Continuing Effect of a Congressional Subpoena Following the Adjournment of Congress

Continuing Effect of a Congressional Subpoena Following
the Adjournment of Congress

A congressional subpoena lacks present force and effect after the adjournm ent sine die of a Congress,
and it therefore im poses no continuing duty to com ply with its directives; similarly, it will not
support the continued exercise by C ongress of the power to punish for contem pt.

Judicial construction o f the procedure by which a congressional com m ittee’s contem pt citation is
certified for prosecution under 2 U .S .C . § 192 indicates that it would require action by the whole
H ouse and not sim ply the Speaker if the contem pt occurs while Congress is in session. A ccording­
ly, if the contem pt in this case were not reported to th e House while it was still in session, o r if the
H ouse failed to act on the resolution, the citation w ould die upon Congress’ adjournm ent and be of
no fu rth er force and effect

If a su ccesso r com m ittee in the subsequent Congress brought a civil action to enforce the prior
co m m ittee’s subpoena, its success m ight depend upon w hether the court viewed the prior
subpoena and refusal to comply as a historical fact w hose validity could not now be adjudicated.
T h is rationale w ould support an action for declaratory relief, but not one for injunctive relief.

December 14, 1982

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

You have asked us to consider the question of the continuing effectiveness of a
congressional subpoena following the adjournment of a Congress. There are at
least four situations in which the issue might arise, including whether the
subpoena provides a basis for: (1) a continuing obligation to produce the re­
quested documents; (2) congressional contempt proceedings within the inherent
power of Congress; (3) criminal contempt prosecution under 2 U.S.C. § 192
(1976); and (4) civil enforcement in the district court.
We believe that the better view is that the subpoena is not effective as a
predicate for the first three proceedings but that it might be for the last. For the
first two, there could be no continuing assertion of congressional authority
because the subpoena will have lost present force and effect. For the third,
judicial interpretation of the process by which a committee’s citation for con­
tempt is certified under 2 U.S.C. § 194 for prosecution under 2 U.S.C. § 192,
coupled with appropriate separation of powers principles, should prevent further
congressional action after adjournment.1 For the last, the issue is whether the

1 This memorandum does not address the separate issue whether 2 U.S.C. § 192 and§ 194 can ever be applied to
executive officials See Letter of June 18, 1956, from William P. Rogers, Deputy Attorney General, to Hon. John E.
M oss, Chairm an, Government Information Subcommittee, Committee on Government Operations, reprinted in
Availability c f Information from Federal D epartments and Agencies Hearings Before a Subcomm c f the House
Comm, on Government Operations, 84th C ong , 2d Sess. 2891 (1956)

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historical fact of the viability of the subpoena and lack of compliance in the past is
a sufficient basis for further congressional action.

I. Continuing Obligation to Produce Documents

It is clear that upon the adjournment sine die of a Congress, a House subpoena
would cease to have any current effectiveness as far as imposing a continuing
obligation to produce documents. This lapse in effectiveness of the subpoena
results from the same factors that produce, at that same time, the death of all
pending legislation not enacted, see F. Riddick, The United States Congress 56
(1949), and the termination of congressional authority to hold a contumacious
witness in custody. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821);
Marshall v. Gordon, 243 U.S. 521, 542 (1917). Because the subpoena would
lack any present force or effect, it would impose no continuing duty to comply.

II. Inherent Congressional Power to Punish for Contempt

It is similarly clear from Anderson and Marshall that any confinement for
contempt imposed by Congress in the exercise of its inherent constitutional
powers must terminate upon adjournment sine die. See United States v. Fort, 443
F.2d 670, 676 (D.C. Cir. 1970), cert, denied, 403 U.S. 932 (1971). The duration
of confinement, in fact, is measured by the session, and not the term, of
Congress. This shorter duration seems to indicate that the limitation is imposed
not merely out of a recognition that the subpoena lacks any present force or effect
and will therefore not support the continued exercise of the power to impose a
penalty for contempt. Whatever the alternative rationale which requires the more
strenuous limitation, the result is clear that the effect of adjournment is the end of
congressional power.

III. Criminal Prosecution Under 2 U.S.C. § 194

Section 194 of Title 2, United States Code, provides:
Whenever a witness summoned as mentioned in section 192 of
this title fails to appear to testify or fails to produce any books,
papers, records, or documents, as required, or whenever any
witness so summoned refuses to answer any question pertinent to
the subject under inquiry before either House, or any joint com­
mittee established by a joint or concurrent resolution of the two
Houses of Congress, or any committee or subcommittee of either
House of Congress, and the fact of such failure or failures is
reported to either House while Congress is in session, or when
Congress is not in session, a statement of fact constituting such
failure is reported to and filed with the President of the Senate or
the Speaker of the House, it shall be the duty of the said President
of the Senate or Speaker of the House, as the case may be, to

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 certify, and he shall so certify, the statement of facts aforesaid
under the seal of the Senate or House, as the case may be, to the
appropriate United States Attorney, whose duty it shall be to bring
the matter before the grand jury for its action.
The predicate offense under § 192 of refusal to testify or produce papers is set out
in the footnote.2
Section 194 appears to require a vote by a committee of Congress to hold the
witness in contempt and a report by that committee of such fact to the House or
the Senate while Congress is in session or to the Speaker of the House or the
President of the Senate when Congress is not in session. The Speaker or the
President of the Senate shall then certify the facts to the United States Attorney
for prosecution. Judicial interpretation, however, has placed several important
glosses on the statute.
In Wilson v. UnitedStates, 369 F.2d 198 (D.C. Cir. 1966), the court considered
the procedures for a contempt committed and reported while Congress was not in
session. The court held that the Speaker of the House did not have a mandatory
duty to certify the statements to the United States Attorney; “ his automatic
certification, under a disclaimer denying his jurisdiction to make any inquiry or
take any different course, was invalid.” Id. at 200.
The court reasoned that the apparently mandatory language of § 194 regarding
certification was the same whether Congress was in session or not. Yet it had been
the practice of Congress since 1857 that the Speaker was not under a mandatory
duty to certify the report of the committee when Congress was in session.
Instead, a member of the committee would offer a resolution for the considera­
tion of the House involved. The court stated:
It is clear that where the alleged contempts are committed while
Congress was in session, the Speaker may not certify to the
United States Attorney the statements of fact prepared by the
Committee until the report of alleged contempt has been acted
upon by the House as a whole.
369 F.2d 202. The court supported its conclusion by a brief discussion of prior
judicial construction.3
The court also rejected the argument that even if House or Senate consideration
was necessary if Congress was in session, the statute contemplated automatic

2 Every person who having been summoned as a witness by the authonty of either House of
C ongress to give testimony or to produce papers upon any matter under inquiry before either House,
o r any jo in t committee established by a jo in t or concurrent resolution of the two Houses of Congress,
o r any committee of either House of Congress, willfully makes default, or who, having appeared,
refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a
misdemeanor, punishable by a fine of not more than $ 1,000 nor less than $ 100 and imprisonment in a
com m on jail for not less than one m onth nor more than twelve months.
2 U .S C § 192.
3 In re Chapman, 166 U .S. 661 (1897) (holding that the Speaker or the President of the Senate may not certify the
facts to the United States Attorney if a contempt resolution is defeated by the House whose action initiated the
contempt action); U nited States v. Costello, 198 F.2d 200, 204-05 (2d C ir), cert. denied. 344 U S. 874 (1952)
(referring to resolution of the Senate citing defendant to contempt as “ required by 2 U .S.C . § 194” ).

746
certification without further legislative consideration if Congress was not in
session. The court reasoned that the single statutory phrase could not have such
two radically different readings. Moreover, by scheduling hearings when Con­
gress was not in session or postponing reports until after adjournment, a commit­
tee might be able to insulate its actions on contempt matters from consideration
by the full House or Senate. The 1936 amendment to the statute, which added the
certification requirement, precluded an interpretation that would allow that
result.4 If certification were mandatory, there would be no such check on the
committee.
The court then concluded that the established legislative practice required the
interpretation that 2 U.S.C. § 194 “ vests jurisdiction in the Speaker of the House
and the President pro tempore of the Senate, when Congress is not in session, to
provide a substitute for the kind of consideration which would be provided by the
house involved if it were still in session.” 369 F.2d 203-04.
From the text of § 194, as construed by Wilson, and certain well-established
rules of legislative practice, the following principles seem clear. After the
committee vote, a written report is required. If the report is prepared while
Congress is in session, it must be submitted to the full House5 in the form of a
resolution directing the Speaker to certify the facts to the United States Attorney.
If the House votes down the resolution, the committee citation is of no further
force or effect; adjournment of the Congress presents no novel issue in this
situation. Similarly, if the House fails to act on the resolution before adjourn­
ment, the resolution also dies; again, no novel issue is presented by the particular
kind of resolution. If the House votes in favor of the resolution, it would be
certified to the United States Attorney.6
If the committee fails to report the fact of the contempt while Congress is in
session, Wilson, as well as general principles of separation of powers, can be read
to preclude the committee from submitting the report to the Speaker for his
action.7 The Wilson court stated that if the contempt occurred while Congress
was in session, the Speaker could not certify the statement of facts until the report
was acted upon by the House as a whole.8Given the clear preference of the courts

4 Both committee reports on the 1936 amendment state that “ the requirement that the statement of facts first be
filed with the President of the Senate or the Speaker of the House constitutes a check against hasty action on the part
of a committee ” H R Rep No 1667, 74th C ong., 1st Sess 2(1935), S Rep. No 2037, 74th Cong , 2d Sess. 2
(1936)
5 See also Kinoy v. District c f Columbia, 400 F 2d 761, 765 n 6 (D.C. C ir 1968)
Appellant, however, forcefully argues that there are both substantive and procedural advantages lo
a contempt proceeding, the most important of which is that where Congress calls upon the courts lo
prosecute a contempt charge under 2 U .S.C . § 192 (1964), affirmative action by the subcommittee,
the full committee and finally by the House (if it is in session) is required. 2 U S.C. § 194 ( 1964) See
Wilson v. United States, 125 U S. App D.C 153, 369, F 2d 198 (1966).
6 Again, this procedure assumes that §§ 192 and 194 would be applicable to an Executive Branch official. B ut see
note 1, supra
7 This conclusion does not depend on whatever requirement might be imposed by internal committee or House
rule lhat all action of the committee be reported to the House while Congress is in session; whether the committee
could meet dunng the adjournment to prepare the report; o r whether, even regardless of the general rules for
reporting committee action, the report of a contempt would be treated differently, given that § 194 at least on its face
seems to reflect the possibility of action by the Speaker and not the full House
8 It may be argued that this interpretation extends Wilson too far. The statement in Wilson, in context, appears to
stand only for the point that certification by the Speaker is not mandatory because House action would be required if
Congress were in session.

747
for action by the full House before anyone is held to answer for an alleged
contem pt,9 Wilson could be read to require action by the House and not merely
the Speaker if the contempt occurs while Congress is in session.
These concerns are especially important in the context of a dispute between the
Executive and the Congress which arises because of a clash between the Ex­
ecu tiv e’s enforcem ent responsibilities and C ongress’ investigative respon­
sibilities. In that situation, there seems additional reason to believe that a court
would require the judgment of the full House that an Executive Branch official,
acting directly pursuant to a direction from the President, should be held in
contempt of Congress.
Under this reading of § 194, if the committee failed to report the contempt to
the House before the adjournment, or, as noted above, if the House failed to act
on the resolution, the citation would be of no further force and effect. It would die
upon adjournment as does all uncompleted committee action.10

IV. Civil Enforcement of the Subpoena

Whether a civil action to enforce the subpoena could be brought following the
adjournment might depend on whether a successor committee in the subsequent
Congress again issued a subpoena for the documents and was again refused or
whether it merely tried to bring an action based on the subpoena issued and
refused in this Congress. The availability of relief might also depend on whether
the action were brought for declaratory or injunctive relief.

A . Subpoena and Refusal in the New Congress

It seems clear that the successor committee in the new House could request the
same documents again and that, upon the Executive’s refusal to produce, it could
seek authority from the Congress, if it does not already exist, to bring a civil
action to enforce the subpoena. Declaratory relief would be available; and if the
court rejected the claim of executive privilege, it could order injunctive relief.
Senate Select Comm ittee on Presidential Campaign Activities v. Nixon, 498 F.2d
725 (D.C. Cir. 1974) ( en banc).

B. Enforcement by the New Congress c f the Prior Subpoena

An argument can be made that the new House committee could not bring an
action upon the prior subpoena because the House is not a continuing body. See

9 As noted above, the Wilson court expressed its concern that a committee might insulate its actions by postponing
reports until after adjournment Even though discretionary review by the Speaker when Congress was not in session,
which the Wilson court required, would alleviate this concern to some extent, action by the Speaker alone still does
not provide the same statement of congressional intent as would action by the full House See also Kinoy v District
c f Colum bia, supra, note 5.
10 It may be, however, that if a court accepted the view that action by the Speaker alone was inconsistent with
appropriate respect for the Executive, the court might allow the Speaker to refer the matter to the House in the next
C ongress out of a similar respect for the Legislature.

748
Gojack v. United States, 384 U.S. 702, 706-07 n.4 (1966)." It is possible,
however, that the court might view the prior subpoena and refusal as a historical
fact, the validity of which could be adjudicated notwithstanding the adjournment
of Congress. Thus, if the civil action were authorized by existing law or specific
action by the new Congress, the court might entertain it even without a repeated
request for and refusal of the documents.
The limitation recognized in Gojack arose in the context of a criminal prosecu­
tion in which current committee authority was a predicate for committee action
and thus the contempt prosecution. A similar limitation might not be imposed if
the House were to seek instead civil adjudication based on the prior fact of the
alleged contempt.12
Other references to the termination of the legislative existence of the particular
Congress are also inconclusive. These statements were made in the context of
Congress’ inherent power to punish contempt. In Anderson v. Dunn, supra, the
Court held that Congress had the inherent constitutional power to impose
confinement for contempt but limited the duration of confinement to the session
of Congress:

[B]y the nature of things, since the existence of the power that
imprisons is indispensable to its continuance; and although the
legislative power continues perpetual, the legislative body ceases
to exist on the moment of its adjournment or periodical dissolu­
tion. It follows that im prisonment must terminate with that
adjournment.

19 U.S. at 231.
The limitation, however, seems not to reflect the absence of legislative exist­
ence and thus power in the traditional sense, which is measured not by a session
of Congress but by a term. Thus, the limitation seems to have been imposed
because the power was implied, and not express; the Court therefore held that the
extent of the punishing power was limited to “ the least possible power adequate
to the end proposed.” I d . 13 Confinement imposed pursuant to a criminal con­
tempt conviction, in fact, is not similarly limited to the term of Congress.
Marshall v. Gordon, supra.
To these distinctions should be added two additional considerations. First, it is
possible that a court might rely on traditional notions of mootness, which
preserve for court review disputes which are capable of repetition yet evading
review. See, e.g.. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 514—16
(1911). Second, the Supreme Court has recognized the desirability of adjudicat­

11 This rule might be different for the Senate, which is a continuing body. See McGrain v Daugherty, 273 U.S
135, 181 (1927)
12 Even (he conclusion in McGrain. supra. note 11, that the Senate is a continuing body is not unambiguous
because the Court went on to invoke traditional considerations of mootness, which would not have been necessary if
the Court were relying on some continuing authonty of the Senate denved from its status as a continuing body
13 Other considerations of separation of powers and due process may also have been involved The Court might
have wanted to avoid having itself to decide what limitation on confinement should be imposed and yet have been
unwilling to accept that there might be no limitation

749
ing issues of executive privilege in a civil action and not a contempt proceeding.
U nited States v. Nixon, 418 U .S. 683 (1974). One lower court has expressed a
clear preference for determining constitutional privilege in a civil action and not a
criminal prosecution. Tobin v. U nited States, 306 F.2d 270,276 (D.C. Cir.), cert,
denied, 371 U.S. 902 (1962).14
It may be, therefore, that there is no absence of congressional power to proceed
upon the prior fact of refusal to produce documents in response to a subpoena.
Under this view, a question would be raised about what kind of relief could be
obtained in the civil action. The above rationale would support an action for
declaratory relief based upon the historical facts. It might not support injunctive
relief if the court were to conclude that the successor committee was not an entity
entitled to receive the documents requested by its predecessor. In that situation,
however, the new committee could rely upon an adjudication that the prior refusal
was not supported by executive privilege, and could seek the documents by a new
subpoena.

T h eo d o r e B . O lso n
Assistant Attorney General
Office c f Legal Counsel

14 W hether these considerations would be persuasive only if Congress did not seek criminal sanctions in addition
to the civil action is not clear. It is possible that the court would find that Congress elected its remedy in the criminal
prosecution and thus refuse it additional consideration in the context of a civil action

750