Menu Close

Senate Judiciary FISA Subpoenas Likely Toothless without Enforcement Reforms

Thursday, June 11, 2020 3:00pm
Media Contact: Bill Murphy • • (610) 529-6494 (m)

• Congress Has Failed to Enforce Subpoenas Contested by Executive Branch Officials

• A Credible Threat of Punishment for Non-Compliance is the Key Missing Element

• Effective Enforcement Historically Linked to Swift Consequences for Defiance

• Senate Should Implement Inherent Contempt Fines and Criminal Prosecutions by Senate-Appointed Attorneys to Restore Credible Threat of Personal Punishment

Washington, DC – Advocacy group Good Government Now (GGN) said in a statement today that the U.S. Senate would have to adopt reforms to significantly strengthen its subpoena enforcement capabilities if it hopes to enforce any subpoenas concerning investigations of FISA abuses and related matters authorized in two Senate committee votes today.

The Senate Judiciary Committee today approved a subpoena authorization resolution to provide Chairman Lindsey Graham authority to issue subpoenas to dozens of witnesses in an investigation of abuses of the FISA process and the origins of the Crossfire Hurricane investigation.

GGN President Dr. William J. Murphy asked, “What will Chairman Graham do when some of these subpoenas are ignored? Will Leader McConnell and a majority of the Senate support enforcing them? These questions are important because the Senate is prohibited by statute from employing civil lawsuits to enforce subpoenas of federal officials and its rules prevent committees from enforcing subpoenas directly without approval of the full Senate.”

“Furthermore,” Murphy said, “Congress has already encountered difficulty obtaining information about FISA abuses from executive branch officials, including from some named on the Senate committee subpoena lists. This pattern is unlikely to change if the Senate does not impose meaningful consequences on those who might refuse to comply with its subpoenas.”

“The Senate would have to adopt major reforms to strengthen its subpoena enforcement capabilities to be able to compel recalcitrant witnesses to comply with any subpoenas related to its FISA abuse investigations that may be authorized by today’s committee votes,” Murphy argued. “Most importantly, the Senate would have to re-establish a credible threat of significant personal punishment for current and former executive branch officials who defy legislative subpoenas.”

“The best way for both houses of Congress to restore meaningful consequences for non-compliance with legislative subpoenas is to immediately adopt the inherent contempt fines proposal recommended by Good Government Now that would enable each of them unilaterally to conduct trials of, convict, and directly sanction executive branch officials who defy congressional subpoenas with heavy personal fines ranging from $25,000 to $250,000,” Murphy explained.

 GGN Senior Fellow Morton Rosenberg added that “Inherent contempt fines should be supplemented with a provision enabling the House to authorize the Speaker to appoint private attorneys to prosecute persistently recalcitrant executive branch officials for criminal contempt of Congress in the event the inherent contempt fines are insufficient to motivate their compliance with a subpoena.”

“The experiences of the last fifteen years leave no doubt that Congress has lost the ability to enforce subpoenas of executive branch officials who refuse to comply. The problem has become progressively worse during this period and has been especially problematic during the current administration when refusals to comply with legislative information requests and subpoenas run into the several dozens,” Rosenberg continued.

“The root cause of this crisis in declining subpoena enforcement authority is that Congress has lost a credible threat of personal punishment for those who refuse to comply with subpoenas,” Murphy said. “A credible threat of punishment is the most effective subpoena enforcement strategy. Inherent and criminal contempt were effective historically because they confronted people who defied congressional authority with certain, swift punishment. The House and Senate need to return to that strategy.”

Murphy further explained that “Between 1857 and 1934, at least 28 witnesses complied with congressional information demands after being threatened with or charged in inherent contempt actions including two executive branch officials. Despite this impressive success, Congress abandoned inherent contempt because the required floor trials were too time consuming and instead turned toward exclusive reliance on criminal contempt after 1935. From 1975 to 1998, ten cabinet-level and senior White House officials complied substantially or fully with congressional subpoenas after citations for criminal contempt triggered the threat of potential criminal prosecution.”

“Congress clearly possesses the authority to impose fines through inherent contempt as well as to appoint attorneys to prosecute criminal contempts,” Murphy added.  “These powers are supported by strong Supreme Court and Appellate Court precedents affirming the equivalence of the legislative and judicial contempt powers as well as the validity of judicial appointments of private counsel to prosecute criminal contempts of court.”

 Murphy also said, “The Supreme Court has made clear in seminal cases beginning with Anderson v. Dunn in 1821 that the legislative and judicial contempt powers are analogous and that anything a court can do to enforce contempts is available to Congress as well.  The courts also consistently have upheld the authority of judges to appoint private attorneys to undertake criminal contempt of court prosecutions and for other purposes in such landmark cases as in Young v. U.S. ex rel. Louis Vuitton et Fils, Morrison v. Olson, and United States v. Arpaio.  Therefore, given that courts punish contempt of their own proceedings directly through fines and by appointing attorneys to prosecute on the court’s behalf, Congress can do the same.”

Murphy concluded by emphasizing that “The inherent contempt fines procedure and provision for independent criminal contempt prosecutions by congressionally-appointed attorneys can be implemented by passage of a simple House or Senate resolution.  Moreover, penalties imposed through these enforcement mechanisms are not subject to the presidential pardon power. Most important of all, these inherent contempt powers are constitutionally indispensable and cannot be encroached upon or diminished in any way by the other branches nor ceded by Congress itself, either voluntarily or involuntarily.”

+ posts

Leave a Reply