Where does Congress get its subpoena power? Note: You won’t find it in the Constitution
In a previous Catalyst article by Trevor Mauk and Jonathan Hofer, the authors cover a pending case in the Supreme Court, FBI against Fazaga. The question in question Fazaga is whether the “district court can review a contested surveillance protected by the privilege of state secrets.”
What Mauk and Hofer struggle with is the leeway the government has to withhold evidence from a court proceeding. Another interesting implication of this is how does the government, particularly Congress, have the power to request evidence in the form of subpoenas in their investigations?
A Congressional subpoena is an official request issued by either the House or the Congressional Committee, compelling the production of documents or testimony. Congress has three tools for enforcing subpoenas: (1) criminal enforcement of 2 US Code § 192 and 2 USC § 194, which largely cover a witness’s refusal to testify or produce papers; (2) civil enforcement by federal courts enforcing compliance under penalty of contempt of court; and (3) the Congressional Contempt Authority, which authorizes a representative of Congress to “take into custody a person for a process to be conducted in Congress” until the terms of the subpoena are satisfied.
This third enforcement mechanism is a particularly interesting legal and historical development since Congress is not a law enforcement agency.
Broadly speaking, Congress’s power to request information and to despise non-compliant individuals seems consistent with an original understanding of Congress’s reach of power at the time the Republic was formed. In fact, Congress has had people arrested. In 1795, Robert Randall and Charles Whitney were arrested after allegedly attempting to bribe three members of the House of Representatives without Congress’ authority.
In 1800, William Duane became editor of the Jeffersonian-Republican-like newspaper The Aurora, refused to comply with a Senate probe into its leaks of unpublished legislation. Mr. Duane felt he could not get a fair trial and, after more debate than in Mr. Randall’s case, was detained for several weeks by the Senate Sergeant at Arms.
The Senate arrested another reporter in 1848. John Nugent, e.g the New York Herald, was arrested for failing to reveal his source of a leaked treaty between the United States and Mexico. The Senate ordered his imprisonment by the Sergeant of Arms as part of kind and generous accommodations.
The early 19th-century Supreme Court upheld the subpoena power of Congress. While case law has held that the power is not listed in the Constitution, the Supreme Court has consistently held that the power exists as an implied power, most recently in the 2020 case Trump, et al., v. Marzars USA LLP, et al.
Judge Clarence Thomas disagrees Marzarsindicates that at the time of the founding of the United States, the idea of a silent subpoena, particularly in relation to non-official documents, was considered controversial.
The question arises: how much weight should originalist judges give to precedent?
There is no solid textual basis for subpoenas or subpoena enforcement in the Constitution, and the history of the practice is described as disputed, but the practice has been permitted.
Possibly to clear up this ambiguity, Congress has since enacted legislation prohibiting obstruction of the work of Congress, and each House has established procedures dealing with subpoenas by its committees.
No doubt one would cringe at the thought of a Legislative Officer imprisoning someone by an act of Congress and subjecting them to a jury of elected officials with no executive branch involvement. Despite a history stretching back to its founding, and even before that by the British Parliament and American colonial assemblies, Congress’s power to physically imprison someone arguably undermines the Executive Branch’s otherwise reserved power to prosecute violations of the law. Chief Justice John Roberts writing for the majority in Marzarsnotes that the subpoenas must serve “a valid legislative purpose” and not be used in a criminal investigation.
This still begs the question. What is the full extent of Congress’ authority to hold a person for what they believe to be legal detention of a non-accomplice party and consistent with Legislative branch law? It can be called barbaric. The party that is disregarded could file a petition for discharge of habeas corpus, but ultimately could face an uphill battle as a litigant seeking judicial review.
With this power in Congress’ arsenal, we can be thankful that disputes arising from Congressional subpoenas are mostly settled without executive or court intervention. Instead, most disputes are resolved through negotiation, out-of-court settlements, or otherwise.