When Congress Comes Calling

I. Introduction: The Challenges to Effective Investigative Oversight
But perhaps the most valuable resource can be the study of past investigations. There are several valuable studies
of past inquires, 7 and the CRS issued a report in 2008 on investigations of the Justice Department that
contains detailed descriptions of 18 important probes since 1920. 8 Reading the published hearing transcripts
and reports on such investigations can provide valuable insight on strategy, and the reports often contain copies
of the correspondence between the committees and the subject agencies and organizations that show the
parries and thrusts as the proceeding develops. 9
As the title of this handbook suggests, it is designed to be an introduction to the legislative investigatory process.
It is intended to shed some light on this aspect of the arcane, sometimes impenetrable, and often seemingly
bizarre “Law of Congress” that can confound the most sophisticated legal practitioners representing
government and private clients before an inquiring committee, and which may even elude the members and
staff of committees conducting such inquiries. The law of congressional investigation consists of a complex
combination of constitutional rulings and principles, statutory provisions, Byzantine internal rules adopted
by the House and Senate and individual committees, informal practices, and folkways. Although there is no
black letter guide for the uninitiated, we hope that this handbook will provide a first step in that direction.
Chapter II presents an overview of Congress’ authority to conduct oversight. It includes a discussion of the
extent and limits of the obligation of the executive agencies and the White House, and private parties, to
provide access to needed information. The essential rules and tools of oversight are detailed, followed by a
description of the scope and limits of enforcement of the investigative power, and the alternatives of the appropriations,
confirmation, and impeachment powers.
Chapter III discusses the preparation for and conduct of investigative hearings. It includes a discussion of
the significant rules governing such proceedings, including the rights of witnesses, the roles of the committee
chairpersons and counsel for witnesses, and the effect of sine die adjournment at the end of a legislative session
on the conduct of ongoing investigations.
Chapter IV examines the constitutional testimonial privileges of witnesses. It focuses first on the particular
problem of investigating the Office of the President and the nature and scope of presidential claims of
executive privilege, and then reviews the protections afforded witnesses under the First, Fourth, and Fifth
Amendments.
Chapter V contains a similar examination of the availability of common law testimonial privileges, such as the
attorney-client, work-product, and deliberative process privileges, before congressional committees.
Chapter VI deals with issues that commonly arise in investigations of executive agencies. Utilizing the welldocumented
history of investigations of the Department of Justice since 1920, it examines questions about accessing
information in open and closed civil and criminal proceedings and explores the availability of particular
officers and employees of agencies for interviews and testimony, the accessibility of grand jury materials,
and the effect on congressional access to information of statutory prohibitions on public disclosure of proprietary,
trade secret, privacy, and other “sensitive” matters.
Chapter VII delineates the rights of minority party and individual members in the investigatory process.
Chapter VIII concludes with considerations of methods to make the investigative process more effective and
facilitate accommodations between the political branches.
Throughout all of these chapters, the discussion includes the standards established and guidance provided by
the courts. Finally, appendices provide an example of a comprehensive subpoena and identify the governmental
and non-governmental institutional support resources available for legislative oversight.
6 | The Constitution Project