How Federal Subpoenas Are Used in Congressional Investigations

How Federal Subpoenas Are Used in Congressional Investigations

Congress uses its investigative powers to oversee the executive branch and uncover issues of public interest. An important tool for compelling information during congressional inquiries is the federal subpoena.

What Is a Congressional Subpoena?

A congressional subpoena is a legally enforceable demand for documents, testimony, or other evidence from an individual or organization. Subpoenas are signed and issued by committee or subcommittee chairs. Failure to comply may lead to charges of contempt of Congress.

Congress’ power to investigate and issue subpoenas comes from Article I of the Constitution. The Supreme Court has upheld wide latitude for congressional inquiries, as long as the information sought is “intended to aid the legislative function” [1].

Types of Congressional Subpoenas

There are two main types of congressional subpoenas:

• A subpoena ad testificandum compels an individual to testify at a congressional hearing or deposition.
• A subpoena duces tecum demands that an individual or organization produce documents, records, or other tangible evidence.

Subpoenas can also seek both testimony and documents. Additionally, committees may issue subpoenas for phone records, electronic communications, and financial records.

Congressional Subpoena Process

The process for issuing a congressional subpoena includes:

1. The committee votes to authorize subpoenas for a particular investigation.
2. The committee chair signs and issues subpoenas to specific individuals or entities.
3. The Sergeant at Arms serves the subpoena to the recipient.
4. The deadline for compliance passes (usually 2-3 weeks).
5. If the subpoena is ignored, the committee can vote to hold the individual in contempt.

Subpoena recipients can negotiate with the committee for extensions, limited compliance, or dropping the subpoena altogether.

Congressional Subpoenas of the Executive Branch

Conflicts often arise when Congress subpoenas executive branch information, which the president may resist to protect confidentiality. However, courts have generally upheld congressional investigative authority even when it clashes with executive privilege [2].

For example, committees subpoenaed Nixon administration officials and documents during the Watergate investigation. The Supreme Court rejected Nixon’s executive privilege claim in U.S. v. Nixon, forcing him to turn over incriminating tapes.

Congressional Subpoenas in Criminal Investigations

Congressional committees can use subpoenas to investigate potential criminal activity and share evidence with law enforcement. For example:

• The Senate Permanent Subcommittee on Investigations subpoenaed records during its probe of Enron’s collapse, which led to prosecutions of top executives.
• The House Energy and Commerce Committee subpoenaed documents from drug companies during an inquiry into opioid marketing and distribution practices.

However, congressional subpoena power has limits when intruding into law enforcement investigations. Federal agencies can resist disclosing sensitive information about ongoing cases [3].

Challenging and Enforcing Congressional Subpoenas

Those wishing to challenge a congressional subpoena can file a lawsuit arguing the subpoena is invalid, unreasonable, or violates constitutional rights. But courts have generally been reluctant to interfere with congressional investigations.

If a subpoena recipient refuses to comply, Congress has three main options to enforce the subpoena:

1. Hold the individual in contempt of Congress, and refer them to the Department of Justice for criminal contempt prosecution.
2. Initiate a civil lawsuit asking a federal court to order compliance with the subpoena.
3. Deduction of wages for federal employees who refuse to comply.

However, these enforcement measures can be slow, difficult, and uncertain to yield results. As a result, many subpoena disputes end up being resolved through political negotiations instead of formal actions.

Key Takeaways

• Congressional subpoenas are compulsory orders for testimony or evidence related to legislative investigations.
• Committees issue subpoenas, which must be properly served to the recipients.
• Ignoring a congressional subpoena may lead to contempt charges or enforcement lawsuits.
• Subpoenas remain a vital tool for congressional oversight, despite frequent clashes with the executive branch and private parties.

References

[1] Congressional Investigations: Subpoenas and Contempt Power, Congressional Research Service, 2003

[2] Congressional Subpoenas of Department of Justice Investigative Files, Office of Legal Counsel, 1984

[3] Administrative Subpoenas in Criminal Investigations: A Brief Legal Analysis, Congressional Research Service, 2012