Pubdate: Sun, 29 Mar 2015
Source: Washington Post (DC)
Copyright: 2015 The Washington Post Company
Author: Andrew Herman
Note: The writer is a lawyer with Miller & Chevalier and practices in 
the areas of civil and criminal federal litigation with a focus on 
federal campaign and election law and congressional ethics and investigations.


Two days before Initiative 71 legalized possession of marijuana in 
the District, Rep. Jason Chaffetz (R-Utah), chairman of the House 
Committee on Oversight and Government Reform, informed Mayor Muriel 
Bowser (D) that her decision to proceed with implementation and 
enforcement would be a "willful violation of the law."

A Feb. 24 letter from Chaffetz and Rep. Mark Meadows (R-N.C.) 
contended that the language of a continuing resolution enacted by 
Congress in December barred the use of appropriated funds by the 
District to legalize marijuana, and they characterized the mayor's 
actions as a violation of that bar.

By demanding details about District employees who either 
"participated in any way" or "declined to participate" in activities 
related to Initiative 71, the letter reads more like a grand jury 
subpoena than a legislative inquiry.

Chaffetz is entitled to his opinion regarding the legality and wisdom 
of the mayor's decision to move forward with marijuana legalization. 
As chairman of the House committee with jurisdiction over the 
District, he unquestionably possesses extensive legislative authority 
over D.C. operations. But that authority extends to writing laws 
regulating conduct within the District, not serving as a self- 
appointed sheriff; the Constitution demands that Congress leave 
enforcement to others. Congressional threats directed toward the 
mayor and written demands for information about District employees 
and operations overstep the bounds of Congress's legislative power 
and threaten the viability of any legitimate legal inquiry into this process.

The constitutional boundaries of congressional power are well 
established: Chaffetz's committee may act only to further a 
legislative purpose. This boundary applies even when the committee is 
exercising its extensive investigatory authority. As the Supreme 
Court noted nearly 60 years ago, Congress is not "a law enforcement 
or trial agency. These are functions of the executive and judicial 
departments of government. . . . Investigations conducted solely for 
the personal aggrandizement of the investigators or to 'punish' those 
investigated are indefensible."

Chaffetz provided no legislative rationale for his demand for 
documents relating to the District's implementation of the 
initiative. His letter clearly indicates that he considers the ban on 
implementation a settled matter that requires no additional 
legislative action. As such, it is hard to imagine how demanding 
details about employee activities - never mind stating that the mayor 
may have violated the law - could further congressional rulemaking efforts.

Consequently, Bowser may ignore the requests for documents and 
information. If she does, Congress could have a hard time effectively 
enforcing its demands through a judicial civil or criminal contempt 
process that demands a valid legislative purpose for such action.

Ironically, Chaffetz's statements could undermine any legitimate 
legal inquiry into Bowser's actions undertaken by appropriate law 
enforcement authorities. Federal courts have long recognized that 
congressional committees that generate publicity by investigating the 
subject matter of pending investigations or seek to influence legal 
inquiries can irreparably taint or invalidate those prosecutions.

One can understand why Chaffetz would be miffed about Bowser's 
decision to proceed. But threatening letters on congressional 
letterhead will simply not cut it. The chairman would be far better 
served finding District residents who oppose legalization and 
encouraging them to sue the D.C. government to stop implementation. 
Until that time, Chaffetz, a former college placekicker, will 
probably find his efforts opposing the mayor's action sailing wide right.
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MAP posted-by: Jay Bergstrom