The campaign season for the midterm elections is in full swing, with the Republican majorities in the House and, to a lesser extent, Senate in some peril. Should we have a divided government as of January, clashes between Congress and the White House will intensify. Greater friction and investigative activity is to be expected when one party occupies the White House and another controls Congress. But President Donald Trump—by word, deed and temperament—presents unique dynamics that could turn brushfires into conflagrations. Even during times of partisan and institutional tension, our constitutional system relies on a baseline of cooperation between the branches. Trump presents a grave threat to that cooperation—described here as the legal concept of interbranch comity.
One of the peculiarities of our system of separation of powers is that, at times, federal courts and Congress rely on the executive branch to enforce their prerogatives and preserve the integrity of their proceedings. Congress has established an array of crimes—criminal contempt statutes, perjury, false statements and obstruction crimes—that are designed to protect legislative and judicial processes. Prosecutorial discretion and executive branch legal doctrine can be a source of tension when those crimes relate to interbranch disputes over administration confidentiality interests.
But President Trump presents a unique threat to this system of cooperation. Through disturbing use of the pardon power and efforts to politicize law enforcement, Trump has signaled that other branches’ reliance on traditional enforcement of the crimes designed to protect their hearings and investigations is misplaced.
The concept of “comity” is the legal principle that political entities will recognize the legislative, executive and judicial acts of those other entities with claims to legitimate autonomy. Examples where comity comes into play: among equal branches of government, among states, between the federal government and states, between current and former presidential administrations, among countries, between countries and international treaty organizations. Comity arises, in part, from the recognition that these other entities have the power to reciprocate in kind, or have other means of leverage and self-help. But more than a purely transactional model, comity is an institutional signal of mutual respect.
While comity is a well-established legal principle, it is not the kind of hard-stop legal barrier that fares well during the Trump presidency. A total breakdown of comity could intensify the heat of disputes and gravity of legal consequences at both ends of Pennsylvania Avenue if there is a new era of aggressive congressional oversight led by a Democratic majority after the midterms.
The Arpaio Pardon Reversed Criminal Contempt of Court
Take, for example, Trump’s pardon of Joe Arpaio, the former Maricopa County, Arizona sheriff. On the substance, there was no justification for clemency for Arpaio. He was clearly guilty of overseeing gross and sadistic constitutional violations, and just as clearly guilty of having defied the federal courts that ordered him to start following the law. But beyond the facts specific to Arpaio, that pardon represented an assault on the principle of interbranch comity.
As an initial matter, courts would usually engage in self-help by holding a person in coercive contempt. There, the court—with its own judicial resources such as a court bailiff—has a witness jailed until they comply with a court order. Eventually, a judicial detention authority expires as a matter of statutory authorization and as a matter of due process.
But the court may also seek to punish a person flouting federal court orders with the crime of contempt. Unlike coercive contempt’s forward-looking goal of changing the behavior of a specific witness in a particular case, criminal contempt is designed to achieve traditional goals of punishment: backward-looking retributivism, as well as forward-looking specific and general deterrence. The U.S. Attorney Manual has a brief primer on the distinction between civil and criminal contempt, and the Dobbs and Roberts Remedies treatise has a longer treatment.
Criminal contempt largely looks like any other federal prosecution. Federal prosecutors initiate the case (no grand jury indictment for misdemeanors) and then bring the case to resolution through plea bargaining or trial. In Arpaio’s case the charges were brought by means of the prosecutor’s requested order to show cause under 18 U.S.C. § 401 and Rule 42 of the Federal Rules of Criminal Procedure. Thus, federal courts relied on the executive branch to vindicate their interests by bringing the criminal code to bear.
The pardon sent an unmistakable message to the federal bench: Trump would not backstop the courts when his political allies were involved. This is one of the primary reasons Trump’s pardon of Arpaio was so damaging.
The Federal Rules of Criminal Procedure do provide the courts with a workaround for an uncooperative Justice Department. Rule 42 provides:
The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.
Prosecutorial Discretion and Legal Doctrine Limit Criminal Contempt of Congress
Congress does not have an analogous ability to appoint its own prosecutor. Congress must rely on the executive branch to prosecute the process crimes in legislative investigations. The crimes of contempt of Congress, perjury before Congress, false statements to Congress, or obstruction of a congressional investigation, all require prosecutor initiation by information or grand jury indictment. Plea bargaining and trials are conducted by executive branch lawyers. As such, prosecutorial discretion, as well as executive branch legal doctrine, can become an insurmountable hurdle to congressional process crime prosecutions.
That process works well when the targets of Congress’s are private entities without political ties to the White House. Unlike courts, however, Congress is much more likely to have disputes with witnesses who are administration officials asserting an executive branch legal position. In such a situation, it has been the longtime position of the executive branch that no crime has been committed, and that even if there were, the executive branch may exercise discretion not to prosecute. This dynamic exposes a major rift in constitutional interpretation between the two political branches.
From Congress’ perspective, the executive branch has very little discretion to decline prosecution. In order to make its expectations of the executive branch clear, Congress used mandatory language in its criminal contempt referral statute, 2 U.S.C. § 194, to instruct the United States attorney of her duty to initiate prosecution. Upon referral to the prosecutor, Congress commands that the U.S. attorney’s “duty it shall be to bring the matter before the grand jury for its action.” Members of Congress assert that it is binding on the U.S. Attorney for the District of Columbia. Or, in the parlance of Marbury v. Madison, frustrated members of Congress cite the mandatory language of the referral statute as evidence that the prosecution of the contempt statute is a ministerial function rather than a discretionary duty.
For example, members of the House sought criminal prosecution of Attorney General Eric Holder after the chamber held him in contempt for refusal to produce certain documents to Congress that related to Operation Fast and Furious, a controversial anti-gun-trafficking law enforcement effort. Holder had withheld the documents at the direction of President Barack Obama in furtherance of the executive branch legal position on their privileged nature.
In response to the House’s criminal referral, then-Deputy Attorney General Jim Cole wrote: “Across administrations of both political parties, the longstanding position of the Department of Justice has been and remains that we will not prosecute an Executive Branch official under the contempt of Congress statute for withholding subpoenaed documents pursuant to a presidential assertion of executive privilege.” Cole cited a Reagan-era opinion by Ted Olson, then-assistant attorney general for the Office of Legal Counsel (OLC).
In a previous episode that flips the partisan valence, the Democratic-controlled House found senior White House aides Josh Bolton and Harriet Miers in contempt of Congress during an executive privilege standoff with President George W. Bush over the House Judiciary Committee investigation into the political motivations for firing a number of U.S. attorneys. Then-Speaker Nancy Pelosi informed the U.S. Attorney for the District of Columbia that, per Section 194, he was “now required” to take the matter before a grand jury for action. The Justice Department, again relying on the Olson memorandum, declined.
The Olson argument rests on statutory and constitutional grounds. As a matter of statutory interpretation, OLC concluded that the “contempt of Congress statute does not apply to executive officials who assert Presidential claims of privilege.” It came to that conclusion with reference to the legislative history of Section 194, as well as statutory construction informed by constitutional avoidance of looming problematic interference with the ability of the president to assert a constitutionally grounded privilege. That view was reaffirmed during the Clinton administration when OLC asserted “application of the contempt statute against an assertion of executive privilege would seriously disrupt the balance between the President and Congress.”
Moreover, Congress and the White House can resolve these disputes with other means of leverage. Beyond criminal laws, with sufficient will, Congress can use its appropriations, confirmations and legislative proposals to accomplish its investigative goals. Josh Chafetz and I have argued in law review articles, from different angles, that criminal prosecution or other court resolution is not the best way to resolve separation of powers disputes related to executive privilege.
As a matter of constitutional law, OLC concluded that the separation of powers prohibited Congress from depriving the U.S. attorney or attorney general of prosecutorial “discretion not to refer a contempt of Congress citation to a grand jury.” The Constitution limits the other branches from impermissibly interfering in executive functions. While there is debate, modern public prosecution is largely recognized as such an executive function. The Supreme Court has characterized a prosecutor’s choice not to indict as a “decision which has long been regarded as the special province of the Executive Branch.” As the Supreme Court observed in Buckley v. Valeo: “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them….”Some of Congress’ own researchers concede a constitutional limitation on congressional efforts to legislatively mandate prosecutions, even when Congress’s interests are at stake.
Constitutionally protected prosecutorial discretion has far broader implications than the inapplicability of Section 194 to executive privilege fights. It is this constitutional argument advanced by OLC that could take on added significance in the Trump era, especially if Democrats take control of a chamber of Congress.
My longtime prosecutor friend called prosecutorial discretion the “linchpin of the criminal justice system.” The federal government has incredibly broad substantive criminal law and limits on law enforcement resources. People look to local government police and prosecutors—not federal law enforcement—for primary public safety. Therefore, where potential violations of law have occurred, federal criminal law is largely a creature of choices and discernment.
As such, from the executive branch perspective, decisions to seek indictment of those Congress or courts have held in contempt flow from the Take Care Clause’s general obligation to enforce the laws, along with a commitment to comity between the branches. Comity, therefore, serves as one of the principle drivers of the Justice Department’s interest in backstopping Congress.
Failing a mandatory obligation, congressional actors have fallen back to an appeal to interbranch comity. Take, for example, a letter from Reps. Trey Gowdy (R-S.C.) and Lamar Smith (R-Tex.) complaining to Attorney General Sessions about inactivity on a referral to bring charges against former Hillary Clinton aide Brian Pagliano for contempt of Congress, 2 U.S.C. § 192. They wrote:
As the Chairmen of the House Committees on Oversight and Government Reform and on Science, Space, and Technology, we (as well as our committees and the House itself) have a significant institutional interest in Congress’s ability to perform its constitutionally based oversight function to the fullest extent permissible, and therefore in the rigorous enforcement of the criminal statutes that have been enacted into law precisely in order to protect and facilitate that important constitutional function. We also have a significant institutional interest in ensuring that DOJ performs its constitutionally based obligation to faithfully execute the laws, including 2 U.S.C. § 192.
Such calls by members of Congress do not always go heeded, especially in periods of divided government when the controversy at issue has partisan overtones. Further, like the President, Congress can risk improper efforts to influence federal law enforcement. But when there is credible evidence that crimes have been committed against Congress, federal law enforcement should investigate.
Now Add Trump, Stir
This brings us to concerns facing Congress that are unique to the Trump era beyond institutional executive privilege fights and traditional tensions during divided government.
As an initial matter, Trump does not appear to be swayed by arguments about historical practice, tradition or norms. Comity is a similar legal concept that does not feature immediate hard-stop enforcement or legal limitations.
What’s more, a lot of the foreseeable lines of conflict in congressional investigations will not involve executive privilege issues, but will cut to the quick from Trump’s perspective. A lot of the potential investigative conflict would likely be between Congress and Trump political advisers, business associates and family members rather than government officials.
Even when government officials are involved, the narrow circumstances addressed by the Olson memorandum may not be in play. Not all process crimes involving executive branch officials are created equal. For example, contempt of Congress grounded in withholding documents or an obstruction theory grounded in executive privilege assertion would be on different footing than contempt of Congress grounded in perjury by an executive branch official or obstruction grounded in willful document destruction.
Those dynamics set the stage for the potential abuse related to constitutionally derived prosecutorial discretion, as described in the Olson memorandum. Such discretion presents a potential opportunity for Trump to interfere with the initiation phases of investigation and prosecution on cases in which he has personal or political equities. While Trump could certainly wield the pardon power in an Arpaio-like manner that undermined any potential Congress-related process crime, he has also demonstrated interest in interference at earlier phases. Consider Trump’s suggestion to former FBI Director James Comey that the FBI ease up on then-National Security Adviser Michael Flynn, or his contemplation of ordering the Justice Department to cease its Arpaio prosecution, or his assertion that he has an “absolute right” to control the Justice Department, or his various calls to the Justice Department to investigate political rivals or other people who pose a political threat.
Should the midterms result in new congressional majorities, there will be a traditional institutional clash of divided government. But those clashes will be exacerbated by Trump-specific provocations. While interbranch comity is a constitutionally significant obligation, it risks being washed away in a threatening storm of oversight.
Photo: Democratic Senators and Representatives call for an independent, bipartisan commission to investigate foreign interference in the 2016 presidential election at the U.S. Capitol January 9, 2017. Photo by Chip Somodevilla/Getty Images.