RELATIONSHIP OF EX PARTE GROSSMAN TO THE ISSUE OF WHETHER THE PRESIDENT MAY PARDON A CONTEMPT COMMITTED BEFORE THE BAR OF THE CONGRESS BY A MEMBER OF THE EXECUTIVE DEPARTMENT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP59-00882R000100340006-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 15, 2016
• Document Release Date: April 23, 2002
• Sequence Number: 6
• Publication Date: July 13, 1954
• Content Type: MF

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13 July 1954
SUBJECT . Relationship of Ex Parte Grossman to the Issue of Whether
the President May Pardon a Contempt Committed Before the
Bar of the Congress By a Member of the Executive Department
1. You asked that I examine the case of ex parte Grossman (267 U.S. 87;
87 S.C. 122 (1925)) with a view to determining what bearing it had on the
issue stated above. The request was made in the context of a statement on
page 21 of Senate Document 99 (83rd Congress, 2nd Session), "Congressional
Power of Investigation", to the effect that it was"doubtful" whether the
President could pardon a contempt committed by a member of the Executive
Department before the bar of the House, for which the Grossman case was
cited as an authority.
2. The salient facts of the Grossman case are these. In 1920 Phillip
Grossman, a resident of Chicago, Illinois, was enjoined by an order of the
District Court of the United States for the Northern District of Illinois
for selling alcoholic beverages at his place of business in violation of
Section 22 of the National Prohibition Act (41 Stat 305, 314 (1919) since
repealed). However, he continued to sell alcoholic beverages. In January
1921, pursuant to information filed against him charging this violation of
the restraining order, Grossman was haled before the same court, tried and
found guilty of contempt. He was sentenced to imprisonment in The Chicago
House of Correction and to the payment of a fine and court costs. In
December 1923, the President pardoned Grossman on the condition that the
fine be paid. Grossman paid the fine and was released. in may 1924, how-
ever, the District Court recommitted Grossman to The Chicago House of
Correction to serve the sentence notwithstanding the Presidential pardon.
Grossman brought a writ of habeas corpus contesting his detention on the
grounds of the pardon. The writ was denied him by the District Court
(1 F. 2nd 941 (1924)); and he appealed directly to the Supreme Court of
the United States.
3. The issue presented, in the language of the Court, was "that of
the power of the President to grant a pardon" for contempt of a federal
court. In the exhaustive opinion which reviewed both the English and
American authorities on the subject of executive pardon, it was held
that the Presidential pardoning power did extend to cases of contempt
of federal courts.
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4. In seeking to have the writ denied, the United States argued,
inter alia, that contempt of a federal court was not within the definition
of the word "offenses" as used in Article 2, Section 2, clause 1 of the
Constitution which empowered the President to grant pardons. In disposing
of this argument, the court, on page 118, stated as follows:
"Moreover, criminal contempts of a Federal court have been pardoned
for eighty-five years. In that time the power has been exercised
twenty-seven times. In 1830, Attorney General Berrien, in an opinion
on a state of fact which did not involve the pardon of a contempt,
expressed, merely in passing the view that the pardoning power did
not include impeachments or con tempts, using Rawle's
general words
from his work on the Constitution.Examination shows that the author's
exception of contempts had reference only to contempts of a House
of Congress. " (Emphasis Supplied)
Evidently this is the language referred to on page 21 of the Senate Document.
5. The Attorney General's opinion referred to appears in 2 Opinions of
the Attorney General 229, 230 (March 17, 1830) and has to do with the propriety
of a Presidential pardon from the seizure of certain property of one Adams
for nonpayment of some sort of penalty, the type of which is not clear from
the opinion. In paragraph 2, Attorney General Berrien stated:
" ? . . the (Presidential) pardoning power is considered to be
coextensive with the power to punish, except only in cases of
impeachment and procedings for contempt. In all other cases
? the power is general and unqualified . "
Supplied) (Emphasis
Apparently it is the underlined language to which Chief Justice Taft, in
the Grossman case, had reference.
6. I have been unable to locate the text or reference which led to the
court's conclusion that the word "contempt", as appearing in Attorney General
Berrien's opinion, comprehended only contempt before the bar of either House
of the Congress. No explanation is furnished in the opinion itself. How-
ever, I deem it significant that this exception in favor of contempt, however
meant by Berrien, was not picked up in some subsequent opinions of the At-
torney General having to do with the Presidential pardoning power and has
not since reappeared. Thus, in 3 Opinions of the Attorney General 418,
418-419 (February 16, 1839) Attorney General Brundy stated:
"The power given (the President) by the Constitution is plenery
cases of impeachment o Lly excepted." (Emphasis
Supplied)
In 20 Opinions of the Attorney General 330, 331, Attorney General Taft,
in speaking of the pardoning power stated:
"The power thus conferred is unlimited, with the exception stated,
i.e., cases eso eachment. It extends to every opinion known
to the law . . .' Emphasis Supplied)
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7. As noted by the Court in the Grossman case, Attorney General Berrien's
statement did not involve the pardon for a contempt and was o biter to the
issue before him. Likewise, the Court's reference to Berrien's opinion was
o biter in that the issue of a contempt before either House of the Congress
was not before it. Neither the arguments pro and con, the issues nor the
decision in the Grossman case involved the power of the President to pardon
for contempt of the Congress.
8. On the basis of the foregoing, I cannot agree that the Grossman
case is any sort of authority for the proposition that:
"it is doubtful . . . that the President could take definitive action
(as regards a pardon) with respect to a person held under an order
of the House."
In concluding, I note that I fail to perceive why the House of Representatives
should be singled out and no mention made of the Senate, or of the Congress
as a whole. Attorney General Berrien's troublesome opinion dealt with "a
House of Congress", not with the House of Representatives.
9. What research I have done on the larger problem, that of the power
of the President to pardon a contempt citation by either House of Congress
not made pursuant to Title 2, U.S.C. 192, 193 and 194 (the statutory contempt
provision of the Code) convinces me that this matter has not been determined.
I shall continue to research this question, but for the nonce submit my
thoughts as regards the bearing of the Grossman case on it.
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