# Congressional Subpoenas: Enforcing Executive Branch Compliance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR45653 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** March 27, 2019 - **Citation:** R45653 ## Text Congressional Subpoenas: Enforcing Executive Branch Compliance Todd Garvey Legislative Attorney March 27, 2019 Congressional Research Service 7-.... www.crs.gov R45653 SUMMARY Congressional Subpoenas: Enforcing Executive Branch Compliance Congress gathers much of the information necessary to oversee the implementation of existing laws or to evaluate whether new laws are necessary from the executive branch. While executive branch officials comply with most congressional requests for information, there are times when the executive branch chooses to resist disclosure. R45653 March 25, 2019 Todd Garvey Legislative Attorney -re-acte--@crs.loc.gov For a copy of the full report, please call 7-.... or visit www.crs.gov. When Congress finds an inquiry blocked by the withholding of information by the executive branch, or where the traditional process of negotiation and accommodation is inappropriate or unavailing, a subpoena—either for testimony or documents—may be used to compel compliance with congressional demands. The recipient of a duly issued and valid congressional subpoena has a legal obligation to comply, absent a valid and overriding privilege or other legal justification. But the subpoena is only as effective as the means by which it may be enforced. Without a process by which Congress can coerce compliance or deter non-compliance, the subpoena would be reduced to a formalized request rather than a constitutionally based demand for information. Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas. The two predominant methods rely on the authority and participation of another branch of government. First, the criminal contempt statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena. Once the contempt citation is received, any prosecution lies within the control of the executive branch. Second, Congress may try to enforce a subpoena by seeking a civil judgment declaring that the recipient is legally obligated to comply. This process of civil enforcement relies on the help of the courts to enforce congressional demands. But these mechanisms do not always ensure congressional access to requested information. Recent controversies could be interpreted to suggest that the existing mechanisms are at times inadequate—particularly in the instance that enforcement is necessary to respond to a current or former executive branch official who has refused to comply with a subpoena. There would appear to be several ways in which Congress could alter its approach to enforcing committee subpoenas issued to executive branch officials. These alternatives include the enactment of laws that would expedite judicial consideration of subpoena-enforcement lawsuits filed by either house of Congress; the establishment of an independent office charged with enforcing the criminal contempt of Congress statute; or the creation of an automatic consequence, such as a withholding of appropriated funds, triggered by the approval of a contempt citation. In addition, either the House or Senate could consider acting on internal rules of procedure to revive the long-dormant inherent contempt power as a way to enforce subpoenas issued to executive branch officials. Yet, because of the institutional prerogatives that are often implicated in inter-branch oversight disputes, some of these proposals may raise constitutional concerns. Congressional Research Service Congressional Subpoenas: Enforcing Executive Branch Compliance Contents Introduction ..................................................................................................................................... 1 The Current Process: Criminal Contempt and Civil Enforcement of Subpoenas............................ 4 Criminal Contempt of Congress ................................................................................................ 4 Civil Enforcement of Subpoenas............................................................................................... 5 The Current Process in Use ....................................................................................................... 6 The Historical Process: Inherent Contempt ................................................................................... 12 Subpoena-Enforcement Frameworks and Their Attendant Constitutional Concerns .................... 17 Potentially Applicable Separation-of-Powers Principles ........................................................ 17 Congressional Exercise of Executive or Judicial Powers ................................................. 17 Executive Privilege ........................................................................................................... 20 Bicameralism and Presentment ......................................................................................... 25 Current Framework ................................................................................................................. 27 Alternative Subpoenas Enforcement Frameworks .................................................................. 29 Establish Expedited Civil Enforcement in the Courts ...................................................... 29 Return to the Inherent Contempt Power ........................................................................... 30 Provide for the Appointment of an Independent Official to Enforce Violations of the Criminal Contempt of Congress Statute .................................................................. 36 Contingent Contempt Legislation ..................................................................................... 39 Conclusion ..................................................................................................................................... 44 Contacts Author Contact Information .......................................................................................................... 44 Congressional Research Service Congressional Subpoenas: Enforcing Executive Branch Compliance Introduction Through its investigative powers, Congress gathers information it considers necessary to oversee the implementation of existing laws or to evaluate whether new laws are necessary.1 This “power of inquiry” is essential to the legislative function and derives directly, though implicitly, from the Constitution’s vesting of legislative power in the Congress.2 The information that Congress seeks, whether to inform itself for lawmaking purposes or to conduct oversight, often lies in the executive branch’s possession.3 And while executive branch officials comply with most congressional requests for information,4 “experience has taught that mere requests” can sometimes be “unavailing,” and that “information which is volunteered is not always accurate or complete . . . .”5 The Supreme Court has therefore determined that “some means of compulsion [is] essential” for Congress “to obtain what is needed.”6 When Congress finds an inquiry blocked by the withholding of information, or where the traditional process of negotiation and accommodation7 is considered inappropriate or unavailing, a subpoena—either for testimony or documents—may be used to compel compliance with congressional demands.8 An individual—whether a member of the public or an executive branch official—has a legal 1 Barenblatt v. United States, 360 U.S. 109, 111 (1959) (“The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate . . . .”); Watkins v. United States, 354 U.S. 178, 187 (1957) (“The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.”). See also J. William Fulbright, Congressional Investigations: Significance for the Legislative Process, 18 U. CHI. L. REV. 440, 441 (1951) (describing the power of investigation as “perhaps the most necessary of all the powers underlying the legislative function”). 2 Congress’s power of inquiry is both essential in purpose and extensive in scope. See McGrain v. Daugherty, 273 U.S. 135, 174 (1927) (“We are of opinion that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”); Barenblatt, 360 U.S. at 111 (“The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”). Yet, the power remains subject to legal limitations. See Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 n.15 (1975) (“Although the power to investigate is necessarily broad it is not unlimited . . . . We have made it clear [] that Congress is not invested with a ‘general power to inquire into private affairs.’ The subject of any inquiry always must be one ‘on which legislation could be had.’”) (citations omitted). 3 The Supreme Court has stated that “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it.” McGrain, 273 U.S. at 175. 4 See, e.g., Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal—Do Nothing, 48 ADMIN. L. REV. 109, 116 (1996) (“Cooperation dominates most congressional requests for information, with the executive turning over the requested information as a matter of routine. On rare occasion, however, the executive resists information requests.”); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 56 (D.D.C. 2008) (noting that the “process of negotiation and accommodation . . . most often leads to resolution of disputes between the political branches”). 5 McGrain, 273 U.S. at 175. 6 Id. 7 See United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (noting that the Framers relied “on the expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system”). 8 Id. Each standing committee has been delegated subpoena power by House or Senate rule. See HOUSE RULE XI (2)(m)(3); SENATE RULE XXVI(1). Congressional Research Service 1 Congressional Subpoenas: Enforcing Executive Branch Compliance obligation to comply with a duly issued and valid congressional subpoena, unless a valid and overriding privilege or other legal justification permits non-compliance.9 The subpoena, however, is only as effective as the means by which it is potentially enforced. Without a process by which Congress can coerce compliance or deter non-compliance, the subpoena would be reduced to a formalized request rather than a constitutionally based demand for information.10 Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas. The two predominant methods rely on the authority and participation of another branch of government. First, the criminal contempt statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena.11 Once the contempt citation is received, any later prosecution lies within the control of the executive branch.12 Second, Congress may try to enforce a subpoena by seeking a civil judgment declaring that the recipient is legally obligated to comply.13 This process of civil enforcement relies on the help of the courts to enforce congressional demands. Congress has only rarely resorted to either criminal contempt or civil enforcement to combat noncompliance with subpoenas.14 In most circumstances involving the executive branch, committees can obtain the information they seek through voluntary requests or after issuing (but not yet seeking enforcement of) a subpoena. Even where the executive branch is initially reluctant to provide information, Congress can use the application of various forms of legislative leverage, along with an informal political process of negotiation and accommodation, to obtain what it needs.15 Congress exercises substantial power over the executive branch by controlling agency authority, funding, and, in the case of the Senate, confirmation of executive officers.16 The use or 9 Watkins v. United States, 354 U.S. 178, 187–88 (1957) (“It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation.”). 10 McGrain, 273 U.S. at 174 (observing that the “process to enforce” the investigatory power is “essential” to the “legislative function”). 11 2 U.S.C. §§ 192, 194. 12 Although the criminal contempt statute provides that “it shall be” the U.S. Attorney’s “duty . . . to bring the matter before the grand jury for its action,” the executive branch has asserted discretion in whether to present the matter to the grand jury. See, e.g., Letter from Ronald C. Machen Jr., United States Attorney, U.S. Dep’t of Justice, to John A. Boehner, Speaker, U.S. House of Representatives (Mar. 31, 2015); 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) [hereinafter Olson Opinion]. 13 See 2 U.S.C. §§ 288b, 288d; 28 U.S.C. § 1365; Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 94 (D.D.C. 2008) (“The Court concludes that the Committee has an implied cause of action derived from Article I to seek a declaratory judgment concerning the exercise of its subpoena power.”). See also CRS Report RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey (discussing the two predominant subpoena enforcement mechanisms). 14 See “The Current Process in Use.” 15 See Devins, supra note 4, at 114 (arguing that “Congress rarely makes use of its subpoena power” partly because of the “benefits that each branch receives by cooperating with the other”). The D.C. Circuit has suggested that Congress and the executive branch have an “implicit constitutional mandate” to accommodate each other’s needs during a conflict. United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (“Each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. This aspect of our constitutional scheme avoids the mischief of polarization of disputes.”). 16 CRS Report R45442, Congress’s Authority to Influence and Control Executive Branch Agencies, by Todd Garvey and Daniel J. Sheffner (discussing various tools that Congress may use to compel or incentivize agency compliance Congressional Research Service 2 Congressional Subpoenas: Enforcing Executive Branch Compliance threatened use of these powers in a way that would impose burdens on an agency can encourage compliance with subpoenas (or make it more likely that requested information will be provided without need to issue a subpoena) and solidify Congress’s position when trying to negotiate a compromise during an investigative dispute with the executive branch.17 But legislative leverage and the subpoena enforcement mechanisms do not always ensure congressional access to requested information, particularly from the executive branch. Recent controversies could be interpreted to suggest that the existing mechanisms are at times inadequate—at least in the relatively rare instance that enforcement is necessary to respond to a current or former executive branch official who has refused to comply with a subpoena.18 Four times since 2008, the House of Representatives has held an executive branch official (or former official) in criminal contempt of Congress for denying a committee information subpoenaed during an ongoing investigation.19 In each instance the executive branch determined not to bring the matter before a grand jury.20 In three of the four instances, the House also looked to the federal courts for civil enforcement of the outstanding subpoena.21 The committees involved eventually obtained much of the information sought through those lawsuits, but only after prolonged litigation, and, in one of the cases, only after a judicial decision that could be viewed as potentially hindering Congress’s access to executive branch information in the future.22 The House’s decision to resort to criminal contempt of Congress and civil enforcement in these cases was not without controversy, as in each instance the executive official asserted that a constitutional privilege limited Congress’s right to the information sought.23 This report will not address whether the officials in each case invoked a valid privilege or whether the privilege asserted was adequate to justify withholding information from Congress. Nor will this report with congressional demands). 17 See Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 MARQ. L. REV. 881, 931 (2014) (“Congress may use legislative authorizations and appropriations as leverage against the Executive Branch to obtain requested information.”); Louis Fisher, Congressional Access to Information: Using Legislative Will and Leverage, 52 DUKE L.J. 323, 325 (2002) (noting that oversight disputes are often “decided by the persistence of Congress and its willingness to adopt political penalties for executive noncompliance. Congress can win most of the time—if it has the will—because its political tools are formidable.”). 18 See infra “The Current Process in Use.” Although modern examples have highlighted potential problems with Congress’s current subpoena enforcement options, such inefficiencies are not a new development. For example, political scientist James Burnham wrote in 1959 that the process for enforcing committee subpoenas: is neither sure nor speedy. It can be postponed indefinitely when it is not avoided altogether, by legal technicalities, the plea of civil rights, or Congress’ own unwillingness to pursue the matter vigorously. Thus, with very little personal hazard, witnesses may defeat the ends of a current inquiry: there will be a new Congress with new interests before the question of punishment is decided one way or the other. JAMES BURNHAM, CONGRESS AND THE AMERICAN TRADITION 245 (1959). 19 H. Res. 574, 113th Cong. (2014) (former Internal Revenue Service official Lois Lerner); H. Res 711, 112th Cong. (2012) (Attorney General Eric Holder); H. Res. 979, 110th Cong. (2008) (White House advisers Harriet Miers and Joshua Bolten). These examples do not account for the instances in which a committee was denied access to subpoenaed information but nevertheless chose, for any number of reasons, not to pursue enforcement. 20 See “The Current Process in Use.” 21 H. Res. 706, 112th Cong. (2012) (authorizing lawsuit to compel compliance with subpoena issued to Attorney General Holder); H. Res 980, 110th Cong. (2008) (authorizing lawsuit to compel compliance with subpoena issued to White House advisers Miers and Bolten). 22 See infra “The Current Process in Use.” 23 Each report recommending adoption of the contempt resolution contained minority views opposing the action. See H. REP. NO. 113-465, at 338 (2014); H. REP. NO. 112-546, at 161 (2012); H. REP. NO. 110-423, at 99 (2007). Congressional Research Service 3 Congressional Subpoenas: Enforcing Executive Branch Compliance address whether, under the circumstances, it was appropriate for Congress to exercise its contempt power. Rather, this report will examine the legal enforcement of congressional subpoenas in a contemporary and historical context and discuss legal issues associated with alternative subpoena-enforcement frameworks that Congress may consider to obtain information from the executive branch. The Current Process: Criminal Contempt and Civil Enforcement of Subpoenas Besides leveraging its general legislative powers, Congress currently relies on two formal legal mechanisms to enforce subpoenas: criminal contempt of Congress and civil enforcement of subpoenas in the federal courts. Criminal Contempt of Congress The criminal contempt of Congress statute, enacted in 1857 and only slightly modified since, makes the failure to comply with a duly issued congressional subpoena a criminal offense.24 The statute, now codified under 2 U.S.C. § 192, provides that any person who “willfully” fails to comply with a properly issued committee subpoena for testimony or documents is guilty of a misdemeanor, punishable by a substantial fine and imprisonment for up to one year.25 The criminal contempt statute outlines the process by which the House or Senate may refer the non-compliant witness to the Department of Justice (DOJ) for criminal prosecution. Under 2 U.S.C. § 194, once a committee reports the failure to comply with a subpoena to its parent body, the President of the Senate or the Speaker of the House is directed to “certify[] the statement of facts . . . to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.”26 The statute does not expressly require approval of the contempt citation by the committee’s parent body, but both congressional practice and judicial decisions suggest that approval may be necessary.27 Although approval of a criminal contempt citation under § 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.28 24 R. S. § 102; Act of Jan. 24, 1857, ch. 19, § 1, 11 Stat. 155 (now codified at 2 U.S.C. § 192). 25 2 U.S.C. § 192. The subpoena that gives rise to the contempt must have been issued for a legislative purpose, be pertinent to the matter under inquiry, and relate to a matter within the House or Senate committee’s jurisdiction. See Senate Perm. Subcomm. on Investigations v. Ferrer, 199 F. Supp. 3d 125, 134–38 (D.D.C. 2016). 26 2 U.S.C. § 194. The DOJ has previously obtained convictions under 2 U.S. C. § 192 against executive branch officials pursuant to plea deals without a vote of the House or Senate. See Prosecution of Contempt of Congress: Hearing Before the Subcomm. on Admin. Law and Gov’tl Relations of the H. Comm. on the Judiciary, 98th Cong. 23--24 (1983). 27 See HOUSE PRACTICE, ch. 17 § 2; Wilson v. United States, 369 F.2d 198, 201–02 (D.C. Cir. 1966) (“It has been the consistent legislative course that the Speaker is not under a ‘mandatory’ duty to certify the report of the committee, but on the contrary that the committee’s report is subject to further consideration on the merits by the House involved. When the House is in session the Speaker does not automatically transmit the report of alleged contempt to the United States Attorney. Instead as a matter of routine a member of the committee offers a resolution for the consideration of the House involved.”). 28 See, e.g., Letter from Ronald C. Machen Jr., United States Attorney, U.S. Dep’t of Justice, to John A. Boehner, Speaker, U.S. House of Representatives (Mar. 31, 2015) (declining to present criminal contempt citation to a grand jury); Olson Opinion, supra note 12, at 102. Congressional Research Service 4 Congressional Subpoenas: Enforcing Executive Branch Compliance A successful contempt prosecution may lead to criminal punishment of the witness in the form of incarceration, a fine, or both.29 Because the criminal contempt statute is punitive, its use is mainly as a deterrent. In other words, while the threat of criminal contempt can be used as leverage to encourage compliance with a specific request, a conviction does not necessarily lead to release of the information to Congress.30 Civil Enforcement of Subpoenas Congress may also choose to enforce a subpoena through a civil suit in the federal courts by a process known as civil enforcement. Under this process, either house of Congress may unilaterally authorize one of its committees or another legislative entity to file a suit in federal district court seeking a court order declaring that the subpoena recipient is legally required to comply with the demand for information.31 In the past, this authorization has been provided through a simple House or Senate resolution.32 Federal law provides the jurisdictional basis for the Senate’s exercise of its civil enforcement power.33 Under 28 U.S.C. § 1365, the U.S. District Court for the District of Columbia (D.C. District Court) has jurisdiction “over any civil action brought by the Senate or committee or subcommittee of the Senate to enforce . . . any subpoena.”34 The law, however, makes clear that the grant of jurisdiction “shall not apply” to an action to enforce a subpoena issued to an executive branch official acting in his or her official capacity who has asserted a “governmental privilege.”35 Yet at least one district court has suggested that the limitation found within § 1365 does not necessarily bar the courts from exercising jurisdiction over Senate claims to enforce a subpoena against an executive official under other jurisdictional provisions.36 29 2 U.S.C. § 192. 30 For example, during an investigation into the White House Travel Office, contested documents were turned over to Congress on the day a contempt resolution against the White House Counsel was scheduled for a floor vote. See H. REP. NO. 104-874, at 47 (1997). 31 See 2 U.S.C. §§ 288b, 288d; 28 U.S.C. § 1365; Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 94 (D.D.C. 2008). 32 See, e.g., H. Res. 706, 112th Cong. (2012) (Holder); H. Res. 980 110th Cong. (2008) (Miers and Bolten); S. Res. 377, 114th Cong. (2016) (Ferrer). An alternative mechanism of authorizing legal action on behalf of the House may exist under House rules. . See HOUSE RULE II (establishing that the “Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.”); 165 CONG. REC. H30 (daily ed. Jan. 3, 2019) (statement of Rep. McGovern) (“If a Committee determines that one or more of its duly issued subpoenas has not been complied with and that civil enforcement is necessary, the BLAG, pursuant to House Rule II(8)(b), may authorize the House Office of General Counsel to initiate civil litigation on behalf of this Committee to enforce the Committee’s subpoena(s) in federal district court.”). See also, CRS Report R45636, Congressional Participation in Litigation: Article III and Legislative Standing, by Wilson C. Freeman and Kevin M. Lewis, at 38. 33 2 U.S.C. §§ 288b, 288d; 28 U.S.C. § 1365. 34 28 U.S.C. § 1365. 35 Id. § 1365(a) (“This section shall not apply to an action to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened refusal to comply with, any subpoena or order issued to an officer or employee of the executive branch of the Federal Government acting within his or her official capacity, except that this section shall apply if the refusal to comply is based on the assertion of a personal privilege or objection and is not based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of the Federal Government.”). 36 See Miers, 558 F. Supp. 2d at 86–87 (“In any event, the fact that § 288d may create an independent cause of action for the Senate does not establish that the Senate (or the House) could not proceed under the [Declaratory Judgment Act (DJA)]. Section 288d can simply be viewed as a more specific application of the general relief made available by the DJA . . . .That conclusion is consistent with statements found in a contemporaneous Senate Report indicating that ‘the Congressional Research Service 5 Congressional Subpoenas: Enforcing Executive Branch Compliance The House has no corresponding statutory framework for beginning a civil enforcement lawsuit, but still retains the authority to seek assistance from the courts.37 Recent practice, approved by the D.C. District Court, suggests that the House may authorize38 a committee or other entity to file a civil claim in federal court to enforce a subpoena on behalf of the body.39 This process has been used on various occasions to bring civil enforcement lawsuits against an executive branch official.40 As opposed to criminal contempt, a successful civil enforcement suit generally has the benefit of securing compliance with the congressional subpoena—meaning the committee may obtain the information it seeks. If the court orders compliance with the subpoena and disclosure of the information, generally after finding both that the subpoena is valid and that the individual has not invoked an adequate privilege justifying non-compliance, continued defiance may lead to contempt of court as opposed to contempt of Congress.41 The Current Process in Use Modern congressional disputes with the executive branch over access to information provide insight into the functioning of both the criminal contempt of Congress and civil enforcement processes. The Burford Contempt In 1982, a pair of House committees42 issued subpoenas to Environmental Protection Agency (EPA) Administrator Anne Burford for litigation documents relating to EPA’s enforcement of the federal “Superfund” law.43 At the direction of President Ronald Reagan, Administrator Burford refused to disclose the files on the ground that they were protected by executive privilege.44 In statute is not intended to be a congressional finding that the federal courts do not now have the authority to hear a civil action to enforce a subpoena against an officer or employee of the federal government.’”) (citing S. REP. NO. 95-170, at 91–92). 37 The conference report accompanying the legislation which established the Senate procedure explained that the relevant House committees had not yet considered the proposal for judicial enforcement of House subpoenas. H. REP. NO. 95-1756, 95th Cong., at 80 (1978). The statute should not be read to deprive implicitly the House of the authority to enforce subpoenas in federal court. See Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 17–20 (D.D.C. 2013). The Senate had authorized its committees to bring lawsuits for some time before enactment of the 1978 law. See S. Res. 262, 70th Cong. (1928) (providing that “any committee of the Senate is hereby to bring suit . . . in any court of competent jurisdiction if the committee is of the opinion that the suit is necessary to the adequate performance of the powers vested in it”). 38 See supra note 30. 39 See Miers, 558 F. Supp. 2d, at 78–88; Holder, 979 F. Supp. 2d, at 3. 40 See H. Res. 706, 112th Cong. (2012) (Holder); H. Res. 980, 110th Cong. (2008) (Miers and Bolten). 41 18 U.S.C. §§ 401–02. 42 The subpoenas were issued by the House Committee on Public Works and Transportation Subcommittee on Investigations and Oversight and the House Committee on Energy and Commerce Subcommittee on Oversight and Investigations. 43 See generally, H. REP. NO. 97-968, 97th Cong. (1982). 44 Id. at 42–43. As articulated by the Office of Legal Counsel, the executive branch has asserted that executive privilege provides protections for “open law enforcement files” like those at issue in the Burford dispute. Olson Opinion, supra note 12, at 117. Congressional Research Service 6 Congressional Subpoenas: Enforcing Executive Branch Compliance response, the House approved a criminal contempt citation under 2 U.S.C. § 192 and § 194 for Burford’s failure to comply with the committee subpoenas.45 Shortly after passage of the contempt resolution, and before the Speaker delivered the citation to the U.S. Attorney, the DOJ filed a lawsuit asking a federal court to declare that Administrator Burford had acted appropriately in withholding the litigation documents.46 The lawsuit was ultimately dismissed, with the court determining that judicial intervention in such executivelegislative disputes “should be delayed until all possibilities for settlement have been exhausted.”47 That point, the court reasoned, would not occur until Administrator Burford was prosecuted for criminal contempt of Congress.48 The U.S. Attorney subsequently refused to present the criminal contempt to a grand jury, asserting that despite the apparently mandatory language of 2 U.S.C. § 194, the statute left him with discretion to withhold the citation.49 Two separate compromises were ultimately reached in which both congressional committees were provided access to the subpoenaed documents, at least partly in exchange for proposing a resolution effectively withdrawing the contempt citation.50 Shortly thereafter, the DOJ Office of Legal Counsel (OLC), which acts as a legal adviser to the President and the executive branch, released an opinion articulating the legal reasoning underlying the Administration’s decision not to pursue a contempt prosecution against Administrator Burford. Based on both statutory interpretation and the constitutional separation of powers, the OLC concluded that (1) Congress “may not direct the Executive to prosecute a particular individual without leaving any discretion to the Executive to determine whether a violation of the law has occurred,” and (2) “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 . . . .”51 Specifically, the opinion asserted that interpreting 2 U.S.C. § 194 as requiring the executive branch to bring a criminal contempt prosecution under these circumstances would “burden” and “nullif[y]” the President’s exercise of executive privilege, and impermissibly interfere with the “prosecutorial discretion of the Executive by directing the executive branch to prosecute particular individuals.”52 The Miers and Bolten Contempts In 2007, former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten failed to comply with subpoenas issued by the House Judiciary Committee for testimony 45 H. Res. 632, 97th Cong. (1982). 46 United States v. U.S. House of Representatives, 556 F. Supp. 150, 151–52 (D.D.C. 1983). 47 Id. at 152. The court further noted: “Judicial resolution of this constitutional claim, however, will never become necessary unless Administrator [Burford] becomes a defendant in either a criminal contempt proceeding or other legal action taken by Congress. [] The difficulties apparent in prosecuting Administrator [Burford] for contempt of Congress should encourage the two branches to settle their differences without further judicial involvement.” Id. at 153. 48 Id. (noting that criminal contempt of Congress is an “orderly and often approved means of vindicating constitutional claims arising from a legislative investigation,” and one in which “constitutional claims and other objections . . . may be raised as defenses”). 49 See H. REP. NO. 98-323, 98th Cong., at 10 (1983). 50 Id. at 18–25. The House subsequently enacted a resolution stating that “further proceedings concerning the contumacious conduct of the witness were unnecessary.” H. Res. 180, 98th Cong. (1983). See also Olson Opinion, supra note 12, at 109. Despite the House action, the U.S. Attorney then presented the citation to the grand jury who did not return an indictment against Administrator Burford. Id. at 110. 51 Olson Opinion, supra note 12, at 102. 52 Id. at 102, 115. Congressional Research Service 7 Congressional Subpoenas: Enforcing Executive Branch Compliance and documents relating to the dismissal of various United States Attorneys during the George W. Bush Administration.53 The President asserted executive privilege in each case, asserting that the subpoenaed testimony and documents involved protected White House communications. Both Miers and Bolten relied on the President’s determination as justification for non-compliance with the committee subpoenas.54 After failed negotiations, the House held both individuals in criminal contempt of Congress and—presumably in response to the position taken by the DOJ in the Burford contempt—simultaneously approved a separate resolution authorizing the Judiciary Committee to initiate a civil lawsuit in federal court to enforce the subpoenas.55 After receiving the criminal contempt citation, the Attorney General informed the Speaker that the DOJ would exercise its discretion and not take any action to prosecute Mr. Bolten or Ms. Miers for criminal contempt of Congress.56 The DOJ’s position, as in the Burford contempt, was that requiring such a prosecution would inhibit the President’s ability to assert executive privilege and infringe on the DOJ’s prosecutorial discretion.57 Shortly thereafter, the House Judiciary Committee filed suit, asking the federal court to direct compliance with the subpoenas.58 In Committee on the Judiciary v Miers, the D.C. District Court rejected the Administration’s main argument that a senior presidential adviser asserting executive privilege at the direction of the President is immune from being compelled to testify before Congress.59 The court described the asserted immunity as “entirely unsupported by existing case law” and instead held that Ms. Miers had to appear, but was free to assert executive privilege “in response to any specific questions posed by the Committee.”60 Thus, Ms. Miers could still assert the protections of executive privilege during her testimony depending on the substance of any individual question asked by a Member of the Committee.61 As for Mr. Bolten, the court directed that the executive branch produce a “detailed list and description of the nature and scope of the documents it seeks to withhold on the basis of executive privilege” to allow the court to resolve those claims.62 The district court decision was appealed. Almost two years after the first subpoena was issued, with the appeal pending before the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) and a newly elected Congress and President in office, the parties reached a settlement and the case was dismissed.63 Under that settlement, most of the requested documents were provided to the Committee and Ms. Miers would testify, under oath, in a closed but transcribed hearing.64 53 See H. REP. NO. 110-423, 110th Cong., at 4–7 (2007). 54 Id. at 5. 55 See H. Res. 979, 110th Cong. (2008); H. Res. 980, 110th Cong. (2008); H. Res. 982, 110th Cong. (2008). 56 Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 63–64 (D.D.C. 2008). 57 Id. 58 Specifically, the Committee asked the court to direct that Ms. Miers testify and Mr. Bolten provide a privilege log. Id. at 55 (”The Committee . . . asks the Court to declare that . . . Miers must comply with a subpoena and appear before the Committee to testify . . . and that current White House Chief of Staff Joshua Bolten must produce a privilege log in response to a congressional subpoena.”). The case filed by the Committee was limited only to whether Ms. Miers and Mr. Bolten could be forced to comply with the issued subpoenas, not whether the House had the authority to hold either in contempt of Congress. 59 Id. at 99. The court also ordered Mr. Bolten to “produce more detailed documentation concerning privilege claims.” Id. at 98. 60 Id, at 105. 61 Id. 62 Id. at 107. 63 Comm. on the Judiciary v. Miers, No. 08-5357, 2009 U.S. App. LEXIS 29374, at *1 (D.C. Cir. Oct. 14, 2009). 64 See David Johnston, Top Bush Aides to Testify in Attorneys’ Firings, N.Y. TIMES (Mar. 4, 2009), https://www.nytimes.com/2009/03/05/us/politics/05rove.html. Congressional Research Service 8 Congressional Subpoenas: Enforcing Executive Branch Compliance The Holder Contempt In 2012, Attorney General Eric Holder failed to comply with a House Oversight and Government Reform Committee subpoena seeking documents relating to misleading communications made by the DOJ in response to the committee’s ongoing investigation into operation Fast and Furious—a Bureau of Alcohol, Tobacco, Firearms, and Explosives operation in which firearms were permitted to be “walked,” or trafficked, to gunrunners and other criminals in Mexico.65 Like the previous controversies, the President asserted executive privilege over the pertinent documents and directed the Attorney General not to comply with the subpoena.66 Procedurally, the Holder controversy mirrored that of Miers and Bolten. The House held the Attorney General in criminal contempt of Congress and simultaneously passed a resolution authorizing the committee to enforce the subpoena in federal court.67 The DOJ shortly thereafter informed the Speaker that it would not take any action on the criminal contempt citation, again citing congressional encroachments on executive privilege and prosecutorial discretion.68 The committee responded by filing a lawsuit, authorized by House resolution, seeking judicial enforcement of the subpoena.69 The D.C. District Court held that it had jurisdiction to hear the dispute in 201370 and denied the committee’s motion for summary judgment in 2014.71 But it was not until 2016—in a new Congress and after Attorney General Holder had left his position—that the D.C. District Court issued an opinion in Committee on Oversight and Government Reform v. Lynch instructing the new Attorney General to comply with the subpoena.72 The court rejected the DOJ’s argument that the deliberative process privilege—a prong of executive privilege that protects pre-decisional and deliberative agency communications—justified withholding the subpoenaed documents in the case.73 In “balancing the competing interests” at stake, the court held that the asserted privilege must yield to Congress’s “legitimate need” for the documents.74 Despite the committee’s victory, two aspects of the court’s reasoning may affect Congress’s ability to obtain similar documents from the executive branch. First, in denying the committee’s earlier motion for summary judgment, the court rejected the argument that the deliberative process privilege can never justify withholding documents in the face of a congressional subpoena.75 While a previous D.C. Circuit decision had suggested that the deliberative process privilege is a “common law” privilege,76 typically subject to override by legislative action, the 65 H. REP. NO. 112-546, 112th Cong., at 3–10 (2012). The Department had initially provided the Committee with a letter stating that it had no knowledge of the gun walking, but that letter was subsequently withdrawn as inaccurate. See Letter from Deputy Attorney General James Cole to Chairman Darrell Issa and Ranking Member Charles Grassley (Dec. 2, 2011), http://oversight.house.gov/wp-content/uploads/2012/06/Feb-4-Dec-2-letters.pdf. 66 H. REP. NO. 112-546, 112th Cong., at 39–40 (2012). 67 See H. Res. 711, 112th Cong. (2012); H. Res. 706, 112th Cong. (2012). 68 Letter from James M. Cole, Deputy Attorney General, to John Boehner, Speaker of the House (June 28, 2012). 69 Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 3 (D.D.C. 2013). 70 Id. at 4. 71 Comm. on Oversight & Gov’t Reform v. Holder, No. 12-1332, 2014 U.S. Dist. LEXIS 200278 (D.D.C. Aug. 20, 2014). 72 Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 104, 107 (D.D.C. 2016). 73 Id. at 104. 74 Id. at 112, 115. 75 See id. at 104 (citing Holder, No. 12-1332, 2014 U.S. Dist. LEXIS 200278, at *2–8). 76 In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997) (noting that the “deliberative process privilege is primarily a common law privilege”). Congressional Research Service 9 Congressional Subpoenas: Enforcing Executive Branch Compliance district court determined that “there is an important constitutional dimension to the deliberative process aspect of the executive privilege.”77 Although the scope of the deliberative process privilege remains unsettled, by explicitly concluding that it has some degree of constitutional foundation the court’s decision might have strengthened the privilege in certain contexts, especially for its use in response to a congressional subpoena.78 Second, in ordering disclosure of the subpoenaed material, the court emphasized that the substance of the DOJ’s internal deliberations had been publicly disclosed as part of a DOJ Inspector General investigation and report.79 Thus, in considering the DOJ’s interests, the court noted that the agency would suffer only “incremental harm” from disclosing the documents to the committee.80 This suggests that in a scenario where deliberative process privilege documents have not been disclosed, a court may give more weight than the Lynch court to the agency’s interest in protecting the confidentiality of its communications. Although the committee won the case, it still appealed the decision to the D.C. Circuit out of concern for the reasoning applied.81 As with Miers, the litigation has spanned different Congresses and different presidential Administrations. The case is being held in abeyance pending a potential settlement between the committee and the Trump Administration.82 Although the parties reportedly reached a negotiated settlement in March 2018, that settlement was contingent upon the vacation of two specific orders issued by the district court earlier in the case.83 In October 2018, the district court declined to vacate those decisions, leaving the fate of the negotiated settlement uncertain.84 The Lerner Contempt Finally, in 2013, former Internal Revenue Service (IRS) official Lois Lerner appeared before the House Oversight and Government Reform Committee for a hearing on allegations that the IRS had given increased scrutiny to conservative political groups applying for tax-exempt status.85 After Ms. Lerner provided an opening statement denying any wrongdoing, she invoked her Fifth Amendment privilege against self-incrimination, and refused to respond to questions from committee members.86 After further deliberation, the committee ruled that she had waived her Fifth Amendment privilege by making an opening statement proclaiming her innocence.87 About 10 months later, the committee recalled her to provide testimony and she again asserted her Fifth Amendment privilege.88 Ultimately, the House adopted a resolution citing Ms. Lerner for criminal 77 Lynch, 156 F. Supp. 3d, at 104 (citing Holder, No. 12-1332, 2014 U.S. Dist. LEXIS 200278, at *2). 78 See MORT ROSENBERG, WHEN CONGRESS COMES CALLING: A STUDY ON THE PRINCIPLES, PRACTICES, AND PRAGMATICS OF LEGISLATIVE INQUIRY 72 (2017) (noting the decision’s “immediate and long-range disruptive consequences for effective [] oversight”). 79 Lynch, 156 F. Supp. 3d, at 112–15. 80 Id. at 114. 81 Comm. on Oversight & Gov’t Reform v. Sessions, No. 16-5078 (D.C. Cir. filed Apr. 18, 2016). 82 Id. 83 See Josh Gerstein, Judge Upends Settlement in Fast and Furious Documents Case, POLITICO (Oct. 22, 2018), https://www.politico.com/story/2018/10/22/fast-and-furious-documents-case-926645. 84 Comm. on Oversight & Gov’t Reform v. Sessions, 344 F. Supp. 3d 1 (D.D.C. 2018). 85 H. REP. NO. 113-415, 113th Cong., at 7–9 (2014). 86 Id. at 9–11. 87 Id. at 11–13. 88 Id. at 12–14. Congressional Research Service 10 Congressional Subpoenas: Enforcing Executive Branch Compliance contempt of Congress,89 but did not choose to approve a resolution authorizing the committee to pursue civil enforcement of the subpoena in federal court, as had been done in 2008 with Ms. Miers and 2012 with Attorney General Holder. The U.S. Attorney for the District of Columbia later informed the Speaker that Ms. Lerner’s actions did not warrant a prosecution for criminal contempt, as he had determined that she had not waived her Fifth Amendment rights.90 This decision was notable in that unlike the Burford, Miers, Bolten, and Holder scenarios, Ms. Lerner was relying on a personal privilege rather than the President’s assertion of executive privilege as justification for her non-compliance. Implications of Recent Practice A pair of observations may be gleaned from the above events. First, efforts to punish an executive branch official for non-compliance with a committee subpoena through the criminal contempt of Congress statute will likely prove unavailing in certain circumstances. For example, when the President directs or endorses the non-compliance of the official, such as when the official refuses to disclose information pursuant to the President’s decision that the information is protected by executive privilege, past practice suggests that the DOJ is unlikely to pursue a prosecution for criminal contempt.91 As a result, it would appear arguable that there is not currently a credible threat of prosecution for violating 2 U.S.C. § 192 when an executive branch official refuses to comply with a congressional subpoena at the direction of the President.92 Even when the official is not acting at the clear direction of the President, as in the Lerner controversy, the executive branch has contended that it retains the authority to make an independent assessment of whether the official (or former official) has in fact violated the criminal contempt statute.93 If the executive branch determines either that the statute has not been violated or that a defense is available that would bar the prosecution, then it may—in an exercise of discretion—leave a congressional citation unenforced. The criminal contempt statute, therefore, may have limited utility as a deterrent to non-compliance with congressional subpoenas by executive branch officials faced with similar circumstances.94 Second, seeking enforcement of congressional subpoenas in the courts, even when successful, may lead to significant delays in Congress obtaining the sought-after information.95 This 89 H. Res. 574, 113th Cong. (2014). 90 Letter from Ronald C. Machen Jr., United States Attorney, U.S. Dep’t of Justice, to John A. Boehner, Speaker, U.S. House of Representatives (Mar. 31, 2015). 91 See Letter from James M. Cole, Deputy Attorney General, to John Boehner, Speaker of the House (June 28, 2012); Olson Opinion, supra note 12, at 102. 92 See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. 1083, 1146 (2009) (“As the president is unlikely to authorize one of his subordinates (the United States Attorney) to file charges against another of his subordinates who was acting according to his orders, it is safe to assume that the executive branch will generally decline to prosecute an executive branch official for criminal contempt of Congress.”). 93 See Letter from Ronald C. Machen Jr., United States Attorney, U.S. Dep’t of Justice, to John A. Boehner, Speaker, U.S. House of Representatives (Mar. 31, 2015). 94 But see Fisher, supra note 17, at 347-59 (describing instances from 1975-2000 in which committee action on a criminal contempt citation was effective in obtaining compliance with a congressional subpoena). 95 The Senate recently had a rather different experience in enforcing a subpoena against a private citizen. After authorizing civil enforcement of a Senate committee subpoena issued to Carl Ferrer, the Chief Executive Officer of Backpage.com, the Senate was able to obtain a district court decision directing compliance in less than five months. See Senate Perm. Subcomm. on Investigations v. Ferrer, 199 F. Supp. 3d 125, 128 (D.D.C. 2016). Mr. Ferrer’s subsequent appeal was dismissed as moot. Senate Perm. Subcom. on Investigations v. Ferrer, 856 F.3d 1080, 1083 (D.C. Cir. 2017). See also S. REP. NO. 114-214 (2016). This could suggest that subpoenas to members of the general public can be Congressional Research Service 11 Congressional Subpoenas: Enforcing Executive Branch Compliance shortcoming was apparent in Miers and the Fast and Furious litigation. Miers, which never reached a decision on the merits by the D.C. Circuit, was dismissed at the request of the parties after about 19 months.96 Similarly, the Fast and Furious litigation, which remains pending on appeal before the D.C. Circuit, was filed more than six years ago.97 The passage of time, together with the intervening congressional and presidential elections in each case, could be said to have diminished both the value of the disclosure and the committee’s ability to engage in effective, timely oversight.98 Relying on civil enforcement also involves the risk to Congress that the court will reach a decision that will make it harder for committees to obtain information in the future. For example, while the Miers decision rejected absolute immunity for senior presidential advisers and may have removed a barrier to Congress’s access to such testimony in the future, the district court opinions in the Fast and Furious litigation may have more limiting effect on congressional efforts to access testimony by certain executive branch officials, because the court recognized that the deliberative process privilege has constitutional roots and must be balanced against Congress’s need for the information.99 The Historical Process: Inherent Contempt Historically, the House and Senate relied on their own institutional power to not only enforce congressional subpoenas, but also to respond to other actions that either house viewed as obstructing their legislative processes or prerogatives.100 Indeed, the criminal contempt statute was not enacted until 1857, and the courts do not appear to have entertained a civil action to enforce a congressional subpoena against an executive official until the Watergate era.101 For enforced more expeditiously through the courts. 96 Comm. on the Judiciary v. Miers, No. 08-5357, 2009 U.S. App. LEXIS 29374, at *1 (D.C. Cir. Oct. 14, 2009) (granting appellants’ motion for voluntary dismissal). 97 Complaint, Comm. on Oversight and Gov. Reform v. Holder, No. 1:12-cv-1332 (D.D.C. Aug. 13, 2012), http://oversight.house.gov/wp-content/uploads/2012/08/Complaint-08-13-12-1.pdf. 98 See ROSENBERG, supra note 77, at 3 (arguing that civil enforcement “has been shown to cause intolerable delays that undermine the effectiveness of timely committee oversight”). 99 Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 105 (D.D.C. 2008) (rejecting a claim of absolute immunity for presidential advisers); Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 104 (D.D.C. 2016) (describing the district court order on motion for summary judgment as holding that “there is an important constitutional dimension to the deliberative process aspect of the executive privilege”); Comm. on Oversight & Gov’t Reform v. Holder, No. 12-1332, 2014 U.S. Dist. LEXIS 200278, at *2–8 (D.D.C. Aug. 20, 2014) (“So, the Court rejects the Committee’s suggestion that the only privilege the executive can invoke in response to a subpoena is the Presidential communications privilege.”). 100 Congress first exercised its inherent contempt authority in 1795 when the House detained two private citizens for attempted bribery of Members of the House. 2 ASHER C. HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 1599 (1907) [hereinafter HINDS’ PRECEDENTS OF THE HOUSE]. The Supreme Court first affirmed Congress’s use of the inherent contempt power in the 1821 decision of Anderson v. Dunn, 19 U.S. 204 (1821). 101 See, e.g., Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). In 1928, members of a Senate special investigative committee brought suit to obtain documents associated with a disputed Senate election, but the Court dismissed that claim on jurisdictional grounds due to a lack of Senate authorization for the suit. Reed v. Delaware Cty. Comm., 277 U.S. 376, 389 (1928). JAMES HAMILTON, THE POWER TO PROBE: A STUDY OF CONGRESSIONAL INVESTIGATIONS 197 (1976) (noting that the Senate Select Committee’s lawsuit to enforce the subpoena issued to President Nixon was “the first civil action to enforce a congressional subpoena issued to the executive”). Congressional Research Service 12 Congressional Subpoenas: Enforcing Executive Branch Compliance much of American history the House and Senate instead used what is known as the inherent contempt power to enforce their investigative powers. The inherent contempt power is a constitutionally based authority given to each house to unilaterally arrest and detain an individual found to be “obstruct[ing] the performance of the duties of the legislature.”102 The power is therefore broader in scope than the criminal contempt statute in that it may be used not only to combat subpoena non-compliance, but also in response to other actions that could be viewed as “obstructing” or threatening either house’s exercise of its legislative powers.103 In practice, the inherent contempt power has been exercised using a multi-step process. Upon adopting a House or Senate resolution authorizing the execution of an arrest warrant by that chamber’s Sergeant-at-Arms, the individual alleged to have engaged in contemptuous conduct is taken into custody and brought before the House or Senate.104 A hearing or “trial” follows in which allegations are heard and defenses raised.105 Although generally occurring before the full body, it would appear likely that the contempt hearing could also permissibly take place before a congressional committee who reports its findings to the whole House or Senate.106 If judged guilty, the House or Senate may then direct that the witness be detained or imprisoned until the obstruction to the exercise of legislative power is removed.107 Although the purpose of the detention may vary, for subpoena non-compliance the use of the power has generally not been 102 Jurney v. MacCracken, 294 U.S. 125, 147–48 (1935) (“No act is so punishable unless it is of a nature to obstruct the performance of the duties of the legislature.”). 103 See Marshall v. Gordon, 243 U.S. 521, 543 (1917) (noting that inherent contempt has been used to “deal with either physical obstruction of the legislative body in the discharge of its duties, or physical assault upon its members for action taken or words spoken in the body, or obstruction of its officers in the performance of their official duties, or the prevention of members from attending so that their duties might be performed, or finally with contumacy in refusing to obey orders to produce documents or give testimony which there was a right to compel”). 104 The procedure followed by the House in the contempt citation that was at issue in Anderson v. Dunn, 19 U.S. 204 (1821), is typical of that employed in the inherent contempt cases. Thomas L. Shriner, Jr., Legislative Contempt and Due Process: The Groppi Cases, 46 IND. L. J. 480, 491 (1971) (“The House adopted a resolution pursuant to which the Speaker ordered the Sergeant-at-Arms to arrest Anderson and bring him before the bar of the House (to answer the charge). When Anderson appeared, the Speaker informed him why he had been brought before the House and asked if he had any requests for assistance in answering the charge. Anderson stated his requests, and the House granted him counsel, compulsory process for defense witnesses, and a copy, of the accusatory letter. Anderson called his witnesses; the House heard and questioned them and him. It then passed a resolution finding him guilty of contempt and directing the Speaker to reprimand him and then to discharge him from custody. The pattern was thereby established of attachment by the Sergeant-at-Arms; appearance before the bar; provision for specification of charges, identification of the accuser, compulsory process, counsel, and a hearing; determination of guilt; imposition of penalty.”). 105 Id. The subject of a trial for contempt of Congress is not afforded the same procedural protections as a defendant in a criminal trial. See Groppi v. Leslie, 404 U.S. 496, 500–01 (1972) (“[t]he past decisions of this Court strongly indicate that the panoply of procedural rights that are accorded a defendant in a criminal trial has never been thought necessary in legislative contempt proceedings. The customary practice in Congress has been to provide the contemnor with an opportunity to appear before the bar of the House, or before a committee, and give answer to the misconduct charged against him.”). 106 The House has previously adopted resolutions authorizing a select committee to investigate contempt allegations and then report its findings to the House. See 3 HINDS’ PRECEDENTS OF THE HOUSE, supra note 100, §1630; Cong. Globe, 38th Cong., 2nd Sess., 371 (1865). 107 See 3 HINDS’ PRECEDENTS OF THE HOUSE, supra note 100, §§1666, 1669, 1693. Congressional Research Service 13 Congressional Subpoenas: Enforcing Executive Branch Compliance punitive.108 Rather, the goal is to detain the witness until he or she discloses the information sought, but not beyond the end of the Congress.109 Despite its title, “inherent” contempt is more accurately characterized as an implied constitutional power.110 The Supreme Court has repeatedly held that although the contempt power is not specifically granted by the Constitution, it is still “an essential and appropriate auxiliary to the legislative function,” and thus implied from the general vesting of legislative powers in Congress.111 The Court has viewed the power as one rooted in self-preservation, concluding that the “power to legislate” includes an “implied right of Congress to preserve itself” by dealing “with direct obstructions to its legislative duties” through contempt.112 The Court has also suggested that Congress may effectuate this implied power through the Necessary and Proper Clause, which authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .”113 The 1857 criminal contempt provision, for example, has been viewed as “an act necessary and proper for carrying into execution the powers vested in . . . each House.”114 To that end, it seems understood that the criminal contempt statute was intended to supplement each house’s inherent contempt power, rather than to replace it. The Supreme Court has specifically articulated this view and, in fact, gone further to suggest that “Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt.”115 Historical practice also supports this conclusion, as Congress continued to use the inherent contempt power after enactment of the criminal contempt statute.116 As applied to subpoena enforcement, the Supreme Court has affirmed the existence of each house’s constitutionally based authority to arrest and detain individuals for refusing to comply 108 Marshall v. Gordon, 243 U.S. 521, 544 (1917) (noting that the Court had discovered “no single instance where in the exertion of the power to compel testimony restraint was ever made to extend beyond the time when the witness should signify his willingness to testify”). Indeed, the Court has suggested that the power “does not embrace punishment for contempt as punishment.” Id. at 542. But see Jurney v. MacCracken, 294 U.S. 125, 148 (1935) (affirming exercise of contempt power even after the obstruction to the legislative process had been removed). 109 Watkins v. United States, 354 U.S. 178, 207 n.45 (1957); Anderson, 19 U.S. at 231. 110 The contempt power is an implied aspect of the legislative power. Marshall, 243 U.S. at 537 (noting that “it was yet explicitly decided that from the power to legislate given by the Constitution to Congress there was to be implied the right of Congress to preserve itself, that is, to deal by way of contempt with direct obstructions to its legislative duties.”). As opposed to an inherent power, which may not be tethered to a textual grant of authority, an implied power is derived by implication from an enumerated power. See Scott C. Idleman, The Emergence of Jurisdictional Resequencing in the Federal Courts, 87 CORNELL L. REV. 1, 42–43 (2001). 111 McGrain v. Daugherty, 273 U.S. 135, 173–74 (1927); (“[T]he two houses of Congress, in their separate relations, possess not only such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are necessary and appropriate to make the express powers effective . . . .”). 112 Marshall 243 U.S. at 537; Anderson, 19 U.S. at 228 (holding that in the absence of a contempt power the House would be “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it”). 113 U.S. CONST. art. I, § 8 cl. 18. 114 In re Chapman, 166 U.S. 661, 671–72 (1897) (noting that the purpose of the statute was to “aid each of the Houses in the discharge of its constitutional functions”); Jurney v. MacCracken, 294 U.S. 125, 151 (1935) (“The statute was enacted, not because the power of the Houses to punish for a past contempt was doubted, but because imprisonment limited to the duration of the session was not considered sufficiently drastic a punishment for contumacious witnesses.”). 115 Chapman, 166 U.S. at 671–72. 116 HAMILTON, supra note 101, at 95 (“For a time after passage of the 1857 criminal statute, Congress normally opted to use its self-help powers to punish contempts.”). Congressional Research Service 14 Congressional Subpoenas: Enforcing Executive Branch Compliance with congressional demands for information.117 The 1927 case of McGrain v. Daugherty may be viewed as the high-water mark of the judiciary’s recognition of this power.118 McGrain arose from a Senate investigation into the alleged failure of the Attorney General to prosecute federal antitrust violations associated with the Teapot Dome Scandal.119 As part of that investigation, a subpoena was issued to Mallie Daugherty, the brother of the Attorney General and president of an Ohio bank, for relevant testimony.120 When Daugherty refused to comply, the Senate exercised its inherent contempt power and ordered its Sergeant-at-Arms to take Mr. Daugherty into custody.121 Once arrested, Daugherty filed a writ of habeas corpus with the local district court, which, upon review, held the House’s action unlawful and directed that Daugherty be discharged from the Sergeant-at-Arm’s custody.122 The Supreme Court reversed and upheld the House’s authority to arrest and detain a witness in order to obtain information for legislative purposes—noting that “[t]he power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”123 In an oft-quoted passage, the Court declared: A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.124 Although broadly conceived, the Court has policed the outer confines of the inherent contempt power. In Jurney v MacCracken, the Court clarified that no act is punishable for contempt “unless it is of a nature to obstruct the performance of the duties of the legislature.”125 The Court identified two scenarios to which the power to punish would not extend: (1) where Congress lacks a “legislative duty to be performed” or (2) where “the act complained of is deemed not to be of a character to obstruct the legislative process.”126 The first scenario is reflected in Kilbourn v. Thompson, a case in which the Court held that no person may be made subject to the contempt power unless the subject matter of the investigation giving rise to the contempt was within the body’s authority.127 In Kilbourn, the Court ordered the release of a witness held under the contempt power after determining that the House had exceeded its authority when it authorized an investigation into a bankrupt private real-estate pool, of which the United States was a creditor pursuing payment in the bankruptcy court. The Court viewed the investigation—and therefore the contempt—as exceeding the House’s constitutional authority because Congress had “no general power of making inquiry into the private affairs of 117 See, e.g., McGrain v. Daugherty, 273 U.S. 135, 174–75 (1927); Jurney, 294 U.S. at 147–49. 118 McGrain, 273 U.S. at 160–80. 119 Id. at 150–52. 120 Id. at 152. 121 Id. at 153. 122 Id. at 154. 123 Id. at 174. 124 Id. at 175. 125 294 U.S 125, 148 (1935). 126 Id. at 148. 127 Kilbourn v. Thompson, 103 U.S. 168, 190 (1881) (“[W]e are sure that no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire . . . .”). Congressional Research Service 15 Congressional Subpoenas: Enforcing Executive Branch Compliance the citizen.”128 Instead, the Court concluded that by interfering in an issue properly resolved in the bankruptcy courts, the House had “assumed power . . . [that was] in its nature clearly judicial.”129 The second scenario set forth in MacCracken is reflected in Marshall v. Gordon.130 There it was held that a “manifestly ill-tempered” letter written to a committee chair was not related enough to obstructing the powers of the House to constitute a contempt.131 The Marshall opinion began by establishing that the exercise of the contempt power is appropriate only as “necessary to preserve and carry out the legislative authority given” to Congress. The power could, for example, be used to remedy physical obstruction of the legislative body in the discharge of its duties, or physical assault upon its members for action taken or words spoken in the body, or obstruction of its officers in the performance of their official duties, or the prevention of members from attending so that their duties might be performed, or finally with contumacy in refusing to obey orders to produce documents or give testimony which there was a right to compel.132 The Court concluded that because the Marshall contempt was approved in response to the writing of an “irritating” letter, and “not because of any obstruction to the performance of legislative duty,”133 it was “not intrinsic to the right of the House to preserve the means of discharging its legislative duties” and thus invalid.134 Despite its potential reach, the inherent contempt power has been described by some observers as cumbersome, inefficient, and “unseemly.”135 Presumably for these reasons, it does not appear that either house has exercised its inherent contempt power to enforce subpoenas or to remove any other obstruction to the exercise of the legislative power since the 1930s.136 Even so, the mere threat of arrest and detention by the Sergeant-at-Arms can be used to encourage compliance with congressional demands. For example, Senator Sam Ervin, when serving as chairman of the Senate Select Committee on Presidential Campaign Activities, invoked the inherent contempt power several times to encourage compliance with the committee’s requests for information during its investigation of the Nixon Administration.137 Although the power has long lain dormant, it remains a tool that Congress may use to enforce subpoenas.138 128 Id. at 190. 129 Id. at 192. 130 Marshall v. Gordon, 243 U.S. 521, 546 (1917). 131 Id. at 531. 132 Id. at 543. 133 Id. at 545. 134 Id. at 546. 135 See Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 BYU L. REV. 231, 254 (writing that “[t]here is something unseemly about a House of Congress getting into the business of trial and punishment”); S. REP. NO. 95-170, at 97 (1977) (describing Congress’s inherent contempt power, which requires a trial in the House or the Senate, as “time consuming and not very effective”). 136 CONGRESSIONAL QUARTERLY’S GUIDE TO CONGRESS 163 (3rd ed. 1982). 137 See HAMILTON, supra note 101, at 96–97 (describing Chairman Ervin using a threat of inherent contempt to obtain the testimony of White House aide Alexander Butterfield); id. at 160 (noting that President Nixon was “determined to prohibit his top aides” from testifying before Congress until Chairman Ervin “threatened to dispatch the Senate sergeant at arms to transport them to the Senate”). 138 Id. at 95 (“[T]he self-help powers of Congress remain an alternate method to nudge intransigent witnesses into giving evidence to Congressional bodies.”). Congressional Research Service 16 Congressional Subpoenas: Enforcing Executive Branch Compliance Subpoena-Enforcement Frameworks and Their Attendant Constitutional Concerns Given the difficulties associated with Congress’s current approach to subpoena enforcement, the House or Senate may find it desirable to consider potential alternative frameworks. Before turning to specific alternatives, it is necessary briefly to establish certain foundational separationof-powers principles that are generally implicated in any discussion of Congress’s authority to compel compliance with subpoenas issued to the executive branch. Potentially Applicable Separation-of-Powers Principles Although the text of the Constitution distributes the legislative, executive, and judicial powers among the three branches of government, the Supreme Court generally has not endorsed an absolute separation.139 The allocation of powers was never intended, in the words of Justice Oliver Wendell Holmes, to cause the branches to be “hermetically sealed,”140 or divided into “fields of black and white.”141 Instead, observed Justice Robert Jackson, the separation of powers “enjoins upon [the] branches separateness but interdependence, autonomy but reciprocity.”142 It is a doctrine often characterized by ambiguity and overlap rather than bright-line rules. In the subpoena-enforcement context, potential separation-of-powers concerns may arise in three principle areas: congressional exercise of executive or judicial powers; congressional infringement upon executive privilege; and procedural compliance with the constitutional requirements of bicameralism and presentment. Congressional Exercise of Executive or Judicial Powers The separation of powers could be implicated either when Congress attempts to enforce a subpoena on its own;143 seeks to limit or control the executive’s discretion in conducting that enforcement;144 or reserves for itself the ultimate right to adjudicate inter-branch disputes.145 These actions, at least on the surface, might implicate enforcement and adjudication powers generally granted to the executive and judicial branches, respectively.146 139 See U.S. CONST. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States”); id. art. II, § 1 (“The executive Power shall be vested in a President of the United States of America.”); id. art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”). But see Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935) (articulating a strict view of the separation of powers and articulating the “fundamental necessity” that “each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others”). 140 INS v. Chadha, 462 U.S. 919, 951 (1983). 141 Springer v. Gov’t of Philippine Islands, 277 U.S. 189, 209 (1928) (Holmes, J., dissenting). 142 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). 143 Springer, 277 U.S. at 202 (“Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement.”). 144 Smith v. Meese, 821 F.2d 1484, 1491 (11th Cir. 1987) (“[T]he prosecutorial function, and the discretion that accompanies it, is thus committed by the Constitution to the executive.”). 145 Kilbourn v. Thompson, 103 U.S. 168, 192 (1881) (concluding that “no judicial power is vested in the Congress”). 146 Watkins v. United States, 354 U.S. 178, 187 (1957) (“Nor is Congress a law enforcement or trial agency. These are functions of the executive and judicial departments.”); Hampton & Co. v United States, 276 U.S. 394, 406 (1928) (“[I]t is a breach of the National fundamental law . . . if by law [Congress] attempts to invest itself or its members with either Congressional Research Service 17 Congressional Subpoenas: Enforcing Executive Branch Compliance While the Constitution provides Congress with “[a]ll legislative Powers herein granted,” it is the executive branch, and the President specifically, that is directed to “take Care that the Laws be faithfully executed.”147 In enforcing these constitutionally articulated roles, the Court has carefully proscribed attempts by Congress to preserve for itself the authority to engage in executive functions, such as the execution or implementation of law. Congress, the Court has held, may neither execute the law itself,148 nor appoint149 or control150 those engaged in the execution. In Bowsher v. Synar, for example, the Court struck down a provision of law that had delegated executive power to the Comptroller General, a legislative branch officer.151 Under the law, the Comptroller General was to use his own “independent judgment” to identify spending reductions to be implemented by the President that were necessary to reduce the deficit to an established target.152 In rejecting this arrangement, the Court held that the functions delegated to the Comptroller General were executive in nature, as he was required to “exercise judgment concerning facts that affect the application” and “interpretation” of the law, and had “ultimate authority to determine the budget cuts to be made.”153 Because “[t]he structure of the Constitution does not permit Congress to execute the laws,” Congress could not constitutionally delegate that authority to a legislative officer under its control.154 The Court has also clearly stated that Congress is not “a law enforcement or trial agency.”155 “Legislative power,” the Court has established, “is the authority to make laws, but not to enforce them.”156 Thus, “in order to forestall the danger of encroachment ‘beyond the legislative sphere,’” Congress may not “invest itself or its Members with . . . executive power.”157 These general principles have specific application in the context of congressional investigations and contempt, in which the Court has held that “the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.”158 A corollary to the principle that the Constitution has assigned the law enforcement power principally to the executive branch is the notion that when engaging in that enforcement, the executive branch generally retains some degree of “prosecutorial discretion.”159 This doctrine, which derives from a mixture of constitutional principles including the separation of powers, the executive power or judicial power.”). 147 U.S. CONST. art. I, § 1; id. art. II § 3. 148 Metropolitan Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, 501 U.S. 252 (1991). 149 Buckley v. Valeo, 424 U.S. 1, 126 (1976). 150 Bowsher v. Synar, 478 U.S 714, 732–34 (1986). 151 Id. at 735. 152 Id. at 732–33. 153 Id. at 733. 154 Id. at 726. 155 Watkins v. United States, 354 U.S. 178, 187 (1957). James Madison outlined this fundamental principle in Federalist 47, where he characterized the accumulation of legislative and executive power in a single entity as “the very definition of tyranny.” THE FEDERALIST NO. 47 (James Madison). 156 Springer v. Gov’t of Philippine Islands, 277 U.S. 189, 202 (1928). 157 Metropolitan Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, 501 U.S. 252, 274 (1991) (citing J. W. Hampton, Jr., & Co. v. U.S., 276 U.S. 394, 406 (1928)). 158 Quinn v. United States, 349 U.S. 155, 161 (1955). 159 See Smith v. Meese, 821 F.2d 1484, 1491 (11th Cir. 1987) (“The prosecutorial function, and the discretion that accompanies it, is thus committed by the Constitution to the executive, and the judicial branch’s deference to the executive on prosecutorial decisionmaking is grounded in the constitutional separation of powers.”). Congressional Research Service 18 Congressional Subpoenas: Enforcing Executive Branch Compliance Take Care Clause,160 and the duties of a prosecutor as an appointee of the President, forms the foundation of the Court’s statement in United States v. Nixon that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . . .”161 As noted previously, the executive branch has relied partially on prosecutorial discretion in declining to pursue some violations of criminal contempt of Congress.162 The scope of this discretion is not well established, especially regarding the extent that Congress can require or curtail its exercise.163 In any event, any attempt by Congress to mandate that the executive branch initiate a specific prosecution, including a prosecution for criminal contempt of Congress, has been opposed by the executive branch and may raise constitutional questions.164 Just as Congress is not a law enforcer, it is similarly not a court, and may not bestow upon itself the judicial power.165 The Supreme Court has made clear that “no judicial power is vested in Congress” and has generally rebuked congressional attempts to “try” an individual for “any crime or wrongdoing.”166 The Constitution does not authorize Congress to exercise even “commingled” legislative and judicial powers.167 In fact, the Court has declared that such an arrangement “would be absolutely destructive of the distinction between legislative, executive, and judicial authority which is interwoven in the very fabric of the Constitution.”168 Relatedly, the Bill of Attainder Clause prohibits Congress from adjudicating specific legal disputes by taking action “that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.”169 One might assert that these general prohibitions on Congress’s exercise of executive or judicial powers would cast doubt upon Congress’s historical exercise of its inherent contempt power. It could be argued that when exercising that power, Congress, both as an institution and through officials such as the Sergeant-at-Arms, is exercising executive and judicial power by acting as an arresting officer, prosecutor, and judge. But in affirming the constitutionality of the inherent contempt power, the Court has viewed the power (including the attendant arrest, hearing, and detention of the witness) as an exercise of implied legislative power and thus not in contravention of general separation-of-powers principles.170 Thus, in considering separation-of-powers 160 U.S. CONST. art II, § 3. 161 United States v. Nixon, 418 U.S. 683, 693 (1974). 162 See Olson Opinion, supra note 12, at 118. 163 Congress would appear to have some authority to restrict the exercise of prosecutorial discretion through statute. See Nader v. Saxbe, 497 F. 2d 676, 679 n. 19 (D.C. Cir. 1974) (“It would seem to follow that the exercise of prosecutorial discretion, like the exercise of Executive discretion generally, is subject to statutory and constitutional limits enforceable through judicial review.”). The DOJ, for example, has acknowledged that “prosecutorial discretion may be regulated to a certain extent by Congress . . . .” Olson Opinion, supra note 12 at 114, 126 (asserting that the doctrine of prosecutorial discretion requires that “the Executive Branch has exclusive authority to initiate and prosecute actions to enforce the laws adopted by Congress”). 164 Olson Opinion, supra note 12, at 126–35. 165 See Kilbourn v. Thompson, 103 U.S. 168, 192 (1881) (holding that “[n]o judicial power is vested in the Congress . . . .” and observing that the House is “a body which is in no sense a court”). 166 Id.; McGrain v. Daugherty, 273 U.S. 135, 179 (1927). 167 Marshall v. Gordon, 243 U.S. 521, 536 (1917). 168 Id. 169 Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468 (1977). 170 This is true at least to the extent that the contempt power is exercised in order to vindicate legislative prerogatives. See Marshall, 243 U.S. at 541 (holding that “in virtue of the grant of legislative authority there would be a power implied to deal with contempt in so far as the authority was necessary to preserve and carry out the legislative authority given”). Congressional Research Service 19 Congressional Subpoenas: Enforcing Executive Branch Compliance questions that arise from the various methods by which Congress can enforce its subpoenas, it is essential to distinguish between Congress exercising its own legislative powers pursuant to the inherent contempt power, and Congress attempting to enforce and judge general statutory prohibitions such as statutory criminal contempt violations under 2 U.S.C. § 192. In short, the former is a permissible exercise of legislative power to remedy an offense against Congress, while the latter may be an impermissible exercise of executive and judicial power to remedy a criminal offense against the United States.171 Executive Privilege The use of some contempt procedures against an executive branch official invoking executive privilege at the direction of the President could be viewed as frustrating the President’s ability to protect the confidentiality of his communications—a protection rooted in the separation of powers.172 In general, executive privilege is an implied legal doctrine that permits the executive branch to “to resist disclosure of information the confidentiality of which [is] crucial to fulfillment of the unique role and responsibilities of the executive branch of our government.”173 Because past subpoena enforcement disputes between Congress and the executive branch have involved such assertions, it is necessary to outline briefly executive privilege’s general contours. The Supreme Court has only rarely addressed executive privilege, but its most significant explanation of the doctrine came in the unanimous opinion of United States v. Nixon.174 Nixon involved the President’s assertion of executive privilege in refusing to comply with a criminal trial subpoena—issued upon the request of a special prosecutor—for electronic recordings of conversations he had in the Oval Office with White House advisers.175 The Court’s opinion recognized an implied constitutional privilege protecting presidential communications, holding that the “privilege of confidentiality of presidential communications” is “fundamental to the operation of Government and inextricably rooted in the separation of powers.”176 The justification underlying the privilege related to the integrity of presidential decisionmaking, with the Court reasoning that the importance of protecting a President’s communications with his advisers was “too plain to require further discussion,” as “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”177 Even so, the Court determined that when the President asserts only a “generalized interest” in the confidentiality of his communications, that interest must be weighed against the need for disclosure in the given case.178 In conducting that balancing, the Court held that the President’s 171 This principle has been articulated by the Court in holding that punishment for the same act under both the criminal law and inherent contempt does not place a witness in “double jeopardy” for the same offense in violation of the Fifth Amendment. See In re Chapman, 166 U.S. 661, 672 (1897) (“[T]he same act may be an offence against one jurisdiction and an offence against another . . . .”). 172 See Olson Opinion, supra note 12, at 102 (asserting that the criminal contempt statute cannot “constitutionally be applied to an Executive Branch official who asserts the President's claim of executive privilege”). 173 In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997). 174 United States v. Nixon, 418 U.S. 683, 703–16 (1974). 175 Id. at 686. 176 Id. at 708. Like Congress’s contempt power, executive privilege is therefore implied from constitutional text rather than expressly provided. 177 Id. at 705. 178 The Court reasoned that the analysis may be different when the President’s interest in confidentiality is tethered to a “need to protect military, diplomatic, or sensitive national security secrets” rather than a generalized interest in Congressional Research Service 20 Congressional Subpoenas: Enforcing Executive Branch Compliance “generalized” assertion of privilege “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice,” and therefore “must yield to the demonstrated, specific need for evidence in a pending criminal trial.”179 The Nixon opinion180 established three key characteristics of executive privilege, at least as it relates to presidential communications. First, the Court expressly rejected the assertion that the privilege was absolute. Instead, the Court found the privilege to be qualified, requiring that it be assessed in a way that balances “competing interests” and “preserves the essential functions of each branch.”181 Second, to protect the “public interest in candid, objective, and even blunt or harsh opinions in presidential decisionmaking,” the Court viewed confidential presidential communications as “presumptively privileged.”182 As a result, the Court appeared to suggest that some degree of deference is due to a President’s initial determination that certain information is protected by the privilege.183 Moreover, the burden would appear to be on the party seeking the information to overcome that “presumption” through a strong showing of need for the information.184 Third, the Court viewed the privilege as limited to communications made “‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions. . . .’”185 Thus, the privilege does not appear to apply to all presidential communications. confidentiality. Id. at 706. When communications relate to these “Article II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.” Id. at 710. 179 Id. at 713. 180 The principles announced in Nixon were reaffirmed in Nixon v. Administrator of General Services, 433 U.S. 425, 449 (1977) [hereinafter Nixon II]. 181 Nixon, 418 U.S. at 707. 182 Id. at 708. 183 Id. at 713 (“Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate” the requisite need.). Consistent with this principle, the D.C. Circuit has described its approach to executive privilege as creating a “staged decisional structure” in which overcoming the presumptive privilege results in disclosure to the court for in-camera review, rather than direct disclosure to the coordinate branch of government seeking the presidential communications. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 730–31 (D.C. Cir. 1974) (holding that the requisite showing of need must be made “before the President’s obligation to respond to the subpoena is carried forward into an obligation to submit subpoenaed materials to the Court, together with particularized claims that the Court will weigh against whatever public interests disclosure might serve.”). 184 Senate Select Comm. on Presidential Campaign Activities, 498 F.2d at 730 (“The presumption can be overcome only by an appropriate showing of public need by the party seeking access to the conversations.”). 185 Nixon II, 433 U.S. at 449 (stating that Nixon “held that the privilege is limited to communications ‘in performance of [a President's] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions’ . . .” (quoting Nixon, 418 U.S. at 708, 711, 713)). Lower courts, which have generally addressed executive privilege in the context of public access to information pursuant to the Freedom of Information Act or judicial access through a grand jury subpoena, have divided executive privilege into at least two prongs: the presidential communications privilege, which protects presidential communications, and the deliberative process privilege, which protects certain internal agency communications. See CRS Report R42670, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments, by Todd Garvey, at 8–12. The D.C. Circuit has consistently distinguished the privilege protecting presidential communications from the privilege protecting executive deliberative communications. See Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1113-14 (D.C. Cir. 2004); In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997) (“While the presidential communications privilege and the deliberative process privilege are closely affiliated, the two privileges are distinct and have different scopes.”). The D.C. Circuit has also established key limits on each of these privileges. See In re Sealed Case, 121 F.3d at 746 (concluding that the deliberative process privilege “disappears altogether when there is any reason to believe government misconduct occurred”); id. at 752 (concluding that the presidential communications privilege “should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and Congressional Research Service 21 Congressional Subpoenas: Enforcing Executive Branch Compliance Although presidential claims of a right to protect executive branch confidentiality interests have occurred with relative frequency, the Supreme Court has not addressed executive privilege in any substantial way since the Nixon era, and, in fact, has never addressed the application of executive privilege in the context of a congressional investigation.186 Indeed, in Nixon, the Court explicitly disclaimed any attempt to assess the application of executive privilege in a congressional investigation, noting that “we are not here concerned with the balance between the President’s generalized interest in confidentiality . . . and congressional demands for information.”187 The lower federal courts have generally sought to avoid adjudicating disputes between the executive and legislative branches over executive privilege, instead encouraging the branches to settle their differences through political resolution.188 Consistent with that approach, lower federal courts have suggested that judicial intervention in such disputes “should be delayed until all possibilities for settlement have been exhausted,”189 and warned that the branches should not take an “adversarial” approach to executive privilege disagreements, but should instead “take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.”190 The most significant judicial analysis of executive privilege in the context of a congressional investigation is the D.C. Circuit’s decision in Senate Select Committee on Presidential Campaign Activities v. Nixon.191 Senate Select Committee involved an attempt by the Senate Select Committee on Presidential Campaign Activities to obtain the Nixon White House tapes and other materials as part of the committee’s investigation into “illegal, improper, or unethical” actions during the 1972 presidential election.192 The D.C. Circuit decision was issued shortly before the Supreme Court decision in United States v. Nixon, and contemporaneously to an impeachment investigation conducted by the House Judiciary Committee.193 Although ultimately siding with the President, the D.C. Circuit’s opinion affirmed the qualified nature of the privilege by making clear that a President’s assertion of the privilege could be overcome by a “strong showing of need by another institution of government. . . .”194 The court elaborated that Congress, in the exercise received by those members of an immediate White House adviser’s staff ”). 186 The Supreme Court engaged in a very limited discussion of executive privilege in Cheney v. United States District Court, 542 U.S. 367, 383–91 (2004). As a result of the Supreme Court’s limited activity in defining the scope of executive privilege, each branch has been left with significant flexibility in adopting its own views of the privilege’s reach. See Wright, supra note 17, at 946 (noting that “[i]n the absence of Supreme Court pronouncements, the political branches feel legally unconstrained to adhere to their incompatible constitutional perspectives”). 187 Nixon, 418 U.S. at 712 n.19. 188 United States v. U.S. House of Representatives, 556 F. Supp. 150, 152 (D.D.C. 1983) (declaring that “[w]hen constitutional disputes arise concerning the respective powers of the Legislative and Executive Branches, judicial intervention should be delayed until all possibilities for settlement have been exhausted”); United States v. AT&T Co., 567 F.2d 121, 123 (D.C. Cir. 1977) (describing the court’s desire to “avoid a resolution that might disturb the balance of power between the two branches and inaccurately reflect their true needs” and to “refrain[] from deciding the merits of [the] claims”). 189 House of Representatives, 556 F. Supp. at 152. The court further noted: “Judicial resolution of this constitutional claim, however, will never become necessary unless Administrator [Burford] becomes a defendant in either a criminal contempt proceeding or other legal action taken by Congress. [] The difficulties apparent in prosecuting Administrator [Burford] for contempt of Congress should encourage the two branches to settle their differences without further judicial involvement.” Id. at 153. 190 AT&T Co., 567 F.2d at 127. 191 498 F.2d 725, 729–33 (D.C. Cir. 1974). 192 Id. at 726–27. 193 Id. at 732. 194 Id. at 730. Congressional Research Service 22 Congressional Subpoenas: Enforcing Executive Branch Compliance of its investigative powers, may overcome the President’s presumptive privilege when it can show that “the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee’s function.”195 Notably, the court suggested that the “nature of the presidential conduct that the subpoenaed material might reveal,” including President Nixon’s alleged criminal misconduct, is not a significant factor in assessing whether the privilege is overcome.196 Instead, that analysis depends “solely” on the “nature and appropriateness” of the function the committee is carrying out.197 The D.C. Circuit in Senate Select Committee concluded that the Select Committee on Presidential Campaign Activities had failed to make the requisite showing of need. That determination, however, appears to have been based on a pair of unique facts: first, that copies of the tapes had been provided to the House Judiciary Committee under that committee’s impeachment investigation; and second, that the President had publicly released partial transcripts of the tapes.198 Significantly, the Select Committee sought to make the required showing by arguing it had a “critical” need for the tapes to carry out two separate and distinct functions. First, pursuant to its oversight function, the committee argued that the tapes were necessary to “oversee the operations of the executive branch, to investigate instances of possible corruption and malfeasance in office, and to expose the results of its investigations to public view.”199 Second, pursuant to its legislative function, the committee argued that “resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it ‘would aid in a determination whether legislative involvement in political campaigns is necessary’ and ‘could help engender the public support needed for basic reforms in our electoral system.’”200 As for the oversight function, the Court held that the Select Committee failed to show the requisite need—mainly because the House Judiciary Committee had already obtained the tapes. Any further investigative need by the Select Committee was therefore “merely cumulative,” as the tapes were already in the possession of one committee of Congress.201 With regard to the Select Committee’s legislative functions, the court held that the particular content of the conversations was not essential to future legislation, as “legislative judgments normally depend more on the predicted consequences of proposed legislative actions . . . than on precise reconstruction of past events.” Any “specific legislative decisions” faced by the Select Committee, the court concluded, could “responsibly be made” based on the released transcripts.202 195 Id. at 731. 196 Id. 197 Id. at 731. 198 Id. at 732–33. 199 Id. at 731. 200 Id. 201 Id. at 732. 202 Id. (“Particularly in light of events that have occurred since this litigation was begun and, indeed, since the District Court issued its decision, we find that the Select Committee has failed to make the requisite showing.”). Courts have varied in their approach to comparing Congress’s investigatory function to that exercised by a grand jury. Compare Senate Select Committee, 498 F.2d at 732 (“There is a clear difference between Congress’s legislative tasks and the responsibility of a grand jury. . . . While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes.”) with United States v. Bryan, 339 U.S. 323, 331 (1950) (“On the other hand, persons summoned as witnesses by competent authority have certain minimum duties and obligations which are necessary concessions to the public interest in the orderly operation of legislative and judicial machinery. A subpoena has never been treated as an Congressional Research Service 23 Congressional Subpoenas: Enforcing Executive Branch Compliance Given both Nixon and Senate Select Committee, it appears that executive privilege does not establish an absolute bar to Congress obtaining protected information, especially when the assertion of the privilege is based on a “generalized interest” in confidentiality rather than one connected to “military, diplomatic, or sensitive national security secrets.” Instead, the appropriate inquiry appears to be fact-specific, focusing “solely” on whether the investigating committee can show that the information sought is “demonstrably critical” to a legitimate legislative function such as oversight or the consideration of legislation.203 Without more detailed judicial pronouncements the political branches have adopted somewhat divergent views on the scope of executive privilege. This interpretive divide has likely contributed to the frequency and intensity of inter-branch disputes over executive privilege. The executive branch has historically viewed the privilege broadly, providing protections to several different categories of documents and communications that relate to executive branch confidentiality interests.204 Under the executive branch’s interpretation, the privilege covers, among other possible areas, presidential communications; deliberative communications within the executive branch; military, diplomatic, and national security information; and law enforcement files.205 Congress, however, has generally interpreted the privilege more narrowly, limiting its application to the types of core Article II duties and presidential communications referenced by the Supreme Court in Nixon, while also emphasizing that whatever the privilege’s scope, it can be overcome by an adequate showing of need.206 It appears likely that the executive branch will continue to raise constitutional objections if Congress attempts to use the contempt power to either force the disclosure of information the President considers privileged or to punish an executive branch official for asserting executive privilege.207 Yet judicial decisions and historical practice have set few clear legal standards for application in such disputes—except to establish that neither side’s power is absolute and that Congress and the President have an obligation to attempt to accommodate each other’s needs.208 Thus, any conflict between the power of inquiry and executive privilege, either under the current system or as applied to the alternative approaches discussed in this report, would likely be governed not by bright-line rules, but by a balancing of the specific interests at play in the given dispute, and only after it had become apparent that the legislative and executive branches could invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity.”). See also, HAMILTON, supra note 101, at 188. 203 Senate Select Committee, 498 F.2d at 731. 204 See e.g., Olson Opinion, supra note 12, at 116 (“The scope of executive privilege includes several related areas in which confidentiality within the Executive Branch is necessary for the effective execution of the laws.”). 205 Id. at 116–18. 206 See Report of the Committee on Oversight and Government Reform U.S. House of Representatives Regarding President Bush's Assertion of Executive Privilege in Response to the Committee Subpoena to Attorney General Michael B. Mukasey, 110th Cong. (2008) at 8 (“The Attorney General’s argument that the subpoena implicates the ‘law enforcement component’ of executive privilege is equally flawed. There is no basis to support the proposition that a law enforcement privilege, particularly one applied to closed investigations, can shield from congressional scrutiny information that is important for addressing congressional oversight concerns. The Attorney General did not cite a single judicial decision recognizing this alleged privilege.”); H. REP. NO. 105-728, 105th Cong. (1998) at 16 n. 43 (“As the D.C. Circuit has recently held, the doctrine of executive privilege which arises from the constitutional separation of powers applies only to decisionmaking of the President. Since the subject of the Committee’s subpoena is not one that does (or legally could) involve Presidential decisionmaking, no constitutional privilege could be invoked here.”) (citations omitted). 207 See supra “The Current Process in Use.” 208 See Nixon, 418 U.S. at 707; United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977). Congressional Research Service 24 Congressional Subpoenas: Enforcing Executive Branch Compliance not reach an acceptable settlement. How that balancing is implemented, and what legal standard is applied to evaluate an executive privilege claim made in response to a congressional subpoena, will likely depend on the type of information the privilege is asserted to protect. The courts appear to have adopted a hierarchical approach to various privileges within the executive privilege taxonomy. For example, the courts “have traditionally shown the utmost deference” to the executive’s need to protect “military or diplomatic secrets.”209 Courts have not “extended this high degree of deference to a President’s generalized interest in confidentiality” of his communications.210 Other asserted aspects of executive privilege, for example the deliberative process privilege, have been given still less weight, and must be assessed differently in the face of an exercise of Congress’s investigative powers.211 Ultimately, the framework through which Congress chooses to enforce a subpoena for information the President considers protected by executive privilege will impact the process by which executive branch assertions of the privilege are resolved. Under the criminal contempt framework, the Executive becomes the final arbiter of the appropriate scope of executive privilege by deciding whether to go forward with a criminal contempt prosecution of an official relying on the privilege. A decision not to move forward with a prosecution would generally not be subject to judicial review.212 Under the civil enforcement framework, the initial determination on the application of the privilege is made by the Executive, subject to judicial review if the House or Senate chooses to challenge that determination in federal court. Under inherent contempt, the initial determination on the application of the privilege is made by Congress, subject to review in the courts if the subject of the contempt proceeding challenges his detention.213 Bicameralism and Presentment Finally, because the power to seek enforcement of a congressional subpoena is independently vested in each house, rather than in Congress as a whole, constitutional questions may be raised over whether a single house, through approval of a contempt resolution, can trigger legal consequences or impose requirements upon the executive branch without compliance with bicameralism and presentment.214 The Supreme Court has made clear that Congress must exercise its legislative power in compliance with the “finely wrought and exhaustively considered[] procedure”215 set forth in Article I, Section 7 of the Constitution, which provides that “every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the 209 Nixon, 418 U.S. at 710. 210 Id. at 711. 211 In re Sealed Case, 121 F. 3d, 745–46 (D.C. Cir. 1997) (concluding that congressional “negation” of the deliberative process privilege is subject to less “scrutiny” than the presidential communications privilege and “disappears altogether when there is any reason to believe government misconduct occurred”). 212 See Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (noting that “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings”). 213 See McGrain v. Daugherty, 273 U.S. 135, 150 (1927) (challenging exercise of inherent contempt through a habeas corpus proceeding); Anderson v. Dunn, 19 U.S. 204, 204 (1821) (challenging exercise of inherent contempt through an action for assault and battery and false imprisonment). 214 See INS v. Chadha, 462 U.S. 919, 952–55 (1983). 215 Id. at 951. Congressional Research Service 25 Congressional Subpoenas: Enforcing Executive Branch Compliance President of the United States.”216 This provision establishes the bedrock constitutional principle that before legislation is given the force and effect of statutory law, it must first satisfy the requirements of bicameralism (approval by both houses of Congress) and presentment (submission to the President for his signature or veto).217 In the seminal case INS v. Chadha, the Court relied on the bicameralism and presentment requirements to invalidate provisions of the Immigration and Nationality Act that authorized either house of Congress, by a one-house resolution, to “veto” an exercise of statutory authority delegated to an executive branch officer.218 In invalidating this “legislative veto,” the Court interpreted Article I, Section 7 of the Constitution as establishing that not only all bills, but all “legislative acts” are subject to the procedural requirements of bicameralism and presentment.219 The Court defined a “legislative act” as any action “properly [] regarded as legislative in its character and effect” or taken with “the purpose and effect of altering the legal rights, duties and relations of persons. . . outside the legislative branch.”220 In other words, congressional actions that have the “force of law” generally must comply with the Constitution’s “single, finely wrought” process—that of passage by both houses and presentment to the President.221 The Chadha opinion identified specific exceptions to the bicameralism and presentment requirements, noting that “[c]learly, when the [Constitution’s] Draftsmen sought to confer special powers on one House, independent of the other House, or of the President, they did so in explicit, unambiguous terms.”222 The Constitution’s impeachment provisions and those relating to Senate advice and consent to treaty ratification and the appointment of judges, ambassadors, and public officials are examples of such provisions.223 The Court also noted that “[e]ach House has the power to act alone in determining specified internal matters.”224 That authority, the Court added, “only empowers Congress to bind itself and is noteworthy only insofar as it further indicates the Framers’ intent that Congress not act in any legally binding manner outside a closely circumscribed legislative arena, except in specific and enumerated instances.”225 The contempt power does not fit neatly into the Chadha mold. Indeed, the Court may have neglected the inherent contempt power in articulating its list of exceptions to Chadha’s bicameralism and presentment requirements.226 Despite Chadha’s language, it does not appear that the Constitution always speaks “explicit[ly]” or “unambiguous[ly]” when conferring power to each house individually.227 There is no explicit constitutional language conferring the contempt 216 U.S. CONST. art. I, § 7. 217 Clinton v. City of New York, 524 U.S. 417, 439–40 (1998) (“The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’” (citing Chadha, 462 U.S. at 951)). 218 Chadha, 462 U.S. at 952–55. 219 Id. at 952. 220 Id. 221 Id. at 951. 222 Id. at 955–56. 223 Id. at 955. 224 Id. at 955 n.21 (referencing U.S. CONST. art. I, § 5, cl. 2 and § 7, cls. 2, 3). 225 Id. 226 The inherent contempt power arguably could fall within each house’s “power to act alone in determining specified internal matters.” Id. at 955 n.21. 227 Id. at 955–56. Congressional Research Service 26 Congressional Subpoenas: Enforcing Executive Branch Compliance power or the power of inquiry to each individual house. Rather, as discussed, these powers are implied as essential to the legislative power.228 Notably, no court has suggested that the exercise of the inherent contempt power by a single house of Congress, which could alter the legal rights or obligations of a detained witness, is inconsistent with the requirements of bicameralism or presentment.229 As for the criminal contempt statute, the DOJ has asserted that interpreting that statute to require that a contempt citation be brought before the grand jury would be inconsistent with Chadha by allowing one house to place a legal requirement on a U.S. Attorney.230 To date, no court has had opportunity to consider the validity of the DOJ’s position.231 But it is possible that Chadha-like concerns could be raised by alterations to the contempt framework that would allow the approval of a contempt citation by a single house to create new legal rights or restrictions or otherwise alter the legal authority that may be exercised by executive branch officials. With these general separation-of-powers principles established as background, this report now considers possible subpoena-enforcement frameworks and the key legal issues they raise. Current Framework As noted previously, most congressional requests for information from the executive branch are complied with, and in those cases when there is a dispute, negotiations between the committee and the executive agency generally lead to a resolution acceptable to both parties.232 In the instances that Congress has resorted to its subpoena-enforcement mechanisms, the committee involved has generally been able to obtain eventually much of the information it sought.233 Thus, an argument can be made that the current system acts as an adequate and effective way to obtain information and deter non-compliance with congressional subpoenas in most cases. 228 McGrain v. Daugherty, 273 U.S. 135, 175 (1927) (“[T]he power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it.”). 229 Nor was there any indication in Chadha that the opinion was intended to overturn the Court’s longstanding approval of the inherent contempt power. See e.g., Anderson v. Dunn, 19 U.S. 204, 228 (1821); McGrain, 273 U.S. at 175. 230 Olson Opinion, supra note 12, at 128 n.28 (noting that if one house could “impose on the United States Attorney an affirmative legal duty to initiate a prosecution and take certain steps in that prosecution,” such action would be “contrary to the clear language and rationale of Chadha”). 231 At least one court has suggested that as a matter of statutory interpretation, the criminal contempt provision imposes a mandatory obligation to refer the matter to the grand jury. Ex parte Frankfeld, 32 F. Supp. 915, 916 (D.D.C. 1940) (“It seems quite apparent that Congress . . . left no discretion with the district attorney as to what he should do about it. He is required, under the language of the statute, to submit the facts to the grand jury.”). 232 See, e.g., Todd David Peterson, Contempt of Congress v. Executive Privilege, 14 U. PA. J. CONST. L. 77, 105 (2011) (noting that “Congress routinely obtains massive amounts of information from the executive branch on a daily basis,” o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR45653. Public record. Not legal advice.