Congressional Inherent Contempt Resolution

IV 117TH CONGRESS 1ST SESSION H. RES. 406 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 MAY 17, 2021 Mr. LIEU (for himself, Mr. WELCH, Mr. RUSH, Ms. JACKSON LEE, Ms. JAYAPAL, Mr. CARSON, Mr. SWALWELL, Mr. CONNOLLY, Ms. SCHA- KOWSKY, Mr. QUIGLEY, Mr. NEGUSE, Ms. DEAN, Mr. CICILLINE, Mrs. DEMINGS, and Mr. RASKIN) 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’’. 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 00:34 May 18, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\HR406.IH HR406 kjohnson on DSK79L0C42PROD with BILLS 2 •HRES 406 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 00:34 May 18, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\HR406.IH HR406 kjohnson on DSK79L0C42PROD with BILLS 3 •HRES 406 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 House 20 Rules Committee for such testimonial proceedings [see 21 165 Cong. Rec. H1216–17 (Jan. 25, 2019)]. 22 ‘‘(f) If the senior responsible official files written ob- 23 jections to a subpoena issued under paragraphs (c) or (d) 24 within the timeframe for response, or the President per- 25 VerDate Sep 11 2014 00:34 May 18, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\HR406.IH HR406 kjohnson on DSK79L0C42PROD with BILLS 4 •HRES 406 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 00:34 May 18, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\HR406.IH HR406 kjohnson on DSK79L0C42PROD with BILLS 5 •HRES 406 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 monetary 8 penalties. 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 recommendation for imposition of a monetary pen- 19 alty. A proffer of an amendment to alter the recommended 20 penalty is in order. 21 ‘‘(j)(1) Upon House passage of the resolution of con- 22 tempt the contemnor shall be assessed by the body an ini- 23 tial penalty of not more than $25,000 and total penalties 24 of not more than $100,000. The amount of the ultimate 25 VerDate Sep 11 2014 00:34 May 18, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\HR406.IH HR406 kjohnson on DSK79L0C42PROD with BILLS 6 •HRES 406 IH penalty depends on timeliness of the contemnor’s compli- 1 ance in providing information withheld. The initial penalty 2 of not more than $25,000 may be increased by the com- 3 mittee chair by increments of not more than $25,000 after 4 a one-time waiting period of 10 calendar days from the 5 initial penalty until the $100,000 maximum is reached. 6 The 10-day period shall only be observed after the first 7 penalty. Upon expiration of the 10-day waiting period, if 8 the chair deems the measure of compliance by the 9 contemnor is insufficient to satisfy the legislative needs 10 of the committee, the chair may, over a period of not more 11 than fifteen days, at his or her discretion, increase the 12 penalty by increments of not more than $25,000 until the 13 maximum is reached. Upon expiration of the 10-day wait- 14 ing period, the General Counsel is authorized to recover 15 any accrued penalties, but only if the contemnor has failed 16 to comply with the subpoena before the end of such 10- 17 day period. Nothing in this clause shall be interpreted to 18 limit the ability of the House to impose additional legisla- 19 tive punishments on the contemnor for noncompliance. 20 ‘‘(2) No appropriated funds, funds provided from any 21 accounts in the Treasury, funds derived from collection 22 of fees, or other Government funds shall be used to pay 23 a monetary penalty imposed by the House under this 24 clause. 25 VerDate Sep 11 2014 00:34 May 18, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\HR406.IH HR406 kjohnson on DSK79L0C42PROD with BILLS 7 •HRES 406 IH ‘‘(3) No person, group, entity, organization, or cor- 1 poration may make payments to, reimburse or offer remu- 2 neration of any kind to compensate a contemnor for, or 3 assist a contemnor in paying, any portion of a monetary 4 penalty imposed by the House. Nor shall any person, 5 group, entity, organization, or corporation be permitted to 6 pay any monetary penalties directly on behalf of a 7 contemnor. The House may regard such actions to com- 8 pensate, reimburse or provide remunerations or payments 9 to a contemnor as an obstruction of its investigative and 10 information gathering prerogatives and responsibilities 11 and a contempt of the House. 12 ‘‘(k) Nothing in this clause shall be interpreted to di- 13 minish the inherent institutional self-protective authori- 14 ties, methods and practices of the House for enforcing 15 committee subpoenas, nor shall anything in this clause be 16 interpreted to diminish the discretionary power of any 17 committee to determine the acceptability of any constitu- 18 tional or common law based privilege asserted to justify 19 noncompliance with a congressional subpoena. 20 ‘‘(l) As used in this clause: 21 ‘‘(1) The term ‘senior responsible official’ refers 22 to an executive branch official with control or cus- 23 tody over the records or information or the subordi- 24 nate officials or employees that are sought and who 25 VerDate Sep 11 2014 00:34 May 18, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\HR406.IH HR406 kjohnson on DSK79L0C42PROD with BILLS 8 •HRES 406 IH is a civil officer subject to removal from the office 1 under Article II, section 4, of the Constitution, un- 2 less no such civil officer has control or custody over 3 the records or information sought. 4 ‘‘(2) The term ‘objections’ includes an appro- 5 priate privilege log, which shall describe with par- 6 ticularity the records or information withheld and 7 the basis for withholding. The log shall be in such 8 form as instructed by the committee or, in the ab- 9 sence of such instruction, shall be in the form that 10 would be required by the rules and practice of the 11 United States District for the District of Columbia. 12 Failure to file an appropriate and timely privilege 13 log shall be a basis for overruling or disregarding 14 any objection. 15 ‘‘Additional Subpoena Enforcement Power 16 ‘‘8.(a) Whenever any committee or subcommittee 17 makes a written request to any person for testimony or 18 the production of such books, records, correspondence, 19 memorandum, papers, documents, and electronic or digital 20 files, data or information, in any form, including any elec- 21 tronic or digital files, data or information in any search- 22 able formats in which they are available to or can be pro- 23 duced by that person, as the committee or subcommittee 24 considers necessary, such person shall either comply with 25 VerDate Sep 11 2014 00:34 May 18, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\HR406.IH HR406 kjohnson on DSK79L0C42PROD with BILLS 9 •HRES 406 IH that request or file written objections within the time 1 frame for response set forth in the request. 2 ‘‘(b) If such person files written objections within the 3 timeframe for response, the committee or subcommittee 4 shall seek to resolve these objections through negotiation 5 and accommodation. If a resolution cannot be reached, 6 staff shall so certify to the chair of the committee. 7 ‘‘(c) If such person fails to file objections or provide 8 testimony or full production of responsive records and in- 9 formation within the timeframe for response, the chair of 10 the committee may issue a subpoena to such person for 11 any unproduced testimony or records or information as 12 to which no objection was filed. 13 ‘‘(d) With respect to any portion of the written re- 14 quest for documents and testimony to which timely objec- 15 tion was made, a subpoena may be issued, following con- 16 clusion of the negotiations referred to in paragraph (b), 17 by— 18 ‘‘(1) the chair, upon 48 hours notice to the 19 ranking member, unless the ranking member objects 20 during that period; or 21 ‘‘(2) a vote of the committee. 22 ‘‘(e) Any person to whom a subpoena is issued has 23 the right to be accompanied only by non-government pri- 24 vate counsel during all proceedings conducted pursuant to 25 VerDate Sep 11 2014 00:34 May 18, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\HR406.IH HR406 kjohnson on DSK79L0C42PROD with BILLS 10 •HRES 406 IH this clause. The committee in taking testimony will follow 1 the procedures for taking depositions and resolving dis- 2 putes over objections to questions that are prescribed by 3 the House Rules Committee for such testimonial pro- 4 ceedings [see 165 Cong. Rec. H1216–17 (Jan. 25, 2019)]. 5 ‘‘(f) If such person files written objections to a sub- 6 poena issued under paragraphs (c) or (d) within the time- 7 frame for response, the committee may hold a hearing to 8 consider these objections. The person shall personally at- 9 tend this hearing, but the committee chair may grant an 10 exception for good cause shown. 11 ‘‘(g) If the committee overrules some or all of the ob- 12 jections asserted, it may issue an order of compliance 13 which states the grounds for rejection of the objections, 14 the date for compliance, and an advisement of the legal 15 consequences of a failure to comply. The person shall com- 16 ply with such order within the timeframe for response. 17 ‘‘(h) On the failure of the person to comply with the 18 order of compliance, the committee shall meet to assess 19 whether the noncompliance rises to the level of a breach 20 of the constitutional privilege a [Text truncated for display. Full text available on Congress.gov.]