Article I, Section 8, Clause 18:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In 1975, the Supreme Court issued the first of only two opinions on Congress’s investigatory powers in the modern era. In Eastland v. United States Serviceman’s Fund, a private nonprofit organization filed suit against the Chairman of a Senate subcommittee. The Court was asked to review an appellate court order enjoining a subpoena issued to a bank for the nonprofit’s account information.1 In reversing the appellate court, the Court reaffirmed the importance of the subpoena power and further concluded that the Speech or Debate Clause acts as a significant barrier to judicial interference in Congress’s exercise of that power.2 The Court began by noting that the “power to investigate and to do so through compulsory process” has “long been held to be a legitimate” and “indispensable ingredient of lawmaking,” at least when an investigation “is related to and in furtherance of a legitimate task of Congress.” 3

The opinion went further, however, interpreting the Speech or Debate Clause, which provides that no Member of Congress may be “questioned in any other Place” for “any Speech or Debate in either House,” to limit significantly the Court’s ability to review a committee’s exercise of its subpoena power.4 The Court determined that because the issuance of a subpoena is a protected legislative act under the Clause, the act was “immune from judicial interference.” 5 Eastland is generally cited for the proposition that the Speech or Debate Clause prohibits courts from entertaining direct pre-enforcement challenges to congressional subpoenas.6 Instead, the recipient of a subpoena may refuse to comply, risk being cited for criminal contempt or becoming the subject of a civil enforcement lawsuit, and then present his or her defense in that subsequent action.7

While it is generally true that courts will not interfere in valid congressional attempts to obtain information, especially through the exercise of the subpoena power, the concurrence in Eastland clarified that judicial restraint is not absolute.8 The Speech or Debate Clause does not, for example, bar indirect challenges to a subpoena brought against a third-party rather than against Congress itself.9 These lawsuits generally arise when a committee issues a subpoena for documents not to the target of the investigation but rather to a third-party custodian of records. In such a scenario the party with a personal interest in the records is “not in a position to assert its claim of constitutional right by refusing to comply with a subpoena” and may instead bring suit against the neutral third party to block compliance with the subpoena.10

Footnotes

1

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 493–97 (1975).

2

Id. at 511 ( “The Clause was written to prevent the need to be confronted by such ‘questioning’ and to forbid invocation of judicial power to challenge the wisdom of Congress’s use of its investigative authority.” ).

3

Id. at 504–06.

4

U.S. Const. art. I, § 6, cl. 1.

5

Eastland, 421 U.S. at 501.

6

In re Grand Jury, 821 F.2d 946, 957 (3d Cir. 1987) ( “The Supreme Court has held analogously that the Speech or Debate Clause shields Congressmen from suit to block a Congressional subpoena because making the legislators defendants ‘creates a distraction and forces Members [of Congress] to divert their time, energy, and attention from their legislative tasks to defend the litigation.’” ) (citing Eastland, 421 U.S. at 503.).

7

See United States v. Ryan, 402 U.S. 530, 532 (1971) (noting that in the judicial context that “one who seeks to resist the production of desired information [has a] choice between compliance with a trial court’s order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal” ).

8

Eastland, 421 U.S. at. 513 (Marshall, J., concurring).

9

See, e.g., Trump v. Mazars, 140 S. Ct. 2019 (2020) (third party subpoena suit brought against bank and accounting firm); United States v. AT&T, 567 F.2d 121, (D.C. Cir. 1977) (third party subpoena suit brought against telecommunications company).

10

United States v. AT&T, 567 F.2d 121, 129 (D.C. Cir. 1977).