Briefcase

Briefcase: Congressional Oversight – Not What It Used To Be

Guest: Professor Emily Berman

Congressional subpoena power used to be something both revered and feared. That power seems to have waned. Emily Berman, with The University of Houston Law Center, is a constitutional law scholar and explained what has happened.

“Congress relies on the justice department to enforce contempt citations for failure to comply with a subpoena,” Professor Berman said. “In other words, if DOJ refuses to enforce, congress is more or less powerless. And presidents routinely come up with reasons not to comply, starting with President Nixon’s invocation of executive privilege during the Watergate era.”

However, Berman says, Congress does have other options. “Congress can go to court to enforce subpoenas, but litigation can take years,” she said. “Or Congress could enforce its subpoenas directly, by arresting no show witnesses. It used to be that you simply didn’t resist a subpoena from Congress – it was bad form and created political resistance.” 

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