Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure
Released: 2017-05-12T00:00:00

Introduction

Congress's contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction. Although any action that directly obstructs the effort of Congress to exercise its constitutional powers may arguably constitute a contempt, in recent decades the contempt power has most often been employed in response to the refusal of a witness to comply with a congressional subpoena—whether in the form of a refusal to provide testimony, or a refusal to produce requested documents.

Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Because the contemnor is generally released once the terms of the subpoena are met, inherent contempt serves the purposes of encouraging compliance with a congressional directive. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Criminal contempt serves as punishment for non-compliance with a congressional subpoena, but does not necessarily encourage subsequent acquiescence. Once convicted, the contemnor is not excused from criminal liability if he later chooses to comply with the subpoena. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena. If the court finds that the party is legally obligated to comply, continued non-compliance may result in the party being held in contempt of court. Where the target of the subpoena is an executive branch official, civil enforcement may be the only practical means by which Congress can effectively ensure compliance with its own subpoena.

This report examines the source of the contempt power; reviews the historical development of the early case law; discusses noteworthy contempt proceedings; outlines the statutory, common law, and constitutional limitations on the contempt power; and analyzes the procedures associated with inherent contempt, criminal contempt, and the civil enforcement of congressional subpoenas.

Congress's Power to Investigate

The power of Congress to punish for contempt is inextricably related to the power of Congress to investigate. Generally speaking, Congress's authority to investigate and obtain information, including but not limited to confidential information, is extremely broad. While there is no express provision of the Constitution or specific statute authorizing the conduct of congressional oversight or investigations, the Supreme Court has firmly established that such power is essential to the legislative function as to be implied from the general vesting of legislative powers in Congress. The broad legislative authority to seek and enforce informational demands was unequivocally established in two Supreme Court rulings arising out of the 1920's Teapot Dome scandal.

In McGrain v. Daugherty , which arose out of the exercise of the Senate's inherent contempt power, the Supreme Court described the power of inquiry, with the accompanying process to enforce it, as "an essential and appropriate auxiliary to the legislative function." The Court explained:

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. 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 that which 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.

In Sinclair v. United States, a different witness at the congressional hearings refused to provide answers, and was prosecuted for contempt of Congress. The witness had noted that a lawsuit had been commenced between the government and the Mammoth Oil Company, and declared, "I shall reserve any evidence I may be able to give for those courts ... and shall respectfully decline to answer any questions propounded by your committee." The Supreme Court upheld the witness's conviction for contempt of Congress. The Court considered and rejected in unequivocal terms the witness's contention that the pendency of lawsuits provided an excuse for withholding information. Neither the laws directing that such lawsuits be instituted, nor the lawsuits themselves, "operated to divest the Senate, or the committee, of power further to investigate the actual administration of the land laws." The Court further explained that "[i]t may be conceded that Congress is without authority to compel disclosure for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through its committees to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits."

Subsequent Supreme Court rulings have consistently reiterated and reinforced the breadth of Congress's investigative authority. For example, in Eastland v. United States Servicemen's Fund , the Court explained that "[t]he scope of [Congress's] power of inquiry ... is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution." In addition, the Court in Watkins v. United States described the breadth of the power of inquiry. According to the Court, Congress's power "to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes." The Court did not limit the power of congressional inquiry to cases of "wrongdoing." It emphasized, however, that Congress's investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department. The investigative power, the Court stated, "comprehends probes into departments of the Federal Government to expose corruption, inefficiency, or waste." "[T]he first Congresses" held "inquiries dealing with suspected corruption or mismanagement by government officials" and subsequently, in a series of decisions, "[t]he Court recognized the danger to effective and honest conduct of the Government if the legislative power to probe corruption in the Executive Branch were unduly hampered." Accordingly, the Court now clearly recognizes "the power of the Congress to inquire into and publicize corruption, maladministration, or inefficiencies in the agencies of Government."

The inherent contempt power is not specified in a statute or constitutional provision, but has been deemed implicit in the Constitution's grant to Congress of all legislative powers. In an inherent contempt proceeding, the offender is tried at the bar of the House or Senate and can be held in custody until such time as the contemnor provides the testimony or documents sought, or until the end of the session. Inherent contempt was most often used as a means of coercion, not punishment. A statutory criminal contempt provision was first enacted by Congress in 1857, in part because of the inadequacies of proceedings under the inherent power. In cases of criminal contempt, the offender is cited by the subcommittee, the committee, and the full House or Senate, with subsequent indictment by a grand jury and prosecution by the U.S. Attorney. Criminal contempt, unlike inherent contempt, is intended as a means of punishing the contemnor for non-compliance rather than to obtain the information sought. A statutory civil enforcement procedure, applicable only to the Senate, was enacted in 1978. Under that procedure, a witness, who refuses to testify before a Senate committee or provide documents sought by the committee can, after being served with a court order, be held in contempt of court and incarcerated until he agrees to testify. Moreover, the House and Senate have authorized standing or special committees to seek civil enforcement of subpoenas.

Early History of Congressional Contempt

While the contempt power was exercised both by the English Parliament and by the American colonial assemblies, Congress's first assertion of its contempt authority occurred in 1795, shortly after the ratification of the Constitution. At the time, three Members of the House of Representatives reported that they had been offered what they interpreted to be a bribe by men named Robert Randall and Charles Whitney. The House of Representatives interpreted these allegations as sufficient evidence of an attempt to corrupt its proceedings and reported a resolution ordering their arrest and detention by the Sergeant-at-Arms, pending further action by the House. The matter was then referred to a special Committee on Privileges which reported out a resolution recommending that formal proceedings be instituted against Messrs. Randall and Whitney at the bar of the House. In addition, the resolution provided that the accused be questioned by written interrogatories submitted by the Speaker of the House with both the questions and the answers entered into the House minutes. The resolution also provided that individual Members could submit written questions to the accused.

Upon adopting the resolution and after considerable debate, the House determined that the following procedures be adhered to: First, the complaining Members were to submit a written signed information to the accused and for publication in the House Journal. In addition, the accused were to be provided counsel, the right to call witnesses on their behalf, the right to cross-examination of the complaining Members through written questions submitted to the Speaker, and adequate time to prepare a defense. A proceeding was held at the bar of the House, and on January 4, 1796, the House, by a vote of 78-17, adopted a resolution finding Mr. Randall guilty of "a contempt to, and a breach of the privileges of, this House by attempting to corrupt the integrity of its Members in the manner laid to his charge." The House ordered Mr. Randall to be brought to the bar, reprimanded by the Speaker, and held in custody until further resolution of the House. Mr. Randall was detained until January 13, 1796, when he was discharged by House resolution. Mr. Whitney, on the other hand, was absolved of any wrongdoing as the House determined that his actions were against a "member-elect," and had taken place "away from the seat of government."

Of additional significance is the fact that the records indicate that almost no question was raised with respect to the power of Congress to punish a non-Member for contempt. According to one commentator, who noted that many of the Members of the early Congress were also members of the Constitutional Convention and, thus, fully aware of the legislative practices of the time, it was "substantially agreed that the grant of the legislative power to Congress carried with it by implication the power to punish for contempt."

Four years later, the Senate exercised its contempt power against William Duane, who, as editor of the Aurora newspaper, was charged with the publication of a libelous article concerning the Senate and one of its committees. Mr. Duane was ordered by Senate resolution to appear before the bar of the Senate and "make any proper defense for his conduct in publishing the aforesaid false, defamatory, scandalous, and malicious assertions and pretended information." At his initial appearance before the Senate, Mr. Duane requested, and was granted, the assistance of counsel and ordered to appear again two days later. Instead of appearing before the Senate as ordered, Mr. Duane submitted a letter indicating he did not believe he could receive a fair trial before the Senate. Mr. Duane was subsequently held in contempt of the Senate for his failure to appear, not for his alleged libelous and defamatory publications. As a result, he was held in the custody of the Senate for several weeks before the Senate, by resolution, instructed that he be released and tried by the courts.

The Senate's contempt of Mr. Duane generated considerably more debate concerning Congress's contempt authority. A majority of Senators argued that the Senate's contempt power was an inherent right of legislative bodies, derived not specifically from the Constitution, but rather from "the principle of self-preservation, which results to every public body from necessity and from the nature of the case." Moreover, Senators supportive of this position argued that their reasoning was firmly supported by English and colonial practices, as well as the practice of the state legislatures. Finally, the majority asserted that if Congress did not possess a contempt power it would be vulnerable to the disruption of its proceedings by outside intruders.

While the Senate's exercise of its contempt power was not without precedent, many Senators disputed these claims, arguing that all powers sought to be exercised by Congress must be specifically derived from the Constitution; that because the contempt power is not among the enumerated powers given to Congress, the power is reserved to the states and the people. In addition, the minority argued that Congress, unlike the English Parliament or state legislatures, was intentionally not granted the plenary powers of sovereignty by the Constitution and, thus, could not claim any inherent right to self-preservation. As an alternative, the minority proposed that Congress, which has the power to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers" had sufficient authority to enact a statute that would protect the integrity of its proceedings. Moreover, the minority argued that disruptions of congressional proceedings would continue to be subject to the criminal laws.

After Mr. Duane's contempt by the Senate, it appeared that the subject of the Congress's inherent contempt power was settled. The authority, however, was not used again for another 12 years. In 1812, the House issued a contempt resolution against Mr. Nathaniel Rounsavell, who had refused to answer a select committee's questions concerning which Representative had given him information regarding secret sessions. However, before Mr. Rounsavell was brought before the bar of the House a Member admitted his indiscretion and the matter was not pursued. Congress's inherent contempt power was not used again until 1818, where it eventually made its way to the Supreme Court for adjudication.

Anderson v. Dunn

In 1821, the Supreme Court was faced with interpreting the scope of Congress's contempt power. The case arose when Representative Louis Williams of North Carolina introduced a letter before the House from a John Anderson, which Representative Williams interpreted as an attempt to bribe him. Following its 1795 precedent, the House adopted a resolution ordering the Sergeant-at-Arms to arrest Mr. Anderson and bring him before the bar of the House. Upon Mr. Anderson's arrest, however, a debate erupted on the floor of the House as the motion for referral to the Committee on Privileges to adopt procedures was considered. Several Members objected to the House's assertion of an inherent contempt power. They argued, as the minority Senators had in Mr. Duane's contempt, that neither the Constitution nor the general laws afforded the Congress such an inherent power to punish for actions that occurred elsewhere. Relying on the 1795 precedent and examples from the British Parliament and state legislatures, the committee was formed and it adopted a resolution requiring Mr. Anderson to be brought before the bar of the House for questioning by the Speaker. At his appearance, Mr. Anderson, like Mr. Randall and Mr. Whitney before him, was afforded counsel and permitted to present the testimony of eleven witnesses. Ultimately, Mr. Anderson was found in contempt of Congress and was ordered to be reprimanded by the Speaker for the "outrage he committed" and discharged into the custody of the Sergeant-at-Arms.

Mr. Anderson subsequently filed suit against Mr. Thomas Dunn, the Sergeant-at-Arms of the House, alleging assault, battery, and false imprisonment. Mr. Dunn responded by asserting that he was carrying out the lawful orders of the House of Representatives. The Supreme Court heard the case in February of 1821 and concluded that the Congress possessed the inherent authority to punish for contempt and dismissed the charges against Mr. Dunn. The Court noted that while the Constitution does not explicitly grant either House of Congress the authority to punish for contempt, except in situations involving its own Members, such a power is necessary for Congress to protect itself. The Court asserted that if the House of Representatives did not possess the power of contempt it would "be exposed to every indignity and interruption, that rudeness, caprice, or even conspiracy, may meditate against it."

The Court's decision in Anderson does not define the specific actions that would constitute contempt; rather, it adopted a deferential posture, noting that "it is only necessary to observe that there is nothing on the facts of the record from which it can appear on what evidence the warrant was issued and we do not presume that the House of Representatives would have issued it without fully establishing the facts charged on the individual."

The Anderson decision indicates that Congress's contempt power is centered on those actions committed in its presence that obstruct its deliberative proceedings. The Court noted that Congress could supplement this power to punish for contempt committed in its presence by enacting a statute, which would prohibit "all other insults which there is any necessity for providing."

The Court in Anderson also endorsed the existing parliamentary practice that the contemnor could not be held beyond the end of the legislative session. According to the Court, "[s]ince the existence of the power that imprisons is indispensable to its continuance, and although the legislative power continues perpetual, the legislative body ceases to exist, on the moment of its adjournment or periodical dissolution. It follows, that imprisonment must terminate with that adjournment."

Since Anderson was decided there has been an unresolved question as to whether this rule would apply with equal force to a contempt by the Senate, since it is considered a "continuing body." The Senate, it appears, has only addressed this issue once, in 1871, regarding the contempt of two recalcitrant witnesses, Z.L. White and H.J. Ramsdell. During these contempt proceedings, the Senate found itself near the end of a session and the question arose as to whether the Senate's acquiescence to the Anderson rule would provide adequate punishment. After vigorous debate, the Senate instructed the Sergeant-at-Arms to release the prisoners immediately upon the final adjournment of the Congress. The House, however, has imprisoned a contemnor for a period that extended beyond the adjournment of a Congress. Patrick Wood was sentenced by the House to a three-month term in jail for assaulting Representative Charles H. Porter. Although there is no doubt that Mr. Woods's period of incarceration extended beyond the date of adjournment, it was not challenged and, therefore, there is no judicial opinion addressing the issue.

Kilbourn v. Thompson

In 1876, the House established a select committee to investigate the collapse of Jay Cooke & Company, a real estate pool in which the United States had suffered losses as a creditor. The committee was, by resolution, given the power to subpoena both persons and records pursuant to its investigation. Acting under its authority, the committee issued a subpoena duces tecum to one Hallet Kilbourn, the manager of the real estate pool. When Mr. Kilbourn refused to produce certain papers or answer questions before the committee he was arrested and tried under the House's inherent contempt power. The House adjudged Mr. Kilbourn in contempt and ordered him detained by the Sergeant-at-Arms until he purged himself of contempt by releasing the requested documents and answering the committee's questions.

Mr. Kilbourn filed a suit against the Speaker, the members of the committee, and the Sergeant-at-Arms for false arrest. The lower court held in favor of the defendant dismissing the suit. Mr. Kilbourn appealed, and the Supreme Court reversed, holding that Congress did not have a general power to punish for contempt. While the Court appeared to recognize that Congress possessed an inherent contempt power, it declined to follow Anderson v. Dunn's expansive view of Congress's authority. Moreover, the Court rejected any reliance on the English and colonial precedents establishing the source and extent of Congress's contempt power. The Court stated that

[w]e are of opinion that the right of the House of Representatives to punish the citizen for a contempt of its authority or a breach of its privileges can derive no support from the precedents and practices of the two Houses of the English Parliament, nor from the adjudged cases in which the English courts have upheld these practices. Nor, taking what has fallen from the English judges, and especially the later cases on which we have just commented, is much aid given to the doctrine, that this power exists as one necessary to enable either House of Congress to exercise successfully their function of legislation.

The Court held that the investigation into the real estate pool was not undertaken by the committee pursuant to one of Congress's constitutional responsibilities, but rather was an attempt to pry into the personal finances of private individuals, a subject that could not conceivably result in the enactment of valid legislation. According to the Court, because Congress was acting beyond its constitutional responsibilities, Mr. Kilbourn was not legally required to answer the questions asked of him. In short, the Court held that "no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire, and we feel equally sure that neither of these bodies possesses the general power of making inquiry into the private affairs of the citizen."

In addition, the Court indicated that the investigation violated the doctrine of separation of powers because judicial bankruptcy proceedings were pending relating to the collapse of the real estate pool and, therefore, it might be improper for Congress to conduct an investigation that could interfere with the judicial proceedings. The Court specifically challenged Congress's assertion that there were no other viable remedies available to the government to retrieve the lost funds. Thus, the Court concluded that

the resolution of the House of Representatives authorizing the investigation was in excess of the power conferred on that body by the Constitution; that the committee, therefore, had no lawful authority to require Kilbourn to testify as a witness beyond what he voluntarily chose to tell; that the orders and resolutions of the House, and the warrant of the speaker, under which Kilbourn was imprisoned, are, in like manner, void for want of jurisdiction in that body, and that his imprisonment was without any lawful authority.

Finally, in dicta , the Court indicated that the contempt power might be upheld where Congress was acting pursuant to certain specific constitutional prerogatives, such as disciplining its Members, judging their elections, or conducting impeachment proceedings.

Although the precedential value of Kilbourn has been significantly limited by subsequent case law, the case continues to be cited for the proposition that the House has no power to probe into private affairs, such as the personal finances of an individual, on which legislation could not be enacted. The doubts raised by Kilbourn about the scope of Congress's contempt power have essentially been removed by later cases sanctioning the use of the power in investigations conducted pursuant to Congress's authority to discipline its Members, to judge the elections of its Members, and, most importantly, to probe the business and conduct of individuals to the extent that the matters are subject to congressional regulation. For example, in McGrain v. Daugherty , which involved a Senate investigation into the claimed failure of the Attorney General to prosecute certain antitrust violations, a subpoena was issued to the brother of the Attorney General, Mallie Daugherty, the president of an Ohio bank. When Daugherty refused to comply, the Senate exercised its inherent contempt power and ordered its Sergeant-at-Arms to take him into custody. The grant of a writ of habeas corpus was appealed to the Supreme Court. The Court's opinion in the case considered the investigatory and contempt powers of Congress to be implicit in the grant of legislative power. The Court distinguished Kilbourn , which was an investigation into purely personal affairs, from the instant case, which was a probe of the operation of the Department of Justice (DOJ). According to the Court, the subject was plainly "one on which legislation could be had and would be materially aided by information the investigation was calculated to elicit." The Court in McGrain was willing to presume that the investigation had been undertaken to assist the committee in its legislative efforts.

Inherent Contempt

Congress's inherent contempt power is not specifically granted by the Constitution, but is considered necessary to investigate and legislate effectively. The validity of the inherent contempt power was upheld in the early Supreme Court decision in Anderson v. Dunn and reiterated in McGrain v. Daugherty . 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. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least by the House, beyond the end of a session of the Congress) until he agrees to comply. One commentator has concluded that the procedure followed by the House in the contempt citation that was at issue in Anderson v. Dunn is typical of that employed in the inherent contempt cases.

These traditional methods may be explained by using as an illustration Anderson v. Dunn . ... In 1818, a Member of the House of Representatives accused Anderson, a non-Member, of trying to bribe him. ... The House adopted a resolution pursuant to which the Speaker ordered the Sergeant-at-Arms to arrest Anderson and bring him before the bar of the House (to answer the charge). When Anderson appeared, the Speaker informed him why he had been brought before the House and asked if he had any requests for assistance in answering the charge. Anderson stated his requests, and the House granted him counsel, compulsory process for defense witnesses, and a copy, of the accusatory letter. Anderson called his witnesses; the House heard and questioned them and him. It then passed a resolution finding him guilty of contempt and directing the Speaker to reprimand him and then to discharge him from custody. The pattern was thereby established of attachment by the Sergeant-at-Arms; appearance before the bar; provision for specification of charges, identification of the accuser, compulsory process, counsel, and a hearing; determination of guilt; imposition of penalty.

When a witness is cited for contempt under the inherent contempt process, prompt judicial review appears to be available by means of a petition for a writ of habeas corpus. In such a habeas proceeding, the issues decided by the court might be limited to (a) whether the House or Senate acted in a manner within its jurisdiction, and (b) whether the contempt proceedings complied with minimum due process standards. While Congress would not have to afford a contemnor the whole panoply of procedural rights available to a defendant in criminal proceedings, notice and an opportunity to be heard would have to be granted. Also, some of the requirements imposed by the courts under the statutory criminal contempt procedure (e.g., pertinency of the question asked to the committee's investigation) might be mandated by the due process clause in the case of inherent contempt proceedings.

Although many of the inherent contempt precedents have involved incarceration of the contemnor, there may be an argument for the imposition of monetary fines as an alternative. Such a fine would potentially have the advantage of avoiding a court proceeding on habeas corpus grounds, as the contemnor would never be jailed or detained. Drawing on the analogous authority that courts have to inherently impose fines for contemptuous behavior, it appears possible to argue that Congress, in its exercise of a similar inherent function could impose fines as opposed to incarceration. Additional support for this argument appears to be contained in dicta from the 1821 Supreme Court decision in Anderson v. Dunn . The Court questioned the "extent of the punishing power which the deliberative assemblies of the Union may assume and exercise on the principle of self preservation" and responded with the following:

Analogy, and the nature of the case, furnish the answer—"the least possible power adequate to the end proposed;" which is the power of imprisonment. It may, at first view, and from the history of the practice of our legislative bodies, be thought to extend to other inflictions . But every other will be found to be mere commutation for confinement; since commitment alone is the alternative where the individual proves contumacious.

Finally, in Kilbourn v. Thompson , the Court suggested that in certain cases where the Congress had authority to investigate, it may compel testimony in the same manner and by use of the same means as a court of justice in like cases. Specifically, the Court noted that "[w]hether the power of punishment in either House by fine or imprisonment goes beyond this or not, we are sure that no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire.... " While the language of these cases and the analogous power possessed by courts seem to suggest the possibility of levying a fine as punishment for contempt of Congress, we are not aware of, and could not locate, any precedent for Congress imposing a fine in the contempt context.

In comparison with the other types of contempt proceedings, inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches. The House or Senate can, on its own, conduct summary proceedings and cite the offender for contempt. Furthermore, although the contemnor can seek judicial review by means of a petition for a writ of habeas corpus, the scope of such review may be relatively limited, compared to the plenary review accorded by the courts in cases of conviction under the criminal contempt statute.

There are also certain limitations on the inherent contempt process. Although the contemnor can be incarcerated until he agrees to comply with the subpoena, imprisonment may not extend beyond the end of the current session of Congress. Moreover, inherent contempt has been described as "unseemly," cumbersome, time-consuming, and relatively ineffective, especially for a modern Congress with a heavy legislative workload that would be interrupted by a trial at the bar. Because of these drawbacks, the inherent contempt process has not been used by either body since 1935. Proceedings under the inherent contempt power might be facilitated, however, if the initial fact-finding and examination of witnesses were to be held before a special committee—which could be directed to submit findings and recommendations to the full body—with only the final decision as to guilt being made by the full House or Senate. Although generally the proceedings in inherent contempt cases appear to have been conducted at the bar of the House of Congress involved, in at least a few instances proceedings were conducted initially or primarily before a committee, but with the final decision as to whether to hold the person in contempt being made by the full body.

Inherent Contempt Proceedings by Committees of Congress

As has been indicated, although the majority of the inherent contempt actions by both the House and the Senate were conducted via trial at the bar of the full body, there is historical evidence to support the notion that this is not the exclusive procedure by which such proceeding can occur. This history, when combined with a 1992 Supreme Court decision addressing the power of Congress to make its own rules for the conduct of impeachment trials, strongly suggests that the inherent contempt process can be supported and facilitated by the conduct of evidentiary proceedings and the development of recommendations at the committee level.

Actually, the consideration of the use of committees to develop the more intricate details of an inquiry into charges of contempt of Congress date back to the very first inherent contempt proceedings of Messrs. Randall and Whitney in 1795. As discussed above, in these cases the House appointed a Committee on Privileges to report a mode of procedure. The committee reported the following resolution, which was adopted by the full House of Representatives:

Resolved , That the said Robert Randall and Charles Whitney be brought to the bar of the House and interrogated by the Speaker touching the information given against them, on written interrogatories, which with the answers thereto shall be entered into the minutes of the House. And that every question proposed by a Member be reduced to writing and a motion made that the same be put by the Speaker. That, after such interrogatories are answered, if the House deem it necessary to make any further inquiry on the subject, the same be conducted by a committee to be appointed for that purpose .

According to the Annals of Congress , the committee's language sparked a debate concerning the proper procedures to be used, including a discussion regarding whether the use of such a select committee was proper. At least one Representative "was convinced that the select committee was alone competent to taking and arranging the evidence for the decision of the House." While others noted that "the investigation of facts is constantly performed by select committees. ... [The committee's] report is not to be final, it is to be submitted to the House for final decision." It was recommended that, "the subject should be remanded to a committee, which would save a good deal of time." Other Members, however, objected to the use of a select committee to hear evidence of this magnitude on the grounds that it would be "highly improper for the witness to be sworn by a select committee, and that committee to send for the Members and have them sworn and examined in that private way. However troublesome and difficult, the House must meet all the questions and decide them on this floor."

Ultimately, it appears that none of the proceedings in this case was conducted before a select committee. That said, Congress's interpretation of its own powers and prerogatives is significant. It is clear that during the very first exercise of Congress's power of inherent contempt, the House allowed for the possibility that at least some of the proceedings could occur before a committee, rather than at the bar of the House.

This early precedent was finally invoked in 1836, when after the assault of reporter Robert Codd by reporter Henry Wheeler on the House floor, the House committed the examination of a contempt and breach of privilege to a select committee. The House adopted the following resolution empowering the committee to conduct a contempt investigation:

Resolved , That a select committee be forthwith appointed, whose duty it shall be forthwith to inquiry into an assault committed within the Hall of the House of Representatives this morning, while this House was in session and for and on account of which two persons are now in custody of the Sergeant-at-Arms; and said committee are to make their report to this House; and that said committee be authorized to administer oaths and to cause the attendance of witnesses.

The committee's report noted that Mr. Wheeler admitted his offense and included a recommendation that the punishment not be vindictive. The report also contained three resolutions that were considered by the full House. The first found Mr. Wheeler guilty of contempt and breach of the privileges of the House, and was adopted. The second, which was amended on the floor prior to adoption, excluded Mr. Wheeler from the floor of the House for the remainder of the session. Finally, the third resolution, which called for Mr. Wheeler to be taken into custody for the remainder of the session, was also amended on the floor prior to adoption to simply discharge Mr. Wheeler from custody.

Another example of the use of select committee to hear a contempt trial occurred in 1865, when it was alleged that Mr. A.P. Field assaulted Representative William Kelley. Similar to the contempt proceedings of Mr. Wheeler, the House adopted the following resolution authorizing a select committee to conduct an examination of the charges:

Be it Resolved , That a select committee of five members be appointed by the Speaker to inquire into the said alleged breach of privilege; that the said committee have power to send for persons and papers, and to examine witnesses; and that the committee report as soon as possible all the facts and circumstances of the affair, and what order, if any, it is proper for this House to take for the vindication of its privilege, and right, and duty of free legislation and judgment.

During the debate on the resolution it was observed that proceeding in this manner would avoid a trial by the full House, which, in the words of one Member, "would consume a great amount of the public time which there is a pressing need to apply to the business of the Government, it is better that the course should be adopted which is contemplated by the resolution.... "

The select committee, in its report to the full House, noted that it had heard the testimony of several witnesses concerning the incident, including the voluntary statement of Mr. Field. Also according to the committee, Mr. Field was present for each of the witnesses and, in fact, several of them were heard from at his request. Moreover, all of the witnesses were subject to examination or cross-examination by Mr. Field. At the committee's recommendation, a resolution directing the Speaker to issue a warrant for Mr. Field's arrest by the Sergeant-at-Arms for the purpose of bringing him before the Speaker for a reprimand was adopted. It does not appear that Mr. Field or his counsel was permitted to be present during the House's consideration of the committee's report, nor does it appear that he was afforded an opportunity to address the House prior to his formal reprimand. In fact, during the course of the reprimand, the Speaker expressly referred to Mr. Field having " been tried before a committee of their members , and ordered to be reprimanded at the bar of the House by their Presiding Officer," which may be interpreted as indicating that the committee's proceedings were deemed to be sufficient in the eyes of the House.

Nixon v. United States

Although there is ample historical evidence of the presumed propriety of contempt proceedings before committees of Congress, there has been no judicial ruling directly confirming the Congress's interpretation of its own contempt powers. In 1993, however, the Supreme Court decided Nixon v. United States , which, while not a contempt case, involved an analogous delegation of authority by the Senate to a select committee for the purposes of hearing evidence regarding the impeachment of two federal judges. Specifically, the impeached judges challenged the Senate's procedure under Rule XI of the "Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials," which provides:

That in the trial of any impeachment the Presiding Officer of the Senate, if the Senate so orders, shall appoint a committee of Senators to receive evidence and take testimony at such times and places as the committee may determine , and for such purpose the committee so appointed and the chairman thereof, to be elected by the committee, shall (unless otherwise ordered by the Senate) exercise all the powers and functions conferred upon the Senate and the Presiding Officer of the Senate, respectively, under the rules of procedure and practice in the Senate when sitting on impeachment trials.

Unless otherwise ordered by the Senate, the rules of procedure and practice in the Senate when sitting on impeachment trials shall govern the procedure and practice of the committee so appointed. The committee so appointed shall report to the Senate in writing a certified copy of the transcript of the proceedings and testimony had and given before the committee, and such report shall be received by the Senate and the evidence so received and the testimony so taken shall be considered to all intents and purposes, subject to the right of the Senate to determine competency, relevancy, and materiality, as having received and taken before the Senate, but nothing herein shall prevent the Senate from sending for any witness and hearing his testimony in open Senate, or by order of the Senate having the entire trial in open Senate.

Judge Nixon argued that the use of a select committee to hear the evidence and witness testimony of his impeachment violated the Senate's constitutional duty to "try" all impeachments. According to Judge Nixon, anything short of a trial before the full Senate was unconstitutional and, therefore, required reversal and a reinstatement of his judicial salary. The Court held the issue to be a non-justiciable political question. Chief Justice Rehnquist, writing for the Court, based this conclusion upon the fact that the impeachment proceedings were textually committed in the Constitution to the legislative branch. In addition, the Court found the "lack of finality and the difficulty in fashioning relief counsel[led] against justiciability." According to the majority, to open "the door of judicial review to the procedures used by the Senate in trying impeachments would 'expose the political life of the country to months, or perhaps years, of chaos.'" The Court found that the word "try" in the Impeachment Clause did not "provide an identifiable textual limit on the authority which is committed to the Senate." Justice Souter's concurring opinion noted that "[i]t seems fair to conclude that the [Impeachment] Clause contemplates that the Senate may determine, within broad boundaries, such subsidiary issues as the procedures for receipt and consideration of evidence necessary to satisfy its duty to 'try' impeachments."

The Court's affirmation of the Senate's procedures with respect to the appointment of select committees for impeachment trials, clearly indicates that the use of committees for contempt proceedings—whether they be standing legislative committees, or select committees created by resolution for a specific purpose—is a permissible exercise of each House's Article I, Section 5 rulemaking power. As such, it would appear that one of the suggested reasons for the apparent abandonment of the use of Congress's inherent contempt power, namely, that it became too cumbersome and time consuming to try contemptuous behavior on the floor of the body, is no longer compelling. The ability to utilize the committee structure for trials, evidentiary hearings, and other procedural determinations appears to be supported not only by the historical records of previous contempt proceedings, but also by the Court's decision in Nixon .

While the Court in Nixon addressed the permissibility of using select committees in impeachment trials, it says nothing about the rights or privileges that would be required to be afforded to the accused. Similarly, in any contempt proceedings before a congressional committee, the question of rights and privileges remains one that has not yet been directly addressed by the courts. According to the Supreme Court in Groppi v. Leslie ,

[t]he past decisions of this Court strongly indicate that the panoply of procedural rights that are accorded a defendant in a criminal trial has never been thought necessary in legislative contempt proceedings. The customary practice in Congress has been to provide the contemnor with an opportunity to appear before the bar of the House, or before a committee, and give answer to the misconduct charged against him.

The Court also suggested that "the length and nature of the [right to be heard] would traditionally be left largely to the legislative body.... " This deference to Congress in establishing its own rules and procedures is consistent with the more recent decision in Nixon . Thus, it would appear that while there is no definitive answer to the question of what rights the committee hearing a contempt proceeding would be required to afford, so long as the minimum protections of notice and opportunity to be heard are provided, the courts, it seems, will not interfere with Congress's decisions regarding proper procedure.

Congressional precedent would also appear to be a useful guide to the question of what process is due. A review of early exercises of inherent contempt, discussed above, indicates that the following procedures have been established: attachment by the Sergeant-at-Arms; appearance before the bar; provision for specification of charges; identification of the accuser; compulsory process; provision of counsel; a hearing; determination of guilt; and imposition of a penalty. According to one commentator, "[t]his traditional procedure was followed by both houses of Congress until they abandoned it for a more convenient statutory device." Since these procedures appear to be in excess of what the Court instructed was required in Groppi , it would seem reasonable to conclude that any inherent contempt proceeding that conforms with these traditions would likely satisfy judicial review.

Statutory Criminal Contempt

Between 1795 and 1857, 14 inherent contempt actions were initiated by the House and Senate, eight of which can be considered successful in that the contemnor was meted out punishment, agreed to testify, or produced documents. Such inherent contempt proceedings, however, involved a trial at the bar of the chamber concerned and, therefore, were seen by some as time-consuming, cumbersome, and in some instances ineffective—because punishment could not be extended beyond a House's adjournment date. In 1857, a statutory criminal contempt procedure was enacted, largely as a result of a particular proceeding brought in the House of Representatives that year. The statute provides for judicial trial of the contemnor by a United States Attorney rather than a trial at the bar of the House or Senate. It is clear from the floor debates and the subsequent practice of both Houses that the legislation was intended as an alternative to the inherent contempt procedure, not as a substitute for it. A criminal contempt referral was made in the case of John W. Wolcott in 1858, but in the ensuing two decades after its enactment most contempt proceedings continued to be handled at the bar of the House, rather than by the criminal contempt method, apparently because Members felt that they would not be able to obtain the desired information from the witness after the criminal proceedings had been instituted. With only minor amendments, those statutory provisions are codified today as 2 U.S.C. §§192 and 194, which state the following:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than [$100,000] nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

Whenever a witness summoned as mentioned in Section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.

The legislative debate over the criminal contempt statute reveals that it was prompted by the obstruction of a House select committee's investigation into allegations of misconduct that had been made against several Members of the House of Representatives. According to reports, the investigation was hindered by the refusal of a newspaper reporter, James W. Simonton, to provide answers to certain questions posed by the committee. The select committee responded by reporting a resolution citing Mr. Simonton for contempt, as well as introducing a bill that was intended "to more effectually ... enforce the attendance of witnesses on the summons of either House of Congress, and to compel them to discover testimony." It appears that there were no printed House or Senate committee reports on the measure, though it was considered in the House by the select committee and in the Senate by the Judiciary Committee.

According to the legislative debate records and commentators, there was opposition to the bill on several fronts. Some Members proposed an amendment expressly codifying Congress's contempt power for failure to comply with requests for documents or testimony, thereby resurrecting the view that Congress did not possess any inherent power to punish for contempt. Others argued that Congress's inherent contempt powers rendered the proposed bill unnecessary. Still other Members opposed the bill on the grounds that it violated the Fourth and Fifth Amendments of the Constitution, because it sanctioned unreasonable searches and seizures, compelled persons to incriminate themselves, and violated the prohibition on persons being punished twice for the same offense (double jeopardy).

In response to arguments that such a statute was unnecessary given Congress's inherent authority to hold individuals in contempt, supporters made clear that the proposed bill was not intended in any way to diminish Congress's inherent contempt authority. Rather, supporters of the bill saw it as designed to give Congress "additional authority, and to impose additional penalties on a witness who fails to appear before an investigating committee of either House, or who, appearing, fails to answer any question." The main concern of proponents seems to have been Congress's ability to impose adequate punishments for contempts that occur near the end of a session, especially in the House, where the prevailing view was that the Court's opinion in Anderson v. Dunn prohibited terms of incarceration that extended beyond the adjournment of a session. With respect to the arguments surrounding the Fourth and Fifth Amendments, supporters asserted that the bill provided the protection of the judiciary, via a judicial trial, for the potential contumacious witnesses. Moreover, supporters argued that the bill removed such witnesses "from the passions and excitement of the Hall—where partisans may frequently, in political questions, carry into the measures of punishment their party hostilities."

The bill was ultimately passed by both the House and the Senate. According to one commentator, the bill was adopted for three reasons:

[F]irst, to increase the power of either House of Congress to punish for contempt in cases of contumacy of witnesses, ... second, to compel criminating testimony. A third reason, although undoubtedly a minor one, was that the effect of the enactment of this legislation would be to remove the trial of cases of contempt of either House of Congress from their respective bars to the courts, where passion and partisanship would not influence the decision against the prisoner and where he would have a trial by jury and all the other constitutional safeguards of court proceedings.

Under 2 U.S.C. §192, a person who has been "summoned as a witness" by either House or a committee thereof to testify or to produce documents and who fails to do so, or who appears but refuses to respond to questions, is guilty of a misdemeanor, punishable by a fine of up to $100,000 and imprisonment for up to one year. 2 U.S.C. §194 establishes the procedure to be followed by the House or Senate if it chooses to refer a recalcitrant witness to the courts for criminal prosecution rather than try him at the bar of the House or Senate. Under the procedure outlined in Section 194, "the following steps precede judicial proceedings under [the statute]: (1) approval by committee; (2) calling up and reading the committee report on the floor; (3) either (if Congress is in session) House approval of a resolution authorizing the Speaker to certify the report to the U.S. Attorney for prosecution, or (if Congress is not in session) an independent determination by the Speaker to certify the report; [and] (4) certification by the Speaker to the appropriate U.S. Attorney for prosecution."

The criminal contempt statute and corresponding procedure are punitive in nature. It is used when the House or Senate wants to punish a recalcitrant witness and, by doing so, to deter others from similar contumacious conduct. The criminal sanction is not coercive because the witness generally will not be able to purge himself by testifying or supplying subpoenaed documents after he has been voted in contempt by the committee and the House or Senate. Consequently, once a witness has been voted in contempt, he lacks an incentive for cooperating with the committee. However, although the courts have rejected arguments that defendants had purged themselves, in a few instances the House has certified to the U.S. Attorney that further proceedings concerning contempts were not necessary where compliance with subpoenas occurred after contempt citations had been voted but before referral of the cases to grand juries.

Under the statute, after a contempt has been certified by the President of the Senate or the Speaker, it is the "duty" of the United States Attorney "to bring the matter before the grand jury for its action." It remains unclear whether the "duty" of the U.S. Attorney to present the contempt to the grand jury is mandatory or discretionary. The case law that is most relevant to the question provides conflicting guidance. In Ex parte Frankfeld , the District Court for the District of Columbia granted petitions for writs of habeas corpus sought by two witnesses before the House Committee on Un-American Activities. The witnesses were charged with violating 2 U.S.C. §192, and were being held on a warrant based on the affidavit of a committee staff member. The court ordered the witnesses released since the procedure, described as "mandatory" by the court, had not been followed. The court, in dicta , not central to the holding of the case, observed that Congress prescribed that

when a committee such as this was confronted with an obdurate witness, a willful witness, perhaps, the committee would report the fact to the House, if it be a House committee, or to the Senate, if it be a Senate committee, and that the Speaker of the House or the President of the Senate should then certify the facts to the district attorney.

It seems quite apparent that Congress intended to leave no measure of discretion to either the Speaker of the House or the President of the Senate, under such circumstances, but made the certification of facts to the district attorney a mandatory proceeding, and it left no discretion with the district attorney as to what he should do about it. He is required, under the language of the statute, to submit the facts to the grand jury.

Similarly, in United States v. United States House of Representatives , a case that involved the applicability of the Section 192 contempt procedure to an executive branch official, the same district court observed, again in dicta , that after the contempt citation is delivered to the U.S. Attorney, he "is then required to bring the matter before the grand jury."

Conversely, in Wilson v. United States , the United States Court of Appeals for the District of Columbia Circuit concluded, based in part on the legislative history of the contempt statute and congressional practice under the law, that the "duty" of the Speaker when certifying contempt citations to the United States Attorney during adjournments is a discretionary, not a mandatory, one. The court reasoned that despite its mandatory language, the statute had been implemented in a manner that made clear Congress's view that, when it is in session, a committee's contempt resolution can be referred to the U.S. Attorney only after approval by the parent body. When Congress is not in session, review of a committee's contempt citation is provided by the Speaker or President of the Senate, rather than by the full House or Senate. This review of a committee's contempt citation, according to the court, may be inherently discretionary in nature, whereas the prosecutor is simply carrying out Congress's directions in seeking a grand jury indictment. In Wilson , the defendants' convictions were reversed because the Speaker had certified the contempt citations without exercising his discretion. From this holding it may be possible to argue that because the statute uses similar language when discussing the Speaker's "duty" and the "duty" of the U.S. Attorney, that the U.S. Attorney's function is discretionary as well, and not mandatory as other courts have concluded.

Alternatively, despite the similarity in the statutory language, there is an argument that the functions of the Speaker and the President of the Senate are so different in nature under the statutory scheme from those of the U.S. Attorney that to conclude that the function of the prosecutor was intended to be discretionary simply because that is the interpretation given to the function of the presiding officers is contrary to the understanding and intent of the 1857 Congress that drafted the language. Nevertheless, it should be noted that the courts have generally afforded U.S. Attorneys broad prosecutorial discretion, even where a statute uses mandatory language. Prosecutorial discretion was the principal basis of the U.S. Attorney's decision not to present the grand jury with the contempt citations of Environmental Protection Agency Administrator Anne Gorsuch Burford in 1982, former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten in 2008, and Attorney General Eric Holder in 2012.

Finally, while upholding the validity of 2 U.S.C. §§192 and 194, the courts have recognized that they are criminal provisions and have reversed convictions for contempt where limitations dictated by the language of the statute itself or the Constitution have been exceeded.

Civil Enforcement of Subpoenas

Where the use of inherent or criminal contempt is unavailable or unwarranted, Congress may invoke the authority of the judicial branch in an effort to enforce a congressional subpoena. Civil enforcement entails a single house or committee of Congress filing suit in federal district court seeking a declaration that the individual in question is legally obligated to comply with the congressional subpoena. If the court finds that such an obligation exists and issues an order to that effect, continued non-compliance may result in contempt of court—as opposed to contempt of Congress. Although the Senate has existing statutory authority to pursue such an action, there is no corresponding provision applicable to the House. However, the House has previously pursued civil enforcement pursuant to an authorizing resolution.

Civil Enforcement in the Senate

As an alternative to both the inherent contempt power of each House and the criminal contempt statutes, in 1978 Congress enacted a civil enforcement procedure, which is applicable only to the Senate. The statute gives the U.S. District Court for the District of Columbia jurisdiction over a civil action to enforce, secure a declaratory judgment concerning the validity of, or to prevent a threatened failure or refusal to comply with, any subpoena or order issued by the Senate or a committee or subcommittee. Generally such a suit will be brought by the Senate Legal Counsel, on behalf of the Senate or a Senate committee or subcommittee.

Pursuant to the statute, the Senate may "ask a court to directly order compliance with [a] subpoena or order, or they may merely seek a declaration concerning the validity of [the] subpoena or order. By first seeking a declaration, [the Senate would give] the party an opportunity to comply before actually [being] ordered to do so by a court." It is solely within the discretion of the Senate whether or not to use such a two-step enforcement process.

Regardless of whether the Senate seeks the enforcement of, or a declaratory judgment concerning, a subpoena, the court will first review the subpoena's validity. If the court finds that the subpoena "does not meet applicable legal standards for enforcement," it does not have jurisdiction to enjoin the congressional proceeding. Because of the limited scope of the jurisdictional statute and because of Speech or Debate Clause immunity for congressional investigations, "[w]hen the court is petitioned solely to enforce a congressional subpoena, the court's jurisdiction is limited to the matter Congress brings before it, that is whether or not to aid Congress in enforcing the subpoena or order." If the individual still refuses to comply, he may be tried by the court in summary proceedings for contempt of court, with sanctions being imposed to coerce their compliance.

Without affecting the right of the Senate to institute criminal contempt proceedings or to try an individual for contempt at the bar of the Senate, this procedure gives the Senate the option of a civil action to enforce a subpoena. Civil enforcement might be employed when the Senate is more concerned with securing compliance with the subpoena or with clarifying legal issues than with punishing the contemnor. Unlike criminal contempt, in a civil enforcement, sanctions (imprisonment and/or a fine) can be imposed until the subpoenaed party agrees to comply thereby creating an incentive for compliance; namely, the termination of punishment.

In addition, the civil enforcement process is arguably more expeditious than a criminal proceeding, where a court may more closely scrutinize congressional procedures and give greater weight to the defendant's constitutional rights. The civil enforcement procedure also provides an element of flexibility, allowing the subpoenaed party to raise possible constitutional and other defenses (e.g., the privilege against self-incrimination, lack of compliance with congressional procedures, or an inability to comply with the subpoena) without risking a criminal prosecution.

Civil enforcement, however, has limitations. Most notable is that the statute granting jurisdiction to the courts to hear such cases is, by its terms, inapplicable in the case of a subpoena issued to an officer or employee of the federal government acting in their official capacity. Enacted as part of the Ethics in Government Act of 1978, early drafts of the civil enforcement statute did not include an exception for federal government officers and employees acting within the scope of their duties. It appears that the section was drafted primarily in response to the District Court's dismissal, for lack of jurisdiction, of an Ervin Committee's request for a declaratory judgment regarding the lawfulness of its subpoena of President Nixon's tape recordings. Thus, one of the purposes of the statute was to expressly confer jurisdiction upon courts to determine the validity of congressional requests for information.

During the course of the debates regarding this legislation, the executive branch strongly opposed conferring jurisdiction upon the federal courts to decide such sensitive issues between Congress and the executive branch. Testifying before a subcommittee of the Senate Committee on Governmental Operations, then-Assistant Attorney General Antonin Scalia argued that weighing the legislature's need for information against the executive's need for confidentiality is "the very type of 'political question' from which ... the courts [should] abstain." In response, Congress amended the proposed legislation excluding from its scope federal officers and employees acting in their official capacity. However, as noted in a report from the House Judiciary Committee in 1988, the exclusion was to apply only in cases in which the President had directed the recipient of the subpoena not to comply with its terms.

Since the civil enforcement statute's enactment in 1979, it appears that the Senate has authorized the Office of Senate Legal Counsel to seek civil enforcement of a subpoena for documents or testimony at least six times. Notably, it appears that none of these civil enforcement actions has been brought against executive branch officials. Nevertheless, the Senate has successfully enforced its subpoena authority with respect to non-governmental officials. Most recently, on March 17, 2016, the Senate passed a resolution authorizing civil enforcement of a subpoena against Carl Ferrer, the Chief Executive Officer of Backpage.com, a website for classified advertisements. The Senate, in conjunction with an investigation into sex trafficking on the Internet, had sought the production of documents concerning the company's advertisements for commercial sex services. On August 5, 2016, the U.S. District Court for the District of Columbia rejected Mr. Ferrer's arguments that the subpoena violated his First Amendment rights, and the court granted the Senate's application for enforcement of the subpoena. Thus, although used infrequently, the Senate's statutory authority to seek civil enforcement of a subpoena has remained a powerful tool of its investigatory functions.

Civil Enforcement in the House of Representatives

While the House of Representatives cannot pursue actions under the Senate's civil enforcement statute discussed above, past precedent and the decision of the U.S. District Court for the District of Columbia in Committee on the Judiciary v. Miers suggest that the House may authorize a committee to seek a civil enforcement action to force compliance with a subpoena. Prior to Miers —which represented the first congressional attempt to seek civil enforcement of a subpoena in federal court authorized solely by resolution of a single house—a number of threshold questions, including whether the federal courts would have jurisdiction over such a claim, remained unresolved.

The jurisdiction of the federal district courts, where a civil action for enforcement of a congressional subpoena would be brought, is derived from both Article III of the Constitution and federal statute. Article III states, in relevant part, that "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.... " The Supreme Court has interpreted the language "arising under" broadly, essentially permitting federal jurisdiction to be found whenever federal law "is a potentially important ingredient of a case." Conversely, the federal question jurisdiction statute, first enacted in 1875, while containing almost identical language to Article III, has been interpreted by the Court to be much narrower in scope. As the Court explained in Verlinden B.V. v. Central Bank of Nigeria ,

Although the language of 1331 parallels that of the "Arising Under" Clause of Art. III, this Court never has held that statutory "arising under" jurisdiction is identical to Art. III "arising under" jurisdiction. Quite the contrary is true ... [T]he many limitations which have been placed on jurisdiction under 1331 are not limitations on the constitutional power of Congress to confer jurisdiction on the federal courts ... Art. III "arising under" jurisdiction is broader than federal-question jurisdiction under 1331.... "

The fact that the statutory jurisdiction provided by Congress is narrower than the Constitution's grant of judicial power may give rise to an argument that the statutory grant of jurisdiction cannot be used by the House should it merely adopt a resolution authorizing a subpoena enforcement proceeding to be brought in court. Following this argument to its conclusion might suggest that both houses of Congress must pass a law, signed by the President, which authorizes a civil enforcement action to be brought in federal district court because a mere one-house resolution will not suffice to provide such jurisdiction. However, the limited precedent from the Supreme Court and other federal courts, especially the federal district court decision in Committee on the Judiciary v. Miers , may be read to suggest that the current statutory basis is sufficient to establish jurisdiction for a civil action of the type contemplated here if the representative of the congressional committee is specifically authorized by a house of Congress to act.

In 1928, the Supreme Court decided Reed v. The County Commissioners of Delaware County, Pennsylvania, which involved a special committee of the United States Senate charged, by Senate resolution, with investigating the means used to influence the nomination of candidates for the Senate. The special committee was authorized to "require by subpoena or otherwise the attendance of witnesses, the production of books, papers, and documents, and to do such other acts as may be necessary in the matter of said investigation." During the course of its investigation into the disputed election of William B. Wilson of Pennsylvania to the Senate, the committee sought to obtain the "boxes, ballots, and other things used in connection with the election." The County Commissioners, who were the legal custodians of said materials, refused to provide them to the committee, thus necessitating the lawsuit. The Supreme Court, after affirming the powers of the Senate to "obtain evidence related to matter committed to it by the Constitution" and having "passed laws calculated to facilitate such investigations," nevertheless held that it was without jurisdiction to decide the case. The Senate had relied on the resolution's phrase "such other acts as may be necessary" to justify its authority to bring such a suit. According to the Court, however, that phrase "may not be taken to include everything that under any circumstances might be covered by its words." As a result, the Court held that "the Senate did not intend to authorize the committee, or anticipate that there might be need, to invoke the power of the Judicial Department. Petitioners are not 'authorized by law to sue.'" The Court in Reed made no mention of the jurisdictional statute that existed at the time. Rather, the Court appears to have relied on the fact that the Senate did not specifically authorize the committee to sue; therefore, absent particular language granting the power to sue in court, there can be no basis for judicial jurisdiction over such a suit. Read in this manner, Reed appears to suggest that had the Senate resolution specifically mentioned the power to sue, the Court may have accepted jurisdiction and decided the case on its merits. Such a reading of Reed is supported by a recent district court ruling involving the question of whether Congress authorized judicial enforcement of Member demands for information from executive branch agencies.

In Waxman v. Thompson , a 2006 opinion of the District Court for the Central District of California, the plaintiffs, all minority members of the House Government Reform Committee, sought a court order pursuant to 5 U.S.C. §§2954 and 7211—often times referred to as the "rule of seven"—granting them access to Department of Health and Human Services records related to the anticipated costs of the Medicare Prescription Drug Implementation and Modernization Act of 2003. The court, in dismissing the case for lack of jurisdiction, addressed the argument made by the plaintiffs that 5 U.S.C. §2954, which requires that "[a]n Executive agency, on request of the Committee on Government Operations of the House of Representatives, or of any seven members thereof ... shall submit any information requested of it relating to any matter within the jurisdiction of the committee," implicitly delegated to Members the right to sue to enforce their informational demands. The court, in rejecting this argument, relied on the Supreme Court's holding in Reed v. County Commissioners . Specifically, the court noted that Reed 's holding "put Congress on notice that it was necessary to make authorization to sue to enforce investigatory demands explicit if it wished to ensure that such power existed." According to the court, like the Senate resolution at issue in Reed , because §2954 is silent with respect to civil enforcement it stands to reason that the Congress never intended to provide the Members with the power to seek civil judicial orders to enforce their document demands. According to the court in Waxman , the holdings of Reed , Senate Select Committee and United States v. AT&T —a case involving the intervention by a House committee chairman into a lawsuit by the DOJ, which was attempting to enjoin compliance with a committee subpoena by AT&T—suggest that "legislative branch suits to enforce requests for information from the executive branch are justiciable if authorized by one or both Houses of Congress ."

The argument that a mere one-house resolution is not sufficient to provide jurisdiction chiefly derives its support from the ruling in Senate Select Committee on Presidential Campaign Activities v. Nixon , a 1973 decision by the U.S. District Court for the District of Columbia. In Senate Select Committee , the court held that there was no jurisdictional statute available that authorizes the court to hear and decide the merits of the committee's request for a declaratory judgment, mandatory injunction, and writ of mandamus arising from President Nixon's refusal to produce tape recordings and other documents sought by the committee pursuant to a subpoena duces tecum . In reaching its conclusion, the court addressed several potential bases for jurisdiction: 28 U.S.C. §1345, United States as a Plaintiff; 28 U.S.C. §1361, Action to Compel an Officer of the United States to Perform His Duty; 5 U.S.C. §§701-706, the Administrative Procedure Act; and, of particular relevance here, 28 U.S.C. §1331, the federal question jurisdiction statute.

Focusing on 28 U.S.C. §1331, the court noted that the statute at the time contained a minimum "amount in controversy" requirement of "$10,000 exclusive of interest and costs." The court stated that "[t]he satisfaction of a minimum amount-in-controversy is not a technicality; it is a requirement imposed by Congress which the courts may not dispense with at their pleasure ." Because the select committee could not establish a theory under which the amount in controversy requirement was satisfied, the court dismissed the case for lack of subject matter jurisdiction.

The 2008 district court opinion in Committee on the Judiciary v. Miers made clear that the lack of subject matter jurisdiction in Senate Select Committee was based solely on the jurisdictional amount in controversy—which has since been repealed —and not on any larger limit on the reach of federal question jurisdiction. In Miers , the House Judiciary Committee was authorized, by resolution, to pursue civil enforcement of subpoenas issued against former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten. The Miers court, without significant discussion, succinctly stated that although the district court in Senate Select Committee had dismissed the claim for failure to satisfy the amount in controversy requirement, "that requirement no longer exists and there is no other impediment to invoking §1331 subject matter jurisdiction." The court expressly held that because the subpoena power at issue in the suit "derives implicitly from Article I of the Constitution, this case arises under the Constitution for purposes of §1331" and, therefore, qualifies for federal question jurisdiction.

In the summer of 2012, the House again authorized a congressional committee to pursue a civil action in federal court to enforce a subpoena in connection with the approval of a contempt citation against an executive branch official. On June 28, 2012, in addition to holding Attorney General Eric Holder in contempt of Congress for his failure to comply fully with subpoenas issued pursuant to the House Oversight and Government Reform Committee investigation of Operation Fast and Furious, the House also approved a resolution authorizing Chairman Darrell Issa to initiate a civil lawsuit on behalf of the committee to enforce the outstanding subpoenas. The lawsuit, which seeks a declaratory judgment directing the Attorney General to comply with the committee subpoenas, was filed on August 13, 2012. On September 30, 2013, the court issued its opinion rejecting the DOJ's motion to dismiss based on jurisdictional and justiciability arguments. The court largely adopted the reasoning laid out in Miers , in a detailed discussion that addressed the doctrine of separation of powers, federal court jurisdiction, standing, and causes of action. It determined that the court had jurisdiction to hear the case under 28 U.S.C. §1331 and that the committee, having been authorized to represent the interests of the full House, had standing to sue.

Following Miers and Holder , it appears that all that is legally required for House committees, the House general counsel, or a House-retained private counsel to seek civil enforcement of subpoenas or other orders is that authorization be granted by resolution of the full House. Absent such authorization, it appears that the courts will not entertain civil motions of any kind on behalf of Congress or its committees. While some may still argue that a measure passed by both houses and signed by the President conferring jurisdiction is required, it appears that—at least with respect to claims filed in the U.S District Court for the District of Columbia—if an authorizing resolution by the House can be obtained, there is a likelihood that the court will find no legal impediment to seeking civil enforcement of subpoenas or other committee orders.

Special Investigatory Committees

There have been numerous examples of the House, by resolution, affording special investigatory committees authority not ordinarily available to its standing committees. Such special panels have often been vested with staff deposition authority, and given the particular circumstances, special panels have also been vested with the authority to obtain tax information, as well as the authority to seek international assistance in information gathering efforts abroad. In addition, several special panels have been specifically granted the authority to seek judicial orders and participate in judicial proceedings.

For example, in 1987, the House authorized the creation of a select committee to investigate the covert arms transactions with Iran (Iran-Contra). As part of this resolution, the House provided the following authorization:

(3) The select committee is authorized ... to require by subpoena or otherwise the attendance and testimony of such witnesses ... as it deems necessary, including all intelligence materials however classified, White House materials, ... and to obtain evidence in other appropriate countries with the cooperation of their governments. ... (8) The select committee shall be authorized to respond to any judicial or other process, or to make any applications to court , upon consultation with the Speaker consistent with [House] rule L.

The combination of broad subpoena authority that expressly encompassed the White House, and the ability to make "any applications to court," arguably suggests that the House contemplated the possibility that a civil suit seeking enforcement of a subpoena against a White House official was possible. By virtue of the resolution's language, it appears reasonable to conclude that the House decided to leave the decision in the hands of the select committee, consistent with House Rule L (now House Rule VIII governing subpoenas). It may be noted, then, that while the House select committee did not attempt to seek judicial enforcement of any of its subpoenas, the authorization resolution did not preclude the possibility.

Among the more prominent attempts at utilizing the authority to make applications in court granted by a house of Congress to a select committee occurred during the investigation into the Iran-Contra affair. In 1987, the Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition issued an order requiring that former Major Richard V. Secord execute a consent directive authorizing the release of his offshore bank records and accounts to the committee. When Mr. Secord refused to sign the consent directive, the committee sought to obtain a court order directing him to comply. While the committee did not prevail in the Secord litigation, the matter was not disposed of on jurisdictional grounds. Specifically, the district court noted its jurisdiction pursuant to 28 U.S.C. §1364, as Mr. Secord was a private citizen. Moreover, there is no mention or indication of any challenge to the committee's ability to seek such an order. Rather, the case was decided on Fifth Amendment grounds, with the court holding that there was a testimonial aspect to requiring the signing of the consent directive. Thus, the court concluded that the committee's order was a violation of Mr. Secord's Fifth Amendment right against self-incrimination.

Committee Intervention in Subpoena-Related Litigation

Although, as indicated, prior to the Miers dispute there have been no previous attempts by a house of Congress to seek civil enforcement of subpoenas in federal court authorized solely by resolution of a single House, there have been situations that appear to be closely analogous. On several occasions the House of Representatives has authorized, via House resolution, the intervention by counsel representing a House committee into civil litigation involving congressional subpoenas.

In June of 1976, subpoenas were issued to the American Telephone and Telegraph Company (AT&T) by the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce. The subcommittee was seeking copies of "all national security request letters sent to AT&T and its subsidiaries by the FBI as well as records of such taps prior to the time when the practice of sending such letters was initiated." Before AT&T could comply with the request, the DOJ and the subcommittee's chairman, Representative John Moss, entered into negotiations seeking to reach an alternate agreement which would prevent AT&T from having to turn over all its records. When these negotiations broke down, the DOJ sought an injunction in the District Court for the District of Columbia prohibiting AT&T from complying with the subcommittee's subpoenas.

The House of Representatives responded to the litigation by authorizing Representative Moss to intervene in the suit on behalf of the Committee on Interstate and Foreign Commerce and the House of Representatives. Specifically, the authorization for intervention was accomplished by House Resolution, which provided that Chairman Moss was to represent the committee and the full House "to secure information relating to the privacy of telephone communications now in the possession of [AT&T] for the use of the Committee and the full House." In addition, the resolution authorized Chairman Moss to hire a special counsel, use not more than $50,000 from the contingent fund of the committee to cover expenses, and to report to the full House on matters related as soon as practicable. The resolution was adopted by the House by a vote of 180-108 on August 26, 1976.

Chairman Moss's intervention into the proceedings was noted by the district court, and does not appear to have been contested by either AT&T or the DOJ. Chairman Moss remained an intervener pursuant to the House Resolution through the district court proceeding and two appeals to the Court of Appeals for the District of Columbia Circuit until an agreement was reached with respect to the disclosure of the documents sought.

A second intervention authorization, involving litigation between Ashland Oil and the Federal Trade Commission (FTC), also occurred in 1976. This case arose when Ashland Oil sought to enjoin the FTC from transferring its information to the Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce at the request of subcommittee Chairman Moss. When Ashland Oil obtained a temporary restraining order, the subcommittee promptly authorized a subpoena for the documents and Chairman Moss filed a resolution for authorization from the House to allow him to intervene with special counsel in the suit that Ashland Oil had filed seeking to enjoin the FTC from transferring the documents to the subcommittee. The district court granted Chairman Moss's motion to intervene and ultimately refused to grant the injunction. The Court of Appeals affirmed on the grounds that "no substantial showing was made that the materials in the possession of the FTC will necessarily be 'made public' if turned over to Congress."

While AT&T and Ashland Oil represent affirmative authorizations for intervention by a house of Congress, In Re Beef Industry Antitrust Litigation , provides an example of what may occur should a house of Congress not provide express authorization to be represented in court. In In Re Beef , the chairmen of two subcommittees of the House of Representatives sought to intervene in a pending antitrust dispute for the purpose of obtaining access to documents subpoenaed by subcommittees from a party to the litigation. The subpoenaed documents had been obtained through litigation discovery and were thus subject to a standing court protective order. The district court refused to modify its protective order allowing the party to comply with the subpoena. The subcommittee chairmen appealed to the United States Court of Appeals for the Fifth Circuit.

On appeal, the Fifth Circuit entertained a motion to dismiss by one of the plaintiffs on the grounds that the chairmen had not obtained authorization from the full House of Representatives before filing their initial motion before the district court. The plaintiffs relied on what was then Rule XI, cl. 2(m)(2)(B) of the Rules of the House of Representatives, which provided that "[c]ompliance with any subpoena [sic] issued by a committee or subcommittee ... may be enforced only as authorized or directed by the House." The committee chairmen responded by arguing that the rule was not applicable as they were not seeking to enforce their subpoenas, but rather were seeking a modification of the district court's protective order. Therefore, according to the chairmen, they did not require authorization from the full House of Representatives to appear in court.

The Fifth Circuit rejected the chairmen's arguments, noting specifically that the House Rules "require[] House authorization not only for direct enforcement of a subpoena but also in any instance when a House committee seeks to institute or to intervene in litigation and, of course, to appeal from a court decision, particularly when the purpose is, as here, to obtain the effectuation of a subpoena." The court also extensively relied on the Ashland Oil precedent noting that similar to this case, the chairman in Ashland Oil was not seeking to enforce a subpoena, rather merely attempting to prevent an injunction from being issued. The failure of the chairmen to obtain an authorization resolution from the full House in this case necessitated the dismissal of their appeal without any decision on the merits.

Enforcement of a Criminal or Inherent Contempt Resolution Against an Executive Branch Official

Although the DOJ appears to have acknowledged that properly authorized procedures for seeking civil enforcement provide the preferred method of enforcing a subpoena directed against an executive branch official, the executive branch has consistently taken the position that Congress cannot, as a matter of statutory or constitutional law, invoke either its inherent contempt authority or the criminal contempt of Congress procedures against an executive branch official acting on instructions by the President to assert executive privilege in response to a congressional subpoena. Under such circumstances, the Attorney General has previously directed the U.S. Attorney to refrain from pursuing a criminal contempt prosecution under 2 U.S.C. §§192, 194. This view is most fully articulated in two opinions by the DOJ's Office of Legal Counsel (OLC) from the mid-1980s, and further evidenced by actions taken by the DOJ in the Burford, Miers, and Holder disputes, discussed below. As a result, when an executive branch official is invoking executive privilege at the behest of the President, the criminal contempt provision may prove ineffective, forcing Congress to rely on other avenues to enforce subpoenas, including civil enforcement through the federal courts.

The Burford Contempt

The DOJ's early legal analyses were prompted by the outcome of an investigation by two House committees into the Environmental Protection Agency's (EPA) implementation of provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund). Subpoenas were issued by both committees seeking documents contained in the EPA's litigation files. At the direction of President Reagan, EPA Administrator Burford claimed executive privilege over the documents and refused to disclose them to the committees on the grounds that they were "enforcement sensitive." A subcommittee, and ultimately the full House Committee on Public Works and Transportation, approved a criminal contempt of Congress citation and forwarded it to the full House for its consideration. On December 16, 1982, the full House of Representatives voted, 259-105, to adopt the contempt citation. Before the Speaker of the House could transmit the citation to the United States Attorney for the District of Columbia for presentation to a grand jury, the DOJ filed a lawsuit seeking to enjoin the transmission of the citation and to have the House's action declared unconstitutional as an intrusion into the President's authority to withhold such information from the Congress. According to the DOJ, the House's action imposed an "unwarranted burden on executive privilege" and "interferes with the executive's ability to carry out the laws."

The District Court for the District of Columbia dismissed the DOJ's suit on the grounds that judicial intervention in executive-legislative disputes "should be delayed until all possibilities for settlement have been exhausted." In addition, the court noted that ultimate judicial resolution of the validity of the President's claim of executive privilege could only occur during the course of the trial for contempt of Congress. The DOJ did not appeal the court's ruling, opting instead to resume negotiations, which resulted in full disclosure and release of the all the subpoenaed documents to the Congress. Throughout the litigation and subsequent negotiations, however, the U.S. Attorney refused to present the contempt citation to a grand jury for its consideration on the grounds that, notwithstanding the mandatory language of the criminal contempt statute, he had discretion with respect to whether to make the presentation. The issue was never resolved because the ultimate settlement agreement included a withdrawal of the House's contempt citation.

In its initial 1984 opinion, OLC revisited the statutory, legal, and constitutional issues that were not judicially resolved by the Superfund dispute. The opinion concluded that, as a function of prosecutorial discretion, a U.S. Attorney is not required to refer a contempt citation to a grand jury or otherwise to prosecute an executive branch official who is carrying out the President's direction to assert executive privilege. Next, the OLC opinion determined that a review of the legislative history of the 1857 enactment of the criminal contempt statute and its subsequent implementation demonstrates that Congress did not intend the statute to apply to executive officials who carry out a presidential directive to assert executive privilege. Finally, as a matter of constitutional law, the opinion concludes that simply the threat of criminal contempt would unduly chill the President's ability to effectively protect presumptively privileged executive branch deliberations. According to the OLC opinion,

The President's exercise of this privilege, particularly when based upon the written legal advice of the Attorney General, is presumptively valid. Because many of the documents over which the President may wish to assert a privilege are in the custody of a department head, a claim of privilege over those documents can be perfected only with the assistance of that official. If one House of Congress could make it a crime simply to assert the President's presumptively valid claim, even if a court subsequently were to agree that the privilege claim were valid, the exercise of the privilege would be so burdened as to be nullified. Because Congress has other methods available to test the validity of a privilege claim and to obtain the documents that it seeks, even the threat of a criminal prosecution for asserting the claim is an unreasonable, unwarranted, and therefore intolerable burden on the exercise by the President of his functions under the Constitution.

The 1984 opinion focuses almost exclusively on the criminal contempt statute, as that was the authority invoked by Congress in the Superfund dispute. In a brief footnote, however, the opinion contains a discussion of Congress's inherent contempt power, summarily concluding that the same rationale that makes the criminal contempt statute inapplicable and unconstitutional as applied to executive branch officials apply to the inherent contempt authority:

We believe that this same conclusion would apply to any attempt by Congress to utilize its inherent "civil" contempt powers to arrest, bring to trial, and punish an executive official who asserted a Presidential claim of executive privilege. The legislative history of the criminal contempt statute indicates that the reach of the statute was intended to be coextensive with Congress' inherent civil contempt powers (except with respect to the penalties imposed). Therefore, the same reasoning that suggests that the statute could not constitutionally be applied against a Presidential assertion of privilege applies to Congress' inherent contempt powers as well.

The 1986 OLC opinion reiterates the 1984 reasoning adding the observation that the power had not been used since 1935 (at that time over 50 years), and that "it seems unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison an executive branch official who claimed executive privilege." The 1986 OLC opinion also suggests that then current Supreme Court opinions indicated that it was "more wary of Congress exercising judicial authority" and, therefore, might revisit the question of the continued constitutional validity of the inherent contempt power.

Factual, legal, and constitutional aspects of these OLC opinions are open to question and potentially limitations. For example, with respect to the argument that a U.S. Attorney cannot be statutorily required to submit a contempt citation to a grand jury, despite the plain language of the law, such a statement appears to be analogous to a grant of so-called "pocket immunity" by the President to anyone who asserts executive privilege on his behalf. The courts have concluded that the government, or in this case the President, may informally grant immunity from prosecution, which is in the nature of a contract and, therefore, its effect is strongly influenced by contract law principles. Moreover, principles of due process require that the government adhere to the terms of any immunity agreement it makes. It appears that a President has implicitly immunized executive branch officials from violations of congressional enactments at least once—in 1996, during a dispute over the constitutionality of a statute that made it a requirement for all public printing to be done by the Government Printing Office. At the time, the DOJ, in an opinion from OLC, argued that the requirement was unconstitutional on its face, directed the executive branch departments not to comply with the statute as passed by Congress, and noted that executive branch officials who are involved in making decisions that violate the statute face little to no litigation risk, including, it appears, no risk of prosecution under the Anti-Deficiency Act, for which the DOJ is solely responsible. Such a claim of immunization in the contempt context, whether express or implicit, would raise significant constitutional questions. While it is true that the President can immunize persons from criminal prosecution, it does not appear that he has authority to immunize a witness from a congressional inherent contempt proceeding. Arguably, an inherent contempt proceeding takes place wholly outside the criminal code, is not subject to executive execution of the laws and prosecutorial discretion, and thus, appears completely beyond the reach of the executive branch. Furthermore, as previously indicated, inherent contempt, unlike criminal contempt, is not intended to punish, but rather to coerce compliance with a congressional directive. Thus, a finding of inherent contempt against an executive branch official does not appear to be subject to the President's Pardon power —as an inherent contempt arguably is not an "offense against the United States," but rather is an offense against a house of Congress. Likewise, it appears that the same arguments would be applicable to a potential civil enforcement by Congress.

The assertion that the legislative history of the 1857 statute establishing the criminal contempt process demonstrates that it was not intended to be used against executive branch official is not supported by the historical record. The floor debates leading to the enactment of the statute make it clear that the legislation was intended as an alternative to, not a substitute for, the inherent contempt authority. This understanding has been reflected in numerous Supreme Court opinions upholding the use of the criminal contempt statute. A close review of the floor debate indicates that Representative H. Marshall expressly pointed out that the broad language of the bill "proposes to punish equally the Cabinet officer and the culprit who may have insulted the dignity of this House by an attempt to corrupt a Representative of the people."

Moreover, language from the floor debate indicates that Congress was aware of the effect that this language would have on the ability of persons to claim privileges before Congress. Specifically, the sponsor of the bill, Representative Orr, was asked about the potential instances in which the proposed legislation might interfere with recognized common law and other governmental privileges, such as the attorney-client privilege, to support an investigation such as one that probed "the propriety of a secret service fund to be used upon the discretion of the executive department," or to support inquiries about "diplomatic matters." Representative Orr responded that the House has and would continue to follow the practice of the British Parliament, which "does not exempt a witness from testifying upon any such ground. He is not excused from testifying there. That is the common law of Parliament." Later in the same debate, a proposed amendment to expressly recognize the attorney-client privilege in the statute was overwhelmingly defeated.

With respect to the secret service fund, Representative Orr explained:

this House has already exercised the power and authority of forcing a disclosure as to what disposition had been made for the secret-service fund. And it is right and proper that is should be so. Under our Government—under our system of laws—under our Constitution—I should protest against the use of any money by an executive authority, where the House had not the right to know how every dollar had been expended, and for what purpose.

Representative Orr's reference was to a contentious investigation in 1846, regarding charges that Daniel Webster, while Secretary of State, had improperly disbursed monies from a secret contingency fund used by the President for clandestine foreign operations. The charges led the committee to issue subpoenas to former Presidents John Quincy Adams and John Tyler. President Polk sent the House a list of the amounts in the contingent fund for the relevant period, which was prior to his term, but refused to furnish documentation of the uses that had been made of the expenditures on the grounds that a sitting President should not publically reveal the confidences of his predecessors. President Polk's refusal to provide the information was mooted by the actions of the two investigatory committees established by the House. Former President Tyler testified and former President Adams filed a deposition detailing the uses of the fund during their Administrations. In addition, President Polk's Secretary of State, James Buchanan, was subpoenaed and testified. Ultimately, Mr. Webster was found innocent of any wrongdoing. From these references, it appears that the House was, in 1857, sensitive to and cognizant of its oversight and investigative prerogatives vis-à-vis the executive branch. It therefore appears arguable that in the context of the debate, the contempt statute was not intended to preclude the House's ability to engage in oversight of the executive branch.

Finally, it should be noted that past practice suggests that Congress clearly claims the authority to utilize the criminal contempt statute to cite executive branch officials for contempt. Since 1980, Congress has cited a number of executive branch officials or former executive branch officials for contempt of Congress. The House of Representatives has approved contempt citations for two former officials (former EPA Assistant Administrator Rita M. Lavelle and former White House Counsel Harriet Miers), and three sitting officials (EPA Administrator Anne Gorsuch Burford, White House Chief of Staff Joshua Bolten, and Attorney General Eric Holder). Additionally, committees and subcommittees of the House of Representatives have also voted contempt citations against Secretary of Energy Charles Duncan (1980); Secretary of Energy James B. Edwards (1981); Secretary of the Interior James Watt (1982); Attorney General William French Smith (1983); White House Counsel John M. Quinn (1996); Attorney General Janet Reno (1998); and former White House Advisor Karl Rove (2008). Senate committees and subcommittees have voted contempt citations against William French Smith (1984); Joshua Bolten (2007); and White House Advisor Karl Rove (2007). (For a summary of House and Senate action on contempt resolutions see Appendix .)

The Bolten and Miers Contempt: Committee on the Judiciary v. Miers

The DOJ's position on the use of criminal contempt against an executive branch official invoking executive privilege was put into practical effect during a dispute over an investigation into the resignations of nine United States Attorneys by the House Judiciary Committee and its Subcommittee on Commercial and Administrative Law ("the committee"). This investigation resulted in the first legal confrontation over Congress's contempt authority since the early 1980s and the first civil lawsuit filed by a house of Congress in an attempt to affirm its information gathering prerogatives. The actions and approach taken by both branches throughout the dispute, the Attorney General's unwillingness to prosecute a former presidential advisor for contempt of Congress, and the resulting district court decision remain uniquely informative in delineating the ability of Congress to issue and effectively enforce its own subpoenas against executive branch officials.

After an extensive investigation into whether political motives and White House involvement had prompted the requested resignations of the U.S. Attorneys—including numerous informal communications and requests for information, witness interviews, and several congressional hearings—the committee ultimately sought information relating to the resignations directly from a number of President Bush's closest White House legal advisors. Following several months of unfruitful negotiations and a number of attempts to obtain the information sought voluntarily, on March 21, 2007, the committee authorized subpoenas for Ms. Harriet Miers, the former White House Counsel and Mr. Joshua Bolten, the White House Chief of Staff and custodian of White House records. The Miers subpoena was for both documents and testimony relating to her role, if any, in the resignations, while the Bolten subpoena was only for White House records and documents related to the resignations. In an effort to obtain a negotiated solution, Chairman Conyers did not issue the authorized subpoenas until June 13, 2007.

In response to the committee's action, the White House, via its Counsel Fred F. Fielding, notified the committee that it did not intend to comply with the Bolten subpoena on the grounds of executive privilege. With respect to the subpoena directed to Ms. Miers, who had been living in Texas since her resignation as White House Counsel in January 2007, Mr. Fielding first sent a letter to Miers's private attorney containing notice of the President's assertion of executive privilege over information related to the investigation, and suggested that Ms. Miers refrain from producing any documents pursuant to her subpoena. Several days later, Mr. Fielding sent a second letter to Miers's attorney indicating that she was "not to provide ... testimony" pursuant to the subpoena on the grounds that any such testimony would also be covered by the President's assertion of executive privilege. Subsequently, Miers's attorney notified the committee that, as a result of the President's claim of executive privilege, Ms. Miers would not appear at the scheduled hearing.

Although negotiations between the committee and the White House continued in an attempt to reach a compromise over the disclosure of documents and the requested testimony, by July 25, 2007, the sides had apparently reached an impasse, and the committee voted to recommend that Ms. Miers and Mr. Bolten be cited for contempt of Congress for failure to comply with the duly issued subpoenas. The resolutions were forwarded to the House of Representatives, which voted to cite Ms. Miers and Mr. Bolten for contempt of Congress on February 14, 2008. The House approved Resolution 979, which directed the Speaker to forward the contempt citation to the U.S. Attorney for the District of Columbia for action against Ms. Miers and Mr. Bolten; and Resolution 980, which expressly authorized Chairman Conyers to initiate a civil lawsuit in federal court to enforce the subpoenas in the event that the Department of Justice did not pursue the criminal contempt actions.

On February 28, 2008, pursuant to 2 U.S.C. §194, the Speaker of the House certified the report to the U.S. Attorney for the District of Columbia for presentation to the grand jury. The next day, however, the Attorney General sent a letter to the Speaker, stating that the Department of Justice would "not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers." Consistent with the positions asserted in the previously discussed OLC opinions, it appeared that the DOJ would not proceed with the prosecution of a White House official for criminal contempt of Congress where that official had invoked executive privilege at the behest of the President. With any criminal contempt prosecution under 2 U.S.C. §§192 and 194 unavailable, on March 10, 2008, pursuant to the resolution adopted by the House of Representatives, the committee filed a civil suit in the U.S. District Court for the District of Columbia "seek[ing] [a] declaratory judgment[]" and other "appropriate relief, including injunctive relief" to enforce the committee's subpoenas. It is important to note that the case filed by the committee was limited only to whether Miers and Bolten could be forced to comply with the issued subpoenas, not whether the House had the authority to hold either of the officials in contempt of Congress.

In Committee on the Judiciary v. Miers , the Bush Administration adopted the position that senior presidential advisors, like Ms. Miers, were absolutely immune from compelled testimony before Congress when asserting executive privilege at the direction of the President. As such, Ms. Miers could not be required to present herself before the committee. The Administration's absolute immunity argument rested primarily on the assertion that a senior presidential advisor, as the President's "alter ego," should be accorded the same constitutional immunities enjoyed by the President, just as congressional aides were accorded the same protections as Members of Congress under the Speech or Debate Clause. Therefore, if the President were absolutely immune from compelled testimony before Congress, which the Administration argued he surely was, so too should that immunity extend to his closest presidential advisors, including his White House Counsel.

The opinion issued by the U.S. District Court for the District of Columbia on July 31, 2008, rejected the Administration's position, noting that "the asserted absolute immunity claim here is entirely unsupported by existing case law." In addition, the court reaffirmed Congress's "essential," constitutionally based power to issue and enforce subpoenas. Although upholding Congress's "right" to information, and acknowledging that that right "derived from its Article I legislative function, " the district court made no explicit comment about Congress's authority to punish executive branch officials through contempt. Nor did the court reach the question of whether the U.S. Attorney could decline to refer a duly certified criminal contempt citation to a grand jury under 2 U.S.C. §194.

In dismissing the Administration's absolute immunity argument, the district court held that past precedent suggested that presidential advisors could not be regarded as the "alter ego" of the President for immunity purposes. The Supreme Court had previously rejected the alter ego analogy in the case of Harlow v. Fitzgerald . There, the Court held that executive officers were not entitled to the same absolute immunity in a civil suit arising from official conduct as enjoyed by legislators, judges, prosecutors, and the President. As opposed to the relationship between congressional aides and Members of Congress, the President and his advisors were considered "analytically distinct." These advisors were, therefore, only entitled to qualified immunity in the performance of their official duties. In light of the Supreme Court's reasoning in Harlow that presidential advisors were not entitled to alter ego status for immunity purposes, the Miers court concluded that there was "nothing left to the Executive's primary argument …"

The district court continued, however, and noted that even if presidential advisors were entitled to the same immunity as the President, it was not clear that the President himself would enjoy absolute immunity from compelled congressional testimony. Although reaching no decision on whether Congress could subpoena a sitting President for testimony, the court noted that the Supreme Court's opinions in U.S. v. Nixon and Clinton v. Jones could be interpreted as recognizing that the President was not absolutely immune from compulsory process generally. In the Nixon case, President Nixon was only entitled to a presumptive privilege over the White House tapes in question—a privilege that could be overcome by a sufficient showing of need by the grand jury. Additionally, in the Clinton case, the Supreme Court held that President Clinton was not immune from a civil suit arising from unofficial conduct not occurring during his Presidency, and, therefore, could be required to comply with compulsory process in the suit. Like the judiciary's essential need for access to information in Nixon and Clinton , the district court reasoned that a congressional subpoena likewise involved "core functions of a co-equal branch of the federal government."

Although the district court opinion in Miers may be characterized as a vindication of congressional oversight prerogatives, or at least a limitation on the scope of executive privilege in the face of a congressional investigation, the opinion also made clear that Congress's authority to compel testimony from executive branch officials was not unlimited. Indeed, the court noted two important restrictions. First, the court specifically held that, although not enjoying absolute immunity from congressionally compelled testimony, Ms. Miers was still free to assert executive privilege "in response to any specific questions posed by the Committee." Thus, Ms. Miers could still assert the protections of executive privilege during her testimony depending on the substance of any individual question posed by a member of the committee. Second, the court suggested that Congress may lack authority to compel testimony where such testimony related to national security, foreign affairs, or another "particularly sensitive function" of the executive branch. Without further explanation, the district court repeatedly noted that absolute immunity may inhere to presidential advisors where "national security or foreign affairs form the basis for the Executive's assertion of privilege."

The Administration appealed the district court decision and asked the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to stay the district court order pending an expedited final decision by that court. On September 16, 2008, the D.C. Circuit granted the stay, but denied the Administration's request for an expedited schedule. The appeals court had concluded that "even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch … before the 110 th Congress ends on January 3, 2009. At that time, the 110 th House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will expire." As noted previously, the authority underlying a House subpoena or contempt citation has traditionally been considered to expire at the termination of the Congress in which it was authorized. Accordingly, because the committee's subpoenas were likely to expire before the dispute could be resolved, the court saw no reason to expedite the case.

On January 13, 2009—with the Miers case still on appeal before the D.C. Circuit, the 110 th Congress having reached its conclusion, and all presidential records set to transfer into the custody of the Archivist of the United States at the end of President Bush's second term on January 20 th —the district court issued a second order to preserve the availability of documents covered by the committee subpoenas. The order required the Administration to make copies of all materials responsive to the subpoenas for storage at the White House until the conclusion of the litigation.

In March of 2009, after the arrival of a newly elected Congress and presidential administration, the parties reached a settlement in which some, but not all, of the requested documents would be provided to the committee. In addition, Ms. Miers would be permitted to testify, under oath, in a closed, but transcribed hearing. Accordingly, the D.C. Circuit dismissed Miers on October 14, 2009, pursuant to a motion for voluntary dismissal. Thus the Miers litigation ended, more than a year and a half after the committee first filed its suit to enforce the subpoenas. Ultimately, however, the committee was able to gain access to much of the information it had been seeking.

The Holder Contempt

In the summer of 2012, the DOJ again refused to pursue a contempt prosecution against an executive branch official when the President had invoked executive privilege as the basis for non-compliance with a congressional subpoena. The dispute arose out of a subpoena issued by the House Oversight and Government Reform Committee seeking disclosure of internal DOJ documents detailing the department's response to the committee's investigation into Operation Fast and Furious.

In early 2011, the Committee on Oversight and Government Reform began investigating the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), a DOJ sub-agency, regarding Operation Fast and Furious—an ATF operation based in the Phoenix, Arizona field office. The investigations were principally triggered by ATF whistleblowers who had alleged that suspected straw purchasers were allowed to amass large quantities of firearms as part of long-term gun trafficking investigations. As a consequence, some of these firearms were allegedly "walked," or trafficked to gunrunners and other criminals in Mexico. In December 2010, two of these firearms were reportedly found at the scene of a shootout near the U.S.-Mexico border where U.S. Border Patrol Agent Brian Terry had been killed. Following public reports of the operation and Agent Terry's death, Attorney General Eric Holder instructed the DOJ Office of the Inspector General to review ATF's gun trafficking investigations.

On February 4, 2011, Assistant Attorney General for Legislative Affairs Ronald Weich sent a letter to Congress denying that ATF had either sanctioned or knew of the sale of weapons to straw purchasers who then transported the guns into Mexico. In March 2011, Representative Darrell Issa, chairman of the Oversight and Government Reform Committee, requested additional documents and information about the operation from then-Acting ATF Director Kenneth E. Melson. DOJ acknowledged the request but, according to the committee, "did not provide any documents or information to the Committee by the March 30, 2011 deadline." The following day, the committee subpoenaed the documents from both DOJ and ATF. Over the next year, the committee held several hearings regarding Operation Fast and Furious and also heard direct testimony from Attorney General Holder. On October 12, 2011, after DOJ informed the committee that it had produced all the documents it was willing to provide, the committee issued a second subpoena to the Attorney General requesting all departmental communications and documents "referring or related to Operation Fast and Furious."

Notably, at a November 8, 2011, Senate Judiciary Committee hearing, Attorney General Holder conceded that the February 4, 2011, letter—disclaiming ATF knowledge of "gun walking"—contained "inaccurate" information about the depth of knowledge DOJ officials had regarding ATF's "gun walking" methods. The next month, DOJ formally withdrew the February 4 letter and acknowledged that Operation Fast and Furious was "fundamentally flawed." The letter was accompanied by nearly 1,400 pages of pre-February 4 documents and communications that addressed how inaccurate information had been included in the February 4 letter.

This disclosure deviated from DOJ's general position that congressional requests "seeking information about the Executive Branch's deliberations ... implicate significant confidentiality interests grounded in the separation of powers under the U.S. Constitution." As such, DOJ maintained that it made "extraordinary accommodations" in responding to requests about the drafting of the February 4 letter. Furthermore, it stated:

The Department has substantially complied with the outstanding subpoenas. The documents responsive to the remaining subpoena items pertain to sensitive law enforcement activities, including ongoing criminal investigations and prosecutions, or were generated by Department officials in the course of responding to congressional investigations or media inquiries about this matter that are generally not appropriate for disclosure.

However, the committee maintained that despite its flexibility and being "unfailingly patient," the DOJ had "refused to produce certain documents" and had "fought this committee's investigation every step of the way." During a committee hearing, Chairman Issa remarked that the Attorney General had specifically "refused to cooperate, offering to provide subpoenaed documents only if the committee agrees in advance to close the investigation. No investigator would ever agree to that." As a result, Chairman Issa publicly threatened a contempt vote if the Attorney General's refusal to comply with the subpoena continued. As negotiations between the Attorney General and Chairman Issa continued, the chairman reportedly narrowed the scope of the documents that would need to be produced in order to avoid a contempt vote to only those documents created after February 4, 2011—the date in which DOJ provided Congress with admittedly inaccurate information about Operation Fast and Furious—and which related to the Department's response to various congressional inquiries. The Attorney General maintained that he could not provide the committee with the requested documents.

In light of the committee's continued dissatisfaction with DOJ's refusal to comply fully with the subpoenas, Chairman Issa scheduled a vote to hold Attorney General Holder in contempt of Congress. Although the Attorney General and Chairman Issa met the night before the scheduled vote, they were unable to reach an acceptable accommodation with regard to document disclosure. On the morning of the vote, President Obama formally invoked executive privilege "over the relevant post-February 4, 2011, documents." In defending this assertion, DOJ noted that:

the compelled production to Congress of these internal Executive Branch documents generated in the course of the deliberative process concerning the Department's response to congressional oversight and related media inquiries would have significant, damaging consequences ... it would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch's ability to respond independently and effectively to congressional oversight. Such compelled disclosure would be inconsistent with the separation of powers established in the Constitution and would potentially create an imbalance in the relationship between these co-equal branches of the Government.

In its contempt citation, the Oversight and Government Reform Committee rejected the President's assertion of executive privilege, calling it "transparently invalid" due to the timing and blanket application of the privilege to all withheld documents. The committee voted 23 to 17 to hold Attorney General Holder in contempt of Congress.

The contempt citation was reported to the full House, and on June 28, 2012, two important resolutions were passed. The first, H.Res. 711 , constituted the formal criminal contempt citation and was approved by a vote of 255-67. The resolution found the Attorney General in contempt of Congress for his failure to comply with a congressional subpoena and directed the Speaker, pursuant to 2 U.S.C. §194, to certify the contempt citation to the U.S. Attorney for the District of Columbia for prosecution. The second resolution, H.Res. 706 , authorized Chairman Issa to initiate a judicial proceeding on behalf of the committee "to seek declaratory judgments affirming the duty of Eric H. Holder Jr….to comply with any subpoena…issued to him by the Committee as part of its investigation into [Operation Fast and Furious]." H.Res. 706 was approved by a vote of 258-95. As in the Miers and Bolten contempt proceedings, the House voted to hold an executive branch official in criminal contempt of Congress, while preserving the option to seek enforcement of the committee subpoenas through a civil action in federal court.

Consistent with DOJ's legal position and the precedent set in the Burford, Miers, and Bolten contempt actions, Deputy Attorney General James Cole informed Speaker Boehner on the same day that the contempt was approved that "the [DOJ] has determined that the Attorney General's response to the subpoena issued by the Committee on Oversight and Government Reform does not constitute a crime, and therefore the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General."

Although the criminal prosecution of the Attorney General for contempt of Congress appears to be foreclosed for passage of time, H.Res. 706 permitted the committee to ask a federal district court to compel the Attorney General to comply with the committee subpoena. The committee filed this civil enforcement action in the U.S. District Court for the District of Columbia on August 13, 2012.

On September 30, 2013, the district court issued its first opinion in the case, rejecting the DOJ's motion to dismiss the civil enforcement suit on jurisdictional and justiciability grounds. The court's opinion echoed that of the District Court for the D.C. Circuit in Miers , and addressed arguments for dismissal based on separation-of-powers concerns, the court's jurisdiction to hear the case, and the plaintiff's standing to bring suit. The DOJ did not argue that the facts in this case were distinguishable from those in Miers ; it "simply urges the Court to come to a different conclusion."

First, the court considered the DOJ's argument that the "separation of powers enshrined in the Constitution [would be violated] if this Court were to undertake to resolve a dispute between the other two branches" and that resolution of such conflicts should be left to the political branches themselves. The court disagreed, strongly rejecting any notion that the judiciary did not have the authority to resolve the dispute or that by injecting itself into an interbranch conflict the court would in some way threaten the separation of powers. It noted that subpoenas are routinely enforced by the courts; federal courts have long-standing involvement in evaluating executive privilege claims; and the question presented was not a "political question" simply because the parties are the political branches of government. Indeed, the court found just the opposite, holding that to not hear the claim would "do more damage to the balance envisioned by the Framers than a judicial ruling on the narrow privilege question posed by the complaint."

Next, the court considered the DOJ's argument that the court lacked subject matter jurisdiction under 28 U.S.C. §1365. Section 1365 gives the U.S. District Court for the District of Columbia jurisdiction to enforce subpoenas issued by the Senate but is silent as to subpoenas issued by the House. The court rejected the DOJ's argument that the statute's silence on House subpoenas eliminated the court's jurisdiction, finding it improper to "draw inferences from the absence of a precisely drawn, detailed statute." The court agreed with the Miers opinion and held that subject matter jurisdiction is rooted in the federal question jurisdiction statute. Because the House's subpoena power derives from its Article I legislative powers, the case satisfies that statute's requirements as a "civil action[] arising under the Constitution." Therefore, the court had jurisdiction to hear the case despite the lack of an applicable, specific jurisdictional statute.

The court also rejected the DOJ's argument that the committee did not have standing to bring the suit to enforce their subpoena. The court ruled that the committee had standing, in part, because it has suffered a concrete and particular injury to its ability to gather information pursuant to its constitutional duties. The court pointed to applicable D.C. Circuit precedent stating that "[i]t is clear that the House as a whole has standing to assert its investigatory power ..." Furthermore, the court noted that "this case presents the sort of question[s]," including the applicability of privileges and subpoena enforcement, "that the courts are traditionally called upon to resolve."

Finally, the court briefly considered the DOJ's contention that the committee could not rely solely upon the Declaratory Judgment Act to provide a cause of action. The court concluded that since "the Constitution is the source of the right allegedly violated," the committee did not need to identify another source in order to seek declaratory relief—establishing "an actual, ripe controversy" that satisfies subject matter jurisdiction is sufficient. Finally, the court declined to dismiss the case on prudential grounds, communicating its skepticism that dismissing the case would facilitate a resolution and noting that continued court involvement did not prevent the parties from reaching an acceptable compromise on their own.

Following the court's decision, the committee filed a motion for summary judgment on the grounds that the DOJ could not invoke executive privilege in response to a congressional subpoena because the records requested did not involve actual communications with the President. Simultaneously, the DOJ moved for summary judgment on the basis that all the records requested were protected by the deliberative process element of executive privilege.

On August 20, 2014, following a hearing, the district court denied both motions. The court ruled that the DOJ, as an executive branch agency, could invoke the deliberative process privilege in response to a congressional subpoena. The court, however, rejected the DOJ's "blanket assertion of the privilege over all records generated after a particular date," without any showing that each of those records was subject to the privilege. The court thus directed the DOJ to provide a list of all the records that were being withheld on deliberative process privilege grounds.

The DOJ subsequently produced a list of materials being withheld, which consisted of internal DOJ communications about how to respond to media and congressional inquiries about Operation Fast and Furious. The DOJ's list also included other documents that it sought to withhold on separate grounds, such as law enforcement material, privacy information, and other sensitive material. The DOJ additionally listed several other documents for which it provided no reason for withholding from Congress. On January 16, 2015, after the DOJ had produced its list, the committee moved to compel the production of each record that was withheld.

On January 19, 2016, in a published decision, the district court granted, in part, and denied, in part, the committee's motion to compel the production of documents. The court rejected the committee's argument that the deliberative process privilege only covered documents that contained deliberations concerning the formulation of policy. Citing to prior precedent that applied the deliberative process privilege to discussions regarding operational matters and public relations efforts, the court determined that the privilege equally extended to internal deliberations about how to respond to press and congressional inquiries into Operation Fast and Furious.

The court observed, however, that the deliberative process privilege was a qualified privilege subject to being weighed against the public interest that would be served by the disclosure of the protected documents. The court determined that, because the substance of the DOJ's internal deliberations had already been publicly disclosed pursuant to an Inspector General investigation, any "incremental harm" that would be caused by providing these documents was outweighed by Congress's "unchallenged need for the material." The court thus held that the DOJ had to produce the documents otherwise subject to the deliberative process privilege.

Further, the court ruled that the agency was required to provide documents for which it had offered no justification for invoking a privilege. The court, however, declined to order the production of documents that were withheld for reasons other than deliberative process privilege, such as attorney work product, personal privacy information, and law enforcement sensitive material, because the legitimacy of those privileges was not an issue before the court, and the parties were better suited to resolve those questions through negotiations instead. Therefore, the court only ordered the DOJ to produce the "segregable portions" of these records.

On April 18, 2016, the committee appealed the district court's decision to the D.C. Circuit. On January 19, 2017, the appeals court granted the parties' request to hold the case in abeyance pending a potential settlement with the Trump Administration. Ultimately, should the court reach the merits of the case, its decision may further clarify the scope of Congress's subpoena power and the degree to which executive privilege may be invoked to shield a document from disclosure.

The Lerner Contempt

The most recent case where Congress attempted to enforce a subpoena against an executive branch official occurred in 2014. Previously, in 2012, the House Committee on Oversight and Government Reform (committee) had received reports that the Internal Revenue Service (IRS) improperly targeted conservative political groups applying for tax-exempt status by scrutinizing their applications for additional information, such as the identity of applicant donors, and delaying their applications. In 2013, Lois G. Lerner, who was serving as the IRS's Director of Exempt Organizations at the time, publicly acknowledged that the agency had inappropriately targeted conservative groups.

In response, the committee commenced an investigation of the IRS's targeting program, which included conducting interviews with IRS officials and obtaining testimony and documents related to the program. The committee, in particular, considered Ms. Lerner's testimony critical because, as the Director of the Exempt Organizations division, "[s]he was at the epicenter of the targeting program." The committee hoped that Ms. Lerner would answer "important outstanding questions" about why the IRS targeted conservative organizations.

On May 14, 2013, the committee sent a letter to Ms. Lerner asking her to testify at a May 22, 2013, hearing about the IRS's handling of applications for tax-exempt status. Ms. Lerner, through counsel, confirmed her attendance at the hearing, but indicated that she would invoke her Fifth Amendment privilege against self-incrimination instead of answering questions. Subsequently, on May 20, 2013, the committee issued a subpoena to compel Ms. Lerner's testimony. Ms. Lerner, through counsel, again invoked her Fifth Amendment right not to answer any questions. In response, committee Chairman Darrell Issa advised Ms. Lerner that the subpoena remained in effect, and that her attendance at the hearing was expected because she was "uniquely qualified" to testify about the IRS's actions.

On May 22, 2013, Ms. Lerner appeared before the committee. In an opening statement, she denied any wrongdoing or unlawful activity as the Director of Exempt Organizations at IRS, but maintained that she would assert her Fifth Amendment privilege not to testify or answer any questions relating to the committee's investigation. Following the hearing, on June 28, 2013, the committee, by a 22-17 vote, approved a resolution finding that Ms. Lerner had waived her Fifth Amendment privilege by making a voluntary opening statement and denying her involvement in unlawful activity. Thus, on February 25, 2014, Chairman Issa advised Ms. Lerner's counsel by letter that she was expected to comply with the subpoena and present testimony before the committee at a reconvened hearing on March 5, 2014.

Ms. Lerner appeared before the committee on March 5, 2014. At the beginning of the hearing, Chairman Issa advised Ms. Lerner that, because the committee had determined that she waived her Fifth Amendment privilege, it reserved the option of recommending a contempt resolution against her if she refused to answer any questions. Nevertheless, Ms. Lerner continued to invoke her Fifth Amendment privilege. Several weeks later, on April 10, 2014, the committee, by a 21-12 vote, approved a contempt resolution against Ms. Lerner for her refusal to comply with the subpoena.

On May 7, 2014, the House voted 231-187 to adopt the committee's resolution, and directed the Speaker, pursuant to 2 U.S.C. §§ 192 and 194, to certify the contempt citation to the U.S. Attorney for the District of Columbia for prosecution. Notably, the House did not pursue the option to enforce the committee's subpoena through civil action in federal court, as it had done in the Miers, Bolten, and Holder contempt proceedings. Therefore, unlike those cases, there is no court decision in the Lerner contempt case.

On March 31, 2015, the United States Attorney for the District of Columbia, Ronald C. Machen Jr., advised House Speaker John Boehner that he would not pursue criminal prosecution of Ms. Lerner based on the contempt resolution passed by the House. In his letter, Mr. Machen determined that, although Ms. Lerner had refused to answer questions from the committee despite being properly notified that her Fifth Amendment claim had been rejected, and being given a reasonable opportunity to respond to the committee's questions, her failure to provide testimony did not warrant a criminal contempt prosecution. Mr. Machen reasoned that Ms. Lerner did not waive her Fifth Amendment privilege by making an opening statement during the original May 22, 2013, hearing "because she made only general claims of innocence," and did not provide any substantive testimony. As a result, he concluded, "the Fifth Amendment to the Constitution would provide Ms. Lerner with an absolute defense should she be prosecuted under Section 192 for her refusal to testify."

The Lerner case marked yet another occasion where the DOJ declined to pursue prosecution based on a criminal contempt resolution passed by Congress. Although, in the Burford, Miers, Bolten, and Holder cases, the DOJ cited to executive privilege as a reason for not pursuing criminal contempt charges, the Lerner case stands as an example of the DOJ citing to the Fifth Amendment privilege as grounds for its decision. However, regardless of the basis for the DOJ's decision not to prosecute, the outcome of these cases underscores the challenge Congress may potentially face in successfully enforcing a criminal contempt resolution.

Practical Limitations of Congressional Reliance on Criminal Contempt or the Civil Enforcement of Subpoenas

The lessons to be gleaned from information access disputes between congressional committees and the executive branch, including the interbranch quarrels over documents and testimony relating to Operation Fast and Furious, the U.S. Attorney resignations, and the Superfund litigation, appear to be twofold. First, Congress faces a number of obstacles in any attempt to enforce a subpoena issued against an executive branch official through the criminal contempt statute. Although the courts have reaffirmed Congress's constitutional authority to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most circumstances. Where the President directs or endorses the non-compliance of the official, such as where the official refuses to disclose information pursuant to the President's decision that such information is protected under executive privilege, past practice suggests that the DOJ will not pursue a prosecution for criminal contempt. The U.S. Attorney would likely rely on prosecutorial discretion as grounds for not forwarding the contempt citation to the grand jury pursuant to 2 U.S.C. §194. In other scenarios, however, where the conduct of the executive branch official giving rise to the contempt citation was not endorsed by the President, for example where an official disregards a congressional subpoena to protect personal rather than institutional interests, the criminal contempt provision may remain an effective avenue for punishing executive officials. Even in these situations, however, the executive branch may choose not to prosecute the official so as to avoid establishing a precedent for Congress's authority to use the criminal contempt statute to punish an executive branch officer.

Second, although it appears that Congress may be able to enforce its own subpoenas through a declaratory civil action, relying on this mechanism to enforce a subpoena directed at an executive official may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final, enforceable ruling in the case. This shortcoming was apparent in the Miers case, where the committee received a favorable decision from the district court, but was unable to enforce that decision prior to the expiration of the 110 th Congress and the conclusion of the Bush Administration. Given the precedential importance of any civil action to enforce a congressional subpoena, the resulting litigation would likely include a protracted appeals process. The Miers litigation, which never reached a decision on the merits by the D.C. Circuit, was dismissed at the request of the parties after approximately 19 months. Although the committee gained access to much of the information the Bush Administration had refused to disclose, the change in administrations and the passage of time could be said to have diminished the committee's ability to utilize the provided information to engage in effective oversight. Whereas it may be possible for a federal district court to reach a decision on the Holder subpoena prior to the expiration of the 112 th Congress, it is highly unlikely that the expected appeals process will be completed by that point. Thus, a new authorization will likely be required for the committee to continue the litigation into the 113 th Congress.

In light of these practical realties, in many situations Congress likely will not be able to rely on the executive branch to effectively enforce subpoenas directed at executive branch officials, nor will reliance on the civil enforcement of subpoenas through the judicial branch always result in a prompt resolution of the dispute. Although subject to practical limitations, Congress retains the ability to exercise its own constitutionally based authority to enforce a subpoena through inherent contempt.

Non-Constitutional Limitations

Authorization and Jurisdiction

Although the courts have upheld the authority of Congress to investigate and to cite a witness for contempt, they have also established limits, rooted both in the language of the criminal contempt statute and in the Constitution, on the investigatory and contempt powers. Recognizing that 2 U.S.C. §192 is a criminal statute, the courts have accorded defendants the same safeguards as defendants in other criminal proceedings.

The criminal contempt statute is applicable to contempts committed by a person "summoned as a witness by the authority of either House of Congress ... ." The statute applies regardless of whether a subpoena has been issued by a committee or by the full House or Senate. Although the statute specifically makes the contempt sanction applicable to a witness who has been "summoned," the law applies whether the individual is subpoenaed or appears voluntarily and then refuses to testify.

A contempt conviction will not be upheld if the committee's investigation has not been clearly authorized by the full House or Senate. The investigation, and the questions posed, must be within the scope of the committee's jurisdiction. A committee cannot issue a subpoena for a subject outside the scope of its jurisdiction. Authorization from the parent body may take the form of a statute, a resolution, or a standing rule of the House or Senate. In the case of a subcommittee investigation, the subject matter must fall within the scope of authority granted to the subcommittee by the full committee. Investigations may be conducted, and subpoenas issued, pursuant to a committee's legislative or oversight jurisdiction.

In construing the scope of a committee's authorizing rule or resolution, the Supreme Court has adopted a mode of analysis not unlike that ordinarily followed in determining the meaning of a statute: it looks first to the words of the resolution itself, and then, if necessary, to the usual sources of legislative history, including floor statements, reports, and past committee practice. As explained by the Court in Barenblatt v. United States , "[j]ust as legislation is often given meaning by the gloss of legislative reports, administrative interpretation, and long usage, so the proper meaning of an authorization to a congressional committee is not to be derived alone from its abstract terms unrelated to the definite content furnished them by the course of congressional actions." It appears that the clear articulation of committee jurisdiction in both the House and Senate rules combined with the express authorization of special committees by resolution has effectively eliminated the use of jurisdiction as a defense to contempt proceedings.

Legislative Purpose

A committee's investigation must have a legislative purpose or be conducted pursuant to some other constitutional power of the Congress, such as the authority of each House to discipline its own Members, to judge the returns of their elections, and to conduct impeachment proceedings. Although the early case of Kilbourn v. Thompson held that the investigation in that case was an improper probe into the private affairs of individuals, the courts today generally will presume that there is a legislative purpose for an investigation, and the House or Senate rule or resolution authorizing the investigation does not have to specifically state the committee's legislative purpose. In In re Chapman , the Court upheld the validity of a resolution authorizing an inquiry into charges of corruption against certain Senators despite the fact that it was silent as to what might be done when the investigation was completed. The Court stated:

The questions were undoubtedly pertinent to the subject matter of the inquiry. The resolutions directed the committee to inquire "whether any Senator has been, or is, speculating in what are known as sugar stocks during the consideration of the tariff bill now before the Senate." What the Senate might or might not do upon the facts when ascertained, we cannot say nor are we called upon to inquire whether such ventures might be defensible, as contended in argument, but it is plain that negative answers would have cleared that body of what the Senate regarded as offensive imputations, while affirmative answers might have led to further action on the part of the Senate within its constitutional powers.

Nor will it do to hold that the Senate had no jurisdiction to pursue the particular inquiry because the preamble and resolutions did not specify that the proceedings were taken for the purpose of censure or expulsion, if certain facts were disclosed by the investigation. The matter was within the range of the constitutional powers of the Senate. The resolutions adequately indicated that the transactions referred to were deemed by the Senate reprehensible and deserving of condemnation and punishment. The right to expel extends to all cases where the offense is such as in the judgment of the Senate is inconsistent with the trust and duty of a member.

We cannot assume on this record that the action of the Senate was without a legitimate object, and so encroach upon the province of that body. Indeed, we think it affirmatively appears that the Senate was acting within its right, and it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was concluded.

In McGrain v. Daugherty , the original resolution that authorized the Senate investigation into the Teapot Dome Affair made no mention of a legislative purpose. A subsequent resolution for the attachment of a contumacious witness declared that his testimony was sought for the purpose of obtaining "information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper." The Court found that the investigation was ordered for a legitimate object. It wrote:

The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject matter was such that the presumption should be indulged that this was the real object. An express avowal of the object would have been better; but in view of the particular subject-matter was not indispensable. ***

The second resolution—the one directing the witness be attached—declares that this testimony is sought with the purpose of obtaining "information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper." This avowal of contemplated legislation is in accord with what we think is the right interpretation of the earlier resolution directing the investigation. The suggested possibility of "other action" if deemed "necessary or proper" is of course open to criticism in that there is no other action in the matter which would be within the power of the Senate. But we do not assent to the view that this indefinite and untenable suggestion invalidates the entire proceeding. The right view in our opinion is that it takes nothing from the lawful object avowed in the same resolution and is rightly inferable from the earlier one. It is not as if an inadmissible or unlawful object were affirmatively and definitely avowed.

Moreover, when the purpose asserted is supported by reference to specific problems which in the past have been, or in the future may be, the subject of appropriate legislation, it has been held that a court cannot say that a committee of the Congress exceeds its power when it seeks information in such areas. In the past, the types of legislative activity which have justified the exercise of the power to investigate have included the primary functions of legislating and appropriating; the function of deciding whether or not legislation is appropriate; oversight of the administration of the laws by the executive branch; and the essential congressional function of informing itself in matters of national concern. In addition, Congress's power to investigate such diverse matters as foreign and domestic subversive activities, labor union corruption, and organizations that violate the civil rights of others have all been upheld by the Supreme Court.

Despite the Court's broad interpretation of legislative purpose, Congress's authority is not unlimited. Courts have held that a committee lacks legislative purpose if it appears to be conducting a legislative trial rather than an investigation to assist in performing its legislative function. Furthermore, although "there is no congressional power to expose for the sake of exposure," "so long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power."

Pertinency

Two different issues of pertinency arise in regard to a contempt prosecution. First, a witness's refusal to answer questions or provide subpoenaed documents will be punished as a contempt only if the questions posed (or documents requested) by the committee are, in the language of the statute, "pertinent to the question under inquiry." In determining general questions of the pertinency of inquiries, the courts have required only that the specific inquiries be reasonably related to the subject matter under investigation. Given the breadth of congressional investigations, the courts have long recognized that pertinency in the legislative context is broader than in the judicial context, which relies primarily on the law of evidence's standard of relevance. For example, the D.C. Circuit has stated that

A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress. ... A judicial inquiry relates to a case , and the evidence to be admissible must be measured by the narrow limits of the pleadings. A legislative inquiry anticipates all possible cases which may arise thereunder and the evidence admissible must be responsive to the scope of the inquiry which generally is very broad.

The second pertinency issue concerns the Fifth Amendment's Due Process Clause. According to the Supreme Court in Deutch v. United States , the pertinency of a "committee's inquiry must be brought home to the witness at the time the questions are put to him." The Court in Watkins stated that

[u]nless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto. To be meaningful, the explanation must describe what the topic under inquiry is and the connective reasoning whereby the precise questions asked relate to it.

In addition, according to commentators, a witness is entitled "to understand the specific aspect of the committee's jurisdiction under its authorizing resolution [or House or Senate rule] to which the question relates." Finally, it appears that the committee must specifically rule on a pertinency objection and, if the objection is overruled, inform the witness of that fact before again directing him to answer the question.

The Court has also observed that a witness might resort to several sources in determining the subject matter of an investigation. These include, but are likely not limited to, (a) the House or Senate resolution authorizing the committee inquiry; (b) the committee's resolution authorizing the subcommittee investigation; (c) the introductory statement of the chairman or other committee members; (d) the nature of the proceedings; and (e) the chairman's response to a witness's objections on the grounds of lack of pertinency.

Willfulness

A conviction for statutory criminal contempt cannot be sustained unless the failure to appear before the committee, to produce documents, or to respond to questions is a willful, intentional act. However, an evil motive does not have to be established. Because of the willfulness requirement, and to satisfy constitutional due process standards, when a witness objects to a question or otherwise refuses to answer, the chairman or presiding member should rule on any objection and, if the objection is overruled, the witness should be clearly directed to answer. It has been observed that "there is no talismanic formula which [a] committee must use in directing [a] witness to answer," but he should be clearly informed "and not left to the risk of guessing upon pain of criminal penalties, whether the grounds for his objection to answering [are] accepted or rejected," and "if they are rejected, he should be given another chance to answer." The procedure to be followed in responding to a witness's objections to questions has been described as follows:

If a witness refuses to answer a question, the committee must ascertain the grounds relied upon by the witness. It must clearly rule on the witness's objection, and if it overrules the witness's objection and requires the witness to answer, it must instruct the witness that his continued refusal to answer will make him liable to prosecution for contempt of Congress. By failing adequately to apprise the witness that an answer is required notwithstanding his objection the element of deliberateness necessary for conviction for contempt under 2 U.S.C. §192 is lacking, and such a conviction cannot stand.

Other Procedural Requirements

A contempt conviction can be reversed on other non-constitutional grounds. The cases make clear that committees must closely follow their own rules and the rules of their parent body in authorizing subpoenas and conducting investigations and hearings. It appears that a witness can be convicted of criminal contempt, but not of perjury, where a quorum of the committee was not present.

Attorney-Client Privilege

In practice, the exercise of committee discretion whether to accept a claim of attorney-client privilege has turned on a "weighing [of] the legislative need for disclosure against any possible resulting injury." More particularly, the process of committee resolution of claims of attorney-client privilege has traditionally been informed by weighing considerations of legislative need, public policy, and the statutory duty of congressional committees to engage in continuous oversight of the application, administration, and execution of laws that fall within their jurisdiction, against any possible injury to the witness. In the particular circumstances of any situation, a committee may consider and evaluate the strength of a claimant's assertion in light of the pertinency of the documents or information sought to the subject of the investigation, the practical unavailability of the documents or information from any other source, the possible unavailability of the privilege to the claimant if it were to be raised in a judicial forum, and the committee's assessment of the cooperation of the witness in the matter, among other considerations. A valid claim of attorney-client privilege, free of any taint of waiver, exception, or other mitigating circumstance, would merit substantial weight. Any serious doubt, however, as to the validity of the asserted claim would diminish its compelling character. Moreover, the conclusion that recognition of non-constitutionally based privileges, such as attorney-client privilege, is a matter of congressional discretion is consistent with both traditional British parliamentary and the Congress's historical practice.

Although there is limited case law with respect to attorney-client privilege claims before congressional committees, appellate court rulings on the privilege in cases involving other investigative contexts (e.g., grand jury) have raised questions as to whether executive branch officials may claim attorney-client, work product, or deliberative process privileges in the face of investigative demands. These rulings may lead to additional arguments in support of the long-standing congressional practice.

The legal basis for Congress's practice in this area is based upon its inherent constitutional prerogative to investigate which has been long recognized by the Supreme Court as extremely broad and encompassing, and which is at its peak when the subject is fraud, abuse, or maladministration within a government department. The attorney-client privilege is, on the other hand, not a constitutionally based privilege, rather it is a judge-made exception to the normal principle of full disclosure in the adversary process which is to be narrowly construed and has been confined to the judicial forum.

While no court has recognized the inapplicability of the attorney-client privilege in congressional proceedings in a decision directly addressing the issue, an opinion issued by the Legal Ethics Committee of the District of Columbia Bar in February 1999, clearly acknowledges the long-standing congressional practice. The occasion for the ruling arose as a result of an investigation of a Subcommittee of the House Commerce Committee into the circumstances surrounding the planned relocation of the Federal Communications Commission to the Portals office complex. During the course of the inquiry, the subcommittee sought certain documents from the Portals developer, Mr. Franklin L. Haney. Mr. Haney's refusal to comply resulted in subpoenas for those documents to him and the law firm representing him during the relocation efforts. Both Mr. Haney and the law firm asserted attorney-client privilege in their continued refusal to comply. In addition, the law firm sought an opinion from the D.C. Bar's Ethics Committee as to its obligations in the face of the subpoena and a possible contempt citation. The Bar Committee notified the firm that the question was novel and that no advice could be given until the matter was considered in a plenary session of the committee. The firm continued its refusal to comply until the subcommittee cited it for contempt, at which time the firm proposed to turn over the documents if the contempt citation was withdrawn. The subcommittee agreed to the proposal.

Subsequently, on February 16, 1999, the D.C. Bar's Ethics Committee issued an opinion vindicating the action taken by the firm. The Ethics Committee, interpreting D.C. Bar Rule of Professional conduct 1.6(d)(2)(A), held that an attorney faced with a congressional subpoena that would reveal client confidences or secrets

has a professional responsibility to seek to quash or limit the subpoena on all available, legitimate grounds to protect confidential documents and client secrets. If, thereafter, the Congressional subcommittee overrules these objections, orders production of the documents and threatens to hold the lawyer in contempt absent compliance with the subpoena, then, in the absence of a judicial order forbidding the production, the lawyer is permitted, but not required, by the D.C. Rules of Professional Conduct to produce the subpoenaed documents. A directive of a Congressional subcommittee accompanied by a threat of fines and imprisonment pursuant to federal criminal law satisfies the standard of "required by law" as that phrase is used in D.C. Rule of Professional conduct 1.6(d)(2)(A).

The D.C. Bar opinion urges attorneys to press every appropriate objection to the subpoena until no further avenues of appeal are available, and even suggests that clients might be advised to retain other counsel to institute a third-party action to enjoin compliance, but allows the attorney to relent at the earliest point when he is put in legal jeopardy. The opinion represents the first, and thus far the only, bar in the nation to directly and definitively address the merits of the issue.

In the end, of course, it is the congressional committee alone that determines whether to accept a claim of attorney-client privilege.

Work Product Immunity and Other Common Law Testimonial Privileges

Common law rules of evidence as well as statutory enactments recognize a testimonial privilege for witnesses in a judicial proceeding so that they need not reveal confidential communications between doctor and patient, husband and wife, or clergyman and parishioner. Although there is no court case directly on point, it appears that, like the privilege between attorney and client, congressional committees are not legally required to allow a witness to decline to testify on the basis of other similar testimonial privileges. It should be noted, however, that the courts have denied claims by the White House Counsel's office of attorney work product immunity in the face of grand jury subpoenas that have been grounded on the assertion that the materials sought were prepared in anticipation of possible congressional hearings. In addition, court decisions indicate that various rules of procedure generally applicable to judicial proceedings, such as the right to cross-examine and call other witnesses, need not be accorded to a witness in a congressional hearing. The basis for these determinations is rooted in Congress's Article I Section 5 rulemaking powers, under which each House is the exclusive determiner of the rules of its own proceedings. This rulemaking authority, as well as general separation-of-powers considerations, suggests that Congress and its committees are not obliged to abide by rules established by the courts to govern their own proceedings.

Though congressional committees may not be legally obligated to recognize the privilege for confidential communications, they may do so at their discretion. Historical precedent suggests that committees often have recognized such privileges. The decision as to whether or not to allow such claims of privilege turns on a "weighing [of] the legislative need for disclosure against any possible resulting injury."

Constitutional Limitations

The Supreme Court has observed that "Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights." There are constitutional limits not only on Congress's legislative powers, but also on its investigative powers.

First Amendment

Although the First Amendment, by its terms, is expressly applicable only to legislation that abridges freedom of speech, press, or assembly, the Court has held that the amendment also restricts Congress in conducting investigations. In the leading case involving the application of First Amendment rights in a congressional investigation, Barenblatt v. United States , the Court held that "where First Amendment rights are asserted to bar government interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown." Thus, unlike the Fifth Amendment privilege against self-incrimination, the First Amendment does not give a witness an absolute right to refuse to respond to congressional demands for information.

The Court has held that in balancing the personal interest in privacy against the congressional need for information, "the critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosure from an unwilling witness." To protect the rights of witnesses, in cases involving the First Amendment, the courts have emphasized the requirements discussed above concerning authorization for the investigation, delegation of power to investigate to the committee involved, and the existence of a legislative purpose.

While the Court has recognized the application of the First Amendment to congressional investigations, and although the amendment has frequently been asserted by witnesses as grounds for not complying with congressional demands for information, the Court has never relied on the First Amendment as grounds for reversing a criminal contempt of Congress conviction. However, the Court has narrowly construed the scope of a committee's authority so as to avoid reaching a First Amendment issue. In addition, the Court has ruled in favor of a witness who invoked his First Amendment rights in response to questioning by a state legislative committee.

In a 1976 investigation of the unauthorized publication in the press of the report of the House Select Committee on Intelligence, the Committee on Standards of Official Conduct subpoenaed four news media representatives, including Daniel Schorr. The Standards of Official Conduct Committee concluded that Mr. Schorr had obtained a copy of the select committee's report and had made it available for publication. Although the ethics committee found that "Mr. Schorr's role in publishing the report was a defiant act in disregard of the expressed will of the House of Representatives to preclude publication of highly classified national security information," it declined to cite him for contempt for his refusal to disclose his source. The desire to avoid a clash over First Amendment rights apparently was a major factor in the committee's decision on the contempt matter.

In another First Amendment dispute, the Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce, in the course of its probe of allegations that deceptive editing practices were employed in the production of the television news documentary program The Selling of the Pentagon , subpoenaed Frank Stanton, the president of CBS, directing him to deliver to the subcommittee the "outtakes" relating to the program. When, on First Amendment grounds, Stanton declined to provide the subpoenaed materials, the subcommittee unanimously voted a contempt citation, and the full committee by a vote of 25-13 recommended to the House that Stanton be held in contempt. After extensive debate, the House failed to adopt the committee report, voting instead to recommit the matter to the committee. During the debate, several Members expressed concern that approval of the contempt citation would have a "chilling effect" on the press and would unconstitutionally involve the government in the regulation of the press.

In a more recent case, Carl Ferrer, the chief executive officer of Backpage.com, an online website for classified ads, refused on First Amendment grounds to comply with a subpoena issued by the Permanent Subcommittee on Investigations of the Senate Committee on Homeland Security and Governmental Affairs. The subcommittee had requested documents concerning Backpage.com's screening practices against Internet sex trafficking. Following Mr. Ferrer's refusal to provide the requested documents, the Senate sued to enforce the subpoena in the U.S. District Court for the District of Columbia. Before the court, Mr. Ferrer argued that the subpoena violated the First Amendment because it constituted an abuse of the investigative process; it was part of a "sustained, coordinated, and targeted campaign" to punish protected speech; and it was an "overly broad and unduly burdensome" measure that produced a chilling effect on speech.

The district court rejected Mr. Ferrer's arguments. The court determined that Mr. Ferrer "[did] not possess an absolute right to be free from government investigation when there are valid justifications for the inquiry," and that he failed to show, beyond conclusory allegations, that the subpoena intruded into his First Amendment rights. In this respect, the court concluded that enforcement of the subpoena did not directly regulate the content of any protected speech because it only requested information on Backpage.com's efforts to screen out sex trafficking from commercial advertisements on its website. Under these circumstances, the court explained, merely searching for the requested documents had no "impermissible chilling effect" on protected speech. The court noted, moreover, that "[u]nderstanding the magnitude of Internet sex trafficking and how to stop it substantially outweigh[ed] Mr. Ferrer's undefined interests." The court thus determined that the subpoena served a valid legislative purpose that did not simply seek to punish Backpage.com. Finally, the court stated that, while producing documents in response to the subpoena entailed some burden, "[t]here is nothing unusual, unreasonable, or overly broad about requiring a party to search for all responsive documents on a specific subject or topic," particularly where the requested information is relevant to a stated legislative purpose. Accordingly, the court granted the subcommittee's application to enforce the subpoena duces tecum .

Although the First Amendment may limit the manner in which Congress may exercise its investigatory authority, this limitation is not absolute. The courts will likely balance a person's right to protected speech against Congress's inherent constitutional authority to obtain information relevant to an investigation. And when Congress uses its investigatory function to advance a valid governmental interest, a person's private interests may be outweighed by the public interest in securing that information.

Fourth Amendment

Several opinions of the Supreme Court indicate that the Fourth Amendment's prohibition against unreasonable searches and seizures is applicable to congressional committees; however, there has not been an opinion directly addressing the issue. It appears that there must be a legitimate legislative or oversight-related basis for the issuance of a congressional subpoena. The Fourth Amendment protects a congressional witness against a subpoena which is unreasonably broad or burdensome. The Court has outlined the standard to be used in judging the reasonableness of a congressional subpoena:

Petitioner contends that the subpoena was so broad as to constitute an unreasonable search and seizure in violation of the Fourth Amendment.... 'Adequacy or excess in the breath of the subpoena are matters variable in relation to the nature, purposes, and scope of the inquiry'.... The subcommittee' s inquiry here was a relative1y broad one ... and the permissible scope of materials that could reasonably be sought was necessarily equally broad. It was not reasonable to suppose that the subcommittee knew precisely what books and records were kept by the Civil Rights Congress, and therefore the subpoena could only ' specify ... with reasonable particularity, the subjects to which the documents ... relate.... 'The call of the subpoena for 'all records, correspondence and memoranda' of the Civil Rights Congress relating to the specified subject describes them 'with all of the particularity the nature of the inquiry and the [subcommittee's] situation would permit.... 'The description contained in the subpoena was sufficient to enable [petitioner] to know what particular documents were required and to select them adequately.

If a witness has a legal objection to a subpoena duces tecum or is for some reason unable to comply with a demand for documents, he must give the grounds for his non-compliance upon the return of the subpoena. As the D.C. Circuit stated:

If [the witness] felt he could refuse compliance because he considered the subpoena so broad as to constitute an unreasonable search and seizure within the prohibition of the fourth amendment, then to avoid contempt for complete noncompliance he was under [an] obligation to inform the subcommittee of his position. The subcommittee would then have had the choice of adhering to the subpoena as formulated or of meeting the objection in light of any pertinent representations made by [the witness].

Similarly, if a subpoenaed party is in doubt as to what records are required by a subpoena or believes that it calls for documents not related to the investigation, he must inform the committee. Where a witness is unable to produce documents he will not be held in contempt "unless he is responsible for their unavailability ... or is impeding justice by not explaining what happened to them."

The application of the exclusionary rule to congressional committee investigation is in some doubt and appears to depend on the precise facts of the situation. It seems that documents which were unlawfully seized at the direction of a congressional investigating committee may not be admitted into evidence in a subsequent unrelated criminal prosecution because of the command of the exclusionary rule. In the absence of a Supreme Court ruling, it remains unclear whether the exclusionary rule bars the admission into evidence in a contempt prosecution of a congressional subpoena which was issued on the basis of documents obtained by the committee following their unlawful seizure by another investigating body (such as a state prosecutor).

Fifth Amendment Privilege Against Self-Incrimination

Despite the provision's express application to "criminal case[s]" the Supreme Court has indicated that the privilege against self-incrimination afforded by the Fifth Amendment to be available to a witness appearing before a congressional committee. The privilege is personal in nature, and may not be invoked on behalf of a corporation, small partnership, labor union, or other "artificial" organizations. The privilege protects a witness against being compelled to testify but generally not against a subpoena for existing documentary evidence. However, where compliance with a subpoena duces tecum would constitute implicit testimonial authentication of the documents produced, the privilege may apply.

There is no required verbal formula for invoking the privilege; nor does there appear to be necessary a warning by the committee. A committee should recognize any reasonable indication, such as "the fifth amendment," that the witness is asserting his privilege. Where a committee is uncertain whether the witness is in fact invoking the privilege against self-incrimination or is claiming some other basis for declining to answer, the committee should direct the witness to specify his privilege or objection.

The committee can review the assertion of the privilege by a witness to determine its validity, but the witness is not required to articulate the precise hazard that he fears. In regard to the assertion of the privilege in judicial proceedings, the Supreme Court has advised:

To sustain the privilege, it need only be evident, from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.... To reject a claim, it should be 'perfectly clear, from a careful consideration of all the circumstances of the case, that the witness is mistaken, and that the answers cannot possibly have a tendency' to incriminate.

The basis for asserting the privilege was elaborated upon in a lower court decision:

The privilege may only be asserted when there is reasonable apprehension on the part of the witness that his answer would furnish some evidence upon which he could be convicted of a criminal offense ... or which would reveal sources from which evidence could be obtained that would lead to such conviction or to prosecution therefore ... .Once it has become apparent that the answers to a question would expose a witness to the danger of conviction or prosecution, wider latitude is permitted the witness in refusing to answer other questions.

The privilege against self-incrimination may be waived by declining to assert it, specifically disclaiming it, or testifying on the same matters as to which the privilege is later asserted. However, because of the importance of the privilege, a court will not construe an ambiguous statement of a witness before a committee as a waiver.

Where a witness asserts the privilege, the full House or the committee conducting the investigation may seek a court order which (a) directs the witness to testify and (b) grants him immunity against the use of his testimony, or other evidence derived from his testimony, in a subsequent criminal prosecution. The immunity that is granted is "use" immunity, not "transactional" immunity. Neither the immunized testimony that the witness gives, nor evidence derived therefrom, may be used against him in a subsequent criminal prosecution, except one for perjury or contempt relating to his testimony. However, he may be convicted of the crime (the "transaction") on the basis of other evidence.

The application for the judicial immunity order must be approved by a majority of the House or Senate or by a two-thirds vote of the full committee seeking the order. The Attorney General must be notified at least ten days prior to the request for the order, and he can request a delay of twenty days in issuing the order. Although the order to testify may be issued before the witness's appearance, it does not become legally effective until the witness has been asked the question, invoked his privilege, and been presented with the court order. The role of the court in issuing the order has been held to be ministerial and, thus, if the procedural requirements under the immunity statute have been met, the court may not refuse to issue the order or impose conditions on the grant of immunity.

In practice, there have been two recent occasions that a person subject to a congressional subpoena invoked the Fifth Amendment privilege. As discussed in the preceding section regarding the enforcement of criminal contempt resolutions against executive branch officials, former IRS Director of Exempt Organizations Lois Lerner, in 2013, invoked her Fifth Amendment privilege in response to a subpoena requesting her testimony on the agency's policy of targeting conservative political groups. The House Committee on Oversight and Government Reform, which had issued the subpoena, determined that Ms. Lerner waived the privilege when she made an opening statement denying her involvement in any unlawful activity. Ultimately, after the House had voted to adopt the committee's contempt resolution, the DOJ declined to pursue a criminal contempt charge against Ms. Lerner because, in the agency's view, the Fifth Amendment would have foreclosed a successful prosecution against her.

Not long after the Lerner case, in 2015, the House Committee on Oversight and Government Reform investigated former Secretary of State Hillary Clinton's use of a private email server to conduct government business during her tenure at the State Department. The committee requested the testimony of Bryan Pagliano, a former senior advisor in the Bureau of Information Resource Management at the State Department, who helped set up and maintain Secretary Clinton's private server. After Mr. Pagliano, through counsel, invoked his Fifth Amendment privilege, committee Chairman Jason Chaffetz issued a subpoena compelling him to appear before the committee on September 13, 2016. Citing his Fifth Amendment privilege, Mr. Pagliano refused to testify before the committee and did not appear at the hearing. Chairman Chaffetz subsequently issued another subpoena compelling Mr. Pagliano's appearance on September 22, 2016. Mr. Pagliano again refused to appear at the hearing.

On September 27, 2016, after finding that Mr. Pagliano "willfully failed to comply with a duly issued subpoena," the committee voted 19-15 for a resolution recommending that the House find Mr. Pagliano in contempt of Congress. The members of the committee who opposed the resolution argued that "no legitimate legislative purpose" would be served by forcing Mr. Pagliano to appear before the committee and invoke his Fifth Amendment privilege, when he had previously asserted that right in separate investigations and there was no credible expectation that he would waive it before the committee or that the chairman would seek immunity for Mr. Pagliano. The House has not yet voted to adopt the resolution, but Chairman Chaffetz sent a letter to Attorney General Jeff Sessions on February 16, 2017, requesting the DOJ to "bring the matter before a grand jury for its action or file an information charging Pagliano with violating" the criminal contempt provision.

Finally, another recent case demonstrates how Congress's immunity power could be used to eliminate a Fifth Amendment privilege to refuse to comply with a subpoena. Following the 2016 presidential election, Congress began to investigate allegations that Russia influenced the outcome of the election. On February 13, 2017, Michael Flynn, who was serving as President Trump's national security advisor, resigned after revelations that he had failed to inform the Vice President and other White House officials that he had particular discussions with the Russian ambassador to the United States shortly after the election. In March 2017, Mr. Flynn reportedly offered to provide testimony to House and Senate investigators in exchange for immunity from prosecution. For the time being, Congress has not entered into an immunity deal with Mr. Flynn. However, on May 10, 2017, the Senate Select Committee on Intelligence issued a subpoena requesting that Mr. Flynn provide documents related to the panel's inquiry into alleged Russian meddling in the election. If Congress decides to seek immunity, Mr. Flynn may be compelled to produce those documents and any requested testimony, and Mr. Flynn would not be able to invoke his Fifth Amendment privilege.

Fifth Amendment Due Process Rights

The due process clause of the Fifth Amendment requires that "the pertinency of the interrogation to the topic under the ... committee's inquiry must be brought home to the witness at the time the questions are put to him." "Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto." Additionally, to satisfy both the requirement of due process as well as the statutory requirement that a refusal to answer be "willful," a witness should be informed of the committee's ruling on any objections he raises or privileges which he asserts.

Appendix. Congressional Contempt Resolutions, 1980-Present

The tables below contain information on contempt resolutions in the House and Senate and civil enforcement resolutions in the Senate since 1980. The tables include contextual information such as the individuals or organizations charged, the recommending committee, resolution number, and roll call votes related to various actions. Summarized descriptions of the allegations and committee actions are derived from the identified House or Senate Report. CRS has attempted to make the table as comprehensive as possible; however, some relevant citations may not have been identified by CRS's searches.