    [House Hearing, 117 Congress]
    [From the U.S. Government Publishing Office]

                 CIVIL ENFORCEMENT OF CONGRESSIONAL AUTHORITIES

    =======================================================================

                                    HEARING

                                   BEFORE THE

        SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                             TUESDAY, JUNE 8, 2021

                                   __________

                               Serial No. 117-26

                                   __________

             Printed for the use of the Committee on the Judiciary

    		  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                           	       __________

    	             U.S. GOVERNMENT PUBLISHING OFFICE

    48-307 			    WASHINGTON : 2022

                           COMMITTEE ON THE JUDICIARY

                        JERROLD NADLER, New York, Chair
                    MADELEINE DEAN, Pennsylvania, Vice-Chair

    ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
    HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
        Georgia                          KEN BUCK, Colorado
    THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
    KAREN BASS, California               MIKE JOHNSON, Louisiana
    HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
    DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
    ERIC SWALWELL, California            W. GREG STEUBE, Florida
    TED LIEU, California                 TOM TIFFANY, Wisconsin
    JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
    PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
    VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
    J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
    MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
    SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
    JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
    LUCY McBATH, Georgia                 BURGESS OWENS, Utah
    GREG STANTON, Arizona
    VERONICA ESCOBAR, Texas
    MONDAIRE JONES, New York
    DEBORAH ROSS, North Carolina
    CORI BUSH, Missouri

            PERRY APELBAUM, Majority Staff Director & Chief Counsel
                   CHRISTOPHER HIXON, Minority Staff Director
                                     ------

               SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
                                  THE INTERNET

                 HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
                      MONDAIRE JONES, New York, Vice-Chair

    THEODORE E. DEUTCH, Florida          DARRELL ISSA, California, Ranking
    HAKEEM JEFFRIES, New York                Member
    TED LIEU, California                 STEVE CHABOT, Ohio
    GREG STANTON, Arizona                LOUIS GOHMERT, Texas
    ZOE LOFGREN, California              MATT GAETZ, Florida
    STEVE COHEN, Tennessee               MIKE JOHNSON, Louisiana
    KAREN BASS, California               TOM TIFFANY, Wisconsin
    ERIC SWALWELL, California            THOMAS MASSIE, Kentucky
    MONDAIRE JONES, New York             DAN BISHOP, North Carolina
    DEBORAH ROSS, North Carolina         MICHELLE FISCHBACH, Michigan
    JOE NEGUSE, Colorado                 SCOTT FITZGERALD, Wisconsin
                                         CLIFF BENTZ, Oregon

                          JAMIE SIMPSON, Chief Counsel
                         BETSY FERGUSON, Senior Counsel
                                C O N T E N T S

                                  ----------

                             Tuesday, June 8, 2021

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the
      Subcommittee on the Courts, Intellectual Property, and the
      Internet from the State of Georgia.............................     1
    The Honorable Darrell Issa, Ranking Member of the Subcommittee on
      Courts, Intellectual Property, and the Internet from the State
      of California..................................................    18
    The Honorable Jerrold Nadler, Chair of the Committee on the
      Judiciary from the State of New York...........................    19

                                   WITNESSES

    Elise Bean, Director, Washington Office, Levin Center at Wayne
      Law
      Oral Testimony.................................................    21
      Prepared Statement.............................................    24
    Thomas G. Hungar, Partner, Gibson, Dunn & Crutcher LLP
      Oral Testimony.................................................    37
      Prepared Statement.............................................    39
    Praveen Fernandes, Vice President, Constitutional Accountability
      Center
      Oral Testimony.................................................    52
      Prepared Statement.............................................    54
    Todd Garvey, Legislative Attorney, Congressional Research Service
      Oral Testimony.................................................    62
      Prepared Statement.............................................    64

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    A statement from Anne Tindall, Counsel, Protect Democracy and
      Grant Tudor, Policy Advocate, Protect Democracy, submitted by
      the Honorable Henry C. ``Hank'' Johnson, Chair of the
      Subcommittee on the Courts, Intellectual Property, and the
      Internet from the State of Georgia for the record..............     6

                 CIVIL ENFORCEMENT OF CONGRESSIONAL AUTHORITIES

                                  ----------

                             Tuesday, June 8, 2021

                         U.S. House of Representatives

                 Subcommittee on Courts, Intellectual Property,

                                and the Internet

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to call, at 10:10 a.m., via
    Zoom, Hon. Henry C. ``Hank'' Johnson, Jr. [Chair of the
    Subcommittee] presiding.
        Present: Representatives Johnson of Georgia, Nadler, Jones,
    Deutch, Lieu, Stanton, Lofgren, Cohen, Ross, Neguse, Issa,
    Jordan, Chabot, Gohmert, Gaetz, Tiffany, Massie, Bishop,
    Fitzgerald, and Bentz.
        Staff Present: John Doty, Senior Advisor; Moh Sharma,
    Director of Member Services and Outreach & Policy Advisor;
    Jordan Dashow, Professional Staff Member; Cierra Fontenot,
    Chief Clerk; John Williams, Parliamentarian; Merrick Nelson,
    Digital Director; Jamie Simpson, Chief Counsel, Subcommittee on
    Courts; Danielle Johnson, Counsel, Subcommittee on Courts; Matt
    Robinson, Counsel, Subcommittee on Courts; MaryBeth Walker,
    Detailee, Subcommittee on Courts; Rosalind Jackson,
    Professional Staff Member, Subcommittee on Courts; Betsy
    Ferguson, Minority Senior Counsel; and Kiley Bidelman, Minority
    Clerk.
        Mr. Johnson of Georgia. With that, the Subcommittee will
    come to order. Without objection, the chair is authorized to
    declare recesses of the Subcommittee at any time.
        Welcome to this morning's hearing on Civil Enforcement of
    Congressional Authorities.
        Before we begin, I would like to remind Members that we
    have established an email address and distribution list
    dedicated to circulating exhibits, motions, or other written
    materials that Members might want to offer as part of our
    hearing today.
        If you would like to submit materials, please send them
    when you are not speaking. This will help prevent feedback and
    other technical issues. You may unmute yourself any time you
    seek recognition.
        I will now recognize myself for an opening statement.
        Today, I convene the Subcommittee for a bipartisan hearing
    on civil enforcement of congressional authorities. This is an
    important issue for the Committee, for the institutional
    interests of Congress, and for the enduring strength of our
    constitutional system.
        When Congress asks for information, it expects to receive
    it. Congress cannot effectively or fully carry out its
    constitutional duties of legislating or oversight without the
    information it needs to do its job.
        An essential part of Congress' oversight and investigative
    authority is the power to compel testimony and documentary
    information, including the power to issue and enforce
    subpoenas.
        The Supreme Court has explained, quote, ``that mere
    requests for information often are unavailing, and also that
    information which is volunteered is not always accurate or
    complete, so some means of compulsion are necessary to obtain
    what is needed,'' end quote.
        None of this is to say that Congress can operate carte
    blanche. Courts have recognized that certain constitutional
    privileges, protections, and safeguards exist in the
    Congressional Subpoena process, and normally the most
    expeditious way to obtain information is through negotiation
    and settlement.
        The accommodation process is the bedrock of congressional
    investigative activity, particularly when those investigations
    focus on the Executive Branch.
        What recent history has taught us, and what we will hear
    more about from the Witnesses appearing before us today, is
    that when the process takes too long, it breaks down and
    impedes Congress' constitutionally mandated work.
        Timing is often critical because Congress operates in two-
    year cycles and a Presidential Administration can last for as
    little as four years. There is something wrong when we can
    assume that a court case to enforce a Congressional Subpoena
    will last longer than the Congress that issued the subpoena or
    even the Presidential Administration defying it, no matter when
    the subpoena was issued.
        I would be remiss if I did not note the political nature of
    some of the investigations that inform today's hearing. They
    include different branches of government controlled by
    different parties.
        We may not all agree on the purpose, scope, or tenor, or
    even propriety of these investigations, but what I hope we can
    all agree on is that the process is important.
        Congress cannot function without information to support its
    legislative efforts. The institutional interests of Congress
    are at risk when, in practical effect, the Executive Branch can
    control the investigative process, especially when engagement
    by the Judicial Branch occurs too slowly.
        The courts are well equipped to resolve disputes over
    subpoenas. At bottom, subpoena enforcement is a basic judicial
    task which Federal Courts are very familiar with.
        This is true even when a case involves coequal branches of
    government, as disputes over Congressional Subpoenas often do.
    Recent history, however, suggests that courts may need some
    additional direction, particularly given the timing
    sensitivities surrounding Congressional Subpoenas.
        I look forward to hearing from our witnesses to understand
    where we are today as we look for solutions to reinforce
    Congress' power to compel the production of testimony and
    documents when negotiations break down.
        I started by saying that this is an important bipartisan
    issue for the Committee. I know that this is an issue important
    to our Ranking Member, Mr. Issa, in particular. He has invested
    a lot of time personally in looking for solutions and a lot of
    energy in trying to make those solutions into law. I thank him
    for his work on the enforcement issue and look forward to a
    productive hearing.
        Also, without objection, I would like to enter into the
    record a statement from Anne Tindall and Grant Tudor at Protect
    Democracy titled ``Modernizing Congress' Subpoena Compliance
    and Enforcement Methods.''
        [The information follows:]

    ?

                     MR. JOHNSON OF GEORGIA FOR THE RECORD

    =======================================================================

    	[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. With that, I will now recognize the
    gentleman from California, the Ranking Member of the
    Subcommittee, Mr. Issa, for his opening statement.
        Mr. Issa. Thank you, Mr. Chair, and thank you for holding
    this important hearing. With the legislation that is
    anticipated, once again, Congress will show that it can work on
    a bipartisan basis to do its job.
        The first investigation conducted by Congress was not one
    that had controversy as to the two branches, but rather,
    Congress, under President George Washington, was asked to
    investigate in 1791 the loss in an Indian war by the United
    States because the President could not, by definition, trust
    his generals to investigate their own failure.
        That, like so many others, represent probably 70 or 80
    percent of all investigations, ones in which the Executive
    Branch not only complies but often wants the result.
        Congressional Subpoenas are more than just the requirement
    that we see in oversight. They are, in fact, essential to the
    job we do. We cannot authorize the spending of trillions of
    dollars and not expect that somewhere among the millions of
    people who call the Federal government their employer, whether
    as a contractor or as an employee, we can't expect that there
    won't be a few bad actors.
        Over the decades, Congress has successfully investigated
    everything from, if you will, under Henry Waxman, countless
    different examples of waste, fraud, and abuse. My own tenure
    exposed many. Also, when conflicts arise as to the conduct of
    the office itself, such as with John Conyers when he called for
    and took two years to get Harriet Miers to comply, we, in fact,
    constantly find ourselves with what the Chair referenced, which
    is delay is, in fact, the equivalent of denial.
        Currently, we have a system in which each time we move to
    compel, whether in the private sector or with the government,
    we are treated often less well than a common FOIA request.
        Under FOIA, an Article III Judge fairly quickly finds
    himself having to make a decision about whether the Executive
    Branch is to comply. In the case that I have had experience
    with, we have had as much as two years' delay in a judge
    deciding whether or not they are going to hear it and what the
    width of that hearing is going to be.
        I believe there is a consensus within the Congress that, in
    fact, even if we disagree with one Chair or another Chair's
    subpoena, that we would like it handled quickly and in a way
    that we can believe is just and not partisan.
        Only through quickly and effectively implementing it when
    there is a dispute between the two branches, an Article III
    Judge, or in the case of a private individual, the fact is an
    Article III Judge can hold someone in contempt if they refuse
    to comply with a subpoena. Well, in fact, our contempt has no
    teeth in it unless the Executive Branch agrees and prosecutes
    the individual.
        Our legislation, therefore, must have three elements.

            (1)  The participation of Article III Judges;
            (2)  a timeline;
            (3)  a process that if, in fact, either side is not satisfied
            with the initial decision, that it be expeditiously reviewed so
            that there can be certainty.

        Mr. Chair, I appreciate this hearing coming in the early
    part of this Congress so that hopefully, before this Congress
    is over, we can, in fact, on a bipartisan basis, once and for
    all move ourselves toward a predictable process for discovery,
    whether it is through the Executive Branch discovery or private
    individuals.
        I join with you and many Chairs of the past who have been
    frustrated by the process and want to see a predictable process
    going forward.
        So, again, thank you, Mr. Chair. I yield back.
        Mr. Johnson of Georgia. Thank you, Mr. Issa. We share that
    aspiration.
        With that, I will recognize the Chair of the Full
    Committee, the gentleman from New York, Mr. Nadler, for his
    opening statement.
        Chair Nadler. Well, thank you, Mr. Chair. I want to thank
    you for holding this important hearing. I share your commitment
    to protecting Congress' place in our constitutional system.
        I hope this hearing will demonstrate that ensuring Congress
    has the tools it needs to enforce its subpoenas transcends
    partisanship.
        Nearly a century ago, in McGrain v. Daugherty, the United
    States Supreme Court framed the responsibility of congressional
    oversight this way: ``A legislative body cannot legislate
    wisely or effectively in the absence of information respecting
    the conditions in which the legislation is intended to affect
    or change . . . . And where the legislative body does not
    itself possess the requisite information--which is not
    infrequently true--recourse must be had to others who do
    possess it,'' unquote.
        Congress' authority to obtain information, including by use
    of compulsory process, flows directly from its article I
    legislative function. In 2017, I spoke on the House floor in
    support of the Congressional Subpoena and Enforcement Act of
    2017, a bill that was first introduced by the gentleman from
    California, Mr. Issa.
        What I said then holds true today: It is our responsibility
    to ask for the information we require to do our jobs
    effectively, and the Constitution empowers us to enforce those
    requests if we are at first denied.
        In other words, if Congress cannot reliably enforce its
    lawfully issued subpoenas, our constitutional structure has
    been profoundly undermined.
        In many instances, Congress and the party from whom it
    seeks information, frequently the Executive Branch, have been
    able to reach an agreement without resorting to litigation.
    This is certainly the preferred outcome. Sometimes, whether
    because of stonewalling or legitimate disagreement, there is no
    other option.
        It should go without saying that time is of the essence
    when a Congressional Committee seeks judicial enforcement of
    its subpoenas, and that delay can be as damaging to a
    congressional investigation as an unfavorable ruling.
        Responsible congressional investigators are constantly
    juggling the need to uncover the facts against having enough
    time to translate those facts into legislative action.
        If we do have to file suit, it is essential that our
    lawsuit be resolved quickly. Unfortunately, recent subpoena
    enforcement cases have taken years to reach resolution.
        The Judiciary Committee's suit to secure the testimony of
    Don McGahn, former President Trump's White House Counsel, is a
    case in point.
        In one sense, that suit ended with a victory for
    congressional oversight. We negotiated a settlement with the
    Justice Department that resulted in Mr. McGahn sitting for a
    transcribed interview last Friday.
        We made clear that the Executive Branch must respect our
    subpoenas, that there is no such thing as absolute immunity
    from congressional testimony, and that congressional
    investigators will eventually secure their witness in response
    to appropriately issued subpoenas.
        Our victory also highlighted the deficiencies in the civil
    enforcement process that I have just described. It took two
    years to enforce the subpoena, and Mr. McGahn's interview
    happened more than four months after the President he served
    under left office. That is an unacceptable delay.
        Modern experience has taught us that, although effective
    congressional oversight is essential to a functioning
    democracy, Congress can no longer simply assume good faith
    cooperation with our Committees and swift enforcement of our
    subpoenas in Federal Court.
        Congress needs to take a hard look at how to ensure that
    its fundamental power to investigate will survive in an era of
    unprecedented stress on our democratic institutions.
        To be sure, not every investigation is equally worthwhile,
    and not every subpoena may be immune from challenge. Congress'
    constitutional authority to investigate and to enforce its
    valid subpoenas must be incontestable.
        I thank the Chair and the Ranking Member for the bipartisan
    nature of this hearing, and I look forward to hearing from our
    Witnesses about these important issues.
        With that, I yield back the balance of my time.
        Mr. Johnson of Georgia. Thank you, Mr. Chair.
        I will now introduce our Witnesses.
        Ms. Elise Bean is a Director of the Washington, DC, office
    of the Levin Center at Wayne Law, which she helped establish
    after Senator Carl Levin's retirement from the Senate.
        Ms. Bean has more than 30 years of experience working as an
    investigator for Senator Levin, including more than a decade as
    his Staff Director and Chief Counsel on the U.S. Senate
    Permanent Subcommittee on Investigations.
        In that role, Ms. Bean handled investigations, hearings,
    and legislation on a wide variety of matters, including money
    laundering, offshore tax abuse, corruption, shell companies,
    and corporate misconduct.
        Ms. Bean earned her Bachelor of Arts from Wesleyan
    University and her J.D. from the University of Michigan Law
    School.
        Welcome, Ms. Bean.
        Thomas Hungar is a partner in the Washington, DC, office of
    Gibson, Dunn & Crutcher LLP. His practice focuses on appellate
    litigation, complex trial court litigation matters, and
    congressional investigations.
        Mr. Hungar previously served as General Counsel of the U.S.
    House of Representatives, providing legal advice and
    representation on a nonpartisan basis to the House and its
    leadership, Members' offices and staff, and worked closely with
    House Committees on oversight and investigative activities. He
    also previously served in the Office of Solicitor General,
    including as Deputy Solicitor General.
        Mr. Hungar received his Bachelor of Science degree from
    Willamette University and his law degree from Yale Law School.
        Welcome, Mr. Hungar.
        Praveen Fernandes is Vice President at the Constitutional
    Accountability Center, CAC. Before CAC, Mr. Fernandes was a
    principal at The Raben Group, where he advised nonprofit
    clients on issues including LGBTQ equality, criminal justice,
    wealth inequality, digital equity, and judicial nominations.
        Mr. Fernandes also served as Senior Counsel and Advisor to
    the General Counsel at the Office of Personnel Management
    during the Obama Administration. He began his career on Capitol
    Hill, where he served on Senator Edward Kennedy's Labor
    Committee staff.
        Mr. Fernandes earned his undergraduate degree from Brown
    University, a masters in public health degree from the
    University of North Carolina Gillings School of Public Health,
    and his J.D. from the University of North Carolina School of
    Law.
        Welcome, Mr. Fernandes.
        Mr. Todd Garvey is a legislative attorney with the American
    Law Division of the Congressional Research Service, where he
    provides nonpartisan analysis to Members of Congress, staff,
    and Congressional Committees.
        Mr. Garvey specializes in issues dealing with Congressional
    oversight and investigations and constitutional separation of
    powers. He has written extensively on Congressional Subpoenas
    and compliance by Executive Branch officials and on Congress'
    contempt power.
        Mr. Garvey received his undergraduate degree in political
    science and government from Colgate University and his J.D.
    from the William and Mary Law School.
        Welcome, Mr. Garvey.
        Before proceeding with testimony, I would like to remind
    all our Witnesses appearing today that you have a legal
    obligation to provide truthful testimony and answers to this
    Subcommittee and that any false statement you make today may
    subject you to prosecution under section 1001 of title 18 of
    the United States Code.
        Please note that your written statement will be entered
    into the record in its entirety. Accordingly, I ask that you
    summarize your testimony in five minutes. There is a timer in
    Zoom to help you stay within that time limit.
        Ms. Bean, you may now begin.

                        STATEMENT OF ELISE BEAN

        Ms. Bean. Thank you very much. I appreciate this
    opportunity to testify about the need to strengthen civil
    enforcement of Congressional Subpoenas, in particular subpoenas
    directed to the Executive Branch. As a long-time congressional
    investigator, I know how important this issue is.
        The problem, as has already been described, is that the
    Executive Branch, their compliance with congressional
    information requests has continued to erode.
        A couple of examples.
        Last year, Senator Toomey led the filing of a bipartisan
    amicus brief challenging a decision by the Commerce Department
    to refuse to release a report on auto tariffs, even though a
    statute required that report to be published in the Federal
    Register.
        Despite that law, the Commerce Department just refused to
    provide the report, still refuses today, and the Department of
    Justice, through its Office of Legal Counsel, has issued an
    opinion sustaining the position of the Commerce Department.
        Another example from last year. The Department of Justice
    just refused to appear at a hearing before the House Judiciary
    Committee. The Assistant Attorney General for Civil Rights, the
    Director of the Bureau of Prisons, and the head of the U.S.
    Marshals Service refused to appear at an October hearing
    because, as was said in a letter from the Justice Department,
    quote, ``The Judiciary Committee had squandered its opportunity
    to conduct a meaningful oversight hearing with the Attorney
    General,'' end quote, the month before, so they chose not to
    appear.
        Of course, we are all familiar with the White House
    assertion that former White House Counsel Don McGahn was
    absolutely immune to any Congressional Subpoena and did not
    have to appear even to assert Executive Privilege, and that is
    a stance that has been taken by Presidents of both parties for
    over 50 years.
        Finally, as mentioned earlier, the Fast and Furious case, a
    House oversight investigation led by Congressman Issa. They
    issued a 2011 subpoena to the Department of Justice. When that
    was not fulfilled, they filed a lawsuit in 2012. They litigated
    that actively for four years, until 2016, and the case itself
    was not fully closed until 2019. So, that is a seven-year
    journey through the Federal Courts.
        As the Executive Branch becomes increasingly confident that
    courts won't step in to enforce a Congressional Subpoena even
    in egregious cases, then the Executive Branch becomes
    increasingly dismissive of the accommodations process because
    they know refusing to provide the information will have few, if
    any, consequences.
        Congress can fix this problem. They can do a lot to make
    their ability to get information better.
        In my written statement, I give you a long menu of
    different options, and I put them in three categories: Enacting
    better laws when it comes to civil enforcement, creating new
    penalties, such as civil fines, and streamlining judicial
    review. I want to mention just three out of that long list of
    options.
        The first is to codify Congress' right to file civil
    enforcement actions in Federal Court. It is hard to believe
    that there is no statute on the books today that allows the
    House to do so, and the Senate statute exempts subpoenas to the
    Executive Branch.
        Congress, in light of the Mazars decision by the Supreme
    Court and the McGahn en banc decision from the D.C. Circuit,
    this creates a very good moment to pass that type of
    legislation, especially with a President in office who
    acknowledges and understands the need Congress has for accurate
    information.
        Second, Congress could enact a statute to expedite judicial
    review. There are several bills, one of which passed the House
    in 2017, that would create a duty, a statutory duty, of the
    courts to expedite cases involving Congressional Subpoenas.
        One of the bills actually says the Judicial Conference and
    the Supreme Court must issue rules, actual rules, to make sure
    that happens. That is a very good way to go.
        Finally, Congress could codify a small set of rules for the
    Executive Branch compliance with Congressional Subpoenas.
        For example, there is no absolute immunity to Congressional
    Subpoenas, and if you are going to assert Executive Branch
    privilege, the President needs to do that in writing, and there
    needs to be a privilege log, or the privilege will be waived.
        Even a larger thing that Congress could do is to create a
    congressional counterpart to the Department of Justice Office
    of Legal Counsel so that they can issue official opinions on
    oversight issues, including with respect to subpoenas.
        If they issue opinions that are bipartisan, bicameral,
    thoughtful, well supported, you could provide guidance not only
    to Congress and the Executive Branch, but also strengthen the
    hand of Congress in the courts.
        Thank you for delving into this very important subject to
    revitalize Congress' ability to get the information it needs to
    make informed decisions. Thank you.
        [The statement of Ms. Bean follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you.
        We will now hear testimony from Mr. Hungar.
        Mr. Hungar, you may begin.

                     STATEMENT OF THOMAS G. HUNGAR

        Mr. Hungar. Thank you, Chair Johnson, Ranking Member Issa,
    Chair Nadler, and the Members of the Subcommittee. I appreciate
    the opportunity to appear before you today to testify about the
    important topic of the enforcement of Congressional Subpoenas.
        In my former role as House General Counsel, I experienced
    firsthand some of the many obstacles, frustrations, and delays
    that the Congress frequently encounters in attempting to obtain
    information from the Executive Branch pursuant to its
    legitimate oversight requests. I hope this hearing will assist
    the Committee and the House in identifying potentially viable
    solutions for that pressing problem.
        Congress' constitutional authority to compel testimony and
    production of documents in response to oversight requests is
    beyond dispute. The permissible scope of congressional inquiry
    is, in the Supreme Court's words, ``as penetrating and far-
    reaching as the potential power to enact and appropriate under
    the Constitution.''
        In fact, the court has said a legitimate oversight
    encompasses inquiries concerning the Administration of existing
    laws, as well as proposed or possibly needed statutes, surveys
    of defects in our social, economic, or political system for the
    purpose of enabling the Congress to remedy them, as well as
    probes into departments of the Federal government to expose
    corruption, inefficiency, or waste.
        Unfortunately, however, in the past dozen years or so it
    has become increasingly clear that the traditional mechanisms
    for encouraging Executive Branch compliance with congressional
    requests for information are no longer adequate to the task.
    Imprisonment for inherent contempt, for example, is widely
    viewed as impractical and unrealistic, and the Executive Branch
    refuses to prosecute Federal officials for criminal contempt,
    rendering those traditional tools effectively useless in the
    oversight context.
        As a result, the House has been forced to resort to civil
    enforcement actions. That mechanism has also proven to be
    unsatisfactory in many instances because, among other reasons,
    the Department of Justice's litigating tactics, continuing
    areas of legal uncertainty, and the discretionary scheduling
    decisions of Federal judges can lead to inordinate delays and
    unduly limited relief, effectively defeating Congress'
    oversight efforts.
        Mr. Johnson of Georgia. Mr. Hungar, you are now over your
    time. If you could sum up, please.
        Mr. Hungar. Yes, Mr. Chair. I set forth in my written
    testimony various proposals for remedying this situation,
    including legislation that has previously been proposed, and
    will be happy to address the Committee's questions about any of
    those issues. Thank you.
        Mr. Johnson of Georgia. Mr. Hungar, I am in error. That
    message I got pertained to the last Witness. So, you have 2
    minutes. So, please proceed. I am so sorry.
        Mr. Hungar. Thank you, Mr. Chair.
        So, just to flesh out briefly, some of the proposed
    solutions that have been offered that could help address this
    problem include the following.
        First, legislation could be enacted to reinvigorate the
    inherent contempt procedure by providing for the imposition of
    fines or the preclusion of salary payments when a Federal
    official is found in contempt of Congress after appropriate
    House or Senate proceedings.
        Second, legislation along the lines of the Congressional
    Subpoena Compliance and Enforcement Act that passed the House
    in 2017 could be enacted with provisions designed to eliminate
    meritless legal objections that the Department of Justice
    currently seeks to advance in subpoena enforcement actions.
        Ensure expedited judicial resolution of civil enforcement
    actions at every level of the Federal Courts.
        Permit congressional committees to obtain direct Supreme
    Court review, thereby minimizing appellate delays and avoiding
    the intermediate step of going to the Federal Courts of
    appeals.
        Finally, require the Executive Branch to specify, as Ms.
    Bean said, to specify its claims of privilege promptly or be
    deemed to have waived them to prevent the types of delaying
    tactics that the Justice Department has used to considerable
    effect in the past.
        Third and finally, the House could modify its
    appropriations procedures to ensure that the appropriations
    power is wielded in a manner calculated to incentivize prompt
    compliance with legitimate Congressional Subpoenas.
        Thank you.
        [The statement of Mr. Hungar follows:]

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        Mr. Johnson of Georgia. Thank you, Mr. Hungar, and sorry
    for that interruption once again.
        We will now hear from Mr. Fernandes.
        Mr. Fernandes, you have five minutes, sir, and you may
    begin.

                     STATEMENT OF PRAVEEN FERNANDES

        Mr. Fernandes. Thank you. I would like to thank the Chair,
    Ranking Member, and other Members of the Subcommittee for the
    privilege of offering some thoughts as you consider
    congressional oversight and the enforcement of subpoenas.
        Congressional investigatory power is deeply rooted in our
    political system and is embedded in our Constitution, which
    grants Congress the right to legislate.
        There is a problem. Over the last four decades there has
    been a congressional oversight effectiveness crisis,
    particularly with respect to oversight of the Executive Branch.
    Executive Branch officials have refused to comply with
    subpoenas, and resolution of these disputes in the courts has
    taken too long.
        An example proves instructive.
        In early 2019, the House Oversight Committee subpoenaed
    Mazars USA for documents related to the President, President
    Trump, and his businesses' finances. In the ensuing litigation,
    the House won at the District Court and Circuit court levels.
        In July 2020, the Supreme Court held, in accordance with
    precedent and centuries of history, that Congress has broad
    investigatory powers and can investigate the Executive Branch
    and, indeed, even the President himself.
        However, because the court concluded that the lower courts
    had not properly taken into account separation of powers
    concerns, the court also vacated the lower courts' opinion and
    remanded the case.
        Now, more than two years after the start of the lawsuit,
    the issue is nowhere near resolved, and there is still a
    pending motion for summary judgment at the District Court
    level.
        This is just one example, which I am providing simply
    because of its ongoing nature and because it was litigated at
    every level of the Federal Court system.
        How one feels about any given example might be influenced
    by one's partisan affiliation, one's feelings about a
    Presidency, or one's commitment to the underlying subject
    matter.
        The problem is larger than any subject, political party, or
    Presidency. In countless cases, delays in the courts have
    prevented Congress from receiving the information to which it
    is entitled and which it needs to do its job.
        The consequences of such delays are particularly acute in
    the House, which is not a continuing body. Each time a new
    House is sworn in, its ongoing investigations end, and its
    subpoenas expire. If new leadership decides not to reissue
    subpoenas, the ongoing litigation could be mooted, foreclosing
    the chance of the House receiving the information.
        One possible solution is for Congress to establish a
    pathway for expedited court review of oversight disputes.
    Congress has considered this option before. For instance,
    Congresswoman Dean in the last Congress and Ranking Member Issa
    in the 115th Congress introduced legislation that would
    streamline the process of resolving disputes over subpoenas.
        According to both legislative proposals, any time the
    House, Senate, or one of its Committees or Subcommittees brings
    a civil action against the recipient of a Congressional
    Subpoena, the Federal Courts at every level must expedite
    disposition to the greatest possible extent.
        Both pieces of legislation further provide that if
    requested by the plaintiff, the action shall be heard by a
    three-judge court and shall be reviewable by appeal directly to
    the Supreme Court. The bills also require notice of appeal to
    be filed within 10 days.
        Allowing for expedited review and a direct appeal to the
    Supreme Court would allow for a quicker and more efficient
    process when it comes to enforcing Congressional Subpoenas.
        This streamlined review has precedence. For example, 28 USC
    2284 allows for a three-judge panel for actions challenging the
    constitutionality of apportionment of congressional districts
    or apportionment of any statewide legislative body.
        In addition to making provision for a three-judge panel and
    streamlined appellate review, Congress should consider
    clarifying that this pathway would govern, regardless of any
    other statutory schemes implicated by the subpoena.
        To cite just one example, documents created or maintained
    by the White House are subject to the Presidential Records Act,
    which sets out its own procedures for resolving disputes.
    Congress should make clear that, other statutory schemes
    notwithstanding, disputes over congressional oversight in the
    Federal Courts will be resolved through an expedited pathway.
        In conclusion, Congress' right to obtain information is not
    in doubt. What is in doubt, however, is whether Congress will
    be able to obtain the information to which it is entitled in a
    timely fashion.
        Currently, when oversight disputes go to the Federal
    Courts, this remains an open question. Congress should consider
    expedited court review as one way of answering it.
        Thank you.
        [The statement of Mr. Fernandes follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you, Mr. Fernandes.
        We will now hear from Mr. Garvey.
        Mr. Garvey, you are recognized for five minutes.

                        STATEMENT OF TODD GARVEY

        Mr. Garvey. Thank you, Mr. Chair, Chair Johnson, Ranking
    Member Issa, and the Members of the Committee, thank you for
    inviting me here today to discuss the enforcement of
    Congressional Subpoenas.
        It is perhaps best, I think, to start this discussion by
    recognizing the potency of the subpoena power. A Congressional
    Subpoena is a constitutionally based demand for information
    that triggers a legal obligation on behalf of the recipient.
        In the words of the Supreme Court, all citizens, whether
    government officials or private persons, have a duty to
    cooperate with Congress and an unremitting obligation to
    respond to subpoenas.
        That obligation is lifted for what amount to only a handful
    of reasons. For example, where the Committee lacks a
    legislative purpose or exceeds its jurisdiction, or where a
    specific and overriding privilege or right justifies
    withholding information from the Congress.
        Though the legitimate justifications for not complying with
    a subpoena may be few in number, they are rich in ambiguity.
    With the courts historically playing only a limited role in
    adjudicating oversight disputes, these areas of uncertainty are
    ripe for conflict.
        There is perhaps no better example of this than Executive
    Privilege, a contested constitutional doctrine that frequently
    forms the basis for Executive Branch refusals to comply with
    Congressional Subpoenas.
        So, disagreements between the branches inevitably develop,
    and when they do, the first phase is generally one of
    negotiation. This is sometimes referred to as the
    accommodations process, and it is a method of dispute
    resolution that derives both from long-settled historical
    practice and, arguably, the Constitution itself.
        Compromise is not always possible, and when negotiations
    fail and subpoena obligations go unfulfilled, the ball is left
    in Congress' court.
        So, when faced with noncompliance, this house has various
    options. It can look inward and leverage its own legislative
    powers to enforce compliance. This can take many forms, for
    example by enacting legislative or appropriations restrictions
    or by withholding consent to legislative or funding priorities
    until the subpoena is complied with. Though potentially
    effective, this can be a blunt and unwieldy enforcement tool.
        Alternatively, the House can look to the Executive Branch
    and refer a contempt of Congress citation to the Department of
    Justice for criminal prosecution.
        Failure to comply with a Committee subpoena is a criminal
    offense, but, like other criminal offenses, the power and
    discretion to prosecute lies with the Executive Branch.
        It is now clear from recent history that in most instances
    the Executive Branch is unlikely to prosecute an Executive
    Branch official for not complying with a Congressional
    Subpoena. As a result, the criminal contempt statute has lost
    much of its deterrent value.
        The obstacles associated with looking to either its own
    powers or to the Executive Branch have led the House to instead
    turn with increasing frequency to a third option, the courts.
        Today, it appears that civil enforcement or the process of
    asking a Federal Court to order compliance with a Congressional
    Subpoena has become the House's chief means of enforcement.
    Like the other options, this too has drawbacks.
        First, there is always the risk of an adverse decision. In
    a legal environment with very few judicial decisions, one
    unfavorable opinion can significantly disrupt the long-term
    balance of power between the branches.
        There is also the problem of time. The judicial process is
    generally not a fast one, so even when Congress wins, it may
    come too late. Because the Executive possesses what Congress
    desires, delay favors the Executive Branch.
        Consider these past enforcement examples, all which I know
    the Members of this Committee are familiar with.
        Beginning in 2008, this Committee spent 18 months
    litigating a subpoena to former White House Counsel Harriet
    Miers. Beginning in 2012, the House Oversight and Reform
    Committee spent nearly seven years litigating a subpoena to
    Attorney General Eric Holder. Most recently, your Committee has
    now spent two years litigating a subpoena to former White House
    Counsel Don McGahn.
        Now, it is worth noting that each of these cases ended not
    with a final judicial decision but with an accommodation or
    agreement between the branches in which the House generally
    obtained much of the information it sought. Ms. Miers testified
    behind closed doors, DOJ turned over most of the Fast and
    Furious documents, and Mr. McGahn sat for an interview last
    week. The delay in obtaining the sought-after information would
    appear to have frustrated timely congressional oversight.
        The process, as it stands, leaves the House and this
    Committee with numerous questions. Should Congress be going to
    the courts to resolve these disputes? If yes, is the current
    process, with all its uncertainty and delays, acceptable? If
    no, what alternative enforcement mechanisms are there?
        Thank you again for the opportunity to testify, and I look
    forward to your questions.
        [The statement of Mr. Garvey follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you, Mr. Garvey.
        We will now proceed under the five-minute rule with
    questions, and I will begin by recognizing myself for five
    minutes.
        Ms. Bean, my first question is for you.
        The focus of this hearing is on strengthening Congress'
    investigatory powers, but I think it is important to note that
    how Congress uses those powers can affect how those powers are
    viewed in court.
        What are some of the hallmarks of a serious congressional
    investigation of the Executive Branch?
        Ms. Bean. Well, of course, a bipartisan stance is the most
    important thing.
        I think if Congress had some official legal opinions about
    how the Executive Branch ought to respond to Congressional
    Subpoenas, we have so much turnover in staff, and often there
    is turnover in the Members of Congress, that people don't know
    what are the norms, what is acceptable, what kinds of
    negotiating goes on in the accommodations process. So, I think
    having better guidance would also help.
        Other hallmarks are this bipartisan having joint subpoenas,
    having a joint report, having a hearing that has bipartisan
    elements. All those things increase public perception and maybe
    judicial perception of how legitimate the information request
    is.
        Mr. Johnson of Georgia. Thank you.
        Ms. Bean, I have a second question building on that same
    theme. Why will the accommodation process continue to be
    important even in situations where a Committee goes to court to
    enforce its subpoena?
        Ms. Bean. Well, as we all know, and we have been saying,
    getting a court to actually resolve issues on a subpoena is a
    very lengthy process. So, increasing the cost for the Executive
    Branch to ignore a congressional request is what makes the
    accommodation process work.
        So, if the Executive Branch thinks, all right, we are going
    to lose this case, and we are going to lose it not just for us
    but for future types of information requests, if we have to pay
    a civil fine, if there was an appropriations sanction, if there
    was a possibility of criminal contempt using a private sector
    attorney, for example, instead of a U.S. prosecutor, all those
    things raise the cost for the Executive Branch to ignore the
    accommodations process.
        If those threats are there, they are more likely to
    negotiate, more likely to try to come to some agreement.
        Mr. Johnson of Georgia. Thank you.
        Mr. Hungar, I have a related question for you. What steps
    do you think are important for a Committee to take before going
    to court to make sure a subpoena it issues isn't ruled invalid?
        Mr. Hungar. Thank you, Mr. Chair.
        So, in addition, to the points that Ms. Bean made, which I
    agree with, the Committee's hand is certainly going to be
    strengthened if it has engaged in a reasonable amount of
    negotiation with the Executive Branch in an attempt to obtain
    negotiated compliance with its demands and has made sure that
    the scope of the information it is seeking and its relationship
    to the topic is appropriately focused and it is clear that
    there is a legitimate, strong need for the information.
        In those circumstances, the Committee, by the time it gets
    to court, if it is actually forced to go to that stage, is
    going to be well positioned to demonstrate to the court why
    this step is essential and reasonable.
        Mr. Johnson of Georgia. Thank you.
        Mr. Fernandes, your testimony identifies a crisis in
    effectiveness of congressional oversight of the Executive
    Branch in the last four decades.
        Can you give us some more context about how this crisis has
    developed, in your opinion, and how it has been shaped,
    especially in the last four years?
        Mr. Fernandes. Sure. Thank you so much for the question,
    Chair Johnson.
        I would say that one of the things that is most dispiriting
    is the fact that the accommodations process, which has formed
    the backbone of the vast majority of congressional oversight
    requests being fulfilled, has actually sort of been a process
    that has been mired in the possibility of an Administration
    running the clock either on a Presidency or any given House of
    Representatives. As the possibility for the slow adjudication
    in the courts making the running out of a clock possible, the
    accommodations process has broken down.
        Again, I think that the prospect, as Ms. Bean said, of
    quicker adjudication in the courts takes away this incentive
    that you saw.
        Quite frankly, in the last four decades, although you are
    right to point out in the last four years, the sheer number of
    flat rejections to comply with subpoenas seems to have
    increased. One hopes that as a quicker adjudication of the
    courts becomes possible, that we will return to some sense of
    normalcy with respect to good faith negotiations and
    accommodation.
        Mr. Johnson of Georgia. Thank you.
        My time has expired, and I will now turn to the gentleman
    from California, Mr. Issa, to be recognized for five minutes.
        Mr. Issa. Thank you, Mr. Chair, and I know my time will
    expire well before I get all my questions answered.
        I want to try and go through some bullet points.
        A couple of decades ago, President Richard Nixon was
    investigated for his involvement or possible knowledge of
    corrupt activity--basically Watergate. That process took less
    than two years.
        Is there any logical reason that the court should have
    inherent--have there been any changes in the court that would
    justify President Nixon leaving office less than two years
    after the Watergate break-in, and let's just say in the case of
    these last few cases, three to five years, even seven years
    before final adjudication?
        Mr. Hungar, if you could opine on that quickly.
        Mr. Hungar. I think the answer is no. I think the
    intransigence of the Executive Branch has been what has changed
    over the last decades.
        Mr. Issa. So, it is fair to say that the Executive Branch
    has become more clever at finding delaying techniques. Would
    that be fair to say?
        Mr. Hungar. That is correct.
        Mr. Issa. I just want to highlight one in particular. You
    mentioned in your opening statement the record of asking for a
    proffer of each and every element of an Executive Privilege or
    a rejection.
        Can you go over briefly, if you recall, during the process
    we went through in Fast and Furious, what was alleged to be
    Executive Privilege, and then what happened when the judge
    asked for that list to be produced?
        Mr. Hungar. It is a few years ago, but I will do my best.
        Well, first, the Executive Branch resisted for many months
    in even making an express claim of Executive Privilege, let
    alone producing a privilege log, and only when threatened with
    contempt did they finally even make the claim. Then, when
    litigation was initiated, they still hadn't provided a
    privilege log.
        Ultimately, after a couple of years of litigation, they
    were finally required to produce one, and they then claimed
    that vast quantities of information were privileged and that
    basically Executive Privilege extended to what have always been
    understood to be just traditional common law privileges, like
    the attorney-client privilege, that Congress has always viewed
    itself as being empowered to reject. So, their claim of
    Executive Privilege was incredibly sweeping.
        Mr. Issa. Exactly. Just to refresh your memory, one of them
    was, of course, the theory that there is a clearance that we
    don't have to receive law enforcement sensitive information was
    one of the claims not codified in any law.
        I want to just for the record, though, do you recall that
    more than 10,000 pages were delivered outside of privilege as
    soon as the log was requested? In other words, when Judge
    Jackson asked for the log and they finally had to produce it,
    we discovered that tens of thousands of pages of documents had
    no privilege and, in fact, when they had to make that
    evaluation, those were delivered.
        Does that refresh your memory?
        Mr. Hungar. That is exactly right. Even one of the
    unfortunate aspects of that case was that it took more than two
    years of litigation before the judge even ordered the
    Department of Justice to produce those unprivileged documents.
        Mr. Issa. For the other Witnesses, similar history all of
    you have had. If anyone wants to quickly opine on the privilege
    log being in this legislation and the time sensitive nature of
    getting to that.
        Ms. Bean. I will just offer the comment that no attorney
    likes to produce a privilege log because then it admits what
    documents you have and what the precise reason is for
    withholding it. So, I think the concept of requiring a
    privilege log and saying that if you don't produce it you are
    waiving the privilege is one way to address that problem.
        Mr. Issa. Thank you.
        Mr. Chair, if there is time for a second round, I look
    forward to it, but I yield back.
        Mr. Johnson of Georgia. Thank you, Mr. Issa.
        At this time, we will turn to the gentleman from New York,
    Mr. Nadler, for five minutes.
        Chair Nadler. Well, thank you, Mr. Chair.
        We have all been frustrated by the undue delays in
    enforcing the Congressional Subpoena power through the courts.
        Mr. Hungar, do you think we could dispense with all that if
    we were to revive the inherent contempt power, and if so, how?
        Mr. Hungar. Well, as I suggested in my written testimony
    for instance, Congress could pass legislation that would
    authorize the imposition of fines in lieu of imprisonment,
    which I think everyone recognizes is a less than entirely
    salutary or desirable remedy in this day and age.
        Particularly in the case of Federal officials, there would
    also be the possibility of imposing salary restrictions or
    reductions, that is, using the appropriations power to preclude
    the payment of salaries to Federal officials who are
    obstructing Congressional Subpoenas and are found in inherent
    contempt of Congress by the House or the Senate.
        Those could at least be additional tools that might be
    effective in moving and advancing Congress' legitimate
    interests.
        Chair Nadler. None of those would be subjected to
    litigation?
        Mr. Hungar. Well, certainly I would expect, particularly
    the first time it was tried, that the contemnor would challenge
    that.
        Again, if it were done by legislation, if Congress, if the
    House or the Senate utilized appropriate procedures to ensure
    that the contemnor was allowed due process pursuant to the
    traditional standards for inherent contempt before a finding of
    contempt was made, that there would be strong arguments in
    favor of the validity of that approach.
        Chair Nadler. Let me ask Mr. Garvey the same question about
    reviving the inherent contempt power.
        Mr. Garvey. Thank you, Mr. Chair.
        Yeah, I think my thoughts are that the court has made quite
    clear that the inherent contempt power is one that Congress
    has. The possible benefits of bringing it back would be that
    Congress would no longer be reliant on the Executive Branch to
    bring a criminal prosecution or the courts to adjudicate their
    subpoenas.
        Just one note about litigation that can still come out of
    the inherent contempt power is that, if detained, the
    individual would still have the ability to bring a habeas
    corpus proceeding, which is what has happened in some of these
    historical examples.
        Chair Nadler. If not detained but simply fined with large
    fines, there would be no habeas corpus proceeding.
        Mr. Garvey. Yeah. I think that would--so that would be a
    different question. So, yeah, if the reinvigoration of the
    power was not one of detention but rather fines, then it is
    unlikely to have a habeas proceeding.
        At the same time, if the fines were imposed and not paid,
    the question becomes how do you enforce that fine and is it
    through the courts? Because that is the concern, is that we
    don't want to make changes to the subpoena enforcement
    framework to avoid the courts that ultimately end back up in
    the courts anyway.
        Chair Nadler. It is sort of a Catch-22.
        In recent years, we have seen the Executive Branch argue
    that Congress categorically cannot get a court to enforce its
    subpoenas. One version of that argument is that Congress can't
    sue the Executive Branch because there isn't a statute that
    says it can. Another version is that Congress doesn't have
    standing to sue.
        Mr. Fernandes and Mr. Hungar, we all have an intuition that
    these arguments are problematic, but I hope you can help
    explain what is wrong with them.
        What would happen if Congress suddenly couldn't enforce its
    subpoenas in Federal Court?
        Mr. Fernandes. I think if--I am sorry. I didn't know
    whether you wanted me to go first.
        Chair Nadler. Go on.
        Mr. Fernandes. If Congress is able to vindicate its
    interests in court it, again, creates this incredible
    disincentive for any sort of compliance from the Executive
    Branch. Also, it then places this huge burden on these other
    mechanisms, all which take a lot more political capital and
    raise the temperature of any given moment.
        The inherent contempt power that was referenced earlier
    before has not been used since 1935, and I think that is for a
    good purpose, at least in terms of the political optics of
    those sorts of things.
        Adjudication of the courts allows for Congress to vindicate
    its interests in a way that doesn't increase the political
    temperature and in a way that hopefully allows for oversight to
    be seen in a way rooted firmly in both the Constitution and our
    history.
        Chair Nadler. Thank you.
        I want to hurry up on one thing because I want to get one
    more question in.
        We have heard the concern that passing legislation to
    establish a cause of action and expedited review could
    incorrectly be viewed as an implicit admission that Congress
    didn't have those rights in the first place. I think the
    argument is wrong, but it is something I think we need to take
    seriously.
        How can we ensure that any legislation or resolutions we
    pass to strengthen our investigatory powers aren't misconstrued
    to weaken or even extinguish some of those powers?
        Mr. Fernandes?
        Mr. Johnson of Georgia. The time has expired, but the
    gentleman may answer the question.
        Mr. Fernandes. Sure. I mean, expedited procedures can be
    set up with findings in the legislation, acknowledging that
    there are other routes certainly preserving this, at least
    conversationally.
        Also, there have been expedited pathways set up on other
    subject matters, as I mentioned in my testimony, which doesn't
    sort of exclude other pathways. It just simply says that when
    things are going through the courts, there is a quicker way to
    adjudicate it.
        Chair Nadler. Thank you.
        As the Chair said, my time has expired, and I yield back.
        Mr. Johnson of Georgia. Thank you, Mr. Nadler.
        We will next hear from the gentleman from Mr. Ohio, Mr.
    Chabot, for five minutes.
        Mr. Chabot. Thank you, Mr. Chair.
        Thank you to all the Witnesses for appearing this morning
    in this hearing.
        I have served on the Judiciary Committee for 25 years now,
    and during that time I have seen impeachments--first President
    Clinton, I was one of the House managers, and then President
    Trump twice--and countless investigations, some of which
    resulted in the issuance of subpoenas to compel testimony of
    documents, depending on which party was in the majority in
    Congress and who was the President at the time.
        In recent years, specifically in the last two years and
    five months, it seems to me that the speedy and oftentimes
    hasty issuance of subpoenas has become much more prevalent due
    to political grand-standing.
        The issuance of a Congressional Subpoena not only comes at
    a financial cost to the Federal government--and to the
    taxpayers, of course, who ultimately foot the bill--but, it
    also strains relationships between Congress and the Executive
    Branch.
        What is often lost in the process of an investigation is
    the informal negotiating between the two branches. In fact, the
    Supreme Court recognized this process and noted that, quote,
    ``Each branch should take cognizance of an implicit
    constitutional mandate to seek optimal accommodation through a
    realistic evaluation of the needs of the conflicting branches
    in the particular fact situation,'' unquote.
        Sure, this give and take between the Executive Branch and
    Congress is time-consuming and oftentimes complex, but I
    believe it is a much more efficient and productive process than
    attempting to score political points by dragging Administration
    officials through a costly litigation process. I think that is
    the case whether it is Republicans or Democrats who are in the
    Congress or in the Executive Branch.
        Now, a couple of questions.
        Mr. Hungar, with respect to Congressional Subpoenas, can
    you give us a quick overview of the accommodations process--and
    I know we discussed it a little bit already this morning--what
    that process looks like and, probably more importantly, what it
    should look like between Congress and the Executive Branch, and
    provide some recent practical examples, if you would?
        Mr. Hungar. Sure.
        So, of course, at least in the vast majority of cases,
    Congress doesn't and shouldn't start the process by issuing a
    subpoena. It typically begins with a request for information to
    the Executive Branch, and there can be extended negotiations
    back and forth.
        Sometimes the Executive Branch, as it should, complies
    reasonably, but more often than not in these days there are
    substantial disagreements about the validity and scope of the
    request.
        Sometimes those can be resolved through negotiation. As I
    said earlier, it is important for a Committee to go through
    that process in good faith in the hope of resolving it.
        The fact of the matter is, and this has been increasingly a
    problem more recently, I think in part because the Executive
    Branch realizes that it has the upper hand when it knows that
    it is not likely to be forced to produce documents it doesn't
    want to produce, it has an incentive to refuse to produce those
    documents and to fail to engage in the negotiation process in
    good faith.
        Mr. Chabot. Thank you.
        What would you say are some of the pitfalls or negative
    consequences associated with Congress immediately or very soon
    in the process issuing a subpoena after not receiving
    everything in its initial request for information?
        Mr. Hungar. I mean, the courts have shown that they are
    reluctant, they really prefer not to get into disputes between
    the political branches, as we have seen, which I think explains
    part of the frustrations that have occurred in litigation.
        If it appears to the court, rightly or wrongly, that there
    has been a rush to issue a subpoena and sue, they may be more
    reluctant to act expeditiously and may, indeed, try to
    encourage the parties to go back through the process of
    negotiation and compromise.
        So, yes, it is important to give a good faith attempt to
    resolve the dispute through discussions before running to
    court.
        Mr. Chabot. Thank you.
        Before my time expires, I would just make the point, we
    have already mentioned the Fast and Furious and Attorney
    General Holder, but I do think that that was a time where,
    unfortunately, to the public it was one of those things where,
    why can't these people either ever work together or get it
    right?
        I think Congress looked oftentimes feckless. Even worse was
    that the Administration, the Attorney General, looked guilty of
    something, trying to hide something, and the public was really
    noticing that.
        So, that was a real black eye, I think, to the Congress,
    and especially the Justice Department, in how that all played
    out.
        My time has expired, so I yield back.
        Mr. Johnson of Georgia. I thank the gentleman from Ohio and
    will next recognize the gentleman from California, Mr. Lieu,
    for five minutes.
        Mr. Lieu. Thank you, Chair Johnson and Ranking Member Issa,
    for holding this important hearing.
        I would like to follow up on Chair Nadler's questions about
    inherent contempt, which is the power of Congress to impose
    consequences on both public and private sector Witnesses who
    ignore Congressional Subpoenas.
        So, Ms. Bean, my first question is to you. Prior to World
    War II, Congress used this power a number of times. Is that
    correct?
        Ms. Bean. Yes.
        Mr. Lieu. Just because Congress hasn't used this power in a
    while doesn't mean we don't have the power of inherit contempt.
    Is that right?
        Ms. Bean. That is correct.
        Mr. Lieu. Okay. One of these powers would be the ability of
    Congress to impose fines on Witnesses who disregard
    Congressional Subpoenas. Correct?
        Ms. Bean. Well, I believe Congress has that authority,
    although it has never been used to impose civil fines.
        Mr. Lieu. Congress actually used even more powerful
    authority, which is, in fact, we have imprisoned--we put people
    in jail for ignoring Congressional Subpoenas. Is that correct?
        Ms. Bean. Yes.
        Mr. Lieu. Okay. So, thank you very much.
        Mr. Hungar, you are absolutely correct that the first time
    Congress reuses its power will likely be litigated. You are in
    private practice, and you understand that incentives matter.
    So, right now, the current incentive, let's say with Don
    McGahn, is even as a private citizen, he can simply ignore the
    Congressional Subpoena, and at the end of the day, if the
    courts say he has to show up, he shows up and then he
    testifies. If there was an actual consequence there where not
    only would he have to show up, but he might have to pay a fine
    of let's say $50,000 if he was wrong in the litigation, that
    would probably be a pretty powerful incentive for someone to,
    in fact, not challenge in court and to show up. Is that
    correct?
        Mr. Hungar. I think that is correct. I mean, particularly
    for private subjects of congressional investigations, the
    costs, and risks of litigating those issues would be
    substantial. Private parties, generally, try to avoid getting
    into that position in the first place.
        Mr. Lieu. Thank you.
        Mr. Fernandes, I thought you made a good point about time.
    In terms of Congress, particularly the House of
    Representatives, we operate in two-year cycles. That means the
    House could flip. Chairships could change. So, if a Witness is
    able to delay a Congressional Subpoena more than two years--and
    often it will be less than two years because Congress usually
    doesn't issue a subpoena on day one of Congress. If they could
    simply delay it for, let's say, one and a half years,
    oftentimes circumstances could change so radically that
    essentially the Congressional Subpoena becomes meaningless.
    Isn't that correct, Mr. Fernandes?
        Mr. Fernandes. That is exactly correct, Congressman.
        Mr. Lieu. So, let me take my remaining time to just offer
    some thoughts. Both Democratic and Republican Administrations
    have ignored Congressional Subpoenas, and it is wrong when
    Republicans do it. It is wrong when Democrats do it. We saw,
    for example, that when a Democratic Administration delayed for
    more than two years having a Witness show up, that the
    Republicans didn't fix that when the Republicans were in
    control of the House and the Senate. Let's not make that
    mistake again.
        Democrats control the House and the Senate. Just because we
    believe we have a good President doesn't mean that we won't
    have future Presidents that won't do exactly what the former
    President did and run roughshod over the Constitution and
    Congress and the American people. We need to rein in the
    Executive Branch.
        I just want to note that under the Department of Justice,
    under Merrick Garland's leadership, it has taken the exact same
    view of maximizing presidential power to the point of
    absurdity. It is refusing to release the Barr memo. It is
    refusing to even say that the D.C. Court Panel case that says
    Congressional Subpoenas are meaningless was wrongly decided. In
    fact, it supports that decision. Then recently, the Department
    of Justice says it is going to act as the former President's
    private attorneys to defend the defamation lawsuit by Ms.
    Carroll.
        So, this is the same exact Department of Justice that has
    been maximizing presidential power to the great harm of our
    separation of powers, that is shredding the way the Framers set
    up our Constitution. We, as a Congress, need to rein in the
    Executive Branch. If we don't pass any reforms to try to rein
    in Executive Branch, then shame on us.
        I yield back.
        Mr. Johnson of Georgia. Thank you, Mr. Lieu.
        I will next recognize the gentleman from Wisconsin, Mr.
    Tiffany, for five minutes.
        Mr. Tiffany. Thank you, Mr. Chair.
        I have a question for Mr. Hungar to start with. The Supreme
    Court in Quinn v. United States held that there are certain
    limitations on Congress' subpoena authority. For example, the
    subpoena needs to serve a valid legislative purpose. What
    exactly does that mean?
        Mr. Hungar. Well, a valid legislative purpose in the views
    of the House and the Supreme Court has been long understood to
    be an extremely sweeping concept because anything that Congress
    may or could legislate on is within the Congress' legitimate
    purpose to investigate, and any sort of official misconduct or
    simply the implementation of congressional legislation and
    appropriations is also within the legitimate scope of
    congressional investigations, and, therefore, there is a
    legitimate legislative purpose in investigating those topics as
    well.
        Mr. Tiffany. Could you give me an example of a subpoena
    that may not serve a valid legislative purpose, give me an
    example?
        Mr. Hungar. Well, the court has suggested that
    investigations, for instance, that are aimed purely at exposing
    private misconduct would be beyond the scope or investigations
    that are essentially trying to take the place of a judicial
    proceeding, a function of the other branch of government would
    be inappropriate, but it is an extremely broad category of
    investigations that Congress is permitting to implement.
        Mr. Tiffany. Thank you, Mr. Hungar.
        I am going to yield back the balance of my time to the
    Ranking Member, Mr. Issa.
        Mr. Issa. I thank the gentleman. I appreciate that. I am
    going to follow up exactly where you left off.
        Let's go through some hypothetical examples, because I
    think it is important. Mr. Hungar, or for each of the
    panelists, would it be fair to say that investigating the
    actions of a President or some other official after they are in
    office, for the actions in their private life before they came
    to office--and I will use the example of Whitewater and
    President Clinton.
        Is it fair to say that investigating--and I am trying to be
    partisan on both sides here--is it fair to say that that would
    be something that after an election, trying to adjudicate
    something you claim the President did wrong before he came,
    would be outside a legislative purpose? Is that one example?
        Mr. Hungar. Well, I would hesitate to say that is outside
    legislative purpose, but I would say it is further removed,
    certainly further removed from the core of legislative purpose
    and, therefore, you are likely to see more resistance in the
    courts if you are trying to pursue such an investigation.
    Again, if it is a legitimate--it certainly depends on the
    justification being offered, as we have seen from the Supreme
    Court in the Mazars case. If there is a legislate need for
    Congress to get the information to legislate, for example, the
    mere fact that it was conduct prior to service in office
    doesn't preclude the investigation.
        Mr. Issa. On another note, there was some discussion
    about--whether an investigation is partisan or not. Most
    investigations in the House historically have had one party or
    the other leading it, normally the party in the majority,
    correct?
        Mr. Hungar. Yes.
        Mr. Issa. So, it is fair to say that partisan may not be
    the test. Let's go through a couple of recent examples very
    quickly. In the case of whether or not the U.S. attorneys were
    fired properly by George W. Bush. In that case, then John
    Boehner led a walkout of more than 100 Members of the House
    rather than voting for it. Did that diminish the legitimate
    right of the Congress to know whether or not those firings were
    for some nefarious purpose?
        Mr. Hungar. No.
        Mr. Issa. In the case of Fast and Furious, when you had a
    letter sent to Senator Grassley, which turned out to not be
    true, the investigation of why and how the Department of
    Justice clearly and knowingly lied to a U.S. Senator is--does
    it matter whether that is partisan in who is bringing it?
        Mr. Hungar. No.
        Mr. Issa. Lastly, for all the panelists, is there a
    structure you can see--and I do see one potentially--where we
    could extend our power well past two years of subpoenas by
    having an enduring document, just as we do have things
    appropriate over multiple Congresses? Anyone see that there is
    no remedy for that? It is not in the current legislation.
        Well, that one will be continued. I hope that all of you
    will ponder that, because I would like to set up a structure in
    any new legislation that gives us the ability not to have to
    rely on the next Chair for something that is ongoing, because I
    do believe that is part of what presidencies often rely on.
        With that, thank you. Mr. Chair. I yield back.
        Mr. Johnson of Georgia. Thank you. Next to be recognized
    will be the gentleman from Arizona, Mr. Stanton, for five
    minutes.
        Mr. Stanton. Good morning, Mr. Chair, Members of the
    Committee, and our esteemed panel. I want to thank each of you
    for spending your day with us today and taking our questions on
    these important issues.
        As each of you know, a defining characteristic of our
    system of government is the principle of checks and balances.
    It is not a new or novel idea. It is one that is outlined in
    our Constitution, discussed thoughtfully in James Madison's
    Federalist Papers, and, of course, it has been litigated before
    the Supreme Court. As part of our system of checks and
    balances, Congress, through committees and subcommittees like
    this one, has the power of inquiry, the power of oversight over
    the Executive Branch.
        What is new, though, at least more frequent, it would seem,
    are the Executive Branch's attempt to effectively stonewall the
    Congress when it moves to investigate Executive action and
    refusing to comply with Congressional Subpoenas. We have heard
    testimony today regarding four historical examples created
    under four different Presidents from both political parties,
    which has shown us that Congress must engage our third branch
    of government to enforce Congressional Subpoenas civilly
    through the courts. It is a time-consuming task that impedes
    and delays appropriate and necessary oversight.
        So, I am heartened today to see that there is bipartisan
    engagement we have on this important issue, and I look forward
    to working with my colleagues on this Committee to advance
    solutions that will allow Congress to better execute our
    constitutional duties.
        With that, I will turn to some questions. My first is for
    three of the panelists. There exists what I would call friendly
    criticisms of Congress, focusing on going to court more to
    enforce its subpoenas. As I understand that this critique, the
    argument is that if Congress shouldn't try to change the civil
    enforcement process because Federal Courts are simply
    inhospitable to Congressional Subpoena enforcement actions.
    What would you say to this criticism that our cases will never
    move quickly enough, even if we pass the statute requiring
    expedited review?
        How about Mr. Fernandes? I will start with you and then
    also ask Ms. Bean and Mr. Hungar.
        Mr. Fernandes. Thank you, Congressman.
        While there is no guarantee of how quick an adjudication
    can happen, at least the way these expedited review mechanisms
    have happened in other subject matters, so, for instance,
    apportionment cases, incredibly important congressional
    apportionment cases, we have seen that an expedited mechanism
    provides the prospect of a quicker adjudication. Now, in that
    statutory scheme, and in any expedited statutory scheme, there
    is no number-of-day requirement or no strict requirement of how
    long an adjudication can happen. I think that there is some
    optimism that the courts can, if given the necessary urge from
    Congress, expedite consideration and adjudication in these
    disputes.
        Mr. Stanton. Thank you.
        Either Ms. Bean or Mr. Hungar.
        Ms. Bean. I will just say that I think the courts would
    comply with the law. If there was a law that required them to
    have a duty to expedite and they were required to issue
    procedural rules that put that into effect, I think the courts
    would comply with the law.
        Mr. Hungar. I agree.
        I would only add that the proposed legislation that would
    allow the filing of a case in a three-judge District Court and
    then direct appeal to the Supreme Court would necessarily speed
    things up because it would skip a layer that we currently have
    to go through in getting final resolution.
        Mr. Stanton. All right. Thank you.
        Ms. Bean, I have a follow-up for you. In your written
    testimony, you advocate for Congress to establish a bicameral,
    bipartisan congressional counterpart to the Department of
    Justice's Office of Legal Counsel. So, I would like for you to
    elaborate on that. It is a really interesting idea. How would
    you propose such a body be organized, and how that legal
    opinion is drafted by the Legislative Branch might strengthen
    Congress' case for enforcement in court?
        Ms. Bean. Well, right now, the Department of Justice cites
    its own legal opinions all the time in court as if they were
    judicial opinions, and they have a very persuasive impact, and
    Congress has nothing similar to rely on. If Congress wanted to
    set up a counterpart, it has to be bipartisan, really truly
    bipartisan, and I think it would be better if it were bicameral
    as well. It doesn't have to be. You could just have the Senate
    legal counsel and the House general counsel form a body.
        Some people talk about having CRS do it. I don't think that
    is as good an idea, because they don't litigate in the courts
    and don't understand the law in the same way as the people who
    have to litigate. They could address a very small number of
    issues that are very bipartisan.
        For example, there is no absolute immunity to Congressional
    Subpoenas for Senior White House or Presidential aides. I think
    both parties could agree on that. Executive Privilege, the way
    to assert it, you have to have a written assertion by the
    President. You have to have a privilege log or it is waived.
        If we had those kinds of bipartisan, and especially
    bicameral opinions, I think it would be very influential in the
    court. It has worked for the Executive Branch, and it could
    work for Congress as well.
        Mr. Stanton. Those are great ideas.
        I yield back.
        Ms. Bean. You don't need a law either.
        Mr. Stanton. Yeah. Great ideas. Thank you so much for that
    testimony.
        I yield back.
        Mr. Johnson of Georgia. Thank you.
        I now recognize the gentleman from Texas, Judge Gohmert,
    for five minutes.
        Mr. Gohmert. Thank you, Mr. Chair. Appreciate this hearing
    and this time. This is something that we ought to be working
    diligently together to resolve, because we have not done a good
    job of oversight of some parts, especially Intel. I know some
    areas are outside our jurisdiction, but the Justice Department.
        Mr. Hungar, I was going to ask. You are familiar with what
    happened in Fast and Furious and the effort of Congress to get
    information about that, right?
        Mr. Hungar. Yes.
        Mr. Gohmert. That was such a frustrating time. To me, it
    wouldn't have mattered what Administration was in office but to
    actively work to get over 2,000 weapons in the hands of the
    drug cartels just seemed to be something bordering on criminal
    that we needed to really get to the bottom of, and we never
    did. Of course, the Attorney General was held in contempt.
    Still, as others have noted, there wasn't any firm decision
    until he was out of office, and it was really too late.
        So, I am curious, based on what you have seen and thought
    about in analyzing that, what would have been the best way to
    go about getting the documentation we never got to give us
    specifics about how that whole thing came about, who was
    responsible, why they did what they did? What would have been a
    better way to go about getting that information?
        Mr. Hungar. Well, I think in that case, as others have
    suggested, the biggest problem was simply the inordinate delays
    that occurred in the District Court, where it took literally
    three and a half years before the District judge ruled on the
    merits of the Committee's claims, which, of course, is
    completely unacceptable, given the timeframe of congressional
    investigations.
        Mr. Gohmert. Sure. How do we improve on that? There has got
    to be a way.
        Mr. Hungar. The proposals to mandate expedited proceedings
    in the District Court, as well as the courts of appeals, one of
    the bills that was proposed last term, last session, would have
    also authorized essentially appellate--going to the Court of
    Appeals for a prompt ruling, compelling the District Court to
    move quickly if the District Court fails to do so. I think that
    is a good idea as well.
        Mr. Gohmert. What kind of language would you use to do
    that?
        Mr. Hungar. An obligation on each level of the Federal
    judiciary to expedite to the greatest extent possible these
    proceedings, a provision enabling the Committee to go--
        Mr. Gohmert. Mr. Hungar, you are a good lawyer. You know
    when you leave back doors open, like, to the greatest extent
    possible, you will have Federal judges that say that is just
    not possible. I have got these other cases that are more
    important, and I am going to deal with those and I will get to
    the other as soon as I deem it is possible.
        I am wondering if there needs to be language that said the
    court had to give it priority over all other cases that are not
    life-threatening, if we needed to be more specific to get that
    case taken up.
        Mr. Hungar. That might be helpful. In fairness, most
    Federal District judges in these cases have proceeded
    relatively quickly, one month, four months, five months, things
    like that. The Fast and Furious case was a real aberration in
    that regard. The appellate process is what takes so long and
    allowing for direct review in the Supreme Court would help
    short-circuit that.
        Mr. Gohmert. Well, do you agree with Clarence Thomas'
    statement, Congress has no power to issue a legislative
    subpoena for private, nonofficial documents, whether they
    belong to the President or not?
        Mr. Hungar. No. The Supreme Court doesn't seem to, either.
        Mr. Gohmert. Well, I understand that. So, how far do you
    think we should be able to go, delving into nonofficial private
    documents?
        Mr. Hungar. Well, again, there has to be a legitimate
    legislative purpose, and certainly the Supreme Court has
    rightly recognized that merely trying to expose private
    individuals is not a legitimate legislative purpose. There are
    certainly going to be circumstances in which, for instance, the
    backpage investigation by the Senate a few years ago, where
    private entities have information that the Congress needs to
    address legislative responsibly about a problem.
        Mr. Gohmert. I see my time is expiring.
        I yield back.
        Mr. Johnson of Georgia. Thank you, Mr. Gohmert.
        We will next hear from the gentlelady from California, Ms.
    Lofgren, for five minutes.
        Ms. Lofgren. Thank you very much, Mr. Chair.
        This has been an interesting and important hearing, and I
    was listening carefully to my colleague, Mr. Chabot. He and I
    were elected the same year, 1995. So, we have been through a
    lot of these fights in the Judiciary Committee, and in the
    Congress. Thinking about the legitimate scope of an inquiry,
    legitimate legislative purpose, to some extent, it is in the
    eye of the beholder.
        When Republicans sought information from Democratic
    Administrations, Democrats in the House might not think it was
    legitimate. When Democrats did the same to a Republican
    President, the Republicans might not feel it is legitimate. In
    the end, what we have seen is that its diminishment of
    congressional authority relative to executive authority. I
    think that is not what the Founders had in mind. If we are able
    to put our partisan views to one side and think about
    strengthening the Legislative Branch, that we will make
    progress.
        I am wondering this: We have had several suggestions made
    here today. I love the idea of having a countervailing loss of
    legal counsel. I have thought that for a long time. It is
    absolutely bizarre the Administration cites itself as an
    authority in court and that somehow that is given some credence
    by the judiciary. So, we ought to have a countervailing
    provision.
        I think the expedited civil review is something that we
    need to pursue. The definition of what actually counts as
    privilege and the requirement that it be detailed through a
    privilege log in--detailed either in person or in writing, all
    those things, as well as a revitalization of inherent contempt,
    especially looking at the civil fines.
        So, here are the two questions. One, if we did all the
    above, would the element of having alternatives be viewed by a
    court as a way to defeat any of the other alternatives, because
    anything we do is going to be litigated at least initially?
        Here is the second question for each of the Witnesses. We
    have had oversight over the years. I remember being on the
    staff during the impeachment of Richard Nixon. We didn't have
    any White House officials refuse to come in and be interviewed
    by the Judiciary Committee at that time. Now, we see
    administrative officials just refusing to even respond. So, how
    did it come to this point?
        Those two questions, starting with you, Mr. Fernandes, Mr.
    Hungar, and Ms. Bean.
        Mr. Fernandes. Sure. So, thanks. I would like to take the
    first question first.
        I don't think that the existence of multiple options
    necessarily weakens any one given option. I do think, when you
    come before the courts for any particular judge who, or court
    that is hesitant to get into an interbranch dispute, you could
    see the subconscious punting to other mechanisms, and certainly
    you have seen courts pull away at times. You that you in the
    litigation of the Myers controversy of saying, well, there is
    an accommodations process. We are going to hold off until that
    is exhausted.
        So, it is certainly possible that it could be used by any
    given court as a way of sort of punting, and because they are
    hesitant to get involved in interbranch disputes, but I don't
    think that simply having those options weakens any one of them.
        Ms. Lofgren. Ms. Bean and then Mr. Hungar, I am going to
    run out of time before my second question gets answered.
        Ms. Bean. I was just going say to that, because most of
    these disputes are resolved in the accommodations process
    anyway, having these alternatives raises the cost for the
    Executive Branch to just say, I am not going to be even
    respond. So, I think that is an important thing to think. It is
    not just about courts. I agree with Mr. Fernandes that a court
    is not going to say, because you have other alternatives, I am
    not going to go forward here, other than some pressure that
    way, but if they are going to decide, they are going so decide.
        How did we get to this point? We got to this point because
    we can't enforce the subpoenas. So, every time a subpoena is
    not enforced, the Executive is emboldened to say, I am not
    going to engage in the accommodation process. So, I think it is
    sort of a self-fulfilling prophecy there.
        Ms. Lofgren. My time is expired.
        I wonder, Mr. Chair, if Mr. Hungar disagrees with the other
    speakers, if he could at least indicate that.
        Mr. Hungar. I don't disagree. I think there is a risk that
    courts might do that, but they shouldn't. In general, I don't
    think they would on the contempt power as a means for not
    granting relief.
        Ms. Lofgren. My time has expired.
        Mr. Chair, I yield back.
        Mr. Johnson of Georgia. Thank you.
        I now recognize Mr. Massie, the gentleman from Kentucky,
    for five minutes.
        Mr. Massie. Thank you, Mr. Chair.
        Just quickly, following up on Mr. Gohmert's point, if
    Congress could subpoena private and corporate records, that
    sets up a dangerous asymmetry, because we enjoy speech and
    debate clause, and our own documents aren't FOIA-able from
    those private citizens. So, I would be a little bit worried
    about that.
        Just quickly, I once had breakfast with Antonin Scalia and
    a dozen other Congressmen and the Republican Congressmen were
    complaining about the balance of power and how the courts
    needed to step in and restore the balance of power between the
    Executive and Legislative Branches, and this was in the context
    of Eric Holder not complying with requests for Witnesses or
    documents.
        Scalia said, ``well, you have all the power you need right
    there in the Constitution.''
        One of our colleagues said, ``Well, impeachment is so
    unwieldy.''
        Scalia laughed, and he said, ``I am not talking about
    impeachment. You fund all of the things you complain about
    purchase.''
        Now, obviously, the lack of funding can't directly compel
    documents to appear or Witnesses, but I think if we would just
    cut their funding 10 percent, you would see those documents
    delivered the very next day.
        So, anyways, with that, I don't really have questions for
    the Witnesses. I want to yield the balance of my time to the
    Ranking Member, who is over the target and right on point on
    this issue, Mr. Issa.
        Mr. Issa. Thank you, and my memory of Justice Scalia and
    those--his pushing back on our request is still very vivid.
        So, let's follow that up for each of the Witnesses. A
    powerful tool would be, in fact, to deny the Executive Branch
    individuals, or for that matter, Federal or--for that matter,
    private individuals, the ability to use Federal funds to defend
    themselves. I would like you to opine on the value of that.
    Conversely, the explicit ability to use Federal funds for
    voluntary compliance, if we were to set that up in the law very
    specifically, no appropriated funds may be used to fight, but,
    of course, appropriated funds can be used for all voluntary
    cooperation, would that be a powerful tool to both give and to
    take?
        I will start with Ms. Bean.
        Ms. Bean. I think it would be a very powerful additional
    tool, and I thought Mr. Hungar's suggestions about also making
    it possible to take away somebody's salary is a pretty powerful
    tool as well. Using the appropriations process in general is
    very difficult, because it doesn't coincide at the time that
    you need to get documents. You have to set up mechanisms that
    were not dependent upon a particular appropriations cycle, but
    your suggestions aren't dependent upon the appropriations
    cycle. So, I think it is a very interesting way to go.
        Mr. Issa. Mr. Hungar, you have watched a few of these in
    actual cases. The amounts spent by the Executive Branch let's
    just say, both in Fast and Furious, and in the Harriet Miers
    case, and the firing of the U.S. attorneys, do you think that
    the court would invalidate that, or do you think it would be
    held constitutional for us to limit some aspects of their
    ability to defend outside of voluntary cooperation?
        Mr. Hungar. I think that is a hard question. One thing I
    suspect a court, if faced with a situation in which the Justice
    Department said we can't litigate this because we have no
    funds, a court might be unwilling to entertain the dispute
    without perhaps appointing an amicus curiae counsel essentially
    to represent the government's interests which raises its own
    difficult challenges.
        So, I am not sure how that would come out. I think the
    courts would be very uncomfortable with being asked to litigate
    enforcement actions where one side has its hands tied behind
    its back. Certainly, it would create problems for the Justice
    Department, which might make them a little less willing to go
    to litigation.
        Mr. Issa. In most cases when I have done depositions, I
    have noticed that counsel typically will have the Executive
    Branch counsel and private counsel there. As a matter of fact,
    I almost never remember a Witness not bringing their personal
    counsel, in additional to the government counsel. Is that more
    or less your memory?
        Mr. Hungar. Generally speaking, yes.
        Mr. Issa. So, if we are trying to structure something, to a
    certain extent, we are really just eliminating the ability to
    use both.
        I see my time or Mr. Massie's time has expired and I yield
    back, and I thank the Chair and Mr. Massie.
        Mr. Johnson of Georgia. Thank you.
        I find it deeply disturbing but not surprising that Justice
    Scalia would be caught up in a secret, private meeting with
    legislators, with action before the courts likely to end up
    before his own court, and he is dispensing political, and
    perhaps legal advice to those Congresspeople. I find it deeply
    disturbing.
        Mr. Massie. Let me defend him really quickly. He refused to
    opine on the exact case.
        Mr. Johnson of Georgia. Just the mere fact of meeting and
    having a private breakfast is deeply disturbing.
        With that, I will yield to the gentleman from Tennessee,
    Mr. Cohen, for five minutes.
        Mr. Cohen. Thank you, Mr. Chair.
        Mr. Garvey, in your testimony, you talked about criminal
    contempt. I know there have been some questions asked about
    criminal contempt. What do you think? As I understand it, it
    was said that we didn't have--the House didn't pass due
    process, as the Senate had, to have criminal contempt, and we
    had to pass the statute. Is that your understanding that we
    needed to pass the statute, laying out due process for criminal
    contempt to be effectuated on a House subpoena?
        Mr. Garvey. If I understand your question correctly,
    Congressman, are you talking about criminal contempt or civil
    enforcement of subpoenas?
        Mr. Cohen. Criminal contempt.
        Mr. Garvey. Yes, so, criminal contempt is actually a pretty
    basic and straightforward process. The statutory provisions
    already lay out that process. The Committee votes; the House
    votes; it is forwarded to the U.S. Attorney, and the statute
    says that it shall be the duty of that U.S. Attorney to forward
    it to a grand jury, and at that point the prosecution would
    proceed under the control of the Executive Branch.
        Mr. Cohen. Well, maybe I am misremembering, or failing to
    remember something, but I thought we wanted to use criminal
    contempt to enforce our subpoenas. We were told that it was a
    1920-something case and the Senate had acted and laid out some
    rules and we had not in the House laid out any rules so that we
    needed to do that. I thought it was in the Rules Committee and
    it kind of got stuck there, but I am not sure. You can't put
    any more meat on the bones?
        Mr. Garvey. I don't know, Congressman. Due process comes up
    in some of the other contexts when we are talking about
    inherent contempt and reviving inherent contempt. It is clear
    that Congress would have to provide due process.
        Mr. Cohen. Right. Has the House not provided that inherent
    contempt? Is there something we need to do?
        Mr. Garvey. So, there are no existing rules that lay that
    out. The House could choose to proactively establish a process,
    and that is something that actually Congressman Lieu's bill
    would do, so it would exactly show what the process would look
    like and what due process would be provided to the contemnor.
    That is an option. It doesn't have to work that way. I mean,
    tomorrow the House could pass an inherent contempt resolution,
    calling, or authorizing, the Sergeant at Arms to detain someone
    and the House could just go forward with that resolution after
    resolution, sort of ad hoc-ly establishing the procedures for
    that proceeding.
        Ms. Bean. Could I--
        Mr. Cohen. Please. Please. Yes, Ms. Bean.
        Ms. Bean. I think you might be--one of the issues with
    criminal contempt, inherent criminal contempt, is we can't
    enforce it. With respect to the Executive Branch, in
    particular, the Justice Department, despite the law, says, I am
    not going to comply with the law. I am not going to prosecute
    against an Executive Branch official because I have
    prosecutorial discretion. So, one of the solutions to that is
    Congress could hire a private sector attorney, a former
    prosecutor, to prosecute these cases, and you could do that
    either through having a statute, or I think you could even do
    it through House rules and see if the court would accept that.
        So, criminal contempt has become unavailable because the
    Department of Justice simply won't use it when it comes to an
    Executive Branch official. So, you could have a private sector
    person do it.
        Mr. Cohen. Thank you, Ms. Bean.
        The inherent contempt, there is no reason not to pass Mr.
    Lieu's bill then, is there?
        Ms. Bean. I would have to look at that bill. I can't
    remember all the provisions in it, but I think his mostly has
    to do with civil fines, which is different than criminal
    contempt. I don't think his bill actually creates an authority
    if you need to do it in statute, to hire a private sector
    attorney to do a criminal contempt case in court.
        Mr. Cohen. Thank you.
        Let me ask. Ms. Lofgren asked a question about how did--
    when did this go so far off the cliff? When was it, do you
    believe, Ms. Bean or Mr. Garvey, who might have the history of
    it just as well or better, I don't know, that we started to get
    into all these problems? When did we lose collegiality and/or
    normal function and get to so averse? Was there a time?
        Ms. Bean. Well, we had decades of time where there was not
    a court case filed. Although people were unhappy with some
    things, it is only in the last 10, 12 years that we have
    started to see these court cases, because, as Mr. Hungar said,
    ``it isn't that the courts have changed. It is that the
    Executive Branch is becoming increasingly disrespectful of the
    accommodations process.''
        Mr. Cohen. Well, you said 10-12 years. That would take it
    back to Mr. Obama. Wasn't Mr. Bush--
        Ms. Bean. Well, Fast and Furious was really a watershed
    moment when the Administration just said we are just not going
    to cooperate, and you went through this seven-year journey
    through the courts.
        Mr. Cohen. How was Harriet Miers' case, that wasn't really
    exactly hunky-dory, was it?
        Ms. Bean. That is true, but you did get a pretty quick
    District Court decision.
        Mr. Johnson of Georgia. The gentleman's time has expired,
    but the Witness may complete her answer to the question.
        Ms. Bean. I saw Mr. Hungar nodding as well that I thought
    in the Miers case, you got a pretty quick decision from the
    District Court.
        Mr. Johnson of Georgia. Thank you. The time has expired.
        I will now move to the gentleman from Wisconsin, Mr.
    Fitzgerald, for five minutes.
        Mr. Fitzgerald. Thank you, Mr. Chair.
        On the heels of what Congressman Cohen just brought up, the
    criminal contempt, a question for Mr. Hungar and then for Ms.
    Bean, I guess. What are some of the pitfalls or consequences
    associated with Congress immediately issuing subpoenas rather
    than exhausting some of the other things that might be
    available to us? I mean, anybody that, whether they are private
    or public, would suddenly find themselves being served
    Congressional Subpoena. I would think that everyone would
    advise, guess what, you need an attorney and you need an
    attorney now.
        So, I don't want to lose the gravity of what a
    Congressional Subpoena is, and it seems to be today in our
    hearing it is being diminished by the idea that people aren't
    complying. There is still a lot there, isn't there, Mr. Hungar
    or Ms. Bean?
        Mr. Hungar. I certainly agree that except in perhaps in
    rare circumstances, Congress normally proceeds, which is to ask
    for the information, not demanding it, if it is appropriate. As
    I said, courts are more likely to be willing to act
    expeditiously to enforce subpoenas when it is clear that the
    Committee has gone through an appropriate effort to obtain the
    information voluntarily, and to negotiate a reasonable solution
    unless it has been unable to do so but nothing in the
    Constitution precludes the issuance of a subpoena from day one.
    It is just not necessarily the most effective or appropriate
    way to proceed.
        Ms. Bean. The only thing I would add is I agree with that
    completely, and we would always ask before issuing a subpoena.
    There are rare circumstances if you are trying to get
    information from a bank, if you are trying to follow the money,
    banks do require subpoenas from the very beginning. You can't
    just ask them to give you somebody's banking records. They
    won't do it. You have to have a subpoena.
        Mr. Fitzgerald. Very good. Just one other thing. In
    Committee on the Judiciary v. Miers, the court rejected the
    idea that Executive Privilege absolutely shields Senior White
    House staff from compliance with Congressional Subpoenas. Are
    there any unique considerations for Congress' ability to use
    civil enforcement in the context of Executive Branch officials?
        I would also open that up to Mr. Fernandes and Mr. Garvey.
        Mr. Garvey. I would just say, Congressman, that whenever we
    are talking about lawsuits filed by Congress against the
    Executive Branch, so when we are talking about subpoenas issued
    to Executive Branch officials, there are unique judicial
    considerations, and they are the considerations that often are
    what cause these cases to take so long, and they are just
    justiciability considerations. So, it is things like standing,
    cause of action, jurisdiction, and separation of powers. These
    are all difficult, thorny questions, and it seems, especially
    in the appeals, those are the specific issues that have been
    delaying a lot of these cases.
        Mr. Fitzgerald. Mr. Fernandes, do you have a comment on
    that?
        Mr. Fernandes. No, I agree with what Mr. Garvey said. I
    don't have anything additional to offer.
        Mr. Fitzgerald. Very good.
        Mr. Chair, I don't know if the Ranking Member has any other
    questions, Mr. Issa. I would yield to Mr. Issa.
        Mr. Johnson of Georgia. Well, I am sure Mr. Issa has some
    more questions.
        Mr. Issa. Well, I appreciate it. Thank you for yielding,
    and I will be brief.
        The nature of this bipartisan discussion today seems to be
    very good, and the options we are being given seem to be very
    good. The one question I would have for our Witnesses is, in my
    opening statement, I talked about speed of the current FOIA
    law, and often Executive Branch essentially tells us they are
    treating us as FOIA. Over the last few years, the speed with
    which Freedom of Information Act request--and we will include
    the last Administration and the two before it--has often been
    faster than Congress. Can any of you explain why an ordinary
    FOIA request can often get into court before a judge and a
    judge-ordered discovery to be turned over faster than in a
    congressional investigation?
        Mr. Hungar. I think part of the reason is that the law is
    well-established in that area and the courts view themselves as
    having an obligation to proceed with reasonable speed to
    effectuate the public interest and the Justice Department
    doesn't have the whole panoply of arguments that they throw up
    every time the Congress goes to court against them, because the
    issues have been resolved. It is really just a fight about what
    is or isn't privileged under the FOIA statute.
        So, I think the legislation that has been discussed here
    today would help by, for instance, establishing that it is
    clear there is a cause of action, which should be clear anyway,
    but the Justice Department continues to deny. It would help
    eliminate some of the obstacles that prevent the courts from
    proceeding as expeditiously as they do in the FOIA context.
        Mr. Issa. So, in closing, it would be fair to say that we
    should take the successes of FOIA and incorporate it in any
    legislation that we were to move forward with.
        Mr. Hungar. Yes.
        Mr. Johnson of Georgia. The time has expired, and the
    gentleman may answer the question--the Witness.
        Mr. Issa. I thank you, again.
        Thank you, Mr. Chair.
        Mr. Johnson of Georgia. Thank you.
        With that, we will go now to the gentleman from New York,
    Mr. Jones, for five minutes.
        Mr. Jones. Thank you, Mr. Chair, and thank you to each of
    our distinguished Witnesses for joining us this morning. We are
    still in the morning time.
        Look, I am really excited what is yet, again, a bipartisan
    discussion about how to solve complicated issues. My great
    thanks to everyone on the Full Judiciary Committee who has
    advanced legislative proposals for actually restoring
    congressional oversight authority over the past several years,
    including Representatives Dean, Lieu, and Ranking Member Issa,
    or Issa, excuse me. I am looking forward to working with all of
    you.
        I just want do acknowledge that the American people have
    the right to know what our government does. In fact, our
    democracy depends on it, but our right to know is only as real
    as our power to bring the truth to light. Over the last several
    decades, Presidents of both parties have exposed that Congress
    does not have the power we need to uncover the truth.
        When a Congressional Committee like ours wants to know what
    the Executive Branch is up to, we can ask an official to
    testify. If they refuse, we can issue a subpoena. A subpoena is
    a legal order. It is not optional. So, in principle, when we
    issue a subpoena, the official is supposed to show up and
    answer our questions. In practice, refusal has become all too
    commonplace.
        Say we subpoena someone, and the President orders that
    person not to show up. Maybe the President did something wrong
    and doesn't want us to hear from a key witness. I know it is
    hard to imagine, right? Let's just suppose. In that all-too-
    common scenario, we are stuck with four inadequate options.
        We can withhold funding or refuse to approve nominations,
    but then the American people pay the price for the President's
    obstruction. We can threaten to use our inherent authority to
    arrest someone for contempt. They will call our bluff, as we
    have seen. Congress has not used that power in over 80 years,
    as we have heard. We can ask the Federal prosecutors to bring
    criminal charges, but those prosecutors work for the very
    Administration we would be asking them to prosecute, as we have
    also heard today, and the conflict of interest speaks for
    itself in that regard.
        Finally, we can take defiant officials to court the way
    that this Committee just did in the Mr. McGahn case. The
    President can delay its civil enforcement case for years,
    running out the clock.
        The Trump Administration perfected this playbook,
    obstructing our inquiries over 30 times. As my esteemed
    colleague, Representative Lieu, underscored earlier in this
    hearing, the problem is bipartisan and the solution should be,
    too. We should not have to ask the President's permission to
    exercise our constitutional authority. We need to prepare for
    the worst, not assume the best, to design our democracy to be
    resilient to its greatest threats, rather than dependent on
    norms of good faith and cooperation between the branches that
    we can no longer count on.
        So, the time for a bipartisan effort and bipartisan
    legislation to reinvigorate our oversight powers is now in this
    Congress while we have a President committed to the
    Constitution, the rule of law, and our democracy.
        So, Ms. Bean, in your written testimony, you suggested that
    one way we could expedite judicial review of civil enforcement
    actions would be to enact a statute directing courts to apply a
    deferential standard of review to Congressional Subpoenas.
    Could you say more about how such a statute would work, and how
    it would help address this problem?
        Ms. Bean. So, I was talking about that in the context of
    having civil fines, if Congress imposed a civil fine. You could
    also specify the standard of review by the courts, for example,
    you could use a--say the only way you can overturn a civil fine
    is if there is an abuse of discretion. That is a commonly
    understood standard out there, and that is one that you could
    specify. Otherwise, the courts would go through a very long
    process, trying to decide what the correct standard of review
    is.
        You could also bar a de novo review of any factual finding.
    In other words, a court should not relitigate the facts. They
    should accept the facts as Congress found them. That would be
    another way that you could expedite judicial review, by taking
    those things off the table. You decide what the standard review
    is. You say fact-finding, you have to accept what the Congress
    has found, again, unless there is an abuse of discretion.
        Mr. Jones. Thank you for that.
        You also mentioned authorizing Congress to file a civil
    enforcement action directly in the D.C. Circuit Court of
    Appeals. Could you walk us through how that would help?
        Ms. Bean. Well, this was an idea in some other legislation
    out there. They suggested having a three-judge panel on the
    District Court, and then going directly from there to the
    Supreme Court, which has been done in other contexts. Another
    way you could do it is, if Congress decides that they are going
    to have a subpoena, you could have a--because Congresses can
    constitutionally fashion the jurisdiction of the courts, you
    could just specify that any dispute over subpoena goes directly
    to the Appellate Courts, and then from there to the Supreme
    Court. So, it is just an alternate way of thinking about it.
        Mr. Jones. Thank you.
        Thank you, Mr. Chair. I yield back.
        Mr. Johnson of Georgia. I am sorry. I was on mute.
        We will now resort to the gentleman from Oregon, Mr. Bentz,
    for five minutes.
        Mr. Bentz. Thank you, Mr. Chair. Thanks to the Witnesses.
    Thanks to all the Witnesses for an excellent hearing.
        The question I was going ask was just asked by the last
    Congressman, and it goes right to the question of how best to
    design our court's review system to be more expeditious, and I
    think that area has been exhausted.
        With that, Mr. Chair, I will yield back. I will yield to
    Mr. Issa if he would like. If not, I yield back to the Chair.
        Mr. Issa. No, I would like. Thank you very much. Everyone
    is being very generous.
        Ms. Bean, I want to follow up with something I think
    originated from you. Correct me if I am wrong. As we look at
    the idea that the Executive Branch opines, Department of
    Justice on their own ideas, rulings, standards, precedences,
    and that we don't have a countering part, would you, because
    the House and the Senate always has a difficulty coming
    together, would you suggest that the Senate have its own
    deliberative body, the House have its own deliberate body, but
    that in fact, we have a bicameral body that would deal at, if
    you will, the 10,000-foot level, and hopefully codify House and
    Senate rules and procedures so that there was some similarity
    between the two? Because currently, as you know, the Senate
    subpoenas are dealt with slightly differently than the House
    subpoenas.
        Ms. Bean. Well, I think you can go either way. The House
    and the Senate could have their separate ways of issuing
    official legal opinions on particular issues. I think it would
    be even more powerful in a court if it was bicameral, and it
    doesn't--it could be, you have people litigating in the House
    and litigating in the Senate. You could select a small number
    of issues that both sets of litigators know is a problem and
    get them together and use their best judgment to come out with
    a single opinion.
        So, I think that is the best way to go if you are going to
    influence the court. Again, you could have one process in the
    House and one process in the Senate, either way.
        Mr. Issa. You do believe that a bicameral, bringing
    together of these two standards--the House and the Senate,
    Chairmen and Ranking Members, often, the rules of these two
    bodies are inherently going to be different. Just to reiterate,
    I believe you are saying appropriately that if we were to form
    a bicameral group to harmonize at least some of these opinions,
    that would be the most powerful.
        Ms. Bean. Yes. I am not suggesting that they would issue
    procedural rules for any committees. I am just saying it would
    mostly be on third parties, on the Executive Branch or private
    parties that are contesting congressional oversight to have
    some general opinions about their constitutional obligations to
    cooperate with Congress.
        Mr. Issa. I just want to follow up quickly for the record,
    because there is always a discussion about how--and I think Mr.
    Massie brought this up--Congress will subpoena a private
    individual or a bank record and so on. Isn't it true that,
    essentially, the Executive Branch has a number of tools,
    including, when they issue a subpoena, you do have to compel?
    If they go to the FISA court, they can essentially use material
    not even necessarily available to the defendant when they
    receive a subpoena or a subject to a warrant. Aren't those
    tools that, in fact, Congress doesn't have, that certainly, in
    the balance of power should--Congress should have something
    close to the equivalent when they are investigating the
    Executive Branch?
        Ms. Bean. As I understand your question, it is: Should
    Congress have the ability to use subpoenas to get classified
    information? Is that what you are asking me?
        Mr. Issa. I am, because, as you know, the Executive Branch
    has no shortage of the ability to compel that, including from
    Congress, notwithstanding speech and debate.
        Ms. Bean. Yes. I think Congress should have the ability to
    subpoena or compel information including classified
    information.
        Mr. Issa. Lastly, the Executive Branch in several cases,
    but we will just use William Jefferson, has not historically
    felt that speech and debate prohibited them from using their
    subpoena and warrant capability for criminal investigations of
    Members of Congress, including entering the House to take
    computer records and the like.
        Ms. Bean. I am not an expert in that area. Perhaps Mr.
    Hungar knows more, but I know that there have been cases
    litigating those issues.
        Mr. Issa. Yeah. Mr. Hungar, although there is an agreement,
    is there any--has there been any statute that has updated the
    ability to limit the Executive Branch when they enforce
    warrants and subpoenas since the days of the--William
    Jefferson?
        Mr. Johnson of Georgia. The time has expired, but the
    gentleman can answer the question quickly.
        Mr. Hungar. Thank you.
        I don't believe there is any such statute, and that was an
    area of recurring concern for the House when I was a general
    counsel, and I suspect that those problems still remain today.
        Mr. Issa. Thank you.
        Thank you, Mr. Chair.
        Mr. Johnson of Georgia. Thank you.
        Now, we come to a part of the hearing where we have all
    been waiting so anxiously for. It is the five minutes for the
    gentlelady from North Carolina, Ms. Ross.
        You may proceed.
        Ms. Ross. Well, thank you very much, Mr. Chair and Ranking
    Member. Such an important hearing and really good questions.
        I just have a few, and they are pretty technical questions,
    but I think they are important, because so many of these issues
    have been going to the courts. My first question is for Mr.
    Garvey. In Trump v. Mazars, the Supreme Court said in dicta
    that recipients have long been understood to retain common-law
    privileges with respect to certain materials, such as attorney/
    client communications, and the opinion cited a number of CRS
    reports to support that statement. Is it your understanding
    that the CRS reports that the court cited actually support this
    dicta?
        Mr. Garvey. Thanks for that question, Congresswoman.
        The reports that were cited were from 2003, which was
    before I arrived here at CRS. I have looked at that report, and
    I would say, no, I don't think the report supports that
    proposition. Congress' position has long been that it is not
    bound by common-law privileges. Instead, Congress has said that
    it is at the discretion of the Committee Chair as to whether or
    not to accept that type of a privilege. In fact, there are
    multiple House Committees who have that specifically in their
    Committee's rules. So, you know, I think that line in Mazars is
    an odd one, and it is one that has been subject to a lot of
    criticism.
        Ms. Ross. Okay. Ms. Bean, does the court's dicta square
    with your experience in congressional investigations?
        Ms. Bean. It does not. For my entire 30 years, my
    understanding was that the Congress is not bound by common-law
    privileges, and part of the reason why is our oversight does
    not have to do with personal liability, criminal or civil. We
    are gathering information for policy purposes, for legislative
    purposes, and, therefore, that is a reason why those common-law
    privileges that were developed in the courts we thought did not
    apply to Congress.
        Ms. Ross. That is great.
        Then, Mr. Hungar, would you like to weigh in on this?
        Mr. Hungar. Sure. Yes. Certainly, it was always the
    position of the General Counsel's Office at the House and I am
    sure still is that the House is not obligated to recognize
    common-law privileges, that dictum in the Mazars decision,
    though, may well come up in future cases that are litigated.
    So, it is maybe something that Congress would want to address
    legislatively, just to remove any doubt.
        Ms. Ross. Thank you very much for that.
        That was really my only question, though I do want to say
    to Mr. Fernandes, as a graduate of Brown University and the
    University of North Carolina, you have a very fine pedigree.
        Mr. Fernandes. Thank you, Congresswoman.
        Ms. Ross. Thank you very much.
        I yield back.
        Mr. Johnson of Georgia. I thank the gentlelady.
        Mr. Issa, I am extremely reluctant to order a second round
    of questioning for fear that Members on the congressional side
    would show up and yield you all their time and you would be
    overexposed to the Witnesses. So, with that in mind, I will
    refrain from a second round.
        I will thank the Witnesses for appearing before us today
    and thank my colleagues for being here today, and this will
    conclude our hearing.
        Without objection, all Members will have 5 legislative days
    to submit additional written questions for the Witnesses, or
    additional materials for the record.
        With that, the hearing is adjourned.
        [Whereupon, at 12:13 p.m., the Subcommittee was adjourned.]

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