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.
Continue Reading Recent Developments Shed Further Light on Congressional Subpoena Authority
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Senate Subpoena Power Under the 2021 Power-Sharing Agreement
Recently, the Senate adopted a power-sharing agreement providing some contours for organizing the equally divided body. As we have discussed previously, such agreements are very rarely needed. The Senate has only faced a 50-50 partisan split a handful of times. The most recent instance, in 2001, prompted the first power-sharing agreement, which served as a…
Congressional Investigations: Recent Events Bring Greater Clarity to Expectations for 2021
As the calendar turns from 2020 to 2021, we are taking stock of congressional investigations over the past two years, and assessing events in the recent weeks that help to shed light on the likely trajectory for congressional investigations in 2021.
- In late October, we considered congressional investigations in the context of the upcoming election.
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D.C. Circuit’s McGahn Ruling Eliminates Key House Option for Subpoena Enforcement
On Monday, August 31, a panel of the U.S. Court of Appeals for the D.C. Circuit upended more than a decade of district court precedent and deprived—at least for the moment—the U.S. House of Representatives of its ability to seek civil enforcement of subpoenas. In Committee on the Judiciary v. McGahn, the court…
House of Representatives Seeks to Strengthen Subpoena Enforcement Dramatically
In late October, the House of Representatives quietly approved a bill that would dramatically strengthen Congress’s procedures for enforcing congressional subpoenas. In adopting the bill, the bipartisan leadership of the House Judiciary Committee highlighted the challenges that Congress faces in obtaining materials from executive branch agencies. Significant portions of the bill, however, apply to all…
D.C. Circuit Dismisses Major Case Concerning Attorney-Client Privilege in Congressional Investigations
The long saga of the legal challenge by Carl Ferrer, CEO of Backpage, to a subpoena issued by the Senate’s Permanent Subcommittee on Investigations (“PSI”) appears to have reached a conclusion. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit this week dismissed the case as moot and additionally vacated a…
The Senate’s District Court Win in the Backpage Subpoena Fight Could Have Significant Implications for Congressional Investigations
Last week, the U.S. District Court for the District of Columbia ruled in favor of the Senate Permanent Subcommittee on Investigations in a rare case that has the potential to contribute significantly to the case law concerning congressional investigations. It is uncommon for a federal court to have an opportunity to rule on a congressional…