CONGRESSIONAL DOCUMENT

REQUESTS AND SUBPOENAS TO

EXECUTIVE AGENCIES

TIME TO PLAY BY THE HOUSE’S RULES

 THE PROBLEM
• No Reliable Enforcement Mechanism for Congressional Subpoenas to
the Executive Branch

• Little Incentive for Executive Branch Agencies to Respect Congressional

Deadlines

• Current Process is Ad Hoc and Imposes Asymmetric Burdens on House

Committees and Chairs

• Civil Enforcement is Risky and Time-Consuming

 THE SOLUTION
• Provide An Orderly and Regularized Process for Requesting Documents,
Making Objections, and Resolving Disputes

• Establish Consistent Deadlines with Consequences for Default

• Require Politically Accountable Executive Branch Officials, including the

President, to Make Objections or Claims of Privilege in Writing

• Empower House Committees to Bring Streamlined Civil Enforcement

Actions where no Claim of Executive Privilege has been Asserted
 DOCUMENT REQUEST TO SUBPOENA

Agency Timely Committee May

Negotiation
Objection Issue Subpoena
Committee
Document
Request
Chair May Issue
Agency Default
Subpoena

Subpoena

4
 SUBPOENA TO ENFORCEMENT

POTUS
Asserts Exec Other
Privilege Remedies
Agency Timely Committee Order of
Objection Hearing Compliance
Subpoena POTUS Does
Not Assert
Exec Privilege

Agency
Default
Committee May
Bring Civil Action

5
 ADVANTAGES OF THE PROPOSED RULE
• Provides a Roadmap for Congressional Committees

• Affords “Congressional Due Process” to Agencies

• Establishes Meaningful Deadlines

• Holds Executive Branch Officials and Agencies Accountable for Responses to

Subpoenas

• Creates a Streamlined Civil Enforcement Procedure

 COMMITTEE ROADMAP
• Enables Committee staff to understand and project what will be
required at each stage of the process

• Encourages Committee to make and refine its document requests

with a view toward satisfying each stage in the process, including a
potential civil enforcement action

• Minimizes demands on scarce Member time

ANDREW WRIGHT, CONGRESSIONAL
DUE PROCESS, 85 MISS. L. J. 1 (2015)
• “Congress provides almost no guidance for discovery request and
subpoena recipients to raise objections.”

• “Congress could materially enhance its oversight legitimacy by

embracing due process norms.”

• “[S]uch rules would bolster the legitimacy of the process from the
perspective of the courts when called upon by Congress to enforce
subpoenas, contempt citations, and obstruction prosecutions.”
 CONGRESSIONAL DUE PROCESS

• Affords agencies to opportunity to resolve objections at an early stage

through negotiations

• Provides minimum time periods for responses and objections

• Requires committee to hold a hearing, with agency present, to

consider and rule upon agency objections to subpoena
 MEANINGFUL DEADLINES
• Agency must respond in a timely fashion to initial document request
in order to get the benefit of (1) negotiation period and (2) bipartisan
consideration of any subpoena

• Agency must respond in a timely fashion to subpoena in order to get

the benefit of a Committee hearing on its objections

• President must assert executive privilege in a timely fashion to

prevent Committee from filing civil enforcement action
 ACCOUNTABILITY
• Agency is required to designate a “senior responsible official” for
responding and making objections to document requests and
subpoenas

• Senior responsible official is required to attend Committee hearing to

consider agency objections to subpoena

• The President is required to assert executive privilege personally and

in writing
 STREAMLINED CIVIL ENFORCEMENT
• Civil enforcement under this rule should put a House Committee in an optimal
position to win a speedy court order to enforce its subpoena

• Due process at the congressional level will enhance legitimacy and provide
assurance to the court

• Absence of executive privilege assertion means there is no need for court to

balance the constitutional prerogatives of the legislative and executive
branches

• Could be enhanced by passage of a bill such as H.R. 4010