Congressional Inherent Contempt Resolution of 2023

IV 118TH CONGRESS 1ST SESSION H. RES. 136 Amending the Rules of the House of Representatives with respect to the enforcement of committee subpoenas to executive branch officials, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 17, 2023 Mr. LIEU (for himself and Ms. DEAN of Pennsylvania) submitted the following resolution; which was referred to the Committee on Rules RESOLUTION Amending the Rules of the House of Representatives with respect to the enforcement of committee subpoenas to executive branch officials, and for other purposes. Resolved, 1 SECTION 1. SHORT TITLE. 2 This resolution may be cited as the ‘‘Congressional 3 Inherent Contempt Resolution of 2023’’. 4 SEC. 2. ADDITIONAL SUBPOENA ENFORCEMENT POWER. 5 Rule XI of the Rules of the House of Representatives 6 is amended by adding at the end the following new clauses: 7 VerDate Sep 11 2014 00:09 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\HR136.IH HR136 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HRES 136 IH ‘‘Additional Subpoena Enforcement Power 1 ‘‘7.(a) Whenever any committee or subcommittee 2 makes a written request to any department or agency of 3 the Government for the attendance of named witnesses or 4 the production of such books, records, correspondence, 5 memorandum, papers, documents, and electronic or digital 6 files, data or information, in any form, including any elec- 7 tronic or digital files, data or information in any search- 8 able formats in which they are available to or can be pro- 9 duced by the agency, as the committee or subcommittee 10 considers necessary, a senior responsible official shall ei- 11 ther comply with that request or file written objections 12 within the time frame for response set forth in the request. 13 ‘‘(b) If the senior responsible official files written ob- 14 jections within the timeframe for response, the committee 15 or subcommittee shall seek to resolve these objections 16 through negotiation and accommodation. If a resolution 17 cannot be reached, staff shall so certify to the chair of 18 the committee. 19 ‘‘(c) If the senior responsible official fails to file ob- 20 jections or make available the designated witnesses or full 21 production of responsive records and information within 22 the timeframe for response, the chair of the committee 23 may issue a subpoena to the senior responsible official for 24 any unproduced records or information as to which no ob- 25 VerDate Sep 11 2014 00:09 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\HR136.IH HR136 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HRES 136 IH jection was filed, and to any designated witness to which 1 no objection was filed. 2 ‘‘(d) With respect to any portion of the written re- 3 quest for documents and witnesses to which timely objec- 4 tion was made, a subpoena to the senior responsible offi- 5 cial and to designated witnesses, may be issued, following 6 conclusion of the negotiations referred to in paragraph (b), 7 by— 8 ‘‘(1) the chair, upon 48 hours notice to the 9 ranking member, unless the ranking member objects 10 during that period; or 11 ‘‘(2) a vote of the committee. 12 ‘‘(e) The senior responsible official and other wit- 13 nesses to whom a subpoena is issued have the right to 14 be accompanied only by non-government private counsel 15 during all proceedings conducted pursuant to this clause 16 (even if the witness is a government official or employee). 17 The committee in taking testimony will follow the proce- 18 dures for taking depositions and resolving disputes over 19 objections to questions that are prescribed by the Com- 20 mittee on Rules for such testimonial proceedings (see 165 21 Cong. Rec. H1216–17 (Jan. 25, 2019)). 22 ‘‘(f) If the senior responsible official files written ob- 23 jections to a subpoena issued under paragraph (c) or (d) 24 within the timeframe for response, or the President per- 25 VerDate Sep 11 2014 00:09 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\HR136.IH HR136 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HRES 136 IH sonally and in writing asserts a claim of executive privilege 1 with respect to the records, information, and witnesses at 2 issue, the committee may hold a hearing to consider these 3 objections. The senior responsible official shall personally 4 attend this hearing but may not assert executive privilege 5 on behalf of the President, and the committee chair may 6 grant an exception for good cause shown. 7 ‘‘(g) If the committee overrules some or all of the ob- 8 jections asserted, it may issue an order of compliance 9 which states the grounds for rejection of the objections, 10 the date for compliance, and an advisement of the legal 11 consequences of a failure to comply. The senior responsible 12 official and subpoenaed witnesses shall comply with such 13 order within the timeframe for response. If prior to such 14 time, the President asserts a claim of executive privilege, 15 it shall be made personally and in writing, and will be con- 16 sidered by the committee with all other timely objections. 17 Witnesses may not assert a claim of executive privilege 18 in the absence of such an assertion by the President. 19 ‘‘(h) On the failure of the senior responsible official 20 or subpoenaed witnesses to comply with the order, the 21 committee shall meet to assess whether the noncompliance 22 rises to the level of a breach of the constitutional privilege 23 and duty of the House to be fully informed in order to 24 properly perform its legislative responsibilities without 25 VerDate Sep 11 2014 00:09 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\HR136.IH HR136 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HRES 136 IH undue obstruction and thereby warrants condemnation 1 and punishment. If so, the committee shall report a privi- 2 leged resolution of contempt. The accompanying report 3 shall include a detailed history and nature of the con- 4 troversy and attempts at accommodation; the legal issues 5 raised; the legislative need for the information sought; the 6 legal and practical reasons for the determination that the 7 objections were rejected; and the recommended penalty 8 under paragraph (j). 9 ‘‘(i) If the committee reports a resolution of con- 10 tempt, it shall be treated as a rule IX question of privilege 11 of the House requiring precedence over all other questions 12 until resolved and promptly scheduled for floor consider- 13 ation. The chair of the committee shall present the case 14 for passage of the resolution. At the conclusion of the al- 15 lotted period for presentations, questions and debate, a 16 vote on passage of the resolution will be taken. If the vote 17 is for passage, a second vote will be taken on the commit- 18 tee’s recommended penalty. A proffer of an amendment 19 to alter the recommended penalty is in order. 20 ‘‘(j)(1) The penalty for contempt recommended by a 21 committee under paragraph (h) and approved or amended 22 by the House under paragraph (i) may, as provided for 23 in paragraphs (2) and (3), be either in the form of a mone- 24 tary penalty, detention, or both. 25 VerDate Sep 11 2014 00:09 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\HR136.IH HR136 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HRES 136 IH ‘‘(2)(A) If the recommended penalty as approved by 1 the House is a monetary penalty, the contemnor may be 2 assessed by the House an initial penalty of not more than 3 $25,000 and total penalties of not more than $100,000. 4 The amount of the ultimate penalty depends on the timeli- 5 ness of the contemnor’s compliance in providing informa- 6 tion withheld. The initial penalty of not more than 7 $25,000 may be increased by the chair of the committee 8 involved by increments of not more than $25,000 after a 9 one-time waiting period of 10 calendar days from the ini- 10 tial penalty until the $100,000 maximum is reached. The 11 10-day waiting period shall only be observed after the first 12 penalty. Upon expiration of the 10-day waiting period, if 13 the chair deems the measure of compliance by the 14 contemnor to be insufficient to satisfy the legislative needs 15 of the committee, the chair may, over a period of not more 16 than fifteen days, at his or her discretion, increase the 17 penalty by increments of not more than $25,000 until the 18 maximum is reached. Upon expiration of the 10-day wait- 19 ing period, the General Counsel is authorized to recover 20 any accrued penalties, but only if the contemnor has failed 21 to comply with the subpoena before the end of such 10- 22 day period. 23 ‘‘(B) Nothing in this subparagraph shall be in- 24 terpreted to limit the ability of the House to impose 25 VerDate Sep 11 2014 00:09 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\HR136.IH HR136 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HRES 136 IH additional legislative punishments on the contemnor 1 for noncompliance. 2 ‘‘(C) No appropriated funds, funds provided 3 from any accounts in the Treasury, funds derived 4 from collection of fees, or other Government funds 5 shall be used to pay a monetary penalty imposed by 6 the House under this subparagraph. 7 ‘‘(D) No person, group, entity, organization, or 8 corporation may make payments to, reimburse or 9 offer remuneration of any kind to compensate a 10 contemnor for, or assist a contemnor in paying, any 11 portion of a monetary penalty imposed by the 12 House. Nor shall any person, group, entity, organi- 13 zation, or corporation be permitted to pay any mone- 14 tary penalties directly on behalf of a contemnor. The 15 House may regard such actions to compensate, reim- 16 burse or provide remunerations or payments to a 17 contemnor as an obstruction of its investigative and 18 information gathering prerogatives and responsibil- 19 ities and a contempt of the House. 20 ‘‘(3)(A) If the recommended penalty as passed by the 21 House is detention, the contemnor may be detained until 22 the chair of the committee involved gives notice that the 23 subpoena has been complied with or the sine die adjourn- 24 ment of the current Congress, whichever occurs first. 25 VerDate Sep 11 2014 00:09 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\HR136.IH HR136 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HRES 136 IH ‘‘(B) The detention of the contemnor under this 1 subparagraph shall be carried out in accordance with 2 regulations issued by the Committee on Rules and 3 printed in the Congressional Record, including regu- 4 lations to provide the contemnor with adequate due 5 process. 6 ‘‘(k) Nothing in this clause shall be interpreted to di- 7 minish the inherent institutional self-protective authori- 8 ties, methods and practices of the House for enforcing 9 committee subpoenas, nor shall anything in this clause be 10 interpreted to diminish the discretionary power of any 11 committee to determine the acceptability of any constitu- 12 tional or common law-based privilege asserted to justify 13 noncompliance with a congressional subpoena. 14 ‘‘(l) As used in this clause: 15 ‘‘(1) The term ‘senior responsible official’ refers 16 to an executive branch official with control or cus- 17 tody over the records or information or the subordi- 18 nate officials or employees that are sought and who 19 is a civil officer subject to removal from the office 20 under article II, section 4, of the Constitution, un- 21 less no such civil officer has control or custody over 22 the records or information sought. 23 ‘‘(2) The term ‘objections’ includes an appro- 24 priate privilege log, which shall describe with par- 25 VerDate Sep 11 2014 00:09 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\HR136.IH HR136 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HRES 136 IH ticularity the records or information withheld and 1 the basis for withholding. The log shall be in such 2 form as instructed by the committee or, in the ab- 3 sence of such instruction, shall be in the form that 4 would be required by the rules and practice of the 5 United States District for the District of Columbia. 6 Failure to file an appropriate and timely privilege 7 log shall be a basis for overruling or disregarding 8 any objection. 9 ‘‘Additional Subpoena Enforcement Power 10 ‘‘8.(a) Whenever any committee or subcommittee 11 makes a written request to any person for testimony or 12 the production of such books, records, correspondence, 13 memorandum, papers, documents, and electronic or digital 14 files, data or information, in any form, including any elec- 15 tronic or digital files, data or information in any search- 16 able formats in which they are available to or can be pro- 17 duced by that person, as the committee or subcommittee 18 considers necessary, such person shall either comply with 19 that request or file written objections within the time 20 frame for response set forth in the request. 21 ‘‘(b) If such person files written objections within the 22 timeframe for response, the committee or subcommittee 23 shall seek to resolve these objections through negotiation 24 VerDate Sep 11 2014 00:09 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\HR136.IH HR136 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HRES 136 IH and accommodation. If a resolution cannot be reached, 1 staff shall so certify to the chair of the committee. 2 ‘‘(c) If such person fails to file objections or provide 3 testimony or full production of responsive records and in- 4 formation within the timeframe for response, the chair of 5 the committee may issue a subpoena to such person for 6 any unproduced testimony or records or information as 7 to which no objection was filed. 8 ‘‘(d) With respect to any portion of the written re- 9 quest for documents and testimony to which timely objec- 10 tion was made, a subpoena may be issued, following con- 11 clusion of the negotiations referred to in paragraph (b), 12 by— 13 ‘‘(1) the chair, upon 48 hours notice to the 14 ranking member, unless the ranking member objects 15 during that period; or 16 ‘‘(2) a vote of the committee. 17 ‘‘(e) Any person to whom a subpoena is issued has 18 the right to be accompanied only by non-government pri- 19 vate counsel during all proceedings conducted pursuant to 20 this clause. The committee in taking testimony will follow 21 the procedures for taking depositions and resolving dis- 22 putes over objections to questions that are prescribed by 23 the Committee on Rules for such testimonial proceedings 24 (see 165 Cong. Rec. H1216–17 (Jan. 25, 2019)). 25 VerDate Sep 11 2014 00:09 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\HR136.IH HR136 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HRES [Text truncated for display. Full text available on Congress.gov.]