Rule of Law

After Long Legal Battles, Congress Debates How to Fix ‘Broken Down’ Process for Subpoenas

After a nearly two-year legal battle to get congressional testimony from a former White House counsel, lawmakers are now wrestling with how to better enforce their subpoenas.

That issue was the topic of a hearing Tuesday before a House Judiciary subcommittee on the courts, as members peppered lawyers—including a former House general counsel—with questions about how to improve the process, and what legislation they might consider in the future. Rep. Hank Johnson, the chairman of the subcommittee, and Rep. Darrell Issa, the panel’s top Republican, both indicated an interest in pursuing legislation addressing the topic.

It’s an issue that’s afflicted members of both parties: While the litigation over former White House counsel Don McGahn’s testimony—which the Jones Day partner delivered behind closed doors last week as part of a settlement—is the most recent instance, House Republicans raised their issues over a years-long fight with the Obama Justice Department over information on the “Fast and Furious” scandal under then-Attorney General Eric Holder. That case, which began in 2012 after a subpoena was issued in 2011, wasn’t fully settled until 2019. And litigation over former White House counsel Harriet Miers over the firing of U.S. attorneys under President George W. Bush also took years to resolve.

Elise Bean, a former congressional investigator and the director of the Washington office of the Levin Center at Wayne Law, and former House general counsel Thomas Hungar—now a partner with Gibson, Dunn & Crutcher—both pointed to a shift in recent years of the executive branch being less compliant with congressional subpoenas. That’s led to more suits winding up federal courts as lawmakers seek to enforce the subpoenas.

“I would say that one of the things that’s most dispiriting is the fact that the accommodations process, which has formed the backbone of the vast majority of congressional oversight requests being fulfilled, has actually sort of been a process that’s been mired in the possibility of an administration running the clock, either on a presidency or any given House of Representatives,” said Praveen Fernandes, the vice president of the Constitutional Accountability Center. “And as the possibility for the slow adjudication in the courts making the running out of a clock possible, the accommodations process is broken down.”

A number of potential solutions were raised at the hearing, including a requirement that subpoena cases be heard before a special three-judge court—which are only convened for certain disputes, like those over campaign finance law or apportionment—which could get cases before the U.S. Supreme Court faster. Other proposals included a law explicitly allowing Congress to impose fines for those who fail to comply with subpoenas and legislation blocking certain legal arguments used by DOJ in the fights with lawmakers, like “absolute immunity” for high-ranking executive branch officials.

Todd Garvey, a legislative attorney with the Congressional Research Service, said in response to questioning by House Judiciary Committee Chairman Jerry Nadler that courts have recognized Congress’ inherent contempt power, which would mean lawmakers would not need to rely on courts or prosecutors to implement penalties against those who fail to comply with subpoenas.

“At the same time if the fines were imposed and not paid the question becomes, how do you enforce that fine and is it through the courts?” Garvey said. “Because that’s the concern, right, is that we don’t want to make changes to the subpoena enforcement framework so as to avoid the courts that ultimately end up back in the courts.”

At one point, GOP Rep. Thomas Massie referenced a breakfast several Republicans had with the late Justice Antonin Scalia, during which Scalia said lawmakers have the ability to use their appropriations power to comply with subpoenas. But Johnson said he found it “deeply disturbing” that Scalia privately met with members who could have business before the court, even though the justice apparently refused to weigh in on the “Fast and Furious” lawsuit.

Democratic Rep. Ted Lieu said, regardless of which political party is in control, it’s “wrong” when an administration ignores a congressional subpoena. And he said that DOJ, now under Attorney General Merrick Garland, “has taken the exact same view of maximizing presidential power to a point of absurdity.” He pointed to the department’s recent pushback against a court order on the disclosure of a legal memo on the Mueller report and the Justice Department continuing to defend former President Donald Trump in a defamation suit as examples of that overreach.

“This is the same exact Department of Justice that has been maximizing presidential power to the great harm to our separation of powers, that is shredding the way the Framers set up our Constitution. And we as a Congress need to rein in the executive branch. If we don’t pass any reforms to try and rein in the executive branch, then shame on us,” Lieu said.