Post by Some GuyRegarding the recent vote where Congress found Eric
Would it be technically correct that Holder has been
"convicted" of criminal contempt . . . . ?
No.
Post by Some GuyOr is their vote to find him in contempt just a charge
that must be proven in some further proceeding or in
some other court?
Under the present state of the law, Yes.
Post by Some GuyIf the next step would be to actually imprison Holder,
would that not indicate that no trial is contemplated or
necessary and thus the declaration or finding that he
is in criminal contempt of congress is essentially a conviction?
The criminal contempt resolution is the congressional functional
equivalent of an assertion of probable cause to prosecute akin to a
congressional version of an indictment subject to the DOJ's decision
to exercise its discretion to prosecute criminally. It thus is not
"essentially a conviction" (much less an actual conviction) and,
instead, basically just allegations of facts and a claim of law
coupled with a request for further action by the U.S. attorney.
In other words, the purport of the resolution is that a majority of
the House of Reps. voted to certify what it claimed to be operative
facts to the effect that the Att'y. Gen'l wilfully defaulted in
responding to a duly issued congressional subpoena as required by 2
U.S.C. sects. 192 and 194, statutes such a default a federal
misdemeanor, and referred the matter to the relevant U.S. attorney (in
this instance, for the Dist. of Columbia) to bring the matter before a
grand jury to determine whether to prosecute.
However, asserting longstanding policy, which arguably was established
before but especially in and since the mid-1980s during Reagan
administration and which has been adhered to during Republican and
Democrat administrations since, the U.S. attorney informed congress
that it remains DOJ policy not to prosecute in cases when, as here,
an Executive Branch official declines to produce congressionally
subpoenaed documents under color of a presidential assertion of
executive privilege.
The basic rationale for this position has been essentially two-fold:
- re. the individual officer, that acting on the presidential
executive privilege instruction defeats the showing of willfulness
required for a criminal conviction; and
- more generally/institutionally, that use of a penal statute to
prosecute and to try to convict for the crime of contempt of congress
would materially interfere with the constitutional balance between the
President and Congress, i.e., would violate important constitutional
"separation of powers" principles.
But a majority of the House of Reps. has also voted to sue Mr. Holder
and the DOJ civilly to try to convince the federal courts to compel
the turnover of subpoenaed but withheld documents and presumably to
impose related judicial sanctions (e.g., contempt of court) if
congress finally prevails in that lawsuit and if the Att'y Gen'l then
violates such a final judgment -- an alternative that implicates other
constitutional "separation of powers" issues, which, however (except
via compromise and settlement achieved via political processes), have
not been definitively judicially or congressionally or presidentially
determined.