Summary
The adversarial, often confrontational, and sometimes high
profile nature of congressional investigations sets it apart from the more routine,
accommodative facets of the oversight process experienced in authorization, appropriations
or confirmation exercises. While all aspects of legislative oversight share the common
goals of informing Congress so as to best accomplish its tasks of developing legislation,
monitoring the implementation of public policy, and of disclosing to the public how its
government is performing, the inquisitorial process also sustains and vindicates Congress'
role in our constitutional scheme of separated powers and checks and balances. The rich
history of congressional investigations from the failed St. Clair expedition in 1792
through Teapot Dome, Watergate, Iran-Contra and Whitewater has established, in law and
practice, the nature and contours of congressional prerogatives necessary to maintain the
integrity of the legislative role in that constitutional scheme.
This report will provide an overview of some of the more
common legal, procedural and practical issues, questions, and problems that committees
have faced in the course of an investigation. Following a summary of the case law
developing the scope and limitations of the power of inquiry, the essential tools of
investigative oversight--subpoenas, staff interviews and depositions, grants of immunity,
and the contempt power -- are described. Next, some of the special problems of
investigating the executive are detailed, with particular emphasis on claims of
presidential executive privilege, the problems raised by attempts to access information
with respect to open or closed civil or criminal investigative matters, or to obtain
information that is part of the agency deliberative process, and the effect on
congressional access of statutory prohibitions on public disclosure. The discussion then
focuses on various procedural and legal requirements that accompany the preparation for,
and conduct of, an investigative hearing, including matters concerning jurisdiction,
particular rules and requirements for the conduct of such proceedings, and the nature,
applicability and scope of certain constitutional and common law testimonial privileges
that may be claimed by witnesses. The case law and practice respecting the rights of
minority party members during the investigative process is also reviewed. The report
concludes with a description of the roles played by the offices of House General Counsel
and Senate Legal Counsel in such investigations.
I. INTRODUCTION
The adversarial, often confrontational, and sometimes high
profile nature of congressional investigations sets it apart from the more routine,
accommodative facets of the oversight process experienced in authorization, appropriations
or confirmation exercises.(1) While all aspects
of legislative oversight share the common goals of informing Congress so as to best
accomplish its tasks of developing legislation, monitoring the implementation of public
policy, and of disclosing to the public how its government is performing, the
inquisitorial process also sustains and vindicates Congress' role in our constitutional
scheme of separated powers and checks and balances. The rich history of congressional
investigations from the failed St. Clair expedition in 1792 through Teapot Dome,
Watergate, Iran-Contra and Whitewater has established, in law and practice, the nature and
contours of congressional prerogatives necessary to maintain the integrity of the
legislative role in that constitutional scheme.
This report will provide an overview of some of the more
common legal, procedural and practical issues, questions, and problems that committees
have faced in the course of an investigation. Following a summary of the case law
developing the scope and limitations of the power of inquiry, the essential tools of
investigative oversight--subpoenas, staff interviews and depositions, grants of immunity,
and the contempt power -- are described. Next, some of the special problems of
investigating the executive are detailed, with particular emphasis on claims of
presidential executive privilege, the problems raised by attempts to access information
with respect to open or closed civil or criminal investigative matters, or to obtain
information that is part of the agency deliberative process, and the effect on
congressional access of statutory prohibitions on public disclosure. The discussion then
focuses on various procedural and legal requirements that accompany the preparation for,
and conduct of, an investigative hearing, including matters concerning jurisdiction,
particular rules and requirements for the conduct of such proceedings, and the nature,
applicability and scope of certain constitutional and common law testimonial privileges
that may be claimed by witnesses. The case law and practice respecting the rights of
minority party members during the investigative process is also reviewed. The report
concludes with a description of the roles played by the offices of House General Counsel
and Senate Legal Counsel in such investigations.
II. THE LEGAL BASIS FOR OVERSIGHT
Numerous Supreme Court precedents establish and support a
broad and encompassing power in the Congress to engage in oversight and investigation that
reaches all sources of information that enable it to carry out its legislative function.
In the absence of a countervailing constitutional privilege or a self-imposed statutory
restriction upon its authority, Congress and its committees, have virtually, plenary power
to compel information needed to discharge its legislative function from executive
agencies, private persons and organizations, and within certain constraints, the
information so obtained may be made public.
More particularly, although there is no express provision
of the Constitution which specifically authorizes the Congress to conduct investigations
and take testimony for the purposes of performing its legitimate functions, numerous
decisions of the Supreme Court have firmly established that the investigatory power of
Congress is so essential to the legislative function as to be implicit in the general
vesting of legislative power in Congress.(2)
Thus, in Eastland v. United States Servicemen's Fund the Court explained that
"[t]he scope of its power of inquiry ... is as penetrating and far-reaching as the
potential power to enact and appropriate under the Constitution."(3) In Watkins v. United States the Court further
described the breadth of the power of inquiry: "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 statues."(4) The Court went on to
emphasize that Congress' investigative power is at its peak when the subject is alleged
waste, fraud, abuse, or maladministration within a government department. The
investigative power, it stated, "comprehends probes into departments of the Federal
Government to expose corruption, inefficiency, or waste."(5)
"[T]he first Congresses", it continued, held "inquiries dealing with
suspected corruption or mismanagement of government officials"(6) and subsequently, in a series of decisions, "[t]he Court
recognized the danger to effective and honest conduct of the Government if the legislative
power to probe corruption in the Executive Branch were unduly hampered."(7) Accordingly, the Court stated, it recognizes
"the power of the Congress to inquire into and publicize corruption,
maladministration, or inefficiencies in the agencies of Government."(8)
But while the congressional power of inquiry is broad, it
is not unlimited. The Supreme Court has admonished that the power to investigate may be
exercised only "in aid of the legislative function"(9)
and cannot be used to expose for the sake of exposure alone. The Watkins Court
underlined these limitations: "There is no general authority to expose the private
affairs of individuals without justification in terms of the functions of the Congress ...
nor is the Congress a law enforcement or trial agency. These are functions of the
executive and judicial departments of government. No inquiry is an end in itself, it must
be related to, and in furtherance of, a legitimate task of the Congress."(10) Moreover, an investigating committee has only
the power to inquire into matters within the scope of the authority delegated to it by its
parent body.(11) But once having established
its jurisdiction and authority, and the pertinence of the matter under inquiry to its area
of authority, a committee's investigative purview is substantial and wide-ranging.(12)
The foundation cases establishing Congress' broad power to
probe are illustrative and illuminating. They arose out of the Teapot Dome investigations,
the 1920's scandal regarding oil company payoffs to officials in the Harding
Administration. A major concern of the congressional oversight investigation was the
failure of Attorney General Harry M. Daugherty's Justice Department to prosecute the
alleged government malefactors. When congressional committees attempting to investigate
came up against refusals by subpoenaed witnesses to provide information, the issue went to
the Supreme Court and provided it with the opportunity to issue a seminal decision
describing the constitutional basis and reach of congressional oversight. In McGrain
v. Daugherty,(13) the Supreme Court
focused specifically on Congress' authority to study "charges of misfeasance and
nonfeasance in the Department of Justice." The Court noted with approval that
"the subject to be investigated" by the congressional committee "was the
administration of the Department of Justice -- whether its functions were being properly
discharged or were being neglected or misdirected, and particularly whether the Attorney
General and his assistants were performing or neglecting their duties in respect of the
institution and prosecution of proceedings to punish crimes ...."(14) In its decision, the Court sustained the contempt arrest of
the Attorney General's brother for withholding information from Congress, since Congress
"would be materially aided by the information which the investigation was calculated
to elicit."(15) Thus, the Supreme Court
unequivocally precluded any blanket claim by the Executive that oversight could be barred
regarding "whether the Attorney General and his assistants were performing or
neglecting their duties in respect of the institution and prosecution of
proceedings."(16)
In another Teapot Dome case that reached the Supreme Court,
Sinclair v. United States,(17) a
different witness at the congressional hearings refused to provide answers, and was
prosecuted for contempt of Congress. The witness had noted that a lawsuit had been
commenced between the government and the Mammoth Oil Company, and declared, "I shall
reserve any evidence I may be able to give for those courts. . . and shall respectfully
decline to answer any questions propounded by your committee."(18) The Supreme Court upheld the witness's conviction for
contempt of Congress. The Court considered and rejected in unequivocal terms the witness's
contention that the pendency of lawsuits gave an excuse for withholding information.
Neither the laws directing that such lawsuits be instituted, nor the lawsuits themselves,
"operated to divest the Senate, or the committee, of power further to investigate the
actual administration of the land laws."(19)
The Court further explained: "It may be conceded that
Congress is without authority to compel disclosures for the purpose of aiding the
prosecution of pending suits; but the authority of that body, directly or through its
committees, 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."(20) In other words, those persons
having evidence in their possession, including officers and employees of executive
agencies, can not lawfully assert that because lawsuits are pending involving the
government, "the authority of [the Congress], directly or through its committees, to
require pertinent disclosures" is somehow "abridged."
The Supreme Court in the Teapot Dome cases therefore
enunciated in the clearest manner the independence of Congress' power to probe. The
coincidental focus on the Justice Department and the ability of committees to look deeply
into all aspects of its sensitive law enforcement function underlines the potential
breadth of that power with respect to other Executive Branch agencies and private sector
entities as well.
III. THE TOOLS OF OVERSIGHT
A. The Subpoena Power
The power of inquiry, with the accompanying process to
enforce it, has been deemed "an essential and appropriate auxiliary to the
legislative function."(21) A properly
authorized subpoena issued by a committee or subcommittee has the some force or effect as
a subpoena issued by the parent House itself.(22)
To validly issue a subpoena, individual committees or subcommittees must be delegated this
authority. Both Senate(23) and House(24) rules presently empower all standing
committees and subcommittee to require 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.(25)
The rules or practices of standing committees may restrict the issuance of subpoenas only
to full committees or in certain instances allow issuance by a committee chairman alone,
with or without the concurrence of the ranking minority member.
As previously indicated, committees may issue subpoenas in
furtherance of an investigation within their subject matter jurisdiction as defined by
Senate(26) and House(27)
rules which confer both legislative and oversight jurisdiction. Subpoenas may be issued on
the basis of either source of authority.
Congressional subpoenas are most frequently served by the
U.S. Marshal's office or by committee staff, or less frequently by the Senate or House
Sergeants-at-Arms. Service may be effected anywhere in the United States. The subpoena
power reaches aliens present in the United States.(28)
Securing compliance of United States nationals and aliens residing in foreign countries
presents more complex problems.(29)
A witness seeking to challenge the legal sufficiency of a
subpoena, i.e., the committee's authority, alleged constitutional rights
violations, subpoena breadth, has only limited remedies available to raise such
objections. The Supreme Court has ruled that courts may not enjoin the issuance of a
congressional subpoena, holding that the Speech or Debate Clause of the Constitution(30) provides "an absolute bar to judicial
interference" with such compulsory process.(31)
As a consequence, a witness' sole remedy generally is to refuse to comply, risk being
cited for contempt, and then raise objections as a defense in a contempt prosecution.
Challenges to the legal sufficiency of subpoenas must
overcome formidable judicial obstacles. The standard to be applied in determining whether
the congressional investigating power has been properly asserted was articulated in Wilkinson
v. United States: (1) the committee's investigation of the broad subject matter
area must be authorized by Congress; (2) the investigation must be pursuant to "a
valid legislative purpose"; and (3) the specific inquiries must be pertinent to the
broad subject matter areas which have been authorized by the Congress.(32)
With respect to authorization, a committee's authority
derives from the enabling rule or resolution of its parent body. In construing the scope
of such authorizations, the Supreme Court has adopted a mode of analysis not unlike that
ordinarily followed in determining the meaning of a statute: it looks first to the words
of the authorizing rule or resolution itself, and then, if necessary, to the usual sources
of legislative history, including floor statements, reports and past committee practice.(33)
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.(34) When the purpose asserted is supported by reference to
specific problems which in the past have been, or in the future may be, the subject of
appropriate legislation, it has been held that a court cannot say that a committee of
Congress exceeds its power when it seeks information in such areas.(35)
Finally, in determining the pertinency of questions to the
subject matter under investigation, the courts have required only that the specific
inquiries be reasonably related to the subject matter under investigation.(36) An argument that pertinence must be shown "with the
degree of explicitness and clarity required by the Due Process Clause" has been held
to confuse the standard applicable in those rare cases when the constitutional rights of
individuals are implicated by congressional investigations with the far more common
situation of the exercise of legislative oversight over the administration of the law
which does not involve an individual constitutional right or prerogative. It is, of
course, well established that the courts will intervene to protect constitutional rights
from infringement by Congress, including its committees and members.(37) But "[w]here constitutional rights are not violated,
there is no warrant to interfere with the internal procedures of Congress."(38)
B. Staff Depositions
Committees normally rely on informal staff interviews to
gather information preparatory to investigatory hearings. However, with more frequency in
recent years, congressional committees have utilized staff conducted depositions as a tool
in exercising the investigatory power.(39)
Staff depositions afford a number of advantages for committees engaged in complex
investigations. Staff depositions may assist committees in obtaining sworn testimony
quickly and confidentially without the necessity of Members devoting time to lengthy
hearings which may be unproductive because witnesses do not have the facts needed by the
committee or refuse to cooperate. Depositions are conducted in private and may be more
conducive to candid responses than would be the case at a public hearing. Statements made
by witnesses that might defame or even tend to incriminate third parties can be verified
before they are repeated in an open hearing. Depositions can enable a committee to prepare
for the questioning of witnesses at a hearing or provide a screening process which can
obviate the need to call some witnesses. The deposition process also allows questioning of
witnesses outside of Washington thereby avoiding the inconvenience of conducting field
hearings requiring the presence of Members.
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. Finally, in the current absence of any definitive case law precedent, legal
questions may be raised concerning the ability to enforce a subpoena for a staff
deposition by means of contempt sanctions, and to the applicability to such a deposition
of various statutes that proscribe false material statements.(40)
At present neither House has rules that expressly authorize
staff depositions. On a number of occasions such specific authority has been granted
pursuant to Senate and House resolutions.(41)
When granted, a committee will normally adopt procedures for taking depositions, 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.(42)
C. Congressional Grants of 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 ... " The privilege against self-incrimination is available to a witness in a
congressional investigation.(43) When a witness
before a committee asserts his constitutional privilege, the committee may obtain a court
order which compels him to testify and grants him immunity against the use of his
testimony and information derived from that testimony in a subsequent criminal
prosecution. He may still be prosecuted on the basis of other evidence.
The privilege against self-incrimination is an exception to
the public's right to every person's evidence. However, a witness' Fifth Amendment
privilege can be restricted if the government chooses to grant him immunity. Immunity is
considered to provide the witness with the constitutional equivalent of his Fifth
Amendment privilege.(44) Immunity grants may be
required in the course of an investigation because "many offenses are of such a
character that the only persons capable of giving useful testimony are those implicated in
the crime."(45) Such grants may be
militated when a committee is convinced that the testimony elicited will produce new or
vital facts that would otherwise be unavailable or to allow a witness to implicate persons
of greater rank or authority. Grants of immunity have figured prominently in a number of
major congressional investigations, including Watergate (John Dean and Jeb Magruder) and
Iran-Contra (Oliver North and John Poindexter).
The scope of the immunity which is granted, and the
procedure to be employed, are outlined in 18 U.S.C. §§ 6002, 6005. If a witness before
the House or Senate or a committee or subcommittee of either body asserts his privilege,
or if a witness who has not yet been called is expected to assert his privilege, an
authorized representative of the House or of the committee may apply to a federal district
court for an order directing the individual to testify or provide other information sought
by the Congress.(46) If the testimony is to be
before the full House or Senate, the request for the court order must be approved by an
affirmative vote of a majority of the Members present of the House or Senate. If the
testimony is to be given before a committee or subcommittee, the request for the order
must be approved by an affirmative vote of two-thirds of the Members of the full
committee.(47)
At least ten days prior to applying to the court for the
order, the Attorney General(48) must be
notified of the Congress' intent to seek the order,(49)
and issuance of the order will be delayed by the court for as much as twenty additional
days at the request of the Attorney General.(50)
Notice to the Attorney General is required so that he can identify in his files any
information which would provide an independent basis for prosecuting the witness, and
place that information under seal. Neither the Attorney General nor an independent counsel
would have a right to veto a committee's application for immunity.(51) The role of the court in issuing the order is ministerial
and therefore, if the procedural requirements under the statutes are met, the court may
not refuse to issue the order or impose conditions on the grant of immunity.(52) However, although the court lacks power to
review the advisability of granting immunity, it might be able to 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.(53)
After an immunity order has been issued by the court and
communicated to the witness by the chairman, the witness can no longer decline to testify
on the basis of his privilege, "but no testimony or other information compelled under
the order (or any information directly or indirectly derived from such testimony or other
information) may be used against the witness in any criminal case, except a prosecution
for perjury, giving a false statement, or otherwise failing to comply with the
order."(54) The immunity that is granted
is "use" immunity, not "transactional" immunity.(55) That is, neither the immunized testimony that the witness
gives to the committee, nor information derived from that testimony, may be used against
him in a subsequent criminal prosecution, except one for falsely testifying to the
committee or for contempt. However, he may be convicted of the crime (the
"transaction") on the basis of evidence independently obtained by the
prosecution and sealed before his congressional testimony, and/or on the basis of
information obtained after his congressional appearance but which was not derived, either
directly or indirectly, from his congressional testimony.
In determining whether to grant immunity to a witness, a
committee may consider, on the one hand, its need for his testimony in order to perform
its legislative, oversight, and informing functions, and on the other, the possibility
that the witness' immunized congressional testimony could jeopardize a successful criminal
prosecution against him. If a witness is prosecuted after giving immunized testimony, the
burden is on the prosecutor to establish that the case was not based on the witness'
previous testimony or evidence derived therefrom.(56)
Recent appellate court decisions reversing the convictions
of key Iran-Contra figures Lt. Colonel Oliver North(57)
and Rear Admiral John Poindexter(58) appear to
make the prosecutorial burden substantially more difficult, if not insurmountable, in high
profile cases. Despite extraordinary efforts by the Independent Counsel and his staff to
avoid being exposed to any of North's or Poindexter's immunized congressional testimony,
and the submission of sealed packets of evidence to the district court to show that the
material was obtained independently of any immunized testimony to Congress, the appeals
court in both cases remanded the cases for a further determination whether the prosecution
had directly or indirectly used immunized testimony.
The court of appeals in North emphasized that the
insulation of the prosecution from exposure to the immunized congressional testimony does
not automatically prove that this testimony was not used against the defendant.(59) The court held that "Kastigar
is instead violated whenever the prosecution puts on a witness whose testimony is shaped,
directly or indirectly, by compelled testimony, regardless of how or by whom he was
exposed to that compelled testimony."(60)
From this the court reasoned that "the use of immunized testimony . . . to augment or
refresh recollection is an evidentiary use" and must therefore be strictly
scrutinized under the Kastigar standard.(61)
Thus, the court of appeals held that the presentation of "testimony of grand jury or
trial witnesses that has been derived from or influenced by the [defendant's] immunized
testimony" was a forbidden use of the compelled testimony under both the Fifth
Amendment and Kastigar.(62)
Upon remanding the case to the district court, the court of
appeals insisted that a strict application of the Kastigar test be applied to the
government's evidence if the prosecution of North was to continue. The lower
court was required to hold a full Kastigar hearing that would:
inquire into the content as well as the sources of the
grand jury and trial witnesses' testimony. That inquiry must proceed witness-by-witness;
if necessary, it will proceed line-by-line and item-by-item. For each grand jury and trial
witness, the prosecution must show by a preponderance of the evidence that no use
whatsoever was made of any of the immunized testimony either by the witness or by the
Office of Independent Counsel in questioning the witness. This burden may be met by
establishing that the witness was never exposed to North's immunized testimony, or that
the allegedly tainted testimony contains no evidence not "canned" by the
prosecution before such exposure occurred.(63)
Similarly, in Poindexter, the D.C. Circuit Court
of Appeals reversed all five of Poindexter's convictions because the Independent Counsel
failed to show that Poindexter's compelled testimony was not used against him at his
trial, in violation of 18 U.S.C. § 6002 and the Fifth Amendment.(64) Relying on the North standards outlined above, the
appeals court held that the testimony of many of the prosecution's key witnesses,
including that of Oliver North himself, was impermissibly influenced by the witnesses'
exposure to Poindexter's immunized testimony for purposes of refreshment.(65) Upon remand in both cases, the Independent Counsel moved to
dismiss the prosecutions upon his determination that he could not meet the strict
standards set by the appeals court in its decisions.
While the North and Poindexter rulings in
no way diminish a committee's authority to immunize testimony or the manner in which it
secures immunity pursuant to the statute, it does alter the calculus as to whether to seek
such immunity. Independent Counsel Lawrence E. Walsh observed that "[t]he 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."(66) It has been argued that
the constitutional dimensions of the crisis created by the Iran-Contra affair required the
type of quick, decisive disclosures that could result from a congressional investigation
but not from the slower, more deliberate criminal investigation and prosecution process.(67) Under this view, the demands of a national
crisis may justify sacrificing the criminal prosecution of those involved in order to
allow Congress to uncover and make public the truth of the matter at issue. The role of
Congress as overseer, informer, and legislator arguably warrants this sacrifice. The
question becomes more difficult as the sense of national crisis in a particular
circumstance is less acute, and the object is, for example, to trade-off a lesser figure
in order to reach someone higher up in a matter involving "simple" fraud, abuse
or maladministration at an agency. In the end, case-by-case assessments by congressional
investigators will be needed, guided by the sensitivity that these are political
judgments.
IV. ENFORCEMENT OF THE INVESTIGATIVE
POWER
A. The Contempt Power
While the threat or actual issuance of a subpoena often
provides sufficient leverage for effective compliance with investigative information
demands, it is through the contempt power that Congress may act with ultimate force in
response to actions which obstruct the legislative process in order to punish the
contemnor and/or to remove the obstruction. The Supreme Court early recognized the power
as an inherent attribute of Congress' 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."(68)
There are three different kinds of contempt proceedings
available. Both the House and Senate may cite a witness for contempt under their inherent
contempt power or under a statutory criminal contempt procedure. The Senate also has a
third option, enforcement by means of a statutory civil contempt procedure. The three
proceedings may be briefly described.(69)
(1) 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 can be imprisoned in the Capitol jail. The purpose of the imprisonment or other
sanction may be either punitive or coercive. 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 end of the Congress) until he agrees to comply. When a
witness is cited for contempt under the inherent contempt process, prompt judicial review
is available by means of a petition for a writ of habeas corpus. In an inherent
contempt proceeding, although Congress would not have to afford the contemnor the whole
panoply of procedural rights available to a defendant in a criminal case, notice and an
opportunity to be heard would have to be granted. Also, some of the requirements imposed
by the courts under the statutory criminal contempt procedure might be mandated by the due
process clause in the case of inherent contempt proceedings.(70)
The inherent contempt power has not been exercised by
either House in over sixty years because it has been considered to be too cumbersome and
time consuming for a modern Congress with a heavy legislative workload that would be
interrupted by a trial at the bar.
(2) Statutory Contempt
Recognizing the problems with use of the inherent contempt
process, a statutory criminal contempt procedure was enacted in 1857 which, with only
minor amendments, is codified today at 2 U.S.C. §§192 and 194. Under 2 U.S.C. § 192, 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 $1,000 and imprisonment for up
to one year. Section 194 establishes the procedure to be followed if the House or Senate
refers a witness to the courts for criminal prosecution. A contempt citation must be
approved by the subcommittee, the full committee, and the full House or Senate (or by the
presiding officer if Congress is not in session). The criminal procedure is punitive in
nature. It is not coercive because a witness generally will not be able to purge himself
by testifying or supplying subpoenaed documents after he has been voted in contempt by the
committee and the House or the Senate. Under the statute, after a contempt has been
certified by the President of the Senate or the Speaker of the House, it is the
"duty" of the U.S. Attorney "to bring the matter before the grand jury for
its action." It remains unclear whether the "duty" of the U.S. Attorney to
present the contempt to the grand jury is mandatory or discretionary, since the sparse
case law that is relevant to the question provides conflicting guidance.(71)
This potential conflict between the statutory language of
§194 and the U.S. Attorney's prosecutorial discretion was highlighted by the inability of
the House of Representatives in 1982 to secure a contempt prosecution against the
Administrator of the Environmental Protection Agency, Ann Burford. Burford, at the
direction of President Reagan, had asserted executive privilege as grounds for refusing to
respond to a subpoena demand for documents. She was cited for contempt by the full House
and the contempt resolution was certified by the Speaker and forwarded to the U.S.
Attorney for the District of Columbia for presentment to the grand jury. Relying on his
prosecutorial discretion he deferred doing so.
The Burford controversy may be seen as unusual, involving
highly sensitive political issues of the time. In the vast majority of cases there is
likely to be no conflict between the interests of the two political branches, and the U.S.
Attorney can be expected to initiate prosecution in accordance with § 194.
(3) Civil Contempt
As an alternative to both the inherent contempt power of
each House and criminal contempt, Congress enacted a civil contempt procedure which is
applicable only to the Senate.(72) Upon
application of the Senate,(73) the federal
district court is to issue an order to a person refusing, or threatening to refuse, to
comply with a Senate subpoena. If the individual still refuses to comply, he may be tried
by the court in summary proceedings for contempt of court, with sanctions being imposed to
coerce his compliance. Civil contempt might be employed when the Senate is more concerned
with securing compliance with the subpoena or with clarifying legal issues than with
punishing the contemnor. Civil contempt can be more expeditious than a criminal proceeding
and it also provides an element of flexibility, allowing the subpoenaed party to test his
legal defenses in court without necessarily risking a criminal prosecution. Civil contempt
is not authorized for use against executive branch officials refusing to comply with a
subpoena.
(4) Alternatives to Contempt
When an executive branch official refuses to comply with a
congressional subpoena and the dispute cannot be resolved by negotiation and compromise,
none of the three types of contempt proceedings may be completely satisfactory. The
statutory civil contempt procedure in the Senate is inapplicable in the case of a subpoena
to an executive branch official. Inherent contempt has been described as
"unseemly" and cumbersome. And if the criminal contempt method is utilized, the
U.S. Attorney, who is an executive branch appointee may, as occurred in the Burford case,
rely on the doctrine of prosecutorial discretion as grounds for deferring seeking an
indictment. There are, however, various alternatives to the three modes of contempt in the
case of an executive branch official. (1) The contemnor could be cited for criminal
contempt and be prosecuted by an independent counsel, rather than by the U.S. Attorney, if
the standards under the law governing the appointment of such counsels are satisfied; (2)
the committee can seek declaratory or other relief in the courts; (3) the appropriations
for the agency or department involved can be cut off or reduced when requested information
has not been supplied; and (4) in an exceptional case, the official might be impeached.
B. Perjury and False Statements
Prosecutions
(1) Testimony Under Oath
A witness under oath before a congressional committee who
willfully gives false testimony is subject to prosecution for perjury under 18 U.S.C. 1621
of the United States Code. The essential elements for such prosecution are: (1) a false
statement, (2) "willfully" made, (3) before a "competent tribunal",
(4) involving a "material matter." The requirement of a competent tribunal is
important to note because it is an element of the offense within the particular control of
committees.
For a legislative committee to be competent for perjury
purposes a quorum must be present.(74) The
problem has been ameliorated in recent years with the adoption of rules establishing less
than a majority of Members as a quorum for taking testimony, normally two members for
House committees(75) and one member for Senate
committees.(76) The requisite quorum must be
present at the time the alleged perjurious statement is made, not merely at the time the
session convenes. No prosecution for perjury will lie for statements made only in the
presence of committee staff unless the committee has deposition authority and has taken
formal action to allow it.
(2) 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 a rare practice. But prosecutions may be brought to punish
congressional witnesses for giving willfully false testimony not under oath. Under 18
U.S.C. 1001 false statements before a "department or agency of the United
States" are punishable by a fine of up to $10,000 or imprisonment up to five years,
or both. The courts have held that section 1001 is applicable to false statements made to
congressional committees.(77)
Until recently it was thought that 18 U.S.C. 1505, which
proscribes attempts to obstruct congressional proceedings, was applicable to unsworn false
statements. However, the Court of Appeals for the District of Columbia Circuit ruled in
1991 that section 1505 applies only to corrupt efforts to obstruct congressional inquiries
by subverting witnesses, not to false statements by the defendant himself in such
proceedings.(78)
V. INVESTIGATING THE EXECUTIVE BRANCH
When Congress directs its investigatory powers at Executive
Branch departments and agencies, and at times at the White House itself, such probes have
often become contentious, provoking the Executive to assert rights to shield from
disclosure information Congress deems essential to carry out its oversight functions. The
variety of grounds proffered are often lumped in an undifferentiated manner under the
rubric "executive privilege". However, in order to evaluate and assess the
weight of such withholding claims, it is more useful, and accurate, to distinguish between
claims that have a constitutional basis and those that do not, and then to separate out
amongst the non-constitutional claims those based on law from those resting on executive
policy preferences.
A. Presidential Claims of Executive
Privilege
In some, rare, instances the executive response to a
congressional demand to produce information may be an assertion of presidential executive
privilege, a doctrine which, like Congress' powers to investigate and cite for contempt,
has constitutional roots. No decision of the Supreme Court has yet resolved the question
whether there are any circumstances in which the Executive Branch can refuse to provide
information sought by the Congress on the basis of executive privilege. Indeed, most such
disputes are settled short of litigation through employment of the political process and
negotiations,(79) and the few that reach a
judicial forum find the courts highly reluctant to rule on the merits.(80) However, in United States v. Nixon,(81) involving a judicial subpoena issued to the
President at the request of the Watergate Special Prosecutor,(82)
the Supreme Court found a constitutional basis for the doctrine of executive privilege in
"the supremacy of each branch within its own assigned area of constitutional
duties" and in the separation of powers,(83)
and although it considered presidential communications with close advisors to be
"presumptively privileged," the Court rejected the President's contention that
the privilege was absolute, precluding judicial review whenever it is asserted.(84)
Having concluded that in the case before it the claim of
privilege was not absolute, the Court resolved the "competing interests" (the
President's need for confidentiality vs. the judiciary's need for the materials in a
criminal proceeding) "in a manner that preserves the essential functions of each
branch,"(85) and held that the judicial
need for the tapes outweighed the President's "generalized interest in
confidentiality ..." (86) The Court was
careful to limit the scope of its decision, noting that "we are not here concerned
with the balance between the President's generalized interest in confidentiality ... and
congressional demands for information".(87)
Although United States v. Nixon did not involve a
presidential claim of executive privilege in response to a congressional subpoena, in Senate
Select Committee on Presidential Campaign Activities v. Nixon,(88) the court of appeals, prior to the Nixon ruling,
reviewed the President's assertion of executive privilege as grounds for not complying
with a Senate committee subpoena for tape recordings.(89)
The appeals court found that "the presumption that the public interest favors
confidentiality [in presidential communications] can be defeated only by a strong showing
of need by another institution of government--a showing that the responsibilities of that
institution cannot responsibly be fulfilled without access to records of the President's
deliberations . . . ." According to the court, "the showing required to overcome
the presumption favoring confidentiality" rests "on the nature and
appropriateness of the function in the performance of which the material [is] sought, and
the degree to which the material [is] necessary to its fulfillment . . . . [T]he
sufficiency of the committee's showing must depend solely on whether the subpoenaed
evidence is demonstrably critical to the responsible fulfillment of the committee's
functions."(90) The court found that, in
the circumstances of that case, the need for the tapes was "merely cumulative"
in light of the fact that the House Judiciary Committee had begun an inquiry, with express
constitutional authority, into impeachment of the President, and the fact that the
Judiciary Committee already had copies of the tapes subpoenaed by the Senate Committee.(91)
Since the Kennedy Administration it has been established by
executive policy directives that presidential executive privilege may be asserted only by
the President personally. The latest such directive, issued by President Reagan in
November 1982,(92) and still in effect,
requires that when an agency head believes that a congressional information request raises
substantial questions of executive privilege he is to notify and consult with the Attorney
General and the Counsel to the President. If the matter is deemed to justify invocation of
the privilege, it is reported to the President who makes his decision. If the President
invokes the privilege, the agency head advises the requesting committee.
There has been only one instance in which the full House or
Senate has voted a contempt citation against the head of an executive department or
agency, that of Anne Gorsuch Burford, Administrator of the Environmental Protection
Agency, in 1982.(93) Several cabinet members
have been found in contempt by committees or subcommittees, although these disputes were
resolved before contempt votes by the parent body. In two instances, cabinet members were
cited for contempt by full committees.(94) Five
other cabinet secretaries have been cited for contempt by subcommittees.(95)
B. Effect of Statutory Prohibitions on
Public Disclosure on Congressional Access
Upon occasion Congress has found it necessary and
appropriate to limit its access to information it would normally be able to obtain by
exercise of its constitutional oversight prerogatives.(96)
But where a statutory confidentiality or non-disclosure provision barring public
disclosure of information is not explicitly applicable to the Congress, the courts have
consistently held that agencies and private parties may not deny Congress access to such
information on the basis of such provisions. (97)
Release to a congressional requestor is not deemed to be disclosure to the public
generally.(98) Moreover, courts may not require
agencies to delay the surrender of documents to Congress in order to give advance notice
to affected parties, "for the judiciary must refrain from slowing or otherwise
interfering with the legitimate investigating functions of Congress".(99) Once documents are in congressional hands, the courts have
held they must presume that the committees of Congress will exercise their powers
responsibly and with due regard for the rights of affected parties.(100) Nor may a court block congressional disclosure of
information obtained from an agency or private party, at least when disclosure would serve
a valid legislative purpose.(101) Finally,
the legal obligation to surrender requested documents has been held to arise from the
official request(102)
Executive agencies have in the past unsuccessfully raised
several statutes of general applicability as potential barriers to the disclosure of
information to congressional committees. Agencies have attempted to withhold documents on
the basis of the deliberative process exemption incorporated by Exemption 5 of the Freedom
of Information Act (FOIA).(103) But the
courts have made it plain that the agency privileges made applicable to public requesters
by Exemption 5, as well as all the other exemptions of the FOIA, are expressly
inapplicable to the legislature: "This section is not authority to withhold
information from Congress."(104) In Murphy
v. Department of the Army an appeals court explained that FOIA exemptions were no
basis for withholding from Congress because of "the obvious purpose of the Congress
to carve out for itself a special right of access to privileged information not shared by
others. Congress, whether as a body, through committees, or otherwise, must have the
widest possible access to executive branch information, if it is to perform its manifold
responsibilities effectively. If one consequence of the facilitation of such access is
that some information will be disclosed to congressional authorities but not to private
persons, that is but an incidental consequence of the need for informed and effective
lawmakers".(105) A similar provision in
the Privacy Act also prevents its use as a withholding vehicle against Congress.(106)
A frequently cited statute used to justify non-disclosure
is the Trade Secrets Act, 18 U.S.C. 1905, a criminal provision which generally proscribes
the disclosure of trade secrets and confidential business information by a federal officer
or employee "unless otherwise authorized by law." There is no indication in the
legislative history of its revision and codification that it was intended to prevent
agency disclosures to committees or to have it apply to Congress and its employees or any
other legislative branch support agency or its employees,(107)
and as a matter of statutory construction it would have been unusual for Congress to have
subjected, sub silento, its staff to criminal sanctions for such disclosures,
particularly in light of its well-established oversight and investigative prerogatives,
and its speech or debate privilege. In any event, there appears little doubt that
disclosure to Congress of proprietary information covered by § 1905 would be deemed to be
"authorized by law". The Supreme Court in Chrysler v. Brown(108) held that disclosure authorization can
stem from both congressional enactments and agency regulations. In this instance, there
are at least two potential sources of disclosure authorization. The first is 2 U.S.C.
190d, which directs all standing committees of the Congress to engage in continuous
legislative oversight of the administration and application of laws within their
respective jurisdictions, and "may require a Government agency" to assist in
doing so. In 1955, the Attorney General of the United States opined that the authorization
required by the Trade Secrets Act was "reasonably implied" under § 190d.(109) A second source is the rules of each House
authorizing committee oversight.
C. Accessing Information in Open and
Closed Civil and Criminal Cases: The Special Problem of Overseeing the Justice Department
Congressional oversight of the conduct of civil and
criminal enforcement matters by agencies, and most particularly the Department of Justice
(DOJ), has raised sensitive questions respecting the exercise of prosecutorial discretion
by the executive and interference with protected rights of individuals who may be the
subject of such enforcement actions. However, a review of congressional investigations
that have implicated DOJ or DOJ investigations over the past 70 years, from the Palmer
Raids and Teapot Dome to Watergate and through Iran-Contra and Rocky Flats,(110) demonstrates that DOJ has been
consistently obliged to submit to congressional oversight, regardless of whether
litigation is pending, so that Congress is not delayed unduly in investigating
misfeasance, malfeasance, or maladministration in DOJ or elsewhere. A number of these
inquiries spawned seminal Supreme Court rulings that today provide the legal foundation
for the broad congressional power of inquiry.(111)
All were contentious and involved Executive claims that committee demands for agency
documents and testimony were precluded on the basis of constitutional or common law
privilege or policy.
In the majority of instances reviewed, the testimony of
subordinate DOJ employees, such as line attorneys and FBI field agents, was taken formally
or informally, and included detailed testimony about specific instances of the
Department's failure to prosecute alleged meritorious cases. In all instances,
investigating committees were provided with documents respecting open or closed cases that
included prosecutorial memoranda, FBI investigative reports, summaries of FBI interviews,
memoranda and correspondence prepared during the pendency of cases, confidential
instructions outlining the procedures or guidelines to be followed for undercover
operations and the surveillance and arrests of suspects, and documents presented to grand
juries not protected from disclosure by Rule 6(e) of the Federal Rules of Criminal
Procedure, among other similar "sensitive" materials.
The reasons advanced by the Executive for declining to
provide information to Congress about civil proceedings have included avoiding prejudicial
pre-trial publicity, protecting the rights of innocent third parties, protecting the
identity of confidential informants, preventing disclosure of the government's strategy in
anticipated or pending judicial proceedings, the potentially chilling effect on the
exercise of prosecutorial discretion by DOJ attorneys, and precluding interference with
the President's constitutional duty to faithfully execute the laws.(112)
As has been recounted previously, the Supreme Court has
repeatedly reaffirmed the breadth of Congress' right to investigate the government's
conduct of criminal and civil litigation.(113)
The courts have also explicitly held that agencies may not deny Congress access to agency
documents, even in situations where the inquiry may result in the exposure of criminal
corruption or maladministration of agency officials. The Supreme Court has noted,
"[B]ut surely a congressional committee which is engaged in a legitimate legislative
investigation need not grind to a halt whenever responses to its inquiries might
potentially be harmful to a witness in some distinct proceeding . . . or when crime or
wrongdoing is exposed."(114) Nor does
the actual pendency of litigation disable Congress from the investigation of facts which
have a bearing on that litigation, where the information sought is needed to determine
what, if any, legislation should be enacted to prevent further ills.(115)
Although several lower court decisions have recognized that
congressional hearings may have the result of generating prejudicial pre-trial publicity,
they have not suggested that there are any constitutional or legal limitations on
Congress' right to conduct an investigation during the pendency of judicial proceedings.
Instead, the cases have suggested approaches, such as granting a continuance or a change
of venue, to deal with the publicity problem.(116)
For example, the court in one of the leading cases, Delaney v. United States,
entertained "no doubt that the committee acted lawfully, within the constitutional
powers of Congress duly delegated to it" but went on to describe the possible
consequences of concurrent executive and congressional investigations:
We think that the United States is put to a choice in this
matter: If the United States, through its legislative department, acting conscientiously
pursuant to its conception of the public interest, chooses to hold a public hearing
inevitably resulting in such damaging publicity prejudicial to a person awaiting trial on
a pending indictment, then the United States must accept the consequences that the
judicial department, charged with the duty of assuring the defendant a fair trial before
an impartial jury, may find it necessary to postpone the trial until by lapse of time the
danger of the prejudice may reasonably be thought to have been substantially removed.(117)
The Delaney court distinguished the case of a
congressional hearing generating publicity relating to an individual not under indictment
at the time (as was Delaney):
Such a situation may present important differences from the
instant case. In such a situation the investigative function of Congress has its greatest
utility: Congress it is informing itself so that it may take appropriate legislative
action; it is informing the Executive so that existing laws may be enforced; and it is
informing the public so that democratic processes may be brought to bear to correct any
disclosed executive laxity. Also, if as a result of such legislative hearing an indictment
is eventually procured against the public official, then in the normal case there would be
a much greater lapse of time between the publicity accompanying the public hearing and the
trial of the subsequently indicted official than would be the case if the legislative
hearing were held while the accused is awaiting trial on a pending indictment.(118)
The absence of indictment and the length of time between
congressional hearing and criminal trial have been factors in courts rejecting claims that
congressionally generated publicity prejudiced defendants.(119)
Finally, in the context of adjudicatory administrative proceedings, courts on occasion
have held that pressures emanating from questioning of agency decisionmakers by Members of
Congress may be sufficient to undermine the impartiality of the proceeding. (120) But the courts have also made clear that
mere inquiry and oversight of agency actions, including agency proceedings that are
quasi-adjudicatory in nature, will not be held to rise to the level of political pressure
designed to influence particular proceedings that would require judicial condemnation.(121)
Thus, the courts have recognized the potentially
prejudicial effect congressional hearings can have on pending cases. While not questioning
the prerogatives of Congress with respect to oversight and investigation, the cases pose a
choice for the Congress: congressionally generated publicity may result in harming the
prosecutorial effort of the Executive; but access to information under secure conditions
can fulfill the congressional power of investigation and at the same time need not be
inconsistent with the authority of the Executive to pursue its case. Nonetheless, it
remains a choice that is solely within Congress' discretion to make irrespective of the
consequences.(122)
In the past the executive frequently has made a broader
claim that prosecution is an inherently executive function and that congressional access
to information related to the exercise of that function is thereby limited. Prosecutorial
discretion is seen as off-limits to congressional inquiry and access demands are viewed as
interfering with the discretion traditionally enjoyed by the prosecutor with respect to
pursuing criminal cases.
Initially, it must be noted that the Supreme Court has
rejected the notion that prosecutorial discretion in criminal matters is an inherent or
core executive function. Rather, the Court noted in Morrison v. Olson, (123) sustaining the validity of the appointment
and removal conditions for independent counsels under the Ethics in Government Act, that
the independent counsel's prosecutorial powers are executive in that they have
"typically" been performed by Executive Branch officials, but held that the
exercise of prosecutorial discretion is in no way "central" to the functioning
of the Executive Branch.(124) The Court
therefore rejected a claim that insulating the independent counsel from at-will
presidential removal interfered with the President's duty to "take care" that
the laws be faithfully executed. Interestingly, the Morrison Court took the
occasion to reiterate the fundamental nature of Congress' oversight function (" . . .
receiving reports or other information and oversight of the independent counsel's
activities . . . [are] functions that we have recognized as generally incidental to the
legislative function of Congress," citing McGrain v. Daugherty.)(125)
The breadth of Morrison's ruling that the
prosecutorial function is not an exclusive function of the Executive was made clear in a
recent decision of the Ninth Circuit Court of Appeals in United States ex rel Kelly v. The
Boeing Co.,(126) which upheld, against a
broad based separation of powers attack, the constitutionality of the qui tam
provisions of the False Claims Act vesting enforcement functions against agencies by
private parties.(127)
Prosecution, not being a core or exclusive function of the
Executive, cannot claim the constitutional stature of Congress' oversight prerogative. In
the absence of a credible claim of encroachment or aggrandizement by the legislature of
essential Executive powers, the Supreme Court has held the appropriate judicial test is
one that determines whether the challenged legislative action "`prevents the
Executive Branch from accomplishing its assigned functions'," and, if so,
"`whether that impact is justified by an overriding need to promote objectives within
the constitutional authority of Congress'." (128)
Congressional oversight and access to documents and
testimony, unlike the action of a court, cannot stop a prosecution or set limits on the
management of a particular case. Access to information by itself would not seem to disturb
the authority and discretion of the Executive Branch to decide whether to prosecute a
case. The assertion of prosecutorial discretion in the face of a congressional demand for
information is arguably akin to the "generalized" claim of confidentiality made
in the Watergate executive privilege cases. That general claim -- lacking in specific
demonstration of disruption of Executive functions -- was held to be overcome by the more
focused demonstration of need for information by a coordinate branch of government.(129)
Given the legitimacy of congressional oversight and
investigation of the law enforcement agencies of government, and the need for access to
information pursuant to such activities, a claim of prosecutorial discretion by itself
would not seem to be sufficient to defeat a congressional need for information. The
congressional action itself does not and cannot dictate prosecutorial policy or decisions
in particular cases. Congress may enact statutes that influence prosecutorial policy and
information relating to enforcement of the laws would seem necessary to perform that
legislative function. Thus, under the standard enunciated in Morrison v. Olson
and Nixon v. Administrator of General Services, the fact that information is
sought on the Executive's enforcement of criminal laws would not in itself seem to
preclude congressional inquiry.
In light of the Supreme Court's consistent support of the
power of legislative inquiry, and in the absence of a countervailing constitutional
prerogative of the Executive, it is likely that a court will be "sensitive to the
legislative importance of congressional committees on oversight and investigations and
recognize that their interest in the objective and efficient operation of ... agencies
serves a legitimate and wholesome function with which we should not lightly
interfere."(130)
D. Access to Grand Jury Materials
Rule 6(e) of the Federal Rules of Criminal Procedure
provides that members of the grand jury and those who attend the grand jury in its
proceedings may not "disclose matters occurring before the grand jury, except as
otherwise provided in these rules."(131) The
prohibition does not ordinarily extend to witnesses. (132)
Violations are punishable as contempt of court. (133)
There is some authority for the proposition that Rule 6(e),
promulgated as an exercise of congressionally delegated authority and reflecting
pre-existing practices, is not intended to address disclosures to Congress. (134) As a general rule, however, neither
Congress nor the courts appear to have fully embraced the proposition.
But, not all matters presented to a grand jury are embraced
by the secrecy rule. Thus, "when testimony or data is sought for its own sake - for
its intrinsic value in the furtherance of a lawful investigation - rather than to learn
what took place before the grand jury, it is not a valid defense to disclosure that the
same information was revealed to a grand jury or that the same documents had been, or were
presently being, examined by a grand jury."(135)
Congressional committees have gained access to documents under this theory, the courts
ruling that the committee's interest was in the documents themselves and not in the events
that transpired before the grand jury.(136)
However, with respect to matters that "reflect exactly what transpired in the grand
jury," such as transcripts of witness testimony, Rule 6(e) has been held to be a bar
to congressional access.(137)
The case law would appear to indicate that Rule 6(e) would
not preclude disclosure of the following types of documents:
- Documents within the possession of the Department of Justice
concerning a particular case or investigation, other than transcripts of grand jury
proceedings and material indicating "the identities of witnesses or jurors, the
substance of testimony, the strategy or direction of the investigation, the deliberations
or questions of jurors, and the like." Material that would not otherwise be
identifiable as grand jury material does not become secret by Department of Justice
identification.(138)
- Immunity letters, draft pleadings, target letters, and draft
indictments.(139)
- Plea agreements as long as particular grand jury matters are
not expressly mentioned.(140)
- Third party records which pre-exist the grand jury
investigation even if they are in the possession of the Department of Justice as custodian
for the grand jury.(141)
- Memoranda, notes, investigative files, and other records of
FBI agents or other government investigators except to the extent those documents
internally identify or clearly define activities of the grand jury.(142)
VI. INVESTIGATIVE OVERSIGHT HEARINGS
A. Jurisdiction and Authority
A congressional committee is a creation of its parent House
and only has the power to inquire into matters within the scope of the authority that has
been delegated to it by that body. Thus, the enabling rule or resolution which gives the
committee life is the charter which defines the grant and limitations of the committee's
power.(143) In construing the scope of a
committee's authorizing charter, courts will look to the words of the rule or resolution
itself, and then, if necessary to the usual sources of legislative history such as floor
debate, legislative reports, past committee practice and interpretations.(144) Jurisdictional authority for a "special"
investigation may be given to a standing committee,(145)
a joint committee of both houses, (146) or a
special subcommittee of a standing committee, (147)
among other vehicles. In view of the specificity with which Senate(148) and House(149)
rules now confer jurisdiction on standing committees, as well as the care with which most
authorizing resolutions for select committees have been drafted in recent years,
sufficient models exist to avoid a successful judicial challenge by a witness that
noncompliance was justified by a committee's overstepping its delegated scope of
authority.
B. Rules Applicable to Hearings
Rules of both Houses (150)
require that committees adopt written rules of procedure and publish them in the
Congressional Record. The failure to publish has resulted in the invalidation of a perjury
conviction.(151) Once properly promulgated,
such rules are judicially cognizable and must be "strictly observed.(152) The House(153)
and many individual Senate committees require that all witnesses by given a copy of the
committee's rule.
Both the House and Senate have adopted rules permitting a
reduced quorum for taking testimony and receiving evidence. House hearings may be
conducted if at least two members are present;(154)
the Senate permits hearings with one only member in attendance.(155) Although most committees have adopted the minimum quorum
requirement, some have not, while others require a higher quorum for sworn rather than
unsworn testimony. 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.(156) Reduced quorum requirement rules do not
apply to authorization for the issuance of subpoenas. Senate rules require a one-third
quorum of a committee or subcommittee and the House a quorum of a majority of the members,
unless a committee delegates authority for issuance to its chairman.(157)
Senate and House rules limit the authority of their
committees to meet in closed session.(158) A
House rule provides, however, that testimony "shall" be held in closed session
if a majority of a committee or subcommittee determines it "may tend to defame,
degrade, or incriminate any person".(159)
Such testimony taken in closed session is normally releasable only by a majority vote of
the committee.(160) Similarly, confidential
material received in a closed session requires a majority vote for release.(161) A release of confidential materials in
accordance with applicable rules effectively minimizes objections by a submitting witness.(162) Moreover, the Speech or Debate clause(163) will protect a member who discloses such
information on the floor from legal redress, although not from the possibility of internal
discipline.(164)
House Rule
XI(3)(e) provides that the broadcast of open committee hearings may be permitted by a
majority vote of the committee in accordance with written rules adopted by the committee.
Individual committees have adopted a variety of rules with respect to such coverage. House Rule XI(3)(f)(2) affords an absolute
right to a subpoenaed witness to demand no broadcast or photographic coverage of his
testimony. There is comparable rule in the Senate, that body allowing each committee to
adopt its own policy.(165)
C. Conducting Hearings
The chairman of a committee or subcommittee, or in his or
her absence, the ranking majority member present, normally presides over the conduct of a
hearing. An opening statement by the chair is usual, and in the case of an investigative
hearing is an important means of defining the subject matter of the hearing and thereby
establishing the pertinence of questions asked the witnesses. Not all committees swear in
their witnesses; some committees require that all witnesses be sworn. Most leave it to the
discretion of the chair. If a committee wishes the potential sanction of perjury to apply,
it should swear its witnesses, though false statements not under oath are subject to
criminal sanctions.(166)
A witness does not have a right to make a statement before
being questioned,(167) but that opportunity
is usually accorded. Committee rules may prescribe the length of such statements and may
also require that written statements be submitted in advance of the hearing. Questioning
of witnesses may be structured so that members alternate for specified length of time.
Questioning may also be done by staff. Witnesses may be allowed to review a transcript of
their testimony and to make non-substantive corrections.
The right of a witness to be accompanied by counsel is
recognized by House rule(168) and the rules
of Senate committees. The House rule limits the role of counsel as solely "for the
purpose of advising them [witnesses] concerning their constitutional rights." Some
committees have adopted rules specifically prohibiting counsel from "coaching"
witness during their testimony.(169) A
committee has complete authority to control the conduct of counsel. Indeed, House Rule XI(2)(k)(4) provides that
"[t]he chairman may punish breaches of order and decorum, and of professional ethics
on the part of counsel, by censure or exclusion from the hearings; and the committee may
cite the offender for contempt." Some Senate committees have adopted similar rules.(170) There is no right of cross-examination of
adverse witnesses during an investigative hearing.(171)
D. Constitutional and Common Law
Testimonial Privileges of Witnesses
(1) Constitutional Privileges
It is well established that the protections of the Bill of
Rights extend to witnesses before a legislative inquiry.(172)
and thus may pose significant limitations on congressional investigations. The scope of
the protections of the Fifth, First and Fourth amendments and the manner of the
their invocation are briefly reviewed.
(a) Fifth Amendment
The Fifth
Amendment provides that "no person ... shall be compelled in any criminal case to
be a witness against himself." The privilege is personal in nature,(173) and may not be invoked on behalf of a corporation,(174) small partnership,(175)
labor union,(176) or other artificial entity.(177) The privilege protects a witness against
being compelled to testify but not against a subpoena for existing documentary evidence.(178) However, where compliance with a subpoena duces
tecum would constitute an implicit testimonial authentication of the documents
produced, the privilege may apply.(179)
There is no particular formulation of words necessary to
invoke the privilege. All that is required is that the witness' objection be stated in a
manner that the "committee may be reasonably expected to understand as an attempt to
invoke the privilege".(180) To the
extent there is any doubt about the witness' intent, it is incumbent on the committee to
ask the witness whether he or she is in fact invoking the privilege.(181) But a witness before a congressional committee may not
remain silent. The privilege must be invoked in response to a specific question that might
incriminate him. Nor may a witness refuse to take the oath on Fifth Amendment grounds.(182)
A witness may plead the Fifth Amendment not only to
questions whose answers would in themselves support a conviction, but also to those
questions which, if answered, would serve as a "link in the chain of evidence"
that would tend to incriminate him.(183)
The committee can review the assertion of the privilege by
a witness to determine its validity, but the witness is not required to prove the precise
hazard that he fears. In regard to the assertion of the privilege in judicial proceedings,
the Supreme Court has advised:
To sustain the privilege, it need only be evident, from the
implications of the question, in the setting in which it is asked, that a responsive
answer to the question or an explanation of why it cannot be answered might be dangerous
because injurious disclosure could result .... To reject a claim, it should be perfectly
clear from a careful consideration of all the circumstances of the case that the witness
is mistaken and that the answers cannot possibly have a tendency' to incriminate.(184)
The basis for asserting the privilege was elaborated upon
in a lower court decision:
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
therefor.... 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.(185)
The privilege against self-incrimination may be waived by
declining to assert it, specifically disclaiming it, or testifying on the same matters as
to which the privilege is later asserted. However, because of the importance of the
privilege, a court will not construe an ambiguous statement of a witness before a
committee as a waiver.(186)
Finally it should be noted that 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."(187)
"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."(188) Additionally, 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 he raises or privileges which he asserts.(189)
(b) First Amendment
Although the First Amendment, by its terms, is
expressly applicable only to legislation that abridges freedom of speech, press,
or assembly, the Court has held that the amendment also restricts Congress in conducting
investigations.(190) In the leading case
involving the application of First Amendment rights in a congressional investigation, Barenblatt
v. United States,(191) the Court held
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." 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.(192)
The 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."(193)
In order 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.(194)
The Supreme Court has recognized the application of the
First Amendment to congressional investigations, and although the Amendment has frequently
been asserted by witnesses as grounds for not complying with congressional demands for
information, the Court has never relied on the First Amendment as grounds for reversing a
criminal contempt of Congress conviction.(195)
However, the Court has narrowly construed the scope of a committee's authority so as to
avoid reaching a First Amendment issue.(196)
And the Court has ruled in favor of a witness who invoked his First Amendment rights in
response to questioning by a state legislative committee.(197)
(c) Fourth Amendment
Dicta in opinions of the Supreme Court indicate
that the Fourth Amendment's
prohibition against unreasonable searches and seizures is applicable to congressional
committees.(198) It appears that there must
be probable cause for the issuance of a congressional subpoena.(199) The Fourth Amendment protects a congressional witness
against a subpoena which is unreasonably broad or burdensome.(200)
The Court has delineated the test be used in judging the reasonableness of a congressional
subpoena:
Petitioner contends that the subpoena was so broad as to
constitute an unreasonable search and seizure in violation of the Fourth Amendment....
`Adequacy or excess in the breath of the subpoena are matters variable in relation to the
nature, purposes, and scope of the inquiry' . . . The subcommittee's inquiry here was a
relatively broad one ... and the permissible scope of materials that could reasonably be
sought was necessarily equally broad. It was not reasonable to suppose that the
subcommittee knew precisely what books and records were kept by the Civil Rights Congress,
and therefore the subpoena could only `specify ... with reasonable particularity, the
subjects to which the documents...relate....' The call of the subpoena for `all records,
correspondence and memoranda' of the Civil Rights Congress relating to the specified
subject describes them `with all of the particularity the nature of the inquiry and the
[subcommittee's] situation would permit' ....' The description contained in the subpoena
was sufficient to enable [petitioner] to know what particular documents were required and
to select them accordingly.'(201)
If a witness has a legal objection to a subpoena duces
tecum or is for some reason unable to comply with a demand for documents, he must
give the grounds for his noncompliance upon the return of the subpoena. As a court of
appeals stated in one case:
If [the witness] felt he could refuse compliance because he
considered the subpoena so broad as to constitute an unreasonable search and seizure
within the prohibition of the Fourth Amendment, then to avoid contempt for complete
noncompliance he was under [an] obligation to inform the subcommittee of his position. The
subcommittee would then have had the choice of adhering to the subpoena as formulated or
of meeting the objection in light of any pertinent representations made by [the witness].(202)
Similarly, if a subpoenaed party is in doubt as to what
records are required by a subpoena or believes that it calls for documents not related to
the investigation, he must inform the committee. Where a witness is unable to produce
documents he will not be held in contempt "unless he is responsible for their
unavailability... or is impeding justice by not explaining what happened to them . .
."(203)
The application of the exclusionary rule to congressional
committees is in some doubt and will depend on the precise facts of the situation. It
seems that documents which were unlawfully seized at the direction of a congressional
investigating committee may not be admitted into evidence in a subsequent unrelated
criminal prosecution because of the command of the exclusionary rule.(204) In the absence of a Supreme Court ruling, it remains
unclear whether the exclusionary rule bars the admission into evidence in a contempt
prosecution of a congressional subpoena which was issued on the basis of documents
obtained by the committee following their unlawful seizure by another investigating body
(such as a state prosecutor).(205)
(2) The Common Law Attorney-Client
and Work Product Privileges
The precedents of the Senate and the House of
Representatives, which are founded on Congress' inherent constitutional prerogative to
investigate, establish that the acceptance of a claim of attorney-client or work product
privilege rests in the sound discretion of a congressional committee regardless of whether
a court would uphold the claim in the context of litigation. In practice, committee
resolutions of claims of these privileges have involved a pragmatic assessment of the
needs of the individual committee to accomplish its legislative mission and the potential
burdens and harms that may be imposed on a claimant of the privilege if it is denied.
Thus the exercise of committee discretion whether to accept
a claim of attorney-client work product privilege has turned on a "weighing [of] the
legislative need for disclosure against any possible resulting injury."(206) More particularly, the process of
committee resolution of claims of privilege has traditionally been informed by weighing
considerations of legislative need, public policy, and the statutory duty of congressional
committees to engage in continuous oversight of the application, administration, and
execution of laws that fall within its jurisdiction,(207)
against any possible injury to the witness. In the particular circumstances of any
situation, a committee may consider and evaluate 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 were to be
raised in a judicial forum, and the committee's assessment of the cooperation of the
witness in the matter, among other considerations. A valid claim of privilege, free of any
taint of waiver, exception or other mitigating circumstance, would merit substantial
weight. But any serious doubt as to the validity of the asserted claim would diminish its
compelling character.
The discussion will begin with a brief overview of the
constitutional origins and basis for Congress' discretionary control over such claims of
privilege and recent examples of committee exercises of that discretion, followed by a
review of the requirements for assertion of the attorney-client and work product
privileges. Next the law with respect to waiver of the privilege and exceptions to
assertion of the privilege is detailed.
(a) The nature and development of
Congress' discretionary control over witness' claims of privilege
As with the legislature's inherent authority to
investigate,(208) the discretion to entertain
claims of privilege traces back to the model of the English Parliament. Erskine May's
Treatise on the Law, Privileges, Proceedings and Usage of Parliament, the definitive
authority on English parliamentary procedure, specifically notes:
A witness is, however, bound to answer all questions which
the committee sees fit to put to him, and cannot excuse himself, for example, on the
ground that he may thereby subject himself to a civil action, or because he has taken an
oath not to disclose the matter about which he is required to testify, or because the
matter was a privileged communication to him, as where a solicitor is called upon to
disclose the secrets of his client ... some of which would be sufficient grounds of excuse
in a court of law.(209)
The rare instances of the exercise of the prerogative to
deny use of the privileges have been consistent in the rejection of the applicability of
the privileges. In the nineteenth century, Charles W. Woolley, an attorney, was found in
contempt of the House and imprisoned for refusal to answer questions about a scheme for
bribing senators during Andrew Johnson's impeachment proceeding despite a claim of
attorney-client privilege.(210) Also, in the
notable investigation into the financing of the Union Pacific Railroad and the activities
of the Credit Mobilier, a House Committee held Joseph B. Stewart in contempt
notwithstanding his assertion of attorney-client privilege.(211)
More recently, a Subcommittee of the House Energy and Commerce Committee has on a number
of occasions rejected claims of attorney-client privilege.(212)
No court has ever questioned the assertion of the prerogative, and both Houses of Congress
have rejected opportunities to impose the attorney-client privilege as a binding rule for
committee investigations.(213) Contemporary
congressional practice has, in fact, evolved a delicate balancing process to ensure its
fair application. Thus the exercise of committee discretion has been held to turn on a
"weighing [of] the legislative need against any possible injury" to one
asserting the privilege and the application of this test has involved painstaking
examinations of potential detriment and relevant judicial precedents.(214)
Perhaps the most emphatic and authoritative assertion of
the committee prerogative in this area is the 1986 House action holding Ralph and Joseph
Bernstein in contempt for refusal to give the Subcommittee on Asian and Pacific Affairs of
the House Committee on Foreign Affairs requested information pertaining to their relations
with Ferdinand and Imelda Marcos. Their refusal rested primarily on the assertion of
attorney-client privilege.(215) The
Subcommittee rejected these claims on two grounds: "That the claim of privilege would
not be upheld even in a court, and that a congressional committee was obliged to decide
whether to accept such claims of privilege apart from whether a court would uphold the
claim."(216) The full Committee, bowing
to the concerns and preferences of some members that it was not necessary under the
circumstances of the matter to rely equally on the broader second ground, recommended that
"the U.S. attorney, in presenting this matter, proceed primarily and strongly with
emphasis on the primary ground relied on by the Subcommittee that this claim of privilege
would not have been upheld even in a court."(217)
Thus it is clear that the recommendation to the full House, which was adopted by an
overwhelming vote of 352-34,(218) encompassed
full recognition of the prerogative to deny assertions of attorney-client privilege.
Senate practice and precedent are in strong and
complementary accord with that of the House. Two denials by Senate committees of claims of
privilege serve to illustrate. In March of 1989, the Subcommittee on Nuclear Regulation of
the Senate Committee on Environment and Public Works commenced investigating claims that
settlement agreements were being entered between employers and employees of nuclear
facilities which placed restrictions on an employee's ability to testify in Nuclear
Regulatory Commission proceedings relating to licensing and safety matters with respect to
such facilities. The Subcommittee was seeking to determine the nature and extent of such
restrictive agreements at a particular facility and the prevalence and potential impact of
such agreements in the industry generally. Subpoenas were issued and several were not
complied with on the grounds of the attorney-client and work product privileges. On July
19, 1989, the Subcommittee issued a formal opinion rejecting the claim of privilege. The
opinion asserted that
[W]e start with the jurisdictional proposition that this
Subcommittee possesses the authority to determine the validity of any attorney-client
privilege that is asserted before the Subcommittee. A committee's or subcommittee's
authority to receive or compel testimony derives from the constitutional authority of the
Congress to conduct investigation and take testimony as necessary to carry out its
legislative powers. As an independent branch of government with such constitutional
authority, the Congress must necessarily have the independent authority to determine the
validity of non-constitutional evidentiary privileges that are asserted before the
Congress. (219)
The opinion continued by observing that while it recognized
its "independent authority to rule on an assertion of the attorney-client
privilege... the Subcommittee will nonetheless look to judicial and other rulings in this
area to guide the Subcommittee's determination." (220)
Finding that the holder of the privilege (the employee in question) "has made
extensive disclosures concerning communications between himself and his attorneys [the
claimants of the privilege] regarding the agreement, and has called the competence of his
former attorneys into question," the Subcommittee ruled that the privilege would have
been deemed waived by a court, denied the claim, and ordered the attorneys to testify. (221)
More recently, the Senate Permanent Subcommittee on
Investigations of the Governmental Affairs Committee denied a claim of attorney-client
privilege under unusual circumstances. The Subcommittee was investigating allegations that
under the Medicare Secondary Payer (MSP) program insurance companies, including Provident
Life and Accident Company (Provident), had failed to comply with their obligations to pay
certain claims as the primary payer with Medicare being the secondary payer, which
resulted in sizeable overpayments by Medicare. The Subcommittee subpoenaed many documents,
including one from Provident which it refused to give upon the ground that it was cloaked
by the attorney-client privilege. Provident also argued that the Subcommittee was bound by
a ruling to that effect made by a Federal district court in a pending civil suit. In order
to prevent the author of the document from testifying before the Subcommittee, Provident
sought an injunction from the district court to prevent her testimony. The court denied
the injunction, ruling that Provident had failed to allege a case or controversy, that the
issue was not ripe for judicial determination, and that Provident had failed to fulfill
the equitable requirements for preliminary injunctive relief. The court also noted that
its earlier ruling on the attorney-client privilege "which is not of constitutional
dimensions, is certainly not binding on the Congress of the United States."(222) Subsequently, the Chairman heard testimony
and arguments on the claim in executive session. He noted that "[t]he burden, then,
as I see it, is on you as the party claiming the privilege to demonstrate that the
privilege exists and to tell us why." On June 15, 1990 the Chairman ruled that
Provident had waived any privilege that might have attached to the document in question
when it provided the document to the Department of Justice.(223)
This historic congressional practice appears reflective of
the widely divergent nature of the judicial and legislative forums. The attorney-client
privilege is a product of a judicially developed public policy designed to foster an
effective and fair adversary system. The courts view the privilege as a means to foster
client confidence and encourage full disclosure to an attorney. It is argued that free
communication facilitates justice by promoting proper case preparation.(224) It is also suggested that frivolous litigation is
discouraged when, based on full factual disclosure, an attorney finds that his client's
case is not a strong one.(225) Of critical
importance here is the understanding that the role of attorney-client privilege is
designed for, and properly confined to, the adversary process: the adjudicatory resolution
of conflicting claims of individual obligations in a civil or criminal proceeding. But the
necessity to protect the individual interest in the adversary process is less compelling
in an investigative setting where a legislative committee is not empowered to adjudicate
the liberty or property interests of a witness. This is the import of those cases which
have recognized that "only infrequently have witnesses ... [in congressional
hearings] been afforded procedural rights normally associated with an adjudicative
proceeding."(226)
Indeed, the suggestion that the investigatory authority of
the legislative branch of government is subject to non-constitutional, common law rules
developed by the judicial branch to govern its proceedings is arguably contrary to the
concept of separation of powers. It would, in effect, permit the judiciary to determine
congressional procedures and is therefore difficult to reconcile with the constitutional
authority granted each House of Congress to determine its own rules.(227) Moreover, importation of the privileges and procedures of
the judicial forum is likely to have a paralyzing effect on the investigatory process of
the legislature. Such judicialization is antithetical to the consensus, interest oriented
approach to policy development of the legislative process.
Finally, an assertion that the denial of the privilege in
the congressional setting would destroy the privilege elsewhere appears neither supported
by experience nor reason. Parliament's rule has not impaired the practice of law in
England nor has its limited use here inflicted any apparent damage on the practice of the
profession. Congressional investigations in the face of claims of executive privilege or
the revelations of trade secrets have not diminished the general utility of these
privileges nor undermined the reasons they continue to be recognized by the courts.
Moreover, the assertion implies that current law is an impregnable barrier to disclosure
of confidential communications when in fact the privilege is, of course, an exception to
the general rule of disclosure and, is riddled with qualifications and exceptions, and has
been subject as well as to the significant current development of the waiver doctrine.
Thus, there can be no absolute certainty that communications with an attorney will not be
revealed.(228)
Moreover, with respect to the work-product privilege, it
has always been recognized that it is a qualified privilege which may be overcome by a
sufficient showing of need. The Supreme Court indicated, in the very case in which it
created the doctrine, that "[w]e do not mean to say that all [ ] materials obtained
or prepared ... with an eye toward litigation are necessarily free from discovery in all
cases."(229) Thus, the courts have
repeatedly held that the work product privilege is not absolute, but rather is only a
qualified protection against disclosure.(230)
As one court has indicated, "its immunity retreats as necessity and good cause is
shown for its production in a balance of competing interests."(231)
In fact, because the work product doctrine is so readily
overcome when production of material is important to the discovery of needed information,
some courts have refused to call the doctrine a privilege. For instance, in City of
Philadelphia v. Westinghouse Corp.,(232)
the court stated that the work product principle "is not a privilege at all; it is
merely a requirement that very good cause be shown if the disclosure is made in the course
of a lawyer's preparation of a case."
(b) Requirements for Assertion of
the Attorney-Client Privilege
In making the assessment whether to accept a claim of
attorney-client privilege, committees often have reference to whether a court would accept
the claim had it been in that forum. This section and those that follow detail the
judicial requirements for a proper assertion of the claim, how the privilege may be
waived, and circumstances under which it may not be claimed at all.
Although the attorney-client privilege today is seen to
rest on the theory that encouraging clients to make the fullest disclosure to their
attorneys enables them to act more effectively, justly, and expeditiously, and that these
benefits outweigh the risks posed by not allowing full disclosure in court,(233) even its leading proponent, Dean Wigmore,
concedes the unverifiability of the assumption and advises that its use be strictly
limited.
Its benefits are all indirect and speculative, its
obstruction is plain and concrete...It is worth preserving for the sake of a general
policy, but it is nonetheless an obstacle to the investigation of truth. It ought to be
strictly confined within the narrowest possible limits consistent with the logic of its
principle.(234)
The courts have heeded Wigmore's admonition.(235)
One important manifestation of the judicial policy of
strict confinement is the universal recognition that the burden of establishing the
existence of the privilege rests with the party asserting the privilege.(236) Moreover, blanket assertions of the privilege have been
deemed "unacceptable"(237), and are
"strongly disfavored."(238) The
proponent must conclusively prove each element of the privilege. Thus a claimant must
reveal specific facts which would establish that the relationship was one of attorney and
client. Conclusory assertions are insufficient. And it must demonstrate that the privilege
has not expressly or impliedly waived.
Finally, it should be noted that the assertion that the
disclosure of privileged material to a congressional committee would waive the privilege
in any future litigation was specifically considered, and rejected, by the D.C. Circuit
Court of Appeals in Murphy v. Department of the Army.(239) Indeed, there appears to be no case holding otherwise and
several which have followed Murphy.(240)
(c) Waiver of the Attorney-Client
Privilege
Because of the privilege's inhibitory effect on the
truth-finding process and its impairment of the public's "right to every man's
evidence,"(241) modern liberal discovery
rules have taken a narrow view of the privilege.(242)
This tendency toward limiting the privilege is most clearly manifested in the strict
standard of waiver.(243) Thus the voluntary
disclosure of privileged information, whether by the client or the attorney with the
client's consent, waives the privilege(244)
because it destroys the confidentiality of a communication and thereby undermines the
justification for preventing compelled disclosures.(245)
Waiver need not be express,(246) nor is it
necessary that the client waive the privilege knowingly.(247)
Waiver may be evidenced by word or act,(248)
but may be inferred from a failure to speak or act when words or action would be necessary
to preserve confidentiality.(249) Courts
regularly hold that the privilege is waived as to the material disclosed when the client
or his attorney deliberately discloses the contents of a privileged communication, such as
when answering interrogatories, testifying in court or at examination before trial,
submitting affidavits or pleadings to the Court, or in transacting business with a third
party.(250)
Furthermore, the courts have held that less than full
disclosure will often cause a waiver, not only as to disclosed communications, but also as
to communications relating to the same subject matter that were not themselves disclosed.(251) By partial disclosure, the client may be
voluntarily waiving the privilege as to that which he considers favorable to his position,
but attempting to invoke the privilege as to the remaining material, which he considers
unfavorable.(252) Selective assertion or
disclosure usually involves a material issue in the proceeding, and there is a great
likelihood that the information disclosed is false or intended to mislead the other party.(253) Thus, pleading an "advice of
counsel" defense, which puts the attorneys advice in issue,(254) has been held to waive the privilege as to all
communications relating to that advice. The rationale for the subject matter waiver rule
is one of fairness. Professor Wigmore has stated the principle as follows: "[W]hen
[the client's] conduct touches a certain point of disclosure, fairness requires that his
privilege shall cease whether he intended that result or not. He cannot be allowed, after
disclosing as much as he pleases, to withhold the remainder. It is therefore designed to
prevent the client from using the attorney-client privilege offensively, as an additional
weapon."
The courts also have severely limited the attorney-client
privilege through the development of an implied waiver doctrine. Thus where a client
shares his attorney-client communications with a third party, the communications between
attorney and client are no longer strictly "confidential", and the client has
waived his privilege over them.(255) Even if
the client attempts to keep communications confidential by having the third party agree
not to disclose the communications to anyone else the courts will still consider
"confidentiality" between attorney and client breached and the communication no
longer privileged.(256) Courts have applied
this concept of confidentiality narrowly to prevent corporations from sharing an
attorney-client communication with an ally and then shielding the communication from a
grand jury or adversary.(257) As a general
rule, courts also apply the waiver rule to disclosures made to government agencies.(258) Thus a person or corporation who
voluntarily discloses confidential attorney-client communications to a government agency
loses the right to later assert privilege for those communications.
While some lower courts have adopted a "limited
waiver" rule, which allows corporations to share their confidential attorney-client
communications with agencies such as the SEC without having to waive the privileged status
of these documents against other parties,(259)
it is a distinctly minority view. The prevailing view, enunciated in decisions of the
Second(260), Fourth(261), and District of Columbia Circuits,(262) hold that "if a client communicates information to
his attorney with the understanding that the information will be revealed to others, that
information, as well as `the details underlying the data which was to be published', will
not enjoy the privilege."(263)
The facts and circumstances of In re Martin Marietta
Corporation(264) illustrate the strict
manner in which the courts have applied the waiver doctrine. In that case a mail fraud
defendant sought documents, and the underlying factual details for statements made in
them, submitted by his former employer to the United States Attorney and the Department of
Defense in its efforts to settle criminal and administrative proceedings then pending
against it. The court noted that in a Position Paper to the U.S. Attorney describing why
the company should not be indicted, it was asserted: "of those consulted within the
Company all will testify that any qualms they had about the arrangement had nothing to do
with worries about fraud" and "there is no evidence, testimonial or documentary,
that any company officials in the meeting [of November 17, 1983] except Mr. Pollard and
his Maxim employees, understood that Maxim had departed from the strict procedures of its
IVI contract."(265) The appeals court
held that these, and similar disclosures made to the Defense Department in an
Administrative Settlement Agreement, waived whatever privilege it had with respect to the
submitted documents and their underlying details.
(d) Exceptions to the
Attorney-Client Privilege
Absent waiver, the attorney-client privilege generally
protects from disclosure communications from a client to his lawyer or his lawyer's agent
relating to the lawyers rendering of legal advice which was made with the expectation of
confidentiality, but not in furtherance of a future crime, fraud, or tort. However, the
courts have strictly confined the privilege and developed a number of important
qualifications and exceptions.
First, the case law has consistently emphasized that one of
the essential elements of the attorney-client privilege is that the attorney be acting as
an attorney and that the communication be made for the purpose of securing legal services.
The privilege therefore does not attach to incidental legal advice given by an attorney
acting outside the scope of his role as attorney. "`Acting as a lawyer' encompasses
the whole orbit of legal functions. When he acts as an advisor, the attorney must give predominantly
legal advice to retain his client's privilege of non-disclosure, not solely, or even
largely, business advice."(266)
In order to ascertain whether an attorney is acting in a
legal or business advisory capacity the courts have held it proper to question either the
client or the attorney regarding the general nature of the attorney's services to his
client, the scope of his authority as agent and the substance of matters which the
attorney, as agent, is authorized to pass along to third parties.(267) Indeed, invocation of the privilege may be predicated on
revealing facts tending to establish the existence of an attorney-client relation.
A further manifestation of the judicial proclivity to
confine the scope of the privilege is the general rule requiring disclosure of the fact of
employment, the identity of the person employing him or the name of the real party in
interest, the terms of the employment, and such related facts as the client's address,
occupation or business and the amount of the fee and who paid it.(268) The courts have reasoned that the existence of the
relation of attorney and client is not a privileged communication. The privilege pertains
to the subject matter and not to the fact of the employment as attorney.
Another significant exception to the privilege occurs when
a communication between client and attorney is for the purpose of committing a crime or
perpetuating a fraud at some future time.(269)
The policy reasons for this exception are obvious. Society has an interest in protecting
the confidences of a client to his lawyer even concerning already committed crimes, frauds
and torts. The harm from nondisclosure is limited because the past event can no longer be
prevented. Society also has an interest in protecting the confidence of a client who seeks
legal advice about neutral acts. But society has no interest in facilitating the
commission of contemplated but not yet committed crimes, torts or frauds. On the contrary,
society has every interest in forestalling such acts. Therefore, the attorney-client
privilege has been held not to attach to such acts.
VII. RIGHTS OF MINORITY PARTY MEMBERS
IN THE INVESTIGATORY PROCESS
The role of members of the minority party in the
investigatory oversight process is governed by the rules of each House and its committees.
While minority members are specifically accorded some rights (e.g., whenever a
hearing is conducted on any measure or matter, the minority may, upon the written request
of a majority of the minority members to the chairman before the completion of the
hearing, call witnesses selected by the minority, and presumably request documents(270)), no House or committee rules authorize
ranking minority members or individual members on their own to institute official
committee investigations, hold hearings or to issue subpoenas. Individual members may seek
the voluntary cooperation of agency officials or private persons. But no judicial
precedent has recognized a right in an individual member, other than the chair of a
committee,(271) to exercise the authority of
a committee in the context of oversight without the permission of a majority of the
committee or its chair.
The question of the nature and scope of the rights of
minority party members in the investigatory process came into sharp focus in the 103d
Congress. Then, for the first time in over a decade, both Houses and the White House were
in the control of one party, while at the same time the Whitewater matter began to emerge
as a matter of serious political importance. Principal jurisdiction over many of the areas
of concern fell within mandates of the House and Senate Banking Committees.
The Ranking Minority Member of the House Banking Committee
was particularly aggressive in seeking to obtain documents and testimony from the Office
of Thrift Supervision (OTS) and the Resolution Trust Corporation (RTC), the agencies
handling the investigation of the failure of the Madison Guarantee Savings & Loan
Association and related matters. The agencies refused to turn over what were claimed by
the Ranking Minority Member to be key documents and were supported by the chairman of the
Banking Committee who directed the agencies not to cooperate on the grounds that no
investigation had been authorized by the committee nor were hearings on the matter
contemplated. The Ranking Minority Member brought suit to compel disclosure of the
documents.(272)
An obstacle to the suit was a 1983 court ruling in Lee
v. Kelley. (273) There a court held, inter
alia, that an attempt by Senator Jesse Helms to intervene in the case in order to
unseal FBI tapes and transcripts concerning Martin Luther King to enable him to utilize
the information as part of the debate on legislation proposing to establish a national
holiday commemorating King's birth, would be dismissed as an exercise of the courts
"equitable discretion" because Senator Helms' action was an effort to enlist the
court in his dispute with fellow legislators. Helms had argued that because no committee
hearings were being conducted to inform Senators of facts to justify or defeat the passage
of the legislation, he was seeking to fill that void by performing the investigative
function the Senate leadership had decided to forego.(274)
The district court ruled that "[i]t is not for this court to review the adequacy of
the deliberative process of the Senate leadership .... [T]o conclude otherwise would
represent an obvious intrusion by the judiciary into the legislative arena. In any event,
the proper forum for this [dispute] is the Senate, `for [i]t would be unwise to permit the
federal courts to become a higher legislature where a congressman who has failed to
persuade his colleagues can always renew the battle.'"(275)
In an attempt to avoid the adverse consequences of Lee,
the Ranking Minority Member sought to compel disclosure of the documents under the Freedom
of Information Act (FOIA),(276) which
explicitly exempts Congress from its withholding provisions, (277)
and under the Administrative Procedure Act (APA),(278)
alleging that the documents were arbitrarily and capriciously withheld. It was not
successful. While finding the claims "technically justiciable",(279) the district court held that it had to invoke the
District of Columbia Circuit's doctrine of equitable or remedial discretion and dismiss
the claims since this was a case "in which a congressional plaintiff's dispute is
primarily with his or her fellow legislators." The court concluded that "[i]t is
clear . . . that Representative Leach's complaint derives solely from his failure to
persuade his colleagues to authorize his request for the documents in question, and that
Plaintiff thus has a clear `collegial remedy' capable of affording him substantial
relief."(280)
Despite the apparent difficulty in obtaining judicial
redress, some measure of practical success was achieved as a result of intense public
pressure brought to bear by the minority and its supporters on the majority party and the
White House. A Justice Department investigation into the handling of the RTC
recommendation to the United States Attorney's office for a further criminal investigation
was commenced in November 1993; the White House in December, 1993 authorized turning over
Whitewater documents to the Justice Department team investigating the handling of the
matter; in January 1994 the White House agreed to the appointment by the Attorney General
of an independent counsel with broad authority to investigate Whitewater matters; both
Houses agreed in principle in March 1994 to hold hearings; and in July and August 1994
hearings were held by the House and Senate Banking Committees. The legal challenge thus
may be viewed as part the overall strategy to force public hearings by Congress, although
in the long run the precedent established may have virtually foreclosed future resort to
the courts under analogous circumstances.
The Leach court also suggested that the
possibility of a "collegial remedy" for the minority exists, pointing to 5
U.S.C. 2954 under which small groups of members of the House Government Reform and
Oversight and Senate Governmental Affairs Committees can request information from
executive agencies without the need of formal committee action. (281) However, the precise scope and efficacy of this provision
is uncertain.
5 U.S.C. 2954 is derived from section 2 of the Act of May
29, 1928,(282) which originally referred not
to the current committees generally overseeing government agency operations but their
predecessors, the House and Senate Committees on Expenditures in the Executive
Departments. The principal purpose of the 1928 Act, embodied in its first section, was to
repeal legislation which required the submission to the Congress of some 128 reports, many
of which had become obsolete in part, and which, in any event, had no value, served no
useful purpose, and were not printed by the House of Representatives.(283)
Section 2 of the 1928 Act contains the language which has
been codified in 5 U.S.C. 2954. The legislative history, however, indicates that the
purpose of the 1928 Act was not to assert a sweeping right of Congress to obtain any
information it might desire from the executive branch. Rather, the aim of the section was
far more limited. Thus, the Senate Report stated that its purpose was to make "it
possible to require any report discontinued by the language of this bill to be resubmitted
to either House upon its necessity becoming evident to the membership of either
body."(284) Or, in the words of the
House Report: "To save any question as to the right of the House of Representatives
to have furnished any of the information contained in the reports proposed to be
abolished, a provision has been added to the bill requiring such information to be
furnished to the Committee on Expenditures in the Executive Departments or upon the
request of any seven members thereof."(285)
It would appear, then, that the scope of 5 U.S.C. 2954 is
closely tied to the 128 reports abolished by section 1 of the 1928 legislation.(286) Moreover, the provision lacks a compulsory
component. Agency refusals to comply would not be subject to existing contempt processes,
and the outcome of a civil suit to compel production on the basis of the provision is
problematic despite the Leach court's suggestion. Further, the provision applies
only to the named committees; thus members of all other committees would still face the Leach
problem. Finally, even members of the named Committees are still likely to have to
persuade a court that their claim is no more than an intramural dispute.
The rules of the Senate provide substantially more
effective means for individual minority party members to engage in "self-help"
to support oversight objectives than their House counterparts. Senate rules emphasize the
rights and prerogative of individual Senators and, therefore, minority groups of Senators.(287) The most important of these rules are
those that effectively allow unlimited debate on a bill or amendment unless an
extraordinary majority vote to invoke cloture.(288)
Senators can use their right to filibuster, or simply the threat of filibuster, to delay
or prevent the Senate from engaging in legislative business. The Senate's rules also are a
source of other minority rights that can directly or indirectly aid the minority in
gaining investigatory rights. For example, the right of extended debate applies in
committee as well as on the floor, with one crucial difference: the Senate's cloture rule
may not be invoked in committee. Each Senate committee decides for itself how it will
control debate, and therefore a filibuster opportunity in a committee may be even greater
than on the floor. Also, Senate Rule XXVI
prohibits the reporting of any measure or matter from a committee unless a majority of the
committee are present, another point of possible tactical leverage. Even beyond the potent
power to delay, Senators can promote their goals by taking advantage of other
parliamentary rights and opportunities that are provided by the Senate's formal procedures
and customary practices such as are afforded by the processes dealing with floor
recognition, committee referrals, and the amending process.(289)
VIII. ROLE OF THE OFFICES OF SENATE
LEGAL COUNSEL AND HOUSE GENERAL COUNSEL
For almost two decades the offices of Senate Legal Counsel
and House General Counsel have developed parallel yet distinctly unique and independent
roles as institutional legal "voices" of the two bodies they represent.
Familiarity with the structure and operation of these offices and the nature of the
support they may provide committees in the context of an investigative oversight
proceeding is essential.
A. Senate Legal Counsel
The Office of Senate Legal Counsel(290) was created by Title VII of the Ethics in Government Act
of 1978(291) "to serve the institution
of congress rather than the partisan interests of one party or another."(292) The Counsel and Deputy Counsel are
appointed by the President pro tempore of the Senate upon the recommendation of the
Majority and Minority Leaders. The appointment of each is made effective by a resolution
of the Senate, and each may be removed from office by a resolution of the Senate. The term
of appointment of the Counsel and Deputy Counsel is two Congresses. The appointment of the
Counsel and Deputy Counsel and the Counsel's appointment of Assistant Senate Legal Counsel
are required to be made without regard to political affiliation. The office is responsible
to a bipartisan Joint Leadership Group, which is comprised of the Majority and Minority
Leaders, the President pro tempore, and the chairman and ranking minority member of the
Committees on the Judiciary and on Rules and Administration.(293)
The Act specifies the activities of the office, two of
which are of immediate interest to committee oversight concerns: representing committees
of the Senate in proceedings to aid them in investigations and advising committees and
officers of the Senate.(294)
(1) Proceedings to Aid Investigations
by Senate Committees
The Senate Legal Counsel may represent committees in
proceedings to obtain evidence for Senate investigations. Two specific proceedings are
authorized.
18 U.S.C. § 6005 provides that a committee or subcommittee
of either House of Congress may request an immunity order from a United States district
court when the request has been approved by the affirmative vote of two-thirds of the
Members of the full committee. By the same vote, a Committee may direct the Senate Legal
Counsel to represent it or any of its subcommittees in an application for an immunity
order.(295)
The Senate Legal Counsel may also be directed to represent
a committee or subcommittee of the Senate, and also the Office of Senate Fair Employment
Practices,(296) in a civil action to enforce
a subpoena. Prior to the Ethics in Government Act of 1978, subpoenas of the Senate could
be enforced only through the cumbersome method of a contempt proceeding before the bar of
the Senate or by a certification to the United States attorney and a prosecution for
criminal contempt of Congress under 2 U.S.C. §§ 192, 194. The Ethics Act authorizes a
third method to enforce Senate subpoenas, through a civil action in the United States
District Court for the District of Columbia.(297)
The House chose not to avail itself of this procedure and this enforcement method applies
only to Senate subpoenas. Senate subpoenas have been enforced in several civil actions.
See, for example proceedings to hold in contempt a recalcitrant witness in the impeachment
proceedings against Judge Alcee L. Hastings(298)
and proceedings to enforce a subpoena duces tecum for the production of diaries
of Senator Bob Packwood.(299)
The statute details the procedure for directing the Senate
Legal Counsel to bring a civil action to enforce a subpoena. In contrast to an application
for an immunity order, which may be authorized by a committee, only the full Senate by
resolution may authorize an action to enforce a subpoena.(300)
The Senate may not consider a resolution to direct the Counsel to bring an action unless
the investigating committee reports the resolution by a majority vote. The statute
specifies the required contents of the committee report; among other matters, the
committee must report on the extent to which the subpoenaed party has complied with the
subpoena, the objections or privileges asserted by the witness, and the comparative
effectiveness of a criminal and civil proceeding.(301)
A significant limitation on the civil enforcement remedy is that it excludes from its
coverage actions against officers or employees of the federal government acting within
their official capacities. Its reach is limited to natural persons and to entities acting
or purporting to act under the color of state law.(302)
(2) Advice to committees and officers
of the Senate and other duties.
The Ethics Act details a number of advisory functions of
the Office of Senate Legal Counsel. Principal among these are the responsibility of
advising officers of the Senate with respect to subpoenas or requests for the withdrawal
of Senate documents, and the responsibility of advising committees about their
promulgation and implementation of rules and procedures for congressional investigations.
The office also provides advice about legal questions that arise during the course of
investigations.(303)
The Act also provides that the Counsel shall perform such
other duties consistent with the non-partisan purposes and limitations of Title VII as the
Senate my direct.(304) Thus in 1980 the
Office was used in the investigation relating to Billy Carter and Libya and worked under
the direction of the chairman and vice-chairman of the subcommittee charged with the
conduct of that investigation.(305) Members
of the Office have also undertaken special assignments such as the Senate's investigation
of Abscam and other undercover activities,(306)
the impeachment proceedings of Judge Harry Claiborne,(307)
Judge Walter L. Nixon, Jr.,(308) and Judge
Alcee L. Hastings, Jr., (309) and the
confirmation hearings of Justice Clarence E. Thomas.
In addition, the Counsel's office provides information and
advice to Members, officers and employees on a wide range of legal and administrative
matters relating to Senate business. Unlike the House practice, the Senate Legal Counsel
plays no formal role in the review and issuance of subpoenas. However, since it may become
involved civil enforcement proceedings, it has welcomed the opportunity to review proposed
subpoenas for form and substance prior to their issuance by committees.
B. House General Counsel
A non-statutory office, the House General Counsel has
evolved in an ad hoc, incremental manner since the mid-1970's, from its historic role as a
legal advisor to the Clerk of the House on a range of administrative matters that fell
within the jurisdiction of the Clerk's office, to that of lawyer for the institution. At
the beginning of the 103d Congress it was made a separate House office, reporting directly
to the Speaker, charged with the responsibility "of providing legal assistance and
representation to the House."(310)
However, as a consequence of administrative restructuring at the start of the 104th
Congress, the Office was again placed in the Clerk's Office. While the function and role
of the House General Counsel and the Senate Legal Counsel with respect to oversight
assistance to committees and protection of institutional prerogatives are similar,(311) there are significant differences that
need be noted.
The General Counsel and the Deputy General Counsel are
appointed by the Speaker and serve at his pleasure. Traditionally the General Counsel has
tendered his resignation to a new incoming Speaker. Authorization for actions by the
General Counsel to represent the interests of the House in court is often given by the
Joint Leadership Group, consisting of the Speaker, Majority Leader, Majority Whip,
Minority Leader and Minority Whip.(312) On
other occasions, the Office will act pursuant to the direction of the majority leadership
or the Speaker alone.(313)
Unlike the Senate, subpoenas may only be issued over the
seal of the Clerk of the House. In practice, committees work closely with the General
Counsel in drafting subpoenas and every subpoena issued by a committee or officer is
reviewed by the Office for substance and form. Similarly, in the absence of civil
enforcement authority, committees often seek the assistance of the General Counsel in
navigating the statutory contempt process in instances of witness non-compliance with a
subpoena which may culminate in a floor proceeding to authorize a contempt citation. For
example, during a committee investigation into the real estate holdings in the United
States of the Philippines President Ferdinand E. Marcos and his wife, two brothers who
allegedly assisted the Marcos's in their dealings were called to testify. They declined to
answer numerous questions, claiming attorney-client privilege. The General Counsel was
called in to evaluate the claims and to render an opinion whether contempt proceedings
would be appropriate. His findings served as the basis for the resolution passed by the
House holding the brothers in contempt.(314)
Like the Senate Legal Counsel's office, the House General
Counsel's office devotes a large portion of its time rendering informal advice to
individual members and committees. Unlike its Senate counterpart, however, the General
Counsel will often provide formal advice in the form of memorandum opinions(315) and, at times, testimony at hearings.(316)
Finally, the Office also takes on special tasks as, for
example, when the deputy general counsel served as special counsel to the joint committee
investigation the Iran-Contra affair and played an active role in establishing procedures
for the investigation.
SELECTED READINGS
Beck, Carl. Contempt of Congress: A Study of the
Prosecutions Initiated by the Committee on In-American Activities, 1945-1957. New Orleans:
The Hauser Press, 1959.
Berger, Raoul. Congressional Subpoenas to Executive
Officials. Cambridge: Harvard University Press, 1974
Brand, Stanley M. Battle Among the Branches: The Two
Hundred Year War. North Carolina Law Review, v. 65, 1987:901
Brand, Stanley M. and Connell, Sean. Constitutional
Confrontations: Preserving a Prompt and Orderly Means By Which Congress May Enforce
Investigative Demands Against Executive Branch Officials.
Catholic University Law Review, v. 36, 1986: 71
Bush, Joel D. Congressional Executive Access Disputes:
Legal Standards and Political Settlements. Journal of Law Politics, v. 9, Summer 1993: 719
Clavelaus, Ronald L. The Conflict Between Executive
Privilege and Congressional Oversight: The Gorsuch Controversy. Duke Law Journal, v. 1983,
No. 6: 1333.
Dimock, Marshall E. Congressional Investigating Committees.
Baltimore Johns University Press, 1929 JK1123.A2E2
Fitzpatrick, James F. Enduring a Congressional
Investigation. Litigation, v. 18, Summer 1992:16
Ehlke, Richard. Congressional Access To Information From
The Executive: A Legal Analysis. CRS Report 86-50A, Congressional Research Service, March
10, 1986.
Ghio, R.S. The Iran Contra Prosecution and the Failure of
Use Immunity. Stanford Law Review, v. 45, 1992: 229.
Gilbert, Michael. The Future of Congressional Use Immunity
after United States v. North. American Criminal Law Review, vol. 30, 1993: 417.
Grabow, John C. Congressional Investigations: Law Practice.
Prentice Hall Law and Business, 1988 KF4942.G73
Hamilton, James. The Power to Probe: A Study in
Congressional Investigations. New York: Vintage Books, 1976 KF4942.H34
Hamilton, James and Grabow, John C. A Legislative Proposal
for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas.
Harvard Journal Legislation, v. 21, Winter 1984: 145
Moreland, Allen B. Congressional Investigations and Private
Persons. Southern California Law Review, v. 40, Winter 1967: 189
Peterson, Todd D. Prosecuting Executive Branch Officials
For Contempt of Congress. New York University Law Review, v. 66, 1991: 563
Rosenthal, Paul C. and Grossman, Robert S. Congressional
Access to Confidential Information Collected by Federal Agencies. Harvard Journal of
Legislation, v. 15, 1977: 74
Rozell, Mark J. Executive Privilege in the Bush
Administration: Constitutional Problems, Bureaucratic Responses. Miller Center Journal, v.
1, Spring 1984: 63.
Schlesinger, Arthur M., Jr., and Bruns, Rogers (editors).
Congress Investigates: 1972-1974. New York: Chelsea House Publishers. 1975 (5 Vols). JK
1123.A2 S34
Solokar, Rebecca Mae. Legal Counsel for Congress:
Protecting Institutional Interests. Congress and the Presidency, v. 20 Autumn 1993: 131.
Shampansky, Jay R. Staff Depositions in Congressional
Investigations. CRS Report 91-679 A, Congressional Research Service, August 1991.
Shampansky, Jay R. Congress' Contempt Power. CRS Report
86-83A, Congressional Research Service, February 28, 1986
Shane, Peter M. Legal Disagreement and Negotiation in a
Government of Laws: The Case of Executive Privilege Claims Against Congress. Minnesota Law
Review, v. 71, February 1987: 461.
Shane, Peter M. Negotiating for Knowledge: Administrative
Responses to Congressional Demands for Information. Administrative Law Review, v. 44,
Spring 1992: 197
Stathis, Stephen W. Executive Cooperation: Presidential
Recognition of the Investigative Authority of Congress and the Courts. Journal of Law and
Politics, v. 3, Fall 1986: 1987.
Taylor, Teleford. Grand Inquest: The Story of Congressional
Investigations. New York: Simon and Schuster, 1995. KF4942.T38
Walsh, Lawrence E. The Independent Counsel
and the Separation of Powers. Houston Law Review, v. 25, January 1988: 1 ENDNOTES
1. For a general overview of
the oversight process see Congressional Research Service, Congressional Oversight Manual
(February 1995).
2. E.g., McGrain v.
Daugherty, 272 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178
(1957); Barenblatt v. United States, 360 U.S. 109 (1950); Eastland v. United
States Servicemen's Fund, 421 U.S. 491 (1975); Nixon v. Administrator of General
Services, 433 U.S. 425 (1977); see also, United States v. A.T.T., 551 F.2d
384 (D.C. Cir. 1976) and 567 F.2d 1212 (D.C. Cir. 1977).
3. 421 U.S. at 504, n. 15
(quoting Barenblatt, supra, 360 U.S. at 111).
4. 354 U.S. at 187.
5. Id.
6. Id. at 182.
7. Id. at 194-95
8. Id. at 200 n. 33.
9. Kilbourn v. Thompson,
103 U.S. 168, 204 (1880).
10. Watkins v. United
States, supra, 354 U.S. at 187.
11. United States v.
Rumely, 345 U.S. 41, 42, 44 (1953); Watkins v. United States, supra, 354
U.S. at 198.
12. Wilkinson v. United
States, 365 U.S. 408-09 (1961).
13. 273 U.S. 135, 151
(1927).
14. Id. at 177.
15. Id.
16. Id.
17. 279 U.S. 263 (1929).
18. Id., at 290.
19. Id. at 295.
20. Id. at 295.
21. McGrain v.
Daugherty, supra, 273 U.S. at 174-75.
22. Id. at 158.
23. Senate Rule XXVI(1)(All
Senate rules hereinafter cited were in effect as of 1993 unless otherwise indicated and
may found in Sen. Doc. No. 103-3 compiled by the Senate Committee on Rules and
Administration).
24. House Rule
XI(2)(m)(1)(All House rules hereinafter cited were in effect as of 1993 unless otherwise
indicated and may be found in "Rules Adopted By The Committee of the House of
Representatives", compiled by the House Rules Committee as a committee print).
25. See, e.g.,
S.Res. 23, 100th Cong. (Iran-Contra); Sen. Res. 495, 96th Cong. (Billy Carter/Libya).
26. Senate Rule XXV.
27. House Rule X.
28. Eisler v. United
States, 170 F.2d 273, 279 (D.C. Cir. 1948), cert. dismissed, 338 U.S. 883
(1949).
29. See generally, Gary E.
Davidson, Congressional Extraterritorial Investigative Powers: Real or Illusory ?, 8 Emory
International Law Review 99 (1994).
30. U.S. Const., Art. I,
sec. 6, cl. 1.
31. Eastland v. United
States Servicemen's Fund, 421 U.S. 491, 503-07 (1975).
32. 365 U.S. 399, 408-09
(1961).
33. Barenblatt v.
United States, 360 U.S. 109, 117 1959); Watkins v. United States, supra, 354
U.S. at 209-215.
34. In re Chapman,
166 U.S. 661, 669 (1897).
35. Shelton v. United
States, 404 F.2d 1292, 1297 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024
(1969).
36. Sinclair v. United
States, supra, 279 U.S. at 299; Ashland Oil, Inc. v. F.T.C., 409 F.Supp. at
305.
37. See, e.g., Yellin
v. United States, 374 U.S. 109, 143, 144 (1969); Watkins v. United States, supra;
United States v. Ballin, 144 U.S. 1, 5 (1892).
38. Exxon Corporation
v. F.T.C., 589 F.2d 582, 590 (D.C. Cir. 1978). The issues raised by witness claims of
constitutional and common law privileges are more fully discussed below at pp. 53-85. On
claims that a committee subpoena is overbroad or burdensome see discussions, infra,
at pp. 40-42.
39. E.g., S. Res.
229, 103d Cong. (Whitewater); S. Res. 23, 100th Cong. (Iran-Contra); H. Res. 12, 100th
Cong. (Iran-Contra); H. Res. 320, 100th Cong. (impeachment proceedings of Judge Alcee
Hastings); S. Res. 495, 96th Cong. (Billy Carter/Libya).
40. See Jay R. Shampansky,
Staff Depositions in Congressional Investigations, CRS Report No. 91-679, August 27, 1991
(suggesting that the criminal contempt procedure would be available if a committee adopted
rules of procedure providing for Member involvement if a witness raises objections and
refuses to answer; and that analogous case law under false statements and obstruction of
Congress statutes would support prosecutions for false statements made during a
deposition.).
41. See examples cited at
note 39, supra.
42. See, e.g.,
Senate Permanent Committee on Investigations Rule 9; House Iran-Contra Committee Rule 6,
H. Res. 12, 133 Cong. Rec. 822 (1987).
43. See Watkins v.
United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155
(1955).
44. See generally Kastigar
v. United States, 406 U.S. 441 (1972).
45. Kastigar v. United
States, 406 U.S. at 446.
46. 18 U.S.C. § 6005(a);
See also Application of Senate Permanent Subcommittee on Investigations, 655 F.2d
1232 (D.C. Cir.), cert. denied, 454 U.S. 1084 (1981).
47. 18 U.S.C. § 6005(b).
48. Notice should be given
to an independent counsel where one has been appointed, since he would have the powers
usually exercised by the Justice Department. See 28 U.S.C. § 594.
49. 18 U.S.C. § 6005(b).
The Justice Department may waive the notice requirement. Application of Senate
Permanent Subcommittee on Investigations, 655 F.2d at 1236.
50. 18 U.S.C. § 6005(c).
51. See H.R. Rept. No.
91-1549, 91st Cong., 2d Sess. 43 (1970).
52. Id. See also
S.Rept. No. 91-617, 91st Cong., 1st Sess. 145 (1969); Application of U.S. Senate
Select Committee on Presidential Campaign Activities, 361 F.Supp. 1270 (D.D.C. 1973).
53. Application of U.S.
Senate Select Committee, 361 F.Supp. at 1278-79.
54. 18 U.S.C. § 6002.
55. The constitutionality
of granting a witness only use immunity, rather than transactional immunity, was upheld in
Kastigar v. United States, supra.
56. Kastigar v. United
States, supra, 406 U.S. at 460.
57. United States v.
North, 910 F.2d 843 (D.C. Cir.), modified, 920 F.2d 940 (D.C. Cir. 1990)
cert. denied, 111 S.Ct. (1991).
58. 951 F.2d 369 (D.C. Cir.
1991).
59. United States v.
North, 920 F.2d at 942.
60. Id. ( emphasis
in original).
61. United States v.
North, 910 F.2d at 860. Because several years passed between the events at issue and
the trial of North, the Independent Counsel had allowed potential witnesses to refresh
their recollection with North's immunized testimony before they testified at the grand
jury and at trial. Id.
62. Id. at 865.
See also id. at 869 ("Where immunity testimony is used before a grand jury,
the prohibited act is simultaneous and coterminous with the presentation; indeed, they are
one and the same."). The court of appeals criticized the district court for failing
to inquire into "the extent to which the substantive content of the witnesses'
testimony may have been shaped, altered, or affected by the [defendant's] immunized
testimony." Id. at 863. The court further noted that it was legally
irrelevant under Kastigar if the witnesses themselves, rather than the
government, presented the immunized testimony. Id. at 871.
63. Id. at 872.
64. United States v.
Poindexter, supra, 951 F.2d at 375-77.
65. Id.
66. Lawrence E. Walsh, The
Independent Counsel and the Separation of Powers, 25 Hous. L. Rev. 1, 9 (1988).
67. Michael Gilbert, The
Future of Congressional Use Immunity After United States, v. North, 30 Amer.
Crim.L.Rev. 417, 430-31 (1993). See also, Arthur L. Limon and Mark A. Belnick, Congress
Had to Immunize North, Wash. Post, July 29, 1990, at p. C7.
68. Anderson v. Dunn,
19 U.S. (6 Wheat) 204 (1821).
69. For a more
comprehensive treatment of the history and legal development of the congressional contempt
power, see Jay R. Shampansky, Congress' Contempt Power, CRS Report No. 86-83A, February
28, 1986.
70. See, Groppi v.
Leslie, 404 U.S. 496 (1972).
71. See Todd D. Peterson,
Prosecuting Executive Branch Officials for Contempt of Congress, 66 NYUL Rev. 563 (1991);
Hearing, "Prosecution of Contempt of Congress", Before the Subcomm. on
Administrative Law and Governmental Relations, House Comm. on the Judiciary, 98th Cong.
1st Sess. 21-35 (1983) (Statement and Testimony of Stanley Brand).
72. See 2 U.S.C. 288d and
28 U.S.C. 1364.
73. Usually brought by the
Senate Legal Counsel. 2 U.S.C 288 d(a).
74. Christoffel v.
United States, 378 U.S. 89 (1949).
75. House Rule XI (2) (h)
(1).
76. Senate Rule XXVI (7)
(a) (2).
77. United States v.
Bramlett, 348 U.S. 503, 509 (1955); United States v. Poindexter, 951 F.2d
369, 386-88 (D.C. Cir. 1991).
78. United States v.
Poindexter, supra, 951 F.2d at 377-86.
79. Joel D. Bush,
Congressional-Executive Access Disputes: Legal Standards and Political Settlements, 9 J.
of Law and Politics, 717, 735-46(1993); Peter M. Shane, Legal Disagreements and
Negotiation in a Government of Laws, 71 Minn. L. Rev. 461 (1987); Stephen W. Stathis,
Executive Cooperation: Presidential Recognition of the Investigatory Authority of Congress
and the Courts, 3 J. of Law and Politics 183 (1986); Richard Ehlke, Congressional Access
To Information From The Executive: A Legal Analysis, CRS Report No. 86-50A, March 10,
1986.
80. See, e.g., United
States v. AT&T, 551 F.2d 784 (D.C. Cir. 1976) and 567 F.2d 121 (D.C. Cir 1977),
where the appeals court twice refused to balance the asserted constitutional interests,
instead remanding the case for further negotiations under the supervision of the district
court; and United States v. U.S. House of Representatives, 556 F.2d 150, 152
(D.D.C. 1983), where the district court refused to enjoin transmission by the House of
Representatives of a contempt citation of the Administrator of the EPA to the United
States Attorney on grounds alleging constitutional executive privilege, stating that when
"constitutional disputes arise concerning the separation of powers of the legislative
and executive branches, judicial intervention should be delayed until all possibilities
for settlement have been exhausted . . . judicial restraint is essential to maintain the
delicate balance of powers among the branches established by the Constitution." In
both instances negotiated resolutions ultimately ended the immediate disputes.
81. 418 U.S. 683 (1974).
82. The subpoena was for
certain tape recordings and documents relating to the President's conversations with aides
and advisors. The materials were sought for use in a criminal trial.
83. 418 U.S. at 705, 706.
See also id. at 708, 711.
84. Id. at 705,
708. Citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), the Court held
that it had the authority to review the President's claim of executive privilege. 418 U.S.
at 703-05. The materials in question in United States v. Nixon related to
confidential communications between the President and his advisors. The Court indicated
that it might proceed differently and accord more deference to the executive's claims in a
case involving military or diplomatic matters. Id. at 706.
85. Id. at 707.
86. Id. at 713.
87. Id. at 712, n. 19.
88. 498 F.2d 725 (D.C. Cir.
1974).
89. The subpoena was for
tapes of conversations between the President and presidential counsel John Dean. The
committee sought a declaratory judgment that its subpoena was lawful and that the
President's refusal to comply with it, on the basis of executive privilege, was unlawful.
90. 498 F.2d at 730.
91. Id at 732-33.
92. Memorandum from the
President to the Heads of Executive Departments and Agencies on Procedures Governing
Responses to Congressional Requests for Information (November 4, 1982), reprinted in
Congressional Oversight Manual, supra note 1, at pp. 197-98. The Department of
Justice Office of Legal Counsel lists 64 instances of presidential invocation of executive
privilege in the face of congressional requests for information between 1792 and October
1981. 6 OLC 751 (1982). President Reagan invoked the privilege in November 1982 in the EPA
investigation. See, "Contempt of Congress", H. Rept. No. 97-968, 97th Cong., 2d
Sen. 1982. The last recorded invocation was by President Bush in August 1991. See
Congressional Oversight Manual at pp. 199-204; and Mark J. Rozell, Executive Privilege in
the Bush Administration: Constitutional Problems, Bureaucratic Responses, 1 Miller Center
Journal 63, 71-72 (1994).
93. H. Res. 632, 97th
Cong., 128 Cong. Rec. 31746-76 (1982).
94. H.R. Rept. No. 94-693,
94th Cong., 1st Session (1975)(Secretary of State Henry R. Kissinger); H.R. Rept. No.
97-898, 97th Cong. 2d Sess. (1982)(Secretary of the Interior James G. Watt).
95. Secretary of Commerce
Rogers C.B. Morton (1975); Secretary of Health Education and Welfare Joseph Califano
(1978); Secretary of Energy Charles Duncan (1980); Secretary of Energy James Edwards
(1980); and Attorney General William French Smith (1984).
96. See, e.g., 1
U.S.C. 112b limiting congressional access to international agreements, other than
treaties, where, in the opinion of the President, public disclosure would be prejudicial
to the national security, to the foreign relations committees of each House under
conditions of secrecy removable only by the President; 26 U.S.C. 6103(d), 6104(a)(2)
limiting inspection of tax information to the Senate Finance Committee, House Ways and
Means Committee, and the Joint Committee on Taxation, or any committees "specifically
authorized by a resolution of the House or Senate"; 10 U.S.C. 1582, which provides
that in reporting to Congress on certain sensitive positions created in the Defense
Department, "the Secretary may omit any item if he considers a full report on it
would be detrimental to the national security"; and under 50 U.S.C. 402g, j(b), the
Congress' ability to obtain information about the Central Intelligence Agency,
particularly with regard to expenditures, is very limited.
97. See, e.g., F.T.C.
v. Owens-Corning Fiberglass Corp., 626 F.2d 966, 970 (D.C. Cir. 1980); Exxon
Corp. v. F.T.C., 589 F.2d 582, 585-86 (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).
98. F.T.C. v.
Owens-Corning Fiberglass Corp. 626 F.2d at 970; Exxon Corp. v. F.T.C., 589
F.2d at 589; Ashland Oil Co., Inc. v. F.T.C., 548 F.2d at, 979; Moon v. CIA,
514 F.Supp. 836, 840-41 (SDNY 1981).
99. F.T.C. v.
Owens-Corning Fiberglass Corp., 626 F.2d at 970; F.T.C. v. Anderson, 631
F.2d 741, 747 (D.C. Cir. 1970); Exxon Corp. v. F.T.C., 589 F.2d at 588-9.
100. F.T.C. v.
Owens-Corning Fiberglass Corp., 626 F.2d at 970; Exxon Corp. V. F.T.C., 589
F.2d at 589; Ashland Oil Corp. v. F.T.C., 548 F.2d at 979; Moon v. CIA,
514 F.Supp at 849-51.
101. Doe v. McMillan,
412 U.S. 306 (1973); F.T.C. v. Owens-Corning Fiberglass Corp. 626 F.2d at 970.
102. Ashland Oil Co.,
Inc. v. F.T.C., 548 F.2d at 980-81.
103. 5 U.S.C. 552(b)(5).
104. 5 U.S.C. 552(d).
105. 612 F.2d 1151,
1155-58 (D.C. Cir. 1979).
106. 5 U.S.C. 552a
(b)(9).
107. See discussion of
legislative history in CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1144-52
(D.C. Cir. 1987).
108. 441 U.S. 281, 301-16
(1979).
109. 41 Op. Atty. Gen.
221 (1955).
110. See Morton
Rosenberg, "Legal and Historical Substantiality of Former Attorney General
Civilette's Views as to the Scope and Reach of Congress' Authority to Conduct Oversight of
the Department of Justice," CRS, October 15, 1993, reprinted in
Hearing, "EPA's Criminal Enforcement Program", before the Subcommittee on
Oversight and Investigations, House Committee on Energy and Commerce, 103d Cong., 1st
Sess. 12-41 (1993). For an in-depth description of the most recent investigation of the
DOJ, see Staff Report, Damaging Disarray: Organizational Breakdown and Reform in the
Justice Department's Environmental Crimes Program, House Subcomm. on Oversight and
Investigations, Comm. on Energy and Commerce, 103rd Congress., 2d Session (Dec. 1994)
(Comm. Print No. 103-T).
111. See notes, 13-20, supra,
and accompanying text for a review of McGrain v. Daugherty and Sinclair v.
United States.
112. A leading statement
of the executive branch position is found in an opinion of Attorney General Robert
Jackson. 40 Op. A.G. 45 (1941).
113. See discussion of
case law, supra at notes 2-8 and 13-20, and accompanying text.
114. Hutcheson v.
United States, 369 U.S. 599, 617 (1962).
115. Sinclair v.
United States, 279 U.S. 263, 294 (1929).
116. See e.g., Delaney
v. United States, 199 F.2d 107 (1st Cir. 1952); United States v. Mitchell,
372 F.Supp. 1239, 1261 (S.D.N.Y. 1973). For discussion of issues in addition to
prejudicial publicity that have been raised in regard to concurrent congressional and
judicial proceedings, including allegations of violation of due process, see, Contempt of
Congress, H.R. Rpt. No. 97-968, 97th Cong., 2d Sess. 58 (1982; and the discussion of the
potential consequences of congressional grants of testimonial immunity on criminal trials,
supra, at notes 57-67 and accompanying text.
117. 199 F.2d 107, 114
(1st Cir. 1952). The court did not fault the committee for holding public hearings,
stating that if closed hearings were rejected "because the legislative committee
deemed that an open hearing at that time was required by overriding considerations of
public interest, then the committee was of course free to go ahead with its hearing,
merely accepting the consequence that the trial of Delaney on the pending indictment might
have to be delayed." 199 F.2d at 114-5. It reversed Delaney's conviction because the
trial court had denied his motion for a continuance until after the publicity generated by
the hearing, at which Delaney and other trial witnesses were asked to testify, subsided.
See also, Hutcheson v. United States, 369 U.S. 599, 613 (1962)(upholding contempt
conviction of person who refused to answer committee questions relating to activities for
which he had been indicted by a state grand jury, citing Delaney.)
118. 199 F.2d at 115.
119. See, Silverthorne
v. United States, 400 F.2d 627 (9th Cir. 1968), cert. denied, 400
U.S. 102 (1971)(claim of prejudicial pretrial publicity rejected because committee
hearings occurred five months prior to indictment); Beck v. United States, 298
F.2d 622 (9thCir. 1962)(hearing occurred a year before trial); United States v.
Haldeman, 559 F.2d 31, 63 (D.C. Cir. 1976), cert. denied, 433 U.S. 933
(1977); United States v. Ehrlichman, 546 F.2d 910, 917 (D.C. Cir. 1976), cert.
denied, 429 U.S. 1120 (1977); United States v. Mitchell, 372 F.Supp. 1239,
1261 (S.D.N.Y. 1973)(post-indictment Senate hearing but court held that lapse of time and
efforts of committee to avoid questions relating to indictment diminished possibility of
prejudice); United States v. Mesarosh, 223 F.2d 449 (3rd Cir. 1955)(hearing only
incidentally connected with trial and occurred after jury selected).
120. See, e.g., Pillsbury
Co. v. FTC, 354 F.2d 952 5th Cir. (1968).
121. See e.g., ATX,
Inc. v. Department of Transportation 41 F.3d 1522 (D.C. Cir. 1994); State of
California v. FERC, 966 F.2d 154 (9th Cir. 1992); Peter Kiewet Sons' v. U.S. Army
Corps of Engineers, 714 F.2d 163 (D.C. Cir. 1983); Gulf Oil Corp. v. FPC,
563 F.2d 588 (3d Cir. 1977), cert. denied, 434 U.S. 1062 (1978); United
States v. Armada Petroleum Corp., 562 F.Supp 43 (S.D. Tex. 1982). See also, Morton
Rosenberg and Jack Maskell, Congressional Intervention in the Administrative Process:
Legal and Ethical Considerations (CRS Report No 90-440A, Sept. 7, 1990).
122. See remarks of
Independent Counsel Lawrence E. Walsh, supra n.66 and accompanying text.
123. 487 U.S. 654 (1988).
124. Id. at
691-92.
125. Id. at 694.
126. 9 F.3d 743 (9th Cir.
1993).
127. Boeing argued, inter
alia, that Congress could not vest enforcement functions outside the Executive Branch
in private parties. Applying Morrison the appeals court emphatically rejected the
contention.
Before comparing the qui tam provisions of the FCA
to the independent counsel provisions of the Ethics in Government Act, we must address
Boeing's contention that only the Executive Branch has the power to enforce laws, and
therefore to prosecute violations of law. It is clear to us that no such absolute rule
exists. Morrison itself indicates otherwise because that decision
validated the independent counsel provisions of the Ethics in Government Act even though
it recognized that "it is undeniable that the Act reduces the amount of control or
supervision that the Attorney General and, through him, the President exercises over the
investigation and prosecution of a certain class of alleged criminal activity." 487
U.S. at 695. The Court also stated in Morrison that "there is no real
dispute that the functions performed by the independent counsel are `executive' in the
sense that they are law enforcement functions that typically have been undertaken by
officials within the Executive Branch." 487 U.S. at 692 (emphasis added). Use of the
world "typically" in that sentence, considered in light of the Court's ultimate
conclusion upholding the independent counsel provisions, must mean that prosecutorial
functions need not always be undertaken by Executive Branch officials. See Stephanie A.J.
Dangel, Note, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers'
Intent, 99 Yale L.J. 1069, 1070 (1990)(Framers intended that prosecution would be
undertaken by but not constitutionally assigned to executive officials, and that such
officials would typically but not always prosecute). Thus, we reject Boeing's
assertion that all prosecutorial power of any kind belongs to the Executive Branch.
9 F.3d at 751 (emphasis supplied).
128. Nixon v.
Administration of General Services, 433 U.S. 425,433 (1977); Commodity Futures
Trading Commission v. Schor, 487 U.S. 833, 851 (1986); Morrison v. Olson,
487 U.S. 654, 693-96 (1988).
129. U.S. v. Nixon,
418 U.S. 683, 705-706, 711-712 (1974).
130. Gulf Oil Corp. v.
FPC, 563 F.2d 588, 610 (3d Cir. 1977).
131. Fed. R. Crim. Pro. 6
(e) (2).
132. United States v. Sells
Engineering, Inc., 463 U.S. 418, 425 (1983); In re Sealed Motion, 880 F.2d
1367, 1373 (D.C. Cir. 1989).
133. Fed. R. Crim. Pro.
6(e) (2).
134. See In re Grand
Jury Proceedings of Grand Jury No. 81-1 (Miami), 669 F.Supp. 1072, 1074-75 (S.D. Fla.
1987), aff'd on other grounds, 833 F.2d 1438 (11th Cir. 1987); In re Report
and Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to the
House of Representatives, 370 F.Supp. 1219, 1230 9D.C.C. 1974), petitions for
writs of prohibition and mandamus den'd sub nom., Haldeman v. Sirica, 501 F.2d 714
(D.C. Cir. 1974); In re Grand Jury Investigation of Ven-Fuel, 441 F.Supp. 1299,
1304-308 (M.D. Fla. 1977).
135. United States v.
Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Circ. (1960)). See also, SEC
v. Dresser Industries, Inc., 628 F.2d 1368 (D.C.C. Cir. 1980); In re Grand Jury
Investigation (New Jersey State Commission of Investigation), 630 F.2d 996 (3rd Cir.
1980); Davis v. Romney, 55 F.R.D. 337 (E.D. Pa. 1972).
136. In re Grand Jury
Impanelled October 2, 1978, 510 F.Supp. 112, 115 (D.C.C. 1981); In re Grand Jury
Proceedings, Newport News Drydock & Shipbuilding Co., Mem. Opinion (E.D. Va. Nov.
12, 1984); In re Senate Banking Committee Hearings, 19 F.R.D. 410 (N.D. Ill.
1956).
137. In re Grand Jury
Investigation Uranium Industry, 1979-2 Trade Cas. 78, 639 (D.D.C. (1979)); In re
Grand Jury Impanelled October 2, 1978, 510 F.Supp. 112 (D.D.C. 112 (D.D.C. 1981).
138. Senate of Puerto
Rico v. U.S. Department of Justice, 823 F.2d 574, 583, 583n. 30 (D.C. Cir. 1987); In
Grand Jury Impanelled October 2, 1978 (79-2), 510 F.Supp. 112, 114-15 (D.D.C. 1981).
139. In re Harrisburg
Grand Jury -- 83-2, 638 F.Supp. 43, 47 n.4 (M.D. Pa. 1986); In re Grand Jury
Matter (Catania), 682 F.2d 61, 64 n.4 (3d Cir. 1982)
140. Washington Post
v. Robinson, 935 F.2d 282, 290-91 (D.C. Cir. 1991).
141. S.E.C. v.
Dresser Industries, Inc., 628 F.2d 1368, 1382-83 (D.C. Cir. 1980); United States
ex rel Woodard v. Tynan, 757 F.2d 1085, 1087-88 (10th Cir. 1985).
142. Anaya v. United
States, 815 F.2d 1373, 1380-81 (10th Cir. 1987).
143. United States v.
Rumely, 345 U.S. 41, 44 (1957); Watkins v. United States, 354 U.S. 178, 201
(1957); Gojack v. United States, 384 U.S. 202, 208 (1966).
144. Barenblatt v.
United States, 360 U.S. 109, 117 (1959); Watkins v. United States, supra,
209-215.
145. See Senate Resolution 229,
103d Cong., 2d Sess., directing the Senate Banking, Housing and Urban Affairs Committee to
conduct a limited hearing on the Whitewater affair. 140 Cong. Rec. S 6675 (daily ed. June
9, 1994).
146. See Sen. Res. 23 and 147. A Senate Judiciary Subcommittee to Investigate Individuals
Representing the interests of Foreign Governments was created by unanimous consent
agreement of the Senate. 126 Cong. Rec. 19544-46 (1980).
148. Senate Rule XXV.
149. House Rule X.
150. House Rule XI(2);
Senate Rule XXVI(2).
151. United States v.
Reinecke, 524 F.2d 435 (D.C. Cir 1975)(failure to publish committee rule setting one
Senator as a quorum for taking hearing testimony held sufficient ground to reverse perjury
conviction).
152. Gojack v. United
States 384 U.S. 702, 708 (1966); Yellin v. United States, 374 U.S. 109
(1963).
153. House Rule
XI(2)(k)(2).
154. House Rule
XI(2)(h)(1).
155. Senate Rule
XXVI(7)(a)(2).
156. Christoffel v.
United States, 338 U.S. 84 (1949).
157. Senate Rule
XXVI(7)(a)(2); House Rule XI(2)(h)(1).
158. Senate Rule
XXVI(5)(b); House Rule X1(2)(g)(2).
159. House Rule
XI(2)(k)(5).
160. House Rule
XI(2)(k)(7).
161. Id.
162. Doe v. McMillan,
566 F.2d 713, 713-16 (D.C. Cir. 1977), cert. denied, 435 U.S. 969 (1978).
163. Art. I, sec. 6, cl.
2.
164. The purposes of the
Speech or Debate Clause are to assure the independence of Congress in the exercise of its
legislative functions and to reinforce the separation of powers established in the
Constitution. Eastland v. United States Servicemen's Fund, 421 U.S. 502-03
(1975). The Supreme Court has read the Clause to broadly effectuate its purposes. Id.;
United States v. Swindall, 971 F. 2d 1531, 1534 (11th Cir. 1992). The Clause
protects "purely legislative activities", including those inherent in the
legislative process. Chastain v. Lundquist, 833 F. 2d 311, 314 (D.C. Cir. 1987)
(quoting U.S. v. Brewster, 408 U.S. 501, 512 (1972), cert. denied
487 U.S. 1240 (1988). Actions protected under the provisions include those taken in the
regular course of the legislative process and the motivations of the legislators for their
actions. United States v. Helstoski, 442 U.S. 477, 489 (1979). In
addition to shielding "words spoken in debate", Kilbourn v. Thompson,
103 U.S. 168, 204 (1880), the Clause encompasses such activity integral to lawmaking as
voting, id., circulation of information to other members, Doe v. McMillan
412 U.S. 306 (1973), Gravel v. United States, 408 U.S. 606, 625 (1972), and
participation in committee investigative proceedings, and reports. Id., Eastland v.
U.S. Servicemen's Fund, supra; Dombrowski v. Eastland, 387 U.S. 82 (1967); Tenney
v. Brandhove, 341 U.S. 367 (1951).
However, activities only casually or incidentally related
to legislative affairs are outside the ambit of Speech or Debate protection. Thus
newsletter and press releases circulated by a member to the public are not shielded
because they are "primarily means of informing those outside the legislative
forum". Hutchinson v. Proxmire, 443 U.S. 111 (1979). Also a member may be
prosecuted for accepting a bribe or for other unlawful conduct so long as the prosecution
"does not draw in question the legislative act of the defendent Member of
Congress". United States v. Brewster, supra, 408 U.S. at 510 (quoting United
States v. Johnson, 383 U.S. at 185). The key consideration is the act presented for
examination, not the actor. Activities integral to the legislative process may not be
examined, but peripheral activities not closely connected to the business of legislating
do not enjoy the protection of the Clause. Walker v. Jones, 733 F. 2d, 927, 929
(D.C. Cir. 1984).
165. Senate Rule
XXVI(3)(c).
166. See discussion, supra
at notes 77-78 and accompanying text.
167. 2 U.S.C. 191.
168. House Rule
XII(2)(k)(3).
169. See, e.g.,
Senate Permanent Committee on Investigations Rule 8.
170. See, e.g., Senate
Aging Committee Rule V. 8; Senate Permanent Subcommittee on Investigations Rule 7.
171. United States v.
Fort, 443 F.2d 620, 678-79 (D.C. Cir. 1970), cert. denied, 403 U.S. 932
(1971).
172. 2 U.S.C. 191.
173. See McPhaul v.
United States, 364 U.S. 372 (1960).
174. Hale v. Henkel,
201 U.S. 43 (1906).
175. Bellis v. United
States, 417 U.S. 85 (1974).
176. See United
States v. White, 322 U.S. 694 (1944).
177. Bellis v. United
States, 417 U.S. at 90. See also Rogers v. United States, 340 U.S. 367
(1951)(Communist Party).
178. Fisher v. United
States, 425 U.S. 391, 409 (1976); Andresen v. Maryland, 427 U.S. 463 (1976).
These cases concerned business records and there may be some protection available in the
case of a subpoena for personal papers. However, in Senate Select Committee on Ethics
v. Packwood, 845 F.Supp 17, 22-23 (D.D.C, 1994), stay pending appeal denied,
114 S.Ct. 1036 (1994), the court upheld disclosure to the Senate Ethics Committee of a
Senator's diaries, holding that the Fifth Amendment "does not protect against [the
diaries'] incriminating contents voluntarily committed to paper before the
government makes demand for them" (emphasis in original).
179. United States v.
Doe, 465 U.S. 605 (1984); Fisher v. United States, 425 U.S. 391 (1976). But c.f.,
Doe v. United States, 487 U.S. 201 (1988), where the Court upheld a lower court order
compelling the target of a grand jury investigation to sign a consent directive
authorizing foreign banks to disclose records of any and all accounts over which he had a
right of withdrawal, holding it not to be testimonial in nature.
180. Emspak v. United
States, supra, 349 U.S. at 194.
181. Quinn v. United
States, supra, 349 U.S. at 164.
182. Eisler v. United
States, 170 F.2d 273 (D.C. Cir. 1948), cert denied, 338 U.S. 887 (1949).
183. Hoffman v.
United States, 341 U.S. 479, 486 (1951). Where a witness asserts the privilege, a
committee may seek a court order under 18 U.S.C. 6002, 6005 which directs him to testify
and grants him immunity against use of his testimony, or other evidence derived from his
testimony, in a subsequent criminal prosecution. See discussion of procedure to obtain
such an immunity order, supra at notes 45-56 and accompanying text.
184. Hoffman v.
United States, 341 U.S. 479, 486-87 (1951).
185. 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' name and address).
186. Emspak v. United
States, 349 U.S. 190 (1955). See also Johnson v. Zerbst, 304 U.S. 458, 464
(1938).
187. 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.
188. Watkins v.
United States, 354 U.S. 178, 214-15 (1957).
189. Id.; Deutch v.
United States, 367 U.S. 456 (1961).
190. Watkins v.
United States, 354 U.S. 178, 197 (1957).
191. 360 U.S. 109, 126
(1959).
192. Id.
193. Watkins v.
United States, 354 U.S. at 198. A balancing test was also used in Branzburg v.
Hayes, 408 U.S. 665 (1972), the leading case on the issue of the claimed privilege of
newsmen not to respond to demands of a grand jury for information. In its 5-4 decision,
the Court concluded that the need of the grand jury for the information outweighed First
Amendment considerations, but there are indications in the opinion 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." Id. at 699-700. For application of the compelling interest test in
a legislative investigation, see Gibson v. Florida Legislative Investigation
Committee, 372 U.S. 539 (1963). See also, James J. Mangan, Contempt for the Fourth
Estate: No Reporter's Privilege Before a Congressional Investigation, 83 Geo. L.J. 129
(1994) (arguing that bases for reporter's privilege are outweighed by governmental
interests in a congressional investigation).
194. Barenblatt v.
United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178
(1957); United States v. Rumely, 345 U.S. 41 (1953).
195. Although it was not
in the criminal contempt context, one court of appeals has upheld a witness' First
Amendment claim. In Stamler v. Willis, 415 F.2d 1365 (7th Cir. 1969), cert.
denied, 399 U.S. 929 (1970), the court ordered to trial a witness' suit for
declaratory relief against the House Un-American Activities Committee in which it was
alleged that the committee's authorizing resolution had a "chilling effect" on
plaintiff's First Amendment rights. In other cases for declaratory and injunctive relief
brought against committees on First Amendment grounds, relief has been denied although the
courts indicated that relief could be granted if the circumstances were more compelling. Sanders
v. McClellan, 463 F.2d 894 (D.C. Cir. 1972); Davis v. Ichord, 442 F.2d 1207
(D.C. Cir. 1970); Ansara v. Eastland, 442 F.2d 751 (D.C. Cir. 1971). However, in Eastland
v. United States Servicemen's Fund, 421 U.S. 491 (1975), the Supreme Court held that
the Constitution's Speech or Debate clause (art. I, sec. 6, cl. 1) generally bars suits
challenging the validity of congressional subpoenas on First Amendment or other grounds.
Thus, a witness generally cannot raise his constitutional defenses until a subsequent
criminal prosecution for contempt unless, in the case of a Senate committee, the statutory
civil contempt procedure is employed. See United States v. House of Representatives,
556 F.Supp. 150 (D.D.C. 1983).
196. United States v.
Rumely, 345 U.S. 41 (1953).
197. Gibson v.
Florida Legislative Investigation Committee, 372 U.S. 539 (1963). In the majority
opinion, Justice Goldberg observed that "an essential prerequisite to the validity of
an investigation which intrudes into the area of constitutionally protected rights of
speech, press, association and petition [is] that the State convincingly show a
substantial relation [or nexus] between the information sought and a subject of overriding
and compelling state interest". Id. at 546.
198. Watkins v.
United States, 354 U.S. 178, 188 (1957); McPhaul v. United States, 364 U.S.
372 (1960).
199. Fourth Amendment
standards apply to subpoenas, such as those issued by committees, as well as to search
warrants. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946). A
congressional subpoena may not be used in a mere "fishing expedition." See Hearst
v. Black, 87 F.2d 68, 71 (D.C. Cir. 1936), quoting, Federal Trade Commission v.
American Tobacco Co., 264 U.S. 298, 306 (1924) ("It is contrary to the first
principles of justice to allow a search through all the record, relevant or irrelevant, in
the hope that something will turn up."). Cf. United States v. Groves, 188
F.Supp. 314 (W.D. Pa. 1937) (dicta). But see Eastland v. United States
Servicemen's Fund, 421 U.S. 491, 509 (1975), in which the Court recognized that an
investigation may lead "up some `blind alleys' and into nonproductive enterprises. To
be a valid legislative inquiry there need be no predictable end result".
200. McPhaul v.
United States, 364 U.S. 372 (1960); Shelton v. United States, 404 F.2d 1292
(D.C. Cir. 1968), cert. denied, 393 U.S. 1024 (1969). In Senate Select Committee on
Ethics v. Packwood, 845 F.Supp. 17, 20-21 (D.D.C. 1994), stay pending appeal
denied, 114 S.Ct. 1036 (1994), the court rejected a claim of overbreadth with regard
to a subpoena for a Senator's personal diaries, holding that committee's investigation was
not limited in its investigatory scope to its original demands "even though the
diaries might prove compromising in respects the committee has not yet foreseen".
201. McPhaul v.
United States, 364 U.S. at 382.
202. Shelton v.
United States, 404 F.2d at 1299-1300.
203. McPhaul v.
United States, 364 U.S. at 378.
204. Nelson v. United
States, 268 F. 2d 505 (D.C. Cir.), cert denied, 346 U.S. 827 (1953)
205. In United States
v. McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972), the court of appeals reversed
contempt convictions where the subcommittee subpoenas were based on information
"derived by the subcommittee through a previous unconstitutional search and seizure
by [state] officials and the subcommittee's own investigator." The decision of the
court of appeals in the contempt case was rendered in December, 1972. In a civil case
brought by the criminal defendants, Alan and Margaret McSurely, against Senator McClellan
and the subcommittee staff for alleged violations of their constitutional rights by the
transportation and use of the seized documents, the federal district court in June, 1973,
denied the motion of the defendants for summary judgment. While the appeal from the
decision of the district court in the civil case was pending before the court of appeals,
the Supreme Court held in Calandra v. United States, 414 U.S. 338 (1974), that a
grand jury is not precluded by the Fourth Amendment's exclusionary rule from questioning a
witness on the basis of evidence that had been illegally seized. A divided court of
appeals subsequently held in McSurely v. McClellan, 521 F.2d 1024, 1047 (D.C.
Cir. 1975), that under Calandra "a congressional committee has the right in
its investigatory capacity to use the product of a past unlawful search and seizure."
The decision of the three-judge panel in the civil case was
vacated and on rehearing by the full District of Columbia Circuit, five judges were of the
view that Calandra was applicable to the legislative sphere and another five
judges found it unnecessary to decide whether Calandra applies to committees but
indicated that, even if it does apply to the legislative branch, the exclusionary rule may
restrict a committee's use of unlawfully seized documents if it does not make mere
"derivative use" of them but commits an independent Fourth Amendment violation
in obtaining them. McSurely v. McClellan, 553 F.2d 1277, 1293-94, 1317-25 (D.C.
Cir. 1976) (en banc). The Supreme Court granted certiorari in the case,
434 U.S. 888 (1977), but subsequently dismissed certiorari as improvidently
granted, with no explanation for this disposition of the case, sub nom. McAdams v.
McSurely, 438 U.S. 189 (1978). Jury verdicts were eventually returned against the
Senate defendants, but were reversed in part on appeal. 753 F.2d 88 (D.C. Cir. 1985), cert.
denied, U.S. (1985).
More recently, in a contextually relevant situation, a
district court quashed subpoenas issued on behalf of tobacco companies against two members
of Congress for testimony and production of documents relating to a congressional
investigation of the company's knowledge of the health hazards and addictiveness of
tobacco. Maddox v. Williams, 855 F. Supp. 406 (D.D.C. 1994), appeal pending
in the D.C. Circuit. The companies had contended that the documents had been stolen
and disclosed in violation of the attorney-client privilege. The court held that "use
by a congressional committee of information that is gathered illegally is nevertheless
protected by the Speech or Debate Clause, provided the use occurs in the course of a
legitimate congressional investigation, and Congressmen were not personally involved in
the criminal activity." 855 F. Supp. at 411-12 (citing, inter alia, Dombroski
v. Eastland, 387 U.S. 82,85,87 (1967) and Eastland v. United States Servicemen's
Fund, supra, 421 U.S. at 501). The court also rejected the companies'
reliance on McSurely as "misplaced". Its opinion described McSurely
as "holding that, even if material comes to a legislative committee by means that are
unlawful, subsequent committee use of that material is nevertheless privileged", 855
F. Supp at 412 note 18, 417.
206. Hearings,
"International Uranium Cartel", Subcomm. on Oversight and Investigations, House
Comm. on Interstate and Foreign Commerce, 95th Cong., 1st Sess., Vol. 1, 123 (1977).
207. See 2
U.S.C. 190d.
208. McGrain v.
Daugherty, 273 U.S. 135, 174 (1927); Watkins v. United States, 354 U.S. 178,
187 (1957); Barenblatt v. United States, 360 U.S. 109, 111 (1959).
209. Erskine May's
Treatise at 746-747 (20th ed. 1983). May's Treatise has been relied upon as an
authoritative guide to parliamentary and congressional investigatory authority. See,
e.g., McGrain v. Daugherty, supra, 273 U.S. at 161 note 15.
210. Millet, The
Applicability of Evidentiary Privileges For Confidential Communications Before Congress,
21 John Marshall L. Rev. 309, 312-313 (1988)(Millet).
211. Millet, ibid.,
at 313-314. See also, Stewart v. Blaine, 1 MacArthur 453 (D.C. 1874); Eberling,
Congressional Investigations 349-350 (1928); Proceedings Against Ralph Bernstein and
Joseph Bernstein. H.Rept. No. 99-462, 99th Cong., 2d Sess. 13 notes 12-14 (1986)(Bernstein
Contempt Report.).
212. See, Attorney-Client
Privilege, Memoranda Opinions of the American Law Division, Library of Congress, Committee
Print 98-I, (98th Cong. June 1983)(CRS Memoranda). See also Hearings, International
Uranium Cartel, before Subcommittee on Oversight and Investigations, House Committee on
Interstate and Foreign Commerce, 95th Cong., 1st Sess. Vol. 1 (1977).
213. See, S. Rept. No. 2,
84th Cong., 1st Sess. 27-28 (1954); CRS Memoranda, supra note 212, at 24-26.
214. See, e.g.,
Hearings on the International Uranium Cartel Before the Subcomm. on Oversight and
Investigations of the House Comm. on Interstate and Foreign Commerce, 95th Cong., 1st
Sess. 60, 123 (1977); see also CRS Memoranda, supra, at 1-2, 27-36, 108-115.
215. 132 Cong. Rec.
3028-3062 (1986); Bernstein Contempt Report, supra note 211, at 1.
216. Bernstein Contempt
Report, at 14.
217. Id. at
14-15.
218. 132 Cong. Rec. at
3061-62.
219. "Subcommittee
on Nuclear Regulation [Senate Committee on Environment and Public Works] Ruling on Claims
of Attorney-Client Privilege," to Ms. Billie P. Garde from Chairman John Breaux and
Senator Alan K. Simpson, dated July 19, 1989, at pp. 12-13 (Copy on file in the American
Law Division, CRS).
220. Id. at 14.
221. Id. at 15,
18-19.
222. In the Matter of
Provident Life & Accident Co., E.D. Tenn., S.D., CIV-1-90-219, June 13, 1990 (per
Edgar, J.).
223. See, Hearings before
the Senate Permanent Subcomm. on Investigations, Committee on Governmental Affairs,
"Health Care Fraud/Medicare Secondary Payee Program," 101st Cong., 2d Sess.,
July 11 and 12, 1990, at pp. 3-10.
224. See, e.g., Upjohn
v. United States, 449 U.S., 382, 389 (1981).
225. Id.
226. Hannah v. Larche,
363 U.S. 420, 425 (1960); see also, United States v. Fort, 443 F.2d 670 (D.C.
Cir. 1970), cert. denied, 403 U.S. 932 (1971) (rejecting contention that the
constitutional right to cross-examine witnesses applied to a congressional investigation).
227. U.S. Const., Art. I,
Sec. 5, cl. 2.
228. For example, see
discussion of difficulties in corporate confidentiality and the development of the
doctrine of waiver, in CRS Memoranda, supra note 212 at 26-32, 102-107. See also Garner
v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), cert. denied, 401 U.S. 974
(1971) (In shareholder derivative suits "the availability of the privilege [should]
be subject to the right of stockholders to show cause why it should not be invoked in the
particular instance.").
229. Hickman v.
Taylor, 329 U.S. 495, 511 (1974).
230. See, e.g., Central
National Insurance Co. v. Medical Protective Co. of Fort Wayne, Indiana, 107 F.R.D.
393, 395 (E.D. Mo. 1985); Chepanno v. Champion International Corp., 104 F.R.D.
395, 396 (D. Or. 1984); American Standard, Inc. v. Bendix Corp. 71 F.R.D. 443,
446 (W.D. Mo. 1976).
231. Kirkland v.
Morton Salt Co., 46 F.R.D. 28, 30 (N.D. Ga. 1968).
232. 210 F.Supp. 483, 485
(E.D. Pa. 1962), cert. denied sub. nom. General Electric Co. v. Kirkpatrick, 372
U.S. 943 (1963).
233. Fisher v. United
States, 425 U.S. 391 (1976).
234. 8 Wigmore, Evidence,
§2291 at 554 (McNaughton rev. 1961).
235. In re Grand Jury
Investigation No. 83-2-35, 723 F.2d 447, 451 (6th Cir. 1983). See also, In re
Shargel, 742 F.2d 61, 62 (2d Cir. 1984); U.S. v. Lawless, 709 F.2d 485, 487
(7th Cir. 1983); U.S. v. Goldfarb, 328 F.2d 280 (6th Cir.) cert denied
370 U.S. 976 (1964).
236. See, e.g., In re
Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 450-51 (6th Cir. 1983); U.S.
V. Lawless, 709 F.2d 485, 487 (7th Cir. 1983); In re Grand Jury Witness (Salas),
695 F.2d 359, 362 (9th Cir. 1982); In fe Walsh, 623 F.2d 489, 493 (7th Cir.), cert
denied, 449 U.S. 994, 101 S. Ct. 531, 66 L.Ed. 2d 291 (1980); Liew v. Breen
640 F. 2d 1046, 1049 (9th Cir. 1981); United States v. Stern 511 F.2d 1364, 1367
(2nd Cir. 1975); United States v. Landof 591 F.2d 36, 38 (9th Cir. 1978); In
re Grand Jury Empaneled February 14, 1978 (Markowitz), 603 F.2d 469, 474 (3d Cir.
1979); United States v. Hodgson, 492 F.2d 1175 (10th Cir. 1974); United
States v. Tratner, 511 F.2d 248, 251 (7th Cir. 1975); United States v. Demauro,
581 F.2d 50, 55 (2d Cir. 1978); United States v. Ponder, 475 F.2d 37, 39 (5th
Cir. 1973); United States v. Bartlett, 449 F.2d 700, 703 (8th Cir. 1971), cert.
denied, 405 U.S. 932 (1972); In re Application of John Doe, Esq., 603
F.Supp. 1164, 1166 (E.D.N.Y. 1985); In re Grand Jury Subpoena December 18, 1981,
561 F.Supp. 1247, 1251 (E.D.N.Y. 1981).
237. SEC v. Gulf and
Western Industries, Inc., 518 F.Supp. 675, 682 (D.D.C. 1981).
238. In re Grand Jury
Investigation No. 83-2-35, 723 F.2d 447, 454 (6th Cir. 1983); U.S. v. Lawless,
709 F.2d 485, 487 (7th Cir. 1983); In re Grand Jury Witness (Salas), 695 F.2d
359, 382 (9th Cir. 1982); U.S. v. Davis, 636 F.2d 1028, 1044 n. 20 (5th Cir.
1981); U.S. v. Cromer, 483 F.2d 99, 102 (9th Cir. 1973); Colton v. U.S.,
306 F.2d 633, 639 (2d Cir. 1962).
239. 613 F.2d 1151, 1155
(D.C. Cir. 1979).
240. See, In re
Sunrise Securities Litigation, 109 Bankr. 658, 1990 U.S. Dist. Lexis 168, U.S.D.C.
E.D.Pa., Jan. 9, 1990; In re Consolidated Litigation Concerning International
Harvester's Disposition of Wisconsin Steel, 9 E.B.C. 1929, 1987 U.S. Dist. Lexis
10912, U.S.D.C. N.D. Ill.
241. 8 J. Wigmore §2192,
at 70.
242. Magida ex rel.
Vilcon Detinning Co. v. Continental Can Co., 12 F.R.D. 74, 77 (S.D.N.Y. 1951).
243. See, e.g., Permian
Corp. v. United States, 665 F.2d 1214, 1219 (D.C. Cir. 1981); United States v. AT
& T Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980).
244. 8 J. Wigmore,
§2327, at 632-39.
245. United States v.
AT & T Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980); In re Horowitz, 482
F.2d 72, 82 (2d Cir.) cert. denied, 414 U.S. 867 (1973).
246. Blackburn v.
Crawford, 70 U.S. (3 Wall.) 175, 194 (1965).
247. In re Grand Jury
Investigation of Ocean Transp., 604 F.2d 672 (D.C. Cir.), cert. denied, 444
U.S. 915 (1979).
248. Magida ex rel.
Vulcan Determining Co. v. Continental Can Co., 12 F.R.D. 74, 77 (S.D.N.Y. 1951).
249. Id.
250. 8 J. Wigmore,
§2327.
251. Teachers Ins.
& Annuity Assn. of America v. Shamrock Broadcasting Co., 521 F.Supp. 638, 641
(S.D.N.Y. 1981); R.J. Hereley & Sons Co. v. Stotler & Co., 87 F.R.D. 358,
359 (N.D. Ill. 1980); Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 156 (D.
Del. 1977); Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1161-62
(D.S.C. 1974).
252. Perrigrion v.
Bergen Brunswick Corp., 77 F.R.D. 455, 461 (N.D. Calif. 1978); Hercules, Inc. v.
Exxon Corp., 434 F. Supp. 136, 156 (D. Eel. 1977); Duplan v. Deering Milliken,
397 F.Supp. 1146, 1161-62 (D.S.C. 1974); IT &T v. United Tel. Co., 60 F.R.D.
177, 188-86 (M.D. Gla. 1973).
253. United States v.
Aronoff, 466 F.Supp. 855, 862 (S.D.N.Y. 1979).
254. E.g., United
States v. Woodall, 438 F.2d 1317, 1323-24 (5th Cir. 1970), cert. denied, 403
U.S. 933 (1971); Transworld Airlines v. Hughes, 332 F.2d 602, 615 (2d Cir. 1964),
cert. dismissed, 380 U.S. 248 (1965); Barr Marine Prods. v. Borg-Warner Corp.,
84 F.R.D. 631, 635 (E.D. Pa. 1979); Hangards, Inc. v. Johnson & Johnson, 413
F.Supp. 926, 929 (N.D. Calif. 1976).
255. See, e.g.,
United States v. El Paso Co., 682 F.2d 530, 539, 540 (5th Cir. 1982) (documents
created with knowledge that independent accountants may need access to them to complete
audit waives privilege.); Permian Corp. v. United states, 665 F.2d 1214, 1219
(D.C. Cir. 1981)(disclosure of documents to SEC waives privilege); United States v.
Miller, 660 F.2d 563, 567-68 (5th Cir. 1981)(previous delivery of accounting books to
IRS vitiates privilege.); United States v. Kelsey-Hayes Wheel Co., 15 F.R.D. 461,
464 (E.D. Mich. 1954)(privilege waived on disclosure to Justice Department).
256. 8 J. Wigmore,
Evidence, §2367 at 636 (McNaughton rev. ed. 1961).
257. Permian Corp. v.
U.S., 665 F.2d 1214, 1221-22 (D.C. Cir. 1981).
258. See, e.g.,
United States v. Miller, 660 F.2d 563, 567-68 (5th Cir. 1981)(disclosure to IRS); In
re Grand Jury Investigation of Ocean Transp., 604 F.2d 672 (D.C. Cir. 1979), cert.
denied, 444 U.S. 915 (1979)(to Antitrust Div. of Dept. of Justice); Donovan v.
Fitzsimmons, 90 F.R.D. 583, 585 (N.D. Ill. 1981)(to Dept. of Labor); Litton
Systems, Inc. v. American Tel. & Tel. Co., 27 Fed. R. Serv. 2d (Callaghan) 819
(S.D.N.Y. 1979)(to district attorney); In re Penn. Cent. Commercial Paper Litig.,
61 F.R.D. 453, 462-64 (S.D.N.Y. 1973)(to SEC); D'Ippolito v. Cities Serv. Co., 39
F.R.D. 610 (S.D.N.Y. 1965)(to Antitrust Div. of Dept. of Justice).
259. See, e.g.,
Diversified Industries v. Meredith, 572 F.2d 596, 611 (8th Cir. 1977); Byrnes v.
IDS Realty Trust Co., 85 F.R.D. 679, 687-89 (S.D.N.Y. 1980); In re Grand Jury
Subpoena, 478 F.Supp. 368, 372-73 (E.D. Wisc. 1979).
260. In re John Doe
Corporation, 675 F.2d 482 (2d Cir. 1982).
261. In re Martin
Marietta Corp., 856 F.2d 619 (4th Cir. 1988); United States v. (Under Seal),
748 F.2d 871, 875 (4th Cir. 1984); In re Grand Jury Proceedings, 727 F.2d 1352,
1356 (4th Cir. 1984).
262. In re Subpoena
Duces Tecum, 738 F.2d 1367 (D.C. Cir. 1984); In re Sealed Case, 676 F.2d 793
(D.C. Cir. 1982); Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981).
263. In re Martin
Marietta Corp., 856 F.2d 619, 623 (4th Cir. 1988).
264. Id.
265. 856 F.2d at 623.
266. Zenith Radio
Corp. v. Radio Corp. of America, 121 F.Supp. 792, 794 (D. Del. 1954) (emphasis
supplied); SCM Corp. v. Xerox Corp., 70 FRD 508, 517 (D. Conn. 1976).
267. Colton v. U.S.,
306 F.2d 633, 636, 638 (2d Cir. 1962); U.S. v. Tellier, 255 F.2d 441 (2d Cir.
1958); J.P. Foley & Co., Inc. v. Vanderbilt, 65 FRD 523, 526-27 (S.D.N.Y.
1974).
268. In re Shargel,
742 F.2d 61, 62 (2d Cir. 1984); In re Grand Jury Investigation No. 83-2-35, 723
F.2d 447, 451-52 (6th Cir. 1983); In re Grand Jury Proceedings in Matter of Freeman,
208 F.2d 1581, 1575 (11th Cir. 1983); In re Grand Jury Proceedings (Robert Twist, Sr.),
689 F. 2d 1351, 1352 (11th Cir. 1982); Colton v. United States, 306F.2d 633,
637-38 (2d Cir. 1962), cert. denied, 371 U.S. 951 (1963); United States v.
Pape, 144 F.2d 778, 783 (2d Cir.), cert. denied, 323 U.S. 752 (1944).
269. See, e.g., In re
John Doe Corporation, 675 F.2d 482 (2d Cir. 1982); Union Camp Corp. v. Lewis,
385 F.2d 143, 144-45 (4th Cir. 1967); United States v. Bob, 106 F.2d 37, 40 (2d
Cir.), cert. denied, 308 U.S. 589 (1939).
270. House Rule XI
2(j)(1); House Banking Committee Rule IV. 4.
271. Ashland Oil Co.,
Inc., v. FTC, 548 F.2d 977, 979-80 (D.C. Cir. 1976), affirming 409 F.Supp.
297 (D.D.C. 1976). See also Exxon v. Federal Trade Commission, 589 F.2d 582,
592-93 (D.C. Cir. 1978) (acknowledging that the "principle is important that
disclosure of information can only be compelled by authority of Congress, its committees
or subcommittees, not solely by individual members ..."); and In re Beef Industry
Antitrust Litigation, 589 F.2d 786, 791 (5th Cir. 1979)(refusing to permit two
congressmen from intervening in private litigation because they "failed to obtain a
House Resolution or any similar authority before they sought to intervene.")
272. Leach v.
Resolution Trust Corporation, 860 F.Supp 868 (D.D.C. 1994). Unless otherwise
indicated, the factual context of the suit is as described in court's opinion and the
briefs submitted by the parties.
273. Lee v. Kelley,
99 F.R.D. 340 (D.D.C. 1983), aff'd sub. nom. Southern Christian Leadership
Conference v. Kelley, 747 F.2d 777 (D.C. Cir. 1984),
274. 99 F.R.D. at 342.
275. Id. at 343.
The appeals court affirmed on the ground that Senator Helms lacked standing because he had
not asserted any interest protected by the Constitution, and that his complaint was
actually with his fellow Senators. 747 F.2d at 779-81.
276. 5 U.S.C. 552 (1988).
277. See 5 U.S.C. 552(d)
stating that "This section is not authority to withhold information from
Congress."
278. 5 U.S.C. 702, 706
(1988).
279. 860 F.Supp. at
871-72.
280. Id. at
874-76.
281. Id. at 876
note 7. 5 U.S.C 2954 provides: " An Executive agency, on request of the Committee on
Government Operations of the House of Representatives, or of any seven members thereof, or
on request of the Committee on Government Operations of the Senate, or any five members
thereof, shall submit any information requested of it relating to any matter within the
jurisdiction of the committee."
282. 45 Stat. 996.
283. H.R. Rep. No. 1757,
70th Cong., 1st Sess., pp. 2 - 3 (1928). A study of the Bureau of Efficiency had
recommended their elimination. H.R. Rep. 1757, at p. 2; S. Rep. No. 1320, 70th Cong., 1st
Sess., p. 1 (1928).
284. S. Rep. No. 1320, supra,
at 4.
285. H.R. Rep. No. 1757, supra,
at 1.
286. In codifying Title 5
in 1966, Congress made it clear that it was effecting no substantive changes in existing
laws: "The legislative purpose in enacting sections 1-6 of this Act is to restate,
without substantive change, the laws replaced by those sections on the effective date of
this Act." Pub. L. 89-544, sec. 7(a).
287. See Stanley Bach,
Minority Rights and Senate Procedures, Congressional Research Service, Report No. 94-978,
December 5, 1994.
288. Senate Rule XIX.
289. See Bach, supra note
287 at pp. 8-11.
290. A full description
of the work of the Office of Senate Legal Counsel and its work may be found in Floyd M.
Riddick and Alan S. Frumin, Riddick's Senate Procedure, S.Doc. No. 28, 101st Cong., 2d
Sess. 1236 (1992).
291. Pub. L. No. 95-520,
secs. 701 et seq., 92 Stat. 1824, 1875 (1978), codified principally in 2
U.S.C. secs. 288, et seq.
292. S.Rep. No. 95-170,
95th Cong., 2d Sess. 84 (1978).
293. 2 U.S.C. 288(a) and
(b), 288a.
294. In addition, the
Office is called upon to defend the Senate, its committees, officers and employees in
civil litigation relating to their official responsibilities or when they have been
subpoenaed to testify or to produce Senate records; and to appear for the Senate when it
intervenes or appears as amicus curiae in lawsuits to protect the powers or
responsibilities of the Congress.
295. 2 U.S.C.
288b(d),(e), 288f.
296. 2 U.S.C. 1207(f).
297. The procedure for
applying for an immunity order is detailed, supra, at notes 47-56 and
accompanying text.
298. See S.Rep. No. 98,
101st Cong., 1st Sess. (1989).
299. See, Senate
Select Committee on Ethics v. Packwood, 845 F.Supp 17 (D.D.C. 1994), petition for
stay pending appeal denied, 114 S.Ct. 1036 (1994).
300. 2 U.S.C. 288d and 28
U.S.C. 1365.
301. See R.Rep. No. 98,
101st Cong., 1st Sess. (1989).
302. See, Senate
Select Committee on Ethics v. Packwood, 845 F.Supp 17 (D.D.C. 1994), petition for
stay pending appeal denied, 114 S.Ct. 1036 (1994).
303. 2 U.S.C. 288g(a)(5)
and (6).
304. 2 U.S. 288g(c).
305. See S.Rep. No. 1015,
96th Cong., 2d Sess. (1980).
306. See S.Rep. No. 682,
97th Cong., 2d Sess. (1982).
307. See S.Rep. No. 812,
99th Cong., 2d Sess. (1986).
308. See S.Rep. No. 164,
101st Cong., 1st Sess. (1989).
309. See S.Rep. No. 164,
101st Cong., 1st Sess. (1989).
310. See H.Res. 5, sec.
11, 139 Cong. Rec. H5 (daily ed. Jan. 5, 1993).
311. Thus, like the
Senate Legal Counsel, the House General Counsel may be called upon to defend the House,
its committees, officers, and employees in civil litigation relating to their official
responsibilities, or when they have been subpoenaed to testify or to produce House records
(see House Rule 50); and to appear for the House when it intervenes or appears as amicus
curiae in lawsuits to protect the powers or responsibilities of the Congress.
312. See, e.g., U.S.
v. McDade, 28 F.3d 283 (3th Cir. 1994).
313. See, e.g.,
Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994).
314. See, 132 Cong. Rec.
3036-38 (1986).
315. See, e.g., 131 Cong.
Rec. 25793-95 (1985)(opinion on the constitutionality of the Competition in Contracting
Act.)
316. See, e.g.,
Hearings, "Environmental Crimes at the Rocky Flats Nuclear Facility", before the
Subcommittee on Investigation and Oversight, Committee on Science, Space and Technology,
101st Cong., 2d Sess. 1645-67 (1992) (Statement of Deputy General Counsel Charles Tiefer
on requiring the President to claim executive privilege.)
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