H. R. 4010
IN THE SENATE OF THE UNITED STATES
October 24, 2017
Received; read twice and referred to the Committee on the Judiciary
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.
This Act may be cited as the
Congressional Subpoena Compliance and Enforcement Act of 2017.
Enforcement of congressional subpoenas
Chapter 85 of title 28, United States Code, is amended by inserting after section 1365 the following:
Congressional actions against subpoena recipients
In any civil action brought by the United States House of Representatives, the United States Senate, or a committee or subcommittee thereof, against the recipient of a subpoena to secure declaratory, injunctive, or other relief as may be appropriate concerning the failure to comply with a subpoena issued by a congressional committee or subcommittee, the following rules shall apply:
The action shall be filed in a United States district court of competent jurisdiction.
It shall be the duty of the United States district courts, the United States courts of appeal, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any such action and appeal.
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 of title 28, United States Code, 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.
Monetary penalties in cases involving government agencies
The court may impose monetary penalties directly against the head of a Government agency or a component thereof held to have willfully failed to comply with any part of a congressional subpoena.
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 section.
Waiver of privilege
Any assertion of a privilege or other ground for noncompliance (whether statutory, common law, or otherwise) asserted by the recipient of a congressional subpoena may be determined to have been waived as to any particular record withheld from production if the court finds that the recipient failed in a timely manner to comply with the requirement of section 105 of the Revised Statutes of the United States that it produce a privilege log with respect to such record.
For purposes of this section, the term
Government agency means an executive department listed in section 101 of title 5, United States Code, an independent establishment, commission, board, bureau, division, or office in the executive branch, or other agency of the Federal Government, including wholly or partly owned Government corporations.
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:
1365a. Congressional actions against subpoena recipients.
Compliance with congressional subpoenas
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:
Response to congressional subpoenas
Subpoena by congressional committee
Any recipient of any subpoena from a congressional committee or subcommittee shall appear and testify or produce records in a manner consistent with the subpoena and this section.
Congressional subpoenas for records
Identification of records withheld
In the case of a record that is withheld, in whole or in part, by the subpoena recipient, the subpoena recipient shall provide a log containing the following information concerning such record:
An express assertion and description of the legal basis asserted for withholding the record.
The type of record.
The general subject matter.
The date, author, and addressee.
The relationship of the author and addressee to each other.
The custodian of the record.
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.
In the case of any record responsive to the subpoena submitted under paragraph (1) that was, but no longer is, in the possession, custody, or control of the subpoena recipient, the subpoena recipient shall identify the record (including the date, author, subject, and each recipient of the record) and explain the circumstances under which the record ceased to be in the possession, custody, or control of the subpoena recipient.
Electronic records shall be produced pursuant to this subsection in their native or original file format. Electronic records shall be delivered on a storage device (such as compact disk, memory stick, or thumb drive) and, to the extent feasible, shall be organized, identified, and indexed electronically and shall include an index describing the contents of the production.
For purposes of this section the term
record includes any books, papers, documents, data, or other objects requested in a subpoena issued by a congressional committee or subcommittee.
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:
105. Response to congressional subpoenas.
Rule of construction
Nothing in this Act shall be interpreted to diminish Congress’ inherent authority or previously established methods and practices for enforcing compliance with congressional subpoenas, nor shall anything in this Act be interpreted to establish Congress’ acceptance of any asserted privilege or other legal basis for noncompliance with a congressional subpoena.
Passed the House of Representatives October 23, 2017.
Karen L. Haas,