Throughout recent months, we have closely monitored important developments in the courts and on Capitol Hill related to Congress’s power to issue and enforce subpoenas for documents or witness testimony. As members of the 117th Congress continue to develop legislative and oversight priorities, a number of recent events signal continued uncertainty in congressional subpoena authority and interest in Congress in clarifying and strengthening that authority. As discussed below, these recent developments hold significant implications for Congress’s ability to compel cooperation with their investigations.
Back to Square One in the Courts
Historically, investigators on Capitol Hill have relied on civil enforcement proceedings to enforce their subpoenas and compel the production of sought-after documents or testimony. As we detailed in November, however, the D.C. Circuit cast doubt on the ability of investigators in the House to pursue this common avenue for enforcing its subpoenas.
The case, Committee on the Judiciary v. McGahn, arose from the House Judiciary Committee’s effort to seek civil enforcement of a subpoena issued to former White House Counsel Don McGahn for testimony in the Committee’s impeachment inquiry of President Trump. Last August, a three-judge panel of the D.C. Circuit concluded that federal law provides no cause of action for House committees seeking civil enforcement of subpoenas, even when authorized by a House resolution. On its face, this ruling would strip the House—but presumably not the Senate, which has separate statutory subpoena enforcement authority—of its ability to obtain a court order to enforce its subpoenas. This in turn could have significant implications for parties responding to House oversight requests.
In October, the D.C. Circuit agreed to rehear the case en banc. With that said, as we noted in the fall, the Court appeared to be laying the groundwork for disposing of the case without offering a definitive ruling on the scope of Congress’s subpoena enforcement authority. Since then, the parties have repeatedly sought to delay oral argument in the case, while they continued to negotiate the conditions under which McGahn would testify. Those negotiations culminated in McGahn appearing before the Committee in a closed-door transcribed interview earlier this month. And, sure enough, the parties late last week jointly moved to dismiss the pending appeal and vacate the underlying panel decision.
Assuming the Court agrees, the decision will leave unresolved the question of whether House committees may seek enforcement of their subpoenas in federal court. Nonetheless, though the panel decision would no longer be binding on lower courts, lingering uncertainty regarding the ability of the House to enforce its subpoenas will continue to be an important consideration for parties responding to congressional oversight investigations.
Frustration Mounting on the Hill
While the question of congressional subpoena authority is stymied in the courts, congressional investigators are actively considering legislative angles to strengthen the congressional subpoena power. In particular, in the last week, two separate hearings highlighted growing frustration among congressional investigators on both sides of the aisle.
First, perhaps unsurprisingly, the topic of congressional subpoena authority arose repeatedly during the House Judiciary Committee’s closed-door interview of McGahn, which resolved the case above. Although the resulting testimony largely focused on the substance of the Committee’s underlying investigation, the 241-page transcript reveals congressional investigators’ repeated frustration about their lack of subpoena enforcement authority. For instance, the hearing began with Committee staff highlighting that they first issued a subpoena for McGahn’s testimony on April 22, 2019, then reissued its subpoena in January 11, 2021, and finally reached an agreement to compel testimony over two years after the initial subpoena.
Second, on June 8, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing about civil enforcement of congressional authorities. The hearing focused on testimony from four witnesses who proposed ways to strengthen the congressional subpoena and impose penalties for both government officials and private parties who do not comply. The bipartisan consensus of the witnesses and Subcommittee members was that the House’s subpoena power is largely toothless, but a number of proposals could change that reality. Democrats and Republicans both cited examples of ignored subpoenas during the Trump and Obama administrations, with House Judiciary Committee Chairman Jerry Nadler (D-NY) expressly noting that addressing Congress’s interest in ensuring that its subpoenas are enforced “transcends partisanship.”
Space for Bipartisan Action?
As frustrations mount, congressional investigators are increasingly considering legislative options to strengthen Congress’s ability to enforce its subpoenas. Regardless of the ultimate outcome, the McGahn case highlights the tenuous statutory authority underlying enforcement of congressional subpoenas. With this in mind, rather than relying on case law and risk a potentially unfavorable ruling in the courts, there is increasing interest on the Hill to codify and strengthen Congress’s subpoena enforcement authority.
Last June, Representative Ted Lieu (D-CA) led a group of House Democrats in introducing a resolution that would amend the House rules to formalize and expand the chamber’s “inherent contempt” authority. In particular, the resolution would create a process by which individuals who refuse to comply with subpoenas would be subject to a hearing to determine if they should be held in contempt of Congress. A party found to be in contempt would have 20 days to comply with the subpoena, or else be subject to an initial fine of no more than $25,000. The fine would then increase incrementally to a maximum of $100,000 if the party still continues to ignore the subpoena.
After it stalled in the House last Congress, Lieu reintroduced the resolution in April. Although it remains to be seen whether the proposal will draw additional support in the current Congress, there is some reason to believe that proposals to strengthen congressional subpoena authority could be an area of rare bipartisan agreement. In particular, in October 2017, the Republican-led House passed a bill that would have formalized the civil enforcement process for congressional subpoenas. During the recent House Judiciary Subcommittee hearing addressing civil enforcement of congressional authorities, all four witnesses cited the bill and called for legislation to authorize Congress to file civil actions in federal court to enforce subpoenas.
Largely, these proposals have arisen out of frustration with uncooperative executive branch officials and focused on separation-of-powers concerns in an era of aggrandized executive power. Nonetheless, proposals to bolster congressional oversight authority also hold important implications for private parties who find themselves subject to congressional investigations. For that reason, parties that are or may be subject to congressional investigations would do well to monitor these proposals and potential rule changes.
Update: On July 14, 2021, the D.C. Circuit granted the parties’ joint motion to dismiss the McGahn appeal and vacate the earlier panel decision that had held that House committees lack a cause of action to seek civil subpoena enforcement. As a result, for now at least, House committees may again pursue civil penalties to compel compliance with their subpoenas.
This post was written with research assistance from Summer Associate Josh Schenk.