[Congressional Record Volume 163, Number 170 (Monday, October 23, 2017)]
[House]
[Pages H8059-H8061]
CONGRESSIONAL SUBPOENA COMPLIANCE AND ENFORCEMENT ACT OF 2017
Mr. ISSA. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 4010) to amend the Revised Statutes of the United States and
title 28, United States Code, to enhance compliance with requests for
information pursuant to legislative power under Article I of the
Constitution, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 4010
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Congressional Subpoena
Compliance and Enforcement Act of 2017''.
SEC. 2. ENFORCEMENT OF CONGRESSIONAL SUBPOENAS.
(a) In General.--Chapter 85 of title 28, United States
Code, is amended by inserting after section 1365 the
following:
``Sec. 1365a. Congressional actions against subpoena
recipients
``(a) Special Rules.--In any civil action brought by the
United States House of Representatives, the United States
Senate, or a committee or subcommittee thereof, against the
recipient of a subpoena to secure declaratory, injunctive, or
other relief as may be appropriate concerning the failure to
comply with a subpoena issued by a congressional committee or
subcommittee, the following rules shall apply:
``(1) The action shall be filed in a United States district
court of competent jurisdiction.
``(2) It shall be the duty of the United States district
courts, the United States courts of appeal, and the Supreme
Court of the United States to advance on the docket and to
expedite to the greatest possible extent the disposition of
any such action and appeal.
``(3) If a three-judge court is expressly requested by the
plaintiff in the initial pleading, the action shall be heard
by a three-judge court convened pursuant to section 2284 of
title 28, United States Code, and shall be reviewable only by
appeal directly to the Supreme Court of the United States.
Such appeal shall be taken by the filing of a notice of
appeal within 10 days, and the filing of a jurisdictional
statement within 30 days, of the entry of the final decision.
``(b) Monetary Penalties in Cases Involving Government
Agencies.--
``(1) The court may impose monetary penalties directly
against the head of a Government agency or a component
thereof held to have willfully failed to comply with any part
of a congressional subpoena.
``(2) No appropriated funds, funds provided from any
accounts in the Treasury, funds derived from the collection
of fees, or other Government funds shall be used to pay any
monetary penalty imposed by the court pursuant to this
section.
``(c) Waiver of Privilege.--Any assertion of a privilege or
other ground for noncompliance (whether statutory, common
law, or otherwise) asserted by the recipient of a
congressional subpoena may be determined to have been waived
as to any particular record withheld from production if the
court finds that the recipient failed in a timely manner to
comply with the requirement of section 105 of the Revised
Statutes of the United States that it produce a privilege log
with respect to such record.
``(d) Definition.--For purposes of this section, the term
`Government agency' means an executive department listed in
section 101 of title 5, United States Code, an independent
establishment, commission, board, bureau, division, or office
in the executive branch, or other agency of the Federal
Government, including wholly or partly owned Government
corporations.''.
(b) Clerical Amendment.--The table of sections for chapter
85 of title 28, United States Code, is amended by inserting
after the item relating to section 1365 the following:
``1365a. Congressional actions against subpoena recipients.''.
SEC. 3. COMPLIANCE WITH CONGRESSIONAL SUBPOENAS.
(a) In General.--Chapter seven of title II of the Revised
Statutes of the United States (2 U.S.C. 191 et seq.) is
amended by adding at the end the following:
``SEC. 105. RESPONSE TO CONGRESSIONAL SUBPOENAS.
``(a) Subpoena by Congressional Committee.--Any recipient
of any subpoena from a congressional committee or
subcommittee shall appear and testify or produce records in a
manner consistent with the subpoena and this section.
``(b) Congressional Subpoenas for Records.--
``(1) Identification of records withheld.--In the case of a
record that is withheld, in whole or in part, by the subpoena
recipient, the subpoena recipient shall provide a log
containing the following information concerning such record:
``(A) An express assertion and description of the legal
basis asserted for withholding the record.
``(B) The type of record.
``(C) The general subject matter.
``(D) The date, author, and addressee.
``(E) The relationship of the author and addressee to each
other.
``(F) The custodian of the record.
``(G) Any other descriptive information that may be
produced or disclosed regarding the record that will enable
the congressional committee or subcommittee issuing the
subpoena to assess the legal basis asserted for withholding
the record.
``(2) Missing records.--In the case of any record
responsive to the subpoena submitted under paragraph (1) that
was, but no longer is, in the possession, custody, or control
of the subpoena recipient, the subpoena recipient shall
identify the record (including the date, author, subject, and
each recipient of the record) and explain the circumstances
under which the record ceased to be in the possession,
custody, or control of the subpoena recipient.
``(3) Electronic records.--Electronic records shall be
produced pursuant to this subsection in their native or
original file format. Electronic records shall be delivered
on
[[Page H8060]]
a storage device (such as compact disk, memory stick, or
thumb drive) and, to the extent feasible, shall be organized,
identified, and indexed electronically and shall include an
index describing the contents of the production.
``(c) Definitions.--For purposes of this section the term
`record' includes any books, papers, documents, data, or
other objects requested in a subpoena issued by a
congressional committee or subcommittee.''.
(b) Clerical Amendment.--The table of contents for chapter
7 of title II of the Revised Statutes of the United States is
amended by adding at the end the following:
``105. Response to congressional subpoenas.''.
SEC. 4. RULE OF CONSTRUCTION.
Nothing in this Act shall be interpreted to diminish
Congress' inherent authority or previously established
methods and practices for enforcing compliance with
congressional subpoenas, nor shall anything in this Act be
interpreted to establish Congress' acceptance of any asserted
privilege or other legal basis for noncompliance with a
congressional subpoena.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
California (Mr. Issa) and the gentleman from New York (Mr. Nadler) each
will control 20 minutes.
The Chair recognizes the gentleman from California.
general leave
Mr. ISSA. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days to revise and extend their remarks and include
extraneous material on H.R. 4010, currently under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, this bill comes to you, having been unanimously voted on
a recorded vote out of committee, but it has been a long time in coming
and it has a long history of its need. Both under Chairman Conyers,
during the last years of the Bush administration, and under my
chairmanship on the Oversight and Government Reform Committee, we
discovered a flaw in Congress' subpoena power.
Congress has, and has always had, and has been supported all the way
by the Supreme Court, the need to do oversight. With that, we issued
subpoenas. The enforcement of those subpoenas has come into conflict
over the last several years, both during Mr. Conyers' chairmanship when
he subpoenaed Harriet Miers to appear, and during my time when I
subpoenaed records by the Department of Justice. In both cases, the
administrations decided that it was appropriate to question the
standing and to delay.
Those delays were unfair to the body and unfair to the American
people because it denied them in any reasonable period of time the
effect of factfinding. This is not a partisan issue. It is, in fact, an
issue that has already been decided for the American people. Under the
Freedom of Information Act, if you do not receive documents within a
reasonable period of time, you have the right to go to court. You have
standing as a private citizen or an interest group, and the court will
decide what documents are appropriate for you to receive.
Yet this very question that was not once, but twice, defended by two
different administrations of two different parties calls into question
the ability in a timely fashion for Congress, the House or the Senate,
to receive the information or the appearance of a witness it needs. We
do not seek any new power under this legislation. We only seek an
expeditious review by a Federal judge of a claim, either for the
appearance of an individual or for documents appropriate to our
oversight.
For that reason, I am pleased that both Republicans and Democrats
within the committee saw fit to unanimously support this legislation.
We believe that it is measured and it is also time.
Mr. Speaker, I reserve the balance of my time.
Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in strong support of H.R. 4010, the Congressional
Subpoena Compliance and Enforcement Act of 2017. My support of this
legislation is tied to my view of our committee's responsibility to
conduct oversight of the executive branch.
Nearly a century ago in McGrain v. Daugherty, the United States
Supreme Court framed that responsibility this way: ``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 possess it.''
In other words, it is our responsibility to ask for the information
we require to do our jobs effectively, and the Constitution empowers us
to enforce those requests if we are at first denied. We should be very
clear on this point. Congress does not require a statute in order to
enforce its subpoenas in Federal court.
We know this, of course, because in 2008, the House Judiciary
Committee went to court to defend that authority. Ruling in favor of
the committee, the court held that the Bush administration's claim of
absolute immunity from our process ``is entirely unsupported by
existing case law.''
In effect, both government officials and private individuals have a
legal obligation to comply with the duly issued congressional subpoena
whether or not the bill before us today is enacted into law, still this
legislation is useful as a means to codify certain practices and to
expedite enforcement of subpoenas in Federal court.
It also puts the House on equal footing with the Senate, which has
had a statute in place since 1978, allowing that body to enforce at
least some of its subpoenas in Federal court.
Mr. Speaker, I thank Chairman Goodlatte for working with us to make
sure that we strike the right balance. This bill both protects our
existing authority and mitigates many concerns about abusive subpoena
power by a runaway committee. I also want to thank the gentleman from
California (Mr. Issa) for his leadership on this issue.
We often disagree about the issues we should prioritize for
oversight, but I suspect that we stand together on the importance of
oversight, both to our committee and to the Congress as a whole.
Mr. Speaker, I ask that my colleagues support the measure, and I
reserve the balance of my time.
Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I want to further echo the gentleman from New York's
comments. Mr. Nadler is right. We will often, almost unanimously, find
a way to disagree on what to look into at various times as a body. But
whether it is a Democratic chairman or Republican chairman looking into
something, whether it is a Republican administration or a Democratic
administration, it is clear that we must, in fact, if a subpoena is
issued, be able to enforce it in a timely fashion.
Under this legislation, it has a number of safeguards, but the most
important one is the three-judge panel that will review these, followed
by an expedited process at the U.S. Supreme Court.
I might note, the interesting history of the two cases Mr. Nadler and
I are talking about is one in which a Democratic chairman enforced a
subpoena, but had to go to a recently appointed Republican judge, who,
in a fairly reasonable period of time, reached the conclusion that:
one, the committee had standing, and the House had standing and; two,
that it was really without merit for the administration--then the Bush
administration--to claim this immunity, this newfound immunity.
Similarly, in a slightly longer period of time, but coincidentally, a
Republican chairman went before a freshly minted appointee of the very
President who was refusing to comply, and she reached the decision that
the documents were unfairly withheld and ordered them released.
So I think the interesting thing to all of us is the independence of
the judiciary has worked not once but twice. We only want to codify it
in a way that would cause the judiciary to have that opportunity in a
timely fashion, and for the people's right to know to be recognized in
that same expeditious fashion.
As Mr. Nadler said, the Senate has, for a long time, had a portion of
what we are doing here today. It is an oddity that two coequals have
not had the same ability during those many years since the late 1970s.
Mr. Speaker, I reserve the balance of my time.
[[Page H8061]]
Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
I want to share one last thought before closing. In our markup of
this bill, the gentleman from California (Mr. Swalwell) had this to say
about a recent experience in the Intelligence Committee:
``We had interviewed a witness just 2 weeks ago with respect to our
Russia interference investigation. . . .
``After the interview, he gave a public statement . . . and said that
he had withheld information from the committee because he was not under
subpoena.
``And he also stated that he felt like he had certain privileges to
assert that allowed him to withhold this information.
``And so I saw right there . . . that even under a subpoena,
individuals believe''--some individuals believe--``that without
necessarily having a judicial or legal basis for privilege that they
could just assert it.
``And I believe that is because the public is starting to perceive
that our subpoena power does not have the weight that it should.''
Wherever the Intelligence Committee's investigation lands, Mr.
Speaker, we have a great deal of work to do. Given some of our current
challenges, it is more important than ever for the House to conduct
substantive oversight of the executive branch. This bill contributes to
that effort, and I urge my colleagues to support it.
Mr. Speaker, I yield back the balance of my time.
Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I, too, urge the House to pass this bill, move it to the
Senate in a timely fashion, and create an equal standing between the
House and the Senate as to enforcement of its subpoenas.
I join with my colleague, the gentleman from California (Mr.
Swalwell), in the frustration that individuals often feel that they
have privileges in a vague sense that are not to be asserted, but
simply not to occur.
In the last administration, we have even had individuals claim that
they basically lied as little as they needed to, to protect some
question of a classified nature. These kinds of claims, in addition to
the law enforcement sensitive, confidential, and other security
clearance claims, which are not codified in statute, yet often are the
reason for delay or outright refusal to deliver documents, flies in the
face of the ability--sometimes behind closed doors, sometimes in
public--for Congress' ability to conduct oversight. I look forward to
this legislation becoming law, and I think I will close with just one
more item.
Mr. Nadler and I have served together as chairman and ranking member
for a number of years. We share something which is the many years that
we have been here in Congress, we have seen the frustration of both
parties trying to do their job against another branch that often takes
advantage of the natural rivalry between two different parties.
This legislation is designed to reduce that, to reduce the ability
for the executive branch or other outside groups to, if you will, take
advantage of the natural division between the two of us. After so many
years of being here, the one thing I have learned is that to diminish
the House's and the Senate's ability to represent the American people
is to diminish our Republic.
Mr. Speaker, I urge passage, and I yield back the balance of my time.
Mr. GOODLATTE. Mr. Speaker, although the power of Congress to
investigate is not set forth in any particular clause in the
Constitution, congressional investigations trace their roots back to
the earliest days of our Republic. In fact, what is thought to be the
first congressional investigation occurred in 1792, when the House
appointed a select committee to investigate the massacre of American
troops under the command of Major General Arthur St. Clair. The
resolution authorizing that investigation stated that the committee
shall ``be empowered to call for such persons, papers, and records, as
may be necessary to assist their inquiries.''
Upon learning of the investigation, President Washington assembled
his cabinet to seek their counsel. His cabinet, which included Thomas
Jefferson and Alexander Hamilton, unanimously concluded that the House
had every right to conduct its inquiry and request papers from the
President. President Washington directed that the relevant papers be
provided to the House and the War and Treasury Departments provided
voluminous records to the committee.
Unfortunately, not all congressional investigations are met with the
cooperation the first investigation received. Rather, sometimes
Congress and its committees must rely on another inherent power derived
from the Constitution to investigate effectively--the congressional
subpoena power.
As the Supreme Court has observed, although ``there is no
[constitutional] provision expressly investing either house with the
power to make investigations and exact testimony . . . the power of
inquiry--with process to enforce it--is an essential and appropriate
auxiliary to the legislative function. . . . Experience has taught that
mere requests for information often are unavailing . . . so some means
of compulsion are essential to obtain what is needed.''
That means of compulsion is often a subpoena issued by a
congressional committee backstopped by a civil action filed in federal
district court. In recent years, the House and its committees have
pursued two such civil actions, including one filed by this Committee,
to enforce compliance with congressional subpoenas.
The legislation we are considering today, the Congressional Subpoena
Compliance and Enforcement Act, codifies and strengthens the existing
civil enforcement mechanisms thereby reinforcing the powers granted
Congress in Article I of the Constitution. This legislation creates a
statutory framework for compliance with and enforcement of
congressional subpoenas through a few targeted changes to federal law.
First, the bill puts in place a statutory requirement that recipients
comply with congressional subpoenas. Second, the bill statutorily
requires subpoena recipients to provide a congressional committee with
a privilege log if they assert a legal privilege as a reason for
withholding subpoenaed materials. Finally, the bill provides that
congressional subpoena enforcement cases are to receive expedited
review in the federal courts and that a congressional committee may
request that a subpoena enforcement case be heard by a three-judge
panel of the district court, with direct appeal to the Supreme Court.
While it is true that some of what is addressed by the bill is
currently covered through negotiation with subpoena recipients and is
recognized in the precedents of courts in the D.C. Circuit, the current
statutory requirements related to compliance with and enforcement of a
committee subpoena are limited. Indeed, the existing civil subpoena
enforcement statute only covers the Senate and does not apply to Senate
subpoenas issued to the Executive Branch. It is time that we put in
place a statutorily created, expedited civil enforcement mechanism for
congressional subpoenas. Relying on the existing framework to enforce
congressional subpoenas has proved to be an inadequate means of
protecting congressional prerogatives.
I thank Mr. Issa for introducing this legislation and urge my
colleagues on both sides of the aisle to support it. This bill is a
necessary step to strengthen Congress's ability to exercise its Article
I legislative powers.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from California (Mr. Issa) that the House suspend the rules
and pass the bill, H.R. 4010, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
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