CHAPTER 15 Investigations and Inquiries A. Basis of Authority to Investigate; Creating Commit- tees § 1. In General; Subjects of Authorizing Resolutions B. Inquiries and the Executive Branch § 2. Resolutions of Inquiry and Responses § 3. Executive Branch Refusals to Provide Information § 4. Litigation to Enforce a Subpena; Senate Select Committee v Nixon § 5. Legislation to Obtain Information C. Procedure; Hearings § 6. Limitations on Authority to Investigate—Perti- nence of Inquiry § 7. —Intent of Witness § 8. —Procedural Regularity of Hearings § 9. Rights of Witnesses Under the Constitution—Fifth Amendment § 10. —First Amendment § 11. —Fourth Amendment § 12. —Sixth Amendment § 13. Rights of Witnesses Under House Rules § 14. —Right to Counsel § 15. Effect of Derogatory Information § 16. Calling Witnesses; Subpenas Commentary and editing by Thomas J. Nicola, J.D. 2275 Ch. 15 DESCHLER’S PRECEDENTS D. Authority in Cases of Contempt § 17. In General § 18. Time for Consideration § 19. Matters Decided by House § 20. Particular Conduct as Contumacious § 21. Purging Contempt § 22. Certification to U.S. Attorney INDEX TO PRECEDENTS Authorizing resolutions, subjects of Contempt, certification to U.S. Attor- agencies, specific, §§ 1.9–1.12 ney of—Cont. airplane crashes, § 1.37 announcement of certification, business, §§ 1.19, 1.20 §§ 22.322.7 chemicals in food production, § 1.36 congressional session, during, § 22.1 congressional operations and practices, discretionary, certification as, § 22.8 §§ 1.2–1.5 Contempt, conduct amounting to crime, § 1.41 refusal to answer questions, §§ 20.5, economics, §§ 1.13–1.18 20.6 energy, § 1.42 refusal to answer questions and depar- executive branch, structure and oper- ation of, §§ 1.6–1.8 ture without leave, §§ 20.7, 20.8 migration of destitute citizens, § 1.38 refusal to appear, §§ 20.1, 20.2 military operations, domestic, § 1.23 refusal to be sworn, §§ 20.3, 20.4 military operations, foreign, §§ 1.261.28 refusal to produce materials, §§ 20.9, military preparedness, §§ 1.24, 1.25 20.10 offensive literature, § 1.40 Senate precedents, §§ 20.11–20.14 pensions, § 1.39 Contempt, divisibility of resolution privacy, human values. and democratic relating to, § 17.3 institutions, § 1.1 Contempt, matters decided by House scientific activities, §§ 1.34, 1.35 with regard to Senate precedents, §§ 1.44–1.46 authority of committee, § 19.2 sit-down strikes, § 1.43 content of report, § 19.1 taxation, §§ 1.21, 1.22 subpena, effect of absence of, § 19.4 un-American activities, §§ 1.32, 1.33 testimony, necessity of reading, § 19.3 veterans’ benefits, §§ 1.29–1.31 Contempt, purging a contumacious Code of Fair Procedures, §§ 13.1– 13.10 witness of Contempt, certification to U.S. Attor- certification of purgation, §§ 21.3, 22.7 ney of report, § 21.1 adjournment, during, §§ 22.2–22.6 resolution, § 21.2 2276 INVESTIGATIONS AND INQUIRIES Ch. 15 Contempt, purging a contumacious Inquiry, resolutions of—Cont. witness of—Cont. domestic energy sources, § 2.23 U.S. Attorney’s response, §§ 21.4, 21.5 evidence about Vice President, § 2.18 Contempt, recommittal of resolution evidence from Watergate prosecutor, relating to, §§ 17.1, 17.2 § 2.17 Contempt, time for consideration of fish exports, § 2.21 Calendar Wednesday, § 18.6 foreign sales of short supply goods, reports, §§ 18.1, 18.2 § 2.22 resolutions, §§ 18.4, 18.5 Formosa, policy on, § 2.16 Counsel kidnapping, § 2.19 participation, degree of, by, §§ 14.314.5 information furnished to committee, right to, §§ 14.1, 14.2 § 2.26 Deletion of names of persons not Laotian operations, § § 2.9–2.11 subpenaed, § 17.4 Mexican-American relations, § 2.14 Derogatory information, effect of military aid to forward-defense and generally, § 15.1 Mediterranean nations, § 2.12 consequence of committee determina- Phoenix Program, § 2.5 tion, § 15.6 postal temporaries, § 2.25 determination of derogatory nature of Presidential agreements with British information, § 15.4 Prime Minister, § 2.13 prerequisite for committee determina- removal of German industrial plants, tion, § 15.3 § 2.15 Executive branch refusals to provide security files, § 2.20 information to Congress South Vietnam, military involvement former executive branch officials, re- in, §§ 2.1, 2.2 fusal by, § 3.1 South Vietnamese presidential elec- Executive branch, structure and op- tion, §§ 2.3, 2.4 eration of Legislation to obtain information, investigations of, resolutions author- §§ 5.15.3 izing, §§ 1.6–1.8 Select committee, form of resolution to establish, § 1.1 Executive session Subpenas determination by committee, §§ 15.4, contempt, subpena as prerequisite to, 15.5 §§ 16.2, 17.4, 19.4 receiving testimony in, § 15.2 derogatory information, subpenas re- Habeas corpus to compel attendance quested by person who is affected by, of incarcerated witness, § 16.1 § 15.1 Inquiry, resolutions of right of subpenaed witness not to be bombardment of Cambodia and Laos, photographed, § 13.11 § 2.11 Witnesses, rights of, under House bombardment of North Vietnam, rules §§ 2.6–2.8 in general, §§ 13.1, 13.2 busing, § 2.24 announcement of subject of investiga- Cambodia, bombing of, § 2.11 tion, § 13.4 2277 Ch. 15 DESCHLER’S PRECEDENTS Witnesses, rights of, under House Witnesses, rights of, under House rules—Cont. rules—Cont. committee rules, § 13.7 responsibility to protect rights, § 13.12 media coverage, § 13.11 submission of written statements, punishment of breaches of order, § 13.5 § 13.10 quorum, § 13.3 subpenas, requests for, §§ 13.6, 15.1 release of secret information, § 13.9 transcripts, § 13.8 2278 Investigations and Inquiries A. BASIS OF AUTHORITY TO INVESTIGATE; CREATING COMMITTEES § 1. In General; Subjects of tablished that the power to inves- Authorizing Resolutions tigate is implied from the power to legislate granted in article I, Although the congressional section 1 of the Constitution. Thus, the Supreme Court has power of investigation is not ex- stated that the power of inquiry, plicitly granted by the Constitu- with process to enforce it, is an es- tion, it has been exercised by the sential and appropriate auxiliary ( ) House since 1792. 1 It is well es- to the legislative function.(2) The Court has further stated: 1. The House in that year rejected a resolution requesting the President The power of the Congress to con- to investigate the defeat of General duct investigations is inherent in the St. Clair’s army and instead asserted legislative process. That power is broad. It encompasses inquiries con- its own right to investigate by re- cerning the administration of existing questing the President to cause prop- laws as well as proposed or possibly er executive officers to deliver to the needed statutes. It includes surveys of House documents pertinent to the defects in our social, economic or polit- matter. See 3 Hinds’ Precedents ical system for the purpose of enabling § 1725. the Congress to remedy them. It com- For earlier coverage of the subject prehends probes into departments of matter of this chapter generally, see, the Federal Government to expose cor- ruption, inefficiency or waste.(3) for example, 3 Hinds’ Precedents §§ 1666–1724 (punishment of wit- The scope of the power of in- nesses for contempt); §§ 1725–1826 quiry is as broad as the power to (powers of investigation and conduct enact and appropriate under the of investigations); §§ 1856–1910 (in- Constitution.(4) Subjects of inves- quiries of the executive); 6 Cannon’s Precedents §§ 335–353 (punishment on Congressional Operations, 94th of witnesses for contempt); §§ 354– Cong. 2d Sess.). 393 (power of investigation and con- 2. McGrain v Daugherty, 273 U.S. 135, duct of investigations); and §§ 404– 174. 437 (inquiries of the executive). 3. Watkins v United States, 354 U.S. See also Leading Cases on Con- 178, 187 (1957). gressional Investigatory Power 4. Barenblatt v United States, 360 U.S. (Committee Print, Joint Committee 109, 111 (1959). See also The Con- 2279 Ch. 15 § 1 DESCHLER’S PRECEDENTS tigation that have specifically Accordingly, it has been stated been approved by the courts in- that, generally, there is no con- clude the existence of subversive gressional power ‘‘to expose for activities in education,(5) labor the sake of exposure,’’ (10) and and industry,(6) the extent of cor- that, in any event, Congress can- ruption in labor unions,(7) and the not inquire into matters which are denial of civil rights by particular within the exclusive province of organizations.(8) one of the other branches of gov- ( ) Although the power of inves- ernment, 11 or which are reserved tigation is broad, it is not unlim- arouse criticism for infringing indi- ited. It may be exercised only ‘‘in vidual liberties, however, courts aid of the legislative function.’’ (9) began to construe narrowly the reso- lutions describing authority of com- stitution of the United States of mittees (see Rumely) and went so far America, Analysis and Interpreta- as to impose a specific burden on the tion, S. Doc. No. 92–82, 92d Cong. 2d government in contempt prosecu- Sess., p. 80 (1972). tions to show affirmatively the 5. Barenblatt v United States, 360 U.S. source of authority for each inves- 109 (1959); Deutch v United States, tigation. See United States v La- 367 U.S. 456 (1961). mont, 236 F2d 312 (2d Cir. 1956) 6. Watkins v United States, 354 U.S. and Moreland, Allen B., Congres- 178 (1957); Flaxer v United States, sional Investigations and Private 358 U.S. 147 (1958); Wilkinson v Persons, 40 So. Cal. L. Rev. 189, United States, 365 U.S. 399 (1961). 230–236 (1967) for a discussion of 7. Hutcheson v United States, 369 U.S. legislative purpose. See also § 6, 599 (1962). See also The Constitu- infra, for discussion of a closely re- tion of the United States of America, lated topic, the pertinence of the in- Analysis and Interpretation, S.