Order Code RL34114
Congress’s Contempt Power: A Sketch
August 1, 2007
Morton Rosenberg
Specialist in American Public Law
American Law Division
Todd B. Tatelman
Legislative Attorney
American Law Division

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Congress’s Contempt Power: A Sketch
Summary
Congress’s contempt power is the means by which Congress responds to certain
acts that in its view obstruct the legislative process. Contempt may be used either to
coerce compliance (inherent contempt), punish the contemnor (criminal contempt),
and/or to remove the obstruction (civil contempt). Although arguably any action that
directly obstructs the effort of Congress to exercise its constitutional powers may
constitute a contempt, in the last seventy years the contempt power (primarily
through the criminal contempt process) has generally been employed only in
instances of refusals of witnesses to appear before committees, to respond to
questions, or to produce documents.
This report outlines the source of the contempt power, reviews major
developments in the case law, and analyzes the procedures associated with each of
the three different types of contempt proceedings. A more fully developed and
detailed version, complete with sources and references, can be found in CRS Report
RL34097, Congress’s Contempt Power: Law, History, Practice, and Procedure, by
Morton Rosenberg and Todd B. Tatelman.

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Contents
Congress’s Power to Investigate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Early History of Congressional Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Inherent Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statutory Criminal Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Position of the Department of Justice on the Use of Inherent and/or
Criminal Contempt of Congress Against the Executive Branch . . . . . . 9
Civil Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Civil Contempt in the Senate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Civil Contempt in the House of Representatives . . . . . . . . . . . . . . . . . 15

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Congress’s Contempt Power: A Sketch
Congress’s contempt power is the means by which Congress responds to certain
acts that in its view obstruct the legislative process. Contempt may be used either to
coerce compliance (inherent contempt), punish the contemnor (criminal contempt),
and/or to remove the obstruction (civil contempt). Although arguably any action that
directly obstructs the effort of Congress to exercise its constitutional powers may
constitute a contempt, in the last seventy years the contempt power (primarily
through the criminal contempt process) has generally been employed only in
instances of refusals of witnesses to appear before committees, to respond to
questions, or to produce documents.
This report outlines the source of the contempt power, reviews major
developments in the case law, and analyzes the procedures associated with each of
the three different types of contempt proceedings. A more fully developed and
detailed version, complete with sources and references, can be found at RL34097,
Congress’s Contempt Power: Law, History, Practice, and Procedure, by Morton
Rosenberg and Todd B. Tatelman.
Congress’s Power to Investigate
The power of Congress to punish for contempt is inextricably related to the
power of Congress to investigate. Generally speaking, Congress’s authority to
investigate and obtain information, including but not limited to confidential
information, is extremely broad. While there is no express provision of the
Constitution or specific statute authorizing the conduct of congressional oversight or
investigations, the Supreme Court has firmly established that such power is essential
to the legislative function as to be implied from the general vesting of legislative
powers in Congress. The broad legislative authority to seek and enforce
informational demands was unequivocally established in two Supreme Court rulings
arising out of the 1920’s Teapot Dome scandal.
In McGrain v. Daugherty,1 which arose out of the exercise of the Senate’s
inherent contempt power, the Supreme Court described the power of inquiry, with
the accompanying process to enforce it, as “an essential and appropriate auxiliary to
the legislative function.” In Sinclair v. United States,2 a different witness at the
congressional hearings refused to provide answers, and was prosecuted for contempt
of Congress. The witness had noted that a lawsuit had been commenced between the
government and the Mammoth Oil Company, and declared, “I shall reserve any
evidence I may be able to give for those courts ... and shall respectfully decline to
answer any questions propounded by your committee.” The Supreme Court upheld
1 273 U.S. 135, 174-75 (1927).
2 279 U.S. 263 (1929).

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the witness’s conviction for contempt of Congress. The Court considered and
rejected in unequivocal terms the witness’s contention that the pendency of lawsuits
provided an excuse for withholding information. Neither the laws directing that such
lawsuits be instituted, nor the lawsuits themselves, “operated to divest the Senate, or
the committee, of power further to investigate the actual administration of the land
laws.”
Subsequent Supreme Court rulings have consistently reiterated and reinforced
the breadth of Congress’s investigative authority. For example, in Eastland v.
United States Servicemen’s Fund,3 the Court explained that “[t]he scope of
[Congress’s] power of inquiry ... is as penetrating and far-reaching as the potential
power to enact and appropriate under the Constitution.” In addition, the Court in
Watkins v. United States,4 described the breadth of the power of inquiry. According
to the Court, Congress’s power “to conduct investigations is inherent in the
legislative process. That power is broad. It encompasses inquiries concerning the
administration of existing laws as well as proposed or possibly needed statutes.” The
Court did not limit the power of congressional inquiry to cases of “wrongdoing.” It
emphasized, however, that Congress’s investigative power is at its peak when the
subject is alleged waste, fraud, abuse, or maladministration within a government
department. The investigative power, the Court stated, “comprehends probes into
departments of the Federal Government to expose corruption, inefficiency, or waste.”
“[T]he first Congresses,” held “inquiries dealing with suspected corruption or
mismanagement by government officials” and subsequently, in a series of decisions,
“[t]he Court recognized the danger to effective and honest conduct of the
Government if the legislative power to probe corruption in the Executive Branch
were unduly hampered.” Accordingly, the Court now clearly recognizes “the power
of the Congress to inquire into and publicize corruption, maladministration, or
inefficiencies in the agencies of Government.”
The inherent contempt power is not specified in a statute or constitutional
provision, but has been deemed implicit in the Constitution’s grant to Congress of
all legislative powers. In an inherent contempt proceeding, the offender is tried at the
bar of the House or Senate and can be held in custody until such time as the
contemnor provides the testimony or documents sought, or until the end of the
session. Inherent contempt was most often used as a means of coercion, not
punishment. A statutory criminal contempt provision was first enacted by Congress
in 1857, in part because of the inadequacies of proceedings under the inherent power.
In cases of criminal contempt, the offender is cited by the subcommittee, the
committee, and the full House or Senate, with subsequent indictment by a grand jury
and prosecution by the U.S. Attorney. Criminal contempt, unlike inherent contempt,
is intended as a means of punishing the contemnor for non-compliance rather than
to obtain the information sought. A statutory civil contempt procedure, applicable
only to the Senate, was enacted in 1978. Under that procedure, a witness, who
refuses to testify before a Senate committee or provide documents sought by the
committee can, after being served with a court order, be held in contempt of court
3 421 U.S. 491, 504, n. 15 (1975) (quoting Barenblatt v. United States, 360 U.S. 109, 111
(1960)).
4 354 U.S. 178, 187 (1957).

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and incarcerated until he agrees to testify. Moreover, the House and Senate have
authorized standing or special committees to seek civil enforcement of subpoenas.
Early History of Congressional Contempt
While the contempt power was exercised both by the English Parliament and by
the American colonial assemblies, Congress’s first assertion of its contempt authority
occurred in 1795, shortly after the ratification of the Constitution. At the time, three
Members of the House of Representatives reported that they had been offered what
they interpreted to be a bribe by men named Robert Randall and Charles Whitney.
The House of Representatives interpreted these allegations as sufficient evidence of
an attempt to corrupt its proceedings and reported a resolution ordering their arrest
and detention by the Sergeant-at-Arms, pending further action by the House. The
matter was then referred to a special Committee on Privileges which reported out a
resolution recommending that formal proceedings be instituted against Messrs.
Randall and Whitney at the bar of the House. In addition, the resolution provided
that the accused be questioned by written interrogatories submitted by the Speaker
of the House with both the questions and the answers entered into the House minutes.
The resolution also provided that individual Members could submit written questions
to the accused.5
Anderson v. Dunn. In 1821, the Supreme Court was faced with interpreting
the scope of Congress’s contempt power.6 The case arose when Representative Louis
Williams of North Carolina introduced a letter before the House from a John
Anderson, which Representative Williams interpreted as an attempt to bribe him.
Following its 1795 precedent, the House adopted a resolution ordering the Sergeant-
at-Arms to arrest Mr. Anderson bring him before the bar of the House. Upon Mr.
Anderson’s arrest, however, a debate erupted on the floor of the House as the motion
for referral to the Committee on Privileges to adopt procedures was considered.
Several Members objected to the House’s assertion of an inherent contempt power.
They argued, as the minority Senators had in Mr. Duane’s contempt, that neither the
Constitution nor the general laws afforded the Congress such an inherent power to
punish for actions that occurred elsewhere. Relying on the 1795 precedent and
examples from the British Parliament and state legislatures, the Committee was
formed and it adopted a resolution requiring Mr. Anderson to be brought before the
bar of the House for questioning by the Speaker. At his appearance, Mr. Anderson,
like Mr. Randall and Mr. Whitney before him, was afforded counsel and permitted
to present the testimony of eleven witnesses. Ultimately, Mr. Anderson was found
in contempt of Congress and was ordered to be reprimanded by the Speaker for the
“outrage he committed” and discharged into the custody of the Sergeant-at-Arms.
Mr. Anderson subsequently filed suit against Mr. Thomas Dunn, the Sergeant-
at-Arms of the House, alleging assault, battery, and false imprisonment. Mr. Dunn
responded by asserting that he was carrying out the lawful orders of the House of
5 See CRS Report RL34097, Congress's Contempt Power: Law, History, Practice, and
Procedure, by Morton Rosenberg and Todd B. Tatelman, 4-7 (providing further details,
examples, citations, and explanations) [hereinafter CRS Contempt Report].
6 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).

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Representatives. The Supreme Court heard the case in February of 1821 and
concluded that the Congress possessed the inherent authority to punish for contempt
and dismissed the charges against Mr. Dunn. The Court noted that while the
Constitution does not explicitly grant either House of Congress the authority to
punish for contempt, except in situations involving its own Members, such a power
is necessary for Congress to protect itself. The Court asserted that if the House of
Representatives did not possess the power of contempt it would “be exposed to every
indignity and interruption, that rudeness, caprice, or even conspiracy, may meditate
against it.”
The Court’s decision in Anderson does not define the specific actions that would
constitute contempt; rather, it adopted a deferential posture, noting that:
it is only necessary to observe that there is nothing on the facts of the record from
which it can appear on what evidence the warrant was issued and we do not
presume that the House of Representatives would have issued it without fully
establishing the facts charged on the individual.7
The Anderson decision indicates that Congress’s contempt power is centered on
those actions committed in its presence that obstruct its deliberative proceedings.
The Court noted that Congress could supplement this power to punish for contempt
committed in its presence by enacting a statute, which would prohibit “all other
insults which there is any necessity for providing.”
The Court in Anderson also endorsed the existing parliamentary practice that the
contemnor could not be held beyond the end of the legislative session. According to
the Court,
[s]ince the existence of the power that imprisons is indispensable to its
continuance, and although the legislative power continues perpetual, the
legislative body ceases to exist, on the moment of its adjournment or periodical
dissolution. It follows, that imprisonment must terminate with that adjournment.8
Kilbourn v. Thompson.9 In 1876, the House established a select committee
to investigate the collapse of Jay Cooke & Company, a real estate pool in which the
United States had suffered losses as a creditor. The committee was, by resolution,
given the power to subpoena both persons and records pursuant to its investigation.
Acting under its authority, the committee issued a subpoena duces tecum to one
Hallet Kilbourn, the manager of the real estate pool. When Mr. Kilbourn refused to
produce certain papers or answer questions before the committee he was arrested and
tried under the House’s inherent contempt power. The House adjudged Mr. Kilbourn
in contempt and ordered him detained by the Sergeant-at-Arms until he purged
himself of contempt by releasing the requested documents and answering the
committee’s questions.
7 Id. at 234.
8 Id. at 231.
9 103 U.S. 168 (1881).

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Mr. Kilbourn filed a suit against the Speaker, the members of the committee,
and the Sergeant-at-Arms for false arrest. The lower court held in favor of the
defendant dismissing the suit. Mr. Kilbourn appealed, and the Supreme Court
reversed, holding that Congress did not have a general power to punish for contempt.
While the Court appeared to recognize that Congress possessed an inherent contempt
power, it declined to follow Anderson v. Dunn’s expansive view of Congress’s
authority.
The Court held that the investigation into the real estate pool was not undertaken
by the committee pursuant to one of Congress’s constitutional responsibilities, but
rather was an attempt to pry into the personal finances of private individuals, a
subject that could not conceivably result in the enactment of valid legislation.
According to the Court, because Congress was acting beyond its constitutional
responsibilities, Mr. Kilbourn was not legally required to answer the questions asked
of him. Finally, in dicta, the Court indicated that the contempt power might be
upheld where Congress was acting pursuant to certain specific constitutional
prerogatives, such as disciplining its Members, judging their elections, or conducting
impeachment proceedings.
Although the precedential value of Kilbourn has been significantly limited by
subsequent case law, the case continues to be cited for the proposition that the House
has no power to probe into private affairs, such as the personal finances of an
individual, on which legislation could not be enacted. The doubts raised by Kilbourn
about the scope of Congress’s contempt power have essentially been removed by
later cases sanctioning the use of the power in investigations conducted pursuant to
Congress’s authority to discipline its Members, to judge the elections of its Members,
and, most importantly, to probe the business and conduct of individuals to the extent
that the matters are subject to congressional regulation. For example, in McGrain v.
Daugherty, which involved a Senate investigation into the claimed failure of the
Attorney General to prosecute certain antitrust violations, a subpoena was issued to
the brother of the Attorney General, Mallie Daugherty, the president of an Ohio bank.
When Daugherty refused to comply, the Senate exercised its inherent contempt
power and ordered its Sergeant-at-Arms to take him into custody. The grant of a writ
of habeas corpus was appealed to the Supreme Court. The Court’s opinion in the
case considered the investigatory and contempt powers of Congress to be implicit in
the grant of legislative power. The Court distinguished Kilbourn, which was an
investigation into purely personal affairs, from the instant case, which was a probe
of the operation of the Department of Justice. According to the Court, the subject
was plainly “one on which legislation could be had and would be materially aided by
information the investigation was calculated to elicit.”10 The Court in McGrain was
willing to presume that the investigation had been undertaken to assist the committee
in its legislative efforts.
Inherent Contempt
Congress’s inherent contempt power is not specifically granted by the
Constitution, but is considered necessary to investigate and legislate effectively. The
10 Id. at 177.

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validity of the inherent contempt power was upheld in the early Supreme Court
decision in Anderson v. Dunn and reiterated in McGrain v. Daugherty. Under the
inherent contempt power the individual is brought before the House or Senate by the
Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned in the Capitol
jail. The purpose of the imprisonment or other sanction may be either punitive11 or
coercive.12 Thus, the witness can be imprisoned for a specified period of time as
punishment, or for an indefinite period (but not, at least by the House, beyond the end
of a session of the Congress) until he agrees to comply.
When a witness is cited for contempt under the inherent contempt process,
prompt judicial review appears to be available by means of a petition for a writ of
habeas corpus. In such a habeas proceeding, the issues decided by the court might
be limited to (a) whether the House or Senate acted in a manner within its
jurisdiction, and (b) whether the contempt proceedings complied with minimum due
process standards. While Congress would not have to afford a contemnor the whole
panoply of procedural rights available to a defendant in criminal proceedings, notice
and an opportunity to be heard would have to be granted. Also, some of the
requirements imposed by the courts under the statutory criminal contempt procedure
(e.g., pertinency of the question asked to the committee’s investigation) might be
mandated by the due process clause in the case of inherent contempt proceedings.
Although many of the inherent contempt precedents have involved incarceration
of the contemnor, there may be an argument for the imposition of monetary fines as
an alternative. Such a fine would potentially have the advantage of avoiding a court
proceeding on habeas corpus grounds, as the contemnor would never be jailed or
detained. Drawing on the analogous authority that courts have to inherently impose
fines for contemptuous behavior, it appears possible to argue that Congress, in its
exercise of a similar inherent function could impose fines as opposed to
incarceration. Additional support for this argument appears to be contained in dicta
from the 1821 Supreme Court decision in Anderson v. Dunn. In addition, Kilbourn
v. Thompson, suggested that in certain cases where the Congress had authority to
investigate, it may compel testimony in the same manner and by use of the same
means as a court of justice in like cases.
In comparison with the other types of contempt proceedings, inherent contempt
has the distinction of not requiring the cooperation or assistance of either the
executive or judicial branches. The House or Senate can, on its own, conduct
summary proceedings and cite the offender for contempt. Furthermore, although the
contemnor can seek judicial review by means of a petition for a writ of habeas
corpus, the scope of such review may be relatively limited, compared to the plenary
review accorded by the courts in cases of conviction under the criminal contempt
statute.
There are also certain limitations on the inherent contempt process. Although
the contemnor can be incarcerated until he agrees to comply with the subpoena,
imprisonment may not extend beyond the end of the current session of Congress.
11 Jurney v. MacCracken, 294 U.S. 125, 147 (1935).
12 McGrain v. Daugherty, 273 U.S. at 161.

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Moreover, inherent contempt has been described as “unseemly,” cumbersome,
time-consuming, and relatively ineffective, especially for a modern Congress with
a heavy legislative workload that would be interrupted by a trial at the bar. Because
of these drawbacks, the inherent contempt process has not been used by either body
since 1934. Proceedings under the inherent contempt power might be facilitated,
however, if the initial fact-finding and examination of witnesses were to be held
before a special committee — which could be directed to submit findings and
recommendations to the full body — with only the final decision as to guilt being
made by the full House or Senate. Although generally the proceedings in inherent
contempt cases appear to have been conducted at the bar of the House of Congress
involved, in at least a few instances proceedings were conducted initially or primarily
before a committee, but with the final decision as to whether to hold the person in
contempt being made by the full body. Past practice and the Supreme Court’s 1993
decision in Nixon v. United States,13 upholding the Senate’s ability to conduct
impeachment trials in committee, appears to provide support for the utilization of
such committees to avoid lengthy floor proceedings.14
Statutory Criminal Contempt
Between 1795 and 1857, 14 inherent contempt actions were initiated by the
House and Senate, eight of which can be considered successful in that the contemnor
was meted out punishment, agreed to testify or produce documents. Such inherent
contempt proceedings, however, involved a trial at the bar of the chamber concerned
and, therefore, were seen by some as time-consuming, cumbersome, and in some
instances ineffective — because punishment could not be extended beyond a House’s
adjournment date. In 1857, a statutory criminal contempt procedure was enacted,
largely as a result of a particular proceeding brought in the House of Representatives
that year. The statute provides for judicial trial of the contemnor by a United States
Attorney rather than a trial at the bar of the House or Senate. It is clear from the floor
debates and the subsequent practice of both Houses that the legislation was intended
as an alternative to the inherent contempt procedure, not as a substitute for it. A
criminal contempt referral was made in the case of John W. Wolcott in 1858, but in
the ensuing two decades after its enactment most contempt proceedings continued
to be handled at the bar of the House, rather than by the criminal contempt method,
apparently because Members felt that they would not be able to obtain the desired
information from the witness after the criminal proceedings had been instituted.
With only minor amendments, those statutory provisions are codified today as 2
U.S.C. §§ 192 and 194, which state:
Every person who having been summoned as a witness by the authority of either
House of Congress to give testimony or to produce papers upon any matter under
inquiry before either House, or any joint committee established by a joint or
concurrent resolution of the two Houses of Congress, or any committee of either
House of Congress, willfully makes default, or who, having appeared, refuses to
answer any question pertinent to the question under inquiry, shall be deemed
guilty of a misdemeanor, punishable by a fine of not more than [$100,000] nor
13 506 U.S. 224 (1993).
14 See CRS Contempt Report, supra note 8 at 12-20.

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less than $100 and imprisonment in a common jail for not less than one month
nor more than twelve months.15
Whenever a witness summoned as mentioned in section 192 of this title fails to
appear to testify or fails to produce any books, papers, records, or documents, as
required, or whenever any witness so summoned refuses to answer any question
pertinent to the subject under inquiry before either House, or any joint committee
established by a joint or concurrent resolution of the two Houses of Congress, or
any committee or subcommittee of either House of Congress, and the fact of such
failure or failures is reported to either House while Congress is in session or
when Congress is not in session, a statement of fact constituting such failure is
reported to and filed with the President of the Senate or the Speaker of the
House, it shall be the duty of the said President of the Senate or Speaker of the
House, as the case may be, to certify, and he shall so certify, the statement of
facts aforesaid under the seal of the Senate or House, as the case may be, to the
appropriate United States attorney, whose duty it shall be to bring the matter
before the grand jury for its action.16
The legislative debate over the criminal contempt statute reveals that it was
prompted by the obstruction of a House select committee’s investigation into
allegations of misconduct that had been made against several Members of the House
of Representatives. According to reports, the investigation was hindered by the
refusal of a newspaper reporter, James W. Simonton, to provide answers to certain
questions posed by the committee. The select committee responded by reporting a
resolution citing Mr. Simonton for contempt, as well as introducing a bill that was
intended “to more effectually ... enforce the attendance of witnesses on the summons
of either House of Congress, and to compel them to discover testimony.” It appears
that there were no printed House or Senate committee reports on the measure, though
it was considered in the House by the select committee and in the Senate by the
Judiciary Committee.
Under 2 U.S.C. § 192, a person who has been “summoned as a witness” by
either House or a committee thereof to testify or to produce documents and who fails
to do so, or who appears but refuses to respond to questions, is guilty of a
misdemeanor, punishable by a fine of up to $100,000 and imprisonment for up to one
year. 2 U.S.C. § 194 establishes the procedure to be followed by the House or Senate
if it chooses to refer a recalcitrant witness to the courts for criminal prosecution
rather than try him at the bar of the House or Senate. Under the procedure outlined
in section 194, “the following steps precede judicial proceedings under [the statute]:
(1) approval by committee; (2) calling up and reading the committee report on the
floor; (3) either (if Congress is in session) House approval of a resolution authorizing
the Speaker to certify the report to the U.S. Attorney for prosecution, or (if Congress
is not in session) an independent determination by the Speaker to certify the report;
[and] (4) certification by the Speaker to the appropriate U.S. Attorney for
prosecution.
15 2 U.S.C. § 192 (2000). As a result of congressional classification of offenses, the penalty
for contempt of Congress is a Class A misdemeanor; thus, the $1,000 maximum fine under
§ 192 has been increased to $100,000. See 18 U.S.C. §§ 3559, 3571 (2000).
16 2 U.S.C. § 194 (2000).

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The criminal contempt statute and corresponding procedure are punitive in
nature. It is used when the House or Senate wants to punish a recalcitrant witness
and, by doing so, to deter others from similar contumacious conduct. The criminal
sanction is not coercive because the witness generally will not be able to purge
himself by testifying or supplying subpoenaed documents after he has been voted in
contempt by the committee and the House or Senate. Consequently, once a witness
has been voted in contempt, he lacks an incentive for cooperating with the
committee. However, although the courts have rejected arguments that defendants
had purged themselves, in a few instances the House has certified to the U.S.
Attorney that further proceedings concerning contempts were not necessary where
compliance with subpoenas occurred after contempt citations had been voted but
before referral of the cases to grand juries.
Under the statute, after a contempt has been certified by the President of the
Senate or the Speaker, it is the “duty” of the United States Attorney “to bring the
matter before the grand jury for its action.” It remains unclear whether the “duty” of
the U.S. Attorney to present the contempt to the grand jury is mandatory or
discretionary.17
The Position of the Department of Justice on the Use of
Inherent and/or Criminal Contempt of Congress Against the
Executive Branch
The Department of Justice (DOJ) has taken the position that Congress cannot,
as a matter of statutory or constitutional law, invoke either its inherent contempt
authority or the criminal contempt of Congress procedures against an executive
branch official acting on instructions by the President to assert executive privilege
in response to a congressional subpoena. This view is most fully articulated in two
opinions by the DOJ’s Office of Legal Counsel (OLC) from the mid-1980s,18 and has
been the basis of several recent claims with respect to pending congressional
investigations.
The position of the DOJ was prompted by the outcome of an investigation by
two House committees into the Environmental Protection Agency’s (EPA)
implementation of provisions of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (Superfund). Subpoenas were issued by
both committees seeking documents contained in EPA’s litigation files. At the
direction of President Reagan, EPA Administrator Burford claimed executive
privilege over the documents and refused to disclose them to the committees on the
grounds that they were “enforcement sensitive.” A subcommittee and ultimately the
full House Committee on Public Works and Transportation, approved a criminal
17 See CRS Contempt Report, supra note 8 at 20-27.
18 See Prosecution for the Contempt of Congress of an Executive Branch Official Who Has
Asserted a Claim of Executive Privilege, 8 U.S. Op. Off. Legal Counsel 101 (1984)
[hereinafter Olson Memo]; see also Response to Congressional Requests for Information
Regarding Decisions Made Under the Independent Counsel Act, 10 U.S. Op. Off. Legal
Counsel 68 (1986) [hereinafter Cooper Memo].

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contempt of Congress citation and forwarded it to the full House for its consideration.
On December 16, 1982, the full House of Representatives voted, 259-105, to adopt
the contempt citation. Before the Speaker of the House could transmit the citation
to the United States Attorney for the District of Columbia for presentation to a grand
jury, the DOJ filed a lawsuit seeking to enjoin the transmission of the citation and to
have the House’s action declared unconstitutional as an intrusion into the President’s
authority to withhold such information from the Congress. According to the DOJ,
the House’s action imposed an “unwarranted burden on executive privilege” and
“interferes with the executive’s ability to carry out the laws.”
The District Court for the District of Columbia dismissed the DOJ’s suit on the
grounds that judicial intervention in executive-legislative disputes “should be delayed
until all possibilities for settlement have been exhausted.”19 In addition, the court
noted that ultimate judicial resolution of the validity of the President’s claim of
executive privilege could only occur during the course of the trial for contempt of
Congress. The DOJ did not appeal the court’s ruling, opting instead to resume
negotiations, which resulted in full disclosure and release of the all the subpoenaed
documents to the Congress. Throughout the litigation and subsequent negotiations,
however, the U.S. Attorney refused to present the contempt citation to a grand jury
for its consideration on the grounds that, notwithstanding the mandatory language of
the criminal contempt statute, he had discretion with respect to whether to make the
presentation. The issue was never resolved because the ultimate settlement agreement
included a withdrawal of the House’s contempt citation.
In its initial 1984 opinion, OLC revisited the statutory, legal, and constitutional
issues that were not judicially resolved by the Superfund dispute. The opinion
concluded that, as a function of prosecutorial discretion, a U.S. Attorney is not
required to refer a contempt citation to a grand jury or otherwise to prosecute an
executive branch official who is carrying out the President’s direction to assert
executive privilege. Next, the OLC opinion determined that a review of the
legislative history of the 1857 enactment of the criminal contempt statute and its
subsequent implementation demonstrates that Congress did not intend the statute to
apply to executive officials who carry out a presidential directive to assert executive
privilege. Finally, as a matter of constitutional law, the opinion concludes that
simply the threat of criminal contempt would unduly chill the President’s ability to
effectively protect presumptively privileged executive branch deliberations.
According to the OLC opinion:
The President’s exercise of this privilege, particularly when based upon the
written legal advice of the Attorney General, is presumptively valid. Because
many of the documents over which the President may wish to assert a privilege
are in the custody of a department head, a claim of privilege over those
documents can be perfected only with the assistance of that official. If one House
of Congress could make it a crime simply to assert the President’s presumptively
valid claim, even if a court subsequently were to agree that the privilege claim
were valid, the exercise of the privilege would be so burdened as to be nullified.
Because Congress has other methods available to test the validity of a privilege
19 See generally, United States v. United States House of Representatives, 556 F. Supp. 150
(D.D.C. 1983).

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CRS-11
claim and to obtain the documents that it seeks, even the threat of a criminal
prosecution for asserting the claim is an unreasonable, unwarranted, and
therefore intolerable burden on the exercise by the President of his functions
under the Constitution.20
The 1984 opinion focuses almost exclusively on the criminal contempt statute,
as that was the authority invoked by Congress in the Superfund dispute. In a brief
footnote, however, the opinion contains a discussion of Congress’s inherent contempt
power, summarily concluding that the same rationale that makes the criminal
contempt statute inapplicable and unconstitutional as applied to executive branch
officials apply to the inherent contempt authority:
We believe that this same conclusion would apply to any attempt by Congress
to utilize its inherent “civil” contempt powers to arrest, bring to trial, and punish
an executive official who asserted a Presidential claim of executive privilege.
The legislative history of the criminal contempt statute indicates that the reach
of the statute was intended to be coextensive with Congress’ inherent civil
contempt powers (except with respect to the penalties imposed). Therefore, the
same reasoning that suggests that the statute could not constitutionally be applied
against a Presidential assertion of privilege applies to Congress’ inherent
contempt powers as well.21
The 1986 OLC opinion reiterates the 1984 reasoning adding the observation that the
power had not been used since 1935 (at that time over 50 years), and that “it seems
unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison
an executive branch official who claimed executive privilege.” The 1986 OLC
opinion also suggests that then current Supreme Court opinions indicated that it was
“more wary of Congress exercising judicial authority” and, therefore, might revisit
the question of the continued constitutional validity of the inherent contempt power.
Factual, legal, and constitutional aspects of these OLC opinions are open to
question and potentially limitations. For example, with respect to the argument that
a U.S. Attorney cannot be statutorily required to submit a contempt citation to a
grand jury, despite the plain language of the law, such a statement appears to be
analogous to a grant of so-called “pocket immunity” by the President to anyone who
asserts executive privilege on his behalf. The courts have concluded that the
government, or in this case the President, may informally grant immunity from
prosecution, which is in the nature of a contract and, therefore, its effect is strongly
influenced by contract law principles. Moreover, principles of due process require
that the government adhere to the terms of any immunity agreement it makes. It
appears that a President has implicitly immunized executive branch officials from
violations of congressional enactments at least once — in 1996, during a dispute over
the constitutionality of a statute that made it a requirement for all public printing to
be done by the Government Printing Office. At the time, the DOJ, in an opinion
from OLC, argued that the requirement was unconstitutional on its face, directed the
executive branch departments not to comply with the statute as passed by Congress,
and noted that executive branch officials who are involved in making decisions that
20 See Olson Memo, supra note 18 at 102.
21 Id. at 140, n. 42 (internal citation omitted).

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CRS-12
violate the statute face little to no litigation risk, including, it appears, no risk of
prosecution under the Ant-Deficiency Act, for which the DOJ is solely responsible.
Such a claim of immunization in the contempt context, whether express or implicit,
would raise significant constitutional questions. While it is true that the President
can immunize persons from criminal prosecution, it does not appear that he has
authority to immunize a witness from a congressional inherent contempt proceeding.
Arguably, an inherent contempt proceeding takes place wholly outside the criminal
code, is not subject to executive execution of the laws and prosecutorial discretion,
and thus, appears completely beyond the reach of the executive branch. Furthermore,
as previously indicated, inherent contempt, unlike criminal contempt, is not intended
to punish, but rather to coerce compliance with a congressional directive. Thus, a
finding of inherent contempt against an executive branch officials would not appear
to be subject to the President’s Pardon power22 — as an inherent contempt arguably
is not an “offense against the United States,” but rather is an offense against a House
of Congress. Likewise, it appears that the same arguments would be applicable to
a potential civil contempt by Congress.
The assertion that the legislative history of the 1857 statute establishing the
criminal contempt process demonstrates that it was not intended to be used against
executive branch official does not appear to be supported by the historical record.
The floor debates leading to the enactment of the statute make it clear that the
legislation was intended as an alternative to, not a substitute for, the inherent
contempt authority. This understanding has been reflected in numerous Supreme
Court opinions upholding the use of the criminal contempt statute. A close review
of the floor debate indicates that Representative H. Marshall expressly pointed out
that the broad language of the bill “proposes to punish equally the Cabinet officer and
the culprit who may have insulted the dignity of this House by an attempt to corrupt
a Representative of the people.”
Moreover, language from the floor debate indicates that Congress was aware of
the effect that this language would have on the ability of persons to claim privileges
before Congress. Specifically, the sponsor of the bill, Representative Orr, was asked
about the potential instances in which the proposed legislation might interfere with
recognized common law and other governmental privileges, such as the attorney-
client privilege, to support an investigation such as one that probed “the propriety of
a secret service fund to be used upon the discretion of the executive department,” or
to support inquiries about “diplomatic matters.” Representative Orr responded that
the House has and would continue to follow the practice of the British Parliament,
which “does not exempt a witness from testifying upon any such ground. He is not
excused from testifying there. That is the common law of Parliament.” Later in the
same debate, a proposed amendment to expressly recognize the attorney-client
privilege in the statute was overwhelmingly defeated.

With respect to the secret service fund, Representative Orr explained “that this
House has already exercised the power and authority of forcing a disclosure as to
what disposition had been made for the secret-service fund. And it is right and
22 U.S. CONST. Art. II, § 2 (stating that the President “shall have the Power to grant
Reprieves and Pardons for Offenses Against the United States.”).

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CRS-13
proper that is should be so. Under our Government — under our system of laws —
under our Constitution — I should protest against the use of any money by an
executive authority, where the House had not the right to know how every dollar had
been expended, and for what purpose.” Representative Orr’s reference was to a
contentious investigation in 1846, regarding charges that Daniel Webster, while
Secretary of State, had improperly disbursed monies from a secret contingency fund
used by the President for clandestine foreign operations. The charges led the
committee to issue subpoenas to former Presidents John Quincy Adams and John
Tyler. President Polk sent the House a list of the amounts in the contingent fund for
the relevant period, which was prior to his term, but refused to furnish documentation
of the uses that had been made of the expenditures on the grounds that a sitting
President should not publically reveal the confidences of his predecessors. President
Polk’s refusal to provide the information was mooted by the actions of the two
investigatory committees established by the House. Former President Tyler testified
and former President Adams filed a deposition detailing the uses of the fund during
their Administrations. In addition, President Polk’s Secretary of State, James
Buchanan, was subpoenaed and testified. Ultimately, Mr. Webster was found
innocent of any wrongdoing. From these references, it appears that the House was,
in 1857, sensitive to and cognizant about its oversight and investigative prerogatives
vis-a-vis the executive branch. It therefore appears arguable that in the context of the
debate, the contempt statute was not intended to preclude the House’s ability to
engage in oversight of the executive branch.
Finally, OLC’s contention that the criminal contempt statute has only been used
once, in the Burford/Superfund dispute, appears to be based on the fact that the
contempt of Anne Burford was the only contempt voted on by the full House of
Representatives. Significantly, prior to the Superfund dispute, committees and
subcommittees of the House of Representatives had voted contempt citations against
Secretary of State Henry Kissinger (1975); Secretary of Commerce Rogers C. B.
Morton (1975); Secretary of Health, Education, and Welfare Joseph A. Califano, Jr.
(1978); Secretary of Energy Charles Duncan (1980); Secretary of Energy James B.
Edwards (1981); Secretary of the Interior James Watt (1982), and Attorney General
William French Smith (1983). Since the Superfund dispute, contempt citations have
been voted against White House Counsel John M. Quinn (1996) and Attorney
General Janet Reno (1998). In every instance, save for John M. Quinn, a claim of
executive privilege was asserted, and in each instance there was ultimately either full
or substantial compliance with the demands of the committee that had issued the
subpoena.23
Civil Contempt
Civil Contempt in the Senate. As an alternative to both the inherent
contempt power of each House and the criminal contempt statutes, in 1978 Congress
enacted a civil contempt procedure, which is applicable only to the Senate. The
statute gives the U.S. District Court for the District of Columbia jurisdiction over a
civil action to enforce, secure a declaratory judgment concerning the validity of, or
to prevent a threatened failure or refusal to comply with, any subpoena or order
23 See CRS Contempt Report, supra note 8 at 27-33.

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CRS-14
issued by the Senate or a committee or subcommittee. Generally such a suit will be
brought by the Senate Legal Counsel, on behalf of the Senate or a Senate committee
or subcommittee.
Pursuant to the statute, the Senate may “ask a court to directly order compliance
with [a] subpoena or order, or they may merely seek a declaration concerning the
validity of [the] subpoena or order. By first seeking a declaration, [the Senate would
give] the party an opportunity to comply before actually [being] ordered to do so by
a court.” It is solely within the discretion of the Senate whether or not to use such a
two-step enforcement process.
Regardless of whether the Senate seeks the enforcement of, or a declaratory
judgement concerning a subpoena, the court will first review the subpoena’s validity.
If the court finds that the subpoena “does not meet applicable legal standards for
enforcement,” it does not have jurisdiction to enjoin the congressional proceeding.
Because of the limited scope of the jurisdictional statute and because of Speech or
Debate Clause immunity for congressional investigations, “when the court is
petitioned solely to enforce a congressional subpoena, the court’s jurisdiction is
limited to the matter Congress brings before it, that is whether or not to aid Congress
in enforcing the subpoena. If the individual still refuses to comply, he may be tried
by the court in summary proceedings for contempt of court, with sanctions being
imposed to coerce their compliance.
Without affecting the right of the Senate to institute criminal contempt
proceedings or to try an individua1 for contempt at the bar of the Senate, this
procedure gives the Senate the option of a civil action to enforce a subpoena. Civil
contempt might be employed when the Senate is more concerned with securing
compliance with the subpoena or with clarifying legal issues than with punishing the
contemnor. Unlike criminal contempt, in a civil contempt, sanctions (imprisonment
and/or a fine) can be imposed until the subpoenaed party agrees to comply thereby
creating an incentive for compliance; namely, the termination of punishment. Since
the statute’s enactment in 1979, the Senate has authorized the Office of Senate Legal
Counsel to seek civil enforcement of a document subpoena at least 6 times, the last
in 1995. None has been against executive branch officials.
The civil contempt process is arguably more expeditious than a criminal
proceeding, where a court may more closely scrutinize congressional procedures and
give greater weight to the defendant’s constitutional rights. The civil contempt
procedure also provides an element of flexibility, allowing the subpoenaed party to
raise possible constitutional and other defenses (e.g., the privilege against self-
incrimination, lack of compliance with congressional procedures, or an inability to
comply with the subpoena) without risking a criminal prosecution.
Civil contempt, however, has limitations. Most notable is that the statute
granting jurisdiction to the courts to hear such cases is, by its terms, inapplicable in
the case of a subpoena issued to an officer or employee of the federal government
acting in their official capacity. Enacted as part of the Ethics in Government Act of
1978, early drafts of the civil contempt statute did not include an exception for
federal government officers and employees acting within the scope of their duties.
It appears that the section was drafted primarily in response to the District Court’s

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CRS-15
dismissal, for lack of jurisdiction, of an Ervin Committee’s request for a declaratory
judgment regarding the lawfulness of its subpoena of President Nixon’s tape
recordings. Thus, one of the purposes of the statute was to expressly confer
jurisdiction upon courts to determine the validity of congressional requests for
information.
During the course of the debates regarding this legislation, the executive branch
strongly opposed conferring jurisdiction upon the federal courts to decide such
sensitive issues between Congress and the executive branch. Testifying before a
subcommittee of the Senate Committee on Governmental Operations, then-Assistant
Attorney General Antonin Scalia argued that weighing the legislature’s need for
information against the executive’s need for confidentiality is “the very type of
‘political question’ from which ... the courts [should] abstain.” In response, Congress
amended the proposed legislation excluding from its scope federal officers and
employees acting in their official capacity. However, as noted in a report from the
House Judiciary Committee in 1988, the exclusion was to apply only in cases in
which the President had directed the recipient of the subpoena not to comply with its
terms.24
Civil Contempt in the House of Representatives. While the House of
Representatives cannot pursue actions under the Senate’s civil contempt statute
discussed above, there are numerous examples of the House, by resolution, affording
special investigatory committees authority not ordinarily available to its standing
committees. Such special panels have often been vested with staff deposition
authority, and given the particular circumstances, special panels have also been
vested with the authority to obtain tax information, as well as the authority to seek
international assistance in information gathering efforts abroad. In addition, several
special panels have been specifically granted the authority to seek judicial orders and
participate in judicial proceedings.
For example, in 1987, the House authorized the creation of a select committee
to investigate the covert arms transactions with Iran (Iran-Contra). As part of this
resolution, the House provided the following authorization:
(3) The select committee is authorized ... to require by subpoena or otherwise the
attendance and testimony of such witnesses ... as it deems necessary, including
all intelligence materials however classified, White House materials, ... and to
obtain evidence in other appropriate countries with the cooperation of their
governments. ... (8) The select committee shall be authorized to respond to any
judicial or other process, or to make any applications to court, upon consultation
with the Speaker consistent with [House] rule L.25
The combination of broad subpoena authority, that expressly encompassed the White
House, and the ability to make “any applications to court,” arguably suggests that the
House contemplated the possibility that a civil suit seeking enforcement of a
subpoena against a White House official was possible. By virtue of the resolution’s
24 See CRS Contempt Report, supra note 8 at 33-37.
25 See H.Res. 12, 100th Cong., 1st Sess., §§ 3, 8 (1987) (emphasis added).

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CRS-16
language, it appears reasonable to conclude that the House decided to leave the
decision in the hands of the select committee, consistent with House Rule L (now
House Rule VIII governing subpoenas). It may be noted, then, that while the House
select committee did not attempt to seek judicial enforcement of any of its subpoenas,
the authorization resolution did not preclude the possibility. A review of modern
House precedents indicates at least 5 other special or select committees that have
been granted, via House resolution, both subpoena authority as well as the ability to
seek and participate in judicial actions.

A potential hurdle to a resolution by the House of Representatives authorizing
the pursuit of a civil court order is the jurisdiction of the federal courts. Such
jurisdiction, specifically federal district court jurisdiction, where a civil action for
enforcement of a congressional subpoena would be brought, is derived from both
Article III of the Constitution and federal statute. Article III of the Constitution
states, in relevant part, that “[t]he Judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the Laws of the United States ....” The
Supreme Court has interpreted the language “arising under” broadly, essentially
permitting federal jurisdiction to be found whenever federal law “is a potentially
important ingredient of a case.” Conversely, the federal-question jurisdiction statute,
first enacted in 1875, while containing almost identical language to Article III, has
been interpreted by the Court to be much narrower in scope. But, the fact that the
statutory jurisdiction provided by Congress is narrower than the Constitution’s grant
of judicial power may give rise to an argument that the statutory grant of jurisdiction
cannot be used by the House should it merely adopt a resolution authorizing a
subpoena enforcement proceeding to be brought in court. Following this argument
to its conclusion might suggest that both Houses of Congress must pass a law, signed
by the President, which authorizes a civil enforcement action to be brought in federal
district court because a mere one-House resolution will not suffice to provide such
jurisdiction.
We have found no court or commentator that has expressly adopted this
argument. It therefore remains unclear whether the existing statutory language for
jurisdiction can be definitively said to be inadequate. Rather, the limited Supreme
Court and other federal court precedent that exists may be read to suggest that the
current statutory basis is sufficient to establish jurisdiction for a civil action of the
type contemplated here if the representative of the congressional committee is
specifically authorized by a House of Congress to act.
In 1928, the Supreme Court decided Reed v. The County Commissioners of
Delaware County, Pennsylvania,26 which involved a special committee of the United
States Senate charged, by Senate resolution, with investigating the means used to
influence the nomination of candidates for the Senate. The special committee was
authorized to “require by subpoena or otherwise the attendance of witnesses, the
production of books, papers, and documents, and to do such other acts as may be
necessary in the matter of said investigation.” During the course of its investigation
into the disputed election of William B. Wilson of Pennsylvania to the Senate, the
committee sought to obtain the “boxes, ballots, and other things used in connection
26 277 U.S. 376 (1928).

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CRS-17
with the election.” The County Commissioners, who were the legal custodians of
said materials, refused to provide them to the committee, thus necessitating the
lawsuit. The Supreme Court, after affirming the powers of the Senate to “obtain
evidence related to matter committed to it by the Constitution” and having “passed
laws calculated to facilitate such investigations,” nevertheless held that it was without
jurisdiction to decide the case. The Senate had relied on the resolution’s phrase
“such other acts as may be necessary” to justify its authority to bring such a suit.
According to the Court, however, that phrase “may not be taken to include everything
that under any circumstances might be covered by its words.” As a result, the Court
held that “the Senate did not intend to authorize the committee, or anticipate that
there might be need, to invoke the power of the Judicial Department. Petitioners are
not ‘authorized by law to sue.’” The Court in Reed made no mention of the
jurisdictional statute that existed at the time. Rather, the Court appears to have relied
on the fact that the Senate did not specifically authorize the committee to sue;
therefore, absent particular language granting the power to sue in court, there can be
no basis for judicial jurisdiction over such a suit. Read in this manner, Reed appears
to suggest that had the Senate resolution specifically mentioned the power to sue, the
Court may have accepted jurisdiction and decided the case on its merits. Such a
reading of Reed is supported by a recent district court ruling involving the question
of whether Congress authorized judicial enforcement of Member demands for
information from executive branch agencies.
In Waxman v. Thompson,27 a 2006 opinion of the District Court for the Central
District of California, the plaintiffs, all minority members of the House Government
Reform Committee, sought a court order pursuant to 5 U.S.C. §§ 2954 and 7211 —
often times referred to as the “rule of seven” — granting them access to Department
of Health and Human Services records related to the anticipated costs of the
Medicare Prescription Drug and Modernization Act of 2003. The court, in
dismissing the case for lack of jurisdiction, addressed the argument made by the
plaintiffs that 5 U.S.C. § 2954, which requires that “[a]n Executive agency, on
request of the Committee on Government Operations of the House of
Representatives, or of any seven members thereof ... shall submit any information
requested of it relating to any matter within the jurisdiction of the committee,”
implicitly delegated to Members to right to sue to enforce their informational
demands. The court, in rejecting this argument, relied on the Supreme Court’s
holding in Reed v. County Commissioners. Specifically, the court noted that Reed’s
holding “put Congress on notice that it was necessary to make authorization to sue
to enforce investigatory demands explicit if it wished to ensure that such power
existed.” According to the court, like the Senate resolution at issue in Reed, because
§ 2954 is silent with respect to civil enforcement it stands to reason that the Congress
never intended to provide the Members with the power to seek civil judicial orders
to enforce their document demands.
The argument that a mere one-house resolution is not sufficient to provide
jurisdiction also derives support from the ruling in Senate Select Committee on
27 Waxman v. Thompson, No. 04-3467, slip op. (C.D. Cal. July 24, 2006).

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Presidential Campaign Activities v. Nixon,28 a 1973 decision by the District Court for
the District of Columbia. In Senate Select Committee, the court held that there was
no jurisdictional statute available that authorizes the court to hear and decide the
merits of the Committee’s request for a declaratory judgment, mandatory injunction,
and writ of mandamus arising from President Nixon’s refusal to produce tape
recording and other documents sought by the Committee pursuant to a subpoena
duces tecum. In reaching its conclusion, the court addressed several potential bases
for jurisdiction: 28 U.S.C. § 1345, United States as a Plaintiff; 28 U.S.C. § 1361,
Action to Compel an Officer of the United States to Perform His Duty; 5 U.S.C. §§
701-706, the Administrative Procedure Act; and, of particular relevance here, 28
U.S.C. § 1331, the federal question jurisdiction statute.
Focusing on 28 U.S.C. § 1331, the court noted that the statute at the time
contained a minimum “amount in controversy” requirement of “$10,000 exclusive
of interest and costs.” The court stated that “[t]he satisfaction of a minimum
amount-in-controversy is not a technicality; it is a requirement imposed by Congress
which the courts may not dispense with at their pleasure.” Because the Select
Committee could not establish a theory under which the amount in controversy
requirement was satisfied, the court dismissed the case for lack of subject matter
jurisdiction.
Senate Select Committee may still be cited for the proposition that, absent a
specific congressional enactment, Congress may not seek to enforce a subpoena in
federal court. It is important to note, however, that not only have subsequent cases
held that “[w]here fundamental constitutional rights are involved, this court has been
willing to find satisfaction of the jurisdictional amount requirement for federal
question jurisdiction,”29 but also that Congress specifically removed the amount in
controversy requirement for federal question jurisdiction in 1980. Given these
developments, combined with the reading of Reed v. County Commissioners
suggested above, it appears possible to argue that a specifically authorized
congressional committee may bring a civil action to enforce a subpoena using 28
U.S.C. § 1331 as a basis for federal question jurisdiction. Such an argument has been
suggested by the district court in Waxman v. Thompson, the “rule-of-seven” case
discussed above. According to the court in Waxman, the holdings of Reed, Senate
Select Committee and United States v. AT&T30 — a case involving the intervention
by a House committee chairman into a lawsuit by the Department of Justice, which
was attempting to enjoin compliance with a committee subpoena by AT&T —
suggest that “legislative branch suits to enforce requests for information from the
executive branch are justiciable if authorized by one or both Houses of Congress.”
While we have found no instance where a committee of either the House or Senate
has attempted to use this argument to enforce a subpoena, it appears to be consistent
28 366 F. Supp. 51 (D.D.C. 1973).
29 United States v. American Telephone & Telegraph Co., 551 F.2d 384, 389 (D.C. Cir.
1976) (citing Committee for GI Rights v. Callaway, 518 F.2d 466, 472-73 (1975)); see also
Greer v. Spock, 424 U.S. 828 (1976)
30 567 F.2d 121

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CRS-19
with both the plain meaning of the statute and a reasonable interpretation of the
existing case law.
Although, as indicated, there have been no attempts by a House of Congress to
seek civil enforcement of subpoenas in federal court authorized solely by resolution
of a single House, there have been situations that appear to be closely analogous. On
several occasions the House of Representatives has authorized, via House Resolution,
the intervention by counsel representing a House Committee into civil litigation
involving congressional subpoenas.
While some may still argue that a law passed by both Houses and signed by the
President conferring jurisdiction is required, it may be plausibly argued that taken
together, the combination of Reed’s requirement that congressional authorization to
sue be by express language, the willingness of federal courts to accept properly
authorized interventions, and the fact that the federal question jurisdiction statute no
longer contains an amount in controversy requirement, suggest that if an
authorization resolution by the House can be obtained there is a likelihood that a
reviewing court will find no legal impediment to seeking civil enforcement of
subpoenas or other committee orders.31
31 See CRS Contempt Report, supra note 8 at 37-46.

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