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




             CIVIL ENFORCEMENT OF CONGRESSIONAL AUTHORITIES

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

                                HEARING

                               BEFORE THE

    SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                         TUESDAY, JUNE 8, 2021

                               __________

                           Serial No. 117-26

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
		  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

	             U.S. GOVERNMENT PUBLISHING OFFICE

48-307 			    WASHINGTON : 2022                       
                       
                       
                       
                       
                       
                       
                       COMMITTEE ON THE JUDICIARY

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

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

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

           SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
                              THE INTERNET

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

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

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

                              ----------                              

                         Tuesday, June 8, 2021

                                                                   Page

                           OPENING STATEMENTS

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

                               WITNESSES

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

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

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

 
             CIVIL ENFORCEMENT OF CONGRESSIONAL AUTHORITIES

                              ----------                              


                         Tuesday, June 8, 2021

                     U.S. House of Representatives

             Subcommittee on Courts, Intellectual Property,

                            and the Internet

                       Committee on the Judiciary

                             Washington, DC

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

?

      

                 MR. JOHNSON OF GEORGIA FOR THE RECORD

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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:]


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

                 STATEMENT OF THOMAS G. HUNGAR

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

                 STATEMENT OF PRAVEEN FERNANDES

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