[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 136 Introduced in House (IH)]
<DOC>
118th CONGRESS
1st Session
H. RES. 136
Amending the Rules of the House of Representatives with respect to the
enforcement of committee subpoenas to executive branch officials, and
for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 17, 2023
Mr. Lieu (for himself and Ms. Dean of Pennsylvania) submitted the
following resolution; which was referred to the Committee on Rules
_______________________________________________________________________
RESOLUTION
Amending the Rules of the House of Representatives with respect to the
enforcement of committee subpoenas to executive branch officials, and
for other purposes.
Resolved,
SECTION 1. SHORT TITLE.
This resolution may be cited as the ``Congressional Inherent
Contempt Resolution of 2023''.
SEC. 2. ADDITIONAL SUBPOENA ENFORCEMENT POWER.
Rule XI of the Rules of the House of Representatives is amended by
adding at the end the following new clauses:
``Additional Subpoena Enforcement Power
``7.(a) Whenever any committee or subcommittee makes a written
request to any department or agency of the Government for the
attendance of named witnesses or the production of such books, records,
correspondence, memorandum, papers, documents, and electronic or
digital files, data or information, in any form, including any
electronic or digital files, data or information in any searchable
formats in which they are available to or can be produced by the
agency, as the committee or subcommittee considers necessary, a senior
responsible official shall either comply with that request or file
written objections within the time frame for response set forth in the
request.
``(b) If the senior responsible official files written objections
within the timeframe for response, the committee or subcommittee shall
seek to resolve these objections through negotiation and accommodation.
If a resolution cannot be reached, staff shall so certify to the chair
of the committee.
``(c) If the senior responsible official fails to file objections
or make available the designated witnesses or full production of
responsive records and information within the timeframe for response,
the chair of the committee may issue a subpoena to the senior
responsible official for any unproduced records or information as to
which no objection was filed, and to any designated witness to which no
objection was filed.
``(d) With respect to any portion of the written request for
documents and witnesses to which timely objection was made, a subpoena
to the senior responsible official and to designated witnesses, may be
issued, following conclusion of the negotiations referred to in
paragraph (b), by--
``(1) the chair, upon 48 hours notice to the ranking
member, unless the ranking member objects during that period;
or
``(2) a vote of the committee.
``(e) The senior responsible official and other witnesses to whom a
subpoena is issued have the right to be accompanied only by non-
government private counsel during all proceedings conducted pursuant to
this clause (even if the witness is a government official or employee).
The committee in taking testimony will follow the procedures for taking
depositions and resolving disputes over objections to questions that
are prescribed by the Committee on Rules for such testimonial
proceedings (see 165 Cong. Rec. H1216-17 (Jan. 25, 2019)).
``(f) If the senior responsible official files written objections
to a subpoena issued under paragraph (c) or (d) within the timeframe
for response, or the President personally and in writing asserts a
claim of executive privilege with respect to the records, information,
and witnesses at issue, the committee may hold a hearing to consider
these objections. The senior responsible official shall personally
attend this hearing but may not assert executive privilege on behalf of
the President, and the committee chair may grant an exception for good
cause shown.
``(g) If the committee overrules some or all of the objections
asserted, it may issue an order of compliance which states the grounds
for rejection of the objections, the date for compliance, and an
advisement of the legal consequences of a failure to comply. The senior
responsible official and subpoenaed witnesses shall comply with such
order within the timeframe for response. If prior to such time, the
President asserts a claim of executive privilege, it shall be made
personally and in writing, and will be considered by the committee with
all other timely objections. Witnesses may not assert a claim of
executive privilege in the absence of such an assertion by the
President.
``(h) On the failure of the senior responsible official or
subpoenaed witnesses to comply with the order, the committee shall meet
to assess whether the noncompliance rises to the level of a breach of
the constitutional privilege and duty of the House to be fully informed
in order to properly perform its legislative responsibilities without
undue obstruction and thereby warrants condemnation and punishment. If
so, the committee shall report a privileged resolution of contempt. The
accompanying report shall include a detailed history and nature of the
controversy and attempts at accommodation; the legal issues raised; the
legislative need for the information sought; the legal and practical
reasons for the determination that the objections were rejected; and
the recommended penalty under paragraph (j).
``(i) If the committee reports a resolution of contempt, it shall
be treated as a rule IX question of privilege of the House requiring
precedence over all other questions until resolved and promptly
scheduled for floor consideration. The chair of the committee shall
present the case for passage of the resolution. At the conclusion of
the allotted period for presentations, questions and debate, a vote on
passage of the resolution will be taken. If the vote is for passage, a
second vote will be taken on the committee's recommended penalty. A
proffer of an amendment to alter the recommended penalty is in order.
``(j)(1) The penalty for contempt recommended by a committee under
paragraph (h) and approved or amended by the House under paragraph (i)
may, as provided for in paragraphs (2) and (3), be either in the form
of a monetary penalty, detention, or both.
``(2)(A) If the recommended penalty as approved by the House is a
monetary penalty, the contemnor may be assessed by the House an initial
penalty of not more than $25,000 and total penalties of not more than
$100,000. The amount of the ultimate penalty depends on the timeliness
of the contemnor's compliance in providing information withheld. The
initial penalty of not more than $25,000 may be increased by the chair
of the committee involved by increments of not more than $25,000 after
a one-time waiting period of 10 calendar days from the initial penalty
until the $100,000 maximum is reached. The 10-day waiting period shall
only be observed after the first penalty. Upon expiration of the 10-day
waiting period, if the chair deems the measure of compliance by the
contemnor to be insufficient to satisfy the legislative needs of the
committee, the chair may, over a period of not more than fifteen days,
at his or her discretion, increase the penalty by increments of not
more than $25,000 until the maximum is reached. Upon expiration of the
10-day waiting period, the General Counsel is authorized to recover any
accrued penalties, but only if the contemnor has failed to comply with
the subpoena before the end of such 10-day period.
``(B) Nothing in this subparagraph shall be interpreted to
limit the ability of the House to impose additional legislative
punishments on the contemnor for noncompliance.
``(C) No appropriated funds, funds provided from any
accounts in the Treasury, funds derived from collection of
fees, or other Government funds shall be used to pay a monetary
penalty imposed by the House under this subparagraph.
``(D) No person, group, entity, organization, or
corporation may make payments to, reimburse or offer
remuneration of any kind to compensate a contemnor for, or
assist a contemnor in paying, any portion of a monetary penalty
imposed by the House. Nor shall any person, group, entity,
organization, or corporation be permitted to pay any monetary
penalties directly on behalf of a contemnor. The House may
regard such actions to compensate, reimburse or provide
remunerations or payments to a contemnor as an obstruction of
its investigative and information gathering prerogatives and
responsibilities and a contempt of the House.
``(3)(A) If the recommended penalty as passed by the House is
detention, the contemnor may be detained until the chair of the
committee involved gives notice that the subpoena has been complied
with or the sine die adjournment of the current Congress, whichever
occurs first.
``(B) The detention of the contemnor under this
subparagraph shall be carried out in accordance with
regulations issued by the Committee on Rules and printed in the
Congressional Record, including regulations to provide the
contemnor with adequate due process.
``(k) Nothing in this clause shall be interpreted to diminish the
inherent institutional self-protective authorities, methods and
practices of the House for enforcing committee subpoenas, nor shall
anything in this clause be interpreted to diminish the discretionary
power of any committee to determine the acceptability of any
constitutional or common law-based privilege asserted to justify
noncompliance with a congressional subpoena.
``(l) As used in this clause:
``(1) The term `senior responsible official' refers to an
executive branch official with control or custody over the
records or information or the subordinate officials or
employees that are sought and who is a civil officer subject to
removal from the office under article II, section 4, of the
Constitution, unless no such civil officer has control or
custody over the records or information sought.
``(2) The term `objections' includes an appropriate
privilege log, which shall describe with particularity the
records or information withheld and the basis for withholding.
The log shall be in such form as instructed by the committee
or, in the absence of such instruction, shall be in the form
that would be required by the rules and practice of the United
States District for the District of Columbia. Failure to file
an appropriate and timely privilege log shall be a basis for
overruling or disregarding any objection.
``Additional Subpoena Enforcement Power
``8.(a) Whenever any committee or subcommittee makes a written
request to any person for testimony or the production of such books,
records, correspondence, memorandum, papers, documents, and electronic
or digital files, data or information, in any form, including any
electronic or digital files, data or information in any searchable
formats in which they are available to or can be produced by that
person, as the committee or subcommittee considers necessary, such
person shall either comply with that request or file written objections
within the time frame for response set forth in the request.
``(b) If such person files written objections within the timeframe
for response, the committee or subcommittee shall seek to resolve these
objections through negotiation and accommodation. If a resolution
cannot be reached, staff shall so certify to the chair of the
committee.
``(c) If such person fails to file objections or provide testimony
or full production of responsive records and information within the
timeframe for response, the chair of the committee may issue a subpoena
to such person for any unproduced testimony or records or information
as to which no objection was filed.
``(d) With respect to any portion of the written request for
documents and testimony to which timely objection was made, a subpoena
may be issued, following conclusion of the negotiations referred to in
paragraph (b), by--
``(1) the chair, upon 48 hours notice to the ranking
member, unless the ranking member objects during that period;
or
``(2) a vote of the committee.
``(e) Any person to whom a subpoena is issued has the right to be
accompanied only by non-government private counsel during all
proceedings conducted pursuant to this clause. The committee in taking
testimony will follow the procedures for taking depositions and
resolving disputes over objections to questions that are prescribed by
the Committee on Rules for such testimonial proceedings (see 165 Cong.
Rec. H1216-17 (Jan. 25, 2019)).
``(f) If such person files written objections to a subpoena issued
under paragraph (c) or (d) within the timeframe for response, the
committee may hold a hearing to consider these objections. The person
shall personally attend this hearing, but the committee chair may grant
an exception for good cause shown.
``(g) If the committee overrules some or all of the objections
asserted, it may issue an order of compliance which states the grounds
for rejection of the objections, the date for compliance, and an
advisement of the legal consequences of a failure to comply. The person
shall comply with such order within the timeframe for response.
``(h) On the failure of the senior responsible official or
subpoenaed witnesses to comply with the order, the committee shall meet
to assess whether the noncompliance rises to the level of a breach of
the constitutional privilege and duty of the House to be fully informed
in order to properly perform its legislative responsibilities without
undue obstruction and thereby warrants condemnation and punishment. If
so, the committee shall report a privileged resolution of contempt. The
accompanying report shall include a detailed history and nature of the
controversy and attempts at accommodation; the legal issues raised; the
legislative need for the information sought; the legal and practical
reasons for the determination that the objections were rejected; and
the recommended penalty under paragraph (j).
``(i) If the committee reports a resolution of contempt, it shall
be treated as a rule IX question of privilege of the House requiring
precedence over all other questions until resolved and promptly
scheduled for floor consideration. The chair of the committee shall
present the case for passage of the resolution. At the conclusion of
the allotted period for presentations, questions and debate, a vote on
passage of the resolution will be taken. If the vote is for passage, a
second vote will be taken on the committee's recommended penalty. A
proffer of an amendment to alter the recommended penalty is in order.
``(j)(1) The penalty for contempt recommended by a committee under
paragraph (h) and approved or amended by the House under paragraph (i)
may, as provided for in paragraphs (2) and (3), be either in the form
of a monetary penalty, detention, or both.
``(2)(A) If the recommended penalty as approved by the House is a
monetary penalty, the contemnor may be assessed by the House an initial
penalty of not more than $25,000 and total penalties of not more than
$100,000. The amount of the ultimate penalty depends on the timeliness
of the contemnor's compliance in providing information withheld. The
initial penalty of not more than $25,000 may be increased by the chair
of the committee involved by increments of not more than $25,000 after
a one-time waiting period of 10 calendar days from the initial penalty
until the $100,000 maximum is reached. The 10-day waiting period shall
only be observed after the first penalty. Upon expiration of the 10-day
waiting period, if the chair deems the measure of compliance by the
contemnor to be insufficient to satisfy the legislative needs of the
committee, the chair may, over a period of not more than fifteen days,
at his or her discretion, increase the penalty by increments of not
more than $25,000 until the maximum is reached. Upon expiration of the
10-day waiting period, the General Counsel is authorized to recover any
accrued penalties, but only if the contemnor has failed to comply with
the subpoena before the end of such 10-day period.
``(B) Nothing in this subparagraph shall be interpreted to
limit the ability of the House to impose additional legislative
punishments on the contemnor for noncompliance.
``(C) No appropriated funds, funds provided from any
accounts in the Treasury, funds derived from collection of
fees, or other Government funds shall be used to pay a monetary
penalty imposed by the House under this subparagraph.
``(D) No person, group, entity, organization, or
corporation may make payments to, reimburse or offer
remuneration of any kind to compensate a contemnor for, or
assist a contemnor in paying, any portion of a monetary penalty
imposed by the House. Nor shall any person, group, entity,
organization, or corporation be permitted to pay any monetary
penalties directly on behalf of a contemnor. The House may
regard such actions to compensate, reimburse or provide
remunerations or payments to a contemnor as an obstruction of
its investigative and information gathering prerogatives and
responsibilities and a contempt of the House.
``(3)(A) If the recommended penalty as passed by the House is
detention, the contemnor may be detained until the chair of the
committee involved gives notice that the subpoena has been complied
with or the sine die adjournment of the current Congress, whichever
occurs first.
``(B) The detention of the contemnor under this
subparagraph shall be carried out in accordance with
regulations issued by the Committee on Rules and printed in the
Congressional Record, including regulations to provide the
contemnor with adequate due process.
``(k) Nothing in this clause shall be interpreted to diminish the
inherent institutional self-protective authorities, methods and
practices of the House for enforcing committee subpoenas, nor shall
anything in this clause be interpreted to diminish the discretionary
power of any committee to determine the acceptability of any
constitutional or common law-based privilege asserted to justify
noncompliance with a congressional subpoena.
``(l) As used in this clause:
``(1) The term `senior responsible official' refers to an
executive branch official with control or custody over the
records or information or the subordinate officials or
employees that are sought and who is a civil officer subject to
removal from the office under article II, section 4, of the
Constitution, unless no such civil officer has control or
custody over the records or information sought.
``(2) The term `objections' includes an appropriate
privilege log, which shall describe with particularity the
records or information withheld and the basis for withholding.
The log shall be in such form as instructed by the committee
or, in the absence of such instruction, shall be in the form
that would be required by the rules and practice of the United
States District for the District of Columbia. Failure to file
an appropriate and timely privilege log shall be a basis for
overruling or disregarding any objection.''.
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