The Clash of Titans:
When Congress Investigates the Presidency
As we go to press, the congressional impeachment investigation of President Clinton dominates the news making this issue of Extensions especially timely as it explores the clash between those two governmental institutions. Yes, the Lewinsky affair gains the headlines, but other matters remain, including the simmering investigation of 1996 presidential campaign finances with the threat of a contempt citation hanging over Attorney General Janet Reno. This issue of Extensions, though, is not designed to address the specific details of any of these cases (although some are discussed), but rather to look at congressional investigations from an institutional perspective. What are the origins of this power to investigate? From where is it derived? What is the extent of the power? How is it limited? When and why does and should the Congress opt to undertake an investigation of the executive? When do members do it well and when do they do it poorly? What are the benefits of a well-conducted investigation?
Actually, if the truth is known, this issue was conceived not as much with current events in mind as with an eye to history. Twenty-five years ago, the Senate's Watergate investigation was underway and, as discussed in the Kosmerick article below, the House of Representatives under Speaker Carl Albert was moving deliberately, but steadily toward impeachment. With that anniversary in mind, I approached Lou Fisher--the person of whom I always think when I wonder about legislative-executive relationships--for advice and guidance. I had to confess to Lou that I, perhaps like many students of the Congress, did not know how to put my hands around this issue. To the extent that I have succeeded in developing some ideas that might help students of American institutions better understand the Constitution's invitation to struggle, Lou gets much credit.
As the essays in this issue indicate, congressional investigations are diverse in their target, motivation, and success. These investigations run from impeachment proceedings designed to protect the constitutional system from improper executive actions and behaviors to routine consideration of how an executive agency is carrying out a law. They may have improving government performance as a goal or they may be transparently partisan. Finally, some investigations lead to important changes in policies, practices, or personnel, while others fall on their face, producing little useful information or perhaps even undermining the potential for congressional action. Still, as Fisher reminds us, all of these investigations reflect a clash of interests between the Congress and the president that follows only vaguely defined constitutional guidelines and periodically requires the interference of the third branch, the judiciary.
The essays in this issue focus on the nature of the investigations, their importance to the preservation of congressional prerogatives, and why Congress seems to find it difficult to run successful investigations. They reflect a congressional bias; all contributors are or have been employees of the legislative branch and begin by asserting the importance of a viable capacity of the Congress to investigate the president. Some are also, in part, partisan because it is often difficult--especially in an era of persistent divided-party government--to distinguish conflict between the two branches from conflict between the two parties. What the reader will find, then, is a set of essays that carry a number of biases--some shared, some antithetical. Brand and Sabo, for example, explore many of the same issues, but focus on quite different aspects of them. But in all cases we see a sincere analysis of congressional investigations and how they might be conducted so as to meet the immediate needs of the Congress and to sustain their long-term effectiveness.
Overall, the articles in this issue of Extensions provide a diverse
look at the topic of congressional investigations. While there are many
lessons to be drawn from them, I am left with two substantial conclusions.
First, the ability of the Congress to investigate the executive is critical
to its ability to achieve its other goals--checking the president, developing
good public policies, and overseeing the execution of legislation. Second,
good investigations do not come automatically or easily. As Van Cleve argues,
to succeed, Congress must nurture its capacity. Both staff and members
must develop the skills necessary to effectively manage an investigation.
The necessary skills are wide-ranging and include investigative experience
and media/public relations skills. Further, the purpose behind investigations
must be appropriate, widely understood, and valued. This point is especially
important if members are to move beyond partisanship. Finally, members
must become engaged; if they do not value the process and the anticipated
outcomes, those on the other side of the table will not either. For example,
one investigator, when asked why the staff had played such a large role
in questioning key witnesses, responded that the staff could not get members
sufficiently committed to do their homework. As important as the hearings
were, the lack of member engagement doomed them from the beginning. The
importance of investigations must be reflected in a sober approach to the
decisions to undertake them. Even important investigations can succeed
only under the right circumstances.