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More Experts Now Agree That Issa Botched Contempt

Mar 13, 2014
Press Release
More Experts Now Agree That Issa Botched Contempt

Washington, D.C. (Mar. 13, 2014)—Yesterday, Rep. Elijah E. Cummings, Ranking Member of the House Committee on Oversight and Government Reform, sent a letter to House Speaker John Boehner transmitting an independent legal analysis from two of the nation’s preeminent experts in Constitutional law and congressional contempt proceedings concluding that Committee Chairman Darrell Issa compromised any House contempt action against Lois Lerner when he rushed to adjourn the Committee’s hearing last Wednesday.

The analysis was authored by Morton Rosenberg, who served for 35 years as a Specialist in American Public Law at the Congressional Research Service (CRS), and was joined by Stan Brand, who served as House Counsel from 1976 to 1983 and “fully subscribes” to Mr. Rosenberg’s legal analysis and conclusions.

Since these experts provided their analysis, additional legal experts have come forward to agree with their conclusions and have identified defects in Issa’s contempt proceedings:

Joshua Levy, a partner in the firm of Cunningham and Levy and an Adjunct Professor of Law at the Georgetown University Law Center who teaches Congressional Investigations, said: 

“Contempt cannot be born from a game of gotcha.  Supreme Court precedents that helped put an end to the McCarthy era ruled that Congress cannot initiate contempt proceedings without first giving the witness due process.  For example, Congress cannot hold a witness in contempt without directing her to answer the questions being asked, overruling her objections and informing her, in clear terms, that her refusal to answer the questions will result in contempt.  None of that occurred here.”

Julie Rose O’Sullivan, a former federal prosecutor and law clerk to Supreme Court Justice Sandra Day O’Connor and current a Professor at the Georgetown University Law Center, said:

“The Supreme Court has spoken—repeatedly—on point.  Before a witness may be held in contempt under 18 U.S.C. sec. 192, the government bears the burden of showing ‘criminal intent—in this instance, a deliberate, intentional refusal to answer.’  Quinn v. United States, 349 U.S. 155, 165 (1955).  This intent is lacking where the witness is not faced with an order to comply or face the consequences.  Thus, the government must show that the Committee ‘clearly apprised [the witness] that the committee demands his answer notwithstanding his objections’ or ‘there can be no conviction under [sec.] 192 for refusal to answer that question.’  Id. at 166.  Here, the Committee at no point directed the witness to answer; accordingly, no prosecution will lie.  This is a result demanded by common sense as well as the case law.  ‘Contempt’ citations are generally reserved for violations of court or congressional orders.  One cannot commit contempt without a qualifying ‘order.’”

Samuel W. Buell, a former federal prosecutor and current Professor of Law at Duke University Law School, said:

“[T]he real issue for me is the pointlessness and narrow-mindedness of proceeding in this way.  Contempt sanctions exist for the purpose of overcoming recalcitrance to testify.  One would rarely if ever see this kind of procedural Javert-ism from a federal prosecutor and, if one did, one would expect it to be condemned by any federal judge before whom such a motion were made.

In federal court practice, contempt is not sought against grand jury witnesses as a kind of gotcha penalty for invocations of the Fifth Amendment privilege that might turn out to contain some arguable formal flaw.  Contempt is used to compel witnesses who have asserted the privilege and then continued to refuse to testify after having been granted immunity.  Skirmishing over the form of a privilege invocation is a wasteful sideshow.  The only question that matters, and that would genuinely interest a judge, is whether the witness is in fact intending to assert the privilege and in fact has a legitimate basis to do so.  The only questions of the witness that therefore need asking are the kind of questions (and a sufficient number of them) that will make the record clear that the witness is not going to testify.  Usually even that process is not necessary and a representation from the witness’s counsel will do.

Again, contempt sanctions are on the books to serve a simple and necessary function in the operation of legal engines for finding the truth, and not for any other purpose.  Any fair and level-headed judge is going to approach the problem from that perspective.  Seeking contempt now on this record thus could accomplish nothing but making the Committee look petty and uninterested in getting to the merits of the matter under investigation.”

Robert Muse, a partner at Stein, Mitchell, Muse & Cipollone, LLP, Adjunct Professor of Congressional Investigations at Georgetown Law, and formerly the General Counsel to the Special Senate Committee to Investigate Hurricane Katrina, said:

            "Procedures and rules exist to provide justice and fairness.  In his rush to judgment, Issa forgot to play by the rules."

Professor Lance Cole of Penn State University’s Dickinson School of Law, said:

“I agree with the analysis and conclusions of Mr. Rosenberg, and the additional comments by Mr. Brand.  I also have a broader concern about seeking criminal contempt sanctions against Ms. Lerner.  I do not believe criminal contempt proceedings should be utilized in a situation in which a witness is asserting a fundamental constitutional privilege and there is a legitimate, unresolved legal issue concerning whether or not the constitutional privilege has been waived.  In that situation initiating a civil subpoena enforcement proceeding to obtain a definitive judicial resolution of the disputed waiver issue, prior to initiating criminal contempt proceedings, would be preferable to seeking criminal contempt sanctions when there is a legitimate issue as to whether the privilege has been waived and that legal issue inevitably will require resolution by the judiciary.  Pursuing a criminal contempt prosecution in this situation, when the Committee has available to it the alternatives of either initiating a civil judicial proceeding to resolve the legal dispute on waiver or granting the witness statutory immunity, is unnecessary and could have a chilling effect on the constitutional rights of witnesses in congressional proceedings.”

ICYMI…

·        MSNBC Last Word with Lawrence O’Donnell:  Interview with Former House Counsel Stan Brand

·        ABC News:  Did Darrell Issa Botch Lois Lerner’s IRS Contempt Proceedings?

·        NBC News:  Dems:  Issa Botched Chance to Hold Former IRS Head in Contempt

·        Washington Post:  Cummings Says Issa Killed Chances for Lois Lerner Contempt Proceedings

·        CBS News:  Democrats Convinced Darrell Issa Can’t Hold Lois Lerner in Contempt

·        WSJ:  Democrats Say  Issa Bungled Procedure at IRS Hearing

·        Politico:  Democrats:  Darrell Issa Botched Rules in Run-up to IRS Contempt Vote

·        The Hill:  Dems: Issa Dropped the Ball on Lerner

113th Congress