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Secord was a private citizen. Moreover, there is no mention or indication of any challenge to the committee's ability to seek such an order. Rather, the case was decided on Fifth Amendment grounds, with the court holding that there was a testimonial aspect to requiring the signing of the consent directive. Secord's Fifth Amendment right against self-incrimination.

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Although, as indicated, prior to the Miers dispute there have been no previous attempts by a house of Congress to seek civil enforcement of subpoenas in federal court authorized solely by resolution of a single House, there have been situations that appear to be closely analogous. On several occasions the House of Representatives has authorized, via House resolution, the intervention by counsel representing a House committee into civil litigation involving congressional subpoenas.

The House of Representatives responded to the litigation by authorizing Representative Moss to intervene in the suit on behalf of the Committee on Interstate and Foreign Commerce and the House of Representatives. When Ashland Oil obtained a temporary restraining order, the subcommittee promptly authorized a subpoena for the documents and Chairman Moss filed a resolution for authorization from the House to allow him to intervene with special counsel in the suit that Ashland Oil had filed seeking to enjoin the FTC from transferring the documents to the subcommittee. In In Re Beef , the chairmen of two subcommittees of the House of Representatives sought to intervene in a pending antitrust dispute for the purpose of obtaining access to documents subpoenaed by subcommittees from a party to the litigation.

The subpoenaed documents had been obtained through litigation discovery and were thus subject to a standing court protective order. The district court refused to modify its protective order allowing the party to comply with the subpoena. On appeal, the Fifth Circuit entertained a motion to dismiss by one of the plaintiffs on the grounds that the chairmen had not obtained authorization from the full House of Representatives before filing their initial motion before the district court.

The plaintiffs relied on what was then Rule XI, cl. The Fifth Circuit rejected the chairmen's arguments, noting specifically that the House Rules "require[] House authorization not only for direct enforcement of a subpoena but also in any instance when a House committee seeks to institute or to intervene in litigation and, of course, to appeal from a court decision, particularly when the purpose is, as here, to obtain the effectuation of a subpoena.

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Although the DOJ appears to have acknowledged that properly authorized procedures for seeking civil enforcement provide the preferred method of enforcing a subpoena directed against an executive branch official, the executive branch has consistently taken the position that Congress cannot, as a matter of statutory or constitutional law, invoke either its inherent contempt authority or the criminal contempt of Congress procedures against an executive branch official acting on instructions by the President to assert executive privilege in response to a congressional subpoena.

Under such circumstances, the Attorney General has previously directed the U. Attorney to refrain from pursuing a criminal contempt prosecution under 2 U.

Subpoenas were issued by both committees seeking documents contained in the EPA's litigation files. According to the DOJ, the House's action imposed an "unwarranted burden on executive privilege" and "interferes with the executive's ability to carry out the laws.

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The District Court for the District of Columbia dismissed the DOJ's suit on the grounds that judicial intervention in executive-legislative disputes "should be delayed until all possibilities for settlement have been exhausted. Attorney refused to present the contempt citation to a grand jury for its consideration on the grounds that, notwithstanding the mandatory language of the criminal contempt statute, he had discretion with respect to whether to make the presentation.

The issue was never resolved because the ultimate settlement agreement included a withdrawal of the House's contempt citation. In its initial opinion, OLC revisited the statutory, legal, and constitutional issues that were not judicially resolved by the Superfund dispute. The opinion concluded that, as a function of prosecutorial discretion, a U.

Attorney is not required to refer a contempt citation to a grand jury or otherwise to prosecute an executive branch official who is carrying out the President's direction to assert executive privilege. The President's exercise of this privilege, particularly when based upon the written legal advice of the Attorney General, is presumptively valid. Because many of the documents over which the President may wish to assert a privilege are in the custody of a department head, a claim of privilege over those documents can be perfected only with the assistance of that official.

If one House of Congress could make it a crime simply to assert the President's presumptively valid claim, even if a court subsequently were to agree that the privilege claim were valid, the exercise of the privilege would be so burdened as to be nullified. Because Congress has other methods available to test the validity of a privilege claim and to obtain the documents that it seeks, even the threat of a criminal prosecution for asserting the claim is an unreasonable, unwarranted, and therefore intolerable burden on the exercise by the President of his functions under the Constitution.

The opinion focuses almost exclusively on the criminal contempt statute, as that was the authority invoked by Congress in the Superfund dispute. In a brief footnote, however, the opinion contains a discussion of Congress's inherent contempt power, summarily concluding that the same rationale that makes the criminal contempt statute inapplicable and unconstitutional as applied to executive branch officials apply to the inherent contempt authority:.

We believe that this same conclusion would apply to any attempt by Congress to utilize its inherent "civil" contempt powers to arrest, bring to trial, and punish an executive official who asserted a Presidential claim of executive privilege.


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The legislative history of the criminal contempt statute indicates that the reach of the statute was intended to be coextensive with Congress' inherent civil contempt powers except with respect to the penalties imposed. Therefore, the same reasoning that suggests that the statute could not constitutionally be applied against a Presidential assertion of privilege applies to Congress' inherent contempt powers as well. The OLC opinion reiterates the reasoning adding the observation that the power had not been used since at that time over 50 years , and that "it seems unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison an executive branch official who claimed executive privilege.

Factual, legal, and constitutional aspects of these OLC opinions are open to question and potentially limitations. For example, with respect to the argument that a U. Attorney cannot be statutorily required to submit a contempt citation to a grand jury, despite the plain language of the law, such a statement appears to be analogous to a grant of so-called "pocket immunity" by the President to anyone who asserts executive privilege on his behalf.

While it is true that the President can immunize persons from criminal prosecution, it does not appear that he has authority to immunize a witness from a congressional inherent contempt proceeding. Arguably, an inherent contempt proceeding takes place wholly outside the criminal code, is not subject to executive execution of the laws and prosecutorial discretion, and thus, appears completely beyond the reach of the executive branch.

Furthermore, as previously indicated, inherent contempt, unlike criminal contempt, is not intended to punish, but rather to coerce compliance with a congressional directive. Likewise, it appears that the same arguments would be applicable to a potential civil enforcement by Congress. The assertion that the legislative history of the statute establishing the criminal contempt process demonstrates that it was not intended to be used against executive branch official is not supported by the historical record.

The floor debates leading to the enactment of the statute make it clear that the legislation was intended as an alternative to, not a substitute for, the inherent contempt authority.

This understanding has been reflected in numerous Supreme Court opinions upholding the use of the criminal contempt statute. Marshall expressly pointed out that the broad language of the bill "proposes to punish equally the Cabinet officer and the culprit who may have insulted the dignity of this House by an attempt to corrupt a Representative of the people. Moreover, language from the floor debate indicates that Congress was aware of the effect that this language would have on the ability of persons to claim privileges before Congress.

Specifically, the sponsor of the bill, Representative Orr, was asked about the potential instances in which the proposed legislation might interfere with recognized common law and other governmental privileges, such as the attorney-client privilege, to support an investigation such as one that probed "the propriety of a secret service fund to be used upon the discretion of the executive department," or to support inquiries about "diplomatic matters. He is not excused from testifying there.

That is the common law of Parliament. And it is right and proper that is should be so. Under our Government—under our system of laws—under our Constitution—I should protest against the use of any money by an executive authority, where the House had not the right to know how every dollar had been expended, and for what purpose. Representative Orr's reference was to a contentious investigation in , regarding charges that Daniel Webster, while Secretary of State, had improperly disbursed monies from a secret contingency fund used by the President for clandestine foreign operations.

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President Polk sent the House a list of the amounts in the contingent fund for the relevant period, which was prior to his term, but refused to furnish documentation of the uses that had been made of the expenditures on the grounds that a sitting President should not publically reveal the confidences of his predecessors. Former President Tyler testified and former President Adams filed a deposition detailing the uses of the fund during their Administrations.

Webster was found innocent of any wrongdoing. It therefore appears arguable that in the context of the debate, the contempt statute was not intended to preclude the House's ability to engage in oversight of the executive branch. Finally, it should be noted that past practice suggests that Congress clearly claims the authority to utilize the criminal contempt statute to cite executive branch officials for contempt. Since , Congress has cited a number of executive branch officials or former executive branch officials for contempt of Congress. Additionally, committees and subcommittees of the House of Representatives have also voted contempt citations against Secretary of Energy Charles Duncan ; Secretary of Energy James B.

For a summary of House and Senate action on contempt resolutions see Appendix. The DOJ's position on the use of criminal contempt against an executive branch official invoking executive privilege was put into practical effect during a dispute over an investigation into the resignations of nine United States Attorneys by the House Judiciary Committee and its Subcommittee on Commercial and Administrative Law "the committee".

The actions and approach taken by both branches throughout the dispute, the Attorney General's unwillingness to prosecute a former presidential advisor for contempt of Congress, and the resulting district court decision remain uniquely informative in delineating the ability of Congress to issue and effectively enforce its own subpoenas against executive branch officials. After an extensive investigation into whether political motives and White House involvement had prompted the requested resignations of the U.

Attorneys—including numerous informal communications and requests for information, witness interviews, and several congressional hearings—the committee ultimately sought information relating to the resignations directly from a number of President Bush's closest White House legal advisors. Fielding, notified the committee that it did not intend to comply with the Bolten subpoena on the grounds of executive privilege. With respect to the subpoena directed to Ms. Fielding first sent a letter to Miers's private attorney containing notice of the President's assertion of executive privilege over information related to the investigation, and suggested that Ms.

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Miers refrain from producing any documents pursuant to her subpoena. Fielding sent a second letter to Miers's attorney indicating that she was "not to provide Miers would not appear at the scheduled hearing. Although negotiations between the committee and the White House continued in an attempt to reach a compromise over the disclosure of documents and the requested testimony, by July 25, , the sides had apparently reached an impasse, and the committee voted to recommend that Ms. Miers and Mr. Bolten be cited for contempt of Congress for failure to comply with the duly issued subpoenas.