A subcommittee of the House Oversight and Government Reform Committee made big news at the end of July when it approved a Democratic motion to compel Attorney General Pam Bondi to turn over the Justice Department’s complete file on child sex trafficker Jeffrey Epstein.
Some may wonder how this surprising turn of events came about, especially after Republican leaders killed similar efforts on the House floor and closed up shop early for the summer. But it was a rare example of a successful motion from a member of the minority party, fortified by congressional rules and precedent.
The Constitution authorizes each house of Congress to establish its own rules. The House voted in January to adopt rules for this session that continued the longstanding right of all members to make subpoena motions during hearings.
This is the right that Rep. Summer Lee (D-Pa.), the subcommittee’s top Democrat, invoked to make her subpoena motion, which passed with a resounding bipartisan vote of eight to two.
Many committee chairs now have authority to issue subpoenas without any debate or vote — a relatively recent practice. But the more traditional way to authorize subpoenas under House rules is through deliberation and voting.
That chairs have their own unilateral authority to issue subpoenas does not invalidate the other method authorized by the House. In this case, although subcommittee chair Rep. Clay Higgins (R-La.) opposed the motion, he followed the voting process established by the House.
The next requirement in House rules is that the chairman of the full committee, James Comer (R-Ky.), “shall” sign and serve this subpoena on Bondi. His role is ministerial, and he has no discretion to disregard the subcommittee’s vote, which Comer publicly confirmed.
Sources indicate that Comer plans to sign off, which may happen any day. Once Comer serves the subpoena, it becomes compulsory, and Bondi has a legal duty to comply.
Although there was a separate motion during the subcommittee’s debate to give Bondi discretion to withhold documents she deemed not “credible,” that motion failed. The only exception the subcommittee approved was to redact personal information about Epstein’s victims.
Could the Justice Department challenge the subpoena because it was proposed by a member of the minority?
While it’s true that successful subpoenas emanating from the minority are rare, there are several informative examples, also from the House Oversight Committee, in which chairs have issued subpoenas proposed by minorities of both parties and those subpoena recipients have fully complied.
In 2009, Rep. Darrell Issa (R-Calif.), then the committee’s top Republican, was investigating allegations that Countrywide provided favorable loans to government officials through its “VIP Program.”
When it was reported that the committee’s chairman, former Rep. Edolphus Towns (D-N.Y.), had received two Countrywide loans, Issa pressed to subpoena Bank of America, which had since acquired Countrywide. Towns agreed to sign the subpoena after two Democrats publicly indicated their support, and the committee obtained a wide range of documents.
Five years earlier, when former Rep. Henry Waxman (D-Calif.) was the top Democrat, Republicans were investigating how the United Nations had mismanaged Iraqi oil proceeds. Soon after the Iraq war, the Bush administration had taken over this function, and similar allegations of mismanagement began to arise.
At a hearing chaired by former Rep. Christopher Shays (R-Conn.), Waxman moved to subpoena the Federal Reserve Bank of New York, which had information about the administration’s actions, and Waxman had the numbers on that day to win the vote.
Seeing the writing on the wall (and being a supporter of the Iraqi people), Shays agreed to issue the subpoena, and the committee obtained the documents.
In both cases, the chairs signed and served these minority subpoenas without votes being necessary, and the subpoena recipients recognized they were bound to produce the documents.
Despite their previous promises of full transparency relating to the Epstein file, it is possible that President Trump could assert executive privilege, or that Bondi could use other dilatory tactics to keep this information from Congress and the public.
Although they could try to challenge Congress’s legislative purpose, it appears to be valid, since the subcommittee is investigating the international trafficking and exploitation of minors.
In addition, in this case, instead of a chairman issuing the subpoena unilaterally, the subcommittee went on the record with a vote that turned out to be a bipartisan rout. This might foreshadow the reaction Bondi could face if she defies the subpoena, including a slew of new motions and a steady stream of uncomfortable votes for Republicans.
The bottom line is that the subcommittee’s debate, its consideration of motions from members on both sides and its overwhelming approval of the subpoena are no less valid because the motion was offered by a member of the minority party.
The subpoena has been duly authorized. House rules require Comer to serve it, and Bondi must produce the entire Epstein file to Congress.
Dave Rapallo is a former Democratic staff director of the House Committee on Oversight and Reform and now teaches at Georgetown University Law Center. His latest publication is Congress’s Power to Investigate Crime.
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