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Subpoena Precedent

I. Overview

During the Trump Administration, some Republicans criticized the issuance of subpoenas by chairs of congressional committees to compel witnesses to provide documents or testimony. Congressman Mark Meadows, for example, suggested that subpoenas to senior Administration officials are novel, asserting, “Generally speaking, a fishing expedition that would offer subpoenas for high-ranking executive officials is not something that Congress has ever expected in the past nor should it expect now.” Attorney General William Barr made a similar point, criticizing “the sheer volume” of “parallel ‘investigations’ through an avalanche of subpoenas” by Democrats in Congress, describing such efforts as an unprecedented attempt to “drown the Executive Branch with ‘oversight’ demands for testimony and documents.” Yet when Republicans controlled the House, committee chairs made aggressive use of the subpoena authority, issuing over 1,300 subpoenas with no minority concurrence, targeting top executive branch officials, and demanding sensitive documents. 

From the McCarthy hearings in the 1950s to 1995, when Democrats lost control of both the House and the Senate, “no ... chairman of a committee ever issued a subpoena unilaterally, without either minority consent or a committee vote.” This changed under new approach used by Republican House Oversight Committee Chair Dan Burton, who issued over 1,000 unilateral subpoenas during his tenure as chair to investigate alleged Clinton Administration and Democratic Party misconduct. Republican Rep. Darrell Issa took the same approach to the exercise of subpoena authority when he took the helm of this Committee in 2011, issuing over 100 unilateral subpoenas during his tenure as chair. In 2015, House Republicans changed the rules of various committees to provide unilateral subpoena authority to the chairs of 13 additional committees beyond the House Committee on Oversight and Government Reform.

As documented below, subpoenas issued by Republican committee chairs have demanded testimony and documents from a wide range of Administration officials serving in senior positions, including:

  • The President
  • Chief of Staff to the President
  • White House Counsel
  • Chief of Staff to the Vice President
  • Treasury Secretary
  • Federal Reserve Chair
  • Attorney General
  • FBI Director

Information demanded by subpoenas issued by Republican committee chairs have included sensitive matters such as communications involving the President and Vice President, communications between top-level White House aides, notes of a White House associate counsel, communications of the Director and Deputy Director of the CIA, materials regarding a longtime, sensitive CIA and FBI intelligence source, FBI interview notes, memoranda on Department of Justice (DOJ) charging decisions, and DOJ communications regarding surveillance applications.  

They have also involved more than one “fishing expedition.” For example, House Republicans extensively investigated dozens of unsubstantiated allegations regarding the Clinton Administration, including allegations that the Clinton White House gave national security secrets to China in exchange for campaign contributions, that President Clinton created a national monument in Utah to benefit an Indonesian businessman, and that President Clinton’s use of the White House holiday card list was a “theft of government property” and a“criminal conspiracy.”  In one case, a widely publicized Republican investigation was based on gossip at a congressional reception.

Past administrations have recognized Congress’ subpoena authority. For example, the IRS produced more than 1 million pages of documents to the House Oversight Committee for its investigation into alleged political bias during the Obama Administration, and the Committee received more than 1.5 million pages of documents as part of its investigation into alleged campaign finance improprieties during the Clinton Administration.

II. Subpoena Totals

Republicans have controlled House Committees in 21 of the last 25 years. During that time, Republican chairs have frequently exercised the subpoena authority. Although no central repository of subpoenas exists, the public record shows how extensively the subpoena authority was used. For example:   

  • During his four-year tenure as chair of the House Committee on Oversight and Government Reform from 2011 to 2014, Darrell Issa issued over 100 subpoenas.  
  • During his six-year tenure as chair of the House Committee on Financial Services from 2013 to 2018, Jeb Hensarling issued at least 50 subpoenas according to committee activity reports for the 114th and 115th congresses and Committee press releases during the 113th congress. These included unilateral subpoenas, which had never before been issued in the Committee’s 150-year history. The Chairman devoted particular attention to the Consumer Financial Protection Bureau (CFPB), issuing four different subpoenas for documents to Director Richard Cordray in just over six months in addition to issuing subpoenas for testimony to CFPB’s General Counsel, Chief Operating Officer, Assistant Director for Legislative Affairs, ten other current or former CFPB attorneys, and other CFPB staff. 
  • As part of its investigation into fetal tissue research and abortion providers in 2016, the House Energy and Commerce Committee’s Select Investigative Panel issued at least 41 subpoenas in just nine months.
  • During one Congress, from 2015 to 2016, Rep. Lamar Smith issued at least 25 subpoenas as chair of the House Science, Space, and Technology Committee.  The Committee had not issued a single subpoena in the prior 21 years under either Republican or Democratic chairs.
  • During his 1997 to 2002 tenure as chairman of the House Committee on Government Reform and Oversight (the former name of the Oversight and Reform Committee), Dan Burton issued 1,089 subpoenas, 97 percent of which targeted the Democratic Party or Clinton Administration. Chairman Burton even issued subpoenas and obtained over 40,000 pages of documents to investigate whether President Clinton misused the White House Christmas card list.
  • During the 1995 to 1996 tenure of William Clinger as chairman of the House Committee on Government Reform and Oversight (the former name of the Oversight and Reform Committee), the Committee issued at least 38 subpoenas. These included at least 34 subpoenas as part of an investigation into the White House Travel Office alone – and 25 subpoenas issued on a single day.

III. Subpoenas to Senior Administration Officials

House Republican committee chairmen over the last 25 years subpoenaed and obtained testimony and documents from top executive branch officials. Select examples include:

  • Former Attorney General Loretta Lynch (for testimony, House Committees on Judiciary and Oversight and Government Reform, 2018)
  • Former FBI Director James Comey (for testimony, House Committees on Judiciary and Oversight and Government Reform, 2018)
  • Consumer Financial Protection Bureau Director Richard Corday (for documents, Committee on Financial Services, 2017)
  • President Trump’s personal lawyer Michael Cohen (for testimony and documents, House Select Committee on Intelligence, 2017) 
  • IRS Chief Counsel William Wilkins (for testimony, Committee on Ways and Means, 2016)
  • IRS Chief Financial Officer Robin Canady (for testimony, Committee on Ways and Means, 2016) 
  • Federal Reserve Chair Janet Yellin (for documents, House Committee on Financial Services, 2015)
  • Treasury Secretary Jack Lew (for documents, House Committee on Financial Services, 2015) 
  • Federal Reserve Bank of New York President William Dudley (for documents, House Committee on Financial Services, 2015)
  • IRS Commissioner John Koskinen (for testimony, House Committee on Oversight and Government Reform, 2014) 
  • White House Chief of Staff Bill Daley (for documents, House Committee on Energy and Commerce, 2011)
  • Chief of Staff to the Vice President Bruce Reed (for documents, House Committee on Energy and Commerce, 2011)
  • President Bill Clinton (for documents, House Committee on Oversight and Government Reform, 2000)
  • White House Counsel Beth Nolan (for testimony, House Committee on Government Reform, 2000)
  • Assistant to the President for the Office of Management and Administration Mark Lindsay (for testimony, House Committee on Government Reform, 2000)
  • Attorney General Janet Reno (for documents, House Committee on Oversight and Government Reform, 1998)
  • White House Counsel Charles F.C. Ruff (for White House documents, House Committee on Oversight and Government Reform, 1997)
  • White House Chief of Staff Erskine Bowles (for documents, House Committee on Oversight and Government Reform, 1997)
  • Former White House Chief of Staff Thomas “Mack” McLarty (for documents, House Committee on Oversight and Government Reform, 1997)
  • Former Senior Advisor to the President George Stephanopoulos (for documents, House Committee on Oversight and Government Reform, 1997)
  • Former Chief of Staff to the First Lady Margaret Williams (for documents, House Committee on Oversight and Government Reform, 1997)

IV. Subpoenas Demanding Sensitive Materials 

  • House Judiciary Committee Chairman Bob Goodlatte in 2018 issued subpoenas demanding documents drafted by former FBI Deputy Director Andrew McCabe and or to support applications to surveil former Trump campaign adviser Carter Page, testimony by former FBI official Peter Strzok and testimony by former FBI attorney Lisa Page about the investigation into interference in the 2016 election, and documents from the Justice Department about charging decisions related to Hillary Clinton, potential abuses of the Foreign Intelligence Surveillance Act, and the decision to fire former FBI Deputy Director Andrew McCabe. 
  • Under Chairman Devin Nunes, the House Intelligence Committee in 2018 issued a subpoena to the Justice Department that included “a broad request for all documents about . . . a sensitive, longtime intelligence source for the CIA and FBI” who aided the Mueller investigation into Russian interference in the 2016 election. Despite the highly sensitive nature of this information, then-Speaker Paul Ryan said the subpoena was “wholly appropriate” and “completely within the scope of the investigation” and that he expected the Department to comply. The Department largely complied with the subpoena. 
  • The Intelligence Committee in 2017 subpoenaed the FBI and Justice Department for all documents related to former British intelligence officer Christopher Steele to determine whether the agencies used material from the dossier he had provided in drafting applications to conduct surveillance under the Foreign Intelligence Surveillance Act (FISA) and subpoenaed the CIA, NSA, and FBI regarding “the so-called unmasking of associates of President Trump whose identities were incidentally caught up in surveillance of foreign operatives.”
  • House Committee on Oversight and Government Reform Committee Chairman Jason Chaffetz issued a subpoena from the dais in the middle of a September 2016 hearing for all FBI interview notes for the investigation into former Secretary of State Hillary Clinton’s emails. In issuing the subpoena, Chaffetz objected to the redaction of personally identifiable information in the materials that had previously been provided to the committee, telling the FBI “You don't get to decide what I get to see. I get to see it all.” The next month, he stated that he had “two years’ worth” of investigations prepared for the “target-rich environment” of a Hillary Clinton presidency.
  • In 2016, the House Energy and Commerce Committee’s Select Investigative Panel on Infant Lives issued subpoenas in its inquiry into fetal tissue research and abortion providers demanding “the names of doctors, medical students and researchers.”  
  • Kevin Brady, Chairman of the House Ways and Means Subcommittee on Investigations, in 2016 issued subpoenas for documents from Treasury Secretary Jack Lew and for testimony from Administration officials including IRS Chief Financial Officer Robin Canady, IRS Deputy Chief Financial Officer Greg Kane, IRS General Counsel William Wilkins, and officials at the Office of Management and Budget about Affordable Care Act cost-sharing payments.
  • As Chair of the Select Committee on Benghazi, Trey Gowdy in 2015 subpoenaed records from ten senior State Department officials for “all communications of former Secretary of State Hillary Clinton related to Libya" and from "other individuals who have information pertinent to the investigation,” and the Department produced nearly 40,000 documents in response. Another subpoena was issued to the CIA for communications sent to or from the agency’s Director and Deputy Director, among other highly sensitive officials and offices. 
  • In 2015, the House Science, Space, and Technology Committee under Chairman Lamar Smith subpoenaed “nearly seven years of internal deliberations and communications among scientists at the National Oceanic and Atmospheric Administration [NOAA], including ‘all documents and communications’ related to NOAA’s measurement of our climate.”
  • In 2005, the House Committee on Government Reform (the former name of the Oversight and Reform Committee) under Chairman Tom Davis issued subpoenas regarding the nutrition and hydration equipment sustaining Terri Schiavo, a woman who had suffered severe brain damage and was in a vegetative state, in an unsuccessful attempt to prevent doctors from complying with a Florida court decision ordering removal of Ms. Schiavo's life support equipment.
  • In its inquiry into the Clinton White House email system, the House Committee on Government Reform and Oversight in 2000 subpoenaed and obtained information that included emails between Vice President Gore and his staff.
  • In its inquiry into campaign fundraising practices during the 1996 election, the House Committee on Government Reform and Oversight in 1997 subpoenaed all records related to meetings or calls about Justice Department or FBI investigations in which the President, Vice President, Chief of Staff, National Security Advisor, and White House Counsel participated.

V. Duplicative Subpoenas

  • House Committee on Oversight and Government Reform Committee Chairman Darrell Issa in 2014 issued a unilateral subpoena compelling the testimony of the IRS Commissioner regarding alleged political bias at the agency just ten minutes after the chair of the Ways and Means Committee announced a hearing with the same witness. Chairman Issa also attempted to schedule this hearing for 7:00 pm on the night before the Ways and Means Committee hearing.
  • As part of its investigation into campaign finance matters in 1997-98, the House Committee on Oversight and Government Reform issued over 300 subpoenas for documents that duplicated subpoenas issued in the same time frame by the Senate Committee on Governmental Affairs in that Committee’s campaign finance inquiry.

VI. Senate Subpoenas

In contrast to recent practice in the House, Senate rules largely do not allow unilateral subpoenas issued by committee chairs. Instead, approval by the ranking member or the majority of the committee is typically required for the chair of a committee to issue a subpoena. Another factor differentiating House and Senate subpoena practice is the enforcement mechanism. In the House, a simple majority can vote to hold an individual in contempt for failing to comply with a subpoena or to authorize litigation to enforce the subpoena. In contrast, the vote in the Senate to hold someone in contempt or to authorize litigation is subject to filibuster and requires 60 votes. 

Nonetheless, the Senate has on many occasions issued subpoenas seeking the testimony or records of White House and other senior administration officials.  In 1973, the Senate Watergate Committee voted unanimously to subpoena White House tape recordings and related documents (in a separate case, the Supreme Court ruled in United States v. Nixon that the President had to comply with a subpoena for this information sought by the Special Prosecutor). The Senate Whitewater Committee issued a number of subpoenas to the White House during the Clinton Administration, including demands for phone records and documents and notes from the President’s lawyers. Later in the Clinton Administration, the Senate Committee on Governmental Affairs issued 427 subpoenas and received 1.5 million pages of documents as part of its investigation into campaign fundraising during the 1996 election campaign, including issuing subpoenas for a variety of material to the White House. This investigation also included 32 days of hearings featuring testimony from 72 witnesses.  In 2007, the Senate Judiciary Committee issued subpoenas to several senior White House aides during the George W. Bush Administration as part of its investigation into politicized firings of U.S. Attorneys across the country, including White House Chief of Staff Joshua Bolten, White House Deputy Chief of Staff Karl Rove, White House Counsel Harriet Miers, and Director of the White House Office of Political Affairs Sara Taylor (who testified before the Committee in a public hearing). 

Most recently, the Senate Homeland Security and Governmental Affairs Committee voted along party lines to authorize a subpoena seeking documents and testimony from a public relations firm to investigate whether the firm had used Hunter Biden, son of former Vice President and current presidential candidate Joe Biden, and a member of the firm’s board, to influence the State Department during the Obama Administration. 

Senate committees have also subpoenaed third party companies as part of investigations into alleged presidential misconduct. For example, the Senate Special Committee to Investigate Whitewater Development Corporation and Related Matters subpoenaed Bell Atlantic seeking the identity of the person or entity associated with a White House phone number called by First Lady Hillary Clinton—and sought detailed information about the First Lady’s conversation with senior White House official Bill Burton. The Special Committee also subpoenaed Sprint for records of a phone call from the White House Residence to the Arkansas Governor’s Mansion, and subpoenaed the Rose Law Firm to obtain Hillary Clinton’s billing records from her time as an attorney in private practice.