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It’s been a near-constant headline in recent weeks.
Congress subpoenas a member of the Trump administration seeking documents and information not available to the public. The subpoenaed official refuses, often claiming executive privilege. Congress threatens a contempt action, going so far in the case of Attorney General William Barr as to hold a committee contempt vote.
Though this back-and-forth might seem like a telltale sign of the political tension dividing Washington, it’s historically not that uncommon. Under the Obama administration, for example, Attorney General Eric Holder was also subjected to a congressional contempt vote, while Richard Nixon took the concept of executive privilege all the way to the United States Supreme Court.
Lawyers are no doubt familiar with how subpoenas work in a court setting. Subpoenas are the bread and butter of litigation, after all. Because of that, subpoenaed parties tend to comply with little to no resistance.
But it’s a different situation in Congress, where the neutrality of the judiciary doesn’t exist. Instead, the politically charged executive and legislative branches go head-to-head over oversight power and executive privilege.
Though that fight might end up in court, Dan Meyer, a Washington, D.C. attorney with Tully Rinckey PLLC, said the tension between Congress and the White House doesn’t really involve the law. Instead, it’s a political and constitutional battle over when one co-equal branch of government can force another to follow orders.
In both state and federal courts, Hoosier attorneys say it’s rare for a subpoena fight to get serious. A judge might have to issue an order to compel compliance, but at that point, the resisting party usually complies.
Attorneys Rich Cook and Kevin Schiferl each can recall only one instance in their practices where a party defied a subpoena beyond the court order, prompting writs of body attachment. Instead, it’s more common for parties to negotiate the scope and terms of a subpoena to resolve any objection, federal practitioner John Maley said.
But in Congress, Meyer — whose federal employment law and national security work has involved him in congressional investigations — said many subpoenaed individuals will claim a privilege they don’t have.
Arguably the most commonly asserted privilege against a congressional subpoena is executive privilege, protecting the confidentiality of communications with the president. However, many of the people subpoenaed by the federal legislature, such as federal employees and advisers, aren’t entitled to that privilege, Meyer said.
“Federal bureaucrats will try it,” he said.
At one point in history, those bureaucrats might have been able to successfully claim executive privilege. But that mindset began to change with the 1974 ruling in U.S. v. Nixon, which rejected the argument that executive privilege could be entirely immune from judicial review. Instead, the Supreme Court in an 8-0 decision ruled that while executive privilege does exist in military or diplomatic matters, it does not apply to “the fundamental demands of due process of law in the fair administration of justice.”
But executive privilege isn’t the only argument featured in defiance of congressional subpoenas. Cook, a former assistant U.S. attorney, also pointed to deliberative process privilege, which allows executive agencies to keep private their internal policies.
The deliberative process privilege featured heavily in the contempt actions against Obama AG Holder. Federal courts ruled partially for and against Holder’s Department of Justice under that privilege in relation to the congressional investigation of Operation Fast and Furious, a gun trafficking investigation along the southern border.
Attorney-client and work-product privileges might also be the subject of a subpoena fight, Cook said, but in the judicial branch, subpoenas can generally only be ignored for a lack of jurisdiction. Schiferl, a Frost Brown Todd attorney, gave the example of a Terre Haute case leading to a subpoena being issued to a witness living across the state line in Illinois.
In that case, the witness could refuse the subpoena unless and until an Illinois court domesticated the order. In a similar vein, Schiferl said he has advised clients receiving out-of-state subpoenas of their right to ignore the order.
But what happens if a subpoena is ignored without a legitimate exception? In state and federal court, the answer is generally straightforward: contempt.
Usually, that’s enough to force compliance, said Maley of Barnes & Thornburg. The threat of fines and further court action — as well as the understanding of the weight of a subpoena — compel witnesses to cooperate.
But the answer is less clear at the congressional level. Congress has inherent contempt powers, Meyer said, but absent the reopening of the congressional jail, that power is largely dormant.
Instead, lawmakers can turn to civil or criminal contempt proceedings. Civil proceedings take the matter directly to a federal court for enforcement, while criminal proceedings are first referred to the U.S. attorney.
According to a 2017 report from the Congressional Research Service reviewing Congress’ contempt power, the Department of Justice will often decline to bring criminal contempt charges against a member of the executive branch. That was the situation with the Holder contempt proceedings that began in 2012.
Instead, as was the case with Holder, the matter is sent to the courts for a civil proceeding. However, Meyer said the legislative and executive branches often will negotiate to avoid a court battle, as is beginning to happen now in the fight over the report of special counsel Robert Mueller.
But if a contempt action proceeds, it doesn’t automatically force compliance, Meyer said. Instead, a committee must vote to hold the party in contempt, as has been done against Attorney General Barr, and then the matter must proceed to a vote of the full chamber.
“It’s a first step,” Meyer said of a committee vote, “but nothing automatically flows from that.”
The fight over subpoena compliance in D.C. is, in many ways, a power struggle, Meyer said. The Constitution creates a strong legislative branch, he said, while history has created a strong executive.
The framers, Meyer said, intended for the power of the people to be vested in Congress, but in today’s world, the strength of the American people is often symbolized by the strength of the president. That dichotomy is the undercurrent of the ongoing subpoena fight, he said.
At a congressional level, an ignored subpoena might hamper an oversight investigation or keep information that Congress would like to have away from its members. But in a court setting, though rare, noncompliance can spell the end of a case if the person in question holds key information.
But generally, “all this works relatively smoothly in court matters,” Maley said, agreeing with Cook and Schiferl that full noncompliance is rare in court. “Fortunately politics do not enter the fray as in the legislative setting.”