Title: To establish defiance of a congressional subpoena for testimony or documents by the President as an impeachable high crimes and misdemeanor within the meaning of Article II, Section 4 of the United States Constitution.
Policy area: Congress

Summary:
This concurrent resolution declares that (1) a President's, Vice-President's, or Civil Officer's deliberate disobedience and defiance of a congressional subpoena may constitute an impeachable high crime and misdemeanor; and (2) if a President refuses to comply with a congressional subpoena by invoking executive privilege, the failure to assert that privilege with factual and legal specificity shall be taken as evidence of such disobedience and defiance.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H. Con. Res. 111 Introduced in House (IH)]

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116th CONGRESS
  2d Session
H. CON. RES. 111

  To establish defiance of a congressional subpoena for testimony or 
     documents by the President as an impeachable high crimes and 
 misdemeanor within the meaning of Article II, Section 4 of the United 
                          States Constitution.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            August 21, 2020

     Mr. Larson of Connecticut submitted the following concurrent 
    resolution; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                         CONCURRENT RESOLUTION


 
  To establish defiance of a congressional subpoena for testimony or 
     documents by the President as an impeachable high crimes and 
 misdemeanor within the meaning of Article II, Section 4 of the United 
                          States Constitution.

Whereas the congressional power to investigate and oversee the executive branch 
        is a cornerstone of separation of powers and necessary to expose and 
        deter executive lawlessness, corruption, fraud, waste, and other serious 
        abuses;
Whereas Supreme Court Justice Louis Brandeis famously observed, ``Sunshine is 
        said to be the best of disinfectants; the electric light the most 
        efficient policeman'';
Whereas due process requires that the law warn before it strikes, the House of 
        Representatives has voted articles of impeachment against three 
        Presidents, one Cabinet officer, one Senator, one Supreme Court Justice, 
        and fourteen subordinate Federal judges without clarifying the meaning 
        of ``high crimes and misdemeanors'' to give fair warning to the 
        President, Vice President, and other civil officers of the United 
        States;
Whereas the congressional power of oversight is the power preservative of all 
        other congressional authorities;
Whereas the slowness of judicial adjudications of executive privilege or state 
        secrets invocations by the President to resist a congressional subpoena 
        is inconsistent with the political time frame in which impeachment 
        operates;
Whereas the congressional powers of investigation or oversight of the executive 
        branch are crippled without documents and testimonies from executive 
        branch officials;
Whereas the House Judiciary Committee voted an article of impeachment against 
        President Richard M. Nixon for failing to produce documents and things 
        demanded by duly authorized Committee subpoenas pursuant to the sole 
        power of impeachment vested by the Constitution in the House of 
        Representatives;
Whereas in pursuit of any legitimate legislative objective, Congress is 
        authorized to investigate and to oversee the executive branch and to 
        impose sanctions for contempt of its processes;
Whereas legitimate objectives include determinations of whether laws have been 
        violated, whether they have been properly enforced, whether new laws are 
        needed, or whether funds should be appropriated or withheld;
Whereas Congress is endowed with independent constitutional authority to 
        determine whether presidential defiance of a congressional subpoena 
        constitutes an impeachable high crime and misdemeanor without a court 
        adjudication of any claimed executive privilege, state secrets, or other 
        defense;
Whereas Congress possesses all the contempt powers of Article III courts;
Whereas Presidents Thomas Jefferson and Abraham Lincoln recognized that each 
        branch of government has independent authority to interpret the 
        Constitution within their respective spheres of power;
Whereas the United States Supreme Court has never opined on whether executive 
        privilege may be invoked to block the congressional power of 
        investigation;
Whereas in United States v. Nixon, 418 U.S. 683 (1974), the Court subordinated 
        the privilege to the needs of a single criminal prosecution;
Whereas the importance of congressional oversight to our constitutional 
        dispensation and separation of powers is orders of magnitude greater 
        than prosecution of a single criminal case;
Whereas the Nixon tapes precedent mandates that executive privilege is 
        subservient to legislative oversight of the executive branch; and
Whereas the absence of a specific definition of an impeachable high crime and 
        misdemeanor invites the appearance or actuality of partisan exercises of 
        the impeachment power which subverts its legitimacy and deters its use: 
        Now, therefore, be it
    Resolved by the House of Representatives (the Senate concurring),

SECTION 1. DEFINING PRESIDENTIAL DEFIANCE OF A CONGRESSIONAL SUBPOENA 
              AS AN IMPEACHABLE HIGH CRIME AND MISDEMEANOR.

    Congress declares that a President, Vice-President, or Civil 
Officer's deliberate disobedience and defiance of a congressional 
subpoena for testimony or documents in pursuit of Congress legislative 
or oversight function may constitute an impeachable high crime and 
misdemeanor for purposes of Article II, Section 4 of the Constitution 
of the United States.

SEC. 2. EXECUTIVE PRIVILEGE.

    If a President refuses to comply with a congressional subpoena 
under the invocation of executive privilege, the failure to engage in 
good faith by properly asserting that privilege with factual and legal 
specificity shall be taken as evidence for finding disobedience and 
defiance of a congressional subpoena under section 1 of this concurrent 
resolution.
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