The Congressional Power to Investigate

February 18, 2019
 

The University of Illinois College of Law's Bob Lawless

University of Illinois College of Law

There has been a lot of discussion about how a Democratically controlled House of Representatives might investigate the Trump Administration, and this discussion raises interesting legal questions about what might happen as the process unfolds. We will focus on the House procedures, although the Senate process would be similar. The Constitution does not expressly say anything about the congressional power to investigate. Rather, it vests “all legislative powers” in the Congress of the United States. Since the time of the Constitution, the investigative or oversight power has been understood to be part of the legislative powers.

There are few legal limits on what Congress might investigate. In a small handful of cases, the courts have blocked congressional investigations that had egregiously violated a person’s constitutional rights. Rather, the limits to the congressional subpoena power are primarily political. If people think Congress has gone too far with an investigation, the remedy is not in the courtroom but in the voting booth. So long as everyone cooperates with a congressional investigation, the process is straightforward, at least from a legal standpoint. The interesting questions, of course, arise when someone is not willing to cooperate. The rules of the House of Representatives allow any committee to issue any subpoena the committee considers necessary. A subpoena legally requires someone to appear. In theory, the entire committee could vote to issue the subpoena although the House rules also allow a committee to delegate the decision to its committee chair. Most every House committee has so delegated the decision such that in practice it is the committee chairs who decide whether to issue a subpoena.

These rules and committee structures are politically determined. They can and do change each time there is a new Congress. It matters a lot which party is in control. Committee chairs and committee majorities are wholly controlled by the party with the majority in the House. Similarly, the majority party can specify the rules for when subpoenas get issued and who makes the decision. Once a subpoena gets issued, the recipient is legally compelled to turn over documents or appear before the congressional committee that issued the subpoena, but what happens if the recipient refuses? The House rules state the enforcement of a subpoena can occur only as authorized or directed by the House. In other words, enforcement is a matter for the entire House of Representatives, not just the committee that issued the subpoena. But, the rules of most committees require a majority vote of the committee as a condition for action by the full House.

If the matter does go before the full House of Representatives, they would then need to pass a resolution holding the person who received the subpoena in contempt of Congress.In theory, the House then could order its sergeant at arms to arrest the person and put the person in jail. The inherent congressional power to arrest and forcibly compel appearance dates back to 1795. The last time Congress exercised this power was in 1934 when it ordered the arrest of William MacCracken, who had refused to testify about corruption in the awarding of federal air mail contracts. The Supreme Court rejected MacCracken’s contention that Congress had acted beyond its authority. In practice, it is more likely the House would turn to a federal law that makes it a crime not to comply with a congressional subpoena. If the House has passed a resolution holding someone in contempt of Congress for failure to comply with a subpoena, the Department of Justice can prosecute that person the same as any other crime.

If members of the executive branch resisted these procedures, we would have a showdown between the branches of government and potentially a constitutional crisis of epic proportions. There may be rules and laws in place, but they will not be effective without respect for the rule of law.