CONGRESSIONAL OVERSIGHT MANUAL

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First Amendment

Although the First Amendment, by its terms, is expressly applicable only to legislation that abridges freedom of speech, press, religion (establishment or free exercise), or assembly, the Supreme Court has held that the amendment also restricts Congress in conducting oversight and/or investigations. 133

In Barenblatt v. United States, the Court stated that “where First Amendment rights are asserted to bar government 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.” 134

Thus, unlike the Fifth Amendment privilege against self-incrimination, the First Amendment does not give a witness an absolute right to refuse to respond to congressional demands for information. 135

The Supreme Court has held that in balancing the personal interest in privacy against the congressional need for information, “the critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosure from an unwilling witness.” 136

To protect the rights of witnesses, in cases involving the First Amendment, the courts have emphasized the requirements discussed above concerning authorization for the investigation, delegation of power to investigate to the committee involved, and the existence of a legislative purpose. 137

While the courts have recognized the application of the First Amendment to congressional investigations, and it could be invoked by witnesses as grounds for not complying with congressional demands for information, the Supreme Court has never relied on the First Amendment as grounds for reversing a criminal contempt of Congress conviction.

Nonetheless, as illustrated by the examples below, Congress may also give weight to First Amendment claims raised by witnesses.

Potential concerns regarding a witness’s First Amendment right may impact a committee’s decision on how to proceed in an investigation.

In a 1976 investigation of the unauthorized publication in the press of the report of the House Select Committee on Intelligence, the Committee on Standards of Official Conduct (since renamed the Committee on Ethics) subpoenaed four news media representatives, including Daniel Schorr.138

The Standards of Official Conduct Committee concluded that Schorr had obtained a copy of the Select Committee’s report and had made it available for publication.

Although the Ethics Committee found that “Schorr’s role in publishing the report was a defiant act in disregard of the expressed will of the House of Representatives to preclude publication of highly classified national security information,” it declined to cite him for contempt for his refusal to disclose his source. 139

The desire to avoid a clash over First Amendment rights was apparently a major factor in the committee’s decision on the contempt matter. 140

First Amendment concerns can also impact Congress’s decisions on whether a non-cooperative witness will be found to be in Contempt of Congress.

The Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce (since renamed the Committee on Energy and Commerce), in the course of its probe of allegations that deceptive editing practices were employed in producing the television news documentary program The Selling of the Pentagon, subpoenaed Frank Stanton, the president of CBS.

He was directed to deliver to the subcommittee the “outtakes” of the program. 141

When, on First Amendment grounds, Stanton declined to provide the subpoenaed materials, the subcommittee unanimously voted a contempt citation.

The full committee voted 25-13 to report the contempt citation to the full House. 142

After extensive debate, the House failed to adopt the committee report, voting instead to recommit the matter to the committee. 143

During the debate, several Members expressed concern that approval of the contempt citation would have a “chilling effect” on the press and would unconstitutionally involve the government in the regulation of the press. 144

133 Watkins v. United States, 354 U.S. 178, 197 (1957).

134 360 U.S. 109, 126 (1959).

135 360 U.S. 109, 126 (1959).

136 Watkins, 354 U.S. at 198. A balancing test was also used in Branzburg v. Hayes, which involved the claimed
privilege of newsmen not to respond to demands of a grand jury for information. See Branzburg v. Hayes, 408 U.S. 665 (1972). In its 5-4 decision, the Court concluded that the grand jury’s need for the information outweighed First Amendment considerations, but the opinion indicates that “the infringement of protected First Amendment rights must be no broader than necessary to achieve a permissible governmental purpose” and that “a State’s interest must be ‘compelling’ or ‘paramount’ to justify even an indirect burden on First Amendment rights.” Branzburg v. Hayes, 408 U.S. 699-700 (1972); see also Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963) (applying the compelling interest test in a legislative investigation).

137 See, for example, Barenblatt, 360 U.S. 109; Watkins, 354 U.S. 178; United States v. Rumely, 345 U.S. 41 (1953); see also 4 Deschler’s Precedents of the U.S. House of Representatives, ch. 15, §10, n. 15 and accompanying text (1994).

138 H.Rept. 94-1754, 94th Congress, 6 (1976).

139 H.Rept. 94-1754, 94th Congress, 6 (1976) at 42-43.

140 H.Rept. 94-1754, 94th Congress, 6 (1976) at 47-48 (additional views of Representatives Spence, Teague, Hutchinson, and Flynt).

141 The outtakes were portions of the CBS film clips that were not actually broadcast. The subcommittee wanted to compare the outtakes with the tape of the broadcast to determine if improper editing techniques had been used.

142 H.Rept. 92-349, 92nd Congress (1971). CBS’s legal argument was based in part on the claim that Congress could not constitutionally legislate on the subject of editing techniques and therefore the subcommittee lacked a valid legislative purpose for the investigation. H.Rept. 92-349, 92nd Congress (1971) at 9.

143 See Congressional Record, vol. 117 (1971), pp. 23922-23926, 24603-24659, 24720-24753.

144 See Congressional Record, vol. 117 (1971), pp. 24731-24732.

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Fourth Amendment

The Fourth Amendment appears to protect congressional witnesses against subpoenas that are unreasonably broad or burdensome. 145

However, the extent of this protection is not clear.

In McPhaul v. United States, the Supreme Court stated that a congressional subpoena seeking “all records, correspondence, and memoranda” of an organization was not unreasonably broad solely because the scope of the underlying investigation was broad or because the committee was not in a position to provide a precise description of the materials being subpoenaed. 146

Fifth Amendment Privilege Against Self-Incrimination

The Supreme Court has indicated that the privilege against self- incrimination afforded by the Fifth Amendment is available to a witness in a congressional investigation. 147

The privilege is personal in nature 148 and may not be invoked on behalf of a corporation, 149 small partnership,150 labor union,151 or other “artificial” organization. 152

The privilege protects a witness from being compelled to testify but generally not against a subpoena for existing documentary evidence. 153

The basis for asserting the privilege has been described by the U.S. District Court for the District of Columbia as follows:

The privilege may only be asserted when there is reasonable apprehension on the part of the witness that his answer would furnish some evidence upon which he could be convicted of a criminal offense … or which would reveal sources from which evidence could be obtained that would lead to such conviction or to prosecution therefore…. Once it has become apparent that the answers to a question would expose a witness to the danger of conviction or prosecution, wider latitude is permitted the witness in refusing to answer other questions. 154

There is no required verbal formula for invoking the privilege, nor does there appear to be a necessary warning by the committee. 155

A committee should recognize any reasonable indication that the witness is asserting his privilege. 156

The privilege against self-incrimination may generally only be waived “intelligently and
unequivocally” 157 and an ambiguous statement of a witness before a committee would not be treated as a waiver. 158

Where a committee is uncertain whether the witness is in fact invoking the privilege against self-incrimination or is claiming some other basis for declining to answer, the committee should direct the witness to specify his or her privilege or objection. 159

The committee can review the assertion of the privilege by a witness to determine its validity, but the witness is not required to provide further explanation.

Under federal statute, when a witness asserts the privilege, the full house or the committee conducting the investigation may seek a court order that (a) directs the witness to testify and (b) grants the witness immunity against the use of his or her testimony, or other evidence derived from this testimony, in a subsequent criminal prosecution. 160

As previously discussed, the immunity that is granted is “use” immunity, not “transactional” immunity. 161

Neither the immunized testimony that the witness gives nor evidence derived therefrom may be used against him or her in a subsequent criminal prosecution, except one for perjury or contempt relating to his or her testimony.

However, the witness may be convicted of the crime (the “transaction”) on the basis of other evidence. 162

An application for a judicial immunity order must be approved by a majority of the House or Senate or by a two-thirds vote of the full committee seeking the order. 163

The Attorney General must be notified at least 10 days prior to the request for the order and can request a delay of 20 days in issuing the order. 164

Although the order to testify may be issued before the witness’s appearance, 165 it does not become legally effective until the witness has been asked a question, invoked privilege, and been presented with the court order. 166

The court’s role in issuing the order has been held to be ministerial, and thus, if the procedural requirements under the immunity statute have been met, the court may not refuse to issue the order or impose conditions on the grant of immunity. 167

145 McPhaul v. United States, 364 U.S. 372 (1960); see also Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024 (1969). However, while several Supreme Court opinions have suggested that the Fourth Amendment’s broader prohibition against unreasonable searches and seizures is applicable to congressional committees, there has not been a decision directly addressing the issue. See Watkins v. United States, 354 U.S. 178, 188 (1957), McPhaul v. United States, 364 U.S. 372 (1960).

146 McPhaul, 364 U.S. at 382.

147 Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155 (1955).

148 See McPhaul, 364 U.S. 372.

149 Hale v. Henkel, 201 U.S. 43 (1906).

150 Bellis v. United States, 417 U.S. 85 (1974).

151 See United States v. White, 322 U.S. 694 (1944).

152 Bellis, 417 U.S. at 90; see also Rogers v. United States, 340 U.S. 367 (1951).

153 Fisher v. United States, 425 U.S. 391, 409 (1976); Andresen v. Maryland, 427 U.S. 463 (1976). These cases concerned business records. There may be some protection available in the case of a subpoena for personal papers. See McCormick, at §§126, 127. However, where compliance with a subpoena duces tecum (i.e, for production of evidence) would constitute implicit testimonial authentication of the documents produced, the privilege may apply. United States v. Coe, 465 U.S. 605 (1984).

154 United States v. Jaffee, 98 F. Supp. 191, 193-94 (D.D.C. 1951); see also Simpson v. United States, 241 F.2d 222 (9th Cir. 1957) (privilege inapplicable to questions seeking basic identifying information, such as the witness’s name and address).

155 Although there is no case law on point, it seems unlikely that Miranda warnings are required. That requirement flows from judicial concern as to the validity of confessions evoked in an environment of a police station, isolated from public scrutiny, with the possible threat of physical and prosecutorial jeopardy — an environment clearly distinguishable from a congressional context. See Miranda v. Arizona, 384 U.S. 436 (1966).

156 Quinn v. United States, 349 U.S. 155 (1955).

157 Emspak, 349 U.S. at 195.

158 Emspak, 349 U.S. at 195. See also Johnson v. Zerbst, 304 U.S. 458, 464 (1938). It remains undetermined whether the rule of “testimonial subject matter waiver” applies to claims of privilege in congressional hearings. That doctrine provides that if a witness provides testimony on a particular subject matter, he or she has waived the privilege against self-incrimination as it relates to that subject only. See Brown v. United States, 356 U.S. 148 (1958); Mitchell v. United States, 526 U.S. 314 (1999). But see Presser v. United States, 284 F.2d 233 (D.C. Cir 1960) (suggesting that the Brown rule applies in congressional proceedings).

159 Emspak v. United States, 349 U.S. 190 (1955); see also U.S. Congress, Joint Committee on Congressional Operations, Leading Cases on Congressional Investigatory Power, committee print, 94th Congress, 2nd session, January 1976, 62-125 (Washington: GPO, 1976), p. 63

160 18 U.S.C. §§6002, 6005.

161 See “Congressional Immunity.”

162 The constitutionality of granting a witness only use immunity, rather than transactional immunity, was upheld in Kastigar v. United States, 406 U.S. 441 (1972). 163 18 U.S.C. §6005(a) (2012).

164 However, DOJ may waive the notice requirement. Application of the Senate Permanent Subcommittee on Investigations, 655 F.2d 1232, 1236 (D.C. Cir. 1980), cert. denied, 454 U.S. 1084 (1981).

165 Application of the Senate Permanent Subcommittee on Investigations, 655 F.2d 1257 (D.C. Cir. 1980), cert. denied, 454 U.S. 1084 (1981).

166 See In re McElreath, 248 F.2d 612 (D.C. Cir. 1957) (en banc).

167 Application of the U.S. Senate Select Committee on Presidential Campaign Activities, 361 F. Supp. 1270 (D.D.C. 1973). In dicta, however, the court referred to the legislative history of the statutory procedure, which suggests that although a court lacks power to review the advisability of granting immunity, a court may consider the jurisdiction of Congress and the committee over the subject area and the relevance of the information that is sought to the committee’s inquiry. See ibid. at 1278-79.

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Re: CONGRESSIONAL OVERSIGHT MANUAL

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Fifth Amendment Due Process Rights

The due process clause of the Fifth Amendment requires that “the pertinency of the interrogation to the topic under the … committee’s inquiry must be brought home to the witness at the time the questions are put to him.” 168

“Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto.” 169

Additionally, in a contempt proceeding, to satisfy both the requirement of due process as well as the statutory requirement that a refusal to answer be “willful,” a witness should be informed of the committee’s ruling on any objections raised or privileges asserted. 170

Executive Privilege

The executive branch may respond to a congressional request or demand to testify or produce documents with an assertion of executive privilege.

Executive privilege has two different dimensions: the deliberative process privilege, which relates to executive branch decisionmaking processes, and the presidential communications privilege, which relates to presidential decisionmaking.

Presidential Communications Privilege

Presidential communications privilege is a constitutionally based privilege, rooted in “the supremacy of each branch within its own assigned area of constitution duties” and the separation of powers. 171

The privilege is designed to protect direct presidential decisionmaking processes. 172

Presidential communications enjoy the presumption of privilege, but the protection is not absolute and can be overcome by an appropriate showing of need by the requesting party. 173

168 Deutch v. United States, 367 U.S. 456, 467-68 (1961). As the court explained in that case, there is a separate statutory requirement of pertinency.

169 Watkins v. United States, 354 U.S. 178, 214-15 (1957).

170 Deutch, 367 U.S. at 467-68.

171 United States v. Nixon, 418 U.S. 683, 705 (1974). For a more thorough discussion of executive privilege, see CRS Report R42670, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments, by Todd Garvey.

172 Presidential communications are documents and other communications authored by or solicited and received by the President or presidential advisors who work in the White House. See, for example, In re: Sealed Case (Espy), 121 F.3d 729, 737 (D.C. Cir. 1997).

173 See Nixon at 713. Following the Supreme Court’s decision in United States v. Nixon, the U.S. Court of Appeals for the District of Columbia applied this standard to a claim of executive privilege in response to a congressional subpoena. In that case, which was related to the Watergate investigation, the court held that the Senate Select Committee on Campaign Activities had shown sufficient need for the materials to overcome the presumption against disclosure. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F. 2d 725 (D.C. Cir. 1974).

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Common Law Privileges

Deliberative Process Privilege

The deliberative process privilege has been invoked in response to requests for documents and communications created during the decisionmaking process, such as internal executive branch advisory opinions, recommendations, and related communications.174

The deliberative process privilege may protect from disclosure executive branch documents and communications that are predecisional, meaning they are created prior to reaching the agency’s final decision, and deliberative, meaning they relate to the thought process of executive officials and are not purely factual. 175

Additionally, the privilege does not protect entire documents.

Rather, the executive branch is required to disclose non-privileged factual information that can be reasonably segregated from privileged information in the requested documents.

Like the presidential communications privilege, the deliberative process privilege has been found to be qualified, not absolute: It can be overcome by an adequate showing of need. 176

The purpose underlying the deliberative process privilege is to protect the “‘quality of agency decisions’ by allowing government officials freedom to debate alternative approaches in private.” 177

The executive branch may also contend that the privilege protects against disclosure of proposed policies before they are fully considered or adopted, preventing public confusion about the difference between preliminary discussions and final decisions.

174 In public discourse on “executive privilege,” the deliberative process privilege is sometimes treated as an aspect of the presidential communications privilege recognized in United States v. Nixon and discussed above. Some cases involving deliberative process may also involve presidential communications and, therefore, have a potential constitutional element, but this may not be true in all instances.

175 Espy, 121 F.3d at 737. Espy involved documents relating to the President’s appointment and removal power, which the court characterized as a “quintessential and non-delegable Presidential power.” The court continued to say: In many instances, presidential powers and responsibilities … can be exercised or performed without the President’s direct involvement, pursuant to a presidential delegation of power or statutory framework. But the President himself must directly exercise the presidential power of appointment or removal. As a result, in this case there is assurance that even if the President were not a party to the communications over which the government is asserting presidential privilege, these communications nonetheless are intimately connected to his presidential decisionmaking. Ibid. (internal citations omitted). Therefore, while the court did not hold that the presidential communications privilege may be applied only to communications and documents relating to quintessential and non-delegable presidential powers, this may serve as a limit on the privilege.

176 Espy, 121 F.3d at 737.

177 Espy, 121 F.3d at 737.

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Attorney-Client Privilege

The attorney-client privilege is a judge-made exception to the normal principle of full disclosure in the adversary process that is to be narrowly construed and has been confined to the judicial forum. 178

In practice, the exercise of committee discretion in accepting a claim of attorney-client privilege has turned on a “weighing [of] the legislative need for disclosure against any possible resulting injury” 179 to the witness. 180

On a case-by-case basis, a committee can consider, among other factors:

 the strength of a claimant’s assertion in light of the pertinency of the documents or information sought to the subject of the investigation;

 the practical unavailability of the documents or information from any other source;

 the possible unavailability of the privilege to the claimant if it had been raised in a judicial forum; and

 the committee’s assessment of the cooperation of the witness in the matter.

A valid claim of attorney-client privilege is likely to receive substantial weight.

Doubt as to the validity of the asserted claim, however, may diminish the force of such a claim. 181

In the end, it is the congressional committee alone that determines whether to accept a claim of attorney-client privilege.

178 Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991).

179 U.S. Congress, House Interstate and Foreign Commerce, Oversight and Investigations, Volume 1 International Uranium Control, 95th Congress, 1st session, May 2, 1977, Serial No. 95-39 (Washington: GPO, 1977) (hereinafter International Uranium Cartel].

180 Committees may also consider their statutory duty to engage in continuous oversight of the application, administration, and execution of laws that fall within their jurisdiction. See 2 U.S.C. §190d.

181 See, for example, Contempt of Congress Against Franklin L. Haney, H.Rept. 105-792, 105th Congress, 11-15 (1998); Proceedings Against John M. Quinn, David Watkins, and Matthew Moore (Pursuant to Title 2, United States Code, Sections 192 and 194), H.Rept. 104-598, 104th Congress, 40-54 (1996); Refusal of William H. Kennedy, III, To Produce Notes Subpoenaed by the Special Committee to Investigate Whitewater Development Corporation and Related Matters, S.Rept. 104-191, 104th Congress, 9-19 (1995); Proceedings Against Ralph Bernstein and Joseph Bernstein, H.Rept. 99-462, 99th Congress, 13, 14 (1986); International Uranium Cartel, supra note 174, at 54-60.

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Other Common Law Testimonial Privileges

The Federal Rules of Evidence recognize testimonial privileges for witnesses in judicial
proceedings so that they need not reveal confidential communications between doctor and patient, husband and wife, or clergyman and parishioner. 182

Although CRS found no court case directly on point, it appears that congressional committees are not legally required to allow a witness to decline to testify on the basis of these other, similar testimonial privileges. 183

In addition, the various rules of procedure generally applicable to judicial proceedings, such as the right to cross-examine and call other witnesses, need not be accorded to a witness in a congressional hearing. 184

The basis for these determinations is rooted in Congress’s Article I, Section 5, rulemaking
powers, 185 under which each house is the exclusive decisionmaker regarding the rules of its own proceedings.

This rulemaking authority and general separation of powers considerations suggest that Congress and its committees are not obliged to abide by rules established by the courts to govern their own proceedings. 186

Though congressional committees may not be legally obligated to recognize privileges for confidential communications, they may do so at their discretion.

Historical precedent suggests that committees have often recognized such privileges. 187

The decision as to whether or not to allow such claims of privilege turns on a “weighing [of] the legislative need for disclosure against any possible resulting injury.” 188

182 Fed. R. Evid. 501.

183 See generally U.S. Congress, House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, Attorney-Client Privilege: Memoranda Opinions of the American Law Division, Library of Congress, committee print, 98th Congress, 1st session, 1983. But see Moreland, Congressional Investigations and Private Persons, pp. 265-267. It should be noted that courts have refused to grant claims of work-product immunity, in response to a grand jury subpoena, over documents prepared by the White House counsel’s office in anticipation of possible congressional hearings. See, for example, In re Grand Jury Subpoena Duces Tecum, 112 F.3d 907, 924-25 (8th Cir. 1997); In re Grand Jury Proceedings, 5 F. Supp. 2d 21, 39 (D.D.C. 1998).

184 United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971), (citing Hannah v. Larche, 363 U.S. 420 (1960)).

185 U.S. Const. art. 1, §5, cl. 2.

186 See generally Telford Taylor, Grand Inquest: The Story of Congressional Investigations (Cambridge, MA: Da Capo Press, 1974), pp. 227-228.

187 James Hamilton, The Power to Probe: A Study of Congressional Investigations (New York: Random House, 1977), p. 244. Hamilton notes that John Dean, the former counsel to the President, testified before the Senate Watergate Committee after President Nixon had “waived any attorney-client privilege he might have had because of their
relationship.” See also S.Rept. No. 2, 84th Congress (1955).

188 See International Uranium Cartel, supra note 174, at 60.

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Statutory Limit on Congressional Access to Information

In certain circumstances, Congress has chosen to enact laws that limit its own ability to access specific types of information.

One well-known example of such self-limiting action is Title 26, Section 6103(f), of the U.S. Code, under which only the House Committee on Ways and Means, the Senate Committee on Finance, and the Joint Committee on Taxation are permitted access to individuals’ tax returns. 189

For any other committee to receive such information, the House or Senate must pass a resolution 190 specifying the purpose for which the information is to be furnished and that the requested information cannot be reasonably obtained from any other source. 191

The information is to be provided only when the requesting committee is sitting in closed executive session. 192

Other commonly cited statutory restrictions on oversight are Title 50, Sections 3091-3093, of the U.S. Code, relating to foreign intelligence activities.

Section 3091 governs congressional oversight of “intelligence activities” 193 generally.

It requires that the President ensure that congressional intelligence committees are “fully and currently informed” of intelligence activities 194 and “promptly” notified of illegal intelligence activities. 195

Section 3092 governs oversight of intelligence activities that are not covert actions, and Section 3093 governs oversight of covert actions.

Each section imposes a duty on the Director of National Intelligence and the heads of other entities involved in intelligence activities to with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters … keep the congressional intelligence committees fully and currently informed of all intelligence activities, other than a covert action.… which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government. 196

Self-imposed limits on congressional oversight powers raise the question of whether statutes that generally prohibit public disclosure of information also restrict congressional access.

Federal courts have held that the executive branch and private parties may not withhold documents from Congress based on a law that restricts public disclosure, because the release of information to a congressional requestor is not considered to be a disclosure to the general public. 197

From time to time the President, the executive branch, and private parties have argued that certain statutes of general applicability prevent the disclosure of confidential or sensitive information to congressional committees.

For example, a frequently cited statute to justify such non-disclosure is the Trade Secrets Act, a criminal provision that generally prohibits the disclosure of trade secrets and other confidential business information by a federal officer or employee “unless otherwise authorized by law.” 198

A review of the Trade Secrets Act’s legislative history, however, provides no indication that it was ever intended to apply to Congress, its employees, or any legislative branch agency or its employees. 199

In instances in which the target of a congressional inquiry attempts to withhold information based on a general nondisclosure statute that is silent with respect to congressional disclosure, the committee may have to take additional steps to access the information.

Potential solutions include negotiations with the target; accommodations in the form of accepted redactions or other means of providing the information; or a “friendly subpoena,” which may provide the targeted entity or individual with the necessary legal cover to assist the committee with its inquiry.

Each of these and many other prospective solutions can be employed at the committee’s discretion.

189 26 U.S.C. §6103(f)(1). Returns are to be submitted to the requesting committee in a manner that protects the privacy of the individual. In the event that information identifying (either directly or indirectly) any tax filer is requested, it may be furnished to the committee only “when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.” Ibid.

190 In the case of other joint or special committees, a concurrent resolution is required. 26 U.S.C. §6103(f)(1).

191 26 U.S.C. §6103(f)(3).

192 26 U.S.C. §6103(f)(3).

193 Intelligence activities is defined to include “covert actions” and “financial intelligence activities” but is not further defined in law (50 U.S.C. §3091(f)). Covert action is also defined in statute (50 U.S.C. §3093(e)). Intelligence activities is defined by Executive Order 12333 (as amended) as “all activities that agencies within the Intelligence Community are authorized to conduct pursuant to this Order” (Executive Order 12333, “United States Intelligence Activities,” 46 Federal Register 59941, December 4, 1981). Additionally, detailed definitions of intelligence activities and intelligence-related activities are contained in the Senate resolution establishing the Senate Select Committee on Intelligence and the House Rule establishing the House Permanent Select Committee on Intelligence. See S.Res. 400, 94th Congress, §14(a); House Rule X(11).

194 This requirement includes reporting on “significant anticipated intelligence activity as required by this subchapter” (50 U.S.C. §3091(a)).

195 50 U.S.C. §3091(a).

196 50 U.S.C. §§3092(a), 3093(b).

197 See, for example, F.T.C. v. Owens-Corning Fiberglass Corp., 626 F.2d 966, 970, 974 (D.C. Cir. 1980); Exxon Corp. v. F.T.C., 589 F.2d 582, 585-89 (D.C. Cir. 1978), cert. denied, 441 U.S. 943 (1979); Ashland Oil Co., Inc. v. F.T.C., 548 F.2d 977, 979 (D.C. Cir. 1976).

198 18 U.S.C. §1905.

199 See, for example, CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1144-52 (D.C. Cir. 1987) (discussing, in depth, the legislative history of the Trade Secrets Act).

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Options for Obtaining Materials from Overseas

If a congressional demand for information has been enforced in U.S. courts through, for example, a criminal contempt conviction or the civil enforcement of a subpoena, U.S. courts may be able to seek assistance from foreign countries to enforce a court order.

There are two ways for U.S. courts to request assistance from foreign countries in obtaining evidence (including witness testimony) located outside the United States: mutual legal assistance treaties and letters rogatory.

Mutual legal assistance treaties provide for two countries’ mutual assistance in criminal proceedings.

The existence of a mutual legal assistance treaty, however, does not guarantee that a congressional subpoena will be enforced in a foreign jurisdiction.

Rather, the specific wording of the treaty must be consulted.

Letters rogatory are formal requests made by a court in one country to a competent body in another country to serve process or order testimony of a witness or the production of evidence. 200

U.S. courts are statutorily authorized to issue such letters. 201

However, letters rogatory are generally considered a measure of last resort and are generally used only when no mutual legal assistance treaty exists. 202

Although reciprocity is not coterminous with international comity, many countries use reciprocity as a guide to determine compliance with letters rogatory.

Thus, it is important to examine U.S. compliance with other countries’ letters rogatory to determine the likely extent of reciprocal compliance abroad.

The applicable statute authorizes a U.S. district court to assist a foreign court if:

 the person from whom discovery is sought resides (or may be found) in the district of the court to which the application is made,

 the discovery is for use in a proceeding before a foreign tribunal, and

 the application is made directly by a foreign tribunal rather than by any other “interested person.” 203

200 See 22 C.F.R. §92.54.

201 28 U.S.C. §§1781, 1782.

202 See U.S. Department of State, “Preparation of Letters Rogatory,” https://travel.state.gov/content/travel ... atory.html (“Before initiating the letters rogatory process, parties should determine whether the country where they are seeking to serve process or take evidence is a party to any multilateral treaties on judicial assistance”).

203 28 U.S.C. §1782 (2006).

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Re: CONGRESSIONAL OVERSIGHT MANUAL

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Congressional Oversight Manual, continued ...

Updated January 16, 2020

Congressional Research Service

Limitations on Congressional Authority, continued ...

Common Law Privileges, concluded ...

Ability to Serve Congressional Subpoenas Overseas

There appear to be few examples of congressional attempts to issue, serve, and enforce subpoenas abroad. 204

Congress’s experiences during the Iran-Contra investigations demonstrate both of the potential difficulties of securing judicial assistance abroad and the need for imaginative improvisation. 205

The House and Senate select committees investigating the Iran-Contra matter were faced with formidable obstacles from the outset, including, but not limited to, a relatively short deadline to complete their investigation, a parallel independent counsel investigation competing for the same evidence, witnesses and evidence in foreign countries with strict secrecy laws, and an Administration that would not cooperate in facilitating any possible diplomatic accommodations.

These challenges were evident in the committees’ attempts to obtain information contained in Swiss bank accounts.

The committees sought a sharing agreement with the independent counsel, who was authorized by federal law and a Swiss treaty to seek Swiss judicial assistance, but he was reluctant to jeopardize his relationship with the Swiss government. 206

Instead, in 1987, the committees issued an order requiring that former Major Richard V. Secord execute a consent directive authorizing the release of his offshore bank records and accounts to the committee. 207

When Secord refused to sign the consent directive, the committee sought a court order directing him to comply. 208

The court ruled that there was a testimonial aspect to requiring the signing of the consent directive, and, thus, a court order would violate Secord’s Fifth Amendment right against self-incrimination. 209

The court did not otherwise challenge the committees’ ability to seek such an order.

The committees concluded that to obtain the critical financial records, they would grant use immunity to a principal target of the investigation, who was living in Paris and would not subject himself to U.S. jurisdiction, in return for the records.

To establish its own investigative legitimacy and allay concerns about the force of the immunity grant, the committees obtained an order (a “commission”) from a district court, under Rule 28 of the Federal Rules of Civil Procedure, empowering him (the “commissioner”) to obtain evidence in another country and to bring it back. 210

Finally, the House committee issued the chief counsel a commission, much like a subpoena in format, to further document his official status.

The witness turned over the financial documents and aided in deciphering and understanding them. 211

The legal sufficiency of the tactic was never tested in court but proved effective in obtaining the documents.

204 See John C. Grabow, Congressional Investigations: Law and Practice (Clifton, NJ: Prentice Hall, 1988), §3.2(b) (noting a 1985 attempt by a Senate committee to serve a member of the Soviet navy while on a Soviet freighter located temporarily in American waters and a 1986 attempt by various House committees to serve Ferdinand Marcos, the exiled former president of the Philippines). However, the author does not provide any supporting authority documenting these attempts or any explanation for why they were unsuccessful.

205 See generally George W. Van Cleve and Charles Tiefer, Navigating the Shoals of “Use” Immunity and Secret International Enterprises in Major CongressionalInvestigations: Lessons of the Iran-Contra Affair, 55 MO. L. REV. 43 (1990).

206 See 28 U.S.C. §1782.

207 Senate Select Comm. on Secret Military Assistance to Iran and the Nicaraguan Opposition v. Secord, 664 F. Supp. 562, 563 (D.D.C. 1987).

208 Ibid.

209 Ibid. at 564-66. In 1988 the Supreme Court adopted the Senate’s argument in a different case, holding that such a directive is not testimonial in nature. See Doe v. United States, 487 U.S. 201 (1988).

210 This tool contrasts with a letter rogatory, which goes to a foreign court, and with domestic deposition practice, which occurs on notice without going to or from any court.

211 Ibid. at 79-80.

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Re: CONGRESSIONAL OVERSIGHT MANUAL

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Updated January 16, 2020

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Limitations on Congressional Authority, continued ...

Frequently Encountered Information Access Issues

Congressional oversight and investigations can often become adversarial, especially if the target of an investigation refuses to disclose requested information.

In those situations, the targeted entity may attempt to argue that disclosure of the information is prohibited by a specific law, rule, or executive decision.

Another common tactic is to assert that the information is so sensitive that Congress is not among those entitled or authorized to have the information.

This section will address some of the most common laws, rules, and orders that have been cited as the basis for targeted entities withholding information from Congress.

The Privacy Act

The Privacy Act prohibits, with certain exceptions, the disclosure by a federal agency of “any record which is contained in a system of records” to any person or to another agency, except pursuant to a written request by, or with the prior written consent of, the subject of the record. 212

The statutory limitations do not apply to disclosure of records by the executive “to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee.” 213

This exemption applies, by its terms, to a disclosure to the House or Senate or to a committee or subcommittee that has jurisdiction over the subject of the disclosure.

The Freedom of Information Act (FOIA) 214

FOIA requires publication in the Federal Register of various information, such as descriptions of an agency’s organization and procedures.

It also requires that certain materials, such as statements of policy that have not been published in the Federal Register and certain staff manuals, be made available for public inspection. 215

In addition, FOIA provides that all other records are to be disclosed in response to a specific request by any person, except records that fall under one of the nine exemptions from the disclosure requirements. 216

FOIA also provides for both administrative and judicial appeals when access to information is thought to be improperly denied by an agency.

FOIA applies to “agencies,” 217 which are defined to include “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 218

Congress is not included within the scope of the definition of agency.

Therefore, records of the House, Senate, congressional committees, and Members are not subject to disclosure under FOIA. 219

Additionally, FOIA specifically provides that the statute “is not authority to withhold information from Congress.” 220

When a congressional committee of jurisdiction is seeking information from an agency for legislative or oversight purposes, it does not act pursuant to FOIA but rather pursuant to Congress’s constitutional oversight authority. 221

Therefore, an agency may not cite a FOIA exemption as the reason for withholding disclosure.

Individual Members, Members not on a committee of jurisdiction, or minority Members of a jurisdictional committee may, like any person, request agency records. 222

However, DOJ has interpreted the congressional exemption not to apply to such requests. 223

Thus, the standard FOIA exemptions that an agency could invoke to prevent disclosure to the general public can also be cited to prevent disclosure to these categories of Members.

212 5 U.S.C. §552a. The term record is defined as “any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph” (5 U.S.C. §552(a)(4)). The phrase system of records means “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual” (5 U.S.C. §552(a)(5)).

213 5 U.S.C. §552a(b)(9). The House report on the act explained that the congressional exemption “relates to personal information needed by the Congress and its committees and subcommittees." "Occasionally, it is necessary to inquire into such subjects for legislative and investigative reasons.” See H.Rept. 93-1416, 93rd Congress, 13 (1974). The legislative history of the act is sketched in Devine v. United States, 202 F.3d 547, 552 (2nd Cir. 2000).

214 For additional information on FOIA see CRS Report R41933, The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues, by Meghan M. Stuessy.

215 5 U.S.C. §552.

216 5 U.S.C. §552(b).

217 5 U.S.C. §552(a).

218 5 U.S.C. §552(f)(1).

219 See, for example, United We Stand Am. v. IRS, 359 F.3d 595, 597 (D.C. Cir. 2004) (stating, “The Freedom of Information Act does not cover congressional documents”); Dow Jones & Co. v. DOJ, 917 F.2d 571, 574 (D.C. Cir. 1990) (holding that Congress is not an agency for any purpose under FOIA).

220 5 U.S.C. §552(d).

221 See, for example, McGrain v. Daugherty, 273 U.S. 135 (1927). When a committee seeks information from the executive, it may do so by means of an informal request from committee staff or a letter signed by the committee chair or by exercise of the subpoena authority, which is vested in standing committees by both bodies. House Rule XI(2)(m); Senate Rule XXVI.

222 H. Rept. 1497, 89th Congress, 11-12 (1966).

223 See DOJ, Office of Information and Privacy, “Freedom of Information Act Guide,” September 4, 2019, https://www.justice.gov/oip/page/file/1199421/download, p. 19 (stating that “individual Members of Congress possess the same rights of access as ‘any person’”).

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