Congressional Subpoena Compliance and Enforcement Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 8335 To amend the Revised Statutes of the United States and title 28, United States Code, to enhance compliance with requests for information pursu- ant to legislative power under Article I of the Constitution, and for other purposes. IN THE HOUSE OF REPRESENTATIVES SEPTEMBER 22, 2020 Ms. DEAN (for herself and Mr. NADLER) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend the Revised Statutes of the United States and title 28, United States Code, to enhance compliance with requests for information pursuant to legislative power under Article I of the Constitution, and for other pur- poses. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Congressional Sub- 4 poena Compliance and Enforcement Act of 2020’’. 5 SEC. 2. FINDINGS. 6 The Congress finds as follows: 7 VerDate Sep 11 2014 00:12 Oct 04, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8335.IH H8335 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 8335 IH (1) As the Supreme Court has repeatedly af- 1 firmed, including in its July 9, 2020, holding in 2 Trump v. Mazars, Congress’s ‘‘power of inquiry— 3 with process to enforce it—is an essential and ap- 4 propriate auxiliary to the legislative function’’. 5 Congress’s power to obtain information, including 6 through the issuance of subpoenas and the enforce- 7 ment of such subpoenas, is ‘‘broad and indispen- 8 sable’’. 9 (2) Congress ‘‘suffers a concrete and particular- 10 ized injury when denied the opportunity to obtain in- 11 formation necessary’’ to the exercise of its constitu- 12 tional functions, as the U.S. Court of Appeals for 13 the District of Columbia Circuit correctly recognized 14 in its August 7, 2020, en banc decision in Com- 15 mittee on the Judiciary of the U.S. House of Rep- 16 resentatives v. McGahn. 17 (3) Accordingly, the Constitution secures to 18 each House of Congress an inherent right to enforce 19 its subpoenas in court. Explicit statutory authoriza- 20 tion is not required to secure such a right of action, 21 and the contrary holding by a divided panel of the 22 U.S. Court of Appeals for the District of Columbia 23 Circuit in McGahn, entered on August 31, 2020, 24 was in error. 25 VerDate Sep 11 2014 02:24 Oct 08, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8335.IH H8335 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 8335 IH SEC. 3. ENFORCEMENT OF CONGRESSIONAL SUBPOENAS. 1 (a) IN GENERAL.—Chapter 85 of title 28, United 2 States Code, is amended by inserting after section 1365 3 the following: 4 ‘‘§ 1365a. Congressional actions against subpoena re- 5 cipients 6 ‘‘(a) CAUSE OF ACTION.—The United States House 7 of Representatives, the United States Senate, or a com- 8 mittee or subcommittee thereof, may bring a civil action 9 against the recipient of a subpoena issued by a congres- 10 sional committee or subcommittee to enforce compliance 11 with the subpoena. 12 ‘‘(b) SPECIAL RULES.—In any civil action described 13 in subsection (a), the following rules shall apply: 14 ‘‘(1) The action may be filed in a United States 15 district court of competent jurisdiction. 16 ‘‘(2) Notwithstanding section 1657(a), it shall 17 be the duty of every court of the United States to 18 expedite to the greatest possible extent the disposi- 19 tion of any such action and appeal. Upon a showing 20 by the plaintiff of undue delay, other irreparable 21 harm, or good cause, a court to which an appeal of 22 the action may be taken shall issue any necessary 23 and appropriate writs and orders to ensure compli- 24 ance with this paragraph. 25 VerDate Sep 11 2014 00:12 Oct 04, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8335.IH H8335 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 8335 IH ‘‘(3) If a three-judge court is expressly re- 1 quested by the plaintiff in the initial pleading, the 2 action shall be heard by a three-judge court con- 3 vened pursuant to section 2284, and shall be review- 4 able only by appeal directly to the Supreme Court of 5 the United States. Such appeal shall be taken by the 6 filing of a notice of appeal within 10 days, and the 7 filing of a jurisdictional statement within 30 days, of 8 the entry of the final decision. 9 ‘‘(c) PENALTIES.— 10 ‘‘(1) CASES INVOLVING GOVERNMENT AGEN- 11 CIES.— 12 ‘‘(A) IN GENERAL.—The court may impose 13 monetary penalties directly against each head of 14 a Government agency and the head of each 15 component thereof held to have knowingly failed 16 to comply with any part of a congressional sub- 17 poena. 18 ‘‘(B) PROHIBITION ON USE OF GOVERN- 19 MENT FUNDS.—No appropriated funds, funds 20 provided from any accounts in the Treasury, 21 funds derived from the collection of fees, or 22 other Government funds shall be used to pay 23 any monetary penalty imposed by the court 24 pursuant to this paragraph. 25 VerDate Sep 11 2014 00:12 Oct 04, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8335.IH H8335 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 8335 IH ‘‘(2) LEGAL FEES.—In addition to any other 1 penalties or sanctions, the court shall require that 2 any defendant, other than a Government agency, 3 held to have willfully failed to comply with any part 4 of a congressional subpoena, pay a penalty in an 5 amount equal to that party’s legal fees, including at- 6 torney’s fees, litigation expenses, and other costs. If 7 such defendant if is an officer or employee of a Gov- 8 ernment agency, such fees may be paid from funds 9 appropriated to pay the salary of the defendant. 10 ‘‘(d) WAIVER.—Any ground for noncompliance as- 11 serted by the recipient of a congressional subpoena shall 12 be deemed to have been waived as to any particular infor- 13 mation withheld from production if the court finds that 14 the recipient failed in a timely manner to comply with the 15 requirements of section 105(b) of the Revised Statutes of 16 the United States with respect to such information. 17 ‘‘(e) RULES OF PROCEDURE.—The Supreme Court 18 and the Judicial Conference of the United States shall 19 prescribe rules of procedure to ensure the expeditious 20 treatment of actions described in subsection (a). Such 21 rules shall be prescribed and submitted to the Congress 22 pursuant to sections 2072, 2073, and 2074. This shall in- 23 clude procedures for expeditiously considering any asser- 24 tion of constitutional or Federal statutory privilege made 25 VerDate Sep 11 2014 00:12 Oct 04, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8335.IH H8335 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 8335 IH in connection with testimony by any recipient of a sub- 1 poena from a congressional committee or subcommittee. 2 The Supreme Court shall transmit such rules to Congress 3 within 6 months after the effective date of this section and 4 then pursuant to section 2074 thereafter. 5 ‘‘(f) DEFINITION.—For purposes of this section, the 6 term ‘Government agency’ means any office or entity de- 7 scribed in section 105 and 106 of title 3, an executive de- 8 partment listed in section 101 of title 5, an independent 9 establishment, commission, board, bureau, division, or of- 10 fice in the executive branch, or other agency or instrumen- 11 tality of the Federal Government, including wholly or part- 12 ly owned Government corporations.’’. 13 (b) CLERICAL AMENDMENT.—The table of sections 14 for chapter 85 of title 28, United States Code, is amended 15 by inserting after the item relating to section 1365 the 16 following: 17 ‘‘1365a. Congressional actions against subpoena recipients.’’. SEC. 4. COMPLIANCE WITH CONGRESSIONAL SUBPOENAS. 18 (a) IN GENERAL.—Chapter 7 of title II of the Re- 19 vised Statutes of the United States (2 U.S.C. 191 et seq.) 20 is amended— 21 (1) by adding at the end the following: 22 ‘‘SEC. 105. RESPONSE TO CONGRESSIONAL SUBPOENAS. 23 ‘‘(a) SUBPOENA BY CONGRESSIONAL COMMITTEE.— 24 Any recipient of any subpoena from a congressional com- 25 VerDate Sep 11 2014 00:12 Oct 04, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8335.IH H8335 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 8335 IH mittee or subcommittee shall appear and testify, produce, 1 or otherwise disclose information in a manner consistent 2 with the subpoena and this section. 3 ‘‘(b) FAILURE TO PRODUCE INFORMATION.— 4 ‘‘(1) GROUNDS FOR WITHHOLDING INFORMA- 5 TION.—Unless required by the Constitution or by 6 Federal statute, no claim of privilege or protection 7 from disclosure shall be a ground for withholding in- 8 formation responsive to the subpoena or required by 9 this section. 10 ‘‘(2) IDENTIFICATION OF INFORMATION WITH- 11 HELD.—In the case of information that is withheld, 12 in whole or in part, by the subpoena recipient, the 13 subpoena recipient shall, without delay provide a log 14 containing the following: 15 ‘‘(A) An express assertion and description 16 of the ground asserted for withholding the in- 17 formation. 18 ‘‘(B) The type of information. 19 ‘‘(C) The general subject matter. 20 ‘‘(D) The date, author, and addressee. 21 ‘‘(E) The relationship of the author and 22 addressee to each other. 23 ‘‘(F) The custodian of the information. 24 VerDate Sep 11 2014 02:24 Oct 08, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8335.IH H8335 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 8335 IH ‘‘(G) Any other descriptive information 1 that may be produced or disclosed regarding 2 the information that will enable the congres- 3 sional committee or subcommittee issuing the 4 subpoena to assess the ground asserted for 5 withholding the information. 6 ‘‘(c) DEFINITION.—For purposes of this section the 7 term ‘information’ includes any books, papers, documents, 8 data, or other objects requested in a subpoena issued by 9 a congressional committee or subcommittee.’’; and 10 (2) in section 104, by striking the period at the 11 end and inserting the following: 12 ‘‘, or the Attorney General for the District of Colum- 13 bia, in which case, notwithstanding section 23–101, Dis- 14 trict of Columbia Official Code, the offense may be pros- 15 ecuted by the Attorney General for the District of Colum- 16 bia, and shall be punishable by a fine of not more than 17 $1,000 and imprisonment of not more than 12 months.’’. 18 (b) CLERICAL AMENDMENT.—The table of contents 19 for chapter 7 of title II of the Revised Statutes of the 20 United States is amended by adding at the end the fol- 21 lowing: 22 ‘‘105. Response to congressional subpoenas.’’. SEC. 5. RULE OF CONSTRUCTION. 23 Nothing in this Act may be interpreted to limit or 24 constrain Congress’ inherent authority or foreclose any 25 VerDate Sep 11 2014 00:12 Oct 04, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8335.IH H8335 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 8335 IH other means for enforcing compliance with congressional 1 subpoenas, nor may anything in this Act be interpreted 2 to establish or recognize any ground for noncompliance 3 with a congressional subpoena. 4 Æ VerDate Sep 11 2014 00:12 Oct 04, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\H8335.IH H8335 kjohnson on DSK79L0C42PROD with BILLS