Article I, Section 8, Clause 18:
[The Congress shall have Power . . .] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The Court has long since accorded its agreement with Congress that the investigatory power is so essential to the legislative function as to be implied from the general vesting of legislative power in Congress.
We are of the opinion, wrote Justice Van Devanter for a unanimous Court,
that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function. . . . A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.1
And, in a 1957 opinion generally hostile to the exercise of the investigatory power in the post-War years, Chief Justice Warren did not question the basic power.
The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.2 Justice Harlan summarized the matter in 1959.
The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.3
Broad as the power of inquiry is, it is not unlimited. The power of investigation may properly be employed only
in aid of the legislative function.4 Its outermost boundaries are marked, then, by the outermost boundaries of the power to legislate. In addition, Congress may not issue a subpoena for the purpose of law enforcement—that is, to
try someone before a committee for any
crime or wrongdoing,5 as such an action would intrude on powers
assigned under [the] Constitution to the Executive and the Judiciary.6 Finally, the Court has recognized that recipients of congressional subpoenas
retain common law and constitutional privileges with respect to certain materials, such as privileges associated with attorney-client and internal governmental communications.7
In practice, much of the litigated dispute has been about the reach of the power to inquire into the activities of private citizens; inquiry into the administration of laws and departmental corruption, while of substantial political consequence, has given rise to fewer judicial precedents. With respect to disputes over congressional demands for presidential documents, these disputes typically have not ended up in court.8 Instead, as the Court in Trump v. Mazars recognized, such disputes are typically
hashed out in the
hurly-burly, the give-and-take of the political process.9
Investigations of Conduct of Executive Department
For many years the investigating function of Congress was limited to inquiries into the administration of the Executive Department or of instrumentalities of the Government. Until the administration of Andrew Jackson this power was not seriously challenged.10 During the controversy over renewal of the charter of the Bank of the United States, John Quincy Adams contended that an unlimited inquiry into the operations of the bank would be beyond the power of the House.11 Four years later the legislative power of investigation was challenged by the President. A committee appointed by the House of Representatives
with power to send for persons and papers, and with instructions to inquire into the condition of the varigous executive departments, the ability and integrity with which they have been conducted, . . .12 called upon the President and the heads of departments for lists of persons appointed without the consent of the Senate and the amounts paid to them. Resentful of this attempt
to invade the just rights of the Executive Departments, the President refused to comply and the majority of the committee acquiesced.13 Nevertheless, congressional investigations of Executive Departments have continued to the present day. Shortly before the Civil War, contempt proceedings against a witness who refused to testify in an investigation of John Brown's raid upon the arsenal at Harper's Ferry occasioned a thorough consideration by the Senate of the basis of this power. After a protracted debate, which cut sharply across sectional and party lines, the Senate voted overwhelmingly to imprison the contumacious witness.14 Notwithstanding this firmly established legislative practice, the Supreme Court took a narrow view of the power in Kilbourn v. Thompson.15 It held that the House of Representatives had overstepped its jurisdiction when it instituted an investigation of losses suffered by the United States as a creditor of Jay Cooke and Company, whose estate was being administered in bankruptcy by a federal court.16 But nearly half a century later, in McGrain v. Daugherty,17 it ratified in sweeping terms, the power of Congress to inquire into the administration of an execuitive department and to sift charges of malfeasance in such administration.18 Notwithstanding the existence of Congress's powers to inquire into the administration of the executive branch, the Court in Trump v. Mazars recognized that when Congress seeks the President's records, this power is further limited by separation-of-powers concerns.19 Writing on behalf of the Court, Chief Justice Roberts began by rejecting the need for a
demanding standard that would have required Congress to demonstrate a specific need for particular records that were
critical to a legislative purpose.20 At the same time, however, the Mazars Court concluded that a congressional subpoena for the President's information raised
significant separation of powers issues, and the typical limitations on such subpoenas, such as the requirement of a valid legislative purpose, inadequately shielded the executive branch from congressional aggrandizement.21 To avoid interfering with the historic practice of resolving information disputes through the political process, the Chief Justice instructed lower courts to perform a
careful analysis using
[s]everal special considerations that take
adequate account of the separation-of-powers principles at stake during a legislative inquiry into the President's records.22 Specifically, in such a dispute, courts should, among other considerations: (1) carefully assess whether the confrontation can be avoided by relying on other sources to provide Congress the information it needs in light of its legislative objective; (2)
insist on a subpoena that is no broader than is reasonably necessary to support Congress's objective; (3) consider the nature of the evidence of Congress's legislative purpose, preferring more detailed and substantial evidence to vague or loosely worded evidence of Congress's purpose; and (4) assess the burdens, such as time and attention, imposed on the President by a subpoena.23
Investigations of Members of Congress
When either House exercises a judicial function, as in judging of elections or determining whether a member should be expelled, it is clearly entitled to compel the attendance of witnesses to disclose the facts upon which its action must be based. Thus, the Court held that since a House had a right to expel a member for any offense which it deemed incompatible with his trust and duty as a member, it was entitled to investigate such conduct and to summon private individuals to give testimony concerning it.24 The decision in Barry v. United States ex rel. Cunningham25 sanctioned the exercise of a similar power in investigating a senatorial election.
Investigations in Aid of Legislation
Beginning with the resolution adopted by the House of Representatives in 1827, which vested its Committee on Manufactures
with the power to send for persons and papers with a view to ascertain and report to this House in relation to a revision of the tariff duties on imported goods,26 the two Houses have asserted the right to collect information from private persons as well as from governmental agencies when necessary to enlighten their judgment on proposed legislation. The first case to review the assertion saw a narrow view of the power taken and the Court held that the purpose of the inquiry was to pry improperly into private affairs without any possibility of legislating on the basis of what might be learned and further that the inquiry overstepped the bounds of legislative jurisdiction and invaded the provinces of the judiciary.27
Subsequent cases, however, have given Congress the benefit of a presumption that its object is legitimate and related to the possible enactment of legislation. Shortly after Kilbourn, the Court declared that
it was certainly not necessary that the resolution should declare in advance what the Senate meditated doing when the investigation was concluded in order that the inquiry be under a lawful exercise of power.28 Similarly, in McGrain v. Daugherty,29 the investigation was presumed to have been undertaken in good faith to aid the Senate in legislating. Then, in Sinclair v. United States,30 on its facts presenting a close parallel to Kilbourn, the Court affirmed the right of the Senate to carry out investigations of fraudulent leases of government property after suit for recovery had been instituted. The president of the lessee corporation had refused to testify on the ground that the questions related to his private affairs and to matters cognizable only in the courts wherein they were pending, asserting that the inquiry was not actually in aid of legislation. The Senate had prudently directed the investigating committee to ascertain what, if any, legislation might be advisable. Conceding
that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits, the Court declared that the authority
to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits.31
Although Sinclair and McGrain involved inquiries into the activities and dealings of private persons, these activities and dealings were in connection with property belonging to the United States Government, so that it could hardly be said that the inquiries concerned the merely personal or private affairs of any individual.32 But, where the business, and the conduct of individuals are subject to congressional regulation, there exists the power of inquiry,33 and in practice the areas of any individual's life immune from inquiry are probably fairly limited.
In the decade following World War II, there appeared a new kind of congressional inquiry unknown in prior periods of American history. Principally this was the result of the various investigations into the threat of subversion of the United States Government, but other subjects of congressional interest also contributed to the changed scene. This new phase of legislative inquiry involved a broad-scale intrusion into the lives and affairs of private citizens.34 Because Congress clearly has the power to legislate to protect the nation and its citizens from subversion, espionage, and sedition,35 it also has the power to inquire into the existence of the dangers of domestic or foreign-based subversive activities in many areas of American life, including education,36 labor and industry,37 and political activity.38 Because its powers to regulate interstate commerce afford Congress the power to regulate corruption in labor-management relations, congressional committees may inquire into the extent of corruption in labor unions.39 Because of its powers to legislate to protect the civil rights of its citizens, Congress may investigate organizations which allegedly act to deny those civil rights.40 It is difficult in fact to conceive of areas into which congressional inquiry might not be carried, which is not the same, of course, as saying that the exercise of the power is unlimited.
One limitation on the power of inquiry that the cases have discussed concerns the contention that congressional investigations often have no legislative purpose but rather are aimed at achieving results through
exposure of disapproved persons and activities:
We have no doubt, wrote Chief Justice Warren,
that there is no congressional power to expose for the sake of exposure.41 Although some Justices, always in dissent, have attempted to assert limitations in practice based upon this concept, the majority of Justices have adhered to the traditional precept that courts will not inquire into legislators' motives but will look42 only to the question of power.43
So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.44
Protection of Witnesses; Pertinency and Related Matters
A witness appearing before a congressional committee is entitled to require of the committee a demonstration of its authority to inquire into his activities and a showing that the questions asked of him are pertinent to the committee's area of inquiry. A congressional committee possesses only those powers delegated to it by its parent body. The enabling resolution that has given it life also contains the grant and limitations of the committee's power.45 In Watkins v. United States,46 Chief Justice Warren cautioned that
[b]roadly drafted and loosely worded . . . resolutions can leave tremendous latitude to the discretion of the investigators. The more vague the committee's charter is, the greater becomes the possibility that the committee's specific actions are not in conformity with the will of the parent house of Congress. Speaking directly of the authorizing resolution, which created the House Un-American Activities Committee,47 the Chief Justice thought it
difficult to imagine a less explicit authorizing resolution.48 But the far-reaching implications of these remarks were circumscribed by Barenblatt v. United States,49 in which the Court,
[g]ranting the vagueness of the Rule, noted that Congress had long since put upon it a persuasive gloss of legislative history through practice and interpretation, which, read with the enabling resolution, showed that
the House has clothed the Un-American Activities Committee with pervasive authority to investigate Communist activities in this country.50
[W]e must conclude that [the Committee's] authority to conduct the inquiry presently under consideration is unassailable, and that . . . the Rule cannot be said to be constitutionally infirm on the score of vagueness.51
Because of the usual precision with which authorizing resolutions have generally been drafted, few controversies have arisen about whether a committee has projected its inquiry into an area not sanctioned by the parent body.52 But in United States v. Rumely,53 the Court held that the House of Representatives, in authorizing a select committee to investigate lobbying activities devoted to the promotion or defeat of legislation, did not thereby intend to empower the committee to probe activities of a lobbyist that were unconnected with his representations directly to Congress but rather designed to influence public opinion by distribution of literature. Consequently the committee was without authority to compel the representative of a private organization to disclose the names of all who had purchased such literature in quantity.54
Still another example of lack of proper authority is Gojack v. United States,55 in which the Court reversed a contempt citation because there was no showing that the parent committee had delegated to the subcommittee before whom the witness had appeared the authority to make the inquiry and neither had the full committee specified the area of inquiry.
Watkins v. United States,56 remains the leading case on pertinency, although it has not the influence on congressional investigations that some hoped and some feared in the wake of its announcement. When questioned by a Subcommittee of the House Un-American Activities Committee, Watkins refused to supply the names of past associates, who, to his knowledge, had terminated their membership in the Communist Party and supported his noncompliance by, inter alia, contending that the questions were unrelated to the work of the Committee. Sustaining the witness, the Court emphasized that inasmuch as a witness by his refusal exposes himself to a criminal prosecution for contempt, he is entitled to be informed of the relation of the question to the subject of the investigation with the same precision as the Due Process Clause requires of statutes defining crimes.57
For ascertainment of the subject matter of an investigation, the witness might look, noted the Court, to several sources, including (1) the authorizing resolution, (2) the resolution by which the full committee authorized the subcommittee to proceed, (3) the introductory remarks of the chairman or other members, (4) the nature of the proceedings, (5) the chairman's response to the witness when the witness objects to the line of question on grounds of pertinency.58 Whether a precise delineation of the subject matter of the investigation in but one of these sources would satisfy the requirements of due process was left unresolved, since the Court ruled that in this case all of them were deficient in providing Watkins with the guidance to which he was entitled. The sources had informed Watkins that the questions were asked in a course of investigation of something that ranged from a narrow inquiry into Communist infiltration into the labor movement to a vague and unlimited inquiry into
subversion and subversive propaganda.59
By and large, the subsequent cases demonstrated that Watkins did not represent a determination by the Justices to restrain broadly the course of congressional investigations, though several contempt citations were reversed on narrow holdings. But with regard to pertinency, the implications of Watkins were held in check and, without amending its rules or its authorizing resolution, the Un-American Activities Committee was successful in convincing a majority of the Court that its subsequent investigations were authorized and that the questions asked of recalcitrant witnesses were pertinent to the inquiries.60
Thus, in Barenblatt v. United States,61 the Court concluded that the history of the Un-American Activities Committee's activities, viewed in conjunction with the Rule establishing it, evinced clear investigatory authority to inquire into Communist infiltration in the field of education, an authority with which the witness had shown familiarity. Additionally, the opening statement of the chairman had pinpointed that subject as the nature of the inquiry that day and the opening witness had testified on the subject and had named Barenblatt as a member of the Communist Party at the University of Michigan. Thus, pertinency and the witness' knowledge of the pertinency of the questions asked him was shown. Similarly, in Wilkinson v. United States,62 the Court held that, when the witness was apprised at the hearing that the Committee was empowered to investigate Communist infiltration of the textile industry in the South, that it was gathering information with a view to ascertaining the manner of administration and need to amend various laws directed at subversive activities, that Congress hitherto had enacted many of its recommendations in this field, and that it was possessed of information about his Party membership, he was notified effectively that a question about that affiliation was relevant to a valid inquiry. A companion case was held to be controlled by Wilkinson,63 and in both cases the majority rejected the contention that the Committee inquiry was invalid because both Wilkinson and Braden, when they were called, were engaged in organizing activities against the Committee.64
Related to the cases discussed in this section are cases requiring that congressional committees observe strictly their own rules. Thus, in Yellin v. United States,65 a contempt conviction was reversed because the Committee had failed to observe its rule providing for a closed session if a majority of the Committee believed that a witness' appearance in public session might unjustly injure his reputation. The Court ruled that the Committee had ignored the rule when it subpoenaed the witness for a public hearing and then in failing to consider as a Committee his request for a closed session.66
The Court has blown hot and cold on the issue of a quorum as a prerequisite to a valid contempt citation, and no firm statement of a rule is possible, although it seems probable that no quorum is ordinarily necessary.67
Protection of Witnesses; Constitutional Guarantees
[T]he Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights.68 Just as the Constitution places limitations on Congress’s power to legislate, so it limits the power to investigate. This section addresses the limitations the Bill of Rights places on the scope and nature of the congressional power to inquire.
The most extensive amount of litigation in this area has involved the privilege against self-incrimination guaranteed against governmental abridgment by the Fifth Amendment. Observance of the privilege by congressional committees has been so uniform that no court has ever held that it must be observed, though dicta are plentiful.69 Thus, the cases have explored not the issue of the right to rely on the privilege but rather the manner and extent of its application.
There is no prescribed form in which one must plead the privilege. When a witness refused to answer a question about Communist Party affiliations and based his refusal upon the assertion by a prior witness of
the first amendment supplemented by the fifth, the Court held that he had sufficiently invoked the privilege, at least in the absence of committee inquiry seeking to force him to adopt a more precise stand.70 If the committee suspected that the witness was being purposely vague, in order perhaps to avoid the stigma attached to a forthright claim of the privilege, it should have requested him to state specifically the ground of his refusal to testify. Another witness, who was threatened with prosecution for his Communist activities, could claim the privilege even to some questions the answers to which he might have been able to explain away as unrelated to criminal conduct; if an answer might tend to be incriminatory, the witness is not deprived of the privilege merely because he might have been able to refute inferences of guilt.71 In still another case, the Court held that the committee had not clearly overruled the claim of privilege and directed an answer.72
The privilege against self-incrimination is not available as a defense to an organizational officer who refuses to turn over organization documents and records to an investigating committee.73
In Hutcheson v. United States,74 the Court rejected a challenge to a Senate committee inquiry into union corruption on the part of a witness who was under indictment in state court on charges relating to the same matters about which the committee sought to interrogate him. The witness did not plead his privilege against self-incrimination but contended that, by questioning him about matters that would aid the state prosecutor, the committee had denied him due process. The plurality opinion of the Court rejected his ground for refusing to answer, noting that, if the committee's public hearings rendered the witness' state trial unfair, then he could properly raise that issue on review of his state conviction.75
Claims relating to the First Amendment have been frequently asserted and as frequently denied. It is not that the First Amendment is inapplicable to congressional investigations, it is that, under the prevailing Court interpretation, the First Amendment does not bar all legislative restrictions of the rights guaranteed by it.76
[T]he protections of the First Amendment, unlike a proper claim of the privilege against self-incrimination under the Fifth Amendment, do not afford a witness the right to resist inquiry in all circumstances. Where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.77
Thus, the Court has declined to rule that under the circumstances of the cases investigating committees are precluded from making inquiries simply because the subject area was education78 or because the witnesses at the time they were called were engaged in protected activities such as petitioning Congress to abolish the inquiring committee.79 However, in an earlier case, the Court intimated that it was taking a narrow view of the committee's authority because a determination that authority existed would raise a serious First Amendment issue.80 And in a state legislative investigating committee case, the majority of the Court held that an inquiry seeking the membership lists of the National Association for the Advancement of Colored People was so lacking in a
nexus between the organization and the Communist Party that the inquiry infringed the First Amendment.81
Dicta in the Court's opinions acknowledge that the Fourth Amendment guarantees against unreasonable searches and seizures are applicable to congressional committees.82 The issue would most often arise in the context of subpoenas, inasmuch as that procedure is the usual way by which committees obtain documentary material and inasmuch as Fourth Amendment standards apply to subpoenas as well as to search warrants.83 But there are no cases in which a holding turns on this issue.84
Other constitutional rights of witnesses have been asserted at various times, but without success or even substantial minority support.
Sanctions of the Investigatory Power: Contempt
Explicit judicial recognition of the right of either house of Congress to commit for contempt a witness who ignores its summons or refuses to answer its inquiries dates from McGrain v. Daugherty.85 But the principle there applied had its roots in an early case, Anderson v. Dunn,86 which stated in broad terms the right of either branch of the legislature to attach and punish a person other than a member for contempt of its authority.87 The right to punish a contumacious witness was conceded in Marshall v. Gordon,88 although the Court there held that the implied power to deal with contempt did not extend to the arrest of a person who published matter defamatory of the House.
The cases emphasize that the power to punish for contempt rests upon the right of self-preservation. That is, in the words of Chief Justice White,
the right to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is inherent legislative power to compel in order that legislative functions may be performed necessitates the contempt power.89 Thus, in Jurney v. MacCracken,90 the Court turned aside an argument that the Senate had no power to punish a witness who, having been commanded to produce papers, destroyed them after service of the subpoena. The punishment would not be efficacious in obtaining the papers in this particular case, but the power to punish for a past contempt is an appropriate means of vindicating
the established and essential privilege of requiring the production of evidence.91
Under the rule laid down by Anderson v. Dunn,92 imprisonment by one of the Houses of Congress could not extend beyond the adjournment of the body which ordered it. Because of this limitation and because contempt trials before the bar of the House charging were time-consuming, in 1857 Congress enacted a statute providing for criminal process in the federal courts with prescribed penalties for contempt of Congress.93
The Supreme Court has held that the purpose of this statute is merely supplementary of the power retained by Congress, and all constitutional objections to it were overruled.
We grant that Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended; but because Congress, by the Act of 1857, sought to aid each of the Houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved.94
Because Congress has invoked the aid of the federal judicial system in protecting itself against contumacious conduct, the consequence, the Court has asserted numerous times, is that the duty has been conferred upon the federal courts to accord a person prosecuted for his statutory offense every safeguard that the law accords in all other federal criminal cases,95 and the discussion in previous sections of many reversals of contempt convictions bears witness to the assertion in practice. What constitutional protections ordinarily necessitated by due process requirements, such as notice, right to counsel, confrontation, and the like, prevail in a contempt trial before the bar of one House or the other is an open question.96
It has long been settled that the courts may not intervene directly to restrain the carrying out of an investigation or the manner of an investigation, and that a witness who believes the inquiry to be illegal or otherwise invalid in order to raise the issue must place himself in contempt and raise his beliefs as affirmative defenses on his criminal prosecution. This understanding was sharply reinforced when the Court held that the speech-or-debate clause utterly foreclosed judicial interference with the conduct of a congressional investigation, through review of the propriety of subpoenas or otherwise.97 It is only with regard to the trial of contempts that the courts may review the carrying out of congressional investigations and may impose constitutional and other constraints.