On congressional law enforcement

The early years of the Trump presidency have helped to shine a renewed national spotlight on the constitutional separation of powers. In particular, the investigations into Russian active measures in the 2016 elections and now the confirmation hearings for Judge Brett Kavanaugh remind us of the constitutional significance of Congress’s power of inquiry and of its independence from the executive. Congress does not work for the President.  And when Congress chooses to forego self-defense (or, more precisely, defense of the Constitution’s formal arrangements) in favor of promoting a “shared agenda” with the President, it breeds an evolving institutional weakness and allows its power – and its capacity for counteracting ambition with ambition, in Madison’s words – to atrophy.

And yet, the intersection of these ongoing inquiries also reminds us of the ways in which Congress and the executive can support each other’s constitutional functions. Congressional investigative power can undoubtedly help federal prosecutors in some cases. Similarly, federal prosecutors can help to safeguard Congress’s role in the constitutional system. The President, after all, has a constitutional obligation to take care that the laws are faithfully executed, and to preserve, protect, and defend the Constitution. Those obligations include protecting not only the interests of the executive branch but also the separation of powers more generally, and enforcing criminal laws that are designed to protect the institutional integrity of the legislature.

Congress, however, cannot always rely on the executive, especially when those who offend congressional prerogatives are themselves executive branch officials or closely-guarded nominees.

My recent paper, “Congressional Law Enforcement,” published in the Wayne Law Review as part of its recent symposium on congressional oversight, explores the relationship between Congress and the executive with respect to violations of criminal law that implicate Congress’s institutional prerogatives. The paper identifies both inter-branch and intra-branch law enforcement, highlighting several tools that Congress has to protect itself, especially when the executive declines to enforce the criminal law.

Safeguarding congressional prerogatives often demands the assistance of the executive, such as when enforcing the criminal law.  Congress, after all, is not a prosecutorial agency.  Inter-branch law enforcement therefore concerns those situations in which Congress works cooperatively with executive branch investigators and prosecutors to protect its interests through federal criminal law enforcement.

One of the ways that Congress does so is through referrals for criminal prosecution. This practice is not uncommon. Sometimes the factual basis for the referral will arise from potentially criminal conduct revealed during congressional hearings or investigations; sometimes it will arise where a summoned witness “willfully makes default” or refuses to answer questions, implicating the contempt statutes, 2 U.S.C. sections 192 and 194.

Outside of the contempt arena, the practice of making criminal referrals has been largely overlooked in the separation of powers literature.  And it raises separation of powers concerns, especially where Congress appears to be dictating prosecution.

Section 194, for example, commands the United States Attorney to bring a congressional contempt certification before a grand jury, which arguably interferes with the executive’s constitutional power to make charging decisions in specific cases (and this appears to be the position of the Justice Department, as well, based on a 1984 Office of Legal Counsel Memo).  Moreover, when Members or Committee leaders send referrals to the Justice Department, they must be careful not to create the perception that prosecutors are being commanded to act on the referral. Rather, the referral must serve only as an advisory mechanism, so as not to interfere with the executive’s discretion or allow raw partisan or electoral considerations to determine who is subject to criminal prosecution. Congress is on firmest ground, then, when such referrals arise from the exercise of congressional investigative power and where the alleged criminality implicates congressional prerogatives.

Intra-branch law enforcement, by contrast, relates to the internal mechanisms that Congress can use when its interests or privileges have been violated but where it cannot rely upon external enforcement of the criminal law as a remedy. These include, for example, information gathering – including grants of immunity (which do not require Justice Department approval) and subpoena power – and inherent contempt proceedings, which are not distinctly criminal but which allow a chamber to try before the bar of the house someone who has violated the privileges of the chamber, and then incarcerate them in a congressional jail.

These mechanisms have the virtue of allowing Congress to defend itself without reliance upon another branch and thus, as Josh Chaftez observes, without making Congress a supplicant of another branch.  But intra-branch mechanisms, too, can raise separation of powers concerns (for example, using inherent contempt against an official from another branch). And even if constitutionally permissible (as the Supreme Court has repeatedly held), inherent contempt can be, as others have noted, unseemly and ineffective, and has fallen into disuse (not since 1935).  Ultimately, then, Congress may resort to impeachment, which it can use as a remedy against those federal officials who engage in serious violations of congressional privileges.

As a case study to examine the application and synthesis of these tools, my paper uses a hypothetical scenario in which the president, or a high-level White House aide or other administration official, engages in conduct that could possibly constitute obstruction of Congress under 18 U.S.C. §1505. But the latest controversies involving Judge Kavanaugh, and the allegations of possible sexual assault against him, also provide a useful example.

If those who have lodged accusations against Judge Kavanaugh have made false statements to Senators or Senate investigators (even if unsworn), they could, if the relevant mental state could also be proven, be subject to criminal prosecution for, among other things, obstruction under section 1505 or under the false statements statute (18 U.S.C. § 1001(c)(2)). If, on the other hand, Judge Kavanaugh knowingly and willfully made false statements, or otherwise corruptly impeded the congressional inquiry, he could also be subject to criminal prosecution under those same statutes.

The Senate could urge the executive to enforce these laws, which are designed, in part, to protect the legislature. So if the evidence were sufficient, Chairman Grassley could make a referral.  This would be a situation in which the force of a congressional referral is at its height: an offense against the Congress that arose in the course of Congress’s exercise of its own constitutional powers. But if the Trump Administration refused to prosecute, Congress could use inherent contempt or, in the case of Judge Kavanaugh, impeachment.

Neither of these latter internal enforcement mechanisms seems likely, especially as to Judge Kavanaugh (Could we really imagine Congress, after 83 years of inherent contempt dormancy, tossing a federal judge, or a Supreme Court Justice, in a jail in the Capitol basement? Can we imagine two-thirds of the Senate voting for conviction and removal on articles of impeachment, in today’s hyper-partisan culture?)  Still, in an appropriate situation and with adequate evidence, these mechanisms allow Congress to protect itself by remedying the offense against it and by seeking to deter impediments to the fulfillment of its constitutional duties, such as advice and consent for judicial nominees. This is particularly critical where Congress cannot count on executive branch enforcement of the criminal laws that protect it.

Of course, the kind of congressional law enforcement that I explore in the paper can, like all power, be abused.  The separation of powers ought to account for that, as well; ambition counteracting ambition functions across all three branches. But the separation of powers also requires that Congress be protected from harm.  And making effective use of the constitutional mechanisms available for defense of Congress will require a commitment to Congress as an independent institution with a unique constitutional role.  Blind partisanship and congressional obsequiousness toward the president, however, are obstacles to maintaining a healthy institutional identity and safe constitutional government.

J. Richard Broughton is an associate professor of law at University of Detroit Mercy.