[国会记录第163卷第170号（2017年10月23日星期一）][众议院][H8059-H8061页]伊萨先生，2017年国会传票合规和执行法案。议长先生，我动议暂停规则并通过法案（H.R.4010），以修订经修订的《美国规约》和《美国法典》第28编，根据《宪法》第一条规定的立法权以及经修订的其他目的，加强对信息请求的遵守。秘书宣读了议案的标题。法案内容如下：第4010号H.R.法案由美利坚合众国参众两院在国会通过，第1节。简称。该法案可引称为《2017年国会传票合规与执行法案》。秒。2.执行国会传票(a） 概述。--美国法典第28编第85章通过在第1365节之后插入以下内容进行修订：`第。1365a。针对传票接收人的国会诉讼``（a）特殊规则。--在美国众议院、美国参议院或其委员会或小组委员会针对传票接收人提起的任何民事诉讼中，以确保获得宣告性、禁令性、，或关于未能遵守国会委员会或小组委员会发出的传票的其他适当救济，应适用以下规则：``（1）诉讼应提交有管辖权的美国地区法院``(2） 美国地区法院、美国上诉法院和美国最高法院有义务对诉讼进行审理，并尽可能加快对任何此类诉讼和上诉的处理``(3） 如果原告在初始诉状中明确要求由三名法官组成的法院，则该诉讼应由根据《美国法典》第28编第2284节召集的三名法官组成的法院审理，且只能通过直接向美国最高法院上诉的方式进行复审。此类上诉应在作出最终决定后10天内提交上诉通知，并在30天内提交管辖权声明``(b） 涉及政府机构的案件中的罚款。-```（1）法院可直接对被认定故意不遵守国会传票任何部分的政府机构负责人或其组成部分施加罚款``(2） 拨付的资金、从财政部任何账户提供的资金、从收费中获得的资金或其他政府资金不得用于支付法院根据本节施加的任何罚款``(c） 放弃特权。--任何特权主张或其他不合规理由（无论是法定的、普通法的、，（或其他）如果法院发现，国会传票接收人未能及时遵守《美国修订法规》第105节要求其出示特权日志的要求，则可确定其放弃了任何被拒绝出示的特定记录关于这种记录``(d） 定义。--就本节而言，“政府机构”一词是指《美国法典》第5编第101节所列的行政部门、独立机构、委员会、董事会、局、部门或行政部门的办公室或联邦政府的其他机构，包括完全或部分拥有的政府公司。”(b） 文书修订。——美国法典第28编第85章章节表通过在与第1365节相关的项目后插入以下内容进行修订：`1365a。国会对传票接受者采取的行动。秒。3.遵守国会传票(a） 概述。--《美国修订规约》（2 U.S.C.191及以下）第二编第七章通过在末尾添加以下内容进行修订：`第。105.对国会传票的回应``(a） 国会委员会发出的传票。--国会委员会或小组委员会发出的任何传票的任何接收人应以与传票和本节一致的方式出庭作证或出示记录``(b） 国会传唤记录。-```（1）扣留记录的识别。--如果传唤接收人扣留了全部或部分记录，传票接收人应提供一份日志，其中包含与该记录有关的以下信息：``（a）明确声明和说明扣留该记录的法律依据``(B） 记录的类型``(C） 一般主题``(D） 日期、作者和收件人``(E） 作者和收件人之间的关系``(F） 记录的保管人``(G） 可能产生的任何其他描述性信息d or disclosed regarding the record that will enable the congressional committee or subcommittee issuing the subpoena to assess the legal basis asserted for withholding the record. ``(2) Missing records.--In the case of any record responsive to the subpoena submitted under paragraph (1) that was, but no longer is, in the possession, custody, or control of the subpoena recipient, the subpoena recipient shall identify the record (including the date, author, subject, and each recipient of the record) and explain the circumstances under which the record ceased to be in the possession, custody, or control of the subpoena recipient. ``(3) Electronic records.--Electronic records shall be produced pursuant to this subsection in their native or original file format. Electronic records shall be delivered on [[Page H8060]] a storage device (such as compact disk, memory stick, or thumb drive) and, to the extent feasible, shall be organized, identified, and indexed electronically and shall include an index describing the contents of the production. ``(c) Definitions.--For purposes of this section the term `record' includes any books, papers, documents, data, or other objects requested in a subpoena issued by a congressional committee or subcommittee.''. (b) Clerical Amendment.--The table of contents for chapter 7 of title II of the Revised Statutes of the United States is amended by adding at the end the following: ``105. Response to congressional subpoenas.''. SEC. 4. RULE OF CONSTRUCTION. Nothing in this Act shall be interpreted to diminish Congress' inherent authority or previously established methods and practices for enforcing compliance with congressional subpoenas, nor shall anything in this Act be interpreted to establish Congress' acceptance of any asserted privilege or other legal basis for noncompliance with a congressional subpoena. The SPEAKER pro tempore. Pursuant to the rule, the gentleman from California (Mr. Issa) and the gentleman from New York (Mr. Nadler) each will control 20 minutes. The Chair recognizes the gentleman from California. general leave Mr. ISSA. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days to revise and extend their remarks and include extraneous material on H.R. 4010, currently under consideration. The SPEAKER pro tempore. Is there objection to the request of the gentleman from California? There was no objection. Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, this bill comes to you, having been unanimously voted on a recorded vote out of committee, but it has been a long time in coming and it has a long history of its need. Both under Chairman Conyers, during the last years of the Bush administration, and under my chairmanship on the Oversight and Government Reform Committee, we discovered a flaw in Congress' subpoena power. Congress has, and has always had, and has been supported all the way by the Supreme Court, the need to do oversight. With that, we issued subpoenas. The enforcement of those subpoenas has come into conflict over the last several years, both during Mr. Conyers' chairmanship when he subpoenaed Harriet Miers to appear, and during my time when I subpoenaed records by the Department of Justice. In both cases, the administrations decided that it was appropriate to question the standing and to delay. Those delays were unfair to the body and unfair to the American people because it denied them in any reasonable period of time the effect of factfinding. This is not a partisan issue. It is, in fact, an issue that has already been decided for the American people. Under the Freedom of Information Act, if you do not receive documents within a reasonable period of time, you have the right to go to court. You have standing as a private citizen or an interest group, and the court will decide what documents are appropriate for you to receive. Yet this very question that was not once, but twice, defended by two different administrations of two different parties calls into question the ability in a timely fashion for Congress, the House or the Senate, to receive the information or the appearance of a witness it needs. We do not seek any new power under this legislation. We only seek an expeditious review by a Federal judge of a claim, either for the appearance of an individual or for documents appropriate to our oversight. For that reason, I am pleased that both Republicans and Democrats within the committee saw fit to unanimously support this legislation. We believe that it is measured and it is also time. Mr. Speaker, I reserve the balance of my time. Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in strong support of H.R. 4010, the Congressional Subpoena Compliance and Enforcement Act of 2017. My support of this legislation is tied to my view of our committee's responsibility to conduct oversight of the executive branch. Nearly a century ago in McGrain v. Daugherty, the United States Supreme Court framed that responsibility this way: ``A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information--which not infrequently is true--recourse must be had to others who possess it.'' In other words, it is our responsibility to ask for the information we require to do our jobs effectively, and the Constitution empowers us to enforce those requests if we are at first denied. We should be very clear on this point. Congress does not require a statute in order to enforce its subpoenas in Federal court. We know this, of course, because in 2008, the House Judiciary Committee went to court to defend that authority. Ruling in favor of the committee, the court held that the Bush administration's claim of absolute immunity from our process ``is entirely unsupported by existing case law.'' In effect, both government officials and private individuals have a legal obligation to comply with the duly issued congressional subpoena whether or not the bill before us today is enacted into law, still this legislation is useful as a means to codify certain practices and to expedite enforcement of subpoenas in Federal court. It also puts the House on equal footing with the Senate, which has had a statute in place since 1978, allowing that body to enforce at least some of its subpoenas in Federal court. Mr. Speaker, I thank Chairman Goodlatte for working with us to make sure that we strike the right balance. This bill both protects our existing authority and mitigates many concerns about abusive subpoena power by a runaway committee. I also want to thank the gentleman from California (Mr. Issa) for his leadership on this issue. We often disagree about the issues we should prioritize for oversight, but I suspect that we stand together on the importance of oversight, both to our committee and to the Congress as a whole. Mr. Speaker, I ask that my colleagues support the measure, and I reserve the balance of my time. Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I want to further echo the gentleman from New York's comments. Mr. Nadler is right. We will often, almost unanimously, find a way to disagree on what to look into at various times as a body. But whether it is a Democratic chairman or Republican chairman looking into something, whether it is a Republican administration or a Democratic administration, it is clear that we must, in fact, if a subpoena is issued, be able to enforce it in a timely fashion. Under this legislation, it has a number of safeguards, but the most important one is the three-judge panel that will review these, followed by an expedited process at the U.S. Supreme Court. I might note, the interesting history of the two cases Mr. Nadler and I are talking about is one in which a Democratic chairman enforced a subpoena, but had to go to a recently appointed Republican judge, who, in a fairly reasonable period of time, reached the conclusion that: one, the committee had standing, and the House had standing and; two, that it was really without merit for the administration--then the Bush administration--to claim this immunity, this newfound immunity. Similarly, in a slightly longer period of time, but coincidentally, a Republican chairman went before a freshly minted appointee of the very President who was refusing to comply, and she reached the decision that the documents were unfairly withheld and ordered them released. So I think the interesting thing to all of us is the independence of the judiciary has worked not once but twice. We only want to codify it in a way that would cause the judiciary to have that opportunity in a timely fashion, and for the people's right to know to be recognized in that same expeditious fashion. As Mr. Nadler said, the Senate has, for a long time, had a portion of what we are doing here today. It is an oddity that two coequals have not had the same ability during those many years since the late 1970s. Mr. Speaker, I reserve the balance of my time. [[Page H8061]] Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume. I want to share one last thought before closing. In our markup of this bill, the gentleman from California (Mr. Swalwell) had this to say about a recent experience in the Intelligence Committee: ``We had interviewed a witness just 2 weeks ago with respect to our Russia interference investigation. . . . ``After the interview, he gave a public statement . . . and said that he had withheld information from the committee because he was not under subpoena. ``And he also stated that he felt like he had certain privileges to assert that allowed him to withhold this information. ``And so I saw right there . . . that even under a subpoena, individuals believe''--some individuals believe--``that without necessarily having a judicial or legal basis for privilege that they could just assert it. ``And I believe that is because the public is starting to perceive that our subpoena power does not have the weight that it should.'' Wherever the Intelligence Committee's investigation lands, Mr. Speaker, we have a great deal of work to do. Given some of our current challenges, it is more important than ever for the House to conduct substantive oversight of the executive branch. This bill contributes to that effort, and I urge my colleagues to support it. Mr. Speaker, I yield back the balance of my time. Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I, too, urge the House to pass this bill, move it to the Senate in a timely fashion, and create an equal standing between the House and the Senate as to enforcement of its subpoenas. I join with my colleague, the gentleman from California (Mr. Swalwell), in the frustration that individuals often feel that they have privileges in a vague sense that are not to be asserted, but simply not to occur. In the last administration, we have even had individuals claim that they basically lied as little as they needed to, to protect some question of a classified nature. These kinds of claims, in addition to the law enforcement sensitive, confidential, and other security clearance claims, which are not codified in statute, yet often are the reason for delay or outright refusal to deliver documents, flies in the face of the ability--sometimes behind closed doors, sometimes in public--for Congress' ability to conduct oversight. I look forward to this legislation becoming law, and I think I will close with just one more item. Mr. Nadler and I have served together as chairman and ranking member for a number of years. We share something which is the many years that we have been here in Congress, we have seen the frustration of both parties trying to do their job against another branch that often takes advantage of the natural rivalry between two different parties. This legislation is designed to reduce that, to reduce the ability for the executive branch or other outside groups to, if you will, take advantage of the natural division between the two of us. After so many years of being here, the one thing I have learned is that to diminish the House's and the Senate's ability to represent the American people is to diminish our Republic. Mr. Speaker, I urge passage, and I yield back the balance of my time. Mr. GOODLATTE. Mr. Speaker, although the power of Congress to investigate is not set forth in any particular clause in the Constitution, congressional investigations trace their roots back to the earliest days of our Republic. In fact, what is thought to be the first congressional investigation occurred in 1792, when the House appointed a select committee to investigate the massacre of American troops under the command of Major General Arthur St. Clair. The resolution authorizing that investigation stated that the committee shall ``be empowered to call for such persons, papers, and records, as may be necessary to assist their inquiries.'' Upon learning of the investigation, President Washington assembled his cabinet to seek their counsel. His cabinet, which included Thomas Jefferson and Alexander Hamilton, unanimously concluded that the House had every right to conduct its inquiry and request papers from the President. President Washington directed that the relevant papers be provided to the House and the War and Treasury Departments provided voluminous records to the committee. Unfortunately, not all congressional investigations are met with the cooperation the first investigation received. Rather, sometimes Congress and its committees must rely on another inherent power derived from the Constitution to investigate effectively--the congressional subpoena power. As the Supreme Court has observed, although ``there is no [constitutional] provision expressly investing either house with the power to make investigations and exact testimony . . . the power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function. . . . Experience has taught that mere requests for information often are unavailing . . . so some means of compulsion are essential to obtain what is needed.'' That means of compulsion is often a subpoena issued by a congressional committee backstopped by a civil action filed in federal district court. In recent years, the House and its committees have pursued two such civil actions, including one filed by this Committee, to enforce compliance with congressional subpoenas. The legislation we are considering today, the Congressional Subpoena Compliance and Enforcement Act, codifies and strengthens the existing civil enforcement mechanisms thereby reinforcing the powers granted Congress in Article I of the Constitution. This legislation creates a statutory framework for compliance with and enforcement of congressional subpoenas through a few targeted changes to federal law. First, the bill puts in place a statutory requirement that recipients comply with congressional subpoenas. Second, the bill statutorily requires subpoena recipients to provide a congressional committee with a privilege log if they assert a legal privilege as a reason for withholding subpoenaed materials. Finally, the bill provides that congressional subpoena enforcement cases are to receive expedited review in the federal courts and that a congressional committee may request that a subpoena enforcement case be heard by a three-judge panel of the district court, with direct appeal to the Supreme Court. While it is true that some of what is addressed by the bill is currently covered through negotiation with subpoena recipients and is recognized in the precedents of courts in the D.C. Circuit, the current statutory requirements related to compliance with and enforcement of a committee subpoena are limited. Indeed, the existing civil subpoena enforcement statute only covers the Senate and does not apply to Senate subpoenas issued to the Executive Branch. It is time that we put in place a statutorily created, expedited civil enforcement mechanism for congressional subpoenas. Relying on the existing framework to enforce congressional subpoenas has proved to be an inadequate means of protecting congressional prerogatives. I thank Mr. Issa for introducing this legislation and urge my colleagues on both sides of the aisle to support it. This bill is a necessary step to strengthen Congress's ability to exercise its Article I legislative powers. The SPEAKER pro tempore. The question is on the motion offered by the gentleman from California (Mr. Issa) that the House suspend the rules and pass the bill, H.R. 4010, as amended. The question was taken; and (two-thirds being in the affirmative) the rules were suspended and the bill, as amended, was passed. A motion to reconsider was laid on the table. ____________________