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Title Headnotes
Testimonial Immunity Before Congress of the Former Counsel to the President

The immunity of the President’s immediate advisers from compelled congressional testimony on matters related to their official responsibilities has long been recognized and arises from the fundamental workings of the separation of powers. This immunity applies to former senior advisers such as the former White House Counsel. Accordingly, the former Counsel is not legally required to appear and testify about matters related to his official duties as Counsel to the President.

The President does not waive an adviser’s immunity from compelled congressional testimony by authorizing disclosure of any particular information. The disclosure’s impact on executive privilege does not ultimately bear on any underlying immunity from compelled testimony.

Because Congress may not constitutionally compel the former Counsel to testify about his official duties, he may not be civilly or criminally penalized for following a presidential directive not to appear. The same rationale applies equally to an exercise of inherent contempt powers against a senior aide who has complied with a presidential direction that he not provide testimony to a congressional committee.

Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch

The constitutional authority to conduct oversight—that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities—may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen).

Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee. They may request information from the Executive Branch, which may respond at its discretion, but such requests do not trigger any obligation to accommodate congressional needs and are not legally enforceable through a subpoena or contempt proceedings.

Prosecutorial Discretion Regarding Citations for Contempt of Congress

A United States Attorney to whom a contempt of Congress citation is referred retains traditional prosecutorial discretion regardless of whether the contempt citation is related to an assertion of executive privilege.

Whether the Department of Justice May Prosecute White House Officials for Contempt of Congress

The Department of Justice may not bring before a grand jury criminal contempt of Congress citations, or take any other prosecutorial action, with respect to current or former White House officials who declined to provide documents or testimony, or who declined to appear to testify, in response to subpoenas from a congressional committee, based on the President’s assertion of executive privilege or the immunity of senior presidential advisers from compelled congressional testimony.

Whether the Federal Trade Commission Has Authority to Prosecute Actions for Criminal Contempt

The Federal Trade Commission lacks authority to prosecute actions for criminal contempt, unless the Commission’s attorneys receive special appointments from the Attorney General and become subject to his direction.

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

With one narrow exception, the Attorney General may not disclose to Congress the contents of any application or report filed with the court pursuant to the Independent Counsel Act unless the court agrees.

All congressional requests for information about a decision regarding the appointment of an independent counsel must be supported by a legitimate legislative purpose. In addition, before such disclosures are made other considerations, such as whether or not to assert executive privilege, whether the information is covered by the attomey-client privilege, and whether the information must be kept confidential to preserve the integrity of the prosecutorial function, must be reviewed.

Congress may not, as a matter of statutory or constitutional law, invoke the criminal contempt of Congress procedure against the head of an Executive agency acting on the President’s instructions to assert executive privilege in response to a congressional subpoena.

An assertion of executive privilege must be based upon an evaluation of the Executive Branch’s interest in keeping the requested information confidential, the strength of Congress’ need for the information, and whether those needs can be accommodated in some other way.

Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege

As a matter of statutory construction and separation of powers analysis, a United States Attorney is not required to refer a congressional contempt citation to a grand jury or otherwise to prosecute an Executive Branch official who carries out the President's instruction to invoke the President’s claim of executive privilege before a committee of Congress.

Proposed Commission on Deregulation of International Ocean Shipping

Individuals who serve on a purely advisory Commission on the Deregulation of International Ocean Shipping need not be officers of the United States. Appointment of Members of Congress to such a Commission does not implicate the Incompatibility Clause, U.S. Const. art. I, § 6, cl. 2. A provision authorizing the congressional leadership to make recommendations for appointments to the Commission does not limit the President’s ultimate responsibility for such appointments.

The proposed Commission may not hold a witness in contempt for failure to comply with a Commission subpoena or to testify. Rather, the Commission should be required to seek a court order compelling compliance.

Proposed Legislation to Grant Additional Power to the President’s Commission on Organized Crime

The President’s Commission on Organized Crime, a Presidential advisory committee with members from the Legislative and Judicial Branches, may be granted subpoena power without violating the Appointments Clause, U.S. Const, art. II, § 2, cl. 2, or the Incompatibility Clause, id., art. I, § 6, cl. 2. As statutory aids to its investigation, the Commission should also seek the power to administer oaths and to have false statements punished as perjury.

Constitutional and policy concerns militate against seeking independent authority for the Commission to enforce subpoenas by holding individuals in contempt, or to grant use immunity. The power to grant use immunity raises questions about the Commission’s advisory role and the propriety of service by members of the Legislative and Judicial Branches.

Continuing Obligations Under Congressional Subpoenas After the Adjournment of Congress

While congressional committees’ subpoenas are no longer effective after Congress’ adjournment sine die, the Administrator of the Environmental Protection Agency should, in the interest of comity and accommodation to the Legislative Branch, continue to be as responsive as possible to those committees’ requests for documents and other information.

The Administrator’s obligations under one of the subpoenas may be construed in light of the subcommittee chairman’s subsequent modification on the record of its terms. Compliance with the subpoena as so modified cannot form the basis of the “willful default” that is necessary for prosecution under the relevant criminal contempt statutes, 2 U.S.C. §§ 192, 194.

Continuing Effect of a Congressional Subpoena Following the Adjournment of Congress

A congressional subpoena lacks present force and effect after the adjournment sine die of a Congress, and it therefore imposes no continuing duty to comply with its directives; similarly, it will not support the continued exercise by Congress of the power to punish for contempt.

Judicial construction of the procedure by which a congressional committee’s contempt citation is certified for prosecution under 2 U.S.C. § 192 indicates that it would require action by the whole House and not simply the Speaker if the contempt occurs while Congress is in session. Accordingly, if the contempt in this case were not reported to the House while it was still in session, or if the House failed to act on the resolution, the citation would die upon Congress’ adjournment and be of no further force and effect.

If a successor committee in the subsequent Congress brought a civil action to enforce the prior committee’s subpoena, its success might depend upon whether the court viewed the prior subpoena and refusal to comply as a historical fact whose validity could not now be adjudicated. This rationale would support an action for declaratory relief, but not one for injunctive relief.

Presidential Authority to Permit the Withdrawal of Iranian Assets Now in the Federal Reserve Bank

In order to allow Iran to withdraw its assets in the Federal Reserve Bank, the President has the power, under the International Emergency Economic Powers Act (IEEPA), to nullify existing attachments licensed under the Iranian Assets Control Regulations.  Since in consenting to attachments against the blocked Iranian assets the Government reserved the right to revoke its consent at any time, their nullification does not constitute a compensable taking of private property.

The Federal Reserve Bank may release Iranian assets which have been attached but are not yet subject to a licensed final judgment, in reliance on the Presidents’ action under the IEEPA, without applying to the court to vacate its attachment orders.  The considerations which ordinarily mandate compliance with court orders would not justify a contempt citation where the conduct in question has been clearly mandated by supervening executive action, where compliance would defeat the President’s exercise of his emergency power under the IEEPA, and where the IEEPA itself provides an express exception to contempt liability for compliance with an order issued under its authority.

Where Congress has immunized good faith compliance with a presidential order issued under the IEEPA, the Federal Reserve Bank would not be held liable to disappointed attachment creditors even if the presidential orders nullifying the attachment orders were later held unlawful.  Nor is there any basis, in the Constitution or otherwise, on which creditors whose attachments were nullified would be likely to recover against the United States itself.

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