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Committees may issue subpoenas in furtherance of an investigation within their subject matter jurisdiction as defined by Senate and House" rules which confer both legislative and oversight jurisdiction. Subpoenas may be issued on the basis of either source of authority.

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" provides "an absolute bar to judicial interference" with such compulsory process.29 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.

30

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.31

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." 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.

33

29

30

31

Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503-07 (1975).

365 U.S. 399, 408-09 (1961).

Barenblatt v. United States, 360 U.S. 109, 117 1959); Watkins v. United States, supra, 354 U.S. at 209-215.

33

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

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34

Also, 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. 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." But "[w]here constitutional rights are not violated, there is no warrant to interfere with the internal procedures of Congress."36

Finally, it is useful to note that the obligation to comply with a legitimate committee request for information and documents is not dependent on the issuance of compulsory process. As indicated previously, the witness found in contempt in the Sinclair case for refusing to respond to questions posed by the Committee appeared voluntarily. Further, the courts have held that the legal obligation to surrender documents requested by the chairman of a congressional committee arises at the time of the official request", and have agreed in construing 18 U.S.C. 1505, a statute proscribing the obstruction of congressional proceedings, that the statute is broad enough to cover obstructive acts in anticipation of a subpoena. Thus a refusal to comply with a letter request could engender a contempt citation in the proper circumstances.

38

2. 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.39 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

34

at 305.

Sinclair v. United States, supra, 279 U.S. at 299; Ashland Oil, Inc. v. F.T.C., 409 F.Supp.

35 See, e.g., Yellin v. United States, 374 U.S. 109, 143, 144 (1969); Watkins v. United States, supra; United States v. Ballin, 144 U.S. 1, 5 (1892).

36

Exxon Corporation v. F.T.C., 589 F.2d 582, 590 (D.C. Cir. 1978).

37 See, e.g., Ashland Oil Co. v. FTC, 598 F.2d 977, 980-81 (D.C. Cir. 1976).

38

See, e.g., United States v. Mitchell, 877 F.2d 297, 300-01 (9th Cir. 1979)("To give section 1505 the protective force it was intended, corrupt endeavors to influence congressional investigations must be proscribed even when they occur prior to formal committee authorization.”); United States v. Tallent, 407 F.Supp 878, 888 (.N.D.Ga. 1975); United States v. North, 708 F.Supp. 372 (D.D.C. 1988); United States v. North, 708 F.Supp. 389 (D.D.C. 1988)(holding that the defendants' acts constituted the felony offenses of obstruction of Congress and of making false statements, even though the inquiry letters and responses occurred in the absence of committee votes and subpoenas or oaths).

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

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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." 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."41 Such grants may be appropriate 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."2 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."

42

At least ten days prior to applying to the court for the order, the Attorney General" must be notified of the Congress' intent to seek the order," 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." 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." 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

40 See generally Kastigar v. United States, 406 U.S. 441 (1972).

41

Kastigar v. United States, 406 U.S. at 446.

42 18 U.S.C. § 6005(a); See also Application of Senate Permanent Subcommittee on Investigations, 655 F.2d 1232 (D.C. Cir.), cert. denied, 454 U.S. 1084 (1981).

43 18 U.S.C. § 6005(b).

44

Notice should be given to an independent counsel where one has been appointed, since he would have the powers usually exercised by the Justice Department. See 28 U.S.C. § 594. 18 U.S.C. § 6005(b). The Justice Department may waive the notice requirement, Application of Senate-Permanent Subcommittee on Investigations, 655 F.2d at 1236.

45

46 18 U.S.C. § 6005(c).

47 See H.R. Rept. No. 91-1549, 91st Cong., 2d Sess. 43 (1970).

70-435 D-01--4

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48

immunity." 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.

49

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."50 The immunity that is granted is "use" immunity, not "transactional" immunity." 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 scaled 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.$2

Appellate court decisions reversing the convictions of key Iran-Contra figures Lt. Colonel Oliver North" and Rear Admiral John Poindexter" 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.

43 Id. See also S.Rept. No. 91-617, 91st Cong., 1st Sess. 145 (1969); Application of U.S. Senate Select Committee on Presidential Campaign Activities, 361 F.Supp. 1270 (D.D.C. 1973). Application of U.S. Senate Select Committee, 361 F.Supp. at 1278-79.

49

50

18 U.S.C. § 6002.

51 The constitutionality of granting a witness only use immunity, rather than transactional immunity, was upheld in Kastigar v. United States, supra.

$2

53

Kastigar v. United States, supra, 406 U.S. at 460.

United States v. North, 910 F.2d 843 (D.C. Cir.), modified, 920 F.2d 940 (D.C. Cir. 1990) cert. denied, 111 S.Ct. (1991).

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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.' "55 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. 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, caseby-case assessments by congressional investigators will be needed, guided by the sensitivity that these are political judgments.

3. Grants of Special Investigative Powers

Often in high profile oversight investigative proceedings, focusing on scandals, alleged abuses of authority, suspected illegal conduct, or other unethical behavior, the Houses will vest standing committees, or specially created, temporary panels, with special investigative authorities. The most common is staff deposition authority. Thus, 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. 57 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 cnable 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.

55

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

56

Michael Gilbert, The Future of Congressional Use Immunity After United States, v. North, 30 Amer. Crim.L.Rev. 417, 430-31 (1993). See also, Arthur L. Limon and Mark A. Belnick, Congress Had to Immunize North, Wash. Post, July 29, 1990, at p. C7.

57 E.g., S. Res. 229, 103d Cong. (Whitewater); S. Res. 23, 100th Cong. (Iran-Contra); H. Res. 12, 100th Cong. (Iran-Contra); H. Res. 320, 100th Cong. (impeachment proceedings of Judge Alcee Hastings); S. Res. 495, 96th Cong. (Billy Carter/Libya).