Congressional Papers and Judicial Subpoenas and the Constitution

Some contemporary Congresses have lost sight of the original scope of their predecessors' assertions of privilege and now claim an absolute privilege to withhold both the originals and copies of subpoenaed papers. A few judicial opinions suggest as much or more. It is possible that even cursorily documented, ill-considered dicta can take root and flourish, and to prevent that, this article This article charts the constitutional boundaries of Congress' privilege to withhold its internal papers from judicial subpoena. It surveys the privileges expressly given Congress in the text of the Constitution as well as the privileges that might be implied from our constitutional structure and history. This examination reveals that while the Constitution does give Congress the privilege of refusing to comply with subpoenas for documents in limited circumstances, it does not supply the absolute, unreviewable power that, in the view of some observers, Congress has arrogated to itself