Congress should request waiver of executive privilege before issuing subpoenas

To: House Judicial Committee Republican Members and Key Persons.

For the below reasons, it is urged that you ask the President to waive executive privilege as to the House Judicial Committee subpoenaing certain FBI and DOJ officials to testify under oath before your Committee. Such a waiver can greatly enhance the efficacy of your performing Congress’ Constitutional oversight obligation. Let’s not repeat the past failures to obtain requisite testimony, e.g., the Burford, Miers, and Holder disputes. (See the cited document infra.)

“A number of obstacles face Congress in any attempt to enforce a subpoena issued against an executive branch official. Although the courts have reaffirmed Congress’s constitutional authority to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most, circumstances. Where the official refuses to disclose information pursuant to the President’s decision that such information is protected under executive privilege, past practice suggests that the Department of Justice (DOJ) will not pursue a prosecution for criminal contempt. In addition, although it appears that Congress may be able to enforce its own subpoenas through a declaratory civil action, relying on this mechanism to enforce a subpoena directed at an executive official may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final, enforceable ruling in the case. Although subject to practical limitations, Congress retains the ability to exercise its own constitutionally based authorities to enforce a subpoena through inherent contempt.” (Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure; Congressional Research Service, May 12, 2017, 7-5700, www.crs.gov, RL34097, Author Todd Garvey, Legislative Attorney tgarvey@ers.loc.gov, 7-0174.)

Respectfully submitted on December 14, 2017.

John Lucas

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