The Supreme Court’s opinion establishing presidential immunity from many criminal prosecutions in Trump v. United States represents a watershed moment in the development of the law of separation of powers under the U.S. Constitution. It raises fundamental questions about the nature and efficacy of restraints on presidential power in a scheme of checks and balances. It will generate political commentary and academic treatments for decades to come. In the nearer term, it will continue to generate a wealth of analysis and critiques, including the introduction of the “No Kings Act,” a reactive legislative proposal led by Senate Democrats. Beyond the official act immunity question decided in former President Donald Trump’s criminal case, the Court’s reasoning casts a long shadow on other separation of powers issues, including executive privilege doctrine, unitary executive theory, even-handed administration of justice, presidential impeachment, and the rule of law.
Trump also appears to tip the hand to the Supreme Court’s view on a longstanding source of tension between Congress and the Executive: whether the U.S. attorney has a mandatory obligation to present evidence of criminal contempt of Congress when formally referred.
Congress: Federal Prosecutors “Shall” Present Contempt Evidence to Grand Juries
Congress sought, by statute, to impose an obligation on the executive branch to present evidence of an alleged violation to a grand jury on anyone Congress believes to be guilty of the criminal contempt of Congress provision, codified in 18 U.S.C. Sec. 192. The congressional contempt statute establishes a procedure to refer a statement of facts of the contemptuous actor’s behavior “to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.” 18 U.S.C. Sec. 194. By using the mandatory legislative language “shall,” Congress sought to create a ministerial, rather than discretionary, duty on the U.S. attorney to present the evidence. See Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 171 (2016) (“Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.”).
Executive: Congress Can’t Mandate Prosecutorial Decisions (for Varied Reasons)
The Executive Branch has resisted that interpretation of its obligations. There is a long list of examples demonstrating this line of tension between Congress and the Executive. A Congressional Research Service report notes that, before ex-Trump chief strategist Steve Bannon’s contempt of Congress indictment for refusing to cooperate with the Jan. 6th Committee’s investigation, the Department of Justice had declined prosecution in the six prior congressional referrals dating back to 2008.
The Department of Justice has deployed numerous arguments across different factual situations. At times, federal prosecutors argue that explicit separation of powers and executive privilege doctrines defeat the actus reus (conduct) and mens rea (mental culpability) of the statute. Other times, they assert executive exclusivity of prosecutorial discretion, or exercise prosecutorial discretion not to prosecute without a public statement of reasoning. The Congressional Oversight Manual notes that “[a]lthough approval of a criminal contempt citation under Section 194 appears to impose a mandatory duty on the U.S. Attorney to submit the violation to a grand jury, the executive branch has repeatedly asserted that it retains the discretion to determine whether to do so.” COM p. 47 (citing Letter from James M. Cole, Deputy Attorney General, to John Boehner, Speaker of the House (June 28, 2012)).
The Department of Justice successfully prosecuted ex-Trump administration official Peter Navarro for contempt of Congress related to the January 6th investigation, after the court could not substantiate Navarro’s claim that Trump had asserted executive privilege. The DOJ prosecuted Bannon for contemptuous conduct after he had left government service. But it declined to prosecute a number of high-profile cases, all the while maintaining that the Department makes the final call on whether to present evidence to a grand jury or otherwise initiate a prosecution.
The House of Representatives’ referral of Attorney General Merrick Garland for contempt of Congress is a salient example of the executive branch argument that a presidential assertion of executive privilege defeats application of the contempt of Congress statute. In 2024, the Committee on the Judiciary, chaired by Rep. Jim Jordan (R-OH), and the Committee on Oversight and Accountability, chaired by Rep. James Comer (R-KY), demanded that the Department of Justice provide video recordings of Special Counsel Robert Hur’s investigative interview of President Joe Biden. After a series of letter exchanges and escalations, including a subpoena, Biden asserted executive privilege at the request of the Department. The committees then led proceedings in which the House found Garland in contempt on June 12, 2024.
In response to the referral, Assistant Attorney General Carlos Uriarte wrote a letter to Jordan and Comer outlining the Department of Justice’s perspective on application of the contempt of Congress statute to an executive branch employee who honors a presidential assertion of executive privilege in the face of a congressional subpoena:
The longstanding position of the Department is that we will not prosecute an official for contempt of Congress for declining to provide subpoenaed information subject to a presidential assertion of executive privilege, as explained in our May 16, 2024, letter to the Committees. FN1 Across administrations of both political parties, we have consistently adhered to the position that ”the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an Executive Branch official who asserts the President’s claim of executive privilege.” Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 102 (1984). See also Application of 28 USC Sec. 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 356 (1995); Whether the Department of Justice May Prosecute White House Officials for Contempt of Congress, 32 Op. O.L.C. 65, 65-69 (2008): Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. __, *14 (May 23, 2019); Submission of Deputy Attorney General William P. Rogers, Availability of Information from Federal Departments and Agencies: Hearings Before a Subcomm. of the House Comm. on Gov’t Operations, 84th Cong. 2891, 2933 (1956).
In response, Speaker Mike Johnson (R-LA) issued a press release declaring, “The House disagrees with the assertions in the letter from the Department of Justice, and as Speaker, I will be certifying the contempt reports to the U.S. Attorney for the District of Columbia.” Subsequently, the House Judiciary Committee filed suit against Attorney General Garland seeking civil judicial enforcement on the subpoena. (See Complaint.) The Committee notes in its complaint that “DOJ informed Speaker of the House Mike Johnson that it would not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General.”
In an example during the Trump administration, Deputy Attorney General Jeffrey Rosen took the position in a letter to Speaker Nancy Pelosi (D-CA) that compliance with Trump’s assertion of executive privilege rendered contempt proceedings against Attorney General William Barr infeasible.
The Trump Majority Describes Executive Prosecutorial Discretion as Exclusive
The majority opinion in Trump includes a full-throated endorsement of an executive with full dominion over all facets and functions of the Department of Justice. And embedded in that unitary executive articulation is language that bears on the contempt of Congress referral dispute between the political branches. Specifically, the majority asserts:
And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))).
Trump v. U.S. at 20.
The Court continues: “Investigative and prosecutorial decisionmaking is ‘the special province of the Executive Branch,’ Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1.” Id. “Exclusive authority” and “absolute discretion” do not appear to leave much room for Congress to impose legislative mandates on the Executive in specific prosecutions, even ones that uniquely implicate the institutional interests of the legislative branch.
With Trump, a majority of the Supreme Court appears ready to resolve this longstanding dispute over prosecutorial discretion in contempt of Congress cases in favor of the executive branch. While it is unlikely that the Supreme Court will get an opportunity any time soon to squarely decide the issue, from here on, the executive branch position will be fortified by this language in future letter exchanges.