b'Power of the President to Remove Presidential Appointees\nfrom the National Capital Planning Commission\nT here is no indication in the text o r legislative history o f the Hom e Rule Act that C ongress intended to\nlim it the P re sid en t\xe2\x80\x99s pow er to rem ove his appointees from the N ational C apital P lanning\nCom m ission.\nT he com position o f the Com m ission and the duties im posed on it indicate that Congress did not intend\nit to be a quasi-legislative o r quasi-judicial body operating free of the President\xe2\x80\x99s policy influence,\nand its duties are essentially of an executive nature. T hus any lim itation on the P resident\xe2\x80\x99s rem oval\npower would be unconstitutional.\n\nMarch 17, 1982\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nThis responds to your request for our opinion concerning the President\xe2\x80\x99s power\nto remove presidential appointees from the National Capital Planning Commis\xc2\xad\nsion (Commission). For the reasons stated hereafter, we conclude that those\nappointees serve at the pleasure of the President and may be removed summarily\nby him from their positions.\nThe Commission dates from the enactment of legislation in 1924, Act of\nJune 6, 1924, ch. 270, 43 Stat. 463. Its present composition, functions, and\nresponsibilities, however, are based on the District of Columbia Self-Govern\xc2\xad\nment and Governmental Reorganization Act of 1973, Pub. L. No. 93-198, 87\nStat. 774 (Home Rule Act), in particular on \xc2\xa7 203,87 Stat. 779,40 U.S.C. \xc2\xa7 71a\n(1982). The Commission consists of seven ex cfficio members, viz., the Secretary\nof the Interior, the Secretary of Defense, the Administrator of General Services,\nthe Mayor of the District of Columbia, the Chairman of the District of Columbia\nCouncil, the Chairmen of the Committees on the District of Columbia of the\nSenate and the House of Representatives, and of five appointed members with\nexperience in city or regional planning, three of whom are to be appointed by the\nPresident alone and two by the Mayor. 40 U.S.C. \xc2\xa7 71a(b). We understand that\nyour inquiry is directed only at the President\xe2\x80\x99s power to remove the presidentially\nappointed members.\nThe members of the Commission appointed by the President serve for six-year,\nstaggered terms. 40 U.S.C. \xc2\xa7 71a(b)(2). The Commission was created as:\n[T]he central Federal planning agency for the Federal Govern\xc2\xad\nment in the National Capital, and to preserve the important his\xc2\xad\ntorical and natural features thereof, . . . 40 U.S.C. \xc2\xa7 71a(a)(l).\n191\n\n\x0cThe statute charges the Commission with the \xe2\x80\x9c principal duties\xe2\x80\x9d\n\nto (1) prepare, adopt, and amend a comprehensive plan for the\nFederal activities in the National Capital and make related recom\xc2\xad\nmendations to the appropriate developmental agencies; (2) serve\nas the central planning agency for the Federal Government within\nthe National Capital region, and in such capacity to review their\ndevelopment programs in order to advise as to consistency with\nthe comprehensive plan; and (3) be the representative of the\nFederal and District Governments for collaboration with the Re\xc2\xad\ngional Planning Council, as hereinafter provided.\n40 U.S.C. \xc2\xa7 71a(e).\nThe Commission has the following planning responsibilities for the National\nCapital:\na. to adopt a comprehensive plan for the federal activities in the Nation\xe2\x80\x99s\nCapital, 40 U.S.C. \xc2\xa7 71a(e);\nb. to disapprove those parts of the comprehensive plan adopted by the\nappropriate District of Columbia agencies which have a negative impact on the\ninterests or functions of the federal establishment in the Nation\xe2\x80\x99s Capital, 40\nU.S.C. \xc2\xa7 71a(a)(4); and\nc. to prepare a comprehensive plan consisting of the Commission\xe2\x80\x99s recommen\xc2\xad\ndations for the federal element developed under (a) supra, and of those parts of\nthe plans prepared by the District authorities with respect to which the Commis\xc2\xad\nsion has not determined that they have a negative impact on the federal establish\xc2\xad\nment and which shall be incorporated in the comprehensive plan without change,\n40 U.S.C. \xc2\xa7 71c(a).\nThe District of Columbia Court of Appeals has summarized and characterized\nthe Commission\xe2\x80\x99s planning functions under the Home Rule Act as follows:\n[T]he NCPC\xe2\x80\x99s [Commission\xe2\x80\x99s] planning role is limited to prepar\xc2\xad\ning the federal elements of the comprehensive plan for the Na\xc2\xad\ntional Capital and to exercising veto authority over those pro\xc2\xad\nposed District elements which it finds will have a negative impact\non the interests of the Federal Establishment. Citizens Ass\xe2\x80\x99n of\nGeorgetown v. Zoning Commission cf the District of Columbia,\n392 A .2d 1027, 1034 (1978).\nOur initial inquiry focuses on the question whether, in enacting legislation\nestablishing and maintaining the Commission, Congress has evidenced an intent\nto limit the power of the President to remove the presidential appointees to the\nCommission. The second inquiry is whether, assuming Congress intended to\nlimit the President\xe2\x80\x99s removal power, Congress constitutionally could have done\nso. We have set out the functions of the Commission in detail, since the nature of\nthose functions is relevant under existing case law to the issue of congressional\nintent as well as to the constitutional issue.\n192\n\n\x0cAccording to the basic rule of construction, first announced by James Madison\nduring the first session of the First Congress, the power of appointment carries\nwith it the power of removal. 1 Ann. Cong. 496 (1789). The courts have\nconsistently upheld the general applicability of that rule. Matter cf Hennen, 13\nPet. (38 U.S.) 230, 259-60 (1839); Blake v. United States, 103 U.S. 227, 231\n(1880); Myers v. United States, 272 U.S. 52, 119 (1926); Cafeteria Workers v.\nMcElroy, 367 U.S. 886, 896-97 (1961); National Treasury Employees Union v.\nReagan, 663 F.2d 239, 246-^8 (D.C. Cir. 1981).\nThe Home Rule Act does not on its face limit the President\xe2\x80\x99s removal power.\nWe have carefully examined the legislative history of the Act and have not found\nany evidence of such intent or any indication that Congress wanted the presiden\xc2\xad\ntial appointees to the Commission to be \xe2\x80\x9c independent\xe2\x80\x9d of the President. The\nprovision in \xc2\xa7 203(b)(2), (40 U.S.C. \xc2\xa7 71a(b)) that the terms of the members of\nthe Commission appointed by the President shall be for six years does not have\nthe legal effect of limiting the President\xe2\x80\x99s removal power. It has been established,\nsince Parsons v. United States, 167 U.S. 324, 338 (1897), that a provision for a\nterm merely means that the officer shall not serve beyond his term without a\nreappointment which would subject him to the scrutiny of the appointing au\xc2\xad\nthority. A term of office in itself therefore does not create a right to serve for its\nmaximum duration; it constitutes a limitation on, rather than a grant of, the\nofficer\xe2\x80\x99s tenure. Parsons, ibid. To the same effect are Martin v. Tobin, 451 F.2d\n1335, 1336 (9th Cir. 1971) (U.S. Marshal); Carey v. United States, 132 F. Supp.\n218 (Ct. Cl. 1955) (U.S. Attorney); Farley v. United States, 139 F. Supp. 757,\n758 (Ct. Cl. 1956) (U.S. Marshal). This point was conceded even in the\ndissenting opinion of Justice Brandeis in Myers v. United States, supra, 272 U.S.\nat 241.1\nWiener v. United States, 357 U.S. 349, 355-56 (1958), indicates that a\ncongressional intent to limit the President\xe2\x80\x99s removal powers may be inferred from\nthe imposition of quasi-legislative or quasi-judicial functions on an officer or a\n1 Borders v. Reagan, 518 F S upp 2 5 0 , 2 5 5 ,2 6 0 (D D C . 1981), appeal pending D .C . C ir D ocket N o. 8 1 -1 9 9 8 ,\nw hich involved the interpretation o f \xc2\xa7 434 of the H om e Rule A ct, seeks to distinguish Parsons on the th eo ry that\nw hen C ongress, in providing for a term of office, uses the words \xe2\x80\x9c shall serve fo r x y ea rs,\xe2\x80\x9d as it does in \xc2\xa7 4 3 4 ,\nC ongress expresses an intent that the officer shall serve out the term independent o f Presidential direction and,\ntherefore, from sum m ary rem oval. O n the other hand, the court reasoned, when C ongress uses the words \xe2\x80\x9c shall be\nappointed for a term o f x y e a rs.\xe2\x80\x9d as it did in the statute involved in Parsons and now in 28 U S .C \xc2\xa7\xc2\xa7 5 4 1 (b ) and\n561(b), C ongress indicates that the officer shall be subject to the P resident\'s d irection and, th erefo re, his rem oval\npow er S uch literalism m ight have been appropriate in the context o f 17th century conveyancing, but we b eliev e it\ndoes not constitute a suitable m ethod o f discerning legislative purpose Indeed, the Home Rule A ct, and esp ecially\n\xc2\xa7 203, 40 U S .C 7 1 a, the section here involved, uses both form ulas interchangeably S ection 203 pro v id es that\n" th e term s of office o f the m em bers appointed by the President shall be for six years\n, \xe2\x80\x9d w hile \xe2\x80\x9c [m jem b ers\nappointed by the M ayor shall serve for four years \xe2\x80\x9d N ow here is there any indication that C ongress intended the\npresidential appointees to be rem ovable, w hile the m em bers appointed by the M ayor are entitled to serve o u t their\nterm s. We believe the correct m eans o f ascertaining the legislative purpose is to proceed on the assum ption C o n g ress\nis aw are of the longstanding ju d icia l interpretation placed on a provision fo r a term , viz . that it co n stitu tes a\nlim itation rather than a grant, and that C ongress uses unm istakable and express language, rather than su b tle\nm odifications in the term form ula, w hen it intends to m ake an official nonrem ovable du rin g his term . C o n g ress\nknow s that the E xecutive Branch has consistently taken the position that the President m ay rem ove app o in tees\nexcept w here C ongress clearly (and constitutionally) intended the contrary result. We are com pelled to co n clu d e\nthat C ongress w ill m ake its intentions unm istakably clear when it intends to lim it the P resid en ts rem oval pow er\n[ N o t e : In Borders v. Reagan, the court o f appeals granted the governm ent s m otion to vacate the d istrict c o u rt\xe2\x80\x99s\nord er and rem anded for dism issal on grounds o f m ootness 732 F.2d 181 (D .C . Cir. 1982) Ed )\n\n193\n\n\x0cCommission. The composition of the Commission and the duties imposed on it\ndemonstrate, however, that Congress did not intend it to be a quasi-legislative or\nquasi-judicial body in the context suggested by Wiener. The inclusion in the\nCommission of two Cabinet Members (the Secretary of Defense and the Secre\xc2\xad\ntary of the Interior) and of the Administrator of General Services suggests very\nstrongly the absence of any congressional purpose that the Commission should\nbe free from the policy influence of the President.2 In addition, a contrary\ninference is to be drawn from the Commission\xe2\x80\x99s functions. The preparation of a\ncomprehensive plan for the federal activities in the Nation\xe2\x80\x99s Capital, i.e., to plan\nthe location and appearance of buildings used by federal agencies, and to prevent\nthe planning authorities of the District of Columbia from encroaching on the\ninterests or functions of the federal establishment, are essentially of an executive\nnature. They cannot be and have not been considered to be quasi-legislative or\nquasi-judicial in character. This analysis of the Commission functions and duties\nhas been adopted by the courts. In D.C. Federation cf Civic Associations v. Airis,\n275 F. Supp. 533, 540 (D.D.C. 1967) the court held, per Holtzoff, J.:\nThe National Capital Planning Commission is not a judicial, or a\nquasi-judicial tribunal; it is not a regulatory commission or an\nadjudicatory body. . . . This Commission is purely and solely an\nadministrative group.\nWe recognize that some courts have characterized zoning as a quasi-legislative\nfunction in view of the limitations it usually imposes on the use of private\nproperty. See, e.g., Gerstenfeld v. Jett, 374 F.2d 333, 335 (D.C. Cir. 1967).\nPlanning and zoning, however, are not identical or interchangeable terms. 8\nMcQuillin, Mun. Corp., \xc2\xa7 25.08 (3rd Ed., 1983 Revised Vol.).3 This is evi\xc2\xad\ndenced by the circumstance that, in the District of Columbia, the planning\nauthority for non-federal property is vested in the Mayor and Council, D.C.\nCode \xc2\xa7 1-2002 (1981), while the zoning authority for those projects is vested in\nthe Zoning Commission of the District of Columbia. D.C. Code\xc2\xa7 5-412(1981).\nMoreover, since the Commission regulates only the use of federal property and\nprevents encroachments on the federal interest by the local planning and zoning\nauthorities, it does not possess the \xe2\x80\x9c quasi-legislative\xe2\x80\x9d power limiting land use by\na private property owner.4\n2 W e believe that th e p resen ce o f the two con g ressio n al co m m ittee chairm en o n th e C om m ission does not co n fer\nu p o n it a q u asi-leg isla tiv e character, and is not indicative o f a congressio n al in ten t to that effec t. In the fields o f\nm a n ag in g a n d pro te ctin g th e p ro p erty of the U n ite d States, C o n g ress acts in a d u al capacity, i.e., not o n ly as a\nleg islativ e b o d y b u t also , u n d er A rticle IV, \xc2\xa7 3 , c l. 2 o f the C o n stitu tio n , as th e o w n er o r tru stee o f the p ro p er ty.\nU nited States v. Midwest O il C o., 2 3 6 U.S. 4 5 9 .4 7 4 (1915); Kleppe v. New Mexico, 4 2 6 U .S . 5 2 9 ,5 4 0 ( 1 9 7 6 ) ,an d\nth e a u th o rities th e re c ite d . S ince th e principal fu n ctio n s of the C om m issio n are to plan fo r th e proper u se c f the\nfed era l ho ld in g s in th e D istrict o f C olum bia, to p ro te c t them against local encro ach m en t, and to acq u ire p ro p erty fo r\nce rta in fed eral pu rp o ses (4 0 U S C . \xc2\xa7 72), the tw o com m ittee ch a irm en are essen tially acting as officers o f C o n g ress\nap p o in ted to rep resen t C o n g ress rather than to ex e rc ise in any fash io n C ongress\' legislative power.\n3 T h is po in t is m ade grap h ic b y a com parison o f th e opinions in American University v. Prentiss, 113 F.Supp. 3 89,\n393 (D .D .C . 1953), c ffd , 214 F 2 d 282 (D .C. C ir.), cert, denied, 34 8 U S. 898 (1954), w ith D C. Federation o f\nCivic Associations v. A iris, supra, both of which w e re handed dow n by Ju d g e H oltzoff. T he fo rm er opinion h eld that\na zo n in g co m m issio n p erform s a [quasi] legislative function, th e latter, as show n above, decided th at the\nC o m m issio n is \xe2\x80\x9c p u rely and solely an adm inistrative g ro u p /\'\n4 To th e ex ten t that th e D .C . elem ents of the com prehensive p lan prepared and adopted b y th e C om m ission\np u rsuant to 4 0 U .S .C . \xc2\xa7 71c(a) lim it private la n d u se, the C om m issio n only acts as a conduit w ithout pow er of\nam endm ent\n\n194\n\n\x0cBorders v. Reagan, 518 F. Supp. 250, 259, 264\xe2\x80\x9468 (D.D.C. 1981), appeal\npending, D.C. Cir. Docket No. 81-1998, appears to be based on the assump\xc2\xad\ntion\xe2\x80\x94erroneous in our view\xe2\x80\x94 that the power of Congress to limit the President\xe2\x80\x99s\nremoval power is somehow increased or more readily assumed in the case of\nofficers confined exclusively to local District of Columbia matters. The Commis\xc2\xad\nsion, however, is not such an agency.\nThe very language of the Home Rule Act defines the Commission as the\ncentral federal planning agency for the federal government in the Nation\xe2\x80\x99s\nCapital (\xc2\xa7 203(a)(1), 40 U.S.C. \xc2\xa7 7 la(a)(l)). The use of the term \xe2\x80\x9c Federal\xe2\x80\x9d was\nno drafting accident. The legislative history of the Home Rule Act is replete with\nstatements stressing that the Commission is designed to be a federal agency\ncharged with the protection of the federal interest. Thus the House Report (H.R.\nRep. No. 482, 93d Cong., 1st Sess. (1973) states (at p.7):\nThe NCPC is designated as a Federal Planning Agency for the\nFederal Establishment in the District, and the Commissioner\n(Mayor) is designated as the central planning agency for the\nDistrict except for Federal and international projects.\nAnd again (at p. 17):\n[Section 203 establishes] the National Capital Planning Com\xc2\xad\nmission as a Federal Planning Agency. . . .\nThe conference report (H.R. Rep. No. 703, 93d Cong., 1st Sess. 74 (1973))\nshows that the conference adopted the pertinent House provisions:\nThe House amendment contained provisions, not included in\nthe Senate bill, which established the NCPC as a Federal planning\nagency for the Federal government to plan for the Federal estab\xc2\xad\nlishment in the National Capital region and provided that the\nMayor would be the central planning agency for the District. . . .\nThe Conference substitute (sections 203, 423) adopts, in es\xc2\xad\nsence, the House provisions. . . .\nThese passages in the committee reports are corroborated by statements made\nduring the debates on the adoption of the bill in which the Commission was\ncharacterized as \xe2\x80\x9c a Federal entity\xe2\x80\x9d (Congressman Broyhill, 119 Cong. Rec.\n33381); \xe2\x80\x9c Our Federal protection arm\xe2\x80\x9d (Delegate Fauntroy, id. at 33384); \xe2\x80\x9c a\nFederal body\xe2\x80\x9d (Congressman O\xe2\x80\x99Neill, id. at 33386); \xe2\x80\x9c [t]he bill will: first,\nstrengthen the role of NCPC as the principal planning agency for the Federal\nGovernment in the city and in the National Capital region as a whole\xe2\x80\x9d (Con\xc2\xad\ngressman Stark, id. at 33392). Similar statements were made during the debate\non the adoption of the conference report in that body. The Commission was\ncharacterized as \xe2\x80\x9c the Federal planning agency\xe2\x80\x9d (Congressman Diggs, who was\nin charge of the bill, 119 Cong. Rec. 42037); \xe2\x80\x9c a Federal entity\xe2\x80\x9d (Congressman\nBroyhill, id. at 42043); \xe2\x80\x9c a Federal agency such as the National Capital Planning\nCommission which is designed to protect the Federal interest\xe2\x80\x9d (Congressman\nNelsen, id. at 42051).\n195\n\n\x0cSimilarly, the court of appeals held in D.C. Federation cf Civic Associations v.\n391 F.2d 478, 484 (D.C. Cir. 1968), that the Commission\xe2\x80\x99s duties \xe2\x80\x9c are\nfederal in nature.\xe2\x80\x9d 5\nThe Commission thus is not confined to local matters within the meaning of the\ndistrict court\xe2\x80\x99s opinion in Borders, supra. To the contrary, the Commission is a\nfederal agency and an important part of its responsibilities is to prevent local\nactivities from interfering with the federal establishment.\nWe therefore conclude that Congress neither expressly nor by implication\nlimited the President\xe2\x80\x99s power to remove his appointees to the Commission.\nAssuming, arguendo, that Congress had sought to limit the President\xe2\x80\x99s re\xc2\xad\nmoval power in the premises, such attempt would, in our view, have been\nunconstitutional under controlling precedent. It has been firmly established that\nCongress cannot limit the President\xe2\x80\x99s power to remove executive officers. Myers\nv. United States, supra. This aspect of Myers was recently reaffirmed in Buckley\nv. Valeo, 424 U.S. 1, 135-36 (1976). See also Martin v. Tobin, 451 F.2d 1335\n(9th Cir. 1971).6The Constitution permits express or implied statutory limitations\non the President\xe2\x80\x99s removal power only in the case of officers performing quasi\xc2\xad\njudicial or quasi-legislative functions. Humphrey\xe2\x80\x99s Executor v. United States,\n295 U.S. 602 (1935); Wiener v. United States, 357 U.S. 349 (1958). As\ndiscussed above, the Commission\xe2\x80\x99s duties are of an executive, rather than quasi\xc2\xad\njudicial or quasi-legislative, nature.7\nWe therefore conclude that Congress did not limit the President\xe2\x80\x99s power to\nremove the presidential appointees to the Commission.\n\nAiris,\n\nT h e o d o r e B. O lson\n\nAssistant Attorney General\nOffice cf Legal Counsel\n\n5 T h is decision is not an appeal from the ca se involving th e sam e parties referred to ea rlier in this opinion\n6 T h e Myers ca se , it is tru e , is lim ited to officers appointed by the P resident by and with the advice and consent of\nthe S enate, an d the presidential appointees to th e C om m ission are appointed by the President alone. Perkins v.\nUnited Stales, 116 U .S . 483 (1886), held that w h e re C ongress vests the appointm ent pow er in a D epartm ent head\nu n der the term inal clause o f A rticle II, \xc2\xa7 2 of the C o n stitu tio n , it m ay lim it his rem oval power. Myers did not decide\nthe question w hether Perkins ap p lies also to the situ a tio n w here the pow er of appointm ent is vested in the President\nalone because that issue w as not b efo re it. It su g g ested , however, strongly that this question is to be answ ered in the\nnegative 272 U .S . at 16 1 -6 2 In Martin v Reagan, 525 F. S upp 1 1 0 (D .M a s s 1981), the co u rt held that an officer\nappointed by th e P resident alone serves at the p le asu re o f th e P resident.\n7 To the extent that Borders, supra, suggests th a t C ongress has the pow er under the C onstitution to lim it the\nP resident\xe2\x80\x99s rem oval pow er w ith respect to officers w h o se duties are confined to local D istrict o f C olum bia m atters, as\ndiscussed, supra, the functions and duties of the C om m issio n are federal rather than local\n\n196\n\n\x0c'


b'Whether the Department of Justice May Prosecute\nWhite House Officials for Contempt of Congress\nThe Department of Justice may not bring before a grand jury criminal contempt of Congress citations,\nor take any other prosecutorial action, with respect to current or former White House officials who\ndeclined to provide documents or testimony, or who declined to appear to testify, in response to\nsubpoenas from a congressional committee, based on the President\xe2\x80\x99s assertion of executive privilege\nor the immunity of senior presidential advisers from compelled congressional testimony.\n\nFebruary 29, 2008\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nYou have asked whether the Department of Justice (\xe2\x80\x9cDepartment\xe2\x80\x9d or \xe2\x80\x9cDOJ\xe2\x80\x9d)\nmay bring before a grand jury criminal contempt of Congress citations, or take any\nother prosecutorial action, with respect to current or former White House officials\nwho declined to provide documents or testimony, or who declined to appear to\ntestify, in response to subpoenas from a congressional committee, based on the\nPresident\xe2\x80\x99s assertion of executive privilege or the immunity of senior presidential\nadvisers from compelled congressional testimony. We conclude it may not.\nI.\nThe President has asserted executive privilege and directed that certain documents and related testimony not be provided in response to subpoenas issued to\nJoshua Bolten, the Chief of Staff to the President, and Harriet Miers, the former\nCounsel to the President, by the Committee on the Judiciary of the House of\nRepresentatives in connection with its inquiry into the decision of the Department\nof Justice to request the resignations of several United States Attorneys in 2006.\nThe President also directed Ms. Miers to invoke her immunity as a senior presidential adviser from compelled congressional testimony and decline to appear in\nresponse to the subpoena from the Judiciary Committee. These directives were\nbased on legal opinions from the Department advising that the assertions of\nprivilege and immunity were legally proper. See Assertion of Executive Privilege\nConcerning the Dismissal and Replacement of U.S. Attorneys, 31 Op. O.L.C. 1\n(2007) (addressing assertion of executive privilege); Immunity of Former Counsel\nto the President From Compelled Congressional Testimony, 31 Op. O.L.C. 191\n(2007) (\xe2\x80\x9cImmunity of Former Counsel to the President\xe2\x80\x9d).\nNotwithstanding the President\xe2\x80\x99s directives asserting executive privilege and\ninstructing Ms. Miers not to testify, the House of Representatives cited Mr. Bolten\nand Ms. Miers for contempt of Congress, and the Speaker of the House yesterday\nreferred the contempt citations to the United States Attorney for the District of\n\n65\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nColumbia for prosecution pursuant to the criminal contempt of Congress statute,\n2 U.S.C. \xc2\xa7\xc2\xa7 192, 194 (2000). 1 See Letter for Michael B. Mukasey, Attorney\nGeneral, from Nancy Pelosi, Speaker of the House of Representatives (Feb. 28,\n2008).\nII.\nThe Department of Justice has long taken the position, during administrations\nof both political parties, that \xe2\x80\x9cthe criminal contempt of Congress statute does not\napply to the President or presidential subordinates who assert executive privilege.\xe2\x80\x9d\nApplication of 28 U.S.C. \xc2\xa7 458 to Presidential Appointment of Federal Judges,\n19 Op. O.L.C. 350, 356 (1995) (\xe2\x80\x9cApplication of 28 U.S.C. \xc2\xa7 458\xe2\x80\x9d). In 1956,\nDeputy Attorney General (and later Attorney General) William Rogers presented\nto Congress a Department of Justice study that concluded that the criminal\ncontempt of Congress statute was \xe2\x80\x9cinapplicable to the executive departments\xe2\x80\x9d\nwhere the President had asserted executive privilege. See Availability of Information From Federal Departments and Agencies: Hearings Before a Subcommittee of the House Committee on Government Operations, 84th Cong. 2891, 2933\n(1956). Twenty years later, Assistant Attorney General for the Civil Division Rex\nLee stated in testimony before the Subcommittee on the Separation of Powers of\nthe Senate Judiciary Committee that if Congress cited an Executive Branch official\nfor contempt of Congress because of an assertion of executive privilege and \xe2\x80\x9cthe\nDepartment determined to its satisfaction that the claim was rightfully made, it\nwould not, in the exercise of its prosecutorial discretion, present the matter to a\ngrand jury.\xe2\x80\x9d Representation of Congress and Congressional Interests in Court:\n\n1\n\nSections 192 and 194 of title 2 of the U.S. Code provide, in relevant part:\nEvery person who having been summoned as a witness by the authority of either\nHouse of Congress to give testimony or to produce papers . . . willfully makes default,\nor 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\nmore than $1,000 nor less than $100 and imprisonment in a common jail for not less\nthan one month nor more than twelve months.\n....\nWhenever a witness summoned as mentioned [above] fails to appear to testify or fails\nto produce any books, papers, records, or documents, as required, or whenever any\nwitness so summoned refuses to answer any question pertinent to the subject under inquiry before either House . . . a statement of fact constituting such failure is reported\nto and filed with the President of the Senate or the Speaker of the House, it shall be the\nduty of the said President of the Senate or Speaker of the House . . . to certify . . . the\nstatement of facts aforesaid under the seal of the Senate or House . . . to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand\njury for its action.\n\n66\n\n\x0cWhether DOJ May Prosecute White House Officials for Contempt of Congress\n\nHearings Before the Subcomm. on Separation of Powers of the Senate Committee\non the Judiciary, 94th Cong. 8 (1976).\nThe Department reaffirmed these principles in a detailed 1984 opinion prepared\nby Assistant Attorney General for the Office of Legal Counsel Theodore Olson. In\nthat opinion, this Office explained that when an Executive Branch official\ncomplies in good faith with the President\xe2\x80\x99s assertion of executive privilege, \xe2\x80\x9ca\nUnited States Attorney is not required to refer a contempt citation . . . to a grand\njury or otherwise to prosecute [the] Executive Branch official who is carrying out\nthe President\xe2\x80\x99s instruction.\xe2\x80\x9d Prosecution for Contempt of Congress of an Executive\nBranch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C.\n101, 102 (1984) (\xe2\x80\x9cProsecution for Contempt of Congress\xe2\x80\x9d). Drawing upon the\nprinciples explained by Mr. Rogers and Mr. Lee, canons of statutory construction,\nand basic constitutional principles, we explained that at least two legal conclusions\nsupported the Department\xe2\x80\x99s longstanding interpretation of the criminal contempt\nstatute:\nFirst, as a matter of statutory interpretation reinforced by compelling\nseparation of powers considerations, we believe that Congress may\nnot direct the Executive to prosecute a particular individual without\nleaving any discretion to the Executive to determine whether a violation of the law has occurred. Second, as a matter of statutory interpretation and the constitutional separation of powers, we believe that\nthe contempt of Congress statute was not intended to apply and\ncould not constitutionally be applied to an Executive Branch official\nwho asserts the President\xe2\x80\x99s claim of executive privilege in this context.\nId.\nDuring the Clinton Administration, the Department explicitly reiterated in a\npublished opinion issued by Assistant Attorney General for the Office of Legal\nCounsel Walter Dellinger that the \xe2\x80\x9ccriminal contempt of Congress statute does not\napply to the President or presidential subordinates who assert executive privilege.\xe2\x80\x9d\nApplication of 28 U.S.C. \xc2\xa7 458, 19 Op. O.L.C. at 356. To apply \xe2\x80\x9cthe contempt\nstatute against an assertion of executive privilege,\xe2\x80\x9d Mr. Dellinger explained,\n\xe2\x80\x9cwould seriously disrupt the balance between the President and Congress.\xe2\x80\x9d Id.\nAccordingly, based on this longstanding position, the refusal by Mr. Bolten and\nMs. Miers to produce documents or testimony over which the President has\nasserted executive privilege did not constitute a crime, and therefore the Department may not pursue criminal contempt of Congress charges against them.\n\n67\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nIII.\nWe believe that the same reasoning necessarily applies to Ms. Miers\xe2\x80\x99 invocation of immunity from compelled congressional testimony. The principles that\nprotect an Executive Branch official from prosecution for declining to comply\nwith a congressional subpoena based on a directive from the President asserting\nexecutive privilege similarly shield a current or former senior adviser to the\nPresident from prosecution for lawfully invoking his or her immunity from\ncompelled congressional testimony. Here, the President directed Ms. Miers to\ninvoke her constitutional immunity, and the President\xe2\x80\x99s directive was based upon a\nlegal opinion from the Department of Justice advising that such an invocation of\nimmunity would be legally proper. See Immunity of Former Counsel to the\nPresident, 31 Op. O.L.C. at 192\xe2\x80\x9393 (explaining Ms. Miers\xe2\x80\x99 immunity from\ncompelled congressional testimony). In reaching the conclusion that a United\nStates Attorney is not required to prosecute an Executive Branch official complying with the President\xe2\x80\x99s assertion of executive privilege, the Department reasoned\nthat the separation of powers principles protected by executive privilege would be\neviscerated if reliance on the privilege carried with it criminal liability:\nApplication of the criminal contempt statute to Presidential assertions of executive privilege would immeasurably burden the President\xe2\x80\x99s ability to assert the privilege and to carry out his constitutional\nfunctions. If the [criminal contempt] statute were construed to apply\nto Presidential assertions of privilege, the President would be in the\nuntenable position of having to place a subordinate at the risk of a\ncriminal conviction and possible jail sentence in order for the President to exercise a responsibility he found necessary to the performance of his constitutional duty. Even if the privilege were upheld,\nthe executive official would be put to the risk and burden of a criminal trial in order to vindicate the President\xe2\x80\x99s assertion of his constitutional privilege.\nProsecution for Contempt of Congress, 8 Op. O.L.C. at 136.\nIn this respect, a senior presidential adviser\xe2\x80\x99s invocation of his or her immunity\nfrom compelled testimony is no different. Subjecting that adviser to prosecution\nfor raising in good faith the President\xe2\x80\x99s separation of powers objection to a\ncongressional subpoena would impermissibly undermine the President\xe2\x80\x99s constitutional authority. As Assistant Attorney General Olson\xe2\x80\x99s opinion analyzing this\nprinciple in the context of an assertion of executive privilege observed:\nIf the President is to preserve, protect, and defend the Constitution, if\nhe is faithfully to execute the laws, there may come a time when it is\nnecessary for him both to resist a congressional demand for documents and to refuse to prosecute those who assist him in the exercise\n\n68\n\n\x0cWhether DOJ May Prosecute White House Officials for Contempt of Congress\n\nof his duty. To yield information that he in good conscience believes\nhe must protect in order to perform his obligation, would abdicate\nthe responsibilities of his office and deny his oath. To seek criminal\npunishment for those who have acted to aid the President\xe2\x80\x99s performance of his duty would be equally inconsistent with the Constitution.\nId. at 142. The prosecution of a senior presidential adviser who has lawfully\ninvoked her constitutional immunity from compelled congressional testimony\nwould likewise be inconsistent with the Constitution.\nIn sum, based on the longstanding Justice Department position discussed\nabove, the non-compliance with the Judiciary Committee subpoenas by Mr. Bolten\nand Ms. Miers did not constitute a crime. Accordingly, the Department may not\nbring the criminal contempt citations before a grand jury or take any other action\nto prosecute Mr. Bolten or Ms. Miers for criminal contempt of Congress.\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n69\n\n\x0c'