Bipartisan Coalition Urges Congress to Restore Lost Subpoena Enforcement Powers with Inherent Contempt Procedure

October 21, 2020

Rep. Nancy Pelosi,
Speaker, U.S. House of Representatives
The Capitol, Room H-232
Washington, DC 20515

Rep. Kevin McCarthy,
Minority Leader, U.S. House of Representatives
The Capitol, Room H-204
Washington, DC 20515

Rep. James McGovern, Chairman
Committee on Rules
U.S. House of Representatives
The Capitol, Room H-312
Washington, DC 20515

Rep. Tom Cole, Ranking Member
Committee on Rules
U.S. House of Representatives
The Capitol, Room H-152
Washington, DC 20515

Re: Inherent Contempt Procedure to Restore House Subpoena Enforcement Power

Dear Speaker Pelosi, Leader McCarthy, Chairman McGovern, and Ranking Member Cole:

On behalf of the undersigned bipartisan group of civil society organizations and individuals, we encourage you to include in the rules package for the 117th Congress the provisions of H.Res. 1029, the Congressional Inherent Contempt Resolution, which proposes to establish a modified version of the traditional inherent contempt enforcement procedure to address the intensifying crisis of noncompliance with congressional subpoenas.

H.Res. 1029, sponsored by Rep. Ted Lieu, would create a process whereby the House could unilaterally conduct trials of, convict, and directly penalize executive branch officials and others who defy congressional subpoenas with personal fines. This proposal can be implemented by amendment of House rules or passage of a resolution.

The root cause of the current challenges of enforcing legislative subpoenas is the abdication by Congress over the past fifteen years of a credible threat of personal punishment for government officials who defy congressional subpoenas. The emergence of this situation is no accident. The executive branch has waged a concerted, decades-long campaign to subvert the use of Congress’ two most powerful enforcement methods, the inherent and criminal contempt procedures, and instead force Congress to use the civil enforcement process which does not entail any credible threat of personal punishment for uncooperative witnesses. This inevitably forfeits to courts the absolute right of House committees to make initial rulings on claims of privilege, exposes Congress to aberrant judicial decisions subversive of its authority, and deteriorates into prolonged litigation that is incompatible with expedient legislative oversight.

Unfortunately, Congress also shares substantial responsibility for the diminishment of its authority, and has yet to challenge these executive branch usurpations appropriately. We therefore urge you to repair this damage now by acting decisively to restore the credible threat of significant Coalition Letter in Support of H.Res. 1029 Page 2 punishment necessary to compel recalcitrant executive branch officials to comply with congressional subpoenas.

The modified inherent contempt process proposed in H.Res. 1029 reestablishes this credible threat of punishment for contempt of Congress in a measured, responsible, and workable manner by limiting penalties to monetary fines, eliminating arrest and detention from the process, incorporating extensive internal and external checks against abuse, and including necessary due process safeguards. The procedure features an initial series of internal checks that require contempt recommendations of the originating committee to be reviewed and affirmed by the whole House before an alleged contemnor can be penalized for noncompliance.

The due process rights of the accused including adequate notice, opportunity to be heard, and access to counsel are also secured throughout the process. The judgment of committees, committee chairs, and members of Congress will ensure proceedings remain within the narrow bounds of House contempt jurisdiction and satisfy the standards of proper authorization, valid legislative purpose, and pertinence of questions. These jurisdictional and due process elements of the proceedings are subject to the external check of limited judicial review to ensure House compliance with these constitutional requirements.

The authority of the House to impose fines for contempt is supported by strong Supreme Court and appellate court precedents including Anderson v. Dunn, Ex Parte Nugent, McGrain v. Daugherty, and Jurney v. MacCracken among others affirming the equivalence of the legislative and judicial contempt powers, the validity of judicially-imposed fines to punish contempts of court, and, in the case of Anderson, the permissibility of fines for legislative contempt.

Congressional authority to punish contempt with fines also encompasses the power to collect such fines unilaterally without the assistance of courts and using the same methods available to all creditors. Congressional resolutions imposing inherent contempt penalties are the legal and constitutional equivalents of court judgments given the analogous nature of the contempt powers of the two branches.

On October 1, 2020, the Rules Committee heard testimony from Rep. Lieu in favor of H. Res. 1029. Members of the Committee agreed that the status quo wherein Congress effectively cannot enforce its subpoenas is unworkable. Members agreed that finding a solution to this crisis was of utmost importance. Rep. Jamie Raskin, Chairman of the Rules Committee’s Subcommittee on Expedited Procedures, spoke in favor of the measure at the hearing as well. In addition, several other committee members emphasized the necessity of strengthened subpoena enforcement in response to the problem of rising disrespect for congressional investigative authority. Furthermore, the proposal enjoys the support of the Congressional Progressive Caucus, two dozen cosponsors, and a growing number of other House members.

The obstruction of congressional subpoena power and the rising insolence of executive branch repudiations of congressional authority under both Democrat and Republican administrations confront the nation with a constitutional crisis requiring urgent address. Congress should respond to this challenge by adopting a modified inherent contempt process to restore its subpoena enforcement capacity to provide the indispensable institutional protection envisioned by the Framers, required by its constitutional responsibilities, deserved by all who have sacrificed to preserve American ideals, and expected rightfully by citizens.

Sincerely,
Dr. William J. Murphy
President, Good Government Now

Danielle Brian
Executive Director, Project on Government Oversight

Ian Bassin, Co-Founder and Executive Director
Protect Democracy

Lisa Rosenberg, Executive Director
Open the Government

Jeff Hauser, Executive Director
The Revolving Door Project

Jonathan Bydlak
Interim Director, Governance Program
R Street Institute

Morton Rosenberg
Senior Fellow, Good Government Now
Constitution Fellow, The Constitution Project

Noah Bookbinder, Executive Director
Citizens for Responsibility and Ethics in Washington

Louis Clark, CEO
Government Accountability Project

Austin Evers, Executive Director
American Oversight

Lisa Gilbert, Director, Congress Watch
Public Citizen

Michelle Kuppersmith, Executive Director
Campaign for Accountability

 

cc:
Rep. Carolyn Maloney, Chairwoman
Committee on Oversight and Reform,
U.S. House of Representatives
2157 Rayburn House Office Building
Washington, DC 20515

Rep. Jerrold Nadler, Chairman
Committee on the Judiciary,
U.S. House of Representatives
2138 Rayburn House Office Building
Washington, DC 20515

Rep. James Comer, Ranking Member
Committee on Oversight and Reform,
U.S. House of Representatives
2105 Rayburn House Office Building
Washington, DC 20515

Rep. Jim Jordan, Ranking Member
Committee on the Judiciary,
U.S. House of Representatives
2142 Rayburn House Office Building
Washington, DC 20515