Does a DOJ grant of immunity protect against contempt of congress, or reenforce it? For example, let's take Clinton tech aide Bryan Pagliano, who was granted some form of immunity by the Justice Department. The timeline on this seems confusing, but I'll summarize information I found: In March of 2016, Republican senators sought to compel Mr. Pagliano's testimony reportedly indicating that his grant of immunity by the DOJ prohibited him from invoking the Fifth Amendment right against self-incrimination. In May, it was reported that "The [State] Department has searched for Mr. Pagliano’s email pst file and has not located one that covers the time period of Secretary Clinton’s tenure,” In June 2016, it was reported that Pagliano had filed a motion in seeking to keep the immunity agreement secret in a case involving a Judicial Watch FOIA request. Later that month the judge the document should remain sealed “because the government’s criminal investigation through which Mr. Pagliano received limited immunity is ongoing and confidential.” (Presumably Pagliano's deal was related to the FBI investigation into the private e-mail server he administered for and which Hillary Clinton used instead of official state department servers.) Later, on September 13 of 2016, the House Oversight and Government Reform Committee voted to send to send a contempt resolution to the full House for Pagliano's refusing to testify in a hearing. (Note: Pagliano's attorney indicated he would take the 5th in open session, but be willing to testify in closed session.) Wikipedia's summary indicates that the full House never considered the resolution. Can Congressional Committees still compel Mr. Paliano's testimony? Has this situation been clarified in the subsequent 24+ months?
If someone testifying before congress refuses to respond to appropriate questions (questions within the scope of the congressional inquiry), that person can be cited for contempt of Congress. One way to avoid this is if the witness can invoke the Fifth Amendment privilege against self-incrimination. That says that a person may not be compelled to be a witness against himself (or herself) in a criminal case, and has been interpreted to mean that if testimony might in future be used against the witness in a criminal case, it cannot be required, even if the current occasion is not a criminal case. However, if a person has been granted immunity in a particular matter, no testimony can be used against the person in a criminal case on that matter, and so there is no Fifth Amendment privilege not to testify on that matter. This applies to testimony before a court as well as before Congress. The grant of immunity must be at least as comprehensive as the refusal to testify would have been, or the privilege remains. Therefore, if a person has been granted immunity on a subject, that person cannot refuse to testify before Congress by invoking the Fifth Amendment. If the person does refuse, s/he can be cited for contempt of Congress. However, the person can raise a claim that the inquiry was not a proper one, for example because the subject was not a proper one fo Congressional inquiry, or that the Committee was not properly authorized. If the court upholds such a claim, the person will not be convicted of contempt. Also, while Congress can issue a citation, the Justice Department is not required to prosecute the person, and may choose to let the issue drop. Or the court might not convict on some other ground. And of course Congress (or one house of it) has to vote to issue the citation, which it might decide not to do, for political reasons, or indeed for any reason at all. So a grant of immunity alone is not enough to say that testimony will be compelled, but it is a significant step towards such compulsion. Note that under Murphy v. Waterfront Comm'n, 378 U. S. 52 (1964), a state grant of immunity also bars Federal use of the compelled testimony or its fruits, and under Kastigar v. United States, 406 U.S. 441 (1972) a Federal grant of immunity bars state use of the compelled testimony or its fruits. See also This Justia essay on "the Power to Compel Testimony" which covers the whole subject with multiple case citations.
Assuming that the documents were either true, or Manning reasonably believed that they were true, there would be no cause of action for defamation. Many of the documents disclosed would have been confidential in some sense, but usually a violation of a confidentiality statute has a criminal sanction associated with it, but does not carry with it a private cause of action &ndash; in part, because conceptually, the party actually harmed is considered to be the government and not the person about whom information is revealed. It is also possible that Manning could utilize the state secrets privilege as a defense and have such a suit dismissed on the grounds that a full and adequate defense of the claims would require the disclosure of official state secrets. For example, if a covert agent were murdered due to a wrongful disclosure of information, usually official disclosure of the fact of being a covert agent would be required to prove the case, and that evidence would be barred by the state secrets privilege, effectively barring the lawsuit entirely. Constitutional claims of privacy violations under the 4th Amendment generally relate to the wrongful acquisition of information and not its wrongful disclosure. The constitution bars unreasonable search and seizure, not unreasonable disclosure of information. The only privacy tort that might be applicable is "Public disclosure of embarrassing private facts." (A sister privacy tort, Intrusion upon seclusion or solitude, or into privacy affairs, is directed at the collection of data phase and not the dissemination phase). See Restatement of the Law (Second) of Torts, §§ 652B and 652D. But, this tort raises serious First Amendment concerns and has not been widely adopted. Realistically, this tort is unconstitutional in the absence of an affirmative contractual or quasi-contractual duty not to reveal facts that runs to the person making the disclosure, and in general, Manning would not have that kind of relationship. The classic public disclosure of embarrassing private facts case would involve a lawyer's or psychotherapist's revelations about a client. Also, in the case of the public disclosure tort the basis for damages is largely personal emotional distress and violation of trust, as opposed to damage to reputation, per se. The requirement is that the disclosure be embarrassing or breach of contract, not that it harm someone's reputation since you have no legal right to a reputation that differs from the truth.
Can the courts hold someone indefinitely for contempt of court? Yes. This is civil contempt which is imposed to compel compliance with a court order that the disobedient person has the ability to comply with, rather than criminal contempt which is limited to a set time period to punish disrespect for the Court in an instance that is over and complete. Often, it is eventually vacated on the grounds of futility (i.e. it is clear that further incarceration will not secure compliance) or mootness (e.g. when a witness refuses to testify in a trial and then the trial is completed). In the case of government officials who refuse to comply to an order directed to them in an official capacity, the government official can be released forthwith by resigning from their official post. Long periods of detention for civil contempt are most common for cases like this where someone refuses to provide the location of something of great value, or in asset protection trust type cases involving millions of dollars worth of assets where the detained person refuses to disclose hidden assets or to take the steps necessary to cause them to be turned over to a creditor or ex-spouse, and the Court has determined that the person detained is capable of doing so. Less often, it is done for quite a long time in cases involving national security secrets. Persons held in civil contempt also have fewer due process protections than persons charged with indirect criminal contempt which is just a procedurally unusual form of crime (direct criminal contempt is even more procedurally unusual and involves less due process, the person held in direct criminal contempt can be jailed or fined for a set period of time summarily by a judge without a hearing for disrespectful conduct in the judge's physical presence with only a brief few seconds opportunity to speak up for himself or herself without a right to counsel in response before being punished). When would this situation be considered 'cruel and unusual' punishment? No. Cruel and unusual punishment applies to punishment for wrongdoing. Civil contempt isn't designed to punish wrongdoing. It is calculated to secure compliance going forward with a lawful court order with which the person incarcerated has the ability to comply. In a case of civil contempt, a fundamental principle is that the person detained, who has refused to comply with a court order that the person has the ability to comply with and does so without lawful justification, &quot;holds the key to the jail&quot; and can be released forthwith upon complying with the Court's order at any time.
I will only address this part of the question: Who would be able to authoritatively decide the constitutionality of such a question, with all Supreme Court justices having clear conflict of interest on the matter? The Supreme Court could still hear such a case, as the justices make their own decisions about when to recuse themselves. In particular, they might decide to hear the case based on the "Rule of Necessity", which says roughly that a biased judge is better than none at all: a judge can hear a case, even in the presence of a conflict of interest, if there is no other way for it to be heard. See United States v. Will, 449 U.S. 200 (1980), in which the Supreme Court ruled 8-0 that federal courts could try a case related to the salaries of federal judges. Another possibility is that the case could be brought in a lower federal court, say District Court. There is a question here: the Supreme Court has original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls" (US Constitution, Article III, Section 2), and I do not know whether Supreme Court justices are "public Ministers". However, if a lower court did have jurisdiction, it could rule on the constitutionality of the question, since a District Court judge would not have a significant conflict of interest. The relevant Circuit Court of Appeals could presumably hear an appeal. If the Circuit Court's ruling was appealed to the Supreme Court, and the Supreme Court felt that they all had conflicts of interest (and decided not to invoke the Rule of Necessity), then they could simply not vote to grant certiorari, in which case the Circuit Court's ruling would stand.
In Wisconsin, right after the perjury law, they have a law prohibiting "false swearing". It applies if a person: Makes or subscribes 2 inconsistent statements under oath or affirmation or upon signing a statement pursuant to s. 887.015 in regard to any matter respecting which an oath, affirmation, or statement is, in each case, authorized or required by law or required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action, under circumstances which demonstrate that the witness or subscriber knew at least one of the statements to be false when made. The period of limitations within which prosecution may be commenced runs from the time of the first statement. So even if they couldn't actually get you for perjury, they could get you for violating this law. Perjury and false swearing are both class H felonies, so you can expect the same punishment. I am going to guess that the existence of this law suggests that it was needed to cover what would otherwise be a loophole in the perjury law, but I can't say for sure.
Generally speaking the &quot;blessings of liberty&quot; phrase from the preamble to the US Constitution is not relied on for anything. It does not grant additional power to Congress or the Federal government as a whole, neither does it restrict the Federal government beyond the restrictions already included in the body of the Constitution. Congress often accepts hearsay when it takes testimony before a committee. Such testimony need not comply with the rules of evidence that apply in court. I am not clear what you mean by &quot;to pretext privacy and the right to try&quot;, please clarify this. I am not aware of any &quot;right to try&quot; under the Federal or State governments. The word &quot;pretext&quot; is not usually used as a verb in this way. Edit The link on &quot;right to try&quot; goes to a Quora question about laws passed by Congress later being held to be unconstitutional. That does happen. but I have never herd it called &quot;the right to try&quot;. The link on &quot;pretext&quot; goes to a security.se question about a &quot;convict internet&quot;. I don't see what that has to to with the preamble to the Constitution. 2nd Edit The &quot;blessings of liberty&quot; phrase from the preamble has nothing to do with laws against discrimination, neither authorizing nor restricting such laws.
I see lots of possible issues here, including: Will the Apprendi decision be given retroactive effect? Were the constitutional issues raised at the time of trial, and if not will a court permit them to be raised later? Will a court agree with the law review publication? Will the facts in your case be sufficiently similar to the cited case? Beyond those, in a section 1983 suit many public employees have qualified immunity unless the legal point was already "well established" when the violation occurred. To pursue this you will need to work with a lawyer skilled in this area. No one on this forum can possibly given you a reliable answer as to whether you have a reasonable case.
Normally, the prosecution case will not rely upon the testimony of the defendant. Instead, the prosecution will call all of its witnesses until its evidentiary case is complete. Then, the defense case opens and it may call witnesses. The defense is not obligated to call all of the witnesses that it stated that it anticipated that it would call prior to trial and the jury doesn't know which witnesses the parties said that they anticipated that they were going to call and didn't call. Until the defense case is closed, the defendant can call himself or herself as a witness if he or she wishes to do so, but is not obligated to do so. Once a defendant starts testifying (generally in his or her own case) he or she has generally waived the Fifth Amendment right not to testify. So, the prosecution may cross-examine the defendant in this situation. But since the prosecution's case is usually already closed at this point, the prosecution's cross-examination is limited to the scope of the defendant's testimony under questions from his or her own lawyer (there are some nuances of how this is done when the defendant is self-represented and has no lawyer). The prosecution cannot expand the scope of questioning of the defendant to new topic areas. I can imagine deviations from this pattern in odd circumstances, but they would be very rare.