Section 1 Short title
This Act may be cited as the “Congressional Subpoena Compliance and Enforcement Act of 2020”.
Congressional Subpoena Compliance and Enforcement Act of 2020
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 purposes.
Sec. 2 Findings
The Congress finds as follows:
As the Supreme Court has repeatedly affirmed, including in its July 9, 2020, holding in Trump v. Mazars, Congress’s “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function”. Congress’s power to obtain information, including through the issuance of subpoenas and the enforcement of such subpoenas, is “broad and indispensable”.
Congress “suffers a concrete and particularized injury when denied the opportunity to obtain information necessary” to the exercise of its constitutional functions, as the U.S. Court of Appeals for the District of Columbia Circuit correctly recognized in its August 7, 2020, en banc decision in Committee on the Judiciary of the U.S. House of Representatives v. McGahn.
Accordingly, the Constitution secures to each House of Congress an inherent right to enforce its subpoenas in court. Explicit statutory authorization is not required to secure such a right of action, and the contrary holding by a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit in McGahn, entered on August 31, 2020, was in error.
Sec. 3 Enforcement of congressional subpoenas
In general— Chapter 85 of title 28, United States Code, is amended by inserting after section 1365 the following:
“1365a. Congressional actions against subpoena recipients
“(a) Cause of action—The United States House of Representatives, the United States Senate, or a committee or subcommittee thereof, may bring a civil action against the recipient of a subpoena issued by a congressional committee or subcommittee to enforce compliance with the subpoena.
“(b) Special rules—In any civil action described in subsection (a), the following rules shall apply:
“(1) The action may be filed in a United States district court of competent jurisdiction.
“(2) Notwithstanding section 1657(a), it shall be the duty of every court of the United States to expedite to the greatest possible extent the disposition of any such action and appeal. Upon a showing by the plaintiff of undue delay, other irreparable harm, or good cause, a court to which an appeal of the action may be taken shall issue any necessary and appropriate writs and orders to ensure compliance with this paragraph.
“(3) If a three-judge court is expressly requested by the plaintiff in the initial pleading, the action shall be heard by a three-judge court convened pursuant to section 2284, and shall be reviewable only by appeal directly to the Supreme Court of the United States. Such appeal shall be taken by the filing of a notice of appeal within 10 days, and the filing of a jurisdictional statement within 30 days, of the entry of the final decision.
“(c) Penalties
“(1) Cases involving government agencies
“(A) In general—The court may impose monetary penalties directly against each head of a Government agency and the head of each component thereof held to have knowingly failed to comply with any part of a congressional subpoena.
“(B) Prohibition on use of government funds—No appropriated funds, funds provided from any accounts in the Treasury, funds derived from the collection of fees, or other Government funds shall be used to pay any monetary penalty imposed by the court pursuant to this paragraph.
“(2) Legal fees—In addition to any other penalties or sanctions, the court shall require that any defendant, other than a Government agency, held to have willfully failed to comply with any part of a congressional subpoena, pay a penalty in an amount equal to that party’s legal fees, including attorney’s fees, litigation expenses, and other costs. If such defendant if is an officer or employee of a Government agency, such fees may be paid from funds appropriated to pay the salary of the defendant.
“(d) Waiver—Any ground for noncompliance asserted by the recipient of a congressional subpoena shall be deemed to have been waived as to any particular information withheld from production if the court finds that the recipient failed in a timely manner to comply with the requirements of section 105(b) of the Revised Statutes of the United States with respect to such information.
“(e) Rules of procedure—The Supreme Court and the Judicial Conference of the United States shall prescribe rules of procedure to ensure the expeditious treatment of actions described in subsection (a). Such rules shall be prescribed and submitted to the Congress pursuant to sections 2072, 2073, and 2074. This shall include procedures for expeditiously considering any assertion of constitutional or Federal statutory privilege made in connection with testimony by any recipient of a subpoena from a congressional committee or subcommittee. The Supreme Court shall transmit such rules to Congress within 6 months after the effective date of this section and then pursuant to section 2074 thereafter.
“(f) Definition—For purposes of this section, the term Government agency means any office or entity described in section 105 and 106 of title 3, an executive department listed in section 101 of title 5, an independent establishment, commission, board, bureau, division, or office in the executive branch, or other agency or instrumentality of the Federal Government, including wholly or partly owned Government corporations.”
Clerical amendment— The table of sections for chapter 85 of title 28, United States Code, is amended by inserting after the item relating to section 1365 the following:
Sec. 4 Compliance with congressional subpoenas
In general— Chapter 7 of title II of the Revised Statutes of the United States (2 U.S.C. 191 et seq.) is amended—
by adding at the end the following:
“105. Response to congressional subpoenas
“(a) Subpoena by congressional committee—Any recipient of any subpoena from a congressional committee or subcommittee shall appear and testify, produce, or otherwise disclose information in a manner consistent with the subpoena and this section.
“(b) Failure To produce information
“(1) Grounds for withholding information—Unless required by the Constitution or by Federal statute, no claim of privilege or protection from disclosure shall be a ground for withholding information responsive to the subpoena or required by this section.
“(2) Identification of information withheld—In the case of information that is withheld, in whole or in part, by the subpoena recipient, the subpoena recipient shall, without delay provide a log containing the following:
“(A) An express assertion and description of the ground asserted for withholding the information.
“(B) The type of information.
“(C) The general subject matter.
“(D) The date, author, and addressee.
“(E) The relationship of the author and addressee to each other.
“(F) The custodian of the information.
“(G) Any other descriptive information that may be produced or disclosed regarding the information that will enable the congressional committee or subcommittee issuing the subpoena to assess the ground asserted for withholding the information.
“(c) Definition—For purposes of this section the term information includes any books, papers, documents, data, or other objects requested in a subpoena issued by a congressional committee or subcommittee.”
in section 104, by striking the period at the end and inserting the following:
Clerical amendment— The table of contents for chapter 7 of title II of the Revised Statutes of the United States is amended by adding at the end the following:
Sec. 5 Rule of construction
Nothing in this Act may be interpreted to limit or constrain Congress’ inherent authority or foreclose any other means for enforcing compliance with congressional subpoenas, nor may anything in this Act be interpreted to establish or recognize any ground for noncompliance with a congressional subpoena.