D.C. Circuit Reaffirms That Congressional Witnesses Must Appear to Invoke the Fifth Amendment

On Friday, July 31, 2026, in de la Torre v. Cassidy, the U.S. Court of Appeals for the D.C. Circuit reaffirmed that a witness subpoenaed to testify before Congress cannot invoke the Fifth Amendment in advance and simply refuse to appear. Rather, a witness must comply with a lawful subpoena by appearing and asserting the privilege in response to specific questions.

The decision is timely in light of Dr. Anthony Fauci’s appearance last week before the Senate Homeland Security and Governmental Affairs Committee. In light of the D.C. Circuit’s opinion, Dr. Fauci’s decision to appear and repeatedly take the Fifth — rather than not appear at all — makes sense. Although a witness’ doing so takes substantial time and often turns the proceedings into more of a spectacle, de la Torre confirms that appearance may be necessary when witnesses want to preserve their rights and Congress insists on calling them.

The de la Torre case

The case arose out of the bankruptcy of Steward Health Care System (Steward). The Senate Committee on Health, Education, Labor, and Pensions (HELP Committee), which has jurisdiction over health policy, subpoenaed Steward’s founder and CEO, Dr. Ralph de la Torre, to testify regarding the company’s collapse.

Rather than appear, Dr. de la Torre informed the HELP Committee by letter that he was invoking his Fifth Amendment privilege against self-incrimination and would not attend the hearing. In response, the HELP Committee unanimously approved resolutions authorizing civil enforcement of its subpoena and recommending that Dr. de la Torre be held in criminal contempt of Congress. The full Senate subsequently adopted the criminal contempt resolution.

Dr. de la Torre then sued the HELP Committee and the Senators who voted for the contempt resolution, arguing that the committee’s efforts to compel his testimony violated the Fifth Amendment. The District Court dismissed the action, concluding that the Constitution’s Speech or Debate Clause — which provides that Members of Congress “shall not be questioned in any other Place” for their legislative acts — barred the suit. Dr. de la Torre appealed.

The D.C. Circuit’s Decision

The D.C. Circuit unanimously affirmed.

The court held that the HELP Committee’s subpoena was a quintessential legislative act protected by the Speech or Debate Clause. Because the committee was seeking information relevant to a subject squarely within its jurisdiction, the committee and its members were immune from suit related to the subpoena’s enforcement.

The court also rejected Dr. de la Torre’s argument that the committee lost Speech or Debate Clause protection because he had invoked the Fifth Amendment before the hearing. The Fifth Amendment, the court explained, does not excuse a witness from complying with a subpoena requiring his appearance. Instead, the privilege must be asserted at the hearing.

Nor did the court give weight to Dr. de la Torre’s contention that the hearing was intended to “publicly humiliate and degrade” him. Echoing decades of Supreme Court precedent, the court emphasized that “the subjective motives of Members of Congress do not affect the objective legitimacy of a congressional inquiry.”

The Broader Context

The decision does not narrow the Fifth Amendment privilege. Rather, it clarifies when — and how — that privilege must be asserted in the congressional context.

The opinion also fits comfortably alongside the D.C. Circuit’s recent discussion in United States v. Navarro, where the court observed that recipients of congressional subpoenas “retain common law and constitutional privileges” in responding to congressional demands. Read together, the two decisions underscore complementary principles: Congress possesses broad authority to compel testimony and documents in furtherance of legitimate legislative inquiries, but that authority remains subject to constitutional protections and recognized privileges. However, those privileges generally do not permit a witness to ignore or refuse to comply with a subpoena.

Practical Takeaways

The decision reminds companies, executives, and other congressional investigation targets that courts are generally unlikely to interfere with congressional investigative activities undertaken pursuant to a legitimate legislative purpose. In addition, while constitutional and common-law privileges remain available, they ordinarily must be asserted through compliance with the congressional process — not as a basis for refusing to participate altogether. Finally, because parties seeking to directly challenge congressional subpoenas in court will continue to face significant jurisdictional hurdles, careful engagement with Congress from the outset remains more important than ever.

If you have questions about this Enforcement Edge post, please contact the authors or any of their colleagues in Arnold & Porter’s Congressional Oversight & Investigations or White Collar Defense & Investigations practice groups.

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.