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 part
