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

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.

February 29, 2008

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

You have asked whether the Department of Justice (“Department” or “DOJ”)
may 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. We conclude it may not.

I.

The President has asserted executive privilege and directed that certain docu-
ments and related testimony not be provided in response to subpoenas issued to
Joshua Bolten, the Chief of Staff to the President, and Harriet Miers, the former
Counsel to the President, by the Committee on the Judiciary of the House of
Representatives in connection with its inquiry into the decision of the Department
of Justice to request the resignations of several United States Attorneys in 2006.
The President also directed Ms. Miers to invoke her immunity as a senior presi-
dential adviser from compelled congressional testimony and decline to appear in
response to the subpoena from the Judiciary Committee. These directives were
based on legal opinions from the Department advising that the assertions of
privilege and immunity were legally proper. See Assertion of Executive Privilege
Concerning the Dismissal and Replacement of U.S. Attorneys, 31 Op. O.L.C. 1
(2007) (addressing assertion of executive privilege); Immunity of Former Counsel
to the President From Compelled Congressional Testimony, 31 Op. O.L.C. 191
(2007) (“Immunity of Former Counsel to the President”).
Notwithstanding the President’s directives asserting executive privilege and
instructing Ms. Miers not to testify, the House of Representatives cited Mr. Bolten
and Ms. Miers for contempt of Congress, and the Speaker of the House yesterday
referred the contempt citations to the United States Attorney for the District of

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Columbia for prosecution pursuant to the criminal contempt of Congress statute,
2 U.S.C. §§ 192, 194 (2000). 1 See Letter for Michael B. Mukasey, Attorney
General, from Nancy Pelosi, Speaker of the House of Representatives (Feb. 28,
2008).

II.

The Department of Justice has long taken the position, during administrations
of both political parties, that “the criminal contempt of Congress statute does not
apply to the President or presidential subordinates who assert executive privilege.”
Application of 28 U.S.C. § 458 to Presidential Appointment of Federal Judges,
19 Op. O.L.C. 350, 356 (1995) (“Application of 28 U.S.C. § 458”). In 1956,
Deputy Attorney General (and later Attorney General) William Rogers presented
to Congress a Department of Justice study that concluded that the criminal
contempt of Congress statute was “inapplicable to the executive departments”
where the President had asserted executive privilege. See Availability of Infor-
mation From Federal Departments and Agencies: Hearings Before a Subcommit-
tee of the House Committee on Government Operations, 84th Cong. 2891, 2933
(1956). Twenty years later, Assistant Attorney General for the Civil Division Rex
Lee stated in testimony before the Subcommittee on the Separation of Powers of
the Senate Judiciary Committee that if Congress cited an Executive Branch official
for contempt of Congress because of an assertion of executive privilege and “the
Department determined to its satisfaction that the claim was rightfully made, it
would not, in the exercise of its prosecutorial discretion, present the matter to a
grand jury.” Representation of Congress and Congressional Interests in Court:

1
Sections 192 and 194 of title 2 of the U.S. Code provide, in relevant part:
Every person who having been summoned as a witness by the authority of either
House of Congress to give testimony or to produce papers . . . willfully makes default,
or who, having appeared, refuses to answer any question pertinent to the question un-
der inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not
more than $1,000 nor less than $100 and imprisonment in a common jail for not less
than one month nor more than twelve months.
....
Whenever a witness summoned as mentioned [above] fails to appear to testify or fails
to produce any books, papers, records, or documents, as required, or whenever any
witness so summoned refuses to answer any question pertinent to the subject under in-
quiry before either House . . . a statement 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 of the said President of the Senate or Speaker of the House . . . to certify . . . the
statement of facts aforesaid under the seal of the Senate or House . . . to the appropri-
ate United States attorney, whose duty it shall be to bring the matter before the grand
jury for its action.

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Hearings Before the Subcomm. on Separation of Powers of the Senate Committee
on the Judiciary, 94th Cong. 8 (1976).
The Department reaffirmed these principles in a detailed 1984 opinion prepared
by Assistant Attorney General for the Office of Legal Counsel Theodore Olson. In
that opinion, this Office explained that when an Executive Branch official
complies in good faith with the President’s assertion of executive privilege, “a
United States Attorney is not required to refer a contempt citation . . . to a grand
jury or otherwise to prosecute [the] Executive Branch official who is carrying out
the President’s instruction.” Prosecution for Contempt of Congress of an Executive
Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C.
101, 102 (1984) (“Prosecution for Contempt of Congress”). Drawing upon the
principles explained by Mr. Rogers and Mr. Lee, canons of statutory construction,
and basic constitutional principles, we explained that at least two legal conclusions
supported the Department’s longstanding interpretation of the criminal contempt
statute:

First, as a matter of statutory interpretation reinforced by compelling
separation of powers considerations, we believe that Congress may
not direct the Executive to prosecute a particular individual without
leaving any discretion to the Executive to determine whether a viola-
tion of the law has occurred. Second, as a matter of statutory inter-
pretation and the constitutional separation of powers, we believe that
the contempt of Congress statute was not intended to apply and
could not constitutionally be applied to an Executive Branch official
who asserts the President’s claim of executive privilege in this con-
text.

Id.
During the Clinton Administration, the Department explicitly reiterated in a
published opinion issued by Assistant Attorney General for the Office of Legal
Counsel Walter Dellinger that the “criminal contempt of Congress statute does not
apply to the President or presidential subordinates who assert executive privilege.”
Application of 28 U.S.C. § 458, 19 Op. O.L.C. at 356. To apply “the contempt
statute against an assertion of executive privilege,” Mr. Dellinger explained,
“would seriously disrupt the balance between the President and Congress.” Id.
Accordingly, based on this longstanding position, the refusal by Mr. Bolten and
Ms. Miers to produce documents or testimony over which the President has
asserted executive privilege did not constitute a crime, and therefore the Depart-
ment may not pursue criminal contempt of Congress charges against them.

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III.

We believe that the same reasoning necessarily applies to Ms. Miers’ invoca-
tion of immunity from compelled congressional testimony. The principles that
protect an Executive Branch official from prosecution for declining to comply
with a congressional subpoena based on a directive from the President asserting
executive privilege similarly shield a current or former senior adviser to the
President from prosecution for lawfully invoking his or her immunity from
compelled congressional testimony. Here, the President directed Ms. Miers to
invoke her constitutional immunity, and the President’s directive was based upon a
legal opinion from the Department of Justice advising that such an invocation of
immunity would be legally proper. See Immunity of Former Counsel to the
President, 31 Op. O.L.C. at 192–93 (explaining Ms. Miers’ immunity from
compelled congressional testimony). In reaching the conclusion that a United
States Attorney is not required to prosecute an Executive Branch official comply-
ing with the President’s assertion of executive privilege, the Department reasoned
that the separation of powers principles protected by executive privilege would be
eviscerated if reliance on the privilege carried with it criminal liability:

Application of the criminal contempt statute to Presidential asser-
tions of executive privilege would immeasurably burden the Presi-
dent’s ability to assert the privilege and to carry out his constitutional
functions. If the [criminal contempt] statute were construed to apply
to Presidential assertions of privilege, the President would be in the
untenable position of having to place a subordinate at the risk of a
criminal conviction and possible jail sentence in order for the Presi-
dent to exercise a responsibility he found necessary to the perfor-
mance of his constitutional duty. Even if the privilege were upheld,
the executive official would be put to the risk and burden of a crimi-
nal trial in order to vindicate the President’s assertion of his constitu-
tional privilege.

Prosecution for Contempt of Congress, 8 Op. O.L.C. at 136.
In this respect, a senior presidential adviser’s invocation of his or her immunity
from compelled testimony is no different. Subjecting that adviser to prosecution
for raising in good faith the President’s separation of powers objection to a
congressional subpoena would impermissibly undermine the President’s constitu-
tional authority. As Assistant Attorney General Olson’s opinion analyzing this
principle in the context of an assertion of executive privilege observed:

If the President is to preserve, protect, and defend the Constitution, if
he is faithfully to execute the laws, there may come a time when it is
necessary for him both to resist a congressional demand for docu-
ments and to refuse to prosecute those who assist him in the exercise

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of his duty. To yield information that he in good conscience believes
he must protect in order to perform his obligation, would abdicate
the responsibilities of his office and deny his oath. To seek criminal
punishment for those who have acted to aid the President’s perfor-
mance of his duty would be equally inconsistent with the Constitu-
tion.

Id. at 142. The prosecution of a senior presidential adviser who has lawfully
invoked her constitutional immunity from compelled congressional testimony
would likewise be inconsistent with the Constitution.
In sum, based on the longstanding Justice Department position discussed
above, the non-compliance with the Judiciary Committee subpoenas by Mr. Bolten
and Ms. Miers did not constitute a crime. Accordingly, the Department may not
bring the criminal contempt citations before a grand jury or take any other action
to prosecute Mr. Bolten or Ms. Miers for criminal contempt of Congress.

STEVEN G. BRADBURY
Principal Deputy Assistant Attorney General
Office of Legal Counsel

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