Monday, June 25, 2012

The Tim Corrimal Show – Episode 213

I may be a day late and a dollar short (well, I’m always a dollar short), but the good news is: Episode 213 of The Tim Corrimal Show has now been posted.
On this weeks’ show, Tim and I were joined by my longtime Twitter pal Minna (@asiangrrlMN), a featured blogger at Angry Black Lady Chronicles and fiction contributor at Osborne Ink; and John Scheirer (@RealAmericanLib on Twitter), author of Tales of a Real American Liberal. Tim’s and my usual co-host, Joe Santorsa (@Marnus3 on Twitter) was off this week.
On this week’s show, after identifying our Twitter Friends of the Week – and please do check out mine, @Nicole1515, lawyer extraordinaire and author of the Main Street Law Blog – we turned to our regular political discussion. Among other things, Tim played a NSFW clip from Mildly Relevant News, and a really NSFW clip from The Jimmy Dore Show in which “Mitt Romney” calls in gets a few things off his chest. 
Speaking of Mittens, we spent considerable time discussing the state of the 2012 Presidential election, including the Republican nominee’s rather unfortunate stop at an Iowa diner; and Tim played a lengthy Face The Nation clip featuring Maryland Gov. Martin O’Malley (D) and AFL-CIO Pres. Richard Trumka, in which they destroyed certain media-created myths about Scott Walker’s recall election in Wisconsin and recounted Mitt Romney’s abysmal record on job creation as governor of Massachusetts.
Finally, on my “Legal Corner” segment we discussed last Wednesday’s vote by the House Oversight Committee to hold Attorney General Eric Holder in contempt of Congress for allegedly failing to turn over certain documents as to which the Obama Administration has asserted a claim of executive privilege. That the Committee’s vote was an exercise in political theater is manifest; but our focus was on the legal, more so than the political, ramifications of the vote.
As an initial matter, Congress’ legal authority to hold an individual in contempt derives from 2 U.S.C. § 192, which states:
Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under 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.
2 U.S.C. § 194 then describes the procedure for prosecuting contempt of Congress as follows:
Whenever a witness summoned as mentioned in section 192 of this title 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 inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, 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, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.
Which means that from here, the contempt issue goes to the full House for a vote, and, assuming the Republican majority sustains the Committee’s finding, Speaker Boehner will then refer the matter to the U.S. Attorney for the District of Columbia, who is directed to present it to a grand jury to seek an indictment. Simple, right.
Nope. As NBC’s Pete Williams explains:
The Justice Department has long taken the position, as a separation of powers matter, that Congress cannot force the Justice Department to undertake a prosecution of an executive branch official. The courts have never resolved the question.
The Justice Department, under both Democratic and Republican administrations, has further claimed that a U.S. attorney must not initiate a prosecution when the president has asserted executive privilege over what Congress seeks.
Moreover, the contempt citation lasts only as long as current Congress remains in session; after new Congress is elected in November, if the conflict hasn’t been resolved (and it won’t be, of course), the next Congress would have to issue new contempt citation, and the process starts over.
The Administration’s claim of executive privilege further complicates matters. In Quinn v. United States, 349 U.S. 155 (1955), the Supreme Court held that when an individual refused to answer questions on Fifth Amendment grounds (i.e., that his answer may incriminate him), there was not adequate proof of a deliberate or willful refusal to answer Congress’ questions, which is an essential element of a contempt charge under 2 U.S.C. § 192. Logically, then, Attorney General Holder could argue that his refusal to produce documents – based as it is on a legally recognized privilege – likewise isn’t deliberate or willful. The problem, though, is this: Under Quinn, Congress is supposed to rule on the validity of the privilege, at least in the first instance. See 349 U.S. 165-170. So if the House, in its infinite wisdom, finds that the Administration’s executive privilege claim was invalid, the Attorney General would have to look to the courts to resolve the issue.
The Supreme Court has provided some guidance as to the scope of executive privilege in cases not involving contempt of Congress. In Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004), for example, the Court pointed out that there is a sliding scale under United States v. Nixon, 418 U.S. 683 (1974), where executive privilege is at its narrowest when the President has to respond to a criminal prosecution, but is broader when the President (or, in the Cheney case, the Vice President) is asked to respond to discovery in a civil case:
The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to production of relevant evidence in civil proceedings does not have the same “constitutional dimensions.” [418 U.S.] at 711.
But courts have generally avoided defining the precise scope of executive privilege vis-à-vis Congress, which is the issue here. As NBC’s Pete Williams notes, the courts punted on this very issue just a few years back in connection with the U.S. Attorney hiring and firing scandal under George W. Bush. During the Watergate hearings, in Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725 (D.C. Cir. 1974), the Court of Appeals for the District of Columbia Circuit held that Pres. Nixon was not required to produce certain tapes subpoenaed by Congress – but the case never made it to the Supreme Court because the House impeachment proceedings essentially rendered the issue moot. Ultimately, Pres. Nixon’s refusal to produce subpoenaed material became part of the Articles of Impeachment against him, and we all know how that ended.
So, political Kabuki aside, it’s unlikely that the dispute between the House of Representatives and Attorney General Holder will be resolved in court, let alone by way of an actual conviction.
In any event, please give the show a listen. Hope you enjoy it.


  1. A great summary of the show and always way better than my show notes (grin).

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