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Civil Enforcement of Subpoenas Emphasized in House Resolution Would Be a Mistake; Congress Should Instead Pursue Inherent Contempt Fines and Independent Prosecutions for Criminal Contempt

FOR IMMEDIATE RELEASE

Tuesday, June 11, 2019 3:00pm

Media Contact: Bill Murphy • wmurphy@goodgovernmentnow.org • (610) 529-6494 (m)

Washington, D.C. – Advocacy group Good Government Now (GGN) said that civil enforcement of the Mueller Report and other subpoenas as provided for in today’s House resolution would be a mistake that will further diminish congressional oversight power, fail to effectively confront the longstanding executive branch campaign to subvert legislative investigative authority, and fail to resolve oversight disputes sufficiently quickly and favorably for effective actions by Congress. 

GGN also said that superior enforcement options are available including inherent contempt fines and independent prosecutions of federal officials who defy congressional subpoenas for criminal contempt of Congress by private attorneys appointed by the House.

GGN President Dr. William J. Murphy said: “Civil enforcement of the Mueller Report and other House subpoenas as contemplated in today’s resolution would be a mistake that needlessly perpetuates the diminishment of congressional authority and unnecessarily risks future damage to legislative oversight powers when superior enforcement options are available including inherent contempt fines and direct prosecution of criminal contempts by House-appointed attorneys that don’t carry these disadvantages.” 

Murphy continued, “The House possesses absolute final authority to rule on contempts of Congress and the validity of claims of executive privilege in inherent contempt proceedings. There is no good reason for the House to forfeit this authority to the courts or to subject itself to their judgment in civil enforcement actions to secure subpoena compliance when it possesses all necessary powers to decide and punish contempts itself.”

Murphy explained, “During an inherent contempt proceeding, the House literally functions as a Supreme Court whose rulings on contempt and executive privilege cannot be appealed or questioned by any other court or body, a doctrine that has been explained cogently by the DC Circuit Court in Ex Parte Nugent.  These truths, however, are not well-enough understood in contemporary debate where an ill-informed conventional wisdom that the courts are the appropriate final arbiter of such disputes has taken root.”

GGN Senior Fellow Morton Rosenberg added, “The House should also reinforce inherent contempt fines by reclaiming its ability to employ criminal contempt enforcement by appointing attorneys to conduct independent criminal prosecutions of executive branch officials who defy congressional subpoenas. It is concerning that today’s House resolution makes no mention of criminal enforcement in the face of the fact of consistent refusals by DOJ over the last thirteen years to follow the statutorily mandated requirement that such citations be presented to a grand jury.”

Rosenberg continued, “The House clearly possesses the indispensable inherent power to appoint private attorneys to prosecute executive branch officials for criminal contempt just as it possesses inherent powers to fine, arrest, and imprison those who defy subpoenas.  The Supreme Court has made clear in seminal cases including Anderson v. Dunn that the legislative and judicial contempt powers are analogous and that anything a court can do to enforce contempts is available to Congress as well.  Significantly, the courts have upheld the authority of judges to appoint private attorneys to undertake criminal contempt of court prosecutions and for other purposes in such landmark cases as in Young v. U.S. ex rel. Louis Vuitton et Fils, Morrison v. Olson, and United States v. Arpaio.  Finally, previous congressional practice affirms the authority of the House to appoint private attorneys to prosecute contempt independently. In 1818, the House passed a resolution authorizing the Speaker “to employ such counsel, as he may think proper” to defend the interests of the House in the famous Anderson v. Dunn litigation.”

Rosenberg asserted, “Embracing the modified inherent contempt and our independent prosecution proposals would enable Congress to reclaim its two most powerful enforcement mechanisms, the inherent and criminal contempt procedures, thereby effectively countering the executive branch campaign to deprive it access to these tools.  Most importantly, doing so would restore the credible threat of severe personal punishment necessary to convince recalcitrant executive branch officials to cooperate with legitimate congressional information demands.  The one lesson that stands out to me in nearly fifty years of observing oversight disputes is the vital importance that congressional committee chairs establish their credibility with executive branch officials.  Ideally, they should be both respected and feared.  Restoring a credible threat of personal punishment for executive branch officials is essential to achieving these goals.”

Murphy concluded by noting, “Pursuing civil enforcement of the Mueller Report subpoena or others involving formal claims of privilege unjustifiably exposes Congress to the risk of ill-considered judicial decisions that threaten to permanently damage congressional oversight authority, an undesirable development already observed in the Fast and Furious litigation.  The courts don’t like to decide such questions, avoid doing so when they can, have demonstrated a tendency to ‘split the baby,’ and have never done their work quickly enough to aid oversight. Civil enforcement is also disadvantageous to the legislative branch because it shifts the burden of proof on the question of the validity of executive privilege away from the executive branch agency claimants where it has traditionally rested onto congressional committees seeking compliance.”

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