August 21, 2018

August 20, 2018

Subscribe to Latest Legal News and Analysis

House of Representatives Seeks to Strengthen Subpoena Enforcement Dramatically

In late October, the House of Representatives quietly approved a bill that would dramatically strengthen Congress’s procedures for enforcing congressional subpoenas.  In adopting the bill, the bipartisan leadership of the House Judiciary Committee highlighted the challenges that Congress faces in obtaining materials from executive branch agencies.  Significant portions of the bill, however, apply to all congressional subpoenas, including subpoenas issued to private sector individuals and entities.

After passing the House, the legislation is currently pending in the Senate Judiciary Committee.  The staff of the Senate Judiciary has indicated an interest in enhancing Congress’s subpoena enforcement procedures.  In 2015 and 2016, the Senate engaged in a lengthy legal battle to enforce a subpoena against Backpage, an online forum accused of contributing to sex trafficking, and its CEO Carl Ferrer.  We therefore believe that legislation to strengthen congressional subpoena enforcement is likely, but it is not yet clear whether the Senate will support the House bill or propose its own alternative.

The key provisions of the bill, H.R. 4010, the Congressional Subpoena Compliance and Enforcement Act, include the following:

  • The bill would establish special rules applicable only to civil litigation brought by Congress to enforce a subpoena. Courts would be required to “expedite to the greatest possible extent” the resolution of such cases.  Congress would be permitted to request a hearing before a three-judge panel of the district court, rather than proceeding through the usual district court process.  In such instances, the legislation would eliminate intermediate appeals – any appeal would go directly to the Supreme Court.

  • The legislation would authorize “monetary penalties” against the head of a government agency found by a court to have willfully failed to comply with any part of a congressional subpoena. Importantly, the legislation would prohibit the use of any government funds to pay the penalty, presumably leaving the government official personally on the hook.

  • In a change that has significant implications for companies and individuals that receive congressional subpoenas, the legislation would provide that privileges against responding to a subpoena may be waived if a recipient does not specifically assert the privilege in a detailed privilege log provided to Congress.

  • The legislation also prescribes – with extreme precision – the information that a subpoena recipient must include in a privilege log. The bill would require, for each record withheld, the following:

    • “An express assertion and description of the legal basis asserted for withholding the record.”

    • The type and general subject matter of the record, and the date, author, addressee, and custodian of the record.

    • “The relationship of the author and addressee to each other.”

    • “Any other descriptive information that may be produced or disclosed regarding the record that will enable the congressional committee or subcommittee issuing the subpoena to assess the legal basis asserted for withholding the record.”

  • The legislation would require that subpoena respondents submit electronic information to Congress in the native electronic format.

  • Finally, the legislation reiterates Congress’s longstanding position that it is not bound by common law privileges, including the attorney-client privilege. The bill states that the legislation may not be interpreted “to establish Congress’ acceptance of any asserted privilege or other legal basis for noncompliance with a congressional subpoena.”

Recent disputes between Congress and subpoena recipients – including the Fast and Furious investigation in the Obama Administration and the Senate’s investigation of Backpage – would likely have evolved very differently under the procedures proposed in this legislation.  Indeed, the privilege log requirement may be a direct reaction to issues Congress confronted with Backpage.

Although the legislation was sponsored entirely by Republican Members of Congress, it passed the Judiciary Committee unanimously, and it passed the House under suspension of the rules, which requires a two-thirds supermajority.  Although congressional subpoenas are often the subject of partisan conflict, the wide support for this legislation likely reflects the parties’ shared institutional interests in seeing subpoenas enforced.

© 2018 Covington & Burling LLP

TRENDING LEGAL ANALYSIS


About this Author

Brian Smith, Covington, Litigation attorney
Of Counsel

Brian Smith advises clients on challenging public policy matters that combine legal and political risks and opportunities.

Mr. Smith represents companies and individuals facing high-profile and high-risk investigations, congressional investigations, and criminal and civil investigations with political or public relations implications. He assists companies and executives responding to formal and informal inquiries from Congress and executive branch agencies for documents, information, and testimony, and he conducts internal investigations to assess legal risks. He...

202.662.5090
Muftiah M. McCartin, Regulatory & Public Policy Attorney, Covington Law Firm
Of Counsel

Muftiah McCartin is co-chair of the Public Policy Practice Group. She specializes in providing advice and guidance to clients on legislative and regulatory strategies.

Ms. McCartin has been praised by congressional leaders for “her policy and technical expertise [that] have served both sides of the aisle over many years," for "personif[ying] competence, professionalism and courtesy," and for being “one of the most able people with whom I have worked during the 30 years I have been here." Her distinguished public service career in the U.S. House of Representatives includes senior positions with the Rules Committee, the Appropriations Committee, and the Parliamentarian's Office. She has breadth of congressional experience across the spectrum of committees and offices and in interfacing with regulatory agencies, and she has breadth of experience in private practice advising a broad range of industries that face legislative and regulatory challenges. This experience makes her particularly well-suited to represent clients effectively on a broad spectrum of issues, whether the client is well-established in Washington, seeking to establish a Washington presence for the first time, or relying entirely on Washington counsel.

202.662.5510
Richard Hertling, Covington, public policy lawyer
Of Counsel

Richard Hertling provides regulatory and legislative advice and guidance and lobbying to a diverse set of clients in a range of industries. He joined the firm after more than 27 years of federal government service that included senior positions in both Houses of Congress and the Justice Department, during which he was respected for developing strategic and tactical approaches to advance legislation. He brings those same skills to bear for clients with complex policy challenges.

While holding senior positions on Capitol Hill and at the Department of Justice, Mr....

202-662-5669
Josh DeBold, Covington, Litigation Attorney, Government Attorney, Washington DC
Associate

Josh DeBold represents companies in internal investigations and investigations by Congress, DOJ, the SEC, the Treasury Department, state attorneys general, and other federal and state enforcement authorities. Mr. DeBold also has broad experience in consumer, False Claims Act, and other litigation matters before federal and state courts throughout the country.

Mr. DeBold recently served as Special Counsel for the United States Senate Permanent Subcommittee on Investigations in its investigation of online sex trafficking.

202 662 5554