Wednesday, March 21, 2007

Interesting CRS Report on Congressional Subpoenas

As a result of the US Attorney firings and the dust-up which has ensued, I was interested in finding out a little more about the history of Congressional subpoenas to the Executive Branch and the eventual outcomes of those clashes between Congressional prerogative and Executive Privilege. I found this Congressional Research Service Report on the matter, which I thought was fairly insightful.

It outlines the history of similar confrontations between the branches and how these confrontations eventually resolved themselves. It even highlights what I think is a particularly relevant wrinke to the current conflict, namely that it would be the Justice Department who would have the responsibility to enforce any Contempt of Congress citations which might eventiually be issued, were one of the Houses to issue a subpoena which was subsequently defied by the White House or the Justice Department. If one of the Houses were then to vote to cite the subpoened party with Contempt, enforcement would fall to the Justice Department.

More specifically, quoting from the CRS report:

"...the Office of Legal Counsel wrote an opinion on May 30, 1984, concluding that as a matter of statutory interpretation and separation of powers analysis, a U.S. Attorney is not required to bring a congressional contempt citation to a grand jury when the citation is directed against an executive official who is carrying out the President’s decision to invoke executive privilege. The memo regarded the threat of criminal prosecution from a congressional contempt citation as an “unreasonable, unwarranted, and therefore intolerable burden” on the President’s exercise of constitutional authority, and that Congress “has other methods available to test the validity of a privilege claim and to obtain the documents that its seeks.” The memo cautioned that its analysis was “limited to the unique circumstances that gave rise to these questions late in 1982 and early 1983,” and that “prudence” should limit the conclusions in the memo “to controversies similar to the one to which this memorandum expressly relates, and the general statements of legal principles should be applied in other contexts only after careful analysis.”

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