Title: Congressional Subpoena Power and Executive Privilege: The Coming Showdown Between the Branches - Lawfare
Headings: Congressional Subpoena Power and Executive Privilege: The Coming Showdown Between the Branches
Congressional Subpoena Power and Executive Privilege: The Coming Showdown Between the Branches
The Basics
Civil Enforcement Actions
Legislative Attempts to “Strengthen” the Subpoena Power
What is the Trump Administration’s Policy on Executive privilege?
Other Examples of the Trump Administration’s Approach to Executive Privilege
Going forward, what does it all mean?
Conclusion
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Content: Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena. Either house of Congress can vote to hold in contempt a witness who refuses to provide testimony or produce requested documents pursuant to a congressionally authorized subpoena. As set out in 2 U.S.C. § 194, the U.S. attorney for the District of Columbia has the “ duty [] to bring the matter before the grand jury for its action .” Contempt of Congress, which is a federal misdemeanor, is punishable by a maximum $100,000 fine and a maximum one-year sentence in federal prison. But if the executive branch is not inclined to prosecute a contemnor (the contemnor is a person or entity who is guilty of contempt before a judicial or legislative body), Congress will have a difficult time implementing such a penalty. Congress can also file a lawsuit asking a judge to order the witness to provide the information, raising the additional possibility of imprisonment for contempt of court. A valid assertion of executive privilege provides a lawful basis to decline to answer a congressional subpoena for testimony or documents. At its most basic, executive privilege is the proposition that certain confidential or sensitive communications within the executive branch are constitutionally protected from compelled disclosure to the executive’s coequal branches—Congress and the courts. There is no mention of executive privilege in the United States Constitution—rather, it is a principle implied in the Constitution’s separation of powers.