This essay explores framework issues surrounding congressional investigations at the end of the twentieth century: Why does Congress engage in relatively infrequent major investigations of the presidency? Why are congressional investigations sometimes unsuccessful, despite Congress' enormous investigative powers? What could be done to make congressional investigations more successful? 

In one sense, Congress investigates the presidency every day. Members of Congress collectively receive thousands of constituent messages every day concerning the performance of the president and the executive agencies. In response to constituent interest, on their own initiative, and as part of periodic oversight reviews, members and congressional committees request and receive large amounts of detailed information from the executive about its activities. Congressional watchdog agencies such as the General Accounting Office and the Congressional Budget Office oversee executive branch performance. 

By "major" congressional investigations of the presidency, we mean systematic investigations involving something more than this continuous, large, and generally voluntary flow of information. We are interested here in situations where Congress attempts to obtain comprehensive information from the executive branch either concerning the overall performance of a particular executive branch program or law, a particular executive agency which administers a range of programs, or the conduct of particular executive officials. Resistance to cooperation with such congressional investigations typically occurs either because of concerns about legal liability (e.g., self-incrimination), or may be based on institutional considerations (e.g., executive privilege, interference with presidential authority, administrative burden), or partisan electoral concerns. 

Why Congress Conducts Relatively Infrequent Major Investigations of the Presidency 

In performing its legislative review, public disclosure, and law reform functions, Congress brings massive, inherent formal powers to its task of investigating the presidency. These powers include: virtually untrammeled power to define the scope and timing of investigations; the power to employ very large financial resources; broad powers to subpoena witnesses and documents; the power to hold executive session or public hearings using relaxed rules of procedure to obtain necessary evidence and then expose misfeasance in the court of public opinion; the power to hold recalcitrant witnesses in contempt; the power to compel testimony through immunity grants; and the power to legislate to correct perceived wrongs. One of the very few recognized legal limits on the investigative power of Congress is that it is not a "law enforcement or trial agency," and cannot use its powers to try a criminal case against identifiable individuals. Nor can Congress constitutionally legislate to punish specific individuals for crimes previously committed.¹ 

Even though Congress has enormous formal authority to investigate, it uses this power to conduct major investigations of the executive branch on the scale of the Whitewater or Iran-Contra inquiries only episodically, and then rarely presses its investigative authority to its full constitutional limits.² The reasons for this paradox are ultimately institutional: Congress faces numerous serious internal obstacles to conducting investigations, and faces in the presidency a determined, powerful opponent of such investigations. 

Internal Obstacles to Congressional Investigations 

First and foremost, congressional investigations are not pure searches for the truth. Congressional investigations represent a judgment by a congressional majority that it is worth expending scarce resources, including money, time, and public and media attention, on an investigation. Such a priority-setting judgment may easily be mistaken. Given that a congressional majority is typically also a partisan entity, it is inevitable that partisan considerations will often influence--if not actually control--decisions to investigate. 

A decision to investigate necessarily means that the congressional majority thinks an investigation will be a method of political combat superior to other available means such as the legislative process. Understandably, the congressional minority often feels free to criticize, delay, and otherwise impede such investigations. Intraparty and partisan dissension can slow, impede, prevent, or even terminate a congressional investigation. 

The fate of the House and Senate investigations of 1996 campaign finance practices illustrates the problems posed by internal congressional divisions. The Senate's investigating committee, led by Fred Thompson (R-Tenn.), which was widely perceived as a potentially partisan vehicle and also as a possible vehicle for presidential ambitions, had serious trouble getting an investigation budget from the Senate at all, and was established with a deadline for completing its work that made it impossible for it to do its job. Ironically, this outcome was perfectly acceptable to many members of the Senate--of both parties--since their enthusiasm for a probing campaign finance investigation was, to put it mildly, limited. Among other things, the arbitrary deadline imposed on the work of the committee rendered its subpoena authority almost useless, because numerous powerful organizations felt free to ignore subpoenas that were unlikely ever to be enforced. 

In theory the Republican majority in the House of Representatives should have been able to organize a more powerful, cohesive campaign finance investigation because it did not face the Senate's strangling filibuster rule and its procedural cousin, the unanimous consent scheduling agreement. However, as a result of intraparty disputes and turf disagreements, the investigation was placed in the hands of a House committee chairman, Dan Burton (R-Ind.), who was unable to cut through the political thicket of campaign finance. The results were predictable. 

The failure of the congressional campaign finance investigations perfectly mirrors the congressional impasse over campaign finance reform legislation. Indeed, it appears that the quality of particular congressional investigations often bears a direct relationship to the degree of cohesion of the legislative will that Congress can bring to bear on the issue involved. 

Second, Congress has no meaningful institutional capability to conduct major investigations. Major investigations conducted by professional investigators such as the Justice Department, independent counsels, or competent congressional committees often take a year if not several, and involve dozens of professional staff and millions of dollars. Managing and directing such an effort requires considerable skill and training. Comparable private sector activities would typically be managed by senior members of major company boards of directors or law firms. Congressional staff rarely have the background or training needed to conduct such investigations effectively (with the possible exception of members of the staffs of a few congressional oversight committees, but whose numbers have been reduced by budget cuts and whose experience has been limited by turnover associated with changes in partisan control). Nothing in the day-to-day work of congressional staff members prepares them for such responsibility. While individual members of Congress may, fortuitously, have the necessary background, very few of them can afford to devote the enormous amounts of time needed to conduct a major investigation effectively. It is unlikely a divided Congress will create an adequate institutional capability to conduct formal high-level investigations, because no partisan majority is likely to create a major institutional resource that could end up in the "wrong hands" if power is transferred. Thus, Congress will almost inevitably need to recruit outside "hired guns" on an ad hoc basis to assist in conducting such investigations. 

Third, given the ease with which controversies can be taken to the federal courts, the federal courts often become involved in major congressional investigations. This litigation generally will result in delays and on very rare occasions impose some substantive limits on the scope or nature of congressional investigative activity. Such litigation typically becomes more likely the more the congressional investigation resembles law enforcement activity, but litigation can also result from presidential initiative simply because it is another tool in managing a constitutional confrontation between the branches. If Congress is unwilling to commit to a long enough schedule for completing an investigation, the necessity for litigation may force it to compromise with potential witnesses, as occurred in certain respects concerning the testimony of Oliver North during the Iran-Contra investigation. As experienced prosecutors know, and as the experience of the campaign finance investigations makes clear, an investigation schedule that is obviously too short will render Congress unable to obtain necessary information, because those under investigation will "run out the clock." 

Congress has seriously complicated its investigative task by enacting legislation providing for the appointment of independent counsels to investigate criminal wrongdoing by high-level executive branch officials. Because it is the political path of least resistance, an independent counsel is likely to be appointed in the midst of nearly any major congressional investigation that involves allegations of any significant form of high-level executive branch lawbreaking. An independent counsel will see as his or her exclusive mission the obtention of criminal convictions (where appropriate), a mission very different from that of Congress. When an independent counsel is or will be appointed in a particular matter, Congress will often not be able to conduct a meaningful investigation of it without making use of the congressional immunity power. 

However, it is by now well-established that Congress cannot exercise its immunity power without, as a practical matter, eliminating the ability of an independent counsel to prosecute immunized individuals. Thus, during any congressional investigation which involves potentially criminal conduct by those surrounding the president, it is a virtual certainty that those individuals, unless they profess to suffer from a form of "amnesia," will refuse to testify without immunity, and that the independent counsel will resist the granting of immunity to them because it will seriously prejudice, if not eliminate, his or her ability to prosecute. Where Congress investigates a matter that potentially involves criminal liability, Congress is now forced either to accept severe limits on its ability to investigate, or to forgo what might have been important, precedent-setting--and often popular--criminal prosecutions. The provisions of the independent counsel statute, and the incentives it creates for long, tortuous investigations, greatly heighten the conflict between Congress' desire to find out promptly what happened in the service of its effort to inform the public and obtain law or administrative reform, and the prosecutor's desire to prosecute. 

Thus, Congress faces a series of institutional constraints in attempting to conduct major investigations of the presidency which discourage such investigations in many cases. At the same time, it faces a determined and powerful opponent in such investigations. 

The Presidency As an Opponent to Congressional Investigations 

As a coequal branch of government, the presidency has ample resources and political power to defend against congressional investigations. The president, too, has large personnel and financial resources. By virtue of his control of the executive branch, the president is typically able at the outset to find out much more about the subject Congress is investigating than Congress knows, thus giving him the ability to organize an early defense out of public view. 

The president usually has a considerably superior ability to court public opinion in defending against congressional investigations. It is clear from recent experience that an investigation of a popular president that is perceived to proceed from partisan motives can be politically costly to members of Congress, as Senator Alfonse D'Amato (R-N.Y.) discovered in conducting the Senate Whitewater investigation. 

A major congressional investigation is generally designed to publicize perceived failings of a president. As a means of obtaining changes in presidential conduct, an investigation is thus far more politically costly than a quiet meeting at the White House between the president and members of the congressional leadership. As a result, Congress is likely to choose the road of public confrontation only when it is convinced that reform is impossible through quiet diplomacy or that there is considerable political (typically partisan) advantage to be gained by confrontation. In recent years, despite maintaining a divided government, the American public has repeatedly demonstrated limited tolerance for such public confrontation between the branches where alternatives to confrontation were available. The public apparently believes that periodic electoral confrontation is generally sufficient to ensure executive accountability, so that congressional investigations appear to detract from more serious business. 

The president can ally himself with his supporters in Congress in seeking to delay--or even to obstruct--congressional investigations. Congressional investigators of the president, however, will rarely find effective allies in the executive branch. The president may assert recognized and powerful evidentiary privileges--such as executive privilege and the attorney-client privilege--to resist or delay providing information to Congress. His executive officers cannot be compelled to testify in situations where the Fifth Amendment privilege is available to them unless their testimony is immunized. Such immunity grants may require supermajority votes by congressional committees, thus requiring bipartisan support. 

Under current law, Congress may not be able to deploy its contempt power against executive branch officers without the support of presidentially-appointed prosecutors, who may be reluctant to seek to compel witnesses to testify if the testimony would damage the interests of the president. If Congress does not have an effective means of prosecuting contempts, it cannot effectively use its immunity power. 

Where the conduct of foreign nationals or governments is concerned, there are both political and legal constraints on Congress' ability to investigate. Members of Congress may be concerned about disrupting important alliances or commercial ties if the conduct of a foreign government is investigated, and thus may be willing to defer to the president's expressed foreign policy concerns and "overlook" conduct by such governments that others would deem harmful. Foreign nationals may be able to flout United States subpoenas by refusing to return to the United States, and their countries may be unwilling to force them to return, or may be willing to do so only at the request of the executive branch. 

Finally, the president cannot be removed from office except through impeachment by a vote of both houses of Congress, including a supermajority vote of the Senate, thus providing the president, especially if he or she is popular, with institutional "staying power" far superior to that of many members of Congress. 

Improving the Congressional Investigation Process 

Thus, the reality is that the political branch rivals for control of government often find themselves fairly evenly matched in strength when it comes to a proposed investigation. As is often the case when adversaries are evenly matched, Congress will often find that the critical decision it must make is whether it should engage in confrontation at all. Only then, and after considering the political risks entailed in disregarding interbranch comity, should Congress consider its investigation tactics. 

For an investigation to succeed, Congress needs clear answers to these hard questions at the outset: 

(1) Realistically, what will the proposed investigation require in terms of time and money? Congress often seriously underestimates the resources involved, especially the amount of time. 

(2) Is the investigation worth the political cost it will entail, given presidential opposition and public antipathy to executive branch investigations? 

(3) Should Congress be willing to immunize key participants in the events under investigation in order to obtain testimony, or should it first allow criminal prosecution to establish what occurred? Criminal prosecution is typically a much more accurate, exacting method of factfinding than a congressional investigation. Criminal prosecutions can also set important precedents which will strongly deter future governmental misconduct. 

(4) Will Congress be willing to use its powers to their full extent, for example by seeking contempt citations against recalcitrant witnesses? Based on the fact that the Supreme Court upheld the constitutionality of the independent counsel statute,³ it seems likely Congress could constitutionally alter the law to provide for appointment of independent prosecutors to prosecute such contempts and perjury, and Congress could also employ its inherent, self-enforcing contempt power if a president would not agree to alter the law,⁴ and to make its investigative demands effective Congress must be willing to take such steps to back up its demands. 

(5) Is there a means to build public support for the investigation being conducted in order to give it more speed and power? In this connection, Senator Thompson's decision to begin his Senate campaign finance hearings with sensational allegations concerning a "Chinese connection" appears to have backfired, and this issue could perhaps better have been raised after factfinding hearings. 

(6) What are the personal and political allegiances of the available "hired guns" who are capable of effectively directing the investigation in question, and will these interfere with the investigation? 

Congress' differing answers--or failure to get cogent answers--to these hard questions in past investigations have played important roles in the outcome of those investigations. For example, when Congress investigated President Reagan for the Iran-Contra affair, there was a general, bipartisan perception in Congress that there was a strong public interest in finding out what had actually happened, and in doing so quickly.⁵ The issues involved--the use and control of the national security apparatus of the government--were too important to resolve themselves in piecemeal fashion over the period of time that would have been required for criminal prosecutions, and there were unresolved legal issues that would have been raised by some of the criminal prosecutions. This meant that Congress was prepared to impose massive, united political pressure on the White House to open itself up to investigation promptly and to pursue the investigation with full force until a reasonably clear picture of events emerged. In retrospect, it is clear that by its immunity grants Congress sacrificed any realistic prospect of successful criminal prosecutions of many of the major figures in the Iran-Contra affair, but given the perceived potential for governmental crisis, this was a price many members of Congress of both parties were quite prepared to pay. 

The White House was in no political position to try to stonewall Congress' basic approach to the Iran-Contra investigation. The White House agreed to waive executive privilege, despite the political and national security sensitivity of the highly classified information sought by the congressional committees. With some notable exceptions (which were, in some cases, the result of individual wrongdoing such as the wrongful withholding of notes or diaries), the committees received the information they requested from the White House and had the opportunity to use these materials in pursuing their investigation. While there are those who believe that Congress' decision to terminate the Iran-Contra investigation in slightly less than a year meant that some individuals (or a conspiracy) escaped public exposure for misconduct, the committees obtained and made public a clear, comprehensive account of the events of the Iran-Contra affair that has stood up reasonably well under the test of time. Congress obtained sufficient information to: (1) determine whether curative legislation was required; and (2) force key changes in the executive branch national security decision-making process. 

During the Whitewater investigation, by contrast, Congress believed that it could take a considerably longer time, if necessary, to conduct its investigation since the issues there did not require timely resolution. This investigation was perceived (rightly or wrongly), from the beginning, as a possible partisan undertaking in which Congress' institutional interest in obtaining the truth of past events and systematically reforming agency practice or laws--as opposed to exposing a specific instance of misconduct--was far less significant than it had been in the case of the Iran-Contra investigation. An independent counsel had previously been appointed to investigate many of the same matters. As a result of these factors, Congress was far less politically able to immunize testimony by various third parties than were the Iran-Contra committees. The White House also correctly believed that it could use various legal and political tactics to delay, obstruct, or impede the Whitewater investigation without major political repercussions. For these reasons, the Whitewater investigation went on for much longer than the Iran-Contra investigation, and arguably produced less in the way of cohesive factual findings or reforms in the executive branch decision-making process. 

Conclusion 

Congressional investigations do not occur in a political vacuum. Instead, intraparty and partisan politics in the Congress--and between Congress and the president--form the climate of opinion that either supports or discourages Congress' use of its massive formal investigative powers in a given case. To understand congressional investigations, and to improve their use as a powerful means of informing the American public, exposing executive branch malfeasance, and improving the law, one must begin by appreciating these institutional dynamics and the interplay between congressional investigations and enforcement of the criminal law. In addition to understanding these dynamics, congressional investigators themselves must be willing dispassionately to answer hard questions about their resources and objectives in order to conduct successful investigations in politically charged environments. 

1. See the descriptions of congressional investigative powers in Morton Rosenberg, Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry (Congressional Research Service Report, 7 April 1995) and George W. Van Cleve and Charles Tiefer, Navigating the Shoals of 'Use' Immunity and Secret International Enterprises in Major Congressional Investigations: Lessons of the Iran-Contra Affair, 55 MO. L. REV. 43, 47-50 (1990). 

2. For example, Congress typically respects the attorney-client privilege during its investigations despite the fact that this may mean that there are times when Congress cannot actually obtain needed information (for example, where the witness/client is claiming the Fifth Amendment privilege against self-incrimination). During the Iran-Contra investigation, there were a number of situations where the investigating committees challenged a witness and/or his attorney on whether the attorney-client privilege actually existed, but the committees did not seek information that they believed was in fact protected by the privilege. This committee practice does not, of course, mean that Congress is required to observe the privilege, an issue on which I express no view. 

3. Morrison v. Olson, 487 U.S. 654 (1988). 

4. For a discussion of Congress' inherent contempt power, see Van Cleve and Tiefer, 64-65. 

5. Despite the fact that the Iran-Contra investigation had many "bipartisan" features, this does not mean it did not have its profoundly partisan aspects.