PROBLEMS AND ALTERNATIVES Problems. The Burford matter and the several Cabinet members who have been cited by committees or subcommittees are exceptional cases that illus- trate a serious problem. Disputes over congressional access to executive branch information are often resolved informally after negotiation and compromise, with both parties to a dispute often being guided by political 200/ realities as well as legal considerations. The problem is that none of the three types of contempt proceedings is completely satisfactory in the case of an executive branch official who has refused to respond to a 121/ After being cited for contempt by the Subcommittee on Environment, Energy, and Natural Resources of the House Government Operations Comittee, Duncan produced some of the subpoenaed documents, which related to President Carter's oil import fee. Duncan had claimed that the papers were protected by executive privilege. See 38 Cong. Quarterly 1308, 1352-53 (May 17, 1980). 128/ Edwards was cited by the same subcomittee which had cited Duncan and, like Duncan, he produced the subpoenaed documents before the full committee acted on the contempt citation. The papers related to the cost of subsidizing a synfuel project. See 39 Cong. Quarterly 1342 (July 25, 1981); 39 Cong. Quarterly 1425 (Aug. 1, 1981). 122/ Smith was cited by the Senate Judiciary Subcommittee on Administrative Practice and Procedure for not producing Justice Department records concerning a criminal investigation of allegedly fraudulent cost- overrun claims submitted to the Navy by a defense contractor. See Washington Post, Nov. 1, 1984, at A15. 299/ See Leading Cases, supra note 80, at 81-82; The Conflict between Executive Privilege and Congressional-Oversight: 1The Gorsuch Controversy, 1983 Duke L.J. 1333, 1350-51. Executive branch refusals to provide informa- tion to congressional committees occur with some frequency, although of course few escalate to the magnitude of the Burford clash. See Refusals by the Executive Branch to Provide Information to the Congress, 1964-1973, 93d Cong., 2d Sess. (Senate Judiciary Comm. Print 1974). CRS-55 congressional demand for testimony or documents and where informal means of resolving the dispute have failed. The newest of the three methods, statutory civil contempt, is by the terms of the statute granting furisdiction to the court, inapplicable in the case of a "subpoena or order issued to an officer or employee of the 291/ Federal Government acting within his official capacity." Inherent contempt has been described as "unseemly" and cumbersome, especially for a modern Congress with a heavy legislative workload that would be interrupted 202/ by a trial at the bar. Furthermore, the prompt judicial review available to the contemnor by means of a petition for a writ of habeas corpus in the case of inherent contempt may cause the executive to seek judicial resolution 7 203/ of the matter rather than pursuing a negotiated settlement. When used against the executive branch, both the inherent and statutory criminal contempt procedures may be criticized as "an attempt by one branch to assert its authority by imposing personal sanctions on officials who seek to perform their duty for another branch equal to the Congress in its respon- 204/ sibility to serve the people." 201/ 28 U.S.C. § 1364(a). 202/ See supra note 37. However, some feel that inherent contempt is not necessarily unseemly but is rather "merely...the mechanism that opens the door to judicial review" by means of a habeas corpus proceeding. Berger, Executive Privilege: A Constitutional Myth 310 (1974). 203/ As to the relative advantages of a judicial resolution and a negotiated settlement of such executive-legislative conflicts, compare Lee, supra note 37, at 255 n.71 with Berger, supra note 202, at 310. 204/ Levi, Some Aspects of Separation of Powers, 76 Colum. L. Rev. 371, 390 (1976). CRS-56 There are other drawbacks to use of the criminal procedure. Under that statute, after a contempt citation has been approved by the House or Senate, the matter is referred to the United States Attorney, an executive branch appointee. In the Burford controversy, the U.S. Attorney relied on the doctrine of prosecutorial discretion and failed to present the matter to the grand jury until after the House had approved a resolution indicating that a criminal prosecution was no longer required.;g2/ Following the Burford matter, hearings were held on legislation to require the U.S. Attorney to present contempt citations to a grand jury within sixty days, or to provide for the appointment of a special prosecutor (independent counsel) in in- stances in which an executive branch official is cited for contempt and to 206/ require such special prosecutor to seek an indictment. It is noted that, at present, 2 U.S.C. § 194 simply makes it the "duty" bf the prosecutor to present a congressional contempt citation to the grand jury for its action. It is uncertain whether that duty is mandatory or discretionary. Furthermore, the statute does not compel the U.S. Attorney to actually prosecute once an indictment has beenreturned, and it may be unconstitutional to compel the executive branch to proceed with a case after 295/ For analysis of the question of whether the duty of the U.S. Attorney is mandatory or discretionary, see supra notes 49-54 and accompanying text. For discussion of the application of the doctrine of prosecutorial discretion in the Burford matter, see supra notes 181-191 and accompanying text. 206/ Prosecution of Contempt of Congress: Hearing before the House Judiciary Subcommittee on Administrative Law and Governmental Relations on H.R. 2684 and H.R. 3456, 98th Cong., 1st Sess. (1983) (hereafter cited as House Judiciary Contempt Hearings). See also H.R. 3836, 99th Cong. CRS-57 207/ an indictment has been handed down. The Justice Department raised both constitutional and policy objections to the proposals introduced in the 208/ wake of the Burford contempt. Justice argued that it would be uncon- stitutional to require the U.S. Attorney to prosecute or even to refer a 209/ case to the grand jury. There are other problems with use of the criminal contempt statute. First, unless the prosecution is by an independent counsel, ethical 201/ See United States v. Cox, 342 F.2d 167, 179 (5th Cir.) (en banc) (Judges Rives, Gewin, and Bell,_concurring in part and dissenting in part), cert. denied, 381 U.S. 935 (1965); United States v. Greater Blouse, Skirt & Neckwear Contractors Ass'n, 228 F. Supp. 483, 489-90 (S.D. N.Y. 1964); 87 Yale L.J. 1692, 1719-21 (1978). But see Confication Cases, 74 U.S. (7 Wall.) 454, 457 (1868); 2 Ops. Att'y Gen. 482, 486 (1831). Furthermore, under Fed. R. Crim. P. 7(c)(1), an indictment is to "be signed by the attorney for the government," and this has been held to be a discretionary act. United States v. Cox, supra. Additionally, the U.S. Attorney may move to dismiss an indictment and thereby terminate a prosecution, although leave of the court is required to do so. Fed. R. Crim. P. 48(a). 298/ The Department characterized the bills as unconstitutional, "draconian and potentially destructive" measures which would lead to needless constitutional confrontations between the branches. Memorandum from Robert McConnell, Assistant Attorney General for Legislative and Inter- governmental Affairs, to Honorable Peter Rodino, reprinted in House Judi- ciary Contempt Hearings, supra note 206, at 35, 48. 202/ Although the Department's argument was based largely on the concept of prosecutorial discretion, it also suggested that such legisla- tion might violate the bill of attainder clause (id. at 40-41), or violate the proscription announced in Egg v. Chadha, 462 U.S. 919 (1983), against unilateral actions by the House or Senate directing an executive branch official to take any particular action. House Judiciary Contempt Hearings, supra note 206, at 41 n. 5. Justice also contended that "it would be an unconstitutional restriction on executive authority to require the prose- cution for contempt of an executive official who had asserted a claim of executive privilege at the direction of the President" and that by sub- jecting such an official to criminal prosecution for withholding docu- ments, the bills "would impair the President's powers to protect the confidentiality of presumptively privileged documents...." ‘Ed. at 35. Justice suggested as an alternative a statutory procedure for civil adjudication of executive privilege disputes. Id. at 46-48. See also ‘id. at 46 n. 9. ‘- CRS-58 considerations may preclude the U.S. Attorney from prosecuting after his superior, the Attorney General, has advised the official not to comply with a congresssional subpoena.£lg/ Second, the President might pardon 6, the official, even if he were to be indicted, prosecuted, and convicted.Ell/ And third, even if an executive official were to be prosecuted and con- victed, the comittee or the House that issued the subpoena will not necessarily get the documents or other information which it needs since criminal contempt is punitive, not coercive, and an individual cannot ordinarily purge himself by producing the documents after criminal 212/ proceedings have been instituted. The problems with use of the statutory criminal contempt procedure might be minimized by the appointment of an independent counsel. The 213/ Ethics in Government Act of 1978, as amended by the Ethics in g A 210/ See Lee, supra note 37, at 256-58. See also House Judiciary. Contempt Hearings, supra note 206; Burford Contempt Prosecution Hearings, supra note 54. 211/ The President's power to pardon under art. II, sec. 2, has been upheld in the case of a judicial criminal contempt conviction. Ex Parte Grossman, 267 U.S. 87 (1925). (The Court stated that the pardoning power would not extend to a civil contempt violation. id. at 111.) In at least one instance a President has pardoned a private citizen convicted of contempt of Congress under 2 U.S.C. § 192. Hamilton and Grabow, supra note 176, at 156 n. 67, citing 83 Cong. Rec. 8425 (1938) (pardon by President Franklin Roosevelt of Dr. Francis E. Townsend). For the judi- cial appeal in the case, see Townsend v. United States, 95 F.2d 352 (D.C. Cir.), cert. denied, 303 U.S. 664 (1938). It seems unlikely that the President could pardon one found guilty under the inherent contempt procedure. A failure to comply with a con- gressional subpoena, when the case is tried before the bar of the House concerned, would not appear to constitute an "offense against the United States" within the meaning of the President's pardon power. See Corwin, The President: Office and Powers (3d ed. 1948) at 436 n. 134. 212/ See supra notes 47-48 and accompanying text. 213/ Pub. L. No. 95-521, 92 Stat. 1867 (1978). The relevant provi- sions are codified as 28 U.S.C. §§ 591 to 598 (1982). CRS-59 Government Act Amendments of 1982,Zl£/provides a procedure under which the Attorney General can seek judicial appointment of an independent counsel to investigate and prosecute cases involving members of the Cabinet and a limited number of other high-ranking executive branch officials.£l2/However, appointment of an independent counsel is made upon the application of the Attorney General, although a provision of the act authorizes Congress to ,;;g/ request the Attorney General to apply for one. Furthermore, while appointment of an independent counsel might increase the chances of a successful prosecution, it does not remedy other problems with the criminal contempt alternative. Specifically, it would not guarantee that the committee would obtain the needed documents nor would it necessarily 214/ Pub. L. No. 97-409, 96 Stat. 2039 (1982). 212/ Under the statute, the Attorney General is required to conduct a preliminary investigation and to seek appointment of an independent counsel (referred to as a special prosecutor prior to the 1982 amendments) in cases involving allegations against the relatively few top officials named in 28 U.S.C. § 591(a). The Attorney General may, in his discretion, seek appoint- ment of an independent counsel in cases involving any other person if the Justice Department might have a conflict of interest in prosecuting. 28 U.S.C. § S91(c). The independent counsel may exercise discretion in determ- ining whether to seek an indictment. 28 U.S.C. § 594(g). Under the terms of H.R. 2684, 98th Cong., the Attorney General would have been required to seek an appointment of an independent counsel whenever the Speaker of the House certified a criminal contempt by any of a long list of executive branch officials, and the independent counsel would have been required to seek an indictment and to prosecute if an indictment were returned. See supra note 206 and accompanying text. gig] Under 28 U.S.C. § 595(e), a majority of majority party members or a majority of all nonmajority party members of the Judiciary Committee of either House may request the Attorney General to apply for an independent counsel. Although he is not legally obligated to seek an independent counsel in response to such a congressional request, the statute does direct him to explain his failure to do so. _£d. Also,‘a formal congressional request might focus public attention on the matter and add to political pressure for the appointment of an independent counsel. CRS-60 detract from the unseemliness of prosecuting a high-ranking government official for executing a presidential directive. Alternatives to contempt. when faced with a refusal by the executive branch to comply with a demand for information, Congress has several alterna- tives to inherent and statutory contempt, although these other options are not without their own limitations. One approach is to seek declaratory or g;1/ other relief in the courts. This method, in comparison to criminal con- tempt, has the advantage of not requiring executive branch cooperation in enforcing a congressional subpoena. However, litigation can entail delay and procedural obstacles. For example, the Senate Watergate Committee's suit to enforce a subpoena it had issued to President Nixon was at first 218/ dismissed on the ground that the court lacked jurisdiction over the case. 217/ For a recent legislative proposal to establish such a procedure and for historical treatment of the declaratory relief approach, see Hamilton and Grabow, supra note 176. 218/ Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973). The district court noted that the action presented a variety of procedural issues, including, inter alia, jurisdiction and justiciability. The court addressed only the question of jurisdiction, and concluded that none of the four statutory provisions relied on by the committee (5 U.S.C. §§ 701-706; 28 U.S.C. §§ 1331, 1345, 1361) granted the court jurisdiction over the action. Section 1331, which gives the district courts "jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States," was rejected because the court found that the matter in controversy in the case was not capable of valuation in dollars-and-cents terms and therefore the statutory requirement that the amount-in-controversy exceed the sum or value of $10,000 was not satisfied. The amount-in-controversy requirement in the statute has since been repealed (Pub. L. No. 96-486, § 52(a), 94 Stat. 2369 (1980)) and both commentators (Hamilton and Grabow, supra note 176, at 164-65) and the Justice Department (House Judiciary Contempt Hearings, supra note 206, at 46 n. 9) have suggested that the statute would now probably provide a jurisdictional basis for civil enforcement of a congressional subpoena. Despite repeal of the amount-in-controversy requirement, other problems may arise in pfoceeding under § 1331. See Hamilton and Grabow at 165. CRS-61 A statute specifically granting jurisdiction over such actions brought by 219/ the Watergate Commitee was subsequently enacted. A statutory provision of more general applicability was included in the Ethics in Government Act of 1978, which conferred jurisdiction on the United States District Court for the District of Columbia over any civil action brought by the Senate or a Senate committee to enforce, or to secure a declaratory judgment 220/ concerning, a subpoena. This provision applies only to the Senate, and the civil contempt procedure established by the Ethics in Government Act is expressly stated to be inapplicable in the case of a subpoena issued to an officer or employee of the federal government acting in his official 221/ capacity. In addition to the jurisdictional hurdle, a committee seeking to enforce its subpoena in court may be confronted by a judicial reluctance to decide inter-branch conflicts involving sensitive constitutional 219/ Pub. L. No. 93-190, 87 Stat. 736 (1973). Although the district court—f3und that the statute that was passed provided an appropriate juris- dictional basis for hearing the case (Senate Select Committee v. Nixon, 370 F. Supp. 521 (D.D.C. 1974)), the court of appeals, in ruling on the merits, declined to grant the relief that the committee sought. 498 F.2d 725 (D.C. Cir. 1974). 220/ Pub. L. No. 95-521, 92 Stat. 1879 (1978), 28 U.S.C. § 1364(a) (1982). For a more detailed discussion of this jurisdictional provision, see supra notes 58-66 and accompanying text. ‘gglj 28 U.S.C. § 1364(a). However, the report of the Senate Comittee on Governmental Affairs on the bill explained: "This exception in the statute 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 employee of the Federal Government. How- ever, if the Federal courts do not now have this authority, this statute does not confer it." S. Rept. No. 95-170, 95th Cong., 1st Sess. 91-92 (1977). CRS-62 222/ \ issues, and by arguments that the case presents a nonjusticiable po- litical question, that such a suit would be an improper exercise by the legislative branch of the executive's law enforcement power, that the 223/ committee lacks standing to sue, or that the comittee's action was 224/ not authorized by the parent body. While it is possible to overcome these obstacles, both the executive and the committee might prefer to reach a negotiated settlement rather than "yield[ing] power to a judge who may be unfamiliar with or unsympathetic to either of the opposing 225/ concerns." Finally, it has been suggested that frequent use of the courts to arbitrate inter-branch disputes may actually undermine their effectiveness in performing this role and that saving the judiciary 222/ United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976) and 567 F.2d 121 (D.C. Cir. 1977) (second opinion); United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983). 223/ These arguments are discussed and found to be without merit in Hamilton and Grabow, supra note 176, at 166-170. 224/ House Rule XI, cl. 2(m)(2)(B), provides that "compliance with any sfibpoena issued byla committee or subcommittee...may be enforced only as authorized or directed by the House. See ln re Beef Industry Antitrust Litigation, 589 F.2d 786, 789-91 (5th Cir. 1979). Although Senate commit- tees and subcommittees have standing authority to bring suits necessary to the adequate performance of their powers (see Standing Order of the Senate "authorizing suits by Senate committees," S. Jour. 572, 70th Cong., 1st Sess., May 28, 1928), this standing order does not constitute authori- zation for a civil action by a Senate committee pursuant to 28 U.S.C. § 1364 to enforce or to obtain a declaratory judgment concerning the validity of a Senate subpoena. 28 U.S.C. § 1364(e). ggéf Hamilton and Grabow, supra note 176, at 164. One commentator has warned that judicial resolution of such a dispute creates a danger that the court will alter the balance between the Congress and the President, and also that continuing judicial supervision will be required. Also, by referring these cases to the courts, the balance between the two political branches and the judiciary may be affected. Levi, supra note 204, at 386 (1976). But cf. Cox, Executive Privilege, 122 U. Pa. L. Rev. 1383, 1432 (1974). “' CRS-63 for the few cases in which Congress and the President are absolutely unable to resolve their own difference will sharpen the issues that must go to litigation and will magnify respect for the judicial decision 226/ in the rare case in which it must be rendered." Congress has other options available. It can cut off or reduce the appropriations for an agency when requested information has not been supplied. However, this approach "is not always successful, as demon- strated by President Eisenhower's response to a cutoff of foreign aid funds because the executive failed to reveal information. Eisenhower simply instructed the Secretary of the Treasury to disregard the cutoff 227/ and to draw on Federal funds to make the payments." Another option, impeachment, is such an exteme sanction that it is neither a practical solution nor even an effective deterrent in most 228/ cases. However, in exceptional cases, impeachment could be employed. Consideration was given during the House Judiciary Committee's impeachment proceedings against President Nixon to the question of whether the President's failure to provide various tape recordings to the committee was an impeachable offense. The committee concluded in its third article of impeachment that Nixon's failure to comply with the comittee's sub- poena was a ground for impeachment in that the President has assumed "to himself functions and judgments necessary to the exercise of the sole 226/ Lee, supra note 37, at 264. 227/ _1_g_. at 253 n. 66. 228/ In re Subpoena to Nixon, 360 F. Supp. 1, 5 n. 9 (D.D.C. 1973); Hamilton and Grabow, supra note 176, at 150-51. See generally Fenton, The Scope of the Impeachment Power, 65 Nw. U.L. Rev. 719, 748-58 (1970). CRS-64 power of impeachment vested by the Constitution in the House of Represen- 229/ tatives.' Perhaps most frequently, executive-legislative disputes over con- g;g/ gressional demands for information are resolved by negotiation. The executive is motivated to compromise because it recognizes the possibility that Congress might resort to contempt or one of the other sanctions dis- cussed above. The committee involved is likely to be willing to compro- mise because of its need for the information and its recognition of the limitations on the contempt power as well as the various alternatives to contempt. Compromise may be possible with regard to (a) the questions to be answered or the documents to be produced; (b) the persons (only Members or Members as well as committee staff) to whom disclosure will be made; (c) the type of hearing (open or closed) or meeting (regular meeting on Capitol Hill or a special meeting at the offices of the agency involved) at which disclosure will be made; (d) whether the originals or copies will be made available, or whether Members may merely examine the docu- ments (and perhaps take notes) but not retain them; and (e) restrictions 231/ on disclosure of the information to the public. In one case, negotiations 229/ H.R. Rept. No. 93-1305, 93d Cong., 2d Sess. (1974). 230/ See Lee, supra note 37, at 253. 1231/ See, e.g. H.R. Rept. No. 97-898, 97th Cong., 2d Sess. 8 (1982) (chronology of events preceding compromise agreement in case of Interior Secretary Watt); H.R. Rept. No. 98-323, 98th Cong., 1st Sess. 18-25 (1983) (memorandum of understanding, and amendment thereto, providing for congressional access to documents in case of EPA Administrator Burford). See also Lee, supra note 37, at 258 n. 81 (negotiations in cases of Secretary of State Kissinger and Secretary of Commerce Morton). CRS-65 232/ were supervised by a court, and the case was dismissed after a compro- 233/ mise was reached. However, the difficulty of negotiations in such isputes should not be underestimated because the political stakes can be 333/ high and the legal principles involved are vital to both branches. When applied to an executive branch official, inherent and statutory contempt and the various alternatives to contempt all have certain draw- backs. These procedures can involve delay and distract Members from other business. Some of the approaches (such as criminal contempt) will not even necessarily result in the production of the subpoenaed documents. The method used in any given case will depend on the particular circum- stances, and on whether the primary congressional goal in the case is production of the documents, clarification of the legal issues involved, or punishment of the recalcitrant executive official. In choosing among contempt and the several alternatives (or some combination of the several approaches), it is useful to consider not only the effectiveness in the particular case of the method chosen but also the possible impact 232/ United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976). The court ruled that judicial resolution of such a constitutional dispute between the Congress and the executive branch is inappropriate until every effort has been made to reach a compromise. Accordingly, the court of appeals ordered the parties to negotiate under the supervision of the district court. When the parties reported that they were unable to agree, the court ordered them to continue their negotiations, suggesting a possible approach to a compromise solution. 567 F.2d 121 (D.C. Cir. 1977). 233/ See generally United States v. AT&T: Judicially Supervised Negotiations and Political Questions, 77 Colum. L. Rev. 466 (1977). 234/ See generally Kramer and Marcuse, Executive Privilege-—A Study of the Period 1953-1960, 29 Geo. Wash. L. Rev. 623 (1961); Wolkinson, Demands of Congressional Committees for Executive Papers (parts I-III), 10 Fed. B.J. 103, 223, 319 (1949). CRS-66 on future congressional investigations of the legal and historical precedents that may be created by the case. .Lz.g.. A..... Li§RARY OF WASHINGTON UNIVERSETY? ST. LOUI3 - MO.