H. Rept. 115-360 - CONGRESSIONAL SUBPOENA COMPLIANCE AND ENFORCEMENT ACT OF 2017115th Congress (2017-2018)
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115th Congress } { REPORT
HOUSE OF REPRESENTATIVES
1st Session } { 115-360
======================================================================
CONGRESSIONAL SUBPOENA COMPLIANCE AND ENFORCEMENT ACT OF 2017
_______
October 23, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 4010]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred 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,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 3
Hearings......................................................... 7
Committee Consideration.......................................... 7
Committee Votes.................................................. 7
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Duplication of Federal Programs.................................. 10
Disclosure of Directed Rule Makings.............................. 10
Performance Goals and Objectives................................. 10
Advisory on Earmarks............................................. 10
Section-by-Section Analysis...................................... 10
Changes in Existing Law Made by the Bill, as Reported............ 11
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
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
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
privilege or other legal basis for noncompliance with a congressional
subpoena.
Purpose and Summary
The Congressional Subpoena Compliance and Enforcement Act
enhances compliance with subpoenas issued by congressional
committees and strengthens and clarifies the ability of the
House and Senate to enforce subpoenas issued by their
respective committees. It does this in two principal ways.
First, it requires recipients of congressional committee
subpoenas to comply with such subpoenas and, to the extent that
a legal privilege may apply to subpoenaed material, the bill
requires the production of a privilege log. Second, the bill
provides for expedited judicial enforcement of congressional
committee subpoenas in cases in which the House or the Senate
authorize a civil action to enforce a subpoena. By addressing
these matters related to congressional subpoenas, this
legislation helps to reinforce Congress's Article I powers.
Background and Need for the Legislation
A. CONGRESSIONAL SUBPOENA POWER
A congressional committee's power to investigate and issue
subpoenas in furtherance of an investigation derives from the
legislative authority granted to Congress in Article I of the
Constitution. Although ``there is no [constitutional] provision
expressly investing either house with 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.''\1\ Indeed, ``the
Necessary and Proper Clause gives rise to Congress's implied
right to issue and enforce subpoenas''\2\ as Congress must have
the ``auxiliary powers as are necessary and appropriate to [the
legislative] end.''\3\
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\1\McGrain v. Daugherty, 273 U.S. 135, 161, 174 (1927).
\2\Committee on Judiciary, U.S. House of Representatives v. Miers,
558 F.Supp.2d 53, 84 (D.D.C. 2008).
\3\McGrain, 273 U.S. at 175.
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As the Supreme Court reasoned in McGrain v. Daugherty,
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 do possess it. Experience has taught that mere
requests for such information often are unavailing, and
also that information which is volunteered is not
always accurate or complete; so some means of
compulsion are essential to obtain what is needed. All
this was true before and when the Constitution was
framed and adopted. In that period the power of
inquiry--with enforcing process--was regarded and
employed as a necessary and appropriate attribute of
the power to legislate--indeed, was treated as inhering
in it. Thus there is ample warrant for thinking, as we
do, that the constitutional provisions which commit the
legislative function to the two houses are intended to
include this attribute to the end that the function may
be effectively exercised.\4\
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\4\Id. at 175.
In other words, as the district court observed in House
Judiciary Committee v. Miers, ``there can be no question that
Congress has a right--derived from its Article I legislative
function--to issue and enforce subpoenas, and a corresponding
right to the information that is the subject of such
subpoenas.''\5\ Several Supreme Court decisions confirm the
view of the court in Miers. In Eastland v. U.S. Servicemen's
Fund, the Court held that ``[t]he power to investigate and to
do so through compulsory process plainly falls within [the]
definition [of Congress's legislative function].''\6\ And, in
Barenblatt v. United States, the Court stated that the ``scope
of the power of inquiry . . . is as penetrating and far-
reaching as the potential power to enact and appropriate under
the Constitution.''\7\ The Court in Watkins v. United States
reasoned that ``[i]t is unquestionably the duty of all citizens
to cooperate with the Congress in its efforts to obtain the
facts needed for intelligent legislative action. It is their
unremitting obligation to respond to subpoenas, to respect the
dignity of the Congress and its committees, and to testify
fully with respect to matters within the province of proper
investigations.''\8\
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\5\Miers, 558 F.Supp.2d at 84.
\6\421 U.S. 491, 504-05 (1975).
\7\360 U.S. 109, 111 (1959).
\8\354 U.S. 178, 187-88 (1957).
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In short, the congressional subpoena power is ``a
fundamental underpinning of Congress's critical constitutional
oversight, investigative, and legislative functions.''\9\ It is
inherent in the Constitution that Congress has the authority to
inquire into all matters that potentially may be the subject of
legislation. This authority, however, ``would be quite
meaningless absent `some means of compulsion . . . to obtain
what is needed.' Accordingly, Congress has the power, also
inherent in the Constitution, to issue investigatory subpoenas
and punish witnesses who fail to comply therewith.''\10\
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\9\Christopher F. Corr & Gregory J. Spak, The Congressional
Subpoena: Power, Limitations and Witness Protection, 6 BYU J. Pub. L.
37 (1992).
\10\Stanley M. Brand and Sean Connelly, Constitutional
Confrontations: Preserving a Prompt and Orderly Means by Which Congress
May Enforce Investigative Demands Against Executive Branch Officials,
36 Cath. U. L. Rev. 71 (1986).
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B. ENFORCEMENT OF CONGRESSIONAL SUBPOENAS
Congress has three formal methods through which it can seek
to enforce compliance with a congressional subpoena. First, the
inherent contempt power permits Congress to rely on its own
constitutional authority to detain and imprison a subpoena
recipient who fails to comply with congressional demands.
``Under the inherent contempt power the individual is brought
before the House or Senate by the Sergeant-at-Arms, tried at
the bar of the body, and can be imprisoned or detained in the
Capitol or perhaps elsewhere.''\11\ Second, the criminal
contempt statute permits Congress to certify a contempt
citation to the appropriate U.S. attorney for criminal
prosecution.\12\ It is a misdemeanor criminal offense,
punishable by a fine of up to $1,000 and imprisonment of up to
one year for a witness under congressional subpoena to fail to
appear or to withhold testimony or documents. The procedural
mechanism for initiating the criminal contempt provision
provides that the President of the Senate or Speaker of the
House must certify the fact of contempt ``to the appropriate
United States attorney, whose duty it shall be to bring the
matter before the grand jury for its action.''\13\ The
Department of Justice, however, has asserted that it retains
the prosecutorial discretion not to act on a contempt referral
despite the mandatory language of the contempt statute.\14\
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\11\Todd Garvey, Cong. Research Serv., RL34097, Congress's Contempt
Power and the Enforcement of Congressional Subpoenas: Law, History,
Practice, and Procedure 10 (2017).
\12\2 U.S.C. Sec. Sec. 192, 194.
\13\2 U.S.C. Sec. 194.
\14\See, e.g., Prosecution for Contempt of Congress of an Executive
Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op.
O.L.C. 101 (1984).
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Finally, Congress may seek judicial enforcement of a
congressional subpoena. In general, under this procedure, a
single house of Congress authorizes its committee that issued
the subpoena to file suit in federal district court seeking a
declaration that the recipient is legally obligated to comply
with the subpoena. In 1978, Congress passed the Ethics in
Government Act, which, among other things, grants the Senate
and its committees the authority to seek civil enforcement of
its subpoenas from the U.S. District Court for the District of
Columbia.\15\ This Act, however, specifically does not apply to
subpoenas of federal government officials and does not apply to
actions brought by the House of Representatives. While the
House cannot pursue actions under the Senate's civil
enforcement statute, past precedent and the decision of the
U.S. District Court for the District of Columbia in Miers
indicate that the House may authorize a committee to seek a
civil enforcement action to force compliance with a subpoena.
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\15\28 U.S.C. Sec. 1365; 2 U.S.C. Sec. 288d.
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C. THE CONGRESSIONAL SUBPOENA COMPLIANCE AND ENFORCEMENT ACT
In light of Miers and other decisions, it is clear that
Congress does not require an explicit statutory authority in
order to enforce its subpoenas. Nevertheless, recent litigation
has shown that there are certain practical barriers to the
enforcement of subpoenas through declaratory judgment actions.
First, the D.C. Circuit and the Supreme Court have not issued
rulings that squarely and directly affirm the use of the
Declaratory Judgment Act to enforce congressional subpoenas.
Second, congressional subpoena enforcement actions brought in
federal court under the current framework do not receive
expedited judicial review and, therefore, significant time may
be required to achieve a final, enforceable ruling in an
enforcement case. Finally, the current non-statutory framework
does not adequately address the assertion of legal privileges
and the production of privilege logs in instances in which
legal privileges are asserted in response to congressional
subpoenas.
The Congressional Subpoena Compliance and Enforcement Act
addresses all of these issues and, in so doing, strengthens
Congress's ability to enforce the subpoenas issued by its
committees and subcommittees, thereby reinforcing the powers
granted Congress in Article I of the Constitution. The
legislation creates a statutory framework for compliance with
and enforcement of congressional subpoenas through a few
targeted changes to federal law. And it does so without
negating any of Congress's existing powers to require
compliance with its subpoenas.
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. Third, the bill provides that failure to produce a
privilege log in a timely manner may result in waiver of a
privilege by the court and, in the case of a head of a
government agency or a component thereof, that willful failure
to comply with a subpoena may result in a court imposed
monetary penalty. Finally, the bill establishes that a
committee may seek expedited court review by a three-judge
panel of the district court, with direct appeal to the Supreme
Court, in any case involving the enforcement of a congressional
subpoena.
Current statutory requirements related to compliance with
and enforcement of a committee subpoena are also 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 Congress 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.
Although this bill is important, it should not be seen as
legislation that will open the floodgates to congressional
subpoena enforcement litigation. As the district court observed
in Miers, allowing civil enforcement of congressional
subpoenas,
[would not] overwhelm the federal courts and paralyze
the accommodations process between the political
branches. Prior cases, particularly United States v.
Nixon, AT&T I, and Senate Select Comm. III, have
already paved the way for claims of this type.
Notwithstanding that fact, there have been very few
lawsuits brought in federal court raising this issue--
certainly no rush to the courthouse by either political
branch is evident. The process of negotiation between
the executive and legislative branches has functioned
as always. Indeed, there are powerful reasons to
believe that most disputes of this nature will continue
to be resolved through the informal processes of
negotiation and accommodation.\16\
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\16\558 F.Supp.2d at 96.
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Hearings
The Committee on the Judiciary held no hearings on H.R.
4010.
Committee Consideration
On October 12, 2017, the Committee met in open session and
ordered the bill H.R. 4010 favorably reported, with an
amendment, by a roll call vote of 26 to 0, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 4010.
Motion to report H.R. 4010, as amended, favorably to the
House. Approved by a roll call vote of 26 to 0.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Rutherford (FL)............................
Ms. Handel (GA)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
Total...................................... 26 0
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to H.R. 4010, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974:
Congressional Budget Office,
Washington, DC, October 20, 2017.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4010, the
Congressional Subpoena Compliance and Enforcement Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Janani
Shankaran, who can be reached at 226-2860.
Sincerely,
Keith Hall,
Director.
Enclosure.
cc:
Honorable John Conyers, Jr.,
Ranking Member
H.R. 4010--Congressional Subpoena Compliance and Enforcement Act of
2017
As ordered reported by the House Committee on the Judiciary on October
12, 2017
Under current law, the Congress may file a civil action and
seek judgment from a federal court that a recipient of a
subpoena is legally obligated to comply with that subpoena.
H.R. 4010 would modify those procedures with an aim to enhance
compliance with and enforce Congressional subpoenas.
H.R. 4010 would require recipients of subpoenas to provide
information on the nature of withheld records. The bill also
would require the courts to expedite civil actions related to
compliance with Congressional subpoenas. CBO expects that the
bill's provisions could lead to a small increase in the
administrative costs of federal agencies receiving subpoenas
and the federal Judiciary. However, based on the small number
of expected cases, CBO estimates that those costs would not be
significant.
The bill's provisions would extend to agencies that are not
funded through annual appropriations (such as the Tennessee
Valley Authority). The bill also would authorize the courts to
impose monetary penalties, which are recorded in the budget as
revenues, against any government official found to have
willfully failed to comply with a subpoena. Because we expect
the number of such cases to be small, CBO estimates that
increased revenues under the bill would be insignificant for
each year. Because enacting H.R. 4010 could affect direct
spending and revenues, pay-as-you-go procedures apply.
CBO estimates that enacting H.R. 4010 would not
significantly increase net direct spending or on-budget
deficits in any of the four consecutive 10-year periods
beginning in 2028.
H.R. 4010 contains no intergovernmental or private sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Janani
Shankaran. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 4010 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee finds that H.R. 4010 contains no directed
rule making within the meaning of 5 U.S.C. 551.
Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, the Committee states that H.R. 4010
enhances compliance with subpoenas issued by congressional
committees and strengthens and clarifies the ability of the
House and Senate to enforce subpoenas issued by their
respective committees.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 4010 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short title
This section sets forth the short title of the bill as the
``Congressional Subpoena Compliance and Enforcement Act of
2017.''
Sec. 2. Enforcement of congressional subpoenas
This section amends title 28, United States Code, to put in
place statutory procedures for the civil enforcement of
congressional subpoenas. First, the section creates special
rules for cases involving congressional subpoenas. These
special rules require congressional subpoena enforcement
actions filed pursuant to the newly created 28 U.S.C.
Sec. 1365a to be brought in federal district court, mandate
that the federal courts expedite to the greatest extent
possible such cases, and provide that the congressional entity
bringing a civil action may request in its initial pleading
that the action be heard by a three-judge panel of a district
court with direct appeal to the U.S. Supreme Court. Second, the
section provides that a court may impose a monetary penalty on
the head of a government agency or a component thereof who the
court determines willfully failed to comply with a
congressional subpoena and that any such penalty shall not be
paid with federal taxpayer dollars. Third, it allows a court to
reject the assertion of a privilege or other ground for non-
compliance with a congressional subpoena if the court finds
that the subpoena recipient failed to timely comply with the
requirement set forth in section 3 of the bill that a privilege
log be produced. Finally, the section provides a broad
definition of the term government agency to include, among
others, executive branch and independent federal agencies.
Sec. 3. Compliance with congressional subpoenas
This section creates a new section in the Revised Statutes
of the United States to place certain requirements on the
recipients of subpoenas issued by congressional committees and
subcommittees. First, it establishes that a recipient of a
congressional subpoena shall appear and testify or produce
records consistent with the subpoena and the requirements of
the section. Second, it requires a subpoena recipient to
provide a log that makes an express assertion and description
of the legal basis asserted for withholding the record along
with additional specified details regarding a withheld record.
The section also contains requirements regarding missing
records and the provision of electronic records.
Sec. 4. Rule of construction
This section contains a rule of construction establishing
that nothing in the bill should be interpreted to diminish any
of Congress's existing authorities, such as inherent contempt
of Congress, to enforce compliance with its subpoenas. The rule
of construction also makes clear that the provisions in the
bill addressing legal privileges should not be interpreted as
congressional acceptance of any privilege or other legal basis
for noncompliance with a congressional subpoena.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 28, UNITED STATES CODE
* * * * * * *
PART IV--JURISDICTION AND VENUE
* * * * * * *
CHAPTER 85--DISTRICT COURTS; JURISDICTION
Sec.
1330. Actions against foreign states.
* * * * * * *
1365. Senate actions.
1365a. Congressional actions against subpoena recipients.
* * * * * * *
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.
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REVISED STATUTES OF THE UNITED STATES
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TITLE II. THE CONGRESS
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CHAPTER SEVEN. CONGRESSIONAL INVESTIGATIONS
Sec.
101. Oaths to witnesses, by whom administered.
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105. Response to congressional subpoenas.
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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 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.
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