No one expects U.S. Attorney General Eric Holder to face
criminal prosecution over the Obama administration's refusal to
produce documents related to the botched gun-running
investigation known as "Fast and Furious." But if the prospect
ever emerges, he can take comfort in a legal memo written more
than two decades ago by a prominent member of the Republican
The Republican-controlled House Oversight and Government
Reform Committee voted this week to cite Holder for contempt of
Congress after the Obama administration invoked executive
privilege over the withheld documents. A vote by the full House
of Representatives could be scheduled next week.
Power struggles between the executive and legislative
branches over sensitive information are nothing new. They date
back at least to 1792, when Congress was seeking information
from President George Washington over a failed military
expedition, according to the Congressional Research Service.
Most disputes, however, never reach the courts and instead are
resolved through political negotiations.
But there is a statute on the books that makes it a
misdemeanor not to give Congress what it is seeking. The statute
states that it is the duty of the President of the Senate or the
Speaker of the House to refer a contempt case to "the
appropriate United States attorney, whose duty it shall be to
bring the matter before the grand jury for its action."
In the case of Holder, the House could ask the U.S. Attorney
for the District of Columbia to bring the matter before a grand
jury, according to a report on CNN.com by Peter Shane of Ohio State University's Moritz College of Law.
But Ronald Machen, the U.S. Attorney for the District of
Columbia, would be under no obligation to bring the case to a
grand jury. At least not according to an opinion written in 1984
by Theodore Olson, a former U.S. Solicitor General and the
victorious lawyer in Bush v. Gore.
As an Assistant U.S. Attorney in the Justice Department's
Office of Legal Counsel under President Ronald Reagan, Olson
wrote that a U.S. Attorney need not refer a contempt citation to
prosecute a member of the executive branch who is carrying out
the president's orders in invoking executive privilege.
Olson's opinion was written in a case in which the
administrator of the Environmental Protection Agency refused to
turn over certain documents relating to the enforcement of the
Superfund Act, invoking executive privilege. The Speaker of the
House referred a contempt citation to the U.S. Attorney for the
District of Columbia for prosecution. The House subsequently
withdrew the contempt citation, but Olson said if the matter had
ever litigated to a decision, Congress would have lost.
"We believe that the courts, if presented the issue in
context similar to that discussed in this memorandum, would
surely conclude that a criminal prosecution for the exercise of
a presumptively valid, constitutionally based privilege is not
consistent with the Constitution," he wrote.
In his opinion, Olson argued that the executive branch
should retain discretion over whom to prosecute. He also offered
a vigorous defense of the privilege and underscored the
importance it played in the separation of powers that the
framers of the Constitution envisioned.
"If one House of Congress could make it a crime simply to
assert the President's presumptively valid claim, even if a
court subsequently were to agree that the privilege claim were
valid, the exercise of the privilege would be so burdened as to
be nullified," he wrote.
Olson was not available to comment on Friday.
(Reporting by Andrew Longstreth)
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