2 U.S.C. § 288d

Enforcement of Senate subpena or order

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(a) Institution of civil actions

When directed to do so pursuant to section 288b(b) of this title, the Counsel shall bring a civil action under any statute conferring jurisdiction on any court of the United States (including section 1365 of title 28), to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened failure or refusal to comply with, any subpena or order issued by the Senate or a committee or a subcommittee of the Senate authorized to issue a subpena or order.

(b) Actions in name of committees and subcommittees

Any directive to the Counsel to bring a civil action pursuant to subsection (a) in the name of a committee or subcommittee of the Senate shall, for such committee or subcommittee, constitute authorization to bring such action within the meaning of any statute conferring jurisdiction on any court of the United States.

(c) Consideration of resolutions authorizing actionsIt shall not be in order in the Senate to consider a resolution to direct the Counsel to bring a civil action pursuant to subsection (a) in the name of a committee or subcommittee unless—(1) such resolution is reported by a majority of the members voting, a majority being present, of such committee or committee of which such subcommittee is a subcommittee, and(2) the report filed by such committee or committee of which such subcommittee is a subcommittee contains a statement of—(A) the procedure followed in issuing such subpena;(B) the extent to which the party subpenaed has complied with such subpena;(C) any objections or privileges raised by the subpenaed party; and(D) the comparative effectiveness of bringing a civil action under this section, certification of a criminal action for contempt of Congress, and initiating a contempt proceeding before the Senate.(d) Rules of SenateThe provisions of subsection (c) are enacted—(1) as an exercise of the rulemaking power of the Senate, and, as such, they shall be considered as part of the rules of the Senate, and such rules shall supersede any other rule of the Senate only to the extent that rule is inconsistent therewith; and(2) with full recognition of the constitutional right of the Senate to change such rules (so far as relating to the procedure in the Senate) at any time, in the same manner, and to the same extent as in the case of any other rule of the Senate.(e) Committee reports

A report filed pursuant to subsection (c)(2) shall not be receivable in any court of law to the extent such report is in compliance with such subsection.

(f) Omitted(g) Certification of failure to testify; contemptNothing in this section shall limit the discretion of—(1) the President pro tempore of the Senate in certifying to the United States Attorney for the District of Columbia any matter pursuant to section 194 of this title; or(2) the Senate to hold any individual or entity in contempt of the Senate.(Pub. L. 95–521, title VII, § 705, Oct. 26, 1978, 92 Stat. 1878; Pub. L. 99–336, § 6(a)(2), June 19, 1986, 100 Stat. 639.)Editorial NotesCodification

Subsec. (f) of this section amended title 28 by adding section 1364 and by adding item 1364 to the chapter analysis.

Amendments

1986—Subsec. (a). Pub. L. 99–336 substituted “section 1365 of title 28” for “section 1364 of title 28”.

Statutory Notes and Related SubsidiariesEffective Date

Section effective Jan. 3, 1979, see section 717 of Pub. L. 95–521, set out as a note under section 288 of this title.

Notes of Decisions

Cited in 7 cases (1 in the last 5 years), 1981–2021 · leading case: Comm. on Jud., Us House of Repres. v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008).

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Comm. on Jud., Us House of Repres. v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). · cites it 3× “The Executive also contends that 2 U.S.C. § 288d negates the notion that the DJA is a sufficient cause of action.”

Comm. on the Judiciary v. Donald McGahn, II, 968 F.3d 755 (D.C. Cir. 2020). · cites it 2× “Only the Senate has express statutory authority to enforce a subpoena in federal court, see 2 U.S.C. § 288d; In re U.S. Senate Permanent Subcomm.”

Comm. on the Judiciary v. Donald McGahn, II, 951 F.3d 510 (D.C. Cir. 2020). · cites it 2× “The current statutory regime for enforcement of congressional subpoenas reflects Congress’s judgment that information disputes between the political branches do not belong in federal court.”

In the Matter of the Application of the United States Senate Permanent Subcomm. on Investigations. Appeal of William Cammisano, 655 F.2d 1232 (D.C. Cir. 1981). “In view of Cammisano’s recalcitrance the full Senate, upon the recommendation of the Committee on Govermental Operations, 8 activated the civil enforcement regime established under Section 705 of the Ethics in Government Act of 1978, 2 U.S.C. § 288d (Supp. Ill 1979), 28 U.S.”

Comm. on the Judiciary v. Donald McGahn, II, 973 F.3d 121 (D.C. Cir. 2020). “See 2 U.S.C. § 288d; 28 U.S.C. § 1365 (b). Second, the Senate statute expressly excludes suits that involve executive-branch assertions of “governmental privilege.”

Cong. Oversight of the White House (OLC 2021). “The statute that provides a cause of action to enforce Senate subpoenas, 2 U.S.C. § 288d, like section 1365(a), applies only to the Senate (and imposes various restrictions).”

Response to Cong. Requests for Info. Regarding Decisions Made Under the Indep. Couns. Act (OLC 1986). “to enforce, to secure a declaratory judgm ent concerning the validity of, or to prevent a threatened failure or refusal to com ply with, any subpoena or order issued by the Senate or a com m ittee or a subcom m ittee o f the Senate authorized to issue a subpoena o r o rd e r/’…”

— 2 U.S.C. § 288d(a) — 2 cases

Comm. on Jud., Us House of Repres. v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). “The Executive also contends that 2 U.S.C. § 288d negates the notion that the DJA is a sufficient cause of action.”

Comm. on the Judiciary v. Donald McGahn, II, 951 F.3d 510 (D.C. Cir. 2020). “The current statutory regime for enforcement of congressional subpoenas reflects Congress’s judgment that information disputes between the political branches do not belong in federal court.”

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