Rep. Elijah Cummings (D-Md.), the ranking member of the Oversight and Government Reform Committee, hit back at the draft contempt resolution. He said holding a sitting attorney general in contempt of Congress would be a departure from precedent.
“Holding the Attorney General in contempt of Congress for protecting these documents is an extreme and blatant abuse of the Congressional contempt power that undermines the credibility of the Committee,” Democratic committee staff said in a memo dated today.
The memo outlining Cummings’ views on the contempt vote says it would be “irresponsible, unprecedented and contrary to the rule of law.”
However, a report by the Congressional Research Service on Congressional oversight of the DOJ offers a broad view of Congress’s legal authority to demand internal documents.
The report says that from 1920 to 2007, Congress has “consistently sought and obtained” internal Justice documents and successfully demanded information “from the Attorney General down to subordinate personnel,” adding that court precedents have affirmed broad Congressional investigative authority in nearly every instance, regardless of whether the documents relate to ongoing criminal investigations.
Democratic staff said the CRS memo is about the bounds of Congress’s legal authority while the Cummings memo is focused on how Congress has used that authority, adding that a sitting attorney general has never been held in contempt of Congress.
Cummings’ memo also addresses the broader set of documents at issue in the draft contempt report, which include some documents the DOJ has declined to release, saying they relate to ongoing criminal investigations.
In the memo, Cummings says the DOJ is legally barred from releasing some of the documents that Issa subpoenaed, including federal wiretap applications — which have been obtained by Issa but not yet seen by the public — that are under fierce dispute.
“It contradicts the rule of law to hold the Attorney General in contempt for abiding by a federal criminal statute, which is precisely what the Contempt Citation does,” the memo says, citing federal wiretap statutes.
The memo says it is “inappropriate” for the DOJ to release documents relating to ongoing criminal investigations, quoting GOP lawyer Theodore Olson from 1984, when he was serving as assistant attorney general in the Reagan administration.
“Since the early part of the 19th century, Presidents have steadfastly protected the confidentiality and integrity of investigative files from untimely, inappropriate, or uncontrollable access by the other branches, particularly the legislature,” Olson said then.
The memo also notes that Rep. Henry Waxman (D-Calif.), when he was serving as Oversight and Government Reform chairman in 2007, agreed to a request from U.S. Attorney Patrick Fitzgerald to delay his investigation into the Valerie Plame leak case until after Fitzgerald had convicted Lewis “Scooter” Libby.
Rep. Dan Burton (R-Ind.), the memo notes, brought contempt proceedings when he was Oversight chairman against then-Attorney General Janet Reno in 1998 at the committee level. The contempt vote was never brought to the House floor and Burton’s investigation was “widely discredited,” the memo says.
The CRS report says that Congress’s investigative authority of the DOJ is not limited by whether the documents it seeks are related to an ongoing criminal investigation.
“The courts have also explicitly held that agencies may not deny Congress access to agency documents, even in situations where the inquiry may result in the exposure of criminal corruption or maladministration of agency officials,” the report says.
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