Breaking the Logjam Part 3: Restoring Transparency and Accountability in the Accommodation Process
Statement of
Sean M. Stiff
Legislative Attorney
Before
Committee on the Judiciary
Subcommittee on Federal Courts, Oversight, Agency Action, and Federal
Rights
U.S. Senate
Hearing on
“Breaking the Logjam Part 3: Restoring
Transparency and Accountability in the
Accommodation Process”
September 20, 2023
Congressional Research Service
https://crsreports.congress.gov
TE10086
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hairman Whitehouse, Ranking Member Kennedy, and Members of the Subcommittee:
My name is Sean Stiff, and I am a legislative attorney in the American Law Division of the
C Congressional Research Service. I am honored to testify today in the Subcommittee’s hearing on
executive privilege, testimonial immunities, and the accommodations process.
As the Supreme Court has explained, Congress’s ability to legislate “wisely” and “effectively” depends
on information access.1 Each year the House and the Senate seek and receive large amounts of
information from the executive branch, in written or oral form. This information helps Congress assess
the efficiency and effectiveness of existing laws, as well as the need for new laws. Sometimes, though,
“mere requests” for information are not enough; compulsion is needed.2 A committee letter requesting
certain information can lead to more formal methods of obtaining it, including subpoenas and contempt
votes. Whether formal or informal, congressional information requests can implicate executive branch
interests in confidentiality or presidential autonomy and thus lead to assertions of executive privilege or
testimonial immunity.3
Stalemate can ensue. Though interbranch information disputes have occurred since the earliest days of the
Republic, they have rarely resulted in interbranch litigation.4 For nearly 185 years, until 1973, the
political branches resolved their disputes through the accommodations process without involving the
federal courts.5 Rarer still are judicial rulings in an interbranch dispute on the merits of an executive
privilege or testimonial immunity claim.
These merits rulings provide some insight on how courts might resolve executive privilege assertions and
absolute testimonial immunity claims.6 The experience of interbranch litigation also contains lessons on
the practical utility of litigation. These lessons are mixed. Congress has won favorable rulings through
litigation, but it has suffered losses as well and encountered delay.7 Delay arguably favors the executive
branch’s desire in information stalemates to maintain the status quo.8 Much more commonly, disputes are
resolved through the accommodations process. Whether litigation and the accommodations process are
adequate to the task of allowing Congress to effectively legislate is open to debate and can vary across
disputes, but as described below, Congress has tools to facilitate information access.9
1 McGrain v. Daugherty, 273 U.S. 135, 175 (1927).
2 Id.
3 See infra “Constitutional Principles: The Power of Inquiry and Executive Privilege” and “Testimonial Immunity.”
4 Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (“Congress and the Executive have . . . managed for over two
centuries to resolve such disputes among themselves without the benefit of guidance from us.”).
5 In re Sealed Case, 121 F.3d 729, 739 n.10 (D.C. Cir. 1997) (per curiam) (citing Senate Select Comm. on Presidential Campaign
Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974), as the first judicial involvement in “executive-congressional disputes over
access to information”); see also Senate Select Comm. on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51, 61
(D.D.C. 1973) (dismissing subpoena enforcement action for lack of jurisdiction). In a 1928 decision, members of a Senate special
investigative committee brought suit to obtain documents associated with a disputed Senate election, but that claim was
dismissed on jurisdictional grounds due to a lack of Senate authorization for the suit. Reed v. Delaware Cty. Comm., 277 U.S.
376, 389 (1928) (concluding 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”).
6 See infra “Judicial Involvement in Interbranch Executive Privilege Disputes.”
7 See infra “Assessing Litigation Outcomes.”
8 See, e.g., Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 MARQ. L. REV. 881, 928 (2014).
9 See infra “Congress’s Options to Facilitate Information Access.”
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Constitutional Principles: The Power of Inquiry and Executive Privilege
Under Article I of the Constitution, Congress is vested with enumerated legislative powers.10 These
enumerated powers do not include an explicit power to “conduct investigations or issue subpoenas.”11 Yet
the Supreme Court has characterized this power of inquiry as “inherent in the legislative process.”12
Without access to information, “Congress would be shooting in the dark, unable to legislate”
intelligently.13 Congress’s implied power of inquiry is “broad,”14 addressing any subject “on which
legislation could be had.”15
Congressional requests sometimes come into conflict with what is known as executive privilege. As with
the power of inquiry, there is no explicit reference in the Constitution to “a privilege of confidentiality”
for the President.16 The Supreme Court recognized in its landmark decision in United States v. Nixon,
though, that to the extent an interest in confidentiality “relates to the effective discharge of a President’s
powers, it is constitutionally based.”17
Executive privilege is not a single type of privilege. Instead, it consists of several component privileges.18
The political branches have adopted different views on how these privileges apply, if at all, in interbranch
disputes. Congress has generally interpreted executive privilege narrowly, limiting its scope to the types
of national security and diplomatic information referenced in Nixon, as well as presidential
communications.19 The executive branch has viewed executive privilege more broadly, extending
confidentiality further to what is assertedly needed for the effective execution of the law.20 Under the
executive branch’s view, the component privileges include:
• the state secrets privilege, which protects certain military, diplomatic, and national
security information;21
• the presidential communications privilege, which generally protects confidential
communications between the President and his advisors that relate to presidential
10 See U.S. CONST. art I, §§ 1, 8.
11 Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020); see also Eastland v. U. S. Servicemen’s Fund, 421 U.S. 491, 504
(1975) (“Issuance of subpoenas such as the one in question here has long been held to be a legitimate use by Congress of its
power to investigate.”).
12 Watkins v. United States, 354 U.S. 178, 187 (1957).
13 Mazars, 140 S. Ct. at 2031.
14 Watkins, 354 U.S. at 187.
15 McGrain v. Daugherty, 273 U.S. 135, 177-78 (1927); but see Mazars, 140 S. Ct. at 2032 (explaining that there is no “power to
expose for the sake of exposure” or to “try” someone for “wrongdoing” (internal quotation marks omitted)).
16 United States v. Nixon, 418 U.S. 683, 711 (1974).
17 Id.
18 In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997) (per curiam) (“executive officials have claimed a variety of privileges to
resist disclosure of information”).
19 See, e.g., Br. for Appellant Comm. on Oversight & Gov’t Reform at 26-27, Comm. on Oversight & Gov’t Reform v. Lynch,
No. 16-5078 (D.C. Cir. Oct. 6, 2016) (arguing that the district court erred in deciding that the deliberative-process privilege, a
common-law privilege, allows the executive branch to withhold information sought by a congressional subpoena); H. COMM. ON
OVERSIGHT AND GOV’T REFORM, 110TH CONG., REP. ON PRESIDENT BUSH’S ASSERTION OF EXECUTIVE PRIVILEGE IN RESPONSE TO
THE COMMITTEE SUBPOENA TO ATTORNEY GENERAL MICHAEL B. MUKASEY 8 (Comm. Print 2008) (“The Attorney General’s
argument that the subpoena implicates the ‘law enforcement component’ of executive privilege is equally flawed. There is no
basis to support the proposition that a law enforcement privilege, particularly one applied to closed investigations, can shield
from congressional scrutiny information that is important for addressing congressional oversight concerns. The Attorney General
did not cite a single judicial decision recognizing this alleged privilege.”).
20 See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege,
8 Op. O.L.C. 101, 116 (1984).
21 See Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 154 (1989).
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decisionmaking, as well as a subset of communications not involving the President
but made to advise the President;22
• the deliberative process privilege, which protects predecisional and deliberative
communications within executive branch agencies;23 and
• the law enforcement privilege, which protects the contents of open (and sometimes
closed) law enforcement files, including communications related to investigative and
prosecutorial decisionmaking.24
Though the executive branch might assert confidentiality for one of these reasons or another, it might
generally invoke “executive privilege” when doing so.25 However, these asserted privileges are properly
examined separately. They derive from different sources of law with different justifications, and courts
have weighed them against Congress’s power of inquiry differently.26 In Nixon, for example, the Supreme
Court wrote that its prior cases showed a “high degree of deference” to the President’s interest in
maintaining “military or diplomatic secrets.”27 Less deference was owed, the Court explained, to the
President’s more generalized interest in maintaining the confidentiality of his other communications in the
face of a criminal trial subpoena.28
Testimonial Immunity
Executive privilege might be invoked to shield a particular document from a congressional
committee or to justify a witness’s refusal to answer particular questions. However, the executive
branch has sometimes interposed a distinct objection to congressional inquiries: the doctrine of
testimonial immunity.29
The doctrine of absolute testimonial immunity purports to prevent “Congress from compelling even
the appearance of a senior presidential adviser—as a function of the independence and autonomy of
the President himself.”30 Current and former senior advisors to the incumbent President are, in the view
of the Department of Justice (DOJ) Office of Legal Counsel (OLC), “an extension of the President.”31
OLC argues that these advisors’ compelled testimony about their “official duties” would violate the
separation of powers by infringing on the President’s autonomy and ability to receive candid advice.32
22 See Assertion of Exec. Privilege Regarding White House Couns.’s Off. Documents, 20 Op. O.L.C. 2 (1996).
23 See Assertion of Executive Privilege Over Documents Generated in Response to Congressional Investigation into Operation
Fast and Furious, 36 Op. Att’y Gen. 1 (2012).
24 See Protective Assertion of Exec. Privilege over Unredacted Mueller Report and Related Investigative Files, 43 Op. O.L.C.
374 (1982).
25 See, e.g., Response to Cong. Requests for Info. Regarding Decisions Made Under the Independent Couns. Act, 10 Op. O.L.C.
68, 75 (1986).
26 See infra “Judicial Involvement in Interbranch Executive Privilege Disputes.”
27 United States v. Nixon, 418 U.S. 683, 710-11 (1974).
28 Id.
29 See Breaking the Logjam Part 2: The Office of Legal Counsel’s Role in Shaping Executive Privilege Doctrine: Hearing Before
the Subcomm. on Federal Courts, Oversight, Agency Action, and Federal Rights, 117th Cong. (characterizing the testimonial
immunity doctrine as “discrete” from executive privilege) (statement of Christopher Schroeder, Assistant Att’y Gen., Off. of
Legal Counsel).
30 Testimonial Immunity Before Cong. of the Former Couns. to the President, 2019 WL 2315338, at *2 (May 20, 2019); Comm.
on Judiciary v. Miers, 558 F. Supp. 2d 53, 100 (D.D.C. 2008) (summarizing the executive branch’s argument) (“forcing close
presidential advisors to testify before Congress would be tantamount to compelling the President himself to do so”).
31 Testimonial Immunity Before Cong. of the Former Couns. to the President, 2019 WL 2315338, at *3, 11 (“[W]e find no
material distinction between the compelled congressional testimony of current and former senior advisers to the President.”).
32 Id. at *3-4.
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On this theory, senior advisors are constitutionally distinct from other executive branch officers who
“can and do testify before Congress,” including those who hold statutory office, are appointed with
Senate advice and consent, and are tasked with administering statutes.33 Congress has rejected this
theory.34
DOJ has articulated a different standard of testimonial immunity for an immediate advisor of a
former President.35 Advisors to a former President, DOJ argues, possess only “a form of qualified
immunity.”36 Under this claimed immunity, Congress cannot compel such an advisor to testify about their
official duties if that testimony “is not necessary to the exercise of Congress’s investigative authority.”37
Judicial Involvement in Interbranch Executive Privilege Disputes
How a court would address the merits of an interbranch information dispute would depend on the
privilege or immunity asserted. Much would depend, as well, on how the political branches articulate
their interests in accessing or shielding information in cases involving a qualified privilege, such as the
presidential communications privilege.38 The court’s analysis in an interbranch dispute would not
necessarily be governed by executive privilege decisions that do not involve a congressional subpoena,
such as cases involving grand jury subpoenas for assertedly privilege material.39 Interbranch disputes pose
unique separation of powers questions not present in these other cases, such as how to weigh the
competing constitutional interests of the political branches in particular information.40 The few
interbranch disputes that addressed the merits of an executive privilege claim are thus the best judicial
guidance available.41 These cases concern the presidential communications privilege, the deliberative
process privilege, and claims of absolute testimonial immunity.42
33 Id. at *2.
34 See, e.g., Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, to Donald F. McGahn II, at 1 (May 20, 2019)
(stating that although DOJ’s Office of Legal Counsel “has produced an opinion purporting to excuse you from testifying” on the
basis of testimonial immunity, “that opinion has no support in relevant case law, and its arguments have been flatly rejected by
the courts”).
35 Statement of Interest of the United States 2, Meadows v. Pelosi, No. 21-cv-3217 (D.D.C. filed July 15, 2022).
36 Id. at 2.
37 Id. at 9.
38 See, e.g., Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (assessing a
select committee’s claim that tape recordings of presidential communications “could help engender the public support needed for
basic reforms in our electoral system” (internal quotation marks omitted)).
39 In re Sealed Case, 121 F.3d 729, 753 (D.C. Cir. 1997) (per curiam) (“Our determination of how far down into the executive
branch the presidential communications privilege goes is limited to the context before us, namely where information generated by
close presidential advisers is sought for use in a judicial proceeding, and we take no position on how the institutional needs of
Congress and the President should be balanced.”).
40 See, e.g., United States v. AT&T, 551 F.2d 384, 394 (D.C. Cir. 1976) (noting the challenges for a court weighing Congress’s
need for information to “assure that appropriated funds are not being used for illegal warrantless domestic electronic
surveillance” against the effect that public disclosure of national security information might have on intelligence activities or
diplomatic relations).
41 The Court’s decision in Trump v. Mazars USA, LLP, concerned three congressional subpoenas concerning President Donald
Trump, but the subpoenas concerned “nonprivileged, private information,” which the Supreme Court said “by definition does not
implicate sensitive Executive Branch deliberations.” 140 S. Ct. 2019, 2022, 2033 (2020) (addressing only whether the subpoenas
fell within Congress’s power of inquiry).
42 No court hearing an interbranch dispute appears to have reached the merits of a state secrets privilege or an asserted law
enforcement privilege. While United States v. AT&T featured a congressional subpoena for certain national security information,
the court twice opted to encourage accommodation rather than rule on the merits of disclosure. 551 F.2d 384 (D.C. Cir. 1976)
(AT&T I), appeal after remand 567 F.2d 121 (D.C. Cir. 1977) (AT&T II) (per curiam). Two cases included executive branch
withholding of law enforcement information, but the courts in both cases likewise did not resolve those disputes. See Comm. on
(continued...)
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The first judicial decision on the merits in an interbranch dispute involved the presidential
communications privilege.43 In Senate Select Committee on Presidential Campaign Activities v. Nixon, the
U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) applied a “staged decisional structure” to a
subpoena for recorded conversations between President Richard Nixon and White House Counsel John
Dean.44 Communications involving the President himself were “presumptively privileged” from even in
camera review by a court.45 To overcome this presumption, the court required the Senate Select
Committee to make a “strong showing of need” for the materials such that access to the records was
necessary to responsibly fulfill its duties.46 The D.C. Circuit concluded that the Committee failed to carry
that burden based on the particular oversight47 and legislative justifications48 it had offered. Among other
unique facts present in the case, the House Judiciary Committee had already obtained copies of the tapes
from a grand jury as part of its impeachment investigation.49 In the D.C. Circuit’s view, the Senate Select
Committee’s “immediate oversight need for the subpoenaed tapes” was “merely cumulative.”50 The court
said that if the Committee had made the requisite strong showing, President Nixon would then have been
directed to submit the tapes for in camera review, “together with particularized claims” of privilege.51 The
court would then have weighed those claims against “whatever public interests disclosure might serve.”52
A court has also ruled on an interbranch dispute involving the deliberative process privilege. In
Committee on Oversight & Government Reform v. Lynch, a House committee subpoenaed information
related to Operation Fast & Furious and the DOJ’s retraction of certain inaccurate assurances it had made
Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 119-20 (D.D.C. 2016) (deciding that DOJ’s withholding of
information as “law enforcement sensitive material” was “best left to the process of negotiation and accommodation” (internal
quotation marks omitted)); United States v. House of Representatives, 556 F. Supp. 150, 153 (D.D.C. 1983) (declining to
exercise declaratory judgment jurisdiction over an executive branch complaint that asked the court to declare that an executive
privilege claim over “open law enforcement files” was valid, reasoning that a declaration was not warranted because the same
privilege could be raised as a defense to any subsequent contempt proceedings against the official responsible for the
withholding). A district court has also dismissed on standing grounds a suit brought by a legislative branch agent, the
Comptroller General, for access to executive branch information. Walker v. Cheney, 230 F. Supp. 2d 51, 74 (D.D.C. 2002).
Finally, courts have considered privilege claims by former presidents. See CRS Report R47102, Executive Privilege and
Presidential Communications: Judicial Principles, by Todd Garvey, at 27-29.
43 See supra note 5.
44 Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 730 (D.C. Cir. 1974).
45 Id. When a court engages in in camera review of particular information, the party who possesses the information submits it to
the court ex parte—that is, without disclosing it to the other party who seeks its production. See, e.g., BLACK’S LAW DICT. (in
camera) (“In the judge’s private chambers.”). The court then reviews the material to decide whether under the governing legal
standard the court should order its production. See, e.g., Nixon v. Sirica, 487 F.2d 700, 714 (D.C. Cir. 1973) (en banc) (per
curiam) (explaining that courts frequently order “in camera inspection of documents for which a privilege was asserted in order
to determine the privilege’s applicability”). The term in camera review is also use in the accommodations process to generally
describe instances in which the executive branch allows congressional actors to review, but not retain, executive branch
information. See Agreement Concerning Accommodation, Comm. on Oversight and Reform, U.S. House of Representatives v.
Barr, No. 19-cv-03557 (D.D.C. Aug. 30, 2021) (describing in camera document review procedures for Committee members and
staff).
46 Senate Select Comm. on Presidential Campaign Activities, 498 F.2d at 730.
47 Id. at 732.
48 Id. (reasoning that the select committee’s legislative need was insufficient because “legislative judgments” allegedly “depend
more on the predicted consequences of proposed legislative actions” rather than on a reconstruction of past events and that the
select committee purportedly could make such legislative judgments using partial transcripts of the tapes that had been released).
49 Id.
50 Id. The D.C. Circuit also reasoned that public release of tape transcripts, with partial deletions, weighed against the
committee’s need for copies of the tapes. See id. at 732-33.
51 Id. at 731.
52 Id.
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about the operation.53 The executive branch withheld information that postdated the inaccurate DOJ
assurance, citing the deliberative process privilege.54 The district court followed a two-step analysis to
resolve the privilege claim. First, the district court considered whether certain documents fell within the
scope of the privilege by being predecisional (i.e., information that did not “simply state or explain a
decision” already reached) and deliberative (i.e., information that was not “purely factual”).55 The district
court found that DOJ’s “internal deliberations about how to respond to press and Congressional inquiries”
met both criteria, triggering the privilege.56 Second, the district court considered whether the committee’s
showing of need for the information overcame the privilege. The district court weighed the political
branches’ competing interests by considering the information’s relevance, the seriousness of the
investigation, the harm that could result from disclosure, and other factors.57 The district court held that
these factors favored disclosure and ordered the documents produced.58
Finally, district courts have twice rejected claims of absolute testimonial immunity, both times in suits
brought by the House Judiciary Committee. In 2008, a district court ordered former White House Counsel
Harriet Miers to appear for testimony on the removal of certain U.S. Attorneys, holding that absolute
immunity was “virtually foreclosed” by a Supreme Court decision that senior White House aides possess
only qualified immunity to civil damages suits.59 In 2019, future Supreme Court Justice Ketanji Brown
Jackson applied the same reasoning when ordering former White House Counsel Donald McGahn’s
compliance with a subpoena for his testimony.60 Both decisions affirmed the witnesses’ ability to assert
other applicable privileges during committee questioning.61
Assessing Litigation Outcomes
Resort to litigation to resolve interbranch disputes has yielded mixed results for Congress. The Senate
Select Committee’s resort to judicial enforcement of its subpoena failed to gain the Committee access to
53 Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 107 (D.D.C. 2016). The suit was first filed against then-
Attorney General Eric Holder, so earlier filings identify him as the defendant. See Compl., Comm. on Oversight & Gov’t Reform
v. Holder, No. 1:12cv1332 (D.D.C. Aug. 13, 2012).
54 Lynch, 156 F. Supp. 3d at 107.
55 Comm. on Oversight & Gov’t Reform v. Holder, 2014 WL 12662665, at *2 (D.D.C. Aug. 20, 2014), modified, 2014 WL
12662666 (D.D.C. Sept. 9, 2014) (internal quotation marks omitted).
56 Lynch, 156 F. Supp. 3d at 112.
57 Id. as 112-13 (listing, among other additional relevant factors, the availability of other evidence).
58 Id. at 114 (explaining that “whatever incremental harm that could flow from providing the Committee with the records that
have already been publicly disclosed” by quotations in a publicly released Inspector General report was “outweighed by the
unchallenged need for the material”).
59 Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53, 100, 108 (D.D.C. 2008).
60 Comm. on Judiciary v. McGahn, 415 F. Supp. 3d 148, 202 (D.D.C. 2019) (Jackson, J.), vacated and remanded, 951 F.3d 510
(D.C. Cir. 2020) (concluding the Committee lacked Article III standing to bring suit), reh’g en banc granted, opinion vacated sub
nom. U.S. House of Representatives v. Mnuchin, 2020 WL 1228477 (D.C. Cir. Mar. 13, 2020), and aff’d in part, remanded in
part, Comm. on Judiciary of U.S. House of Representatives v. McGahn, 968 F.3d 755 (D.C. Cir. 2020) (concluding that the
Committee had Article III standing to enforce its subpoena and remanding to the three-judge panel remaining questions), and
rev’d and remanded, 973 F.3d 121 (D.C. Cir. 2020) (concluding the Committee lacked a cause of action to bring the suit), reh’g
en banc granted, judgment vacated (Oct. 15, 2020), dismissed by Order, Comm. on Judiciary of U.S. House of Representatives v.
McGahn, No. 19-5331 (D.C. Cir. July 13, 2021) (granting the parties’ request for voluntary dismissal and vacatur of the second
panel opinion).
61 See McGahn, 415 F. Supp. 3d at 214 (explaining that though recipients of a valid congressional subpoena must appear for
testimony, they “are free to assert any legally applicable privilege in response to the questions asked of them, where
appropriate”); Miers, 558 F. Supp. 3d at 106 (“Ms. Miers may assert executive privilege in response to any specific questions
posed by the Committee. The Court does not at this time pass judgment on any specific assertion of executive privilege.”). Both
decisions were appealed and the disputes over witness testimony were then settled. See infra notes 70- 72 and 76-79 and
accompanying text.
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the Nixon tapes and prompted a D.C. Circuit opinion with language that partially discounted Congress’s
need for information concerning past facts to legislate for the future.62 While the House Committee on
Oversight and Government Reform secured a ruling compelling the production of Operation Fast &
Furious documents that were withheld on deliberative process grounds,63 that was only after the district
court held that the privilege could be asserted in response a congressional subpoena.64 The Committee did
not persuade the court that the privilege originated in the common law and thus could not frustrate a
constitutional power of inquiry.65 Favorable rulings from district courts on testimonial immunity have not
caused the executive branch to change its view that the doctrine is “firmly grounded in separation-of-
powers principles” because those district court decisions would not directly bind in future litigation over
other subpoenas.66
Aside from receiving unfavorable substantive rulings, Congress has also faced delay in seeking judicial
resolution of interbranch executive privilege and testimonial immunity disputes. The time that a
congressional committee spent in litigation to enforce its subpoena has varied.67
• The Senate Select Committee originally filed suit to enforce its subpoena for the Nixon
tapes in August 1973.68 The D.C. Circuit’s decision sustaining President Nixon’s
privilege assertion came in May 1974.69
• The House Judiciary Committee began proceedings in Miers in March 2008.70 Four
months later, the district court ordered Miers to appear before the Committee.71 Miers’
appeal remained pending until its voluntary dismissal in October 2009.72
• The House Committee on Oversight and Government Reform began the Operation Fast
& Furious litigation in August 2012.73 The district court overruled DOJ’s deliberative-
62 Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974) (“While fact-finding
by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted
consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events.”).
63 Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 115 (D.D.C. 2016).
64 Comm. on Oversight & Gov’t Reform v. Holder, 2014 WL 12662665, at *1 (D.D.C. Aug. 20, 2014) (“[T]he Court rejects the
Committee’s suggestion that the only privilege the executive can invoke in response to a subpoena is the Presidential
communications privilege.”).
65 See id. In subsequent interbranch disputes, committees have continued to argue that common-law-derived privileges cannot
excuse compliance with congressional subpoenas. See Plf’s Memo. in Supp. of its Mot. for Expedited Summ. J., Comm. on
Oversight and Reform v. Barr 46, No. 1:19-cv-03557 (D.D.C. Dec. 17, 2019).
66 Statement of Interest of the United States, supra note 35, at 7 (emphasizing the claimed lack of appellate rulings on the
doctrine’s merits); see also Cong. Oversight of the White House, 2021 WL 222744, at *36 (O.L.C. Jan. 8, 2021) (same);
Immunity of the Assistant to the President & Dir. of the Off. of Pol. Strategy & Outreach from Cong. Subpoena, 2014 WL
10788678, at *7 (O.L.C. July 15, 2014) (same).
67 The time between a subpoena’s return date and congressional committees’ commencement of litigation has also varied. For
example, the Senate Select Committee began litigation two weeks after its subpoena’s return date. Compl. 2, 5, Senate Select
Comm. on Presidential Campaign Activities v. Nixon, No. 1593-73 (D.D.C. Aug. 9, 1973), reprinted in Hearings of the S. Select
Comm. on Presidential Campaign Activities, 93rd Cong. app. at 544, 547 (1974). In contrast, the House Judiciary Committee in
Miers resorted to legal process eight months after its subpoena came due. See Compl. ¶ 42, Comm. on the Judiciary v. Miers, No.
1:08-cv-00409 (D.D.C. Mar. 10, 2008) (noting Miers’ subpoena was returnable on July 12, 2007).
68 See Senate Select Committee Compl., supra note 67, at 2.
69 Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974).
70 Compl., Comm. on the Judiciary v. Miers, No. 1:08-cv-00409 (D.D.C. Mar. 10, 2008).
71 Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53, 100, 108 (D.D.C. 2008).
72 Order, Comm. on Judiciary v. Miers, No. 08-5357 (D.C. Cir. Oct. 14, 2009).
73 Compl., Comm. on Oversight & Gov’t Reform v. Holder, No. 1:12cv1332 (D.D.C. Aug. 13, 2012).
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process privilege claims in January 2016.74 The Committee appealed other aspects of the
district court’s rulings, and that appeal remained pending until its May 2019 voluntary
dismissal.75
• District court proceedings in McGahn began in May 2019.76 Then-Judge Jackson issued
her order requiring McGahn’s testimony in November 2019.77 Extensive appellate
proceedings followed, including two orders granting en banc review of D.C. Circuit panel
opinions that ruled against the House Judiciary Committee on nonmerits issues.78 The
parties voluntarily dismissed the appeal in July 2021 before the second en banc
proceedings ended.79
• The House Committee on Oversight and Reform filed suit in November 2019 to enforce a
subpoena for documents related to the 2020 Census following a privilege assertion.80 In
August 2021, before the district court entered a decision on the merits of the privilege
claim, the parties reached an accommodation.81 By January 2022, according to the parties
the executive branch had completed producing documents as called for in the agreement,
and they jointly dismissed the suit.82
Favorable rulings arguably have not led to prompt subpoena compliance. For example, the D.C. Circuit
stayed the orders compelling Miers’ and McGahn’s testimony while their appeals were pending.83 The
political branches ultimately resolved both disputes through the accommodations process while the stays
were in place.84 These agreements allowed the House Judiciary Committee to question the witnesses,
though in both cases questioning occurred roughly two years after the witness’s original subpoena return
date and not in a public hearing.85 Delay of this type can potentially undermine the timeliness and
effectiveness of congressional oversight.86 The D.C. Circuit has also suggested that delay could have legal
74 Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 115 (D.D.C. 2016). The district court’s opinion explains
that, before issuing its decision, it had twice referred the parties to another district judge to aid a negotiated resolution. Id.
75 See Order, Comm. Oversight & Gov’t Reform v. Barr, No. 16-5078 (D.C. Cir. May 14, 2019).
76 Compl., Comm. on the Judiciary v. McGahn, No. 1:19-cv-2379 (D.D.C. Aug. 7, 2019).
77 Comm. on Judiciary v. McGahn, 415 F. Supp. 3d 148, 214-15 (D.D.C. 2019).
78 See Order, Comm. on Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Oct. 15, 2020) (en banc) (vacating August 31, 2020
judgment); Order, U.S. House of Representatives v. Mnuchin, No. 19-5176, and Comm. on Judiciary v. McGahn, No. 19-5331
(D.C. Cir. Mar. 13, 2020) (en banc) (vacating February 28, 2020 judgment).
79 Order, Comm. on Judiciary of U.S. House of Representatives v. McGahn, No. 19-5331 (D.C. Cir. July 13, 2021).
80 See Compl., Comm. on Oversight and Reform, U.S. House of Representatives v. Barr, No. 19-cv-03557 (D.D.C. Nov. 26,
2019).
81 Agreement Concerning Accommodation, Comm. on Oversight and Reform, U.S. House of Representatives v. Barr, No. 19-cv-
03557 (D.D.C. Aug. 30, 2021) (delineating procedures for in camera review by committee staff of subpoenaed documents about
the 2020 Census).
82 Jt. Status Rep., Comm. on Oversight and Reform, U.S. House of Representatives v. Barr, No. 19-cv-03557 (D.D.C. Jan. 7,
2022); Jt. Stip. of Dismissal, Comm. on Oversight and Reform, U.S. House of Representatives v. Barr, No. 19-cv-03557 (D.D.C.
Jan. 7, 2022).
83 See Order, Comm. on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Nov. 27, 2019); Comm. on Judiciary of U.S. House of
Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008).
84 See Agreement Concerning Accommodation, Comm. on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. May 12, 2021);
Unopposed Mot. for Voluntary Dismissal at 2, Comm. on the Judiciary v. Miers, No. 08-5357 (D.C. Cir. Oct. 8, 2009) (reciting
that under the parties’ agreement documents had been provided and Miers had been interviewed).
85 Compare Interview by H. Comm. on the Judiciary with Donald McGahn, in Washington, D.C. (June 4, 2021), with Compl.
¶ 72, Comm. on the Judiciary v. McGahn, No. 1:19-cv-2379 (D.D.C. Aug. 7, 2019) (reciting the original subpoena’s May 21,
2019 return date), and H.R. REP. NO. 111-712, at 17 (2011) (discussing Mier’s June 15, 2009 deposition), with Compl. ¶ 42,
Comm. on the Judiciary v. Miers, No. 1:08-cv-00409 (D.D.C. Mar. 10, 2008) (noting Miers’ subpoena was returnable on July 12,
2007).
86 CRS Report R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance, by Todd Garvey, at 12.
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consequences for House committees.87 If there is a change in control of the House while a subpoena
enforcement suit is pending, the new majority might decline to continue its predecessor’s litigation.88
Subpoena enforcement actions have, however, sometimes resulted in decisions and outcomes that favored
Congress. The D.C. Circuit’s en banc decision in McGahn recognizes that a congressional committee has
Article III standing “to seek enforcement in federal court of its duly issued subpoena in the performance
of constitutional responsibilities.”89 This holding undermines a common executive branch defense to
subpoena enforcement actions, that House committees lack Article III standing to bring such suits.90
Moreover, though the district court decisions on absolute testimonial immunity are not themselves
binding precedent for future district court litigation, then-Judge Jackson’s rejection of the doctrine may
have persuasive value.91
The Accommodation Process
It is much more common for interbranch disputes to be finally resolved through the accommodations
process. This term generally refers to the political branches’ negotiated resolution of disputes over
congressional requests for information that, in the executive branch’s view, implicate executive privilege
or other executive branch confidentiality interests.92 When accommodation is effective, the branches
reach a compromise solution acceptable to both. The Executive might disclose what it believes it could
otherwise withhold and Congress might narrow its request to exclude what it believes it could otherwise
87 See Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008) (raising the prospect
that with the start of a new Congress, the prior House of Representatives that issued the subpoena at issue in the appeal “will
cease to exist as a legal entity, and the subpoenas it has issued will expire”); United States v. AT&T, 551 F.2d 384, 390 (D.C.
Cir. 1976) (raising but not resolving mootness question and noting that unlike “the Senate which is a continuing body, this House
ends with its adjournment on January 3, 1977,” and that “[t]hereupon the subpoena here at issue expires” (citation omitted)).
88 When control of the House has not changed following a general election, suits have continued. The House rules or a separate
order in the House rules package have invested committee chairs with authority to continue litigation. See RULES OF THE HOUSE
OF REPRESENTATIVES OF THE 118TH CONGRESS Rule II, cl. 8 (2023) (House rule that has stated, since the 115th Congress, that
committees and committees chairs are successors in interest to their predecessors for pending litigation); H.Res. 5, 113th Cong.
§ 4(a)(2)(A) (example of continuing litigation authority provided by separate order in the House rules package for the Operation
Fast & Furious litigation). In some recent cases, committee chairs have reissued subpoenas. See, e.g., Notice, Comm. on
Oversight and Reform, U.S. House of Representatives v. Barr, No. 19-cv-03557 (D.D.C. Feb. 26, 2021) (advising the district
court of the Jan 13, 2021 reissuance of a committee subpoena seeking 2020 Census records); Subpoena to Donald F. McGahn, II,
from Jerrold Nadler, Chair, House Comm. on the Judiciary (Jan. 11, 2021) (subpoena reissued at the start of the 117th Congress);
Subpoena to the Eric H. Holder, Jr., Att’y Gen. of the U.S., from Jason Chaffetz, Chair, House Comm. on Oversight & Gov’t
Reform (Jan. 6. 2015) (subpoena reissued at the start of the 114th Congress); Subpoena to the Eric H. Holder, Jr., Att’y Gen. of
the U.S., from Darrell Issa, Chair, House Comm. on Oversight & Gov’t Reform (Jan 3. 2013) (subpoena reissued at the start of
the 113th Congress).
89 Comm. on Judiciary of U.S. House of Representatives v. McGahn, 968 F.3d 755, 778 (D.C. Cir. 2020) (en banc).
90 See, e.g., Memo. of P&A in Supp. of Defs’ Mot. to Dismiss and in Oppo. to Pl’f’s Mot. for Partial Summ. J. on Counts I and II
23, Comm. on the Judiciary v. Miers, No. 1:08-cv-00409 (D.D.C. May 9, 2008) (urging dismissal for lack of Article III standing).
91 See, e.g., Comm. on Judiciary v. McGahn, 951 F.3d 510, 541 (D.C. Cir. 2020) (Henderson, J., concurring) (agreeing with the
majority’s holding that the court lacked jurisdiction but writing separately to critique claims of absolute testimonial immunity)
(“[A] qualified—rather than absolute—privilege can still adequately protect the undeniably important Executive Branch interests
at stake when the Congress attempts to pry open the lid of presidential confidentiality” (citing Comm. on Judiciary v. Miers, 558
F. Supp. 2d 53, 100, 102 (D.D.C. 2008)), reh’g en banc granted, opinion vacated sub nom. U.S. House of Representatives v.
Mnuchin, 2020 WL 1228477 (D.C. Cir. Mar. 13, 2020).
92 See Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2029 (2020) (noting that interbranch oversight disputes “have been hashed
out in the hurly-burly, the give-and-take of the political process between the legislative and the executive” (internal quotation
marks omitted)).
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obtain. Thus, while Congress might wish to obtain copies of executive branch documents, an
accommodation might see committee staff able to review but not retain the documents.93
While the accommodations process is an informal dispute resolution method, it appears to have at least
two key characteristics. First, it is a flexible process, rather than a rigid, rules-based procedure. There
appear to be few if any restraints on the type of agreement that the branches can reach.94 Second, the
accommodations process has no clear end point. It can continue after an interbranch dispute has
progressed from an informal request for information to more formal methods of accessing or shielding
information, such as subpoena issuance,95 a formal assertion of executive privilege,96 contempt votes,97 or
litigation.98 For example, by engaging in the accommodations process, a House committee recently
obtained access to State Department dissent cables after issuing a subpoena for the information but before
marking up a related contempt resolution.99
Courts have recognized the fluid, continuing nature of the accommodations process and in some cases
have deferred deciding at once all the issues presented in a case so that the accommodations process could
unfold after the court’s partial rulings.100 In some cases, a court has stayed its hand for generally stated
“prudential” reasons.101 The D.C. Circuit has suggested that delay might be warranted given the potential
“implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the
needs of the conflicting branches.”102
In United States v. AT&T, the executive branch won an injunction barring AT&T from complying with a
subcommittee subpoena for asserted national security information. The chair of the subcommittee, who
had intervened in the district court, appealed the injunction.103 After remanding an earlier appeal so that
93 Agreement Concerning Accommodation, Comm. on Oversight and Reform, U.S. House of Representatives v. Barr, No. 19-cv-
03557 (D.D.C. Aug. 30, 2021) (allowing for initial in camera review and notetaking by committee members and staff but not
retention of document copies).
94 See Peter M. Shane, Legal Disagreement and Negotiation in A Government of Laws: The Case of Executive Privilege Claims
Against Congress, 71 MINN. L. REV. 461, 515 (1987) (explaining that negotiations during the accommodations process can
involve “not just one issue, disclosure, but several issues[,] namely, the timing, form and conditions of disclosure”).
95 H. REP. NO. 108-414, at 131-35 (describing negotiation and production for staff review of certain subpoenaed documents,
previously withheld, related to the Federal Bureau of Investigation’s use of informants).
96 See Agreement Concerning Accommodation, Comm. on Oversight and Reform, U.S. House of Representatives v. Barr, No.
19-cv-03557 (D.D.C. Aug. 30, 2021) (delineating procedures for in camera review by committee staff of subpoenaed documents
about the 2020 Census); Letter from Stephen E. Boyd, Ass’t Att’y Gen., Off. of Leg. Affairs, U.S. Dep’t of Justice, to Elijah E.
Cummings, Chair, House Committee on Oversight and Reform, U.S House of Representatives 2 (June 12, 2019) (advising that
President Trump had invoked executive privilege for certain 2020 Census-related documents).
97 See Shane, supra note 94, at 512-13(discussing a 1983 compromise allowing access to Environmental Protection Agency
records after its Administrator had been held in contempt by the House for not producing those records in response to an earlier
subpoena); Mark J. Rozzell, Executive Privilege in the Ford Administration: Prudence in the Exercise of Presidential Power, 28
PRES. STUD. Q. 286, 293 (1998) (chronicling an episode in 1975 in which an agency’s withholding of export reports on statutory
grounds resulted in a subpoena and subcommittee contempt vote before being resolved by a negotiated agreement under which
the reports were shown to the subcommittee chair).
98 See supra note 84 (referencing accommodations reached while appellate proceedings were ongoing).
99 See CRS Insight IN12184, Accommodation and Contempt of Congress: Two Oversight Case Studies, by Ben Wilhelm.
100 See Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 119 (D.D.C. 2016) (characterizing its opinion as
resolving the “legal issue that posed the primary impediment to a negotiated solution,” deliberative process privilege assertions,
and deferring rulings on other executive branch confidentiality claims so that the “process of negotiation and accommodation”
could continue “with respect to any of the other issues”).
101 Id. at 120.
102 AT&T II, 567 F.2d 121, 127 (D.C. Cir. 1977) (internal quotation marks omitted).
103 Id. at 123-24.
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the political branches could pursue accommodations,104 the D.C. Circuit ruled on a threshold question of
justiciability but again directed the parties to explore settlement.105
In the court’s view, the Framers did not draft the Constitution to “define and allocate all governmental
power in minute detail,” instead expecting “a spirit of dynamic compromise” among the branches that
“would promote resolution of” disputes and an efficient, effective government.106 In view of this
expectation of “dynamic compromise” where neither of the “political branches has a clear and
unequivocal” constitutional right, the court viewed the chance for further negotiations as “an opportunity
for a constructive modus vivendi, which positively promotes the functioning of our system.”107 The court
wrote that the “Constitution contemplates” accommodation and described efforts at compromise as a
“dynamic process” that “affirmatively further[s] the constitutional scheme.”108 If a court judgment could
reflect a negotiated resolution, that would mark “an allocation of powers” that furthers “the constitutional
process.”109
The accommodations process also arguably dovetails with at least some of the privilege standards that
courts have applied. For example, in the Operation Fast & Furious litigation, one factor the court weighed
when deciding whether the House committee had overcome the executive branch’s privilege assertion
was “the availability of other evidence.”110 The executive branch has pointed to material it produced in
the accommodations process to argue that a committee had not made the requisite showing of need to also
receive the material that was not disclosed.111
Because the accommodations process is not rules-based, the political branches need not follow any
particular framework in their efforts to reach a negotiated resolution. The executive branch has, however,
adopted procedures that structure its internal deliberations of privilege matters. As Assistant Attorney
General Christopher Schroeder informed this Subcommittee last year, the “accommodation process is the
subject of President Reagan’s 1982 memorandum to the heads of executive agencies.”112 The 1982
memorandum adopts the policy of complying with “Congressional requests for information to the fullest
extent consistent with the constitutional and statutory obligations of the Executive Branch.”113 It dictates
that executive privilege will be invoked “only in the most compelling circumstances” and only with
“specific Presidential authorization.”114 The memorandum also sets forth a procedure for invoking
104 AT&T I, 551 F.2d 384, 394 (D.C. Cir. 1976) (“Before moving on to a decision of such nerve-center constitutional questions”
as the compelled production of national security information, “we pause to allow for further efforts at a settlement.”).
105 AT&T II, 567 F.2d at 123, 130.
106 Id. at 127 (internal quotation marks omitted).
107 Id. at 127, 130 (internal quotation marks omitted).
108 Id. at 130.
109 Id. The parties achieved a negotiated resolution to their dispute, so the D.C. Circuit did not rule on the merits questions left
open by its second opinion, such as how, as a legal matter, to weigh the branches’ competing interests in the subpoenaed
information. See Rozzell, supra note 97, at 294-95.
110 Comm. on Oversight & Gov’t Reform, U.S. House of Representatives v. Lynch, 156 F. Supp. 3d 101, 112 (D.D.C. 2016); cf.
supra notes 47- 50 and accompanying text.
111 See Assertion of Executive Privilege Concerning the Special Counsel’s Interviews of the Vice President and Senior White
House Staff, 32 Op. O.L.C. 7, 12 (2008) (arguing that DOJ “has produced or made available for the Committee’s review dozens
of FBI reports of interviews with senior White House staff and State Department and Central Intelligence Agency officials”).
112 Breaking the Logjam Part 2, supra note 29 (statement of Christopher Schroeder); see also Letter from William P. Barr, U.S.
Att’y Gen., to President Donald J. Trump 6 (June 11, 2019) (advising President Trump to make protective executive privilege
assertions as to certain 2020 Census-related documents and citing the 1982 Reagan Memorandum).
113 Memorandum From Ronald Reagan, President of the United States, for the Heads of Executive Dep’ts & Agencies:
Procedures Governing Responses to Congressional Information 1 (Nov. 4, 1982).
114 Id.
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executive privilege.115 This process starts from the presumption that congressional requests will be
fulfilled “promptly and as fully as possible” but then provides for consideration within the executive
branch of requests that are found to pose a “substantial question of executive privilege.”116 This process
may result in formal assertions of executive privilege with the President’s specific approval.117 Other
decisions from OLC also guide executive branch processing of congressional information requests.118 No
comparable procedures appear to exist for Congress’s engagement in the accommodations process, which
seems to permit committee and Member discretion in how to pursue information.
Congress’s Options to Facilitate Information Access
Congress has several options for facilitating access to information in the executive branch’s possession.
First, it can leverage its constitutional powers to break logjams that it perceives to have developed with
information requests. A bill or joint resolution cannot become law without its bicameral passage, so either
chamber can withhold its support of a President’s legislative priorities to pressure release of requested
information.119 Relatedly, under the Appropriations Clause,120 the President cannot “touch moneys in the
treasury of the United States, except [as] expressly authorized by act of Congress,”121 so either chamber
can withhold its consent to appropriations. The Senate can employ its advice and consent powers for
nominations and treaties122 to press for information access.123 The House has also used its impeachment
power124 when in its view a President directed defiance of House committee subpoenas.125
Second, Congress can seek to employ the criminal contempt of Congress statute to obtain compliance
with its subpoenas.126 Those efforts “will likely prove unavailing” if the person held in contempt resisted
complying with congressional demands at the direction or with the endorsement of the President.127 The
statute tasks the “appropriate United States Attorney” with presenting the matter to a grand jury,128 but
DOJ is unlikely to take that step as to a person whose privilege or immunity assertion the sitting President
directed or endorsed.129
115 Id.
116 Id.
117 Id. at 1-2. While the executive branch considers whether to formally assert executive privilege, the memorandum instructs that
the Department Head shall request the congressional requester to hold the matter in abeyance and “expressly indicate that the
purpose of this request is to protect the privilege pending a Presidential decision.” Id. The request to hold the matter in abeyance
“does not constitute a claim of privilege.” Id.
118 See, e.g., Cong. Oversight of the White House, 2021 WL 222744, at *18 (O.L.C. Jan. 8, 2021) (“Because congressional
oversight needs generally may be satisfied through requests to the departments and agencies” that administer most programs,
“requests for information about programs administered outside the White House should be directed there in the first instance.”).
119 U.S. CONST. art. I, § 7, cls. 2-3.
120 Id. art. I, § 9, cl. 7.
121 Knote v. United States, 95 U.S. 149, 154 (1877).
122 U.S. CONST. art. II, § 2.
123 Nomination Hearings of the 114th Congress Before the S. Comm. on Foreign Relations, 114th Cong. 490 (2017) (statement of
Sen. Robert Corker, Chair, S. Comm. on Foreign Relations) (publicly pressing the State Department, during a nomination
hearing, for release of certain information requested during a prior close-door meeting).
124 U.S. CONST. art. I, § 2, cl. 5.
125 H.Res. 755, 116th Cong. art. II (2019) (Obstruction of Congress).
126 2 U.S.C. §§ 192, 194.
127 Garvey, Congressional Subpoenas, supra note 86, at 11.
128 2 U.S.C. § 194.
129 Whether the Dep’t of Just. May Prosecute White House Offs. for Contempt of Cong., 32 Op. O.L.C. 65, 66 (2008) (“The
Department of Justice has long taken the position, during administrations of both political parties, that the criminal contempt of
(continued...)
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Third, the Supreme Court has stated that Congress possesses an inherent constitutional power to punish
contempts.130 Under this inherent contempt power, a chamber’s Sergeant-at-Arms detains an allegedly
contumacious individual and the chamber (or a committee) considers the alleged contempt at a hearing
before deciding (or for a committee, reporting to the chamber) whether to detain or imprison the
individual until the obstruction to its legislative power is removed.131 The chambers do not appear to have
used this power since the 1930s.132
Finally, as previously discussed, Congress may attempt to enforce its demands in court, and in recent
Congresses the House has passed legislation to specify procedure for such suits. During the 117th and
115th Congresses, the House passed legislation that would have created special procedures for a civil
action brought to enforce a congressional subpoena by the House, the Senate, or a committee.133 Among
other provisions, the bills would have directed the federal courts “to expedite to the greatest possible
extent the disposition of any such action and appeal.”134 The bills also would have given the congressional
plaintiff the option of having the action first heard by a three-judge panel, whose final decision would
then be directly appealable to the Supreme Court.135
Procedures of this type appear to be within Congress’s constitutional authority to regulate procedure in
the federal courts.136 Similar provisions appear in statute in other contexts.137 Language expediting
judicial consideration of Senate subpoena enforcement actions once appeared in statute.138 Such
expediting language also appears consistent with the flexible approach courts have taken to managing
interbranch disputes. The expediting language would underscore Congress’s desire for expeditious
resolution but would not impose a date-certain deadline for decision. Thus, if a court were to conclude
that it has jurisdiction over a dispute but that prudential or constitutional considerations justify the court
temporarily staying its hand to allow the parties to focus on the accommodations process,139 this judicial
method would appear consistent with the expediting language.
Congress statute does not apply to the President or presidential subordinates who assert executive privilege.” (internal quotation
marks omitted)).
130 Jurney v. MacCracken, 294 U.S. 125, 150 (1935) (stating that “the power to punish for a past contempt is an appropriate
means” to vindicate the essential “congressional privilege” of “requiring the production of evidence”).
131 Garvey, Congressional Subpoenas, supra note 86, at 13-14.
132 Garvey, Congressional Subpoenas, supra note 86, at 16; see also id. at 17-27 (discussing separation-of-powers issues).
133 H.R. 5314, 117th Cong. § 403 (2021); H.R. 4010, 115th Cong. § 2(a) (2017).
134 H.R. 5314, 117th Cong. § 403 (2021); H.R. 4010, 115th Cong. § 2(a) (2017).
135 H.R. 5314, 117th Cong. § 403 (2021); H.R. 4010, 115th Cong. § 2(a) (2017).
136 See Wayman v. Southard, 23 U.S. 1, 4 (1825) (stating that it was “completely self-evident” that Congress “has the power to
regulate the proceedings of the Federal Courts” because the ability to provide “all the needful and usual incidents to Courts” is
implied from the power to establish courts).
137 See, e.g., 48 U.S.C. § 2126(d) (directing expedited consideration of any action or appeal brought under the Puerto Rico
Oversight, Management, and Economic Stability Act); 52 U.S.C. § 10101(g) (provision for three-judge panel and expedited
consideration in certain voting matters).
138 In particular, prior to 1986 when the provision was repealed, Senate subpoena-enforcement actions were to be set for hearing
at the “earliest practicable date” and “in every way to be expedited.” Ethics in Government Act of 1987, Pub. L. No. 95-421,
§ 705(f)(1), 92 Stat. 1824, 1879 (1978) (28 U.S.C. § 1364(c)); Pub. L. No. 98-620, § 402(29)(D), 98 Stat. 3335, 3359 (1986)
(repealing former subsection (c) of 28 U.S.C. § 1364).
139 See supra notes 100-109 and accompanying text.
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