Beginning in 1995, Republican committees commenced a series of investigations, almost exclusively directed at the Clinton administration and the Democratic National Committee and to a lesser degree organized labor. Leaving aside the issue concerning the partisan political motivations of selecting only Democratic subjects, I will concentrate on the methodology of these investigations and the manner in which the Republican Congress, failing to apprehend the essential constitutional underpinnings of this power and the fragility of its legitimacy in the courts, may undermine the power in the long term. This phenomenon has been recognized by impartial observers of the congressional milieu, as well as by some Republicans themselves. While the congressional investigative power has been described as the "Grand Inquest of the Nation"³ and as broad as the legislative function itself, it is not unlimited. The Congress also has power, as an incident of its legislative authority, to issue subpoenas and punish those who fail to comply. But, because the Congress has selected as the enforcement mechanism a criminal process,⁴ the courts are required to and do carefully scrutinize the predicates of congressional subpoenas. The congressional subpoena process, however, is a highly technical business requiring meticulous obeisance to the myriad procedural and substantive rules governing committee hearings and witness rights. 

It is this fundamental aspect of the congressional subpoena power that I believe is underappreciated and misunderstood by the Republican leadership and the source of much of its difficulty in implementing the Article I oversight process. This is nowhere better demonstrated than in a statement by Rep. Dan Burton (R-Ind.), the about to be installed chairman of the House Committee on Government Reform and Oversight: "We're going to be diligent in finding out if there was wrongdoing and if anyone should be prosecuted."⁵ This statement represents a total distortion and misapprehension of the constitutional bases of congressional oversight. The Supreme Court has been clear that the congressional subpoena power is an aid to the legislative functions Article I of the Constitution devolve upon Congress. It is not the job of Congress to ferret out wrongdoing or prosecute crime for "the power to investigate, broad as it may be, is also subject to recognized limitations. It can not be used to inquire into private affairs unrelated to a valid legislative purpose . . . Similarly, the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary."⁶ 

Misperception of the foundations of congressional oversight can lead to myriad excesses and deficiencies in the subpoena process. Perhaps the most prominent of those is the repeated failures of investigating committees to stay properly within the jurisdictional subject matter which the House rules delegate to them. Although witnesses and subjects, with some notable exceptions, have been reluctant or remiss to raise "pertinency" and other procedural objections to which they are entitled, failure by the Congress to address adequately these issues may surface later when these witnesses and subjects, or others who follow them, determine that compliance is no longer in their interests. While some of these deficiencies can be waived, others may not. 

Jurisdiction and the Subpoena Power 

The congressional contempt statute requires that the documents or testimony sought be "pertinent" to the subject under inquiry meaning, in part, that the documents or testimony sought must be related to a function constitutionally given to Congress. More importantly, the subject matter to which the documents or testimony relate must fall within the grant of authority made by the full House to the committee because the "authority being exercised is that of the House of Representatives. It is the investigative power of the House that is vindicated by § 192. The legislative history of § 192 makes plain that a clear chain of authority from the House to the questioning body is an essential element of the offense." Put another way "[i]f the contempt occurs before a subcommittee, the line of authority from the House to the Committee and then to the Subcommittee must plainly and explicitly appear, and it must appear in terms of a delegation with respect to a particular, specific subject matter."⁷ 

This basic precept has been virtually abandoned and ignored by the House investigating committees. For example, the investigation of the Teamsters by the Committee on Education and the Workforce is arguably not within any subject matter delegated to that committee. The purported subject of the investigation--the 1996 IBT election--is a creature of a consent decree entered in a suit brought by the Justice Department, a subject more properly within the province of the House Judiciary Committee. 

Even the campaign finance investigation, the showcase for the Republicans' inquiry into the 1996 election, is beyond any of the subject matters specified in the House rule delegated to Government Reform and Oversight. Jurisdiction over federal elections generally and the reporting and use of campaign contributions for House and Senate candidates specifically is consigned to the House Oversight Committee. The Republicans belatedly considered re-consigning the campaign finance investigation to this committee after the chair of the House Government Reform and Oversight Committee created a controversy over release of the so-called Hubbell tapes, although their concern had more to do with embarrassment over the episode and the firestorm of criticism which followed than with a critical reassessment of the proper jurisdiction of House committees. 

These requirements are not legal "niceties"--these are judicially mandated predicates to enforcement of congressional subpoenas. Repeated violation of these important due process limits can only weaken the ability of Congress to conduct legitimate oversight. A very brief mention of some of the cases construing similar committee "charters" reveals how parsimoniously the courts will construe congressional committee jurisdiction in the context of enforcing the criminal statute Congress has designed as the enforcement mechanism. 

In one case I am fond of citing, the Supreme Court held that an investigating committee looking into communist infiltration into labor unions "in the Albany area" of New York could not question the witness about his student years at Cornell University because "[i]t can hardly be seriously contended that Cornell University is in the Albany area," and because the investigation related to communist infiltration of labor unions not at educational institutions. As the majority opinion pointed out, Cornell was found to be "more than one hundred and sixty-five miles from Albany, and in an entirely different economic and geographic area of New York."⁸ This seems to the legally untrained eye a rather picayune manner in which to parse a constitutional power characterized by then Senator (later Justice) Hugo Black as an indispensable power by which to "tear away the veil behind which audacious and unscrupulous groups operate . . ." 

In another case, the court determined that a grant by the House to the Judiciary Committee of jurisdiction over "interstate commerce generally" and more specifically "to conduct full and complete studies and investigations relating to . . . the activities and operations of interstate compacts" did not justify a contempt conviction for failure to produce documents claimed by the New York Port Authority to relate exclusively to the internal administration of the Authority.⁹ 

The Court held that the authorizing resolution did not clearly and explicitly indicate the intent of the House to give the Judiciary Committee authority to compel production of "all of the administrative communications, internal memoranda, and other intra-Authority documents," but only to call "for documents relating to the actual 'activities and operations' of the Authority . . . [¶] [and not] the why of Authority activity."¹⁰ 

And in another case, the court found that the statutory delegation to a committee to study the operation of government activity at all levels to determine its efficiency and economy did not encompass an inquiry into private industry, even though those private firms were doing government work.¹¹ To interpret the committee's charter to investigate the economy and efficiency of the government as including the work of private firms, the court reasoned, would give the committee virtually limitless jurisdiction. 

These are but a representative sample of the narrow interpretation of committee jurisdiction running throughout the case law and which the Republican committee chairmen have ignored in running their investigations. As Congress learned to its detriment during the 1950s and 1960s, failure to abide by the exacting standards articulated by federal courts can lead to significant diminishment of its information gathering function, disrespect for its legal processes and overall public disfavor of Congress. 

Rights of Witnesses 

Examples of congressional trenching on witness rights abound. The recent public release of the Hubbell tapes to coincide with his indictment by the independent counsel (after being held by the committee for a year) raise additional constitutional concerns. In Delaney v. United States, the court of appeals in 1952 reversed a conviction when the trial court refused to grant a continuance until the pre-trial publicity generated by a parallel House committee investigation into the same subject matter had abated. The furor unleashed by the public release of the Hubbell tapes--tapes that have absolutely no bearing on the purported subject matter being investigated--will undoubtedly be seized upon by defendants (properly so), to delay the trial or seek to change venue given the intense publicity attendant to their release. 

In the election contest involving Congresswoman Loretta Sanchez (D-Calif.), in which I had the privilege to represent the congresswoman as co-counsel, the House Oversight Committee allowed a person outside the Congress to issue subpoenas to a wide array of third parties without any showing of need. 

One day, perhaps in the not too distant future, these excesses may come home to roost, as they have in previous eras when Congress repeatedly violated fundamental due process strictures. 

Oversight, Not Prosecution 

Finally, the goal of at least some of these committees to find evidence of "wrongdoing," as Chairman Burton put it, undercuts their constitutional oversight function. When Congress seeks to determine whether existing laws are being administered in the manner Congress intended, whether or how much money to appropriate, whether to declare war or increase its armies and navies in response to threats to its national security, it is at the apex of its constitutional investigative power. When instead it seeks to determine who to prosecute or what was said or done in an individual case, it sinks to its constitutional nadir and broaches judicial opprobrium. As one court of appeals explained in denying to the Senate Watergate Committee a subpoena for presidential tapes: 

While fact finding by a legislative committee is undeniably part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political consequences, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings.¹² 

Over 100 years ago, Justice Samuel Miller, the second of Lincoln's five appointees to the Supreme Court, authored a decision highly critical of Congress' exercise of its investigative power,¹³ and indeed this decision was viewed for years thereafter as casting grave doubt on the ability of Congress to investigate even to assist itself in drafting legislation. Writing privately around the time of the case, the justice expressed views aptly reflecting the sentiments of more contemporary victims of congressional excess: 

I think the public has been much abused, the time of legislative bodies uselessly consumed and rights of the citizens ruthlessly invaded under the now familiar pretext of legislative investigation and that it is time that it was understood that courts and grand juries are the only inquisitions into crime in this country. I do not recognize the doctrine that Congress is the grand inquest of the nation, or has any such function to perform, nor that it can by the name of a report slander the citizen so as to protect the newspaper which publishes such slander. If the whole body cannot do this much less can one house do it . . . . 

As regards needed information on subjects purely legislative, no doubt committees can be raised to inquire and report, money can be used to pay for such information and laws may be made to compel reluctant witnesses to give it under proper guaranty of their personal rights. This is sufficient, without subjecting a witness to the unlimited power of a legislative committee or a single branch of the legislative body.¹⁴ 

Leaders of investigating committees need to read these cases carefully and heed the lessons contained thereon, lest their stewardship of the congressional investigative power suffer the same precipitous decline experienced in that power during the 1950s and 1960s. 

Stanley M. Brand is a founding partner in the Washington, D.C. law firm of Brand, Lowell & Ryan engaged in criminal and civil litigation. From 1976 to 1984, he served as General Counsel to the U.S. House of Representatives and represented the House and its committees and members in litigation involving the constitutional powers of the Congress, up to and including cases before the Supreme Court. 

1. Landis, Constitutional Limitations on the Congressional Powers of Investigation, 40 HARV. L. REV. 153, 159 (1926). 

2. McGeary, Congressional Investigations: Historical Developments," 18 U. CHI. L. REV. 425, 428 (1951). 

3. William Pitt the elder first coined this characterization of the national legislature. See J. Hamilton, The Power to Probe (Vantage Books, 1976), 172. 

4. 2 U.S.C. §§ 192-1942. The statute punishes willful refusals or defaults by witnesses summoned to appear before Congress or its committees to answer "pertinent" questions by a fine of not more than $1000 nor less than $100 and imprisonment for not less than one month nor more than twelve months. The House has not availed itself of the civil enforcement mechanism enacted in 1978. In Re Commisano, 655 F.2d 1232, 1238 n. 28 (D.C. Cir. 1981). The House has the inherent authority to punish for contempt through arrest by the Sergeant-at-Arms, Anderson v. Dunn, 19 U.S. (6 Wheat) 204 (1821), which may be challenged by writ of habeas corpus, United States v. Fort, 443 F.2d 670, 676 (D.C. Cir. 1979), cert. denied, 403 U.S. 932. Neither house has used the inherent power since 1934, and the House last used it in 1917. Marshall v. Gordon, 243 U.S. 521 (1917). 

5. The Washington Times, 7 Nov.1996, A1 (emphasis added). 

6. Quinn v. United States, 349 U.S. 156, 161 (1955)(emphasis added). 

7. Gojack v. United States, 384 U.S. 702, 716 (1966). 

8. Ibid. 

9. Deutch v. United States, 367 U.S. at 470. 

10. Tobin v. United States, 306 F.2d 270, 276 (D.C. Cir. 1962), rev'g, 195 F.Supp. 588 (D.D.C. 1961). 

11. Tobin v. United States, 306 F.2d at 275-76 (emphasis added). 

12. Senate Select Committee v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974)(en banc) (rejecting Senate Committee's subpoena for Watergate tapes). 

13. In Kilbourne v. Thompson, 103 U.S. 168 (1880) a special House committee was formed to inquire into the nature of a "real estate pool" and transactions involved in the bankruptcy of Jay Cooke & Co. The House resolution authorizing the committee "to compel testimony stressed the government's interest in the case as a result of 'improvident deposits' of public money having been made with the London branch of a bankrupt company." G. McGreary, Congressional Investigations: Historical Developments, 18 U. CHI. L. REV. 425, 428 (1951). When the manager of the pool was asked by the Committee to produce certain papers, he declined and was arrested by the House Sergeant-at-Arms. 

14. Fairman, "Justice Samuel F. Miller: A Study of a Judicial Statesman," Political Science Quarterly 50 (1935):15, 35-36 n.72 , quoting letter from Samuel F. Miller to William Pitt Ballinger (Mar. 20, 1881).