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H.Res. 406: Congressional Inherent Contempt Resolution


The text of the resolution below is as of May 17, 2021 (Introduced).


IV

117th CONGRESS

1st Session

H. RES. 406

IN THE HOUSE OF REPRESENTATIVES

May 17, 2021

(for himself, Mr. Welch, Mr. Rush, Ms. Jackson Lee, Ms. Jayapal, Mr. Carson, Mr. Swalwell, Mr. Connolly, Ms. Schakowsky, Mr. Quigley, Mr. Neguse, Ms. Dean, Mr. Cicilline, Mrs. Demings, and Mr. Raskin) submitted the following resolution; which was referred to the Committee on Rules

RESOLUTION

Amending the Rules of the House of Representatives with respect to the enforcement of committee subpoenas to executive branch officials, and for other purposes.

1.

Short title

This resolution may be cited as the Congressional Inherent Contempt Resolution.

2.

Additional Subpoena Enforcement Power

Rule XI of the Rules of the House of Representatives is amended by adding at the end the following new clauses:

Additional Subpoena Enforcement Power

7.
(a)

Whenever any committee or subcommittee makes a written request to any department or agency of the Government for the attendance of named witnesses or the production of such books, records, correspondence, memorandum, papers, documents, and electronic or digital files, data or information, in any form, including any electronic or digital files, data or information in any searchable formats in which they are available to or can be produced by the agency, as the committee or subcommittee considers necessary, a senior responsible official shall either comply with that request or file written objections within the time frame for response set forth in the request.

(b)

If the senior responsible official files written objections within the timeframe for response, the committee or subcommittee shall seek to resolve these objections through negotiation and accommodation. If a resolution cannot be reached, staff shall so certify to the chair of the committee.

(c)

If the senior responsible official fails to file objections or make available the designated witnesses or full production of responsive records and information within the timeframe for response, the chair of the committee may issue a subpoena to the senior responsible official for any unproduced records or information as to which no objection was filed, and to any designated witness to which no objection was filed.

(d)

With respect to any portion of the written request for documents and witnesses to which timely objection was made, a subpoena to the senior responsible official and to designated witnesses, may be issued, following conclusion of the negotiations referred to in paragraph (b), by—

(1)

the chair, upon 48 hours notice to the ranking member, unless the ranking member objects during that period; or

(2)

a vote of the committee.

(e)

The senior responsible official and other witnesses to whom a subpoena is issued have the right to be accompanied only by non-government private counsel during all proceedings conducted pursuant to this clause (even if the witness is a government official or employee). The committee in taking testimony will follow the procedures for taking depositions and resolving disputes over objections to questions that are prescribed by the House Rules Committee for such testimonial proceedings [see 165 Cong. Rec. H1216–17 (Jan. 25, 2019)].

(f)

If the senior responsible official files written objections to a subpoena issued under paragraphs (c) or (d) within the timeframe for response, or the President personally and in writing asserts a claim of executive privilege with respect to the records, information, and witnesses at issue, the committee may hold a hearing to consider these objections. The senior responsible official shall personally attend this hearing but may not assert Executive Privilege on behalf of the President, and the committee chair may grant an exception for good cause shown.

(g)

If the committee overrules some or all of the objections asserted, it may issue an order of compliance which states the grounds for rejection of the objections, the date for compliance, and an advisement of the legal consequences of a failure to comply. The senior responsible official and subpoenaed witnesses shall comply with such order within the timeframe for response. If prior to such time, the President asserts a claim of executive privilege, it shall be made personally and in writing, and will be considered by the committee with all other timely objections. Witnesses may not assert a claim of executive privilege in the absence of such an assertion by the President.

(h)

On the failure of the senior responsible official or subpoenaed witnesses to comply with the order, the committee shall meet to assess whether the noncompliance rises to the level of a breach of the constitutional privilege and duty of the House to be fully informed in order to properly perform its legislative responsibilities without undue obstruction and thereby warrants condemnation and punishment. If so, the committee shall report a privileged resolution of contempt. The accompanying report shall include a detailed history and nature of the controversy and attempts at accommodation; the legal issues raised; the legislative need for the information sought; the legal and practical reasons for the determination that the objections were rejected; and the recommended monetary penalties.

(i)

If the committee reports a resolution of contempt, it shall be treated as a rule IX question of privilege of the House requiring precedence over all other questions until resolved and promptly scheduled for floor consideration. The chair of the committee shall present the case for passage of the resolution. At the conclusion of the allotted period for presentations, questions and debate, a vote on passage of the resolution will be taken. If the vote is for passage, a second vote will be taken on the committee’s recommendation for imposition of a monetary penalty. A proffer of an amendment to alter the recommended penalty is in order.

(j)
(1)

Upon House passage of the resolution of contempt the contemnor shall be assessed by the body an initial penalty of not more than $25,000 and total penalties of not more than $100,000. The amount of the ultimate penalty depends on timeliness of the contemnor’s compliance in providing information withheld. The initial penalty of not more than $25,000 may be increased by the committee chair by increments of not more than $25,000 after a one-time waiting period of 10 calendar days from the initial penalty until the $100,000 maximum is reached. The 10-day period shall only be observed after the first penalty. Upon expiration of the 10-day waiting period, if the chair deems the measure of compliance by the contemnor is insufficient to satisfy the legislative needs of the committee, the chair may, over a period of not more than fifteen days, at his or her discretion, increase the penalty by increments of not more than $25,000 until the maximum is reached. Upon expiration of the 10-day waiting period, the General Counsel is authorized to recover any accrued penalties, but only if the contemnor has failed to comply with the subpoena before the end of such 10-day period. Nothing in this clause shall be interpreted to limit the ability of the House to impose additional legislative punishments on the contemnor for noncompliance.

(2)

No appropriated funds, funds provided from any accounts in the Treasury, funds derived from collection of fees, or other Government funds shall be used to pay a monetary penalty imposed by the House under this clause.

(3)

No person, group, entity, organization, or corporation may make payments to, reimburse or offer remuneration of any kind to compensate a contemnor for, or assist a contemnor in paying, any portion of a monetary penalty imposed by the House. Nor shall any person, group, entity, organization, or corporation be permitted to pay any monetary penalties directly on behalf of a contemnor. The House may regard such actions to compensate, reimburse or provide remunerations or payments to a contemnor as an obstruction of its investigative and information gathering prerogatives and responsibilities and a contempt of the House.

(k)

Nothing in this clause shall be interpreted to diminish the inherent institutional self-protective authorities, methods and practices of the House for enforcing committee subpoenas, nor shall anything in this clause be interpreted to diminish the discretionary power of any committee to determine the acceptability of any constitutional or common law based privilege asserted to justify noncompliance with a congressional subpoena.

(l)

As used in this clause:

(1)

The term senior responsible official refers to an executive branch official with control or custody over the records or information or the subordinate officials or employees that are sought and who is a civil officer subject to removal from the office under Article II, section 4, of the Constitution, unless no such civil officer has control or custody over the records or information sought.

(2)

The term objections includes an appropriate privilege log, which shall describe with particularity the records or information withheld and the basis for withholding. The log shall be in such form as instructed by the committee or, in the absence of such instruction, shall be in the form that would be required by the rules and practice of the United States District for the District of Columbia. Failure to file an appropriate and timely privilege log shall be a basis for overruling or disregarding any objection.

Additional Subpoena Enforcement Power

8.
(a)

Whenever any committee or subcommittee makes a written request to any person for testimony or the production of such books, records, correspondence, memorandum, papers, documents, and electronic or digital files, data or information, in any form, including any electronic or digital files, data or information in any searchable formats in which they are available to or can be produced by that person, as the committee or subcommittee considers necessary, such person shall either comply with that request or file written objections within the time frame for response set forth in the request.

(b)

If such person files written objections within the timeframe for response, the committee or subcommittee shall seek to resolve these objections through negotiation and accommodation. If a resolution cannot be reached, staff shall so certify to the chair of the committee.

(c)

If such person fails to file objections or provide testimony or full production of responsive records and information within the timeframe for response, the chair of the committee may issue a subpoena to such person for any unproduced testimony or records or information as to which no objection was filed.

(d)

With respect to any portion of the written request for documents and testimony to which timely objection was made, a subpoena may be issued, following conclusion of the negotiations referred to in paragraph (b), by—

(1)

the chair, upon 48 hours notice to the ranking member, unless the ranking member objects during that period; or

(2)

a vote of the committee.

(e)

Any person to whom a subpoena is issued has the right to be accompanied only by non-government private counsel during all proceedings conducted pursuant to this clause. The committee in taking testimony will follow the procedures for taking depositions and resolving disputes over objections to questions that are prescribed by the House Rules Committee for such testimonial proceedings [see 165 Cong. Rec. H1216–17 (Jan. 25, 2019)].

(f)

If such person files written objections to a subpoena issued under paragraphs (c) or (d) within the timeframe for response, the committee may hold a hearing to consider these objections. The person shall personally attend this hearing, but the committee chair may grant an exception for good cause shown.

(g)

If the committee overrules some or all of the objections asserted, it may issue an order of compliance which states the grounds for rejection of the objections, the date for compliance, and an advisement of the legal consequences of a failure to comply. The person shall comply with such order within the timeframe for response.

(h)

On the failure of the person to comply with the order of compliance, the committee shall meet to assess whether the noncompliance rises to the level of a breach of the constitutional privilege and duty of the House to be fully informed in order to properly perform its legislative responsibilities without undue obstruction and thereby warrants condemnation and punishment. If so, the committee shall report a privileged resolution of contempt. The accompanying report shall include a detailed history and nature of the controversy and attempts at accommodation; the legal issues raised; the legislative need for the information sought; the legal and practical reasons for the determination that the objections were rejected; and the recommended monetary penalties.

(i)

If the committee reports a resolution of contempt, it shall be treated as a rule IX question of privilege of the House requiring precedence over all other questions until resolved and promptly scheduled for floor consideration. The chair of the committee shall present the case for passage of the resolution. At the conclusion of the allotted period for presentations, questions and debate, a vote on passage of the resolution will be taken. If the vote is for passage, a second vote will be taken on the committee’s recommendation for imposition of a monetary penalty. A proffer of an amendment to alter the recommended penalty is in order.

(j)
(1)

Upon House passage of the resolution of contempt the contemnor shall be assessed by the body an initial penalty of not more than $25,000 and total penalties of not more than $100,000. The amount of the ultimate penalty depends on timeliness of the contemnor’s compliance in providing information withheld. The initial penalty of not more than $25,000 may be increased by the committee chair by increments of not more than $25,000 after a one-time waiting period of 10 calendar days from the initial penalty until the $100,000 maximum is reached. The 10-day period shall only be observed after the first penalty. Upon expiration of the 10-day waiting period, if the chair deems the measure of compliance by the contemnor is insufficient to satisfy the legislative needs of the committee, the chair may, over a period of not more than fifteen days, at his or her discretion, increase the penalty by increments of not more than $25,000 until the maximum is reached. Upon expiration of the 10-day waiting period, the General Counsel is authorized to recover any accrued penalties, but only if the contemnor has failed to comply with the subpoena before the end of such 10-day period. Nothing in this clause shall be interpreted to limit the ability of the House to impose additional legislative punishments on the contemnor for noncompliance.

(2)

No appropriated funds, funds provided from any accounts in the Treasury, funds derived from collection of fees, or other Government funds shall be used to pay a monetary penalty imposed by the House under this clause.

(3)

No person, group, entity, organization, or corporation may make payments to, reimburse or offer remuneration of any kind to compensate a contemnor for, or assist a contemnor in paying, any portion of a monetary penalty imposed by the House. Nor shall any person, group, entity, organization, or corporation be permitted to pay any monetary penalties directly on behalf of a contemnor. The House may regard such actions to compensate, reimburse or provide remunerations or payments to a contemnor as an obstruction of its investigative and information gathering prerogatives and responsibilities and a contempt of the House.

(k)

Nothing in this clause shall be interpreted to diminish the inherent institutional self-protective authorities, methods and practices of the House for enforcing committee subpoenas, nor shall anything in this clause be interpreted to diminish the discretionary power of any committee to determine the acceptability of any constitutional or common law based privilege asserted to justify noncompliance with a congressional subpoena.

(l)

As used in this clause:

(1)

The term person includes an individual, partnership, corporation, association, or public or private organization other than a department or agency of the Government.

(2)

The term objections has meaning given to such term in section 7(l).

.