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
D.C. Circuit
D.C. Circuit’s McGahn Ruling Eliminates Key House Option for Subpoena Enforcement
By Matthew Shapanka on
Posted in Congressional Investigations
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…
D.C. Circuit Rules Obstruction of Office of Congressional Ethics Not a Crime, but Questions and Risks Remain
By Angelle Smith Baugh on
Posted in Congressional Investigations, Litigation
In a unanimous ruling, the D.C. Circuit shed new light this week on the applicability of key federal criminal statutes on proceedings before the Office of Congressional Ethics (“OCE”). While largely removing the prospect of criminal obstruction liability for parties responding to inquiries from OCE, the court’s opinion is another reminder of the potentially…
In Major Blow To Its Opponents, SEC Pay-to-Play Rule Survives D.C. Circuit Challenge
By Zachary G. Parks on
Posted in Litigation, SEC Pay-to-Play
The U.S. Court of Appeals for the D.C. Circuit yesterday issued a long-awaited opinion upholding, on the merits, a recent update to the SEC’s pay-to-play rule. While the case involved only a narrow piece of the rule, the decision’s logic is worded more broadly and could apply to the SEC rule as a whole, making…
D.C. Circuit Dismisses Major Case Concerning Attorney-Client Privilege in Congressional Investigations
By Robert Kelner & Brian D. Smith on
Posted in Congressional Investigations, Litigation
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…
D.C. Circuit Hears Constitutional Challenge to SEC Pay to Play Rule
A constitutional challenge to the SEC’s “pay to play” rule moved one step closer to resolution today, even as significant hurdles remain in an effort to strike down the rule.
The U.S. Court of Appeals for the District of Columbia Circuit heard arguments this morning on an appeal brought by two state political parties challenging…
D.C. Circuit Vacates Federal Contractor Ban Decision on Way to En Banc Review
Posted in Campaign Finance, Litigation
Earlier today a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Wagner v. FEC, sending the legal challenge brought by three federal contractors back to the start.
The contractors had sued the Federal Election Commission back in October 2011, arguing that federal law unconstitutionally prohibits federal…
Challenge to Federal Contractor Contribution Ban Awaits D.C. Circuit Decision
Posted in Campaign Finance, Litigation
On Thursday, the U.S. Court of Appeals for the D.C. Circuit wrapped up its 2012–2013 Term by hearing argument in Wagner v. FEC, a case that challenges the Federal Election Campaign Act provision prohibiting federal contractors from making political contributions in connection with federal elections. The court typically issues opinions argued during a term…