Secrecy News

Enforcing Compliance with Congressional Subpoenas

The House Judiciary Committee said that it will meet this week to authorize a subpoena for release (to Congress) of the complete Mueller report, without redactions, as well as the supporting evidence gathered by the now-concluded Special Counsel investigation.

If a subpoena is issued, what happens then?

“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,” a new report from the Congressional Research Service explains. “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.”

However, “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.”

Today, Congress has a limited set of tools at its disposal to enforce subpoenas.

“Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas,” including criminal contempt citations and civil enforcement. “But these mechanisms do not always ensure congressional access to requested information,” CRS said.

To compel executive branch compliance with a subpoena, additional steps may be necessary.

“There would appear to be several ways in which Congress could alter its approach to enforcing committee subpoenas issued to executive branch officials,” the new CRS report said.

“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.”

In any case, “Congress’s ability to issue and enforce its own subpoenas is essential to the legislative function and an ‘indispensable ingredient of lawmaking’,” CRS said (quoting a 1975 US Supreme Court opinion). See Congressional Subpoenas: Enforcing Executive Branch Compliance, March 27, 2019.

*    *    *

Other noteworthy new publications from the Congressional Research Service include the following.

Congressional Participation in Litigation: Article III and Legislative Standing, updated March 28, 2019

Assessing NATO’s Value, updated March 28, 2019

FY2020 Defense Budget Request: An OverviewCRS Insight, updated March 26, 2019

Defense Primer: Military Use of the Electromagnetic SpectrumCRS In Focus, March 27, 2019

Defense Primer: U.S. Policy on Lethal Autonomous Weapon SystemsCRS In Focus, March 27, 2019

Iraq: Issues in the 116th Congress, March 26, 2019

Free Speech and the Regulation of Social Media Content, March 27, 2019