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