The Constitution does not expressly grant Congress the power to investigate. It is an implied power, like many others, including judicial review for the courts and executive privilege for the president. On some occasions these implied legislative and executive powers are fought out in the courtroom. For the most part, executive-legislative clashes are settled informally without litigation. 

Some Early Precedents 

In 1790, Robert Morris asked Congress to investigate his conduct as Superintendent of Finance during the years of the Continental Congress. The House referred the matter to a committee composed of James Madison, John Laurance, Theodore Sedgwick, Roger Sherman, and William Smith. Elbridge Gerry was uncomfortable about this venture. It was one thing, he said, for the Continental Congress to investigate executive matters, because it was "both a Legislative and Executive body." But Gerry insisted that 

the President of the United States is the only competent authority to take cognizance of the conduct of officers in the Executive Department; if we pursue the proposed plan of appointing committees, we destroy the responsibility of Executive officers, and divest the House of a great and essential privilege, that of impeaching our Executive officers for maladministration. ¹ 

The Senate, apparently also feeling skittish about investigating Morris' conduct, passed a resolution empowering President Washington to appoint three commissioners to inquire into the receipts and expenditures during that period. The House was opposed to appointing commissioners "as creating an unnecessary expense." Madison also objected to commissioners appointed by the President: "the House should possess itself of the fullest information in order to doing justice to the country and to public officers."² The House went ahead and completed its investigation. 

The House ordered its first major investigation on March 27, 1792. It appointed a committee to inquire into the ill-fated expedition of Major General Arthur St. Clair, whose troops suffered heavy losses to the Indians. The committee was empowered "to call for such persons, papers, and records, as may be necessary to assist their inquiries."³ According to the account of Thomas Jefferson, President Washington convened his cabinet to consider the extent to which the House could proceed. The cabinet agreed that the House "was an inquest, and therefore might institute inquiries . . . [and] call for papers generally." The president "ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public: consequently were to exercise a discretion." ⁴ 

The cabinet concluded that there was not a paper "which might not be properly produced." The committee examined documents produced by the administration and listened to explanations from department heads and other witnesses. Although the investigation was completed, the seed of executive privilege had been established. The president could refuse papers "the disclosure of which would injure the public." 

Congressional Tools 

Congress has many weapons to further the investigation process. It may issue subpoenas, depose witnesses, and hold hearings. Some early decisions by the Supreme Court held that congressional investigations must relate to some legislative purpose (Kilbourn v. Thompson in 1881), but a more generous interpretation was adopted in McGrain v. Daugherty (1927), which held that a "potential" for legislation was sufficient. It is enough that the subject is one on which Congress can legislate and "would be materially aided by the information which the investigation was calculated to elicit." Even the "potential" theory is too narrow a test for congressional investigations. The Court in Eastland v. United States Servicemen's Fund (1975) recognized that committee investigations may take researchers up "blind alleys" and into nonproductive enterprises: "To be a valid legislative inquiry there need be no predictable end result." 

Although congressional investigations must respect the Fifth Amendment right that protects individuals against self-incrimination, Congress may request a federal court to issue an order that compels witnesses to testify. By surrendering the Fifth Amendment right, witnesses are given partial immunity (their testimony may not be used against them in any criminal case) or full immunity (so-called "transactional immunity," which offers absolute protection against prosecution for the offense). 

Kilbourn and other early decisions suggested that a congressional investigation could not interfere with matters pending before a court. Under that doctrine, however, legislative inquiries could be frustrated for years while awaiting the outcome of a lawsuit. Congress is free to investigate a matter even if it results in publicity prejudicial to a defendant. In such situations a court may find it necessary to postpone a trial until the prejudice has been removed. When Congress seeks a document that it could have had in the absence of a lawsuit, the mere existence of a suit or a grand jury action is inadequate reason to withhold information from Congress. 

Investigations by the independent counsel often compete with congressional efforts to probe the same dispute. Congress may decide to accommodate the independent counsel by delaying a legislative investigation, but Independent Counsel Lawrence E. Walsh recognized that his investigation into the Iran-Contra affair did not automatically trump the intention of Congress to hold hearings and conduct its own inquiry. In order to publicize and facilitate its investigation, Congress can grant immunity and "there is no way that it can be avoided. They have the last word and that is a proper distribution of power."⁵ 

In 1995, the Clinton administration refused to release records subpoenaed by the Senate Whitewater Committee, which had requested notes taken by someone in the White House Counsel's office. After the Senate voted to go to court to enforce the subpoena, the White House surrendered the notes. 

The Power of Contempt 

When all else fails, Congress can hold executive officials in contempt to force the release of documents. A 1975 tug of war between the branches, with Congress the eventual victor, concerned Arab boycott reports compiled by the Department of Commerce. Secretary Rogers Morton initially refused to comply with a committee subpoena. After facing contempt proceedings, he bowed to the will of Congress and released the material. In 1980, President Carter threatened to withhold documents concerning his oil import fee. Energy Secretary Charles W. Duncan, Jr., with a contempt citation hanging over his head, yielded the documents to a House subcommittee. A year later, Energy Secretary James B. Edwards narrowly escaped a contempt citation by agreeing to provide information on the synthetic fuels program to a House committee. 

In 1982, Anne Gorsuch, Administrator of the Environmental Protection Agency, refused to turn over to Congress "sensitive documents found in open law enforcement files."⁶ After the House Public Works Committee held her in contempt, the full House voted 259 to 105 to support the contempt citation. Although partisan overtones were present, 55 Republicans joined 204 Democrats to build the top-heavy majority. The documents were released. 

More recently, the Clinton White House invoked executive privilege to shield thousands of documents concerning the "Travelgate" affair. The House Committee on Government Reform and Oversight voted 27 to 19 to hold White House Counsel Jack Quinn in contempt. Before the matter could be taken to the floor, the disputed documents were released to the committee. 

Checks on Congress 

Zealous or careless investigations can violate individual freedoms protected by the Constitution. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Basic freedoms of speech, press, religion, and political association should not be abridged. 

During the 1950s, it was evident that some congressional investigations had taken a turn for the worse. Most frequently attacked for violating individual rights and freedoms were the House Un-American Activities Committee (HUAC) and the Senate Permanent Investigations Subcommittee, chaired by Joseph R. McCarthy. Members of Congress, bar associations, and civic and political action groups drafted codes of fair procedure. Beginning in 1953 the House Rules Committee held hearings on suggested codes of rules for the committees, and in 1955 the House adopted a set of procedures for committee investigations. Those procedures are now part of House rules. 

Several Court decisions in the 1950s placed some limits on congressional investigations. In Watkins v. United States (1957), the Court threw out a contempt conviction by ruling that fundamental fairness demanded that a witness be given adequate guidance in deciding the pertinency of questions. The manner in which the committee hearing was conducted violated the due process clause of the Fifth Amendment. 

The tone of the decision, containing reprimands aimed at Congress--together with other decisions handed down during this period--produced a groundswell of opposition from legislators. Various bills were introduced to curb the Court. In the face of this political pressure, the Supreme Court two years later conducted a partial retreat. In Barenblatt v. United States (1959), the Court adopted a more generous standard for Congress, the so-called "balancing test." The interests of the individual had to be balanced against the government's interest in self-preservation. In this case, as probably in most, the balance went against the individual. 

A study of court cases necessarily distorts the record of Congress and its committees. The cases test the outer limits of the power to investigate and often place Congress in an unfavorable light. By their very nature, these cases are exceptional. The vast majority of congressional investigations proceed without the need for litigation and without jeopardizing either individual liberties or the separation of powers. Moreover, the investigative power of Congress is often the only check that can protect individual liberties and curb executive abuses. 

Louis Fisher is Senior Specialist in Separation of Powers at the Congressional Research Service of the Library of Congress. He is the author of a number of books, including American Constitutional Law (3d ed., Carolina Academic Press, 1999) and Constitutional Conflicts between Congress and the President (University Press of Kansas, 1997). 

1. Annals of Congress, 1st Cong., 22 March 1790, 1515. 

2. Ibid. 

3. Annals of Congress, 3d Cong., 27 March 1792, 493. 

4. The Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Thomas Jefferson Memorial Association of the United States, 1903) vol. I, 304. 

5. Lawrence E. Walsh, The Independent Counsel and the Separation of Powers, 25 HOUSTON L. REV. 9 (1988). 

6. Louis Fisher, Constitutional Conflicts between Congress and the President, 4th ed. (Lawrence, KS: University Press of Kansas, 1997), 188.