[House Report 115-360]
[From the U.S. Government Publishing Office]


115th Congress }                                          { REPORT
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                          { 115-360

======================================================================
 
     CONGRESSIONAL SUBPOENA COMPLIANCE AND ENFORCEMENT ACT OF 2017

                                _______
                                

October 23, 2017.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 4010]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred 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, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     3
Hearings.........................................................     7
Committee Consideration..........................................     7
Committee Votes..................................................     7
Committee Oversight Findings.....................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     8
Duplication of Federal Programs..................................    10
Disclosure of Directed Rule Makings..............................    10
Performance Goals and Objectives.................................    10
Advisory on Earmarks.............................................    10
Section-by-Section Analysis......................................    10
Changes in Existing Law Made by the Bill, as Reported............    11

                             The Amendment

     The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

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 
        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 
privilege or other legal basis for noncompliance with a congressional 
subpoena.

                          Purpose and Summary

    The Congressional Subpoena Compliance and Enforcement Act 
enhances compliance with subpoenas issued by congressional 
committees and strengthens and clarifies the ability of the 
House and Senate to enforce subpoenas issued by their 
respective committees. It does this in two principal ways. 
First, it requires recipients of congressional committee 
subpoenas to comply with such subpoenas and, to the extent that 
a legal privilege may apply to subpoenaed material, the bill 
requires the production of a privilege log. Second, the bill 
provides for expedited judicial enforcement of congressional 
committee subpoenas in cases in which the House or the Senate 
authorize a civil action to enforce a subpoena. By addressing 
these matters related to congressional subpoenas, this 
legislation helps to reinforce Congress's Article I powers.

                Background and Need for the Legislation


                    A. CONGRESSIONAL SUBPOENA POWER

    A congressional committee's power to investigate and issue 
subpoenas in furtherance of an investigation derives from the 
legislative authority granted to Congress in Article I of the 
Constitution. Although ``there is no [constitutional] provision 
expressly investing either house with 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.''\1\ Indeed, ``the 
Necessary and Proper Clause gives rise to Congress's implied 
right to issue and enforce subpoenas''\2\ as Congress must have 
the ``auxiliary powers as are necessary and appropriate to [the 
legislative] end.''\3\
---------------------------------------------------------------------------
    \1\McGrain v. Daugherty, 273 U.S. 135, 161, 174 (1927).
    \2\Committee on Judiciary, U.S. House of Representatives v. Miers, 
558 F.Supp.2d 53, 84 (D.D.C. 2008).
    \3\McGrain, 273 U.S. at 175.
---------------------------------------------------------------------------
    As the Supreme Court reasoned in McGrain v. Daugherty,

          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 do possess it. Experience has taught that mere 
        requests for such information often are unavailing, and 
        also that information which is volunteered is not 
        always accurate or complete; so some means of 
        compulsion are essential to obtain what is needed. All 
        this was true before and when the Constitution was 
        framed and adopted. In that period the power of 
        inquiry--with enforcing process--was regarded and 
        employed as a necessary and appropriate attribute of 
        the power to legislate--indeed, was treated as inhering 
        in it. Thus there is ample warrant for thinking, as we 
        do, that the constitutional provisions which commit the 
        legislative function to the two houses are intended to 
        include this attribute to the end that the function may 
        be effectively exercised.\4\
---------------------------------------------------------------------------
    \4\Id. at 175.

    In other words, as the district court observed in House 
Judiciary Committee v. Miers, ``there can be no question that 
Congress has a right--derived from its Article I legislative 
function--to issue and enforce subpoenas, and a corresponding 
right to the information that is the subject of such 
subpoenas.''\5\ Several Supreme Court decisions confirm the 
view of the court in Miers. In Eastland v. U.S. Servicemen's 
Fund, the Court held that ``[t]he power to investigate and to 
do so through compulsory process plainly falls within [the] 
definition [of Congress's legislative function].''\6\ And, in 
Barenblatt v. United States, the Court stated that the ``scope 
of the power of inquiry . . . is as penetrating and far-
reaching as the potential power to enact and appropriate under 
the Constitution.''\7\ The Court in Watkins v. United States 
reasoned that ``[i]t is unquestionably the duty of all citizens 
to cooperate with the Congress in its efforts to obtain the 
facts needed for intelligent legislative action. It is their 
unremitting obligation to respond to subpoenas, to respect the 
dignity of the Congress and its committees, and to testify 
fully with respect to matters within the province of proper 
investigations.''\8\
---------------------------------------------------------------------------
    \5\Miers, 558 F.Supp.2d at 84.
    \6\421 U.S. 491, 504-05 (1975).
    \7\360 U.S. 109, 111 (1959).
    \8\354 U.S. 178, 187-88 (1957).
---------------------------------------------------------------------------
    In short, the congressional subpoena power is ``a 
fundamental underpinning of Congress's critical constitutional 
oversight, investigative, and legislative functions.''\9\ It is 
inherent in the Constitution that Congress has the authority to 
inquire into all matters that potentially may be the subject of 
legislation. This authority, however, ``would be quite 
meaningless absent `some means of compulsion . . . to obtain 
what is needed.' Accordingly, Congress has the power, also 
inherent in the Constitution, to issue investigatory subpoenas 
and punish witnesses who fail to comply therewith.''\10\
---------------------------------------------------------------------------
    \9\Christopher F. Corr & Gregory J. Spak, The Congressional 
Subpoena: Power, Limitations and Witness Protection, 6 BYU J. Pub. L. 
37 (1992).
    \10\Stanley M. Brand and Sean Connelly, Constitutional 
Confrontations: Preserving a Prompt and Orderly Means by Which Congress 
May Enforce Investigative Demands Against Executive Branch Officials, 
36 Cath. U. L. Rev. 71 (1986).
---------------------------------------------------------------------------

               B. ENFORCEMENT OF CONGRESSIONAL SUBPOENAS

    Congress has three formal methods through which it can seek 
to enforce compliance with a congressional subpoena. First, the 
inherent contempt power permits Congress to rely on its own 
constitutional authority to detain and imprison a subpoena 
recipient who fails to comply with congressional demands. 
``Under the inherent contempt power the individual is brought 
before the House or Senate by the Sergeant-at-Arms, tried at 
the bar of the body, and can be imprisoned or detained in the 
Capitol or perhaps elsewhere.''\11\ Second, the criminal 
contempt statute permits Congress to certify a contempt 
citation to the appropriate U.S. attorney for criminal 
prosecution.\12\ It is a misdemeanor criminal offense, 
punishable by a fine of up to $1,000 and imprisonment of up to 
one year for a witness under congressional subpoena to fail to 
appear or to withhold testimony or documents. The procedural 
mechanism for initiating the criminal contempt provision 
provides that the President of the Senate or Speaker of the 
House must certify the fact of contempt ``to the appropriate 
United States attorney, whose duty it shall be to bring the 
matter before the grand jury for its action.''\13\ The 
Department of Justice, however, has asserted that it retains 
the prosecutorial discretion not to act on a contempt referral 
despite the mandatory language of the contempt statute.\14\
---------------------------------------------------------------------------
    \11\Todd Garvey, Cong. Research Serv., RL34097, Congress's Contempt 
Power and the Enforcement of Congressional Subpoenas: Law, History, 
Practice, and Procedure 10 (2017).
    \12\2 U.S.C. Sec. Sec. 192, 194.
    \13\2 U.S.C. Sec. 194.
    \14\See, e.g., Prosecution for Contempt of Congress of an Executive 
Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. 
O.L.C. 101 (1984).
---------------------------------------------------------------------------
    Finally, Congress may seek judicial enforcement of a 
congressional subpoena. In general, under this procedure, a 
single house of Congress authorizes its committee that issued 
the subpoena to file suit in federal district court seeking a 
declaration that the recipient is legally obligated to comply 
with the subpoena. In 1978, Congress passed the Ethics in 
Government Act, which, among other things, grants the Senate 
and its committees the authority to seek civil enforcement of 
its subpoenas from the U.S. District Court for the District of 
Columbia.\15\ This Act, however, specifically does not apply to 
subpoenas of federal government officials and does not apply to 
actions brought by the House of Representatives. While the 
House cannot pursue actions under the Senate's civil 
enforcement statute, past precedent and the decision of the 
U.S. District Court for the District of Columbia in Miers 
indicate that the House may authorize a committee to seek a 
civil enforcement action to force compliance with a subpoena.
---------------------------------------------------------------------------
    \15\28 U.S.C. Sec. 1365; 2 U.S.C. Sec. 288d.
---------------------------------------------------------------------------

      C. THE CONGRESSIONAL SUBPOENA COMPLIANCE AND ENFORCEMENT ACT

    In light of Miers and other decisions, it is clear that 
Congress does not require an explicit statutory authority in 
order to enforce its subpoenas. Nevertheless, recent litigation 
has shown that there are certain practical barriers to the 
enforcement of subpoenas through declaratory judgment actions. 
First, the D.C. Circuit and the Supreme Court have not issued 
rulings that squarely and directly affirm the use of the 
Declaratory Judgment Act to enforce congressional subpoenas. 
Second, congressional subpoena enforcement actions brought in 
federal court under the current framework do not receive 
expedited judicial review and, therefore, significant time may 
be required to achieve a final, enforceable ruling in an 
enforcement case. Finally, the current non-statutory framework 
does not adequately address the assertion of legal privileges 
and the production of privilege logs in instances in which 
legal privileges are asserted in response to congressional 
subpoenas.
    The Congressional Subpoena Compliance and Enforcement Act 
addresses all of these issues and, in so doing, strengthens 
Congress's ability to enforce the subpoenas issued by its 
committees and subcommittees, thereby reinforcing the powers 
granted Congress in Article I of the Constitution. The 
legislation creates a statutory framework for compliance with 
and enforcement of congressional subpoenas through a few 
targeted changes to federal law. And it does so without 
negating any of Congress's existing powers to require 
compliance with its subpoenas.
    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. Third, the bill provides that failure to produce a 
privilege log in a timely manner may result in waiver of a 
privilege by the court and, in the case of a head of a 
government agency or a component thereof, that willful failure 
to comply with a subpoena may result in a court imposed 
monetary penalty. Finally, the bill establishes that a 
committee may seek expedited court review by a three-judge 
panel of the district court, with direct appeal to the Supreme 
Court, in any case involving the enforcement of a congressional 
subpoena.
    Current statutory requirements related to compliance with 
and enforcement of a committee subpoena are also 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 Congress 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.
    Although this bill is important, it should not be seen as 
legislation that will open the floodgates to congressional 
subpoena enforcement litigation. As the district court observed 
in Miers, allowing civil enforcement of congressional 
subpoenas,

        [would not] overwhelm the federal courts and paralyze 
        the accommodations process between the political 
        branches. Prior cases, particularly United States v. 
        Nixon, AT&T I, and Senate Select Comm. III, have 
        already paved the way for claims of this type. 
        Notwithstanding that fact, there have been very few 
        lawsuits brought in federal court raising this issue--
        certainly no rush to the courthouse by either political 
        branch is evident. The process of negotiation between 
        the executive and legislative branches has functioned 
        as always. Indeed, there are powerful reasons to 
        believe that most disputes of this nature will continue 
        to be resolved through the informal processes of 
        negotiation and accommodation.\16\
---------------------------------------------------------------------------
    \16\558 F.Supp.2d at 96.
---------------------------------------------------------------------------

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
4010.

                        Committee Consideration

    On October 12, 2017, the Committee met in open session and 
ordered the bill H.R. 4010 favorably reported, with an 
amendment, by a roll call vote of 26 to 0, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 4010.
    Motion to report H.R. 4010, as amended, favorably to the 
House. Approved by a roll call vote of 26 to 0.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX).............................      X
Ms. Roby (AL)..................................      X
Mr. Gaetz (FL).................................      X
Mr. Johnson (LA)...............................      X
Mr. Biggs (AZ).................................      X
Mr. Rutherford (FL)............................
Ms. Handel (GA)................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................      X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
    Total......................................     26       0
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to H.R. 4010, the following estimate and comparison 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act of 1974:

                               Congressional Budget Office,
                                  Washington, DC, October 20, 2017.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4010, the 
Congressional Subpoena Compliance and Enforcement Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Janani 
Shankaran, who can be reached at 226-2860.
            Sincerely,
                                                Keith Hall,
                                                          Director.

    Enclosure.

cc:
        Honorable John Conyers, Jr.,
        Ranking Member




  H.R. 4010--Congressional Subpoena Compliance and Enforcement Act of 
                                  2017


As ordered reported by the House Committee on the Judiciary on October 
                                12, 2017




    Under current law, the Congress may file a civil action and 
seek judgment from a federal court that a recipient of a 
subpoena is legally obligated to comply with that subpoena. 
H.R. 4010 would modify those procedures with an aim to enhance 
compliance with and enforce Congressional subpoenas.
    H.R. 4010 would require recipients of subpoenas to provide 
information on the nature of withheld records. The bill also 
would require the courts to expedite civil actions related to 
compliance with Congressional subpoenas. CBO expects that the 
bill's provisions could lead to a small increase in the 
administrative costs of federal agencies receiving subpoenas 
and the federal Judiciary. However, based on the small number 
of expected cases, CBO estimates that those costs would not be 
significant.
    The bill's provisions would extend to agencies that are not 
funded through annual appropriations (such as the Tennessee 
Valley Authority). The bill also would authorize the courts to 
impose monetary penalties, which are recorded in the budget as 
revenues, against any government official found to have 
willfully failed to comply with a subpoena. Because we expect 
the number of such cases to be small, CBO estimates that 
increased revenues under the bill would be insignificant for 
each year. Because enacting H.R. 4010 could affect direct 
spending and revenues, pay-as-you-go procedures apply.
    CBO estimates that enacting H.R. 4010 would not 
significantly increase net direct spending or on-budget 
deficits in any of the four consecutive 10-year periods 
beginning in 2028.
    H.R. 4010 contains no intergovernmental or private sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Janani 
Shankaran. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 4010 establishes or reauthorizes a 
program of the Federal government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee finds that H.R. 4010 contains no directed 
rule making within the meaning of 5 U.S.C. 551.

                    Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House of Representatives, the Committee states that H.R. 4010 
enhances compliance with subpoenas issued by congressional 
committees and strengthens and clarifies the ability of the 
House and Senate to enforce subpoenas issued by their 
respective committees.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 4010 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.

Section 1. Short title

    This section sets forth the short title of the bill as the 
``Congressional Subpoena Compliance and Enforcement Act of 
2017.''

Sec. 2. Enforcement of congressional subpoenas

    This section amends title 28, United States Code, to put in 
place statutory procedures for the civil enforcement of 
congressional subpoenas. First, the section creates special 
rules for cases involving congressional subpoenas. These 
special rules require congressional subpoena enforcement 
actions filed pursuant to the newly created 28 U.S.C. 
Sec. 1365a to be brought in federal district court, mandate 
that the federal courts expedite to the greatest extent 
possible such cases, and provide that the congressional entity 
bringing a civil action may request in its initial pleading 
that the action be heard by a three-judge panel of a district 
court with direct appeal to the U.S. Supreme Court. Second, the 
section provides that a court may impose a monetary penalty on 
the head of a government agency or a component thereof who the 
court determines willfully failed to comply with a 
congressional subpoena and that any such penalty shall not be 
paid with federal taxpayer dollars. Third, it allows a court to 
reject the assertion of a privilege or other ground for non-
compliance with a congressional subpoena if the court finds 
that the subpoena recipient failed to timely comply with the 
requirement set forth in section 3 of the bill that a privilege 
log be produced. Finally, the section provides a broad 
definition of the term government agency to include, among 
others, executive branch and independent federal agencies.

Sec. 3. Compliance with congressional subpoenas

    This section creates a new section in the Revised Statutes 
of the United States to place certain requirements on the 
recipients of subpoenas issued by congressional committees and 
subcommittees. First, it establishes that a recipient of a 
congressional subpoena shall appear and testify or produce 
records consistent with the subpoena and the requirements of 
the section. Second, it requires a subpoena recipient to 
provide a log that makes an express assertion and description 
of the legal basis asserted for withholding the record along 
with additional specified details regarding a withheld record. 
The section also contains requirements regarding missing 
records and the provision of electronic records.

Sec. 4. Rule of construction

    This section contains a rule of construction establishing 
that nothing in the bill should be interpreted to diminish any 
of Congress's existing authorities, such as inherent contempt 
of Congress, to enforce compliance with its subpoenas. The rule 
of construction also makes clear that the provisions in the 
bill addressing legal privileges should not be interpreted as 
congressional acceptance of any privilege or other legal basis 
for noncompliance with a congressional subpoena.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

TITLE 28, UNITED STATES CODE

           *       *       *       *       *       *       *



PART IV--JURISDICTION AND VENUE

           *       *       *       *       *       *       *


               CHAPTER 85--DISTRICT COURTS; JURISDICTION


Sec.
1330. Actions against foreign states.
     * * * * * * *
1365. Senate actions.
1365a. Congressional actions against subpoena recipients.

           *       *       *       *       *       *       *


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.

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REVISED STATUTES OF THE UNITED STATES

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TITLE II. THE CONGRESS

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              CHAPTER SEVEN. CONGRESSIONAL INVESTIGATIONS


Sec.
101. Oaths to witnesses, by whom administered.
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105. Response to congressional subpoenas.

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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 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.

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