[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
CIVIL ENFORCEMENT OF CONGRESSIONAL AUTHORITIES
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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
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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
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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
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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
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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
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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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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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