Subpoenas:

The Supreme Court has described the congressional power of inquiry as “an essential and appropriate auxiliary to the legislative function.”The issuance of a subpoena pursuant to an authorized investigation is “an indispensable ingredient of lawmaking.”

What is of particular interest now is the prudence of relying on the courts to enforce Congressional subpoenas. The CRS report discusses the very interesting 1975 Ashland case, which involved the Federal Trade Commission's resistance to compliance with a Congressional subpoena:

A dispute between a House subcommittee and the Federal Trade Commission(FTC) began on April 16, 1975, when the commission issued an order requiring Ashland Oil, Inc. to submit information on Ashland’s estimates of natural gasreserves on various leases. Ashland submitted the information on August 27, stating that the information was confidential and of a proprietary nature, and that disclosure to competitors would cause injury to Ashland. On October 6, in his capacity as a Member of Congress, John Moss asked the commission to make available to him data gathered by the commission relating to energy development on federal lands. FTC denied the request . . . After the commission agreed to furnish Moss with the information, Ashland Oil went to court to enjoin the FTC from releasing the data. At that point the subcommittee issued a subpoena on December 2, ordering the FTC chairman to appear the following day with the requested documents. On the deadline day, the commission wrote to Moss, advising him that on November 24 a district judge had issued a temporary restraining order enjoining the commission “from disclosing the documents to any third party, including Congress . . . .” With the matter tied up in court, the House Committee on House Administration reported a resolution on December 17, providing for the appointment of a special counsel to represent the House and the Committee on Interstate and Foreign Commerce in judicial proceedings related to the subpoena.

I want to take a moment and highlight the fact that the House can always retain counsel to act on its behalf to enforce subpoenas. There have been some folks who believe that the Congress is helpless because it depends upon the US Attorney for the District of Columbia in this regard. It seems obvious that this is not a legitimate concern given the House's power to appoint its own counsel in such matters. Now back to Ashland:

A federal district court agreed that the information sought in the subpoena was properly within the subcommittee’s jurisdiction. . . . The court rejected the argument that the transfer of the data from the FTCto the subcommittee would lead “inexorably to either public dissemination or disclosure to Ashland’s competitors.” Courts must assume that congressional committees “will exercise their powers responsibly and with due regard for the rights of affected parties.” That decision was affirmed by the D.C. Circuit.

Another dispute which is discussed in the CRS opinion seems especially interesting and relevant to some of the current Congressonal investigations, specifically the investigation of the firings of US Attorneys. In 1991, the Congress investigated claims that the FBI was arresting suspects in foreign lands without the requisite authorization from these foreign countries. During the Congressional investigation, it arose that William Barr, a Justice Department official, had written an opinion reversing a public Office of Legal Counsel opinion on the matter. The Justice Department refused to turn over Barr's memorandum:

Initially, the Administration decided to withhold the document. Attorney General Dick Thornburgh wrote to the subcommittee on November 28, 1989,explaining why it could not have the 1989 opinion: “Apart from classified information, there is no category of documents in the Department’s possession that I consider more confidential than legal opinions to me from the Office of Legal Counsel.” Subcommittee chair Don Edwards replied that OLC opinions had been made available to Congress in previous years. In a letter on January 24, 1990, Edwards provided Thornburgh with other examples of OLC opinions being released to Congress. On January 31, 1990, the chairman of the House Judiciary Committee, Jack Brooks, wrote to Thornburgh about a number of difficulties that Congress had experienced in receiving executive branch documents. . . . The two sides, however, were unable to reach an acceptable accommodation, resulting in the issuance of a subcommittee subpoena on July 25, 1991. The subcommittee argued that it needed the 1989 memo to determine whether it was necessary for Congress to legislate in this area. Unless Thornburgh turned over the document by 9 a.m. on July 31, the committee would vote to hold him in contempt. The Administration decided not to comply with the subpoena, preferring instead to assert executive privilege. . . Brooks denied this line of reasoning: “This committee’s request will in no way expose sensitive information to the public nor will it in any way deter or slow criminal prosecutions in these matters.” As the interbranch collision neared, the two sides were able to find some common ground. The President decided not to invoke executive privilege, and the Justice Department agreed to allow one or more committee members to review the legal memo if the subcommittee would suspend the subpoena and remove the threat of a contempt vote.

The Executive Branch capitulated. But there were other disputes:

During the same time period as the confrontation over the kidnapping memo, the House and the Justice Department engaged in another showdown. On December 5, 1990, Chairman Brooks convened a hearing of the Judiciary Committee to review the refusal of Attorney General Thornburgh to provide the committee with access to all documents regarding a civil dispute brought by Inslaw, Inc., a computer company. Inslaw charged that high-level officials in the Justice Department conspired to force Inslaw into bankruptcy . . . Federal Bankruptcy Judge George Bason had already ruled thatthe Justice Department “took, converted, and stole” Inslaw’s proprietary software, using “trickery, fraud, and deceit.” The Justice Department denied these charges, claiming that what was at stake was a contract dispute. Brooks said that the controversy reached the highest levels of the department, including at least two Assistant Attorneys General, a Deputy Attorney General, and Attorney General Edwin Meese. Because House and Senate investigating committees had been denied access to documents needed to establish the department’s guilt or innocence, Brooks concluded that he was “even more convinced that the allegations concerning INSLAW must be fully and independently investigated by the committee.” . . . [T]he committee would consider contempt of Congress proceedings against the department. At that point several hundred documents were delivered to the committee, which later released a formal investigative report on the Inslaw affair.

Yet again, the Executive capitulated in the face of a resolute Congress. The CRS report reminds us when a Republican Congress was intent on investigating the Executive, the Executive being Bill Clinton:

On December 8, 1995, the Special Senate Committee to Investigate Whitewater Development Corporation and Related Matters (the Senate Whitewater Committee) issued a subpoena for certain documents. The White House announced that it would withhold material concerning a November 5, 1993, meeting at the law offices of Williams & Connolly, which had been retained by President Clinton and First Lady Hillary Clinton to provide personal counsel for Whitewater-related matters. . . . Within a few days, the White House offered to turn over the . . . notes if the committee agreed that the meeting was privileged. The committee refused because it learned of other meetings attended by White House officials and private attorneys. . . . Unable to reach an acceptable compromise, the committee voted to send the issue to the Senate floor and from there to federal district court. Clinton objected that he should not be “the first president in history” to give up his right to attorney-client confidentiality. By December 15, the White House had indicated its willingness to drop most of the conditions it had established for turning over the Kennedy notes to the committee. The change occurred hours after the committee voted to ask the full Senate to go to court to enforce the subpoena.

Yet another Executive Branch capitulation. It seems les surprising now that there has been such little litigation in this area. It seems that the Executive Branch has well understood the weakness of its claims.

The CRS report then discusses the other power Congress can invoke, the contempt power:

The Contempt Power

When the executive branch refuses to release information or allow officials to testify, Congress may decide to invoke its contempt power. Although the legislative power of contempt is not expressly provided for in the Constitution and exists as an implied power, as early as 1821 the Supreme Court recognized [it.] . . If either Housevotes for a contempt citation, the President of the Senate or the Speaker of the House shall certify the facts to the appropriate U.S. Attorney, “whose duty it shall be to bring the matter before the grand jury for its action.” Individuals who refuse to testify or produce papers are subject to criminal contempt, leading to fines and imprisonment.

. . . This section begins by covering contempt actions, from 1975 to 1981, against six Cabinet officers who refused to surrender documents to Congress: Secretary of Commerce Rogers C. B.Morton, Health, Education, and Welfare Secretary F. David Mathews, Secretary of State Henry Kissinger, HEW Secretary Joseph A. Califano, Jr., Secretary of Energy Charles W. Duncan, Jr., and Secretary of Energy James B. Edwards. With contemptcitations looming,the two branches reached a compromise settlement that gave Congress access to the documents.

In the "old days," the Executive conceded. But what of the Republican Presidents once Reagan came into office? What of the famous Gorsuch matter? Here is what the CRS report says:

The contempt action against Gorsuch revealed a weakness in the procedures that Congress relies on for contempt, especially when the Justice Department has already taken a position on legal and constitutional issues. Citing an executive official for contempt requires the executive branch––through a U.S. Attorney––to bring the action. In the Gorsuch case, which show cased executive privilege doctrines advanced by the Justice Department, that action was slow in coming and required a federal judge to nudge it along to encourage an accommodation between the two branches.

The Gorsuch case is especially interesting because the current White House counsel Fred Fielding, was the White House counsel during the Gorsuch matter. The CRS report discusses it as follows:

EPA Administrator Anne Gorsuch, acting under instructions from President Reagan(meaning the Justice Department), refused to turn over “sensitive documents found in open law enforcement files.” Reagan’s memorandum to her, dated November 30, 1982, claimed that those documents represented “internal deliberative materials containing enforcement strategy and statements of the government’s positions on various legal issues which may be raised in enforcement actions relative to the various hazardous waste sites” by the EPA or the Department of Justice. On December 2, the Administration withheld 64 documents from the subcommittee. . . . By a vote of 9 to 2, a subcommittee of the House Public Works Committeedecided to cite Gorsuch for contempt. The full committee did likewise, after it rejected a Justice Department proposal to give briefings on the contents of the documents. The House of Representatives voted 259 to 105 to support the contempt citation. . . Pursuant to the statutory procedures for contempt citations, the Speaker certified the facts and referred them to the U.S. Attorney for presentation to a grand jury. The Justice Department, anticipating the House vote, moved quickly: “Immediately after the House vote and prior to the delivery of the contempt citation,” the department chose not to prosecute the case. Instead, it asked a district court to declare the House action an unconstitutional intrusion into the President’s authority to withhold information from Congress.

This is now cited as the example of why the contempt procedure will not work. Personally, it seems to me the better method was always hiring special counsel to seek enforcement of a subpoena in court. The contempt citation procedure seems rife with potential conflict. But even given this problem, the action filed by the Justice Department could still be the vehicle to decide the issue. Consider the CRS description of what happened:

Stanley S. Harris, responsible for bringing the case to a grand jury, listed his name on the Justice Department complaint and advised Congress that “it would not be appropriate for me to consider bringing this matter before a grand jury until the civil action has been resolved.” The Justice Department occupied an unusual ethical position. First it had advised Gorsuch to withhold the documents, and now it decided not to prosecute her for adhering to the department’s legal analysis. In court, the department argued that the contempt action marked an “unwarranted burden on executive privilege” and an“interference with the executive’s ability to carry out the laws.”

Clearly the Justice Department was in a conflict situation and in an untenable position. The House Counsel, Stan Brand, took, to me, a very curious course. The CRS report describes:

Counsel for the House of Representatives urged the court not to intervene, requesting it to dismiss the case. The court dismissed the government’s suit on the ground that judicial intervention in executive-legislative disputes “should be delayed until all possibilities for settlement have been exhausted.” The court urged both parties to devote their energies to compromise and cooperation, not confrontation. After the court’s decision, which the Justice Department chose not to appeal, the Administration agreed to release “enforcement sensitive” documents to the House Public Works Committees, beginning with briefings and redacted copies and eventually ending with the unredacted documents.

Yet again, despite this legal mismanagement by the House counsel (imo of course), the House prevailed over the Executive.

I wanted to provide this background here as a setup for my post to follow on what this all means for oversight, separation of powers, the need for impeachment and other related matters. There is a lot of disinformation that has been bandied about on this point and it is important to start with the facts.

Part 2 to come shortly.