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When Congress Comes Calling: a Study on the Principles, Practices, and Pragmatics of Legislative Inquiry When Congress

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When Congress Comes Calling: a Study on the Principles, Practices, and Pragmatics of Legislative Inquiry When Congress When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry of Legislative on the Principles, Practices, and Pragmatics A Study When Congress 1200 18th Street, NW, Suite 1000 Washington, DC 20036 Comes Calling 202.580.6920 Email: [email protected] A Study on the www.constitutionproject.org Principles, Practices, and Pragmatics of Legislative Inquiry Morton Rosenberg Constitution Project Fellow WHEN CONGRESS COMES CALLING: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry © 2017 The Constitution Project All Rights Reserved. Requests for permission to reproduce selections from this book should be sent to: The Constitution Project, 1200 18th Street NW, Suite 1000, Washington, DC 20036; or by e-mail to [email protected] The Constitution Project’s mission is to safeguard constitutional rights and values when they are threatened by our government’s criminal justice and national security practices, and to strengthen our system of checks and balances. The views expressed in this study do not necessarily reflect the views of individual members of The Constitution Project’s Board of Directors. For information about this report, or any other work of The Constitution Project, please visit our website at www.constitutionproject.org or e-mail us at [email protected]. Book design by Keane Design & Communications, Inc., keanedesign.com. Contents Preface Part I: Principles, Practices and Pragmatics of Legislative Inquiry Chapter 1 – Introduction: Updating the Study of Legislative Inquiry and Adapting it to the Changed Climate of Congressional Oversight ............................................................................. 1 Chapter 2 – The Institutional Framework of Congressional Oversight: Purposes, Powers, Limitations and Practicalities ................................................................................................... 5 A. The Purposes and Powers of Congressional Oversight ......................................................................................... 5 B. The Power of Congress over Executive Branch Agencies ...................................................................................... 6 C. Barriers to Effective Oversight ............................................................................................................................. 7 D. How to Conduct Effective Oversight ................................................................................................................... 10 Chapter 3 – The Powers and Tools Available to Congress for Conducting Investigative Oversight ............................................................................................................. 13 A. Congress’s Power to Investigate ............................................................................................................................ 13 1. The Breadth of the Investigatory Power .......................................................................................................... 13 2. The Limits of the Investigatory Power ............................................................................................................ 15 B. Congress’s Ability to Obtain Documents and Witness Testimony ....................................................................... 15 1. The Subpoena Power ...................................................................................................................................... 15 a. The Power to Issue a Subpoena ............................................................................................................... 15 b. The Permissible Scope of a Subpoena ...................................................................................................... 16 c. The Necessary Legislative Purpose for a Subpoena ................................................................................. 17 d. The Pertinency of the Subpoena to the Investigation .............................................................................. 18 2. Staff Deposition Authority ............................................................................................................................ 18 a. Express Authorization of Staff Deposition Authority Is Necessary ........................................................ 18 b. The Utility of Staff Depositions............................................................................................................... 19 3. Congressional Grants of Immunity ................................................................................................................ 20 a. A Committee May Override a Witness’ Claim of Self-Incrimination Privilege ..................................... 20 b. How a Committee Grants Immunity...................................................................................................... 20 c. Scope of the Immunity Granted.............................................................................................................. 21 d. Impact of Immunity Grants on Future Prosecutions .............................................................................. 21 e. Frequency of Issuance of Immunity Grants............................................................................................. 23 4. Special Investigatory Powers Authorized in Extraordinary Inquiries ............................................................. 23 C. Enforcement of the Investigation Power .............................................................................................................. 23 1. Courts Have Recognized the Need for Effective Enforcement Mechanisms ................................................. 23 2. The Inherent Contempt Power ....................................................................................................................... 24 a. The Source, Nature, and Objectives of Inherent Contempt ..................................................................... 24 b. Rights of a Person Cited for Contempt .................................................................................................. 24 c. Fines as an Alternative to Imprisonment for Inherent Contempt ........................................................... 24 d. Inherent Contempt Does Not Require Judicial Enforcement Assistance ............................................... 25 e. The Perceived Limitations of the Inherent Contempt Mechanism ......................................................... 25 iii 3. Statutory Criminal Contempt ........................................................................................................................ 26 a. The Origin and Nature of the Criminal Contempt Statute ..................................................................... 26 b. Congressional Use of Criminal Contempt against Executive Officials ................................................... 26 c. The Uncertainty Whether Executive Officials Are Subject to Inherent or Criminal Contempt Proceedings ............................................................................................................. 26 4. Civil Contempt ............................................................................................................................................... 27 a. In the Senate ........................................................................................................................................... 27 i. The Origins, Purposes, and Procedures of the Senate Civil Contempt Statute ................................. 27 ii. The Benefits of the Senate Civil Contempt Mechanism .................................................................. 28 iii. The Senate Civil Contempt Mechanism Cannot Be Used against Executive Branch Officials ....... 28 b. In the House of Representatives.............................................................................................................. 28 i. Past House Resolutions Authorizing Special Committee Actions .................................................... 28 ii. Approval of House Resolution Authorizing Court Enforcement of a Committee Subpoena .......... 29 5. Alternatives to Contempt ............................................................................................................................... 31 6. Perjury, False Statements, and Obstruction Prosecutions ............................................................................... 32 a. Testimony under Oath............................................................................................................................. 32 b. Unsworn Statements ............................................................................................................................... 32 c. Obstruction of a Congressional Proceeding ............................................................................................ 32 Chapter 4 – The Process of Conducting Investigative Oversight Proceedings ................................ 33 A. The Nature of an Investigative Hearing ................................................................................................................ 33 B. Jurisdiction and Authority ..................................................................................................................................... 33 C. Initiation of an Investigation ...............................................................................................................................
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