Over The Decades, Congress Has Used Its Subpoena Power Many Times

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Originally published on March 13, 2019 10:19 am
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DAVID GREENE, HOST:

Among the many powers of Congress is the power of the subpoena. This is, of course, the right to order someone to appear for questioning. Democrats in the House have said recently that they will use this power to find out what former FBI Director Robert Mueller learned in his investigation into Russian election interference if his report is not made public. Now, we should say Congress has used this power many times over the years.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #1: Are you a member of the Communist Party?

UNIDENTIFIED PERSON #2: It's unfortunate and tragic that I have to teach this committee the basic principles of Americanism.

UNIDENTIFIED PERSON #1: That's not the question. That's not question. The question is have you ever been a member of the Communist Party?

GREENE: That is 1947, the House Un-American Activities Committee grilling a Hollywood writer, and I want to talk more about this with commentator Cokie Roberts who joins us each week for our Ask Cokie segment where she takes your questions about how the government works. Cokie, that is some amazing old tape.

COKIE ROBERTS, BYLINE: It is. That was quite an amazing time, David.

GREENE: Yeah. Well, let me start with just the basics here. I mean, what does the Constitution say in terms of Congress and its subpoena power?

ROBERTS: Nothing, but the Constitution says the Congress has the power to legislate. And the assumption always was that legislation would require investigation. Even in the Constitutional Convention, the inquisitorial powers of Congress were discussed, and Congress started using the investigative power in the very first Congress. The Supreme Court has regularly upheld it, as long as it's used for legislative purposes, and basically says that in order to legislate, Congress has to be able to investigate.

GREENE: All right. Well, I want to go to our listeners. Here's one of the questions that came in.

JOANN SANTIAGO: This is JoAnn Santiago in Bedford, Mass. What is the penalty for not complying with a congressional subpoena, and has it ever been enforced against an administration official? Is cooperation between Democrats and Republicans required to enforce penalties for lack of compliance?

GREENE: Cokie?

ROBERTS: If someone doesn't show up when called, or refuses to supply documents or answer questions, they can be held in contempt of Congress. And the example we just heard of the House Un-American Activities Committee, the so-called Hollywood Ten who refused to answer the communist question, were cited for contempt. They were fined. They were sent to jail. And no, the parties don't have to agree. A simple majority in either house is all that's necessary to cite someone with contempt.

GREENE: And she asked if punishments have ever been used against administration officials. Does that happen?

ROBERTS: Sure. Just in my memory, in the Obama administration, the Republican House held Attorney General Eric Holder in contempt. George W. Bush's White House chief of staff, Josh Bolten, got a contempt citation from Congress. And in the Reagan administration, the Democratic House held EPA Administrator Anne Gorsuch Burford in contempt. So it does happen.

GREENE: Well, then the question is what happens after that? And that's what our next listener is interested in.

ERNESTO RIOS: Hi. This is Ernesto Rios in Chicago. Who enforces a subpoena from Congress? Do they have their own people that enforce it, or do they depend on the executive, like Department of Justice, if somebody refuses to testify and is being held in contempt?

ROBERTS: So originally, David, it was the Sergeant of Arms of the House who would lock people up in the Capitol or in a nearby hotel. But since the mid-19th century, it's been turned over to the Justice Department. Obviously, it's a problem if Justice refuses to do it because the person held in contempt is a member of the same administration.

So then the case goes to the courts. But what usually does happen in these cases is a compromise where enough papers are turned over to satisfy the congressional committee interested. And just watch what's going to be happening in the next few months. Papers are going to be flying up Pennsylvania Avenue.

GREENE: All right. We'll be waiting for that. It seems like that time is coming. Cokie, thanks as always.

ROBERTS: Good to talk to you, David.

GREENE: Commentator Cokie Roberts. And you can ask her your questions about how politics and government work. Just tweet us. Use the hashtag #AskCokie. Transcript provided by NPR, Copyright NPR.