Jump to Navigation

Navigating the Oversight Investigations to Come: A Quick Reference Guide for Companies and Individuals in the 116th Congress

January 3, 2019

When the 116th Congress convenes this week and a new Democratic majority takes the gavel in the U.S. House, an array of industry associations, private-sector companies, and business executives unaccustomed to congressional inquiry will face oversight scrutiny for the first time since 2010. Many will be quickly called – and, if they resist, compelled – to give sworn testimony in public hearings and produce confidential documents by the thousands to illuminate controversial actions taken by the Trump administration, the roles they played, and how they benefited.

Pent-up frustration with President Trump’s aggressive rollback of federal energy, environmental, and land-use regulations is particularly acute on the Left. To date, nearly 80 rules have been targeted by EPA, DoI, DoT, DoD, DoE, BLM, SEC, and the EOP, touching every corner of the modern framework of environmental protection, from air pollution and climate, to water quality, to toxic chemicals and pesticides, to hazardous waste, to endangered species.[1] With newly seated Democratic committee chairs wielding Congress’ vast investigative powers – now including unilateral authority to issue subpoenas on any topic within their expansive jurisdictions – it is almost inevitable that investigators will target chemical manufacturers, mining interests, and the oil and gas sector, all of whom lobbied heavily for these changes.

Those will not be the only areas of House Democratic focus, of course. Large pharmaceutical companies are expected to face questions about rising drug prices, while social media companies are likely to receive further scrutiny about privacy, commercialization of personal data, and the dissemination of misinformation on their platforms. The reality is that burdensome oversight requests will become increasingly prevalent over the next 24 months. It will be critical for the businesses and executives targeted, fairly or unfairly, to appreciate the multifaceted financial, legal, regulatory, and public-affairs dangers this unique type of politico-legal scrutiny can involve. This article describes and provides a quick reference guide to help responding parties navigate those pitfalls, so as to more effectively weather the investigations to come.

1. Estimate your risk of House Democratic scrutiny.

Although Congressional investigations can strike any time, it is possible to estimate where the new Democratic majority will focus. Post-election statements of high-ranking Democrats favored to chair important committees, investigative priorities of Democratic state attorneys general, and information sought in dozens of informal letter requests issued by the minority in the current Congress to American businesses combine to suggest a mixed strategy. Target lists drawn up since the election are certain to include names of businesses that openly advocated for or substantially benefited (directly or indirectly) from policies championed by President Trump, companies that won federal contracts to implement those policies, entities that lobbied or met frequently with senior White House or cabinet agency officials, and corporate executives with close ties either to the President personally or to his businesses. In addition, traditional Democratic themes of consumer protection, civil rights, privacy and big data, affordable healthcare, energy efficiency and sustainability, and climate-change mitigation can be expected independently to animate the new majority’s oversight priorities.

2. Avoid prioritizing challenges to investigative authority over diligent preparation.

Questioning Congress’ investigative authority is a common first impulse upon receipt of a request to testify before Congress. After all, if a private litigant sues for damages, quickly securing a judgment of dismissal is what a good litigator would do. On the Hill, however, the procedural protections familiar to us in court do not apply. Congress’ power to investigate is inherent in its authority to enact “necessary and proper” legislation under Article I,[2] and thus is extraordinarily broad. To defeat an authority-based challenge, House Democrats would need only to articulate some valid legislative purpose.

That nexus is easy to demonstrate. The U.S. Supreme Court has held that it encompasses “the administration of existing laws,” “proposed or possibly needed statutes,” as well as “surveys of defects in our social, economic or political system for the purpose of enabling…Congress to remedy them.”[3] Put simply, any topic “on which legislation could be had” will be considered fair game.[4] While so-called legislative trials are prohibited,[5] as a practical matter, courts do not intervene – not without blatant violations of substantive constitutional rights – and the chances of successfully undermining an investigation’s legal foundation are vanishingly small.

The mere attempt can also be costly, as it risks setting an adversarial tone that alienates committee staff and may ironically prolong rather than shorten the inquiry. The better course is to concede the legitimacy of the inquiry, and focus on preparing in a way that will end the inquiry quickly and favorably.

3. Learn the rules oversight committees must follow.

Corporate counsel will want to pay close attention to which committee is presiding. It is also relevant from whom precisely a given request has come – an individual member or a committee chair. Authority to investigate is vested in the chambers’ standing committees, of which there are currently 20, each with different legislative jurisdictions and oversight responsibilities.[6] This delegation is operationalized through a series of procedural rules adopted by each committee at the outset of each new Congress. Subcommittees, too, frequently establish their own special rules to govern oversight. These can and do vary, and the variations can be impactful, encompassing requirements for commencing an investigation; holding a hearing; compelling a witness to give sworn testimony; the procedures for issuing, noticing, and enforcing a subpoena; the scope of staff deposition authority; the procedural rights afforded deponents; as well as how noncompliance is punished.

Effectively responding to a congressional probe requires a nuanced understanding of how the applicable procedures affect the target’s obligations. For example, individual members can and frequently do make informal requests for documents or information. But without a committee’s imprimatur – and the delegated constitutional authority it conveys – these member letters are unenforceable. No subpoena can be issued or other compulsory process used. A target may wish to respond voluntarily – and, absent concerns about privilege or the disclosure of proprietary or confidential material, they generally should – but, as a purely legal matter, it is permissible to decline. Not so for a request made by a committee. There, the manner and extent of compliance might be negotiated, but compliance is mandatory, otherwise a subpoena could issue, and non-compliance could trigger the use of Congress’ principal enforcement tool: contempt of Congress.

If a witness nevertheless is inclined not to comply with all or a portion of a subpoena, it is worth knowing that while Congress enjoys largely unreviewable discretion to construe its internal procedures,[7] committee jurisdictions are limited, and courts generally decline to uphold convictions for contempt where committees fail to follow their own rules.[8] This means, for instance, that a senior executive of a company in receipt of a subpoena compelling her testimony in D.C. in 48 hours needs to know that House rules require at least one week’s public notice prior to any hearing.[9] If it is the House Committee on Ethics holding the hearing, it is critical to be aware that testimonial subpoenas must be served “sufficiently in advance of [a potential] witness’ scheduled appearance to allow [her] a reasonable period of time…to prepare for the hearing and to employ counsel.”[10]

Alternatively, suppose an executive receives a subpoena to appear and give testimony under oath in closed session? It is important to know that House rules generally limit the use of closed-session proceedings to circumstances “endanger[ing] national security…compromis[ing] sensitive law enforcement information…[or] tend[ing] to defame, degrade, or incriminate any person” – and then only by majority vote – otherwise she cannot effectively consider her options or protect her interests.[11]

It remains to be seen what rules the 116th Congress will adopt, but Democrats will certainly move expeditiously to implement any desired changes – first to the House’s standing rules, and then with their committees and subcommittees taking up procedures soon thereafter, as assignment resolutions are considered throughout January. The new versions will be published in the Congressional Record and publicly available, typically posted on-line as well as obtainable by direct request.

4. On subpoenas: Congress almost always seeks voluntary compliance before compulsory process is used.

Congressional subpoenas are lawful orders compelling the production of documents as well as pertinent testimony and the attendance of witnesses. The 115th Congress vested the chairs of most House standing committees with the power to issue subpoenas unilaterally, over the objection of minority members[12] Although widely condemned at the time as unprecedented, incoming House Democrats are not likely to relinquish this new authority once they are in the majority.

To be sure, compared to prior Democratic-controlled Congresses, a target company’s Republican allies now have less power to shape, steer, or stymie an investigation to which they object. Where consent of the minority was necessary, the minority had leverage to bargain and horse-trade across investigations, and that check has been lost. But even so, there are few upsides to beginning an investigation, especially one focused on the private sector, with compulsory process. Brute-force tactics carry political costs that long-serving House staffers will seek to avoid. Committee members need to work together across the aisle (or at least be perceived as willing or able to do so), even in hyper-partisan times. Plus, unilaterally issued subpoenas still have to be authorized pursuant to committee rules, and most impose requirements to consult with or notify the ranking minority member in advance. Clearing those procedural hurdles is also time-consuming. Staffers know that results can usually be obtained more efficiently with an informal request.

5. On contempt: Congress almost never cites corporations.

Even if a subpoena does issue, it frequently demands an escalating political and procedural commitment to enforce – first by obtaining a full-committee resolution of non-compliance, then a vote on the House floor approving a contempt charge, either under Congress’ inherent contempt authority, the criminal contempt statute,[13] or by petitioning a federal court to order compliance under threat of civil contempt of court (as opposed to contempt of Congress). The likelihood of House Democrats invoking their inherent contempt power is negligible. It has not happened in almost 100 years, and would require issuing a warrant to the chamber’s Sergeant at Arms to arrest a non-compliant witness, followed by a burdensome trial in the House. There are also limitations on punishment beyond Congress’ next adjournment date. In the case of criminal contempt, the full committee still needs to send up a citation, the full House needs to approve and serve it, and then it falls to the appropriate U.S. Attorney to decide to prosecute (which U.S. Attorneys have discretion to refuse to do) – meaning Congress has to surrender control to the Executive. Likewise, the House lacks a civil contempt statute, and workarounds to seek judicial orders are cumbersome. Fortunately, Congress virtually never applies its contempt powers to corporations or private individuals. Of course, sometimes the mere threat or public contemplation of enforcement can be sufficiently damaging to be coercive. For this and other reasons, it pays to be cooperative.

6. Cooperate: There is often no quicker path to ending an inquiry or mitigating its risks.

As discussed above, other things equal, even companies under the most intense scrutiny typically do not receive subpoenas before their voluntary compliance is sought. This delay represents a responding company’s best opportunity to develop credibility with committee staff and open a constructive dialogue. While not legally required, early cooperation is often the quickest path to ending an investigation or mitigating its risks.

Most targets of oversight underappreciate their leverage at this juncture. The number of congressional committee staff in the House – versus House district staff – is declining. Meanwhile, the Congressional Research Service (CRS) has suffered budget cuts. The net effect is that many House committees have at their disposal fewer, less experienced subject matter experts than in the past, and declining research support.

At the outset of an investigation, committees also usually lack sufficient information to craft an effective subpoena. Preparatory inquiries – from document requests, to staff interviews, to exploratory hearings – are necessary to illuminate the landscape and sharpen the committee’s focus. It is thus in a responding company’s strong self-interest to engage proactively with and help educate committee staff, many of whom may not have more than a cursory understanding of the issues driving their nascent probe.

Building this rapport with staff has an important defensive purpose, as well. Congressional investigations are dynamic. No matter how effectively one shapes the narrative initially, tomorrow’s news cycle has the power to dramatically accelerate an investigation’s pace, darken its tone, or transform an executive from media darling into an attractive political target. Committee staff with whom one has earned trust can be a helpful bulwark against this kind of volatility.

Therefore, oversight counsel and their in-house partners should coordinate closely to ensure that the sharp elbows commonplace in litigation are minimized, and the responding company’s respect for Congress’ legitimate oversight role is clearly signaled.

7. Negotiate: There is often leverage to trade completeness for speed.

In the early days of an investigation, House committee staffers will sometimes press the point that anything less than perfect compliance will be regarded as noncompliance. This is posturing intended to obscure the reality that, in the trenches, speed is prized and can usually be traded against completeness. Learning that you or your company has been targeted for oversight is stressful, but your committee-staff antagonists often feel equally intense pressure to show concrete results, or face criticism from their chairs. As discussed, they may also be reluctant to resort to compulsory process if not absolutely necessary, due to the significant investments of time, attention, and committee resources, not to mention political risk often involved. Together, this creates space for responding companies to negotiate key aspects of the inquiry. It will often be possible, for example, to:

  • restrict the time frame of a document request;
  • narrow the scope of an on-the-record interview with committee staff;
  • establish a rolling production schedule for responsive material;
  • agree on permissible circumstances for documents to be redacted, withheld, or reviewed in camera;
  • obtain limited non-disclosure agreements for confidential information voluntarily supplied;
  • specify the types of media to be collected in electronic discovery versus those to be excluded due to burden, as well as the search methodology to be used (e.g., centralized search versus custodian-based self-search);
  • influence the composition of a panel at an upcoming hearing; or
  • substitute a requested witness for another more suitable or readily available.

8. Confidential documents: neither private nor proprietary information is insulated from production to Congress.

Exposure of sensitive private or confidential information is generally not, courts have repeatedly held, a cognizable basis to resist disclosure to Congress – certainly not pursuant to a valid subpoena. Nor is proprietary material otherwise protectable under the Trade Secrets Act immune. Moreover, once Congress takes possession of such material, its members and committee staff face no legal obstacles to its use or broad disclosure. Technically, a valid legislative purpose must always be served, but, as a practical matter, courts will not second guess. Instead, they will “presume that the committees of Congress will exercise their powers responsibly and with due regard for the rights of affected parties.”[14] This means that any confidential material provided to Congress is subject to unilateral release at any time and should be deemed “public” upon production.

Does a responding company have any recourse? As a legal matter, the best answer is probably no. However, prudential steps can and should be taken to mitigate the harm. Depending on the nature of the sensitive material, responding companies may wish to develop tailored crisis management and strategic communications plans in anticipation of and to be deployed in the event of later wide release. To the extent that companies maintain existing breech-notification policies, the conditions triggering their activation should be carefully reviewed, and, where appropriate, the prescribed steps taken.

Without appearing to be hostile to the committee’s request, oversight counsel should certainly flag confidentiality as an impediment to voluntary production. The information asymmetries involved – e.g., committee staff will not be able independently to verify that a responding company’s assessment of the harm likely to be incurred by disclosure is reasonable – may prevent success, but companies are nevertheless well-advised to seek three accommodations as a condition of disclosure:

  • that committee staff commit in writing not to release designated confidential materials outside of the committee without a compelling legislative justification not achievable by less burdensome means;
  • that staff allow the responding company to affix durable watermarks on all such documents to designate them as subject to this understanding; and,
  • if the committee nevertheless feels compelled to publicize the material further, that staff provide notification no less than 72 hours in advance.

It also worth arguing for some or all of these accommodations even where a subpoena is at issue, since none are legally binding in any case.

9. Privileged communications: Congress does not recognize common-law litigation or testimonial privileges.

One especially critical point for corporate counsel to appreciate – and to ensure that their company’s executives appreciate – is the impoverished status of common-law litigation and testimonial privileges in congressional investigations, versus seemingly analogous probes conducted by Executive Branch agencies or state law enforcement authorities. Because attorney-client privilege, the work product doctrine, and most other testimonial privileges (spousal privilege, physician-patient privilege, etc.) cannot be said to protect or reflect or embody constitutional guarantees, committees have long taken a firm position that their Article I prerogative to investigate supersedes those judge-created protections – and as a result, Congress neither recognizes nor believes it is judicially obligated to honor them.

When companies are ensnared by a congressional investigation for the first time, this above everything else is what corporate counsel (for whom courtroom norms are deeply ingrained) find most difficult to accept. High-stakes legal as well as business decisions are taken every day in reliance on these privileges. Can it really be true that Congress is free to violate them so casually? Unfortunately, yes; if this position is Legislative-Branch overreach, there has been scarce indication, let alone consensus, from commentators or the courts.

Correct or not, the reality on the ground is that any request for production of privileged material by congressional committees with subpoena power forces responding companies into an incredibly difficult corner. Voluntary disclosure of any portion of an attorney-client communication collapses the privilege as to the entire communication, as well as any communication related to the same or similar subject matter. This means, paradoxically, that protecting your client by cooperating with congressional investigators risks imposition of a broad privilege waiver, which in turn may attract or weaken one’s position in follow-on civil litigation, collateral civil or administrative enforcement by federal or state regulators, or criminal probes by law enforcement.

There is no one-size-fits-all strategy for counsel to navigate these competing obligations. In every case, the imperative to meet congressional demands must be carefully weighed against the importance of safeguarding client information. Committee staff will sometimes attempt to downplay the tension by claiming that disclosures made pursuant to a congressional subpoena under threat of contempt are not voluntary, and therefore no threat to privilege. At best, however, this argument is unsettled in caselaw. In fact, to maximize the chance of preventing waiver of the privilege, it may be necessary to strenuously resist Congress on every available ground for as long as reasonably possible.

How solicitous the Democrats will be about privilege concerns in 2019 remains to be seen, but it certainly would not be unheard of historically if staffers in upcoming investigations were to react with hostility to any proposal to withhold responsive documents or information on attorney-client privilege or work-product grounds. In prior Congresses, some House committees were even known to balk at watermarks affixed to assert privilege for the sole purpose of preserving it in unrelated matters. While the Executive Branch can sometimes push back on separation-of-powers grounds, these are not battles that private parties can generally win.

As a consequence, some in the oversight community recommend simply proceeding as if Congress recognizes common-law privileges. They argue that, in practice,, committees actually will honor many valid assertions of privilege, especially in the face of demonstrable hardship. It is true that staffers are neither blind nor unsympathetic to the harms caused by unwanted disclosure, and many do work hard to balance responding parties’ confidentiality interests against the policy and political goals of their investigations on a case-by-case basis. Ultimately, though, this is still a political calculation, not a legal test, and Congress’ oversight interests will rarely lose out.

Thus, at a minimum, other things equal, companies should be prepared to take stock of and clearly express privilege concerns, and then promptly ask committee staff to make the accommodations needed to minimize the expected harms. However, even that approach is not risk free. Merely broaching the topic can sometimes be hazardous if staffers perceive you to be contesting their authority or disingenuously stalling for time. Here again, we see the importance in congressional oversight of cultivating a reputation as an honest broker. With trust and respectful negotiation, chances are good that some portion of the privileged materials can be excluded by mutual agreement (e.g., as out of scope or low priority). Alternatively, the committee may agree to review the sought-after information in summary form, without disclosure of the communications themselves. It is also sometimes possible to table the entire question, delaying production of most sensitive tranches of documents until the tail end of a rolling-production – the hope being that the committee loses interest (as frequently happens) or another compromise is found.

10. Document production: sophisticated eDiscovery is expected; apply the same legal rules and levels of diligence as required by Rule 26 in federal court.

In the beginning of an investigation, many information requests are overbroad to guard against incompleteness. Letters make expansive demands for “all documents and communications referring or relating to” the incident or issue under investigation. This mirrors offensive discovery strategy in large-scale criminal and civil litigation, and responding companies must be prepared to respond no differently than they would to a discovery request in federal court – except without the benefit of dedicated rules or a magistrate to settle disputes.

A Rule 26(f) discovery conference provides a useful model. Counsel should closely review Congress’ request and be prepared to negotiate: the scope, the definition of “responsive” records, the date range and locations of material to be searched, as well as the form and format of production before undertaking the Herculean task of identifying every item that may refer or relate the subject matter. In-house lawyers, working in concert with external oversight counsel, are best situated to educate committee staff as to which responsive documents exist, how (or if) those records are kept, whether it is feasible to retrieve them, and how expeditiously that can be accomplished. As discussed, Congress is not required to recognize claims of privilege or business confidentiality, so consent to watermarks, disclaimers, or cover sheets must be obtained in advance to enable appropriate coding.

As in modern litigation, electronically stored information (ESI) now tends to be single most important category of information to oversight staff. It also poses unique challenges. Companies need to anticipate and work closely with their information technology teams to facilitate timely and cost-effective search and production of ESI to Congress, yet no consensus has emerged on what legal rules, if any, ought to govern. To mitigate enforcement risk, companies should closely track developments in and wherever possible use the tools, techniques, and standards of care required in court – from detailed Discovery plans, to retention schedules and litigation/investigatory holds, to the appropriate use of predicative-coding technology.

For example, responding companies may need to override any email auto-delete policies currently in operation, collect and search for material on company mobile devices, or determine how to retain and produce information from third party sources or apps like Messenger, SnapChat, or Slack. As the leadership of almost every large company is now learning, if a fast and convenient form of communication exists, someone in or connected to the organization is likely already using it, or soon will be – sometimes even where reasonable steps are taken to block access. To discover this during a hearing could be disastrous. For this reason, experienced eDiscovery lawyers are an essential part of any competent oversight response team. They can help identify unanticipated and emerging sources of ESI, charting the least burdensome path for search, collection, and review – including the pros and cons of digital forensic techniques and how best to deploy electronic discovery tools (e.g., text analytics for AI-assisted review or predictive coding) to lower costs, increase quality, and shorten the timeframe of a company’s response. If certain sources (such as legacy email systems or back up servers) might contain responsive information, but access is prohibitively difficult, expensive, or time-consuming, offering alternatives (such as a search of the company’s formal document management system) will often be well-received. The concepts of proportionality, relevance, and cooperation are even more vital to an informal process than a formal one, and knowledge of both the relevant committee process and the available tools can help minimize the disruption, risk, and expense of response to a request.

11. Testimonial appearances: prepare witnesses exhaustively; the danger of congressional oversight reaches its apex when clients engage directly with investigators.

The danger of an investigation arguably reaches its apex if and when companies are called to communicate with Congress directly. This occurs at public hearings, formal depositions, on-the-record transcribed interviews, as well as informal staff briefings – in descending order of risk. Ironically, the perils are often greatest for a company’s top executives, who may be comfortable on camera but more prone to underestimate the political character of a hearing and the skills of the politicians questioning them. It is difficult to overstate the ease with which most members of Congress are able to use an oversight hearing to inflict devastating reputational injury on even the best witness, undermining her company’s brand, or attracting media scrutiny that will lead to parallel investigations and follow-on litigation.

Witnesses should be prepared exhaustively, with regular and unforgiving practice that simulates real-world questioning. Counsel should anticipate lines of inquiry, formulate ideal answers, develop themes, help executives calibrate their tone (e.g., how to be deferential without succumbing to bullying), navigate away from rhetorical traps (e.g., demands for an acknowledgement of wrongdoing and/or an apology), and prepare written testimony and responses to QFRs (questions for the record) with caveats accounting for unavoidable gaps in diligence.

Perhaps most important, it is not possible to win an encounter with Congress – only not to lose. Counsel must, of course, train witnesses to navigate the complex maze of First and Fourth Amendment-based defenses, and Fifth Amendment privilege assertion; however, the temptation to score rhetorical points by answering questions or making commitments before internal fact gathering is complete may be the most hazardous pitfall. In the heat of questioning, a witness may feel pressure to reaffirm confidence in a colleague under scrutiny; or demonstrate commitment to transparency by promising to release documents not-yet-reviewed; or acknowledge responsibility for harms and pledge to compensate victims where fault is cloudy. Counsel must drill witnesses until they can stay calm and resist conveying any information that might be falsifiable later, which at best paints the client as disingenuous, but at worst could trigger a perjury charge.

12. Build a cross-functional team, and invest in understanding the political dynamics animating the investigation.

Effectively navigating a congressional investigation requires a similar level of commitment, experience, and skill as is required to prevail in high-stakes ligation. However, the pertinent experience and necessary skills are not coextensive. Businesses at risk of congressional scrutiny would be well-advised to begin early assembling a cross-functional oversight response team – one composed not only of litigators, but also of Executive Branch veterans who have first-hand experience negotiating with Congress; of regulatory policy experts who can address the likelihood that probes on the Hill will spark add-on compliance investigations by federal agencies and state attorneys general; and seasoned communications professionals who can develop a proactive media strategy to frame expectations in the public’s mind before a hearing. This will both dramatically increase the probability of meeting those expectations, but also equip witnesses with curated messaging selected to bolster the company’s overall narrative and strategic goals. Finally, every member of the team, in-house counsel and company executives included, must invest in fully understanding the political factors underlying and all-to-often driving the inquiry. This holistic perspective increases one’s awareness of the multi-dimensional, multi-forum risks presented by congressional inquiry, as well as opportunities to bring a probe to conclusion with minimal disruption and low risk of further inquiry.

For more information or assistance with congressional oversight or government investigations, please contact:

Jonathan Rackoff
Partner
D - 206.422.0209
E - rackoff [at] martenlaw [dot] com

*Jonathan E. Rackoff is a partner and Chair of Marten’s Regulatory and Government Investigations practice. Mr. Rackoff brings over 15 years of litigation and complex regulatory experience, including seven years in senior legal positions in the Obama White House and U.S. EPA, where he served as chief oversight lawyer nationwide. His first-chair record spans the defense of over 95 congressional investigations/subpoenas and more than 50 congressional hearings.

[1] Eric Lipton et al., President Trump’s Retreat on the Environment is Affecting Communities Across America, N.Y. Times, Dec. 27, 2018, available at https://www.nytimes.com/interactive/2018/12/26/us/politics/donald-trump-environmental-regulation.html; see also Tracking deregulation in the Trump era, The Brookings Institution, Dec. 12, 2018, available at https://www.brookings.edu/interactives/tracking-deregulation-in-the-trump-era/.

[2] U.S. Const. art. I, § 1 et seq.

[3] Watkins v. United States, 354 U.S. 178, 187 (1957).

[4] McGrain v. Daughtery, 273 U.S. 135, 177 (1927).

[5] Watkins, 354 U.S. at 187 (cautioning that Congress enjoys “no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress,” that Congress is not “a law enforcement or trial agency,” that “[n]o inquiry is an end in itself,” and “[i]nvestigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible”).

[6] The current standing committees of the House include: Agriculture; Appropriations; Armed Services; Budget; Commerce; Education and the Workforce; Ethics; Financial Services; Foreign Affairs; Homeland Security; House Administration; Judiciary; Natural Resources; Oversight and Government Reform; Rules; Science, Space, and Technology; Small Business; Transportation and Infrastructure; Veterans’ Affairs; and Ways and Means.

[7] See AFL-CIO v. U.S., 330 F.3d 513, 522 (D.C. Cir. 2003) (observing that “[t]he Constitution grants Congress discretion to regulate its internal proceedings,” and Article I, § 5, cl. 2 specifically empowers the chambers to determine their own procedural rules, which encompasses the manner in which they “conduct investigations and hold hearings to gather information.”).

[8] See Tobin v. United States 306 F.2d 270 (D.C. Cir.), cert. denied, 371 U.S. 902 (1962) (reversing a contempt of Congress conviction on the ground that a congressional subpoena had exceeded the investigative authority delegated to the committee that issued the subpoena); Watkins, 354 U.S. at 206 (explaining that oversight “committees are restricted to the missions delegated to them,” that “[n]o witness can be compelled to make disclosures on matters outside that area,” which reflects a “jurisdictional concept of pertinency drawn from the nature of a congressional committee's source of authority.”).

[9] House Rule XI(2)(g)(3).

[10] H.R. Committee on Ethics, Rule 23(k)(5)(1)

[11] House Rule XI(2)(K)(5) and (K)(7).

[12] House Rule XI(2)(m)(3) allows committees to adopt rules to delegate the authorization and
issuance of subpoenas to a committee’s chair “under such rules and under such limitations as the
committee may prescribe.”

[13] See 2 U.S.C. §§ 192 and 194 (“Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry…willfully makes default, or…refuses to answer any question pertinent…shall be deemed guilty of a misdemeanor….”).

[14] FTC v. Owens-Corning Fiberglas Corp., 626 F.2d 966, 970 (D.C. Cir. 1980)

This article is not a substitute for legal advice. Please consult with your legal counsel for specific advice and/or information. Read our complete legal disclaimer.