Investigative powers of Congress: Notes and Links

Contents
The power to demand information
Enforcing against contempt of Congress
Executive privilege
Impeachment timeline

 

The investigative power inherent in legislative power

The power to demand information: Source and extent

Congressional investigation and oversight have always been seen as implied by the Constitution's grant of legislative power.

  • Understood as broad. Quoting from various key cases, the Mazars majority summarizes it this way:
    • encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes
    • includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them
    • comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. (19)
  • The power inheres in each house of Congress separately; it may be delegated to committees as the chamber sees fit.
  • There need be no advance specification of a particular legislative goal; it is enough that the subject be one on which Congress could legislate.
  • Limitations
    • Congress can't investigate where forbidden to legislate.
      • Exercising the powers of other branches, such as adjudicating cases or enforcing laws.
      • Violating individuals' constitutional rights or otherwise merely harassing individuals.
    • A committee can require only information "calculated to materially aid their investigations" (again, Mazars quoting various cases)
    • A committee can issue subpoenas only after being formally delegated power by its chamber to do so in the relevant subject area.

History

  • In England, dates back to late 1600s
  • In U.S., the first investigation: 1792 inquiry into St. Clair's defeat (Battle of the Wabash 1791)

As with court proceedings, a reluctant witness may be issued a subpoena ("under penalty"), a writ commanding the person to appear or to submit certain written information.

 

Enforcing against contempt of Congress

contempt of Congress: To fail to respond to a subpoena, or otherwise to obstruct the legitimate operations of Congress. Congress itself may punish in three ways:

  • Refer for prosecution by DoJ under criminal contempt of Congress statute
  • Bring civil suit in federal court, seeking court order
    • Chafetz: first entertained by federal court in Senate Watergate hearings
  • Assign House or Senate Sergeant-at-Arms to arrest and jail the contemnor (last done 1935; occasionally threatened, such as by Chmn. Ervin in Senate Watergate hearings)

inherent contempt power: The implied power of Congress to punish contempt of Congress using its own personnel and resources.

First use of Sgt.-at-Arms to arrest a witness. As recounted by Louis Fisher, "Congressional Investigations: Subpoenas and Contempt Power," CRS Report (Apr. 2, 2003), p. 3:

  • The first use of the investigative power to protect the dignity of the House occurred in 1795. William Smith, a Representative from South Carolina, announced that a Robert Randall had confided in him a plan to seek a grant of some twenty million acres from Congress, to be divided into forty shares. More than half that amount would be reserved to lawmakers who assisted him. The House passed a resolution directing the Sergeant at Arms to arrest Randall and one of his associates, Charles Whitney. On January 6, 1796, the House concluded that Randall had been guilty of contempt and a breach of House privileges by attempting to corrupt the integrity of its Members. He was brought to the bar of the House, reprimanded, recommitted to custody, and released a week later.

Weaknesses of these powers

  • inherent contempt: "cumbersome, inefficient, and 'unseemly'" (Mazars)
  • statutory enforcement: in confrontations with exec. branch -- especially DoJ -- they may refuse to enforce.
  • civil litigation: subject to extensive delay

Chafetz: the cautionary tale of the U.S. Attorney scandal, 2006-2010.

Contents
The power to demand information
Enforcing against contempt of Congress
Executive privilege
Impeachment timeline

 

Executive privilege

History and law

Early history: Eisenhower coined the term, but the idea was present from the beginning of government under the Constitution.

  • Washington 1792 discussed with his cabinet whether he should turn over records to House committee investigating St. Clair's defeat. They advised he should supply all records that "the public good would permit" but "refuse those the disclosure of which would harm the public." (Quoted in Ronald G. Shafer WaPo article.)
  • Washington 1796 withheld from the House negotiating instructions given to John Jay for Treaty negotiations with Britain (diplomatic secrecy). (See this article from Just Security.)
  • Jefferson refused to testify in person in Burr treason trial 1807, although Marshall (sitting on Circuit Court) ruled he is subject to subpoena. (See this Watergate-era NY Times article.)
  • Jackson 1833 refused Senate demand for records of his remarks to cabinet re: the Bank War, insisting on confidentiality of internal executive branch advising.
  • On the same basis, Eisenhower asserted executive privilege in 1954 to block McCarty's Committee on Un-American Activities from interfering with top administrators. The argument came to be called the "candid interchange docrine."

Appearance in formal legal rules:

  • U.S. v. Reynolds (1953) recognized "state secrets" privilege in lawsuits; court is to judge whether real national security considerations are present.
  • Freedom of Information Act (1966) allowed for an executive privilege exception with respect to military secrets.
  • 1973-74 Federal court decisions on Watergate-related demands for White House records. Nixon asserted all federal employee communications are privileged.
    • Courts ruled presidential conversations are "presumptively privileged."
    • Court decisions should, case-by-case, balance need for criminal justice against need for confidentiality in executive branch deliberations.
    • A Senate Watergate Committee civil suit to enforce subpoena was at first dismissed for lack of jurisdiction; Congress passed a law declaring that case within federal court jurisdiction.
    • Supreme Court in U.S. v. Nixon ruled executive privilege claims are justiciable; that some degree of privilege exists based on Constitution's vesting of executive power.
    • Trump administration has appealed heavily to the D.C. Circuit Court's ruling in AAPS v. Clinton (1993) applying the candid interchange doctrine very broadly -- even to information solicited from outsiders by presidential advisors.
      • AAPS = Association of American Physicians & Surgeons
      • Later (1997, during Whitewater investigation) in Clinton admin, courts ruled against granting privilege to communications between the president's lawyers and those of the First Lady.

The law and politics of executive privilege

Asserting executive privilege is not quite a formal legal action.

  • different administrations handle differently: with or without general directives to officials; through direct presidential claim only, or by officials at behest of president.
    • See impeachment timeline events re WH orders to Cooper, Kupperman
  • exec refuses request for info
  • subpoena
  • taken to court, exec invokes privilege in their arguments
  • Usually, at some stage, settled via negotiation between the executive branch and Congress or prosecutors
    • Courts encourage this.
    • Legal observers often say it's usually best.
    • But negotiations fail in real executive-legislative standoffs: Clinton in Whitewater; Bush in US Attorney scandal; Obama vs. "Fast & Furious" investigation; and probably Trump vs. impeachment process.
  • Contrast Taylor's cautious optimism as of January with Trump positions now. In addition to invoking AAPS v. Clinton ("absolute immunity" of all executive-branch advising communications), he asserts:
    • a sitting president has "constitutional immunity" or "absolute immunity" against all criminal investigation;
    • because investigating committees' claimed legislative goals are allegedly pretextual, their subpoenas are invalid;
    • he need not cooperate with the "illegitimate" impeachment process.

Inherent contempt powers?

  • Taylor: "not very pretty"; and "would likely not sit well with a public that does not favor physical confrontation in U.S. politics"
  • Holt: ignores altogether

Proposed statutory and judicial innovations

  • mandate US Attorney to give statutory enforcement cases to grand jury
  • special prosecutor
  • universal federal court jurisdiction of congressional contempt suits
  • Rep. Issa's bill: strengthen statutory enforcement power; give court the power to levy fines against exec officials who reject subpoena; require agency to produce detailed "privilege log" to help court rule on individual items. Died in the Senate.
  • Chafetz: bring back inherent-contempt threats
  • Holt / Claveloux: clarified principles for court treatment of civil suits over exec. privilege
    • judicial restraint -- encourage negotiation)
    • justiciability -- clarify that such claims are not "political questions"
    • make sure case-by-case that oversight power and executive privilege have been properly asserted
    • modify the presumption of confidentiality in favor of Congress
    • focus on the principle of balancing public interest --
      • not public interest vs. military secrecy powers, but public interest in transparency or justice vs. public interest in national security secrecy
      • not public interest vs. presidential prerogative, but public interest in transparency vs. public interest in candid presidential advising.
    • procedural safeguards -- such as judge's power to inspect claimed secrets or privileged info before ruling

 

Impeachment timeline moved to new page

Contents
The power to demand information
Enforcing against contempt of Congress
Executive privilege
">Impeachment timeline