CONGRESSIONAL OVERSIGHT MANUAL

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Legislative Purpose, concluded ...

In McGrain v. Daugherty, 59 the original resolution that authorized the Senate investigation into the Teapot Dome affair made no mention of a legislative purpose.

A subsequent resolution for the attachment of a contumacious witness declared that his testimony was sought for the purpose of obtaining “information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper.” 60

The Court found that the investigation was ordered for a legitimate legislative purpose.

It wrote:

The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject matter was such that the presumption should be indulged that this was the real object.

An express avowal of the object would have been better; but in view of the particular subject-matter was not indispensable….

The second resolution — the one directing the witness be attached — declares that this testimony is sought with the purpose of obtaining “information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper.”

This avowal of contemplated legislation is in accord with what we think is the right interpretation of the earlier resolution directing the investigation.

The suggested possibility of “other action” if deemed “necessary or proper” is of course open to criticism in that there is no other action in the matter which would be within the power of the Senate.

But we do not assent to the view that this indefinite and untenable suggestion invalidates the entire proceeding.

The right view in our opinion is that it takes nothing from the lawful object avowed in the same resolution and is rightly inferable from the earlier one.

It is not as if an inadmissible or unlawful object were affirmatively and definitely avowed.
61

Moreover, it has been held that a court cannot say that a committee of Congress exceeds its power when the purpose of its investigation is supported by reference to specific problems that in the past have been, or in the future may be, the subject of appropriate legislation. 62

In the past, the types of legislative activity that have justified the exercise of investigative power have included the primary functions of legislating and appropriating, 63 the function of deciding whether or not legislation is appropriate, 64 oversight of the administration of the laws by the executive branch, 65 and the congressional function of informing itself in matters of national concern. 66

In addition, Congress’s power to investigate such diverse matters as foreign and domestic subversive activities, 67 labor union corruption, 68 and organizations that violate the civil rights of others 69 have all been upheld by the Supreme Court.

Despite the Court’s broad interpretation of legislative purpose, its scope is not without limits.

Courts have held that a committee lacks legislative purpose if it appears to be conducting a legislative trial rather than an investigation to assist in performing its legislative function.
70

However, although “there is no congressional power to expose for the sake of exposure,” 71 “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.” 72.

59 273 U.S. 273 U.S. at 153.

60 See 273 U.S. at 153.

61 273 U.S. at 179-80.

62 Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968), cert denied, 393 U.S. 1024 (1969).

63 Barenblatt, 360 U.S. 109.

64 Quinn v. United States, 349 U.S. 155, 161 (1955).

65 McGrain, 273 U.S. at 295.

66 Rumely, 345 U.S. at 43-45; see also Watkins, 354 U.S. at 200 n. 3.

67 See, for example, Barenblatt, 360 U.S. 109; Watkins, 354 U.S. 178; McPhaul v. United States, 364 U.S. 372 (1960).

68 Hutcheson v. United States, 369 U.S. 599 (1962).

69 Shelton, 404 F.2d 1292.

70 See United States v. Icardi, 140 F. Supp. 383 (D.D.C. 1956); United States v. Cross, 170 F. Supp. 303 (D.D.C. 1959).

71 Watkins, 354 U.S. at 200. However, Chief Justice Warren, writing for the majority, made it clear that he was not referring to the “power of the Congress to inquire into and publicize corruption, mal-administration or inefficiency in agencies of the Government.”

72 Barenblatt, 360 U.S. at 132.

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Re: CONGRESSIONAL OVERSIGHT MANUAL

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Legal Tools Available for Oversight and Investigations

A review of congressional precedents indicates that there is no single method or set of procedures for engaging in oversight or conducting an investigation. 73

Historically, congressional committees appeared to rely a great deal on public hearings and subpoenaed witnesses to gather information and accomplish their investigative goals.

In more recent years, congressional committees have seemingly relied more heavily on staff level communication and contacts as well as other “informal” attempts at gathering information — document requests, informal briefings, interviews, etc. — before initiating the necessary formalistic procedures such as issuing committee subpoenas, holding on-the-record depositions, and/or engaging the subjects of inquiries in public hearings.

This section discusses the formal process of issuing subpoenas, depositions, and holding committee hearings.

This section also reviews Congress’s authority to grant witnesses limited immunity for the purpose of obtaining information and testimony that may be protected by the Fifth Amendment’s right against self-incrimination.

Subpoena Power

As a corollary to Congress’s accepted oversight and investigative authority, the Supreme Court has determined that the issuance of subpoenas “has long been held to be a legitimate use by Congress of its power to investigate.” 74

The Court has referred to the subpoena power as “an essential and appropriate auxiliary to the legislative function” 75 and said the following about its usefulness to Congress:

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 do 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.
76

A properly authorized subpoena issued by a committee or subcommittee has the same force and effect as a subpoena issued by the parent house itself.

Individual committees and subcommittees must be delegated the authority to issue subpoenas.

Senate Rule XXVI(1) and House Rule XI(2)(m)(1) presently empower all standing committees and subcommittees to issue subpoenas requiring the attendance and testimony of witnesses and the production of documents.

Special or select committees must be specifically delegated that authority by Senate or House resolution.

The rules governing issuance of committee subpoenas vary by committee.

Some committees require a full committee vote to issue a subpoena, while others empower the chairman to issue them unilaterally or with the concurrence of the ranking minority member. 77

Congressional subpoenas are served by the U.S. Marshal’s office, committee staff, or the Senate or House Sergeants-at-Arms.

Service may be effected anywhere in the United States.

The subpoena power has been held to extend to aliens physically present in the United States.

As will be discussed below, however, securing compliance of U.S. nationals and aliens living in foreign countries is more complex. 78

A witness seeking to challenge the legal sufficiency of a subpoena has limited remedies to defeat the subpoena even if it is found to be legally deficient.

In order for a subpoena to be valid, the underlying investigation must meet the following general criteria, as articulated by the Supreme Court in Wilkinson v. United States:

 The committee’s investigation of the broad subject matter area must be authorized by Congress.

 The investigation must be pursuant to “a valid legislative purpose.” 79

 The specific inquiries must be pertinent to the broad subject matter areas that have been authorized by Congress. 80

However, regardless of the subpoena’s legal sufficiency, courts will generally not entertain a subpeona recipient’s attempt to block a subpoena under the Speech or Debate Clause because the Constitution 81 provides “an absolute bar to judicial interference” with such compulsory process. 82

As a consequence, a witness’s typical judicial recourse is to refuse to comply with the subpoena, risk being cited for contempt, and then challenge the legal sufficiency of the subpoena in the contempt prosecution.

73 See, for example, Roger A. Bruns, David L. Hostetter, and Raymond W. Smock, eds., Congress Investigates: A Critical and Documentary History (New York: Facts on File, 2011).

74 Eastland, 421 U.S. at 504.

75 McGrain, 273 U.S. at 174-75.

76 McGrain, 273 U.S. at 175; see also Buckley v. Valeo, 424 U.S. 1, 138 (1976); Eastland, 421 U.S. at 504-505.

77 See, for example, House Committee on Oversight and Reform, Rule 12(g); Senate Committee on Homeland Security and Governmental Affairs, Rule 5(c).

78 See “Common Law Privileges.”

79 As to the requirement of “valid legislative purpose,” the Supreme Court has made it clear that Congress does not have to state explicitly what it intends to do as a result of an investigation. In re Chapman, 166 U.S. 661, 669 (1897).

80 Wilkinson v. United States, 365 U.S. 399, 408-09 (1961).

81 U.S. Const. art. I, §6, cl. 1. See also CRS Report R45043, Understanding the Speech or Debate Clause, by Todd Garvey.

82 Eastland, 421 U.S. at 503-07.

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Re: CONGRESSIONAL OVERSIGHT MANUAL

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Staff Deposition Authority

Committees often rely on informal staff interviews to gather information to prepare for investigative hearings.

However, in recent years, congressional committees have also used staff-conducted depositions as a tool in exercising their investigatory power. 83

On a number of occasions such specific authority has been granted pursuant to Senate and House resolutions. 84

When granted, procedures for taking depositions may be issued, including provisions for notice (with or without a subpoena), transcription of the deposition, the right to be accompanied by counsel, and the manner in which objections to questions are to be resolved. 85

Staff depositions afford a number of significant advantages for committees engaged in complex investigations, including the ability to:

 obtain sworn testimony quickly and confidentially without the necessity of Members devoting time to lengthy hearings that may be unproductive because witnesses do not have the facts needed by the committee or refuse to cooperate;

 obtain testimony in private, which may be more conducive to candid responses than public hearings;

verify witness statements that might defame or tend to incriminate third parties before they are repeated publicly;

 prepare for hearings by screening witness testimony in advance, which may obviate the need to call other witnesses;

 question witnesses outside of Washington, DC, without the inconvenience of conducting field hearings with Members present.

Moreover, Congress has enhanced the efficacy of the staff deposition process by re-establishing the applicability of criminal prohibition against false statements to statements made during congressional proceedings, including the taking of depositions. 86

Certain disadvantages may also inhere.

Unrestrained staff may be tempted to engage in tangential inquiries.

Also, depositions present a “cold record” of a witness’s testimony and may not be as useful for Members as in-person presentations.


83 In the House, in the 116th Congress, the Permanent Select Committee on Intelligence and all standing committees, with the exception of the Committee on Rules, have the standing authority to take depositions (H.Res. 6 §103(a)). In the Senate, the Committees on Agriculture, Nutrition, and Forestry; Ethics; Homeland Security and Governmental Affairs and its Permanent Subcommittee on Investigations; Indian Affairs; Foreign Relations; and Commerce, Science, and Technology and the Special Committee on Aging all appear to have deposition authority. See U.S. Congress, Senate, Authority and Rules of Senate Committees, 2019-2020, 116th Congress, 1st session, July 19, 2019, S. Doc. 116-6 (Washington: GPO, 2019).

84 See CRS Report 95-949, Staff Depositions in Congressional Investigations, by Jay R. Shampansky, at notes 16 and 18. This CRS report is available to congressional clients upon request.

85 See, for example, “116th Congress Regulations for Use of Deposition Authority,” Congressional Record, daily edition, vol. 165 (January 25, 2019), p. H1216.

86 18 U.S.C. §1001; False Statements Accountability Act of 1996, P.L. 104-292. Congress acted in response to the Supreme Court’s decision in Hubbard v. United States, 514 U.S. 695 (1995), holding that Title 18, Section 1001, of the United States Code applied only to false statements made in executive branch department and agency proceedings.

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Hearings

House Rule XI(2) and Senate Rule XXVI(2) require that committees adopt written rules of procedure to be used in hearings and publish them in the Congressional Record.

The failure to publish such rules has resulted in the invalidation of a perjury prosecution.
87

Once properly promulgated, such rules are judicially cognizable and must be strictly observed.

The House and many individual Senate committees require that all witnesses be given a copy of a committee’s rules.

Both the House and the Senate have adopted rules permitting a reduced quorum for taking testimony and receiving evidence.

House committees are required to have at least two Members present to take testimony. 88

Senate rules allow the taking of testimony with only one Member in attendance. 89

Most committees have adopted the minimum quorum requirement, and some require a higher quorum for sworn rather than unsworn testimony. 90

For perjury purposes, the quorum requirement must be met at the time the allegedly perjured testimony is given, not at the beginning of the session. 91

Reduced quorum requirement rules do not apply to authorizations for the issuance of subpoenas.

Senate rules require a one-third quorum of a committee or subcommittee, while the House requires a quorum of a majority of the members unless a committee delegates authority for issuance to its chairman. 92

Senate and House rules limit the authority of their committees to meet in closed session.

For example, the House requires testimony to be held in closed session if a majority of a committee or subcommittee determines that it “may tend to defame, degrade, or incriminate any person.” 93

Such testimony taken in closed session is normally releasable only by a majority vote of the committee.

Similarly, confidential material received in a closed session requires a majority vote for release.

In most oversight and investigative hearings, the chair usually makes an opening statement.

In the case of an investigative hearing, the opening statement is an important means of defining the subject matter of the hearing and thereby establishing the pertinence of questions asked of the witnesses.

Not all committees swear in their witnesses, but a few committees require that all witnesses be sworn. 94

Most committees leave the swearing of witnesses to the discretion of the chair.

If a committee wishes the potential sanction of perjury to apply, it should, in accordance with the statute, administer an oath and swear in its witnesses. 95

However, it should be noted that false statements not under oath are also subject to criminal sanctions. 96

A witness does not have the right to make a statement before being questioned, but the opportunity is usually accorded.

Committee rules may prescribe the length of such statements and also require written statements be submitted in advance of the hearing.

Questioning of witnesses may be structured so that members alternate for specified lengths of time.

Questioning may also be conducted by staff at the committee’s discretion.

Witnesses may be allowed to review a transcript of their testimony and make non-substantive corrections.

The right of a witness to be accompanied by counsel is recognized by House rule and the rules of Senate committees.

The House rule limits the role of counsel, who are to serve solely “for the purpose of advising [witnesses] concerning their constitutional rights.” 97

Some committees have adopted rules specifically prohibiting counsel from “coaching” witnesses during their testimony. 98

A committee has complete authority to control the conduct of counsel.

Indeed, the House rules provide, “The chair may punish breaches of order and decorum, and of professional ethics on the part of counsel, by censure and exclusion from the hearings; and the committee may cite the offender to the House for contempt.” 99

Some Senate committees have adopted similar rules. 100

There is no right of cross-examination of adverse witnesses during an investigative hearing.

However, witnesses are entitled to a range of other constitutional protections, such as the Fifth Amendment right to avoid making self-incriminating statements, which are discussed in more detail below. 101

87 United States v. Reinecke, 524 F.2d 435 (D.C. Cir. 1975) (holding that failure to publish a committee rule setting one Senator as a quorum for taking hearing testimony was a sufficient ground to reverse a perjury conviction for testimony under such circumstances).

88 House Rule XI(2)(h)(2), 116th Congress (2019).

89 Senate Rule XXVI(7)(a)(2), 116th Congress (2019). See, for example, S.Doc. 116-6, Authority and Rules of Senate Committees, 2019-2020; Special Committee on Aging, Rule 5.1 at 6.

90 See, for example, S.Doc. 116-6, Authority and Rules of Senate Committees, 2019-2020; Committee on Appropriations, Rule II(3) at 19.

91 Christoffel v. United States, 338 U.S. 84, 90 (1949).

92 Senate Rule XXVI(7)(a)(1); House Rule XI(2)(m)(3).

93 House Rule XI(2)(k)(5).

94 See, for example, Senate Special Committee on Aging, Rule II.

95 18 U.S.C. §1621.

96 18 U.S.C. §1001.

97 House Rule XI(2)(k)(3).

98 See, for example, U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Permanent Subcommittee on Investigations, Rules of Procedure, committee print, 116th Congress, 1st session, February 7, 2019, S. Prt. 116-6 (Washington: GPO, 2019).

99 House Rule XI(2)(k)(4).

100 See, for example, Senate Special Committee on Aging, Rule II; Senate Permanent Subcommittee on Investigations Rules, Rule 7.

101 See “Constitutional Limitations.”

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Re: CONGRESSIONAL OVERSIGHT MANUAL

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Congressional Immunity

The Fifth Amendment to the Constitution provides in part that “no person … shall be compelled in any criminal case to be a witness against himself.” 102

The privilege against self-incrimination is available to a witness in a congressional investigation. 103

When a witness before a committee asserts this testimonial constitutional privilege, the committee may obtain a court order granting the witness immunity if two-thirds of the full committee votes for the order. 104

Such an order compels the witness to testify and grants him or her immunity against the use of that testimony, and other information derived therefrom, in a subsequent criminal prosecution. 105

The witness may still be prosecuted on the basis of other evidence.

Grants of immunity have occurred in a number of notable congressional investigations, including the investigations of Watergate (John Dean and Jeb Magruder) and Iran-Contra (Oliver North and John Poindexter).

The decision to grant immunity involves a number of complex issues but is ultimately a strategic decision for Congress.

As observed by Iran-Contra Independent Counsel Lawrence E. Walsh, “The legislative branch has the power to decide whether it is more important perhaps even to destroy a prosecution than to hold back testimony they need."

"They make that decision."

"It is not a judicial decision or a legal decision but a political decision of the highest importance.” 106

In determining whether to grant immunity to a witness, a committee might consider, on the one hand, its need for the witness’s testimony to perform its legislative, oversight, and informing functions and, on the other, the possibility that the witness’s immunized congressional testimony could jeopardize a successful criminal prosecution.

102 U.S. Const. amend. V.

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

104 See 18 U.S.C. §6005.

105 18 U.S.C. §6005. This type of immunity is known as “use immunity.”

106 Lawrence E. Walsh, The Independent Counsel and the Separation of Powers, 25 HOUS. L. REV. 1, 9 (1988).

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Enforcement of Congressional Authority

Contempt of Congress

While the threat or actual issuance of a subpoena normally provides sufficient leverage to ensure compliance with a congressional demand for information, the contempt power is Congress’s most forceful tool to punish the contemnor and/or remove the obstruction to compliance.

The Supreme Court has recognized the contempt power as an inherent attribute of Congress’s legislative authority, reasoning that if it did not possess this power, it “would be exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it.” 107

There are two different types of contempt proceedings.

Both the House and the Senate may cite a witness for contempt under their inherent contempt power or under the criminal contempt procedure established by statute. 108

Inherent Contempt

Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and, if found in contempt, may be imprisoned.

The purpose of the imprisonment or other sanction may be either punitive 109 or coercive. 110

Thus, the witness can be imprisoned for a specified period of time as punishment or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of Congress) until he or she agrees to comply.

The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally based power to investigate. 111

Between 1795 and 1934 the House and Senate used the inherent contempt power over 85 times, in most instances to obtain (successfully) testimony and/or production of documents.

The inherent contempt power has not been exercised by either house since 1934.

This procedure appears to be disfavored now because it has been considered too cumbersome and time-consuming to hold contempt trials at the bar of the offended chamber.


Moreover, some have argued that the procedure is ineffective because punishment cannot extend beyond Congress’s adjournment date. 112

107 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).

108 See 2 U.S.C. §§192, 194. For a comprehensive treatment of the history and legal development of the congressional contempt power, see CRS Report RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey.

109 Jurney v. MacCracken, 294 U.S. 125, 147 (1935).

110 McGrain v. Daugherty, 273 U.S. 135, 161 (1927).

111 See Anderson, 19 U.S. (6 Wheat.) 204; see also McGrain, 273 U.S. 135.

112 See Ernest J. Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt (New York: Columbia University Press, 1928), pp. 289, 302-316.

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Enforcement of Congressional Authority

Statutory Criminal Contempt

Recognizing the practical limitations of the inherent contempt process, in 1857 Congress enacted a statutory criminal contempt procedure as an alternative.

The statute, with minor amendments, is now codified at Title 2, Sections 192 and 194, of the U.S. Code.

A person who has been subpoenaed to testify or produce documents before the House or Senate or a committee and who fails to do so — or who appears but refuses to respond to questions — is guilty of a misdemeanor, punishable by a fine of up to $100,000 and imprisonment for up to one year.
113

A contempt citation must be approved by the subcommittee (if applicable), the full committee, and the full House or Senate. 114

After the President of the Senate or the Speaker of the House has certified a contempt, it is the “duty” of the U.S. Attorney “to bring the matter before the grand jury for its action.”115

The criminal contempt procedure was rarely used until the 20th century, but since 1935 it has been essentially the exclusive vehicle for punishment of contemptuous conduct.

Prior to Watergate, no executive branch official had ever been the target of a criminal contempt proceeding.

Since 1975, however, 15 cabinet-level or senior executive officials have been cited for contempt for failure to testify or produce subpoenaed documents by either a subcommittee, a full committee, or by a house. 116

Nonetheless, the effectiveness of the criminal contempt process against executive branch officials remains uncertain.

For example, following a vote to hold EPA Administrator Anne Gorsuch Burford in contempt in 1982, DOJ questioned whether Congress could compel the U.S. Attorney to submit the citation to a grand jury.
117

In that case, the documents in question were turned over to Congress before the issue was litigated, leaving the question unanswered.

Similar issues arose during the contempt proceedings against Attorney General Eric Holder in 2012 and Attorney General William Barr and Secretary of Commerce Wilbur Ross in 2019.

Following a successful vote on a criminal contempt citation in each case, DOJ decided not to attempt to prosecute the cases.
118

The question of a U.S. Attorney’s “duty” under Section 192 to enforce contempt citations remains unresolved.

113 2 U.S.C. §192.

114 If the House or Senate is out of session, the contempt citation is filed with the Speaker of the House or the President of the Senate, respectively. See 2 U.S.C. §194.

115 See 2 U.S.C. §194.

116 The 15 officials are as follows: Secretary of State Henry Kissinger (1975); Secretary of Commerce Rogers C. B. Morton (1975); Secretary of Health, Education, and Welfare Joseph A Califano Jr. (1978); Secretary of Energy Charles Duncan (1980); Secretary of Energy James B. Edwards (1981); Secretary of the Interior James Watt (1982); EPA Administrator Anne Gorsuch Burford (1983); Attorney General William French Smith (1983); White House Counsel John M. Quinn (1996); Attorney General Janet Reno (1998); White House Counsel Harriet Miers (2008); White House Chief of Staff Joshua Bolton (2008); Attorney General Eric Holder (2012); Attorney General William Barr (2019); and Secretary of Commerce Wilbur Ross (2019). Additionally, Lois Lerner, former director of the Exempt Organizations unit in the Internal Revenue Service, was held in contempt in 2014.

117 See Prosecution for the Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101 (1984).

118 Letter from James M. Cole, Deputy Attorney General, to John Boehner, Speaker of the House, June 28, 2012,

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Statutory Civil Enforcement of Subpoenas in the Senate

As an alternative to both the inherent contempt power and criminal contempt, in 1978 Congress enacted a civil enforcement procedure that is applicable only to the Senate. 119

First, the statute gives the U.S. District Court for the District of Columbia jurisdiction over a civil action to enforce, secure a declaratory judgment concerning the validity of, or prevent a threatened failure or refusal to comply with any subpoena or order issued by the Senate or a Senate committee or subcommittee. 120

Upon approval of a Senate resolution, the Senate Office of Legal Counsel is approved to bring suit seeking one of these remedies.

However, this statutory civil enforcement procedure does not apply to subpoenas issued to officers or employees of the executive branch. 121

If the court orders enforcement of the subpoena and the individual still refuses to comply, he or she may be tried by the court in summary proceedings for contempt of court, with sanctions being imposed to coerce compliance. 122

This civil enforcement procedure provides an element of flexibility, allowing the subpoenaed party to raise possible constitutional and other defenses to the subpoena without risking a criminal prosecution.

Since the statute’s enactment in 1979, the Senate has authorized the Office of Senate Legal Counsel to seek civil enforcement of a subpoena for documents or testimony at least six times, the last in 1995. 123

None of these actions was brought against executive branch officials.

Civil Enforcement of Subpoenas in the House

While the House cannot pursue actions under the Senate’s civil enforcement statute discussed above, it can pursue civil enforcement under certain circumstances.

The full House may adopt a resolution finding the person in contempt and authorizing the committee and/or the House general counsel to pursue a civil action in federal district court against the contumacious witness.

In addition, the Bipartisan Legal Advisory Group may authorize the chair of a standing or permanent select committee to pursue a civil action for the same purposes. 124

The committee or the House general counsel then files suit in the appropriate federal district court, requesting declaratory and/or injunctive relief to enforce the subpoena.

This civil enforcement procedure has been employed three times: in 2008 against George W. Bush Administration officials Harriet Miers and Joshua Bolten, in 2012 against Attorney General Eric Holder, and in 2019 against Attorney General William Barr and former White House Counsel Donald McGahn II. 125

118 http://oversight.house.gov/wp-content/u ... oehner.pdf (regarding Attorney General Holder). Letter from Jeffrey A. Rosen, Deputy Attorney General, to Nancy Pelosi, Speaker of the House, July 24, 2019 (regarding Attorney General Barr and Secretary Ross).

119 Ethics in Government Act of 1978, P.L. 95-521, §§703, 705, 92 Stat. 1877-80 (1978) (codified as amended at 2 U.S.C. §§288b(b) 288d and 28 U.S.C. §1365 (2012)).

120 28 U.S.C. §1365.

121 28 U.S.C. §1365.

122 The act specifies that “an action, contempt proceeding, or sanction … shall not abate upon adjournment sine die by the Senate at the end of a Congress if the Senate or the committee or subcommittee … certifies to the court that it maintains its interest in securing the documents, answers, or testimony during such adjournment” (28 U.S.C. §1365(b) (2012)). In the first case brought under the new procedure, the witness unsuccessfully argued that the possibility of “indefinite incarceration” violated the due process and equal protection provisions of the Constitution and allowed for cruel and unusual punishment. Application of the U.S. Senate Permanent Subcommittee on Investigations, 655 F.2d 1232 (D.C. Cir.), cert. denied, 454 U.S. 1084 (1981).

123 See CRS Report RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey, Table A-3 (Floor Votes on Civil Enforcement Resolutions in the Senate, 1980-Present).

124 House Rule II(8)(b).

125 See generally Committee on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008); Committee on Oversight and Government Reform, U.S. House of Representatives v. Holder, 973 F. Supp. 2d 1 (D.D.C. 2013); H.Res. 430.

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Re: CONGRESSIONAL OVERSIGHT MANUAL

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Congressional Oversight Manual, continued ...

Updated January 16, 2020

Congressional Research Service

Perjury and False Statement Prosecutions

Testimony Under Oath


A witness under oath before a congressional committee who willfully gives false testimony is subject to prosecution for perjury pursuant to Title 18, Section 1621, of the U.S. Code.

The false statement must be “willfully” made before a “competent tribunal” and involve a “material matter.” 126

For a legislative committee to be competent for perjury purposes, a quorum must be present. 127

Both houses have adopted rules establishing less than a majority of members as a quorum for taking testimony, normally two members for House committees 128 and one member for Senate committees. 129

The requisite quorum must be present at the time the alleged perjurious statement is made, not merely at the time the session convenes. 130

Unsworn Statements

Most statements made before Congress, at both the investigatory and hearing phases of oversight, are unsworn.

The practice of swearing in all witnesses at hearings is infrequent.

Prosecutions may be brought to punish congressional witnesses for giving willfully false testimony not under oath.

Under Title 18, Section 1001, of the U.S. Code, false statements by a person in “any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House and Senate” are punishable by a fine of up to $250,000 or imprisonment for not more than five years, or both. 131

126 18 U.S.C. §1621(a).

127 Christoffel v. United States, 338 U.S. 84, 90 (1949).

128 House Rule XI(2)(h)(2).

129 Senate Rule XXVI(7)(a)(2) allows its committees to set a quorum requirement at less than the normal one-third for taking sworn testimony. Almost all Senate committees have set the quorum requirement at one member.

130 Christoffel, 338 U.S. at 90.

131 18 U.S.C §1001 (2006).

TO BE CONTINUED ...
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Re: CONGRESSIONAL OVERSIGHT MANUAL

Post by thelivyjr »

Congressional Oversight Manual, continued ...

Updated January 16, 2020

Congressional Research Service

Limitations on Congressional Authority

Constitutional Limitations

There are constitutional limits not only on Congress’s legislative powers but also on its oversight and investigative powers.

The Supreme Court has observed that “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.” 132

This section discusses provisions that may limit Congress’s oversight authority.

132 Barenblatt v. United States, 360 U.S. 109, 112 (1959).

TO BE CONTINUED ...
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