As Democrats take back the gavel in the House of Representatives, several incoming committee chairs have said they will use their leadership power to issue subpoenas. During the 115th Congress, Republican-led committees with oversight authority over Cabinet officials and departments issued very few subpoenas, despite Democratic requests. Democrats have indicated they will use their committee chairmanships to investigate various matters, such as President Trump’s tax returns, election security and hacking attempts, the Hurricane response in Puerto Rico, Homeland Security’s family separation policy, and White House security clearances. This Basic examines the scope of the House of Representatives’ subpoena power and authority.
What is a Congressional Subpoena?
Congressional subpoena power is defined as: “the authority granted to committees by the rules of their respective houses to issue legal orders requiring individuals to appear and testify, or to produce documents pertinent to the committee’s functions, or both.” Provided in clause 2(m)(1) and (3) of House Rule XI, House committees and subcommittees specifically have the authority to subpoena documents, information, and in-person sworn testimony at public and closed-door hearings; however, the conditions under which committees issue subpoenas can vary. For example, committee chairs often have to consult or notify the committee’s ranking minority members when issuing a subpoena. In some committees, the subpoena may be served by any person designated by the chair. Additionally, the subcommittees of the Appropriations, Armed Services, House Administration, and Transportation and Infrastructure committees are granted subpoena authority.
Failing to Comply with a Subpoena
If an individual fails to comply with a subpoena request, there are three formal remedies that can be taken. First, Congress has the ability to detain the individual subpoenaed until he or she complies with the subpoena request. Although this power is granted, it has not been used since 1935. Second, the request can be referred to the U.S. Attorney for the District of Columbia “to pursue criminal contempt proceedings.” Lastly, the House of Representatives can seek a civil enforcement judgement from a district court under the Ethics in Government Act of 1978. This option had been used the most frequently. If the court decides that the subpoena request is valid, it orders that the individual must comply.
In October 2017, the House of Representatives passed H.R. 4010, the Congressional Subpoena Compliance and Enforcement Act. This law would establish new rules if an individual fails to comply with a Congressional subpoena request. The sponsors of the bill will not be returning to Congress in the 116th Congress and it is expected that the bill not be reintroduced.
The Supreme Court Case of Wilkinson v. United States decided in 1961 that a congressional committee must meet three requirements for its subpoena to be considered legal. For example, the investigation must pursue “a valid legislative purpose” but does not need to involve legislation. The inquiry must be under the jurisdiction that has been authorized for investigation. Finally, the committee’s investigation must be under the subject area that the chamber covers.
Links to Other Resources
• Axios — Democratic Hit List: At Least 85 Trump Investigation Targets: https://www.axios.com/2018-midterm-elections-house-democrats-investigations-6bcfabb1-f1b2-49ce-8014-3e9b0c30db6c.html
• Bloomberg — Democrats Gain Subpoena Power They Can Use to Investigate Trump: https://www.bloomberg.com/news/articles/2018-11-07/democrats-biggest-gain-is-subpoena-power-to-quiz-trump-aides
• Congress.Gov — Congressional Subpoena Compliance and Enforcement Act of 2017: https://www.congress.gov/bill/115th-congress/house-bill/4010
• Congressional Research Service — A Survey of House and Senate Committee Rules on Subpoenas: https://www.everycrsreport.com/files/20180129_R44247_ffec8450a8d07460d77b4a1cb3d1a81f95008651.pdf
• Congressional Research Service — Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure: https://www.everycrsreport.com/reports/RL34097.html
• FTI Consulting — A Blue Wave Washes Over the House of Representatives: https://www.fticonsulting.com/insights/fti-journal/blue-wave-washes-over-house-representatives
• House Committee on Oversight and Government Reform Democrats — Oversight Republicans Block 11 More Subpoenas for a Total of 64 Motions Denied: https://democrats-oversight.house.gov/news/press-releases/oversight-republicans-block-11-more-subpoenas-for-a-total-of-64-motions-denied
• House Committee on Oversight and Government Reform Republicans — Committee Releases Report Detailing Patterns of Misconduct and Whistleblower Retaliation at TSA: https://oversight.house.gov/report/committee-releases-report-detailing-patterns-of-misconduct-and-whistleblower-retaliation-at-tsa-2/
• Mayer-Brown — Understanding Your Rights in Response to a Congressional Subpoena: https://www.mayerbrown.com/files/Publication/ec1203b2-a787-44ac-8344-5d5fab374ffa/Presentation/PublicationAttachment/11509b8b-df81-4db6-9e89-1d1b16c20856/White-Paper-Congressional-Subpoena.pdf
• The New York Times — Democrats, Eyeing a Majority, Prepare an Investigative Onslaught: https://www.nytimes.com/2018/09/03/us/politics/democrats-trump-impeachment.html?module=inline
• The New York Times — Congress Can Issue Subpoenas. Will They Matter?: https://www.nytimes.com/2018/11/08/opinion/congress-democrats-subpoenas-trump.html