By The swearing in of the 116th Congress last month brought with it promises of vigorous new investigations into the Trump administration – as well as other related public and private industry conduct. Last week’s brief standoff between former Acting Attorney General Matthew Whitaker and House Judiciary Committee over a possible subpoena to the former showed that the Democrat-led House committees are eager to make a statement. While the nature and scope of future investigations are yet to be revealed, defense attorneys specializing in congressional investigations (that includes us!) have been salivating over the opportunity for new work.
Congressional investigations are a curious beast – not criminal, not civil, but nonetheless perilous. This series of posts will provide some basics on congressional investigations and key ways in which they differ from criminal or regulatory investigations.
There are a number of committees and subcommittees that exist solely for the purpose of investigations and oversight. Two of the better known, active committees are the House Oversight and Reform (the main investigative committee of the House) and the Permanent Subcommittee on Investigations (of the Senate Homeland Security and Governmental Affairs Committee). Additionally, the House Permanent Select Committee on Intelligence has been very busy for the past two years investigating continuing Russian interference in U.S. elections.
Authority to Conduct Investigations
Congressional power to investigate is implied from its explicit power to legislate. In 1790, in one of the first investigations, Robert Morris requested Congress to investigate his tenure as U.S. Superintendent of Finance – specifically his handling of the country’s finances during the end of the Revolutionary War – and thus set the precedent for future congressional investigations. The Supreme Court has also weighed in, from time to time, to resolve challenges to this power, typically in favor of Congress.
Nowadays, Congress delegates investigative and oversight authority to standing committees and subcommittees, and these bodies enjoy broad authority to investigate matters within the scope of that delegated authority. It is generally accepted that investigations look into three main types of conduct: actions or omissions of the Executive Branch, conduct of individual members of Congress, and investigations in aid of current or prospective legislation.
Investigative Tools
Congressional committees use both public and non-public tactics to gather information. In the past, committees relied more on public hearings and subpoenas, while in recent years, committees have shifted to non-public information gathering, relying more on congressional staff.
Staff interviews and depositions
Informal interviews and closed-door depositions are particularly useful when the committee needs to collect and evaluate potentially sensitive or inflammatory testimony before it becomes public. Informal interviews are just that, without a subpoena or a transcript of testimony; designed to get background information or just dot “i’s” and cross “t’s”. Depositions may be taken where a committee or subcommittee is authorized by chamber rule or resolution. In the latter case, the rule or resolution will provide procedure for the deposition, including how notice is provided, how questions are asked and answered, whether a transcript is made public, and the witnesses’ right to counsel.
Both forms of inquiry carry the requirement that the witness tell the truth, under penalty of prosecution for perjury (if the false statement is made during sworn testimony) or false statements (if made during sworn or unsworn testimony).
Hearings
Congress may also hold hearings – public or closed – during which witness testimony may be taken. Testimony may be sworn or unsworn; nevertheless, as Michael Cohen knows well, there are criminal consequences for lying to Congress in either case.
There are some important procedural and substantive differences between giving testimony to Congress and providing the same to law enforcement. On the procedural side, witnesses appearing in congressional hearings may be afforded a right to give an opening statement. (And unlike in law enforcement interviews, this may be a good idea!) Witnesses may also submit a statement beforehand and questioning usually alternates between majority and minority congressmembers or staff, according to pre-set time intervals.
Substantively, the Congressional investigative hearing is not a criminal proceeding so right to counsel is not guaranteed by the Constitution. It is, nonetheless, acknowledged and allowed by separate Senate and House rules.
The role of counsel during a Congressional hearing is significantly limited, however. Counsel may not object to questions, do any coaching of, question or cross-examine witnesses. Their lone role (at least as circumscribed by House rule) is to advise their client on their Constitutional rights, e.g. the Fifth Amendment protection against self-incrimination. Counsel who step out of line during hearings may be punished by censure, exclusion (getting kicked out of the chamber) or even held in contempt (which comes with its own set of procedure and penalties).
A congressional committee may also apply to courts to obtain immunity for witness for their testimony, and thus compel a witness to testify before it. Such an act requires two-thirds vote of the committee and has been taken in past high profile investigations such as Watergate and Iran-Contra.
Subpoenas for documents and information
Congressional committees have broad subpoena power as long as they have “congressionally authorized subject matter jurisdiction” and the inquiries are “only about information generally relevant to its jurisdiction.”[2] Each committee has its own procedural rules for issuing subpoenas. Since 2015, committee subpoena issuance has been generally within the province of the majority party, with the minority reduced to (largely ignored) letter writing.
A Congressional subpoena may request documents or written responses. Its form seeks to emulate judicial or administrative subpoenas, but in practice it falls short. This is because the subpoena is typically drafted by non-lawyers or lawyers who may not be experienced in litigation or enforcement. Still, a Congressional subpoena is enforceable by Congress’ inherent contempt authority, so a response must be made.
Congress may also obtain evidence located outside the U.S. through a court order. Upon application by the committee, a U.S. District Court will request assistance from foreign counterparts, drawing on powers agreed-upon in mutual legal assistance treaties (MLATs) or letters rogatory. However, there are few examples of a congressional committee’s attempts to serve or enforce subpoenas abroad.
What’s Next?
Having written about Congress’ authority to conduct investigations and its investigative tools, our next post on the topic will discuss the consequences of investigations, parallel investigations with other law enforcement authorities, and tips for those who are being investigated.
[1] With thanks to Ramona Lin for providing helpful research.
[2] Susan Hennessey and Helen Klein Murillo, The Rules of Congressional Investigations and Trump’s Growing Russia Problem, https://www.lawfareblog.com/rules-congressional-investigations-and-trumps-growing-russia-problem.