[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.''.
                                 <all>