Chairman Nadler Statement for Subcommittee Hearing on "Civil Enforcement of Congressional Authorities"
Washington, June 8, 2021
Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a Subcommittee on Courts, Intellectual Property, and the Internet hearing on "Civil Enforcement of Congressional Authorities:"
"I want to thank the Chairman and Ranking Member of the Subcommittee for holding this important hearing. Both have a lot of experience with Congressional oversight, and I share their commitment to protecting Congress’s place in our constitutional system. I hope this hearing will demonstrate that ensuring that Congress has the tools it needs to enforce its subpoenas transcends partisanship.
"Nearly a century ago, in McGrain v. Daugherty, the United States Supreme Court framed the responsibility of congressional oversight this way: 'A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions in which the legislation is intended to affect or change . . . . And where the legislative body does not itself possess the requisite information—which is not infrequently true—recourse must be had to others who do possess it.'
"Congress’s authority to obtain information—including by use of compulsory process—flows directly from its Article I legislative function. In 2017, I spoke on the House floor in support of the Congressional Subpoena Compliance and Enforcement Act of 2017, a bill that was first introduced by the Gentleman from California, Mr. Issa. What I said then holds true today: 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.
"In other words: if Congress cannot reliably enforce its lawfully-issued subpoenas, our constitutional structure has been profoundly undermined.
"In many instances, Congress and the party from whom it seeks information—frequently the executive branch—have been able to reach an agreement without resorting to litigation. This is certainly the preferred outcome. But sometimes—whether because of stonewalling or legitimate disagreement—there is no other option.
"It should go without saying that time is of the essence when a congressional committee seeks judicial enforcement of its subpoenas, and that delay can be as damaging to a congressional investigation as an unfavorable ruling. Responsible congressional investigators are constantly juggling the need to uncover the facts against having enough time to translate those facts into legislative action. If we do have to file suit, it is essential that our lawsuit is resolved quickly. Unfortunately, recent subpoena enforcement cases have taken years to reach resolution.
"The Judiciary Committee’s suit to secure the testimony of Don McGahn, former President Trump’s White House Counsel, is a case in point. In one sense, that suit ended with a victory for congressional oversight. We negotiated a settlement with the Justice Department that resulted in Mr. McGahn sitting for a transcribed interview last Friday. We made clear that the executive branch must respect our subpoenas, that there is no such thing as 'absolute immunity' from congressional testimony, and that congressional investigators will eventually secure their witness in response to appropriately-issued subpoenas.
"But our victory also highlighted the deficiencies in the civil enforcement process that I have just described. It took two years to enforce the subpoena, and Mr. McGahn’s interview happened more than four months after the President he served under left office. That is an unacceptable delay. Modern experience has taught us that, although effective congressional oversight is essential to a functional democracy, Congress can no longer simply assume good faith cooperation with our committees and swift enforcement of our subpoenas in federal court. Congress needs to take a hard look at how to ensure that its fundamental power to investigate will survive in an era of unprecedented stress on our democratic institutions.
"To be sure, not every investigation is equally worthwhile and not every subpoena may be immune from challenge, but Congress’s constitutional authority to investigate and to enforce its valid subpoenas must be incontestable."I thank the Chairman and the Ranking Member for the bipartisan nature of this hearing and I look forward to hearing from our witnesses about these important issues. I yield back the balance of my time."