[Congressional Record Volume 163, Number 170 (Monday, October 23, 2017)]
[House]
[Pages H8059-H8061]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     CONGRESSIONAL SUBPOENA COMPLIANCE AND ENFORCEMENT ACT OF 2017

  Mr. ISSA. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 4010) to amend the Revised Statutes of the United States and 
title 28, United States Code, to enhance compliance with requests for 
information pursuant to legislative power under Article I of the 
Constitution, and for other purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 4010

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Congressional Subpoena 
     Compliance and Enforcement Act of 2017''.

     SEC. 2. ENFORCEMENT OF CONGRESSIONAL SUBPOENAS.

       (a) In General.--Chapter 85 of title 28, United States 
     Code, is amended by inserting after section 1365 the 
     following:

     ``Sec. 1365a. Congressional actions against subpoena 
       recipients

       ``(a) Special Rules.--In any civil action brought by the 
     United States House of Representatives, the United States 
     Senate, or a committee or subcommittee thereof, against the 
     recipient of a subpoena to secure declaratory, injunctive, or 
     other relief as may be appropriate concerning the failure to 
     comply with a subpoena issued by a congressional committee or 
     subcommittee, the following rules shall apply:
       ``(1) The action shall be filed in a United States district 
     court of competent jurisdiction.
       ``(2) It shall be the duty of the United States district 
     courts, the United States courts of appeal, and the Supreme 
     Court of the United States to advance on the docket and to 
     expedite to the greatest possible extent the disposition of 
     any such action and appeal.
       ``(3) If a three-judge court is expressly requested by the 
     plaintiff in the initial pleading, the action shall be heard 
     by a three-judge court convened pursuant to section 2284 of 
     title 28, United States Code, and shall be reviewable only by 
     appeal directly to the Supreme Court of the United States. 
     Such appeal shall be taken by the filing of a notice of 
     appeal within 10 days, and the filing of a jurisdictional 
     statement within 30 days, of the entry of the final decision.
       ``(b) Monetary Penalties in Cases Involving Government 
     Agencies.--
       ``(1) The court may impose monetary penalties directly 
     against the head of a Government agency or a component 
     thereof held to have willfully failed to comply with any part 
     of a congressional subpoena.
       ``(2) No appropriated funds, funds provided from any 
     accounts in the Treasury, funds derived from the collection 
     of fees, or other Government funds shall be used to pay any 
     monetary penalty imposed by the court pursuant to this 
     section.
       ``(c) Waiver of Privilege.--Any assertion of a privilege or 
     other ground for noncompliance (whether statutory, common 
     law, or otherwise) asserted by the recipient of a 
     congressional subpoena may be determined to have been waived 
     as to any particular record withheld from production if the 
     court finds that the recipient failed in a timely manner to 
     comply with the requirement of section 105 of the Revised 
     Statutes of the United States that it produce a privilege log 
     with respect to such record.
       ``(d) Definition.--For purposes of this section, the term 
     `Government agency' means an executive department listed in 
     section 101 of title 5, United States Code, an independent 
     establishment, commission, board, bureau, division, or office 
     in the executive branch, or other agency of the Federal 
     Government, including wholly or partly owned Government 
     corporations.''.
       (b) Clerical Amendment.--The table of sections for chapter 
     85 of title 28, United States Code, is amended by inserting 
     after the item relating to section 1365 the following:

``1365a. Congressional actions against subpoena recipients.''.

     SEC. 3. COMPLIANCE WITH CONGRESSIONAL SUBPOENAS.

       (a) In General.--Chapter seven of title II of the Revised 
     Statutes of the United States (2 U.S.C. 191 et seq.) is 
     amended by adding at the end the following:

     ``SEC. 105. RESPONSE TO CONGRESSIONAL SUBPOENAS.

       ``(a) Subpoena by Congressional Committee.--Any recipient 
     of any subpoena from a congressional committee or 
     subcommittee shall appear and testify or produce records in a 
     manner consistent with the subpoena and this section.
       ``(b) Congressional Subpoenas for Records.--
       ``(1) Identification of records withheld.--In the case of a 
     record that is withheld, in whole or in part, by the subpoena 
     recipient, the subpoena recipient shall provide a log 
     containing the following information concerning such record:
       ``(A) An express assertion and description of the legal 
     basis asserted for withholding the record.
       ``(B) The type of record.
       ``(C) The general subject matter.
       ``(D) The date, author, and addressee.
       ``(E) The relationship of the author and addressee to each 
     other.
       ``(F) The custodian of the record.
       ``(G) Any other descriptive information that may be 
     produced or disclosed regarding the record that will enable 
     the congressional committee or subcommittee issuing the 
     subpoena to assess the legal basis asserted for withholding 
     the record.
       ``(2) Missing records.--In the case of any record 
     responsive to the subpoena submitted under paragraph (1) that 
     was, but no longer is, in the possession, custody, or control 
     of the subpoena recipient, the subpoena recipient shall 
     identify the record (including the date, author, subject, and 
     each recipient of the record) and explain the circumstances 
     under which the record ceased to be in the possession, 
     custody, or control of the subpoena recipient.
       ``(3) Electronic records.--Electronic records shall be 
     produced pursuant to this subsection in their native or 
     original file format. Electronic records shall be delivered 
     on

[[Page H8060]]

     a storage device (such as compact disk, memory stick, or 
     thumb drive) and, to the extent feasible, shall be organized, 
     identified, and indexed electronically and shall include an 
     index describing the contents of the production.
       ``(c) Definitions.--For purposes of this section the term 
     `record' includes any books, papers, documents, data, or 
     other objects requested in a subpoena issued by a 
     congressional committee or subcommittee.''.
       (b) Clerical Amendment.--The table of contents for chapter 
     7 of title II of the Revised Statutes of the United States is 
     amended by adding at the end the following:

``105. Response to congressional subpoenas.''.

     SEC. 4. RULE OF CONSTRUCTION.

       Nothing in this Act shall be interpreted to diminish 
     Congress' inherent authority or previously established 
     methods and practices for enforcing compliance with 
     congressional subpoenas, nor shall anything in this Act be 
     interpreted to establish Congress' acceptance of any asserted 
     privilege or other legal basis for noncompliance with a 
     congressional subpoena.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
California (Mr. Issa) and the gentleman from New York (Mr. Nadler) each 
will control 20 minutes.
  The Chair recognizes the gentleman from California.


                             general leave

  Mr. ISSA. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days to revise and extend their remarks and include 
extraneous material on H.R. 4010, currently under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  There was no objection.
  Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, this bill comes to you, having been unanimously voted on 
a recorded vote out of committee, but it has been a long time in coming 
and it has a long history of its need. Both under Chairman Conyers, 
during the last years of the Bush administration, and under my 
chairmanship on the Oversight and Government Reform Committee, we 
discovered a flaw in Congress' subpoena power.
  Congress has, and has always had, and has been supported all the way 
by the Supreme Court, the need to do oversight. With that, we issued 
subpoenas. The enforcement of those subpoenas has come into conflict 
over the last several years, both during Mr. Conyers' chairmanship when 
he subpoenaed Harriet Miers to appear, and during my time when I 
subpoenaed records by the Department of Justice. In both cases, the 
administrations decided that it was appropriate to question the 
standing and to delay.
  Those delays were unfair to the body and unfair to the American 
people because it denied them in any reasonable period of time the 
effect of factfinding. This is not a partisan issue. It is, in fact, an 
issue that has already been decided for the American people. Under the 
Freedom of Information Act, if you do not receive documents within a 
reasonable period of time, you have the right to go to court. You have 
standing as a private citizen or an interest group, and the court will 
decide what documents are appropriate for you to receive.
  Yet this very question that was not once, but twice, defended by two 
different administrations of two different parties calls into question 
the ability in a timely fashion for Congress, the House or the Senate, 
to receive the information or the appearance of a witness it needs. We 
do not seek any new power under this legislation. We only seek an 
expeditious review by a Federal judge of a claim, either for the 
appearance of an individual or for documents appropriate to our 
oversight.
  For that reason, I am pleased that both Republicans and Democrats 
within the committee saw fit to unanimously support this legislation. 
We believe that it is measured and it is also time.
  Mr. Speaker, I reserve the balance of my time.
  Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in strong support of H.R. 4010, the Congressional 
Subpoena Compliance and Enforcement Act of 2017. My support of this 
legislation is tied to my view of our committee's responsibility to 
conduct oversight of the executive branch.
  Nearly a century ago in McGrain v. Daugherty, the United States 
Supreme Court framed that responsibility this way: ``A legislative body 
cannot legislate wisely or effectively in the absence of information 
respecting the conditions which the legislation is intended to affect 
or change; and where the legislative body does not itself possess the 
requisite information--which not infrequently is true--recourse must be 
had to others who possess it.''
  In other words, 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. We should be very 
clear on this point. Congress does not require a statute in order to 
enforce its subpoenas in Federal court.
  We know this, of course, because in 2008, the House Judiciary 
Committee went to court to defend that authority. Ruling in favor of 
the committee, the court held that the Bush administration's claim of 
absolute immunity from our process ``is entirely unsupported by 
existing case law.''
  In effect, both government officials and private individuals have a 
legal obligation to comply with the duly issued congressional subpoena 
whether or not the bill before us today is enacted into law, still this 
legislation is useful as a means to codify certain practices and to 
expedite enforcement of subpoenas in Federal court.
  It also puts the House on equal footing with the Senate, which has 
had a statute in place since 1978, allowing that body to enforce at 
least some of its subpoenas in Federal court.
  Mr. Speaker, I thank Chairman Goodlatte for working with us to make 
sure that we strike the right balance. This bill both protects our 
existing authority and mitigates many concerns about abusive subpoena 
power by a runaway committee. I also want to thank the gentleman from 
California (Mr. Issa) for his leadership on this issue.
  We often disagree about the issues we should prioritize for 
oversight, but I suspect that we stand together on the importance of 
oversight, both to our committee and to the Congress as a whole.
  Mr. Speaker, I ask that my colleagues support the measure, and I 
reserve the balance of my time.
  Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I want to further echo the gentleman from New York's 
comments. Mr. Nadler is right. We will often, almost unanimously, find 
a way to disagree on what to look into at various times as a body. But 
whether it is a Democratic chairman or Republican chairman looking into 
something, whether it is a Republican administration or a Democratic 
administration, it is clear that we must, in fact, if a subpoena is 
issued, be able to enforce it in a timely fashion.
  Under this legislation, it has a number of safeguards, but the most 
important one is the three-judge panel that will review these, followed 
by an expedited process at the U.S. Supreme Court.

  I might note, the interesting history of the two cases Mr. Nadler and 
I are talking about is one in which a Democratic chairman enforced a 
subpoena, but had to go to a recently appointed Republican judge, who, 
in a fairly reasonable period of time, reached the conclusion that: 
one, the committee had standing, and the House had standing and; two, 
that it was really without merit for the administration--then the Bush 
administration--to claim this immunity, this newfound immunity.
  Similarly, in a slightly longer period of time, but coincidentally, a 
Republican chairman went before a freshly minted appointee of the very 
President who was refusing to comply, and she reached the decision that 
the documents were unfairly withheld and ordered them released.
  So I think the interesting thing to all of us is the independence of 
the judiciary has worked not once but twice. We only want to codify it 
in a way that would cause the judiciary to have that opportunity in a 
timely fashion, and for the people's right to know to be recognized in 
that same expeditious fashion.
  As Mr. Nadler said, the Senate has, for a long time, had a portion of 
what we are doing here today. It is an oddity that two coequals have 
not had the same ability during those many years since the late 1970s.
  Mr. Speaker, I reserve the balance of my time.

[[Page H8061]]

  

  Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
  I want to share one last thought before closing. In our markup of 
this bill, the gentleman from California (Mr. Swalwell) had this to say 
about a recent experience in the Intelligence Committee:
  ``We had interviewed a witness just 2 weeks ago with respect to our 
Russia interference investigation. . . .
  ``After the interview, he gave a public statement . . . and said that 
he had withheld information from the committee because he was not under 
subpoena.
  ``And he also stated that he felt like he had certain privileges to 
assert that allowed him to withhold this information.
  ``And so I saw right there . . . that even under a subpoena, 
individuals believe''--some individuals believe--``that without 
necessarily having a judicial or legal basis for privilege that they 
could just assert it.
  ``And I believe that is because the public is starting to perceive 
that our subpoena power does not have the weight that it should.''
  Wherever the Intelligence Committee's investigation lands, Mr. 
Speaker, we have a great deal of work to do. Given some of our current 
challenges, it is more important than ever for the House to conduct 
substantive oversight of the executive branch. This bill contributes to 
that effort, and I urge my colleagues to support it.
  Mr. Speaker, I yield back the balance of my time.
  Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I, too, urge the House to pass this bill, move it to the 
Senate in a timely fashion, and create an equal standing between the 
House and the Senate as to enforcement of its subpoenas.
  I join with my colleague, the gentleman from California (Mr. 
Swalwell), in the frustration that individuals often feel that they 
have privileges in a vague sense that are not to be asserted, but 
simply not to occur.
  In the last administration, we have even had individuals claim that 
they basically lied as little as they needed to, to protect some 
question of a classified nature. These kinds of claims, in addition to 
the law enforcement sensitive, confidential, and other security 
clearance claims, which are not codified in statute, yet often are the 
reason for delay or outright refusal to deliver documents, flies in the 
face of the ability--sometimes behind closed doors, sometimes in 
public--for Congress' ability to conduct oversight. I look forward to 
this legislation becoming law, and I think I will close with just one 
more item.
  Mr. Nadler and I have served together as chairman and ranking member 
for a number of years. We share something which is the many years that 
we have been here in Congress, we have seen the frustration of both 
parties trying to do their job against another branch that often takes 
advantage of the natural rivalry between two different parties.
  This legislation is designed to reduce that, to reduce the ability 
for the executive branch or other outside groups to, if you will, take 
advantage of the natural division between the two of us. After so many 
years of being here, the one thing I have learned is that to diminish 
the House's and the Senate's ability to represent the American people 
is to diminish our Republic.
  Mr. Speaker, I urge passage, and I yield back the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, although the power of Congress to 
investigate is not set forth in any particular clause in the 
Constitution, congressional investigations trace their roots back to 
the earliest days of our Republic. In fact, what is thought to be the 
first congressional investigation occurred in 1792, when the House 
appointed a select committee to investigate the massacre of American 
troops under the command of Major General Arthur St. Clair. The 
resolution authorizing that investigation stated that the committee 
shall ``be empowered to call for such persons, papers, and records, as 
may be necessary to assist their inquiries.''
  Upon learning of the investigation, President Washington assembled 
his cabinet to seek their counsel. His cabinet, which included Thomas 
Jefferson and Alexander Hamilton, unanimously concluded that the House 
had every right to conduct its inquiry and request papers from the 
President. President Washington directed that the relevant papers be 
provided to the House and the War and Treasury Departments provided 
voluminous records to the committee.
  Unfortunately, not all congressional investigations are met with the 
cooperation the first investigation received. Rather, sometimes 
Congress and its committees must rely on another inherent power derived 
from the Constitution to investigate effectively--the congressional 
subpoena power.
  As the Supreme Court has observed, although ``there is no 
[constitutional] provision expressly investing either house with the 
power to make investigations and exact testimony . . . the power of 
inquiry--with process to enforce it--is an essential and appropriate 
auxiliary to the legislative function. . . . Experience has taught that 
mere requests for information often are unavailing . . . so some means 
of compulsion are essential to obtain what is needed.''
  That means of compulsion is often a subpoena issued by a 
congressional committee backstopped by a civil action filed in federal 
district court. In recent years, the House and its committees have 
pursued two such civil actions, including one filed by this Committee, 
to enforce compliance with congressional subpoenas.
  The legislation we are considering today, the Congressional Subpoena 
Compliance and Enforcement Act, codifies and strengthens the existing 
civil enforcement mechanisms thereby reinforcing the powers granted 
Congress in Article I of the Constitution. This legislation creates a 
statutory framework for compliance with and enforcement of 
congressional subpoenas through a few targeted changes to federal law.
  First, the bill puts in place a statutory requirement that recipients 
comply with congressional subpoenas. Second, the bill statutorily 
requires subpoena recipients to provide a congressional committee with 
a privilege log if they assert a legal privilege as a reason for 
withholding subpoenaed materials. Finally, the bill provides that 
congressional subpoena enforcement cases are to receive expedited 
review in the federal courts and that a congressional committee may 
request that a subpoena enforcement case be heard by a three-judge 
panel of the district court, with direct appeal to the Supreme Court.
  While it is true that some of what is addressed by the bill is 
currently covered through negotiation with subpoena recipients and is 
recognized in the precedents of courts in the D.C. Circuit, the current 
statutory requirements related to compliance with and enforcement of a 
committee subpoena are limited. Indeed, the existing civil subpoena 
enforcement statute only covers the Senate and does not apply to Senate 
subpoenas issued to the Executive Branch. It is time that we put in 
place a statutorily created, expedited civil enforcement mechanism for 
congressional subpoenas. Relying on the existing framework to enforce 
congressional subpoenas has proved to be an inadequate means of 
protecting congressional prerogatives.
  I thank Mr. Issa for introducing this legislation and urge my 
colleagues on both sides of the aisle to support it. This bill is a 
necessary step to strengthen Congress's ability to exercise its Article 
I legislative powers.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from California (Mr. Issa) that the House suspend the rules 
and pass the bill, H.R. 4010, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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