By Morton Rosenberg
The House of Representatives’ recent passage of the Congressional Subpoena Compliance and Enforcement Act of 2017 (H.R. 4010), whatever its intention, effectively signals that Congress has capitulated to the executive branch’s claim that neither the House nor the Senate can exercise its constitutionally-based prerogative of self-protection through the processes of inherent and criminal contempt. Executive-legislative disputes over privilege are not legal battles between political actors but rather political battles with legal underpinnings. By shifting resolution of inter-branch privilege disputes to the courts, the Act will further undermine Congress’ ability to maintain its place as a co-equal branch in our constitutional scheme.
The Compliance Act: A Response to Executive Intransigence
On October 11, 2017, Rep. Darrell Issa, R-Ca., introduced H.R. 4010, the “Congressional Subpoena Compliance and Enforcement Act of 2017” (Compliance Act), which was assigned to the House Judiciary Committee. The following day, without any public hearing or consideration, the bill was reported out of the committee by a vote of 26 to 0. On October 23, the House passed the bill by a voice vote and sent it to the Senate for consideration.[i]
The bill attempts to address, both legally and practically, current confusion that ostensibly enables executive branch officials and employees to thwart timely enforcement of legitimate subpoenas issued by congressional committees. The executive branch has triggered this state of affairs by claiming the historically- and constitutionally-recognized mechanisms of legislative institutional self-preservation – criminal and inherent contempt of Congress proceedings – are inapplicable to executive actors.
So far, no similar legislation has been introduced in the Senate.
In 1975, oversight committees, resting on over 150 years of historical practice and judicial recognition of the legislature’s inherent constitutional authority to protect itself from non-member assaults on its prerogatives, revived the prevailing threat that a refusal to comply with a congressional subpoena could result in a citation for criminal contempt of Congress or a trial at the bar of one of the congressional houses, either of which could result in fines or imprisonment. There is little doubt that such threats were effective, at least until 2002. In particular, between 1975 and 1998, there were 10 votes to hold cabinet-level officials in contempt. All resulted in complete or substantial compliance with the information demands in question without proceeding to trial. In fact, the threat those instances established was so credible until 2002 that even the mention of a subpoena was often sufficient to move an agency to accommodate Congress’ wishes. The last such instance was the failed presidential claim of privilege during House Oversight Committee Chairman Dan Burton’s 2001-2002 investigation of the two decades of informant corruption in the FBI’s Boston regional office. Indeed, this was a bipartisan effort wherein a contempt vote was a virtual certainty if executive branch officials had not acceded to congressional demands.[ii]
In apparent acquiescence, congressional leadership and committees have presumed their only recourse is to seek enforcement through civil litigation in federal court. Although the courts upheld the authority of the House to initiate such litigation by simple resolution in Committee on the Judiciary v. Miers,[iii] the stratagem has resulted in lengthy, debilitating delays that undermine timely committee oversight of the executive branch.
The investigation and litigation in the Miers foray spanned more than two years, ultimately resulting in a ruling that the president’s invocation of privilege did not extend a cloak of absolute immunity to officials. The government appealed the ruling but, due to a change in administration, the case was settled in early 2009 with an inconclusive resolution that appeared unlikely to deter similar executive behavior. Later events shortly confirmed this prediction.
Another case involving executive defiance of congressional subpoenas, Committee on Oversight and Government Reform v. Sessions (the “Fast and Furious” case), has been under committee investigation and subsequent litigation for seven years. And yet again, because of an administration change, the appeal has been put on an indefinite stay.[iv]
In its initial decision on the matter, the district court judge ruled that congressional committees must recognize agency claims of deliberative process privilege.[v] That ruling contradicts the historical practice of treating such claims as founded on common law precepts, which are not binding on the legislature and are subject to acceptance at the sole discretion of a committee.[vi] Though the government abandoned its claim of presidential privilege, the court discerned a “constitutional dimension” to the presidential communications privilege and required committee consideration of the claims, thereby affording the agency the opportunity to challenge the committee’s demands.
This has had the effect of shifting the burden of proof and action from the witness in question to the requesting committee. Congressional acceptance of the executive’s stance that Congress cannot use its contempt powers has essentially mooted what were once credible threats against executive officials: a contempt-of-Congress citation and criminal proceedings. As a consequence, agencies have generally become reluctant to comply with committee information demands in a timely and complete manner. Indeed, there is little legal incentive to do so now that agencies understand refusal will require committees to seek court enforcement of their demands, which they are wont to do.[vii] And, of late, agencies have been actively encouraged to engage in such obstructive conduct.[viii]
Why the Compliance Act is a mistake
The proposed Compliance Act seeks to remedy the above-identified problems with subpoena enforcement by tweaking the current litigation model. It provides an express statutory basis for one house or committee of Congress to authorize civil enforcement actions, thus confirming the rulings to that effect in Miers and Fast and Furious.[ix] It adjures all courts dealing with such civil enforcement suits to expedite their consideration and allows the congressional plaintiff to request that it be heard by a three-judge court whose determination can only be reviewed by direct appeal to the Supreme Court.[x] The trial court may impose a monetary penalty on a party found in noncompliance, which cannot be paid with public funds.[xi] If a trial court finds that a subpoenaed party has failed to provide a privilege log – as required and prescribed in new Section 105 – “in a timely manner,” the court must determine that any privilege or alleged ground for noncompliance has been waived. Timeliness is to be determined by the court.[xii]
Finally, in perhaps its most significant provision, the Compliance Act appears to give a statutory imprimatur to committees’ historic practice of making the initial discretionary and binding determinations of whether to accept “non-constitutional” claims of privilege:
Section 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.
This provision would appear to be an uncertain attempt to address, and perhaps reject, the Fast and Furious court’s detection of a constitutional aura in the common law deliberative-process privilege which, by implication, could also be found in other common law privileges by more generous courts. Clear explanatory language of congressional intent in the legislative history could have clarified the issue and thereby repaired the damage wrought by the Fast and Furious ruling. But none is to be found.[xiii] The question remains, however, whether this provision alone would warrant validation and continuation of the civil enforcement litigation model as the most effective means of preserving subpoena enforcement. Since there are non-statutory means to accomplish that goal, the answer is unequivocally “no.”
In short, the Compliance Act is based on a faulty premise and will further undermine Congress’ ability to maintain its place as a co-equal branch in our constitutional scheme. By shifting resolution of inter-branch privilege disputes to the courts, the Act gives the judicial branch a role it has consistently eschewed, and for good reason: The courts have understood that executive-legislative disputes over privilege are not legal battles between political actors but rather political battles with legal underpinnings. These battles are to be fought and resolved internally by the political actors without resort to the courts except in rare and exceptional situations, and even then with great caution.
The proposed legislation reflects the view that Congress is no longer capable of engaging in effective oversight of the executive. This perception comes from, among other things, the dismissal of “precedents” of successful committee inquiries and a failure to understand that those successes were based on the Supreme Court’s consistent recognition that, in order to perform its fundamental constitutional responsibilities, Congress can and must be able to acquire information from the president and agencies of the executive branch. The structure of checks and balances rests on the principle that Congress has the right to know everything the executive is doing, including its policy choices and their outcomes. Rulings of the High Court and lower federal courts have rested their approvals of congressional actions establishing criminal and inherent contempt processes, as well as denials of witness’ rights during congressional hearings, the assumption of the right of each house to initially determine when and how it will respond to executive subpoenas and search warrants, and to determine when the Senate is in recess for appointment purposes, on the exercise of its constitutionally-recognized internal rulemaking authority. The seemingly casual congressional acceptance that the old model of inquiry is now outmoded or will not work in the face of a recalcitrant, determined chief executive is unwarranted and self-defeating.
The model of successful oversight that prevailed from the mid-1970’s until 2002 is not outdated. That model was characterized by an institutional awareness of the need to maintain the integrity of congressional prerogatives by aggressive and continuous oversight of the executive, to foster a sense of institution, and to sustain institutional memory through lengthy tenures of chairs and key staff. It was buttressed by the credible threat of meaningful consequences for any executive refusal to provide necessary information in a timely manner.
The eminent congressional scholar, Professor Josh Chafetz, has concisely encapsulated the damage Congress brought upon itself by its resorting to the courts to sustain its legislative prerogatives:
In short, once Congress has turned to the courts to enforce its contempt finding, the Administration can likely keep the congressional house tied up in litigation until that Administration is out of office, regardless of how early in the Administration’s tenure the issue arises. And if the Administration is lucky, intervening congressional elections will usher in legislators more inclined to simply let the matter drop. To put it succinctly, Congress cannot win in court— even if the courts ultimately side with it over the executive branch, the Administration can ensure that that those final rulings come far too late to allow Congress effectively to oversee executive branch operations …. But Congress’s self-inflicted wound may well go deeper. In seeking the aid of the judiciary, the House was announcing to the world its belief in its own impotence. The House had already declared that Miers and Bolten were in contempt; it then asked a district court judge to issue a declaratory judgment that Miers and Bolten were in contempt—in essence, suggesting that, while the executive may not listen to a house of Congress, of course it would listen to a district court judge …. [T]he House, in choosing to invoke the court’s authority rather than its own, has played right into this perception. It has reinforced the idea that the judiciary is the domain of reasoned, principled judgments that must be respected, while congressional action in defense of its powers is “unseemly.”[xiv]
More recently, Sen. Charles Grassley, R-Iowa, expressed similar distress in testimony before the House Committee on Oversight and Government Reform. His testimony concerned the failed investigative oversight process respecting the Justice Department’s cover-up of the Drug Enforcement Agency’s Fast and Furious gun-running operation that had already consumed six-and-a-half years of inquiry and litigation.[xv] Grassley, whose letter of inquiry in 2011 triggered the House Committee’s investigation, outlined the Justice Department’s unprecedented obstruction of legitimate congressional oversight and criticized the flawed reasoning behind the court ruling which, though it gave Congress access to long-withheld relevant documents, provided a misguided legal shield for agencies in future investigations:
Now, despite the court’s order to the Department to produce documents that were admittedly not privileged, the Judge’s opinion as a whole is problematic …. The judge erroneously concluded that certain of the Department’s underlying privilege claims – although waived – were valid. The judge gave the House a victory in practice, but gave the Department a victory on the principle.
Grassley called for a bipartisan effort “to modernize the rules of engagement in congressional oversight,” including “a package of rules and legislative changes so that responders to congressional inquiries cannot rely on phony privilege claims and delay tactics.” Grassley’s reference to greater reliance on internal institutional rulemaking powers, and a greater distancing from uncertain judicial support, adds to the concern about value and efficacy of the proposed Compliance Act. Several options are readily available to achieve the goals reflected in the Compliance Act without full reliance on court enforcement.
For example, the executive’s thus far successful blockage of criminal contempt citations can be blunted if Congress created a mechanism based on the model of the now-expired Independent Counsel Act. This would allow the appointment of a special advocate by a judge or panel of a court to prosecute contempts of Congress by executive branch officials should the executive prohibit a U.S. attorney from presenting a citation to a grand jury. It may be noted that during the Teapot Dome investigations, the appointed independent counsels successfully brought several such contempt citations on behalf of the Senate. During the 111th Congress, Rep. Brad Miller, D-N.C., introduced the “Special Criminal Contempt of Congress Procedures Act of 2009,”[xvi] which may serve as a model for such legislation. That bill contains limitations on the length, cost and scope of the appointment that arguably allay the concerns raised against the now-expired version. It is, however, highly unlikely any president would sign such legislation. Independent counsels, and now special counsels, are presidential anathemas. It is also questionable whether the president would sign the Compliance Act in its present form.
Another alternative is to make inherent contempt more politically palatable, less “unseemly,” and more expeditious. This could be accomplished without the passage of legislation by each house exercising its rulemaking powers. Such rules could authorize a special committee to review the contempt vote, to subpoena the contemnor and call other witnesses if necessary, and to report to the floor its findings and recommendations. The trial on the floor would allow the contemnor the necessary due process rights before the chamber proceeds to a vote on whether to convict. Upon conviction only fines, not incarceration, could be imposed. Since there would be no arrest, detention or incarceration, no habeus corpus proceeding would be available. The monetary penalty imposed, which might be graduated over the time it takes the contemnor to comply, would automatically be taken from the contemnor’s pay. Thus all actions would be in-house. Supreme Court case law supports the constitutionality of such an inherent contempt scheme.[xvii] The executive would of course challenge its constitutionality, but once approved, the rule would be a powerful tool of leverage in inter-branch information disputes.
Finally, it is critical that Congress challenge the Justice Department’s faulty constitutional and historical bases for denying the authority of either house to protect its institutional integrity through its inherent and criminal contempt processes. The Supreme Court in 1821 recognized the necessity of each house having the power to punish individuals for contempt because the failure to do so would “expose [Congress] to every indignity and interruption, that rudeness, caprice, or even conspiracy, may mediate against it.”[xviii] In the spirit of that same self-protective authority, Congress in 1857 enacted a criminal contempt process to ensure that egregious acts of obstruction could be punished beyond the time allowed for inherent contempt.[xix] The legislative history of the 1857 Act made it clear the criminal process was to be complementary to the inherent contempt power and that both powers were intended to apply to executive branch officials.[xx] That legislative history also made it certain that all common law privileges were applicable only at the sole discretion of committees. The Supreme Court has held that the inherent and criminal proceedings may be both used against a contemnor simultaneously or sequentially.[xxi]
Both options must be available to investigating committees. In the past, the credible threat that either or both might be used provided sufficient, but not overbearing, leverage to convince the executive to come to the negotiating table. This occurred, most often, well before a vote of contempt by a full chamber. If such practice were properly used today, it stands to reason that, once again, agency heads would rarely agree to endure the potential risk and personal cost of a public trial that could end in a hefty fine, possible imprisonment and/or fine, merely for the sake of protecting presidential secrecy. Any revelations made as a result would not cripple or endanger the presidency any more now than they have in the past.[xxii]
The proposed Compliance Act is counterproductive to any serious effort to retrieve Congress’ oversight prerogatives. In fact, Congress does not need to pass a law empowering committees to reject claims of common law privileges, to require privilege logs to support privilege claims, or to impose fines for contemptuous conduct. If historical practice and judicial recognition are insufficient to grant committees this authority, the legislature has the internal rulemaking authority to enact such rules.
Past statutes that have directed “expedited” attention to particular classes of cases have proven ineffective in accelerating resolutions and have often been repealed.[xxiii] Some cases are simply not amenable to expedition. This would likely be true for complex committee demands for records for which a variety of claims of privilege – constitutional, non-constitutional, statutory and otherwise – are made. During the Fast and Furious litigation, for instance, the Justice Department finally disgorged more than 10,000 documents originally withheld, totaling more than 64,000 pages, which took a special master over a year to pore through and address. As indicated, the problem with the Compliance Act is not whether its fixes to the subpoena civil enforcement process are adequate; the problem is the very existence of a civil enforcement process itself.
The Miers and Fast and Furious litigations have plainly demonstrated that the Justice Department’s strategy of forcing subpoena enforcement into the courts is crippling Congress’ essential information-gathering authority. This obstructs the branch’s core legislative functions. The uncertainty over whether committees can impose meaningful consequences for deliberate delays, or outright refusals to comply, has already fostered an environment of agency slow-walking and assertions of non-constitutional privilege claims. Timely oversight in such circumstances is inevitably stymied, and the long-term costs to the integrity of our constitutional institutions are incalculable. A continued posture of acquiescence will do no more than encourage further executive usurpations. The failure to mount an immediate constitutional challenge represents an abdication of Congress’ vested responsibilities.
Morton Rosenberg was a specialist in American public law with the American Law Division of the Congressional Research Service (CRS) for more than 35 years. Among his areas of expertise at CRS were the problems raised by the interface of Congress and the executive, particularly with respect to congressional oversight of the executive branch. Mort was called on by committees to advise and assist on a number of significant inquiries, including Watergate, Iran-Contra, Rocky Flats, the organizational breakdown of the Justice Department’s Environmental Crimes Program, Whitewater, Travelgate, Filegate, campaign fundraising during the 1996 election, the Clinton impeachment proceeding in the House, corruption in the FBI’s Boston Regional Office and the removal and replacement of nine U.S. attorneys in 2006.
[i] The floor discussion was perfunctory. See 163 Cong. Rec. H8059–61 (Oct. 23, 2017). The accompanying committee report, issued that same day, is neither more enlightening nor persuasive respecting its goals or efficacy, as discussed below. See H. Rep. No. 115-360 115th Cong., 1st Sess. (Oct. 23, 2017).
[ii] See Alissa M. Dolan, The House Committee on Government Reform Investigation of the FBI’s Use of Confidential Informants, The Constitution Project, pp. 265–73. https://constitutionproject.org/wp-content/uploads/2017/05/FBIinformants.pdf/.
[iii] See United States District Court for the District of Columbia, Committee on the Judiciary, United States House of Representatives v. Miers, 31 July 2008, Findlaw. http://caselaw.findlaw.com/us-dc-circuit/1066623.html.
[iv] Docket No. 16-5708, D.C. Circuit. The docket summary reflects that on August 18, 2017 the court granted a joint motion by the contending parties to hold the case in indefinite abeyance to allow for settlement negotiations and ordered the parties to provide the court monthly reports on the status of those negotiations, the last of which, announcing no progress, was filed on December 20, 2017.
[v] United States District Court for the District of Columbia. Committee on Oversight and Government Reform v. Lynch, 19 Jan. 2016, Justia. https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2012cv01332/155625/117/.
[vi] This latter understanding is also reflected in extant case law.
[vii] The background, causes and effects of the Miers and Fast and Furious investigations and litigations are detailed in Morton Rosenberg, When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry, The Constitution Project, pp. 3–4, 23–30, 44–45, 70–73, July 2017, https://constitutionproject.org/wp-content/uploads/2017/05/WhenCongressComesCalling.pdf/; and Morton Rosenberg, Reasserting Congress’ Investigative Authority, Policy Study No. 103, R Street Institute, 20 July 2017. http://www.rstreet.org/policy-study/reasserting-congress-investigative-authority/.
[viii] See, for instance, Majority Staff, Joint Congressional Investigative Report into the Source of Funding for the ACA’s Cost Sharing Reduction Program, House Committee on Energy and Commerce and House Committee on Ways and Means, July 2016, https://waysandmeans.house.gov/wp-content/uploads/2016/07/20160707Joint_Congressional_Investigative_Report-2.pdf; and the December 2016 Addendum, detailing the concerted obstructive tactics utilized by the Treasury Department, the Internal Revenue Service, the Health and Human Services Department and the Office of Management and Budget over a two-year investigation to withhold documents and limit testimony of agency witnesses regarding the knowledge that there was no lawful funding authority for the Affordable Care Act’s cost sharing program. See also a letter from Acting Assistant Attorney General Curtis E. Gannon, Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, Office of Legal Counsel, May 1 2017, https://www.justice.gov/olc/file/966326/download/, advising that members of Congress – including ranking minority members of committees – who request information from the executive branch “do not trigger any obligation to accommodate congressional needs and are not legally enforceable through a subpoena or contempt proceedings.” Finally, see Danielle Ivory and Robert Faturechi, “Secrecy and Suspicion Surround Trump’s Deregulation Teams,” New York Times, Aug. 7, 2017, https://www.nytimes.com/2017/08/07/business/trump-deregulation-teams-transportation-department.html/, and Coral Davenport and Eric Lipton, “Scott Pruitt is Carrying Out His E.P.A. Agenda in Secret, Critics Say,” New York Times, Aug. 11, 2017, https://www.nytimes.com/2017/08/11/us/politics/scott-pruitt-epa.html/.
[ix] H.R. 4010, Congressional Subpoena Compliance and Enforcement Act of 2017, 115th Cong., Sec. 1365a(a)(1).
[x] Ibid. Sec. 1365a(a)(2)–(3).
[xi] Ibid. Sec. 1365a(b)(1).
[xii] Ibid. Sec. 1365a(c).
[xiii] Neither the House floor debate nor the accompanying committee report addresses that issue. Far stronger language in the original draft of the bill was dropped: “(4) Non-constitutional Privileges.—The court shall not give effect to any assertion of non-constitutional legal basis for withholding documents or other materials of any kind, for refusing to answer any deposition or interrogatory, or for refusing to provide testimony, unless and only to the extent that the congressional committee or subcommittee has determined, in its sole discretion, to recognize the assertion as valid.”
[xiv] Josh Chafetz, “Congress’s Constitution,” Pennsylvania Law Review 160 (2012), pp. 715, 740–41. See also Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers, (Yale University Press, 2017), pp. 152–95, detailing the history of congressional use of its inherent and criminal contempt powers against non-members and concluding that, “In going to courts as supplicants in contempt cases, the houses of Congress thus simultaneously diminish their own standing in the public sphere and enhance the courts’ standing.”
[xv] House Committee on Oversight and Government Reform, Fast and Furious, Six Years Later, U.S. House of Representatives, June 7, 2017. https://oversight.house.gov/hearing/fast-furious-six-years-later/.
[xvi] H.R. 277, Special Criminal Contempt of Congress Procedures Act of 2009, 111th Congress.
[xvii] For discussions of the legal and constitutional basis for such a revised inherent contempt proceeding, see Morton Rosenberg, When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry, The Constitution Project, pp. 23–25, 214, July 2017, https://constitutionproject.org/wp-content/uploads/2017/05/WhenCongressComesCalling.pdf/; and Morton Rosenberg, Reasserting Congress’ Investigative Authority, Policy Study No. 103, R Street Institute, 20 July 2017, http://www.rstreet.org/policy-study/reasserting-congress-investigative-authority/. H. Rep. No. 114-848 (Dec. 7, 2016) makes similar recommendations for shoring up and making “seemly” the inherent contempt process.
[xviii] United States Supreme Court, Anderson v. Dunn, 1821, Justia. https://supreme.justia.com/cases/federal/us/19/204/case.html/. This ruling was reiterated three more times by the Court.
[xix] 2 U.S.C. §§ 192, 194.
[xx] See Todd Garvey, The Webster and Ingersoll Investigations, The Constitution Project, pp. 287–92, May 2017. https://constitutionproject.org/wp-content/uploads/2017/05/WebsterIngersoll.pdf/.
[xxi] United States Supreme Court, In re Chapman, April 19, 1897, Justia, https://supreme.justia.com/cases/federal/us/166/661/case.html/.
[xxii] Full details of the constitutional, legal and historical bases of the inherent and criminal contempt processes may be found in Morton Rosenberg, When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry, The Constitution Project, 23–30, 65–73, 213–15, 287–92, July 2017, https://constitutionproject.org/wp-content/uploads/2017/05/WhenCongressComesCalling.pdf/; and Morton Rosenberg, Reasserting Congress’ Investigative Authority, Policy Study No. 103, R Street Institute, 20 July 2017, http://www.rstreet.org/policy-study/reasserting-congress-investigative-authority/.
[xxiii] See Michael E. Solimine, “The Fall and Rise of Specialized Federal Constitutional Courts,” Journal of Constitutional Law 17 (2014), pp. 126–27, 158–60, detailing the history of three-judge courts, including those repealed in 1976 and 1988, and concluding that such courts are not sound additions to the institutional structure of federal courts. Such courts “are on balance unnecessary and in some ways may be harmful to the consideration of these important constitutional issues, by, among other things, potentially depriving the Supreme Court of the percolation of views by more than one lower federal court. The best path, then, would be for Congress not to further enact these provisions.”