In a Catalyst article by Trevor Mauk and Jonathan Hofer, the authors cover a pending Supreme Court case, FBI v. Fazaga. The question at issue in Fazaga is whether the “District court can review contested surveillance that is protected under state secrets privilege.”

What Mauk and Hofer grapple with is the leeway the government has to withhold evidence from a legal proceeding. Another interesting corollary to this is, how does the government, specifically 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 house or committee of Congress, which compels a production of documents or testimony. Congress has three tools to enforce subpoenas: (1) criminal enforcement of 2 U.S. Code § 192 and 2 U.S.C. § 194, which broadly cover a witness’ refusal to testify or produce papers; (2) civil enforcement by federal courts compelling compliance under threat of contempt of court; and (3) Congress’ contempt authority which empowers an agent of Congress to “take a person into custody for proceedings to be held in Congress” until the conditions of the subpoena are met. 

This third enforcement mechanism is an especially interesting legal and historical development, as Congress is not a law enforcement body.

Broadly, Congress’ power to request information and hold noncompliant persons in contempt would appear to comport with an original understanding of Congress’ reach of power at the time of the republic’s founding. Indeed, Congress has had people arrested. In 1795, Robert Randall and Charles Whitney were arrested after allegedly attempting to bribe three members of the House, without so much debate as to Congress’ authority to do so. 

In 1800, William Duane, editor for the Jeffersonian-Republican-leaning newspaper The Aurora, refused to comply with a Senate investigation into his leaks of unpublished legislation. Mr. Duane believed he could not get a fair trial and, after more debate than in Mr. Randall’s case, was held by the Senate’s Sergeant at Arms for several weeks. 

The Senate had another reporter arrested in 1848. John Nugent, for the New York Herald, was arrested for failing to disclose his source of a leaked treaty between the United States and Mexico. The Senate ordered his detainment by the Sergeant of Arms under what can be described as friendly and generous accommodations. 

The Supreme Court, dating back to the early 1800s, has affirmed congressional subpoena power. While case law has held that the power is not enumerated by the Constitution, the Supreme Court has continually found that the power exists as an implied power, most recently addressed in the 2020 case Trump, et al., v. Marzars USA LLP, et al. 

Justice Clarence Thomas, dissenting in Marzars, suggests that at the time of America’s founding, the idea of implied subpoena power, especially involving nonofficial documents, was considered controversial. 

It poses a question: how much weight should originalist judges place on the precedent?

There is no solid textual foundation for subpoenas or enforcement of subpoenas in the Constitution and the history of the practice is described as controversial, but the practice was allowed. 

Possibly to clarify this ambiguity, Congress has since enacted laws that prohibit impeding the work of Congress, and each house has implemented procedures addressing subpoenas through its committees.

Undoubtedly, one would naturally recoil at the thought of a legislative officer imprisoning someone through congressional fiat and subject to a jury of elected officials without involvement from the executive. Despite a history dating back to the founding, and even before by the British Parliament and American Colonial Assemblies, Congress’ authority to physically imprison someone arguably erodes the otherwise reserved power of the executive to prosecute violations of law. Chief Justice John Roberts, writing for the majority in Marzars, notes that the subpoenas must serve “a valid legislative purpose” and are not to be used in a criminal probe. 

This still begs the question as to what is the full extent of congressional authority to hold an individual, over what they believe is a legal imprisonment of a noncomplicit party and well within the right of the legislative branch. It can be described as barbaric. The party being held in contempt could file for habeas corpus relief but may ultimately find an uphill battle as a litigant pursuing judicial review. 

With this power in Congress’ arsenal, we can be thankful that disputes arising from congressional subpoenas are most often resolved without intervention by the executive or the courts. Instead, most disputes are resolved through negotiations, out of court settlements, or are otherwise dismissed.