[Editors’ note: At the one-year mark of the Biden administration, Just Security invited authors of the Good Governance Papers – originally published in October 2020 – to provide brief updates on their Papers, which explored actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For 2022, authors were invited to evaluate the Biden administration and/or Congress and, where applicable, to provide additional recommendations. For more information, please read the introductions to the original series and the update series.]
This article discusses issues and recommendations originally outlined in Good Governance Paper No. 2: The Congressional Subpoena Power.
In Good Governance Paper No. 2: The Congressional Subpoena Power, I urged Congress to undertake reforms that would strengthen its hand in enforcing subpoenas for documents and testimony from recalcitrant witnesses, especially those using broad claims of testimonial immunity or executive privilege to justify their noncompliance.
Specifically, I advocated paving the way to return to the historical norm of negotiation and mutual accommodation between Congress and the executive by legislatively removing the structural obstacles to enforcing congressional subpoenas through civil litigation. My argument was that the specter of a rapid judicial decision on the merits of an information dispute would spur both branches to revert to the tradition of inter-branch negotiations and accommodations, where each side has some control over the outcome, rather than facing an all-or-nothing resolution through litigation. To this end, I advocated legislation explicitly clarifying congressional committees’ standing to sue, establishing a cause of action for subpoena enforcement, and expediting the pace of litigation through both imposing deadlines and using a three-judge district court panel with appeal directly to the Supreme Court.
Since that writing, there have been three positive developments in this area, though none has fully resolved the problem. First, Congress has internalized the lesson that delay favors the executive branch and that the incentives of the current system encourage recalcitrant witnesses to raise as many hurdles to resolution as possible. The Select Committee to Investigate the January 6th Attack on the United States Capital, for example, has wasted little time in subpoenaing non-cooperative witnesses and then moving swiftly to hold in criminal contempt witnesses, such as former White House advisor, Steve Bannon, and President Trump’s former Chief of Staff, Mark Meadows, who refuse to comply with those subpoenas. Whether the Committee’s expeditious actions will bear fruit in the form of information remains to be seen.
The second, and related, development is that the Justice Department has shown some willingness enforce Congress’s subpoena power by initiating criminal contempt proceedings. As a result, Steve Bannon is (again) under indictment, this time for contempt of Congress. Whether DOJ will be similarly willing to indict former officials with more plausible claims of executive privilege — such as Meadows — is not yet clear.
Even if these positive developments ultimately prove effective, however, both share one fundamental shortcoming. They rely on having a majority in the relevant body of Congress, an attorney general willing to indict, and a judiciary that moves with alacrity. In practice, that means the party seeking to engage in oversight must control either the House or the Senate as well as the executive branch. And, even then, the legislators seeking information will be at the mercy of individual judges’ scheduling decisions. That is not a recipe for the necessary rebalancing of the power over information.
The third positive development is that the House of Representatives passed the Protecting Our Democracy Act, Title IV of which is devoted to implementing measures that will aid Congress in enforcing subpoenas. That legislation would create an explicit cause of action for a body, committee, or subcommittee of Congress to bring a civil action for subpoena enforcement; instruct the courts “to expedite to the greatest possible extent the disposition of any such action and appeal”; provide the plaintiff the option of requesting a three-judge district court with direct appeal to the Supreme Court; and empower courts to impose monetary penalties on non-compliant agencies unless the president provides a specific basis for noncompliance. This legislation would go a long way to reinvigorating Congress’s ability to compel testimony and document production.
Of course, a bill, even one that has passed the House, is very different from an enacted statute. And the Act currently enjoys very slim prospects of passing the Senate. But as the 2022 mid-terms — and the likely change of majorities in at least one House of Congress — approach, perhaps Republicans will begin to see authorities enhancing Congress’s powers of oversight in a different light.