What do baseball legend Roger Clemens and U.S. Attorney General Eric Holder have in common? They’ve both landed in hot water with Congress.
Today’s topic: Contempt of Congress
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Don’t Mess With Congress
What do baseball legend Roger Clemens and U.S. Attorney General Eric Holder have in common? They were both accused of trying to obstruct congressional investigations. Although Clemens has now been acquitted of wrongdoing, the investigation into Holder’s conduct continues, as of July 2012. In this episode, I’ll explain Congress’ power to compel witnesses, and the issues involved with Attorney General Holder.
What is Contempt of Congress?
As I explained in an earlier article, “contempt of court” refers generally to any willful disobedience to, or disregard of, a court order, or any misconduct in the presence of a court or action that interferes with a judge’s ability to administer justice or that insults the dignity of the court.
The U.S. Congress is not, of course, a court of law; rather, it’s a legislative body. But like a court, Congress often needs to investigate the facts of certain events to perform its functions. In order to get at the truth, congressional rules authorize the various committees of the House and Senate to compel people to testify or to produce documents – or both. Like a court, congressional committees have subpoena power; that is, the power to summon witnesses with a threat of penalties against those who don’t comply.
In 1857, Congress made “contempt of Congress” a federal crime. The most recent version of this law was enacted in 1938, and it defines the crime as a misdemeanor with a maximum penalty of $1,000 fine or 12 months’ imprisonment.
Why Congress Voted Holder in Contempt
The House of Representatives voted to hold Attorney General Eric Holder in contempt of Congress on June 28, 2012. The reason for the vote is Holder’s refusal to turn over certain documents relating to a federal sting operation known as Operation Fast and Furious. In this operation, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) – which is part of the Justice Department – allowed guns to flow toward the Mexican border in the hopes of tracking them to drug lords.
Unfortunately, the ATF managed to lose track of some 2,000 guns, which were later connected to various violent crimes, including the death of a Border Patrol agent, Brian Terry in December 2010. After that incident, Congress began looking into Operation Fast and Furious and the investigation ultimately led to the document demand that is at issue.
Roger Clemons and “Performance Enhancing” Drugs
The case of Roger Clemens also illustrates Congress’s power over witnesses. Clemens, however, was not accused of contempt. Clemens answered the questions that he was asked in Congress, but he was accused of lying to Congress about never having taken performance-enhancing drugs. Thus, he was charged with perjury, obstruction of Congress, and making false statements. Those charges could have landed Clemons in prison for 30 years, but he was acquitted by a court.
Will Executive Privilege Save Eric Holder?
In the case of Eric Holder, he may never be prosecuted for contempt because President Obama has claimed “executive privilege,” meaning that the administration does not believe it is required to comply with Congress’ subpoena. If there’s no requirement, there can be no contempt.
Executive privilege is a real legal doctrine; however, its details are somewhat fuzzy. It is not spelled out in the Constitution or in any statute. It includes the right of the President to shield documents that would reveal his own deliberations about policy matters, but it is not clear whether the privilege extends to communications among lower level executive branch officials.
As a practical matter, it is unlikely that Holder will be prosecuted for contempt. Congress has no prosecution power; it must refer matters to the U.S. Attorney for the District of Columbia who is part of the Department of Justice. In that situation, a U.S. Attorney would be called upon to prosecute his boss (the Attorney General) even when his boss’ boss (the President) says there was no contempt. I wouldn’t hold my breath.
One way around this impasse would be for Congress to appoint an independent prosecutor who could pursue the contempt charge. That is possible, but the more typical way to resolve these disputes is through the old-fashioned practice of political dealmaking.
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